author: STORCKMAN, Judge.

text:
    STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney General of the State of Missouri, and Lawrence F. Gepford, Prosecuting Attorney for Jackson County, Missouri, Relators, v. Honorable Joe W. McQUEEN, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Respondent.
    No. 50435.
    Supreme Court of Missouri, En Banc.
    May 11, 1964.

      Thomas F. Eagleton, Atty. Gen., Lawrence F. Gepford, Pros. Atty. for Jackson County, Arthur R. Tucker, Samuel H. Lib-erman, Charles L. Edson, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Sp. Counsel, for relators.
    Stinson, Mag, Thomson, McEvers & Fiz-zell, D. Brook Bartlett, Lawrence R. Brown, Kansas City, for respondent.
   STORCKMAN, Judge.

This is an original proceeding for a writ to prohibit the Circuit Court of Jackson County from taking any action to enforce its order temporarily enjoining the relators from enforcing Section 563.721, RSMo Supp.1963, V.A.M.S., Laws 1963, Senate Bill No. 49, which became effective on October 13, 1963, and is sometimes referred to as the Sunday Sales Act.

On August 26, 1963, Katz Drug Company, a corporation engaged in selling drugs and many other items at retail in Jackson and other bounties in Missouri, filed a declaratory judgment action against the prosecuting attorney of Jackson County. Thereafter, the attorney general was permitted to intervene and became a party defendant. The petition sought a temporary and a permanent injunction to prevent the defendants from attempting to enforce the Act and further prayed for a declaration and determination that the Act violated the Constitution of Missouri and was void. An order to show cause was issued and the defendants filed their return. A hearing was held and thereafter on October 9, 1963, the circuit court issued a temporary injunction restraining and enjoining the defendants from enforcing or attempting to enforce the Act against the plaintiff Katz until final determination of its constitutionality by the Supreme Court of Missouri or until further order of the circuit court.

On October 9, 1963, the attorney general and the prosecuting attorney, as relators, filed in this court their petition for a writ of prohibition. A preliminary rule in prohibition was issued against the respondent circuit judge on the following day. The return to the preliminary rule alleges - “that relators ought not .to have a Writ of Prohibition herein because the.facts stated in the petition and appearing in the Transcript of the Evidence (Exhibit 6 to the petition) show, as a matter of law, the respondent has not exceeded his authority or jurisdiction and that he had the legal authority to issue the temporary injunction he has issued and to enforce the same which relators seek to prohibit him from doing.” Thereafter, the relators filed a motion for judgment on the pleadings on the ground “that as a matter of law relators are entitled to judgment making absolute the preliminary rule in prohibition.”

Gem Stores, Inc., v. O’Brien, Mo., 374 S.W.2d 109, decided by this court en banc on December 9, 1963, disposed of some of the issues presented by Katz in its petition for a declaratory judgment. The Gem case held that the Sunday Sales Act was not vio-lative of the due process and equal protection provisions of the State and Federal Constitutions and that it was not a “special law” in violation of the Constitution of Missouri. The respondent in this action does not undertake to relitigate those issues. The only constitutional question presented by the respondent is that the Act is so vague and indefinite that citizens cannot ascertain or be informed of its meaning contrary to the due process provision of Art. 1, § 10, of the Missouri Constitution, V.A.M.S., and in violation of the right of a person accused in a criminal proceeding to demand the nature and cause of the accusation against him as provided by Art. 1, § 18(a) of the Missouri Constitution. It is further contended that the respondent properly exercised his discretion in issuing the temporary injunction. We will first consider the constitutional question.

The respondent attacks as vague and uncertain the terms used in the Act to describe the articles of merchandise, the sale of which is prohibited on Sunday as well as the categories of merchandise excluded from the prohibition. The pertinent portions of the Act, now § 563.721, are as follows :

“1. Whoever engages on Sunday in the business of selling or sells or offers for sale on such day, at retail, motor vehicles; clothing and wearing apparel; clothing accessories; furniture; housewares; home, business or office furnishings; household, business or office appliances; hardware; tools; paints; building and lumber supply materials; jewelry; silverware; watches; clocks; luggage; musical instruments and recordings or toys; excluding novelties and souvenirs, is guilty of a misdemeanor and shall upon conviction for the first offense be sentenced to pay a fine of not exceeding one hundred dollars, and for the second or any subsequent offense be sentenced to pay a fine of not exceeding two hundred dollars or undergo confinement not exceeding thirty days in the county jail in default thereof.
“2. Each separate sale or offer to sell shall constitute a separate offense.
“3. Information charging violations of this section shall be brought within five days after the commission of the alleged offense and not thereafter.
“4. The operation of any place of business where any goods, wares or merchandise are sold or exposed for sale in violation of this section is hereby declared to be a public and common nuisance.”

The basic question is whether Katz can on Sunday lawfully engage in the business of selling or offering for sale the classes of merchandise described in § 563.721. This presents a justiciable controversy under the Declaratory Judgment Act in which Katz has a legally protectible interest, and it is not necessary for the seller to be charged with a violation in order to have the constitutionality of the Act determined. Section 527.020 RSMo 1959, V.A.M.S.; Gem Stores, Inc., v. O’Brien, Mo., 374 S.W.2d 109, 113 [1]; Chaffin v. Christian County, Mo., 359 S.W.2d 730, 732 [3]; Terrace v. Thompson, 263 U.S. 197, 215-216, 44 S.Ct. 15, 68 L.Ed. 255. Since the issue of vagueness is the only specification of unconstitutionality presented and briefed in this proceeding, other grounds alleged in the petition of Katz for a declaratory judgment will be deemed to be abandoned and we will not undertake to decide them.

The petition for a declaratory judgment states in general terms that the Sunday Sales Act “is so vague, indefinite and uncertain as to make unascertainable the items of merchandise that can and that cannot be sold and the standards of conduct required and the nature and cause of acts complained of as violative thereof as to deprive plaintiff and others of their liberty and property without due process of law and is therefore violative of Section 10 and Section 18(a) of Article I of the Constitution of Missouri.” At the hearing on the order to show cause, Mr. John A. Roach, senior vice-president and director of operations for Katz Drug Company, testified that the Company handled some items in all of the categories named in the Act except motor vehicles, and if the new law was enforced Katz would have to close some of its stores on Sunday. He specifically claimed that there was doubt and uncertainty as to whether certain items of merchandise should be classified as clothing, wearing apparel, hardware, toys, souvenirs and novelties, and therefore prohibited or permitted under the Act. Other items were mentioned in argument as illustrative. On the other hand, Mr. Roach made knowledgeable use of these terms in describing the departments of the Company’s stores and location of merchandise in them. The evidence is not persuasive that any real dilemma results from the terms used in the Act.

A state statute is presumed to be constitutional and it will not be held otherwise unless it clearly and undoubtedly contravenes some constitutional provision. Hickey v. Board of Education of City of St. Louis, 363 Mo. 1039, 256 S.W.2d 775, 778 [11]; Walters v. City of St. Louis, 347 U. S. 231, 237-238, 74 S.Ct. 505, 98 L.Ed. 660; 16 C.J.S. Constitutional Law § 98b, p. 359.

The standards for determining' the constitutional sufficiency of a statute against an attack on the ground of vagueness are quite well established. The general rule is that a statute creating and defining a criminal offense “must be sufficiently explicit, in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty, fix an ascertainable standard of guilt, and make known to those to whom it is addressed what conduct on their part will render them liable for its penalties, and not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” 16A C.J.S. Constitutional Law § 580, p. 625. The cases generally hold that if the words or terms used in a statute are of common usage and understandable by persons of ordinary intelligence they will satisfy the constitutional requirement as to definiteness and certainty. See State v. Becker, 364 Mo. 1079, 272 S.W.2d 283, 288 [7]; McGowan v. Maryland, 366 U.S. 420, 428, 81 S.Ct. 1101, 6 L.Ed.2d 393; Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 330-331 [1, 2], 96 L.Ed. 367; Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840; and Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322.

The fact that “there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.” United States v. Potrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877. See also United States v. National Dairy Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561, and State v. King, Mo., 303 S.W.2d 930, 934. Nothing has been suggested which would make the Sunday Sales Act incomprehensible to a person seeking to comply with rather than to evade the law. This is especially true of persons possessing merchandising skill and commercial knowledge.

The terms of the Act to which the respondent objects are generic words in common usage and having well defined meanings. They describe classes, orders, or kinds of merchandise. With two exceptions they describe the categories of merchandise which cannot be sold lawfully on Sunday. In the converse situation, this court had no difficulty in finding that the categories of “drugs and medicines” and “provisions” in the previous law were not unconstitutionally vague and indefinite. The fatally defective term was “or other articles of immediate necessity.” State v. Katz Drug Company, Mo., 352 S.W.2d 678, 680-681, and Harvey v. Priest, Mo., 366 S.W.2d 324, 328. Such also was the case in State v. Hill, 189 Kan. 403, 369 P.2d 365, 372 [11], 91 A.L.R. 2d 750. The use of generic terms in legislation is commonplace and generally approved. See for example Section 301.010, RSMo 1959, V.A.M.S.

We find that the Act is sufficiently clear and definite to inform and warn a person of common intelligence of the kind of merchandise and commodities that cannot lawfully be sold on Sunday. The claim that the Act is unconstitutional because of vagueness is without merit and is denied in all particulars.

Generally a court of equity is without jurisdiction to interfere with the enforcement of the criminal law. Hann v. Fitzgerald, 342 Mo. 1166, 119 S.W.2d 808, 809 [1]; Wellston Kennel Club v. Castlen, 331 Mo. 798, 55 S.W.2d 288, 289 [1]; 28 Am.Jur., Injunctions, § 188, p. 691; 43 C.J.S. Injunctions § 156, p. 768. As further shown by these authorities, an exception to the general rule exists where the criminal law in question is unconstitutional or otherwise invalid and the attempted enforcement would constitute a direct invasion of property rights resulting in irreparable injury. The two elements of statutory invalidity and irreparable injury must both be present and clearly appear in order for the exception to be ' effective. Hann v. Fitzgerald, 342 Mo. 1166, 119 S.W.2d 808, 809 [1-3]; 43 C.J.S. Injunctions § 158, p. 776. Neither the pleading nor the proof in this case is sufficient to invoke the exception.

As to the attack upon the constitutionality of the Act, there was, as we have noted, a presumption that the Act was constitutional. Furthermore, on May 29, 1961, the Supreme Court of the United States decided four cases involving the constitutionality of Sunday selling or closing laws. These cases are cited and discussed in Gem Stores, Inc., v. O’Brien, Mo., 374 S.W.2d 109, 113. The Missouri Sunday Sales Act is patterned after the Pennsylvania law which was held not to be violative of due process and equal protection of the law in Two Guys from, Harrison-Allenton, Inc., v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551. While Two Guys did not consider the issue of vagueness, another one of the cases decided on the same day did. McGowan v. Maryland, 366 U.S. 420, 428, 81 S.Ct. 1101, 6 L.Ed.2d 393, held that the Maryland law which exempted retail sales of “merchandise éssential to, or customarily sold at, or incidental to, the operation of” bathing beaches and amusement parks was not so vague as to violate the due process clause of the 14th Amendment of the United States Constitution. Katz filed its injunction suit on August 26, 1963, more than two years after these cases were decided by the United States Supreme Court.

With regard to ■ irreparable injury, the petition of Katz Drug Company alleged in substance that the Company had invested large sums of money in its business on the theory that it could and would operate seven days a week, that its business was seasonal in nature, and that it “will be greatly damaged and handicapped unless the enforcement of the said law is restrained pending final adjudication and determination of the matters and issues herein set forth.” The Sunday Sales Act does not require stores to close on Sunday, only that they do not sell merchandise of the forbidden kind on that day. The pleadings and proof do not disclose any injury or damage distinct and different than that suffered by other merchants and the public generally. This falls short of showing that the remedy at law is inadequate. Hann v. Fitzgerald, 342 Mo. 1166, 119 S.W.2d 808, 809 [3]. These cases have held that an injunction will not lie to restrain prosecutions for violations of Sunday laws: Palmetto Golf Club v. Robinson, 143 S.C. 347, 141 S.E. 610; Kenny v. Martin, 11 Misc. 681, 32 N.Y.S. 1087; Chadwick Park Athletic Club v. Peasley, Sup., 142 N.Y.S. 586.

Since neither the pleading nor proof was sufficient to establish an exception to the general rule, the trial court was without jurisdiction to enjoin the relators from enforcing the Sunday Sales Act. State ex rel. Castlen v. Mulloy, 331 Mo. 776, 55 S.W.2d 294 [1]; State ex rel. Chicago Cardinals Football Club, Inc., v. Nangle, Mo., 369 S.W.2d 167.

The preliminary rule in prohibition is made absolute.

All concur.


source: Caselaw Access Project

author: PAUL VAN OSDOL, Special Commissioner.

license: Public Domain

text:
    Murvin JOHNSON, Plaintiff-Appellant, v. Fred E. SANDWEG, Defendant-Respondent.
    No. 50075.
    Supreme Court of Missouri, Division No. 2.
    May 11, 1964.

      James F. Koester, St. Louis, for appellant.
    Schwartz & Ely, Robert C. Ely, St. Louis, for respondent.
   PAUL VAN OSDOL, Special Commissioner.

Action for $35,000 damages for personal injuries sustained by plaintiff in a motor-vehicular collision at and in the intersection of Grand Avenue and Hebert Street in the city of St. Louis. The jury returned a nine-juror verdict for defendant, and plaintiff has appealed from the ensuing judgment. Herein, plaintiff contends errors of the trial court in instructing the jury and in the admission of evidence. '

On former trial of this case, plaintiff had verdict and judgment for $10,000'damages, but on appeal to the St. Louis Court of Appeals the judgment for plaintiff was reversed because of error in an instruction given at the instance of plaintiff, and the cause was remanded. Johnson v. Sandweg, Mo.App., 351 S.W.2d 806.

At the intersection of Grand Avenue and-Hebert Street in St. Louis, Grand Avenue, a north-south “through” street, is eighty feet wide, and Hebert Street, an east-west street, is thirty-six feet wide. There are northbound and southbound streetcar tracks in the center of Grand. - These two tracks are five feet four inches apart, and the rails of each track are four feet ten inches apart. Sometime since the casualty, the use of these streetcar tracks has been abandoned; but, at the time of the casualty, there was a safety zone for pedestrians on the west side of the west (southbound) streetcar track. The safety zone was seventy-six feet long, the south end of it being thirty-eight feet north of the north curb line of Hebert. The safety zone was outlined in paint and was protected by three sixteen-inch metallic “mushrooms”, and a concrete pylon five feet in diameter with blinker light at the north end of the zone. The evidence is obscure in tending to show whether or not there was a pylon at the south end of the zone. The west edge of the safety zone was twenty-five feet four inches from the west curb of Grand; and the westernmost rail of the streetcar tracks was thirty-two feet ten inches from the west curb of Grand.

Plaintiff, Murvin Johnson, was driving his 1958 Skoda automobile with hood three feet high. He was southbound on Grand. Defendant, Fred E. Sandweg, was driving his 1956 Ford pick-up sixteen and nine-tenths feet long with stake body and bed four feet from the ground. He was westbound on Hebert.

Plaintiff testified that as he drove south-wardly on Grand at twenty-eight, thirty miles per hour and had come to a point about sixty feet north of the north curb of Hebert, he saw defendant’s truck stopped with the front of the truck at the westernmost streetcar rail. Plaintiff was moving in the southbound lane immediately west of the safety zone. Plaintiff eased up on the accelerator; glanced at the rear-view mirror; observed a taxicab eastbound on Hebert which had stopped at the stop sign at the southwest corner of the intersection ; and looked out for pedestrians, having reduced speed to twenty to twenty-three miles per hour. He then looked back toward defendant’s truck and saw that it had moved eight to ten feet forward into the southbound lanes of Grand. Plaintiff’s vehicle was then but thirty-five feet from the intersection. Defendant’s truck “shot out in front of” plaintiff’s Skoda. Plaintiff attempted the application of brakes and swerved to the right, but his Skoda struck defendant’s Ford at the right running board and right door of the cab when the front of the Ford had moved to a point about even with the west curb line of Grand.

Defendant testified that, in driving west-wardly on Hebert, he had stopped at the stop sign at the northeast corner of the intersection, and had then moved across the northbound lanes of Grand, bringing his truck to a stop with the front end at the westerly rail of the southbound streetcar track; this, to await the passage of an automobile southbound on Grand. He also saw plaintiff’s car moving southwardly on Grand one hundred fifty or two hundred feet north of the intersection. On being asked to express in “car lengths” the distance plaintiff’s car was then north of the intersection, defendant said, “I figure around five or six car lengths.” Defendant believed he had time to cross on over the southbound lanes of Grand, and so he moved his vehicle westwardly and had attained the speed of ten miles per hour when the front of his truck had reached a point even with the west curb line of Grand, when the Skoda struck his Ford.

The trial court submitted plaintiff’s case to the jury on the theory of negligence of defendant in failing to yield to plaintiff the right of way across the intersection; and, at defendant’s instance, the trial court gave defendant’s verdict-directing Instruction No. 4, which was as follows—

“You are instructed that the law requires that an automobile driver must exercise the highest degree of care in the operation of his automobile. If an automobile driver fails to exercise the highest degree of care, he is negligent.
“You are therefore instructed that if you find and believe from the evidence that on the occasion in question as plaintiff was driving southwardly on Grand Avenue and approaching Hebert Avenue, the truck driven by defendant Fred Sandw;eg was stopped near the center of the intersection and headed west, and if you find that the truck then began to move westward across the southbound lanes of Grand Avenue, and if you find that plaintiff saw or by the exercise of the highest degree of care would have seen the truck so moving in time thereafter for plaintiff in the exercise of the highest degree of care to have stopped or slowed his automobile so as to have avoided running into the side of the truck but that plaintiff failed to so stop or slow his automobile and was thereby negligent, and if you find that such negligence of plaintiff caused or directly contributed to cause the collision of plaintiff’s automobile into the side of the truck, then you are instructed that plaintiff is not entitled to recover in this case, and your verdict must be in favor of defendant, and this is so even though you may also find that defendant Fred E. Sandweg was also negligent as submitted to you in other instructions.”

Plaintiff-appellant contends the instruction is erroneous in that the instruction failed to hypothesize sufficient facts upon ■which the jury could base its verdict, thus giving the jury a roving commission, and confusingly misdirected the jury concerning the point at which defendant’s vehicle was brought to a stop before the defendant moved on across the southbound lanes of Grand. Also plaintiff contends the instruction was erroneous in failing to submit plaintiff’s actual or constructive knowledge that defendant intended to proceed on across the intersection after defendant had stopped his vehicle in the center of the intersection; plaintiff says that, until defendant had moved his truck westwardly into the southbound lanes of Grand, plaintiff had no duty to slacken speed or stop because there was then no apparent danger of a collision.

Having examined the instruction, we believe it fairly and simply submitted the one essential or basic factual issue of the submitted contributory negligence of plaintiff. The one stated essential but disputed factual question being — could plaintiff in the exercise of the highest degree of care have averted the collision, by stopping or slackening speed, after defendant’s vehicle moved out into the southbound lanes of Grand?

The instruction is here being considered as particularly applied to the facts of this case. It has been seen plaintiff’s evidence tended to show that defendant moved west-wardly into the southbound lanes of Grand at a time in plaintiff’s southbound movement when plaintiff in the exercise of the highest degree of care could not have avoided colliding with defendant’s vehicle. Contrarily, defendant’s evidence tended to show that had plaintiff been exercising the highest degree of care plaintiff would have seen defendant’s vehicle in its westbound movement in time to have stopped or slackened the speed of his Skoda, and thus to have averted the casualty.

We have noticed the Instruction No. 4 submitted that the truck driven by “defendant Fred Sandweg was stopped near the center of the intersection,” and we have noticed the evidence introduced on the part of plaintiff and on the part of defendant was that defendant had stopped his vehicle with the front end thereof at the westernmost rail of the streetcar tracks. This point was in fact near the center of the intersection because, the front end of defendant’s truck being at the westernmost rail, the length of the truck spanned the four rails of the two streetcar tracks in the center of Grand. The jury, therefore, could not have been mistaken or confused as to where it was defendant’s vehicle had stopped and so the jury could not have been mistaken or confused as to the point from which defendant’s vehicle “began to move westward across the southbound lanes of Grand.”

The instruction did not submit duty of plaintiff to act while defendant’s truck was stopped near the center of the intersection. It submitted plaintiff’s duty to act and consequent negligence in failing to act after plaintiff saw or in the exercise of the highest degree of care would have seen the truck “so moving” west across the southbound lanes of Grand.

Here we think we clearly see an hypothesis in the instruction that plaintiff had actu- ' al or constructive knowledge that defendant was going to move across the southbound lanes of Grand and an hypothesis of an apparent danger of a collision were unnecessary because these facts were supplied by the undisputed evidence of what plaintiff saw or could have seen, that is, defendant’s westbound movement across the southbound lanes directly into and across the pathway of plaintiff’s southbound vehicle.

It is true in some cases it correctly has been held necessary to require a finding of an apparent danger of collision, giving rise to a duty to act, in the shown circumstances ¡ of those cases. For instance, see the case of Stakelback v. Neff, Mo.App., 13 S.W.2d 575, cited and relied on by plaintiff. In that case the “offset” intersection of Jefferson and Lucas avenues brought the Foley vehicle, eastbound on Lucas, southeastwardly across Jefferson with various possibilities of timing and route in moving across Jefferson ánd’-into'collision with fhe Neff'auto-mobile in which vehicle plaintiff Stakelback was riding- and’ which vehicle was moving northwardly' on ■ the east (northbound) streetcar track on Jefferson. When the Foley vehicle had emerged from the west into Jefferson it was not at once apparent, as in our case, that the Foley automobile would pass directly into the pathway of the Neff vehicle.

Although we' have considered plaintiff’s contentions of error in giving the Instruction No. 4, and have approved the instruction in the factual situation supported by the evidence as introduced in the instant trial of this case, our opinion is only advisory as to the use of the instruction in like factual situations supported by evidence in some other case or upon retrial of the instant case. This is because our opinion as to Instruction No. 4, does not make final disposition of this case. We have seen in our examination of the record the admission into evidence of extraneous matters which we deem prejudicial, depriving plaintiff of a fair trial on the merits of his claim.

As- a result of the collision plaintiff suffered the rupture of an intervertebral disc. The fourth and fifth lumbar vertebrae were involved. Plaintiff consulted and was treated by physicians, including Ernest H. Parsons, M. D., who had died prior to trial. Finally an operation was necessary to repair the injured spine.

In the course of the trial, plaintiffs counsel produced and caused the identification of the hospital record and the notes and report of the consultation and treatment of plaintiff by Doctor, Parsons. This, in part, for the purpose of 'proving charges for hospital, surgery and medical services.

During, the introduction of evidence on the part of defendant, counsel for defendant spoke to plaintiff’s counsel and to the trial court as’ follows—

“Mr. Ely (counsel for defendant) : Do you have the report from Dr. Parsons which was identified? .Just give me the’ whole ' record. 'Anything I don’t read, why, you may, of course * * ' *. This is ’ reading f¿om whát' has been marked as Plaintiff’s Exhibit 4, which are the records of Dr. Parsons, who is now deceased, and there is no question but what that is true. The first item is the bill, which has been identified already. * * * This is also from the hospital record. Here we have the consultation notes from Dr. Parsons * * *.
“Mr. Koester (plaintiff’s counsel): Well, your Honor, this I will object to some portion, I have no objection to the examination and treatment and so forth, some of these are personal history, his family history and things of that kind which I feel are irrelevant and hearsay and for that I will object to those. Anything to do with his physical condition, I have no objection to.
“Mr. Ely: I intend to read the Doctor’s History, as he took it for his purposes, for what it was worth to him in making his determination of the condition of this man and I think it is very pertinent as to what he determined from the man.
“The Court: All right, I will overrule the objection.”

Counsel for defendant then read to the jury the Doctor’s notes on his consultations with plaintiff, plaintiff’s previous medical history, mental status, the Doctor’s physical examination of plaintiff, and other data, in all comprising approximately ten pages of the transcript of the record, including the following—

“ * * * He .(plaintiff) states that he has been married three times. His first marriage was in 1948; this marriage was terminated by divorce in 1952. His second marriage was in 1953; this marriage was terminated by divorce in 1954. His present marriage was in 1955. His wife is twenty-six years of age. * * * He states that he has two children, a daughter aged ten years by his first marriage, and a daughter aged two and a half years by his present marriage. # * * ”

Defendant-respondent is hard pressed in his brief in urging eight justifications for ruling adversely to plaintiff’s contention of error in the admission into evidence of the quoted portions of the Doctor’s notes, but none of such arguments soundly justifies it. One of the arguments is that plaintiff’s counsel did not state reasons for the objection. It would be difficult indeed to state reasons more aptly and succinctly than by saying the quoted portions of the notes (which plaintiff’s counsel referred to as personal and family history and which, no doubt, plaintiff’s counsel would have pointed out to the trial court had the opportunity been afforded) were irrelevant and hearsay, as plaintiff’s counsel said. We have no reason to question defendant’s assertion that Doctor Parsons was an “eminent neuro-psychiatrist” (and see Smith v. Wabash R. Co., Mo.Sup., 338 S.W.2d 16, in which case the principally litigated issue was whether the plaintiff in fact sustained an injury) ; but even though the portions of the Doctor’s notes were timely made in regular course of the Doctor’s consultation and treatment of plaintiff, the quoted portions were relegated to the hearsay rule of exclusion, we think, because irrelevant for any purpose in sustaining the issues of the instant case in which there was no claim that plaintiff’s physical injuries and extent of them resulted from or in any kind of psychosis. In fact the Doctor’s notes and report show the Doctor, himself, was in consultation with the neuro-surgeon who subsequently removed the intervertebral disc, the rupture of which a myelogram and a discogram had indicated and defined.

But the study of the above-quoted colloquy in and preceding the trial court’s ruling shows that the trial court gave the court’s quick, definite and final approval by ruling, in effect, that anything plaintiff had stated to the Doctor which was contained in the Doctor’s notes pertaining to the history the Doctor took for his purpose was “very pertinent” in the trial of the issues of this case. Thus, by the admission and reading into evidence of the quoted portions of the Doctor’s notes, was brought into the trial of the case, and made “very pertinent” the implication that plaintiff, thrice married and twice divorced, was irresponsible in marital and parental relationships, and subjected plaintiff to the scorn of those jurors who may have looked askance upon divorce and remarriage. So we say we think the admission into evidence of the quoted notes was prejudicially erroneous in this case.

The judgment should be reversed, and the cause should be remanded.

It is so ordered.

PER CURIAM.

The foregoing opinion of PAUL VAN OSDOL, Special C, is adopted as the opinion of the Court.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri ex rel. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. The PUBLIC SERVICE COMMISSION of the State of Missouri, and Tyre W. Burton, E. L. McClintock, Frank J. Iuen, William Barton, and Frank May, Respondents.
    No. 50119.
    Supreme Court of Missouri, Division No. 2.
    May 11, 1964.

      R. W. Hedrick, Jr., Jefferson City, William A. Thie, Denison, Tex., for appellant.
    Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Counsel, H. Burks Davis, Jefferson City, for respondents.
   STOCKARD, Commissioner.

On October 3, 1961, the Missouri Public Service Commission (hereafter referred to as the “Commission”) issued its order suspending the provisions of Item 275, Supplement 10 to the Southwestern Lines Freight Tariff 141-A for Missouri-Kansas-Texas, Railroad Company (hereafter referred to as “M. K. & T.”) and ordered a hearing for the “determination of the propriety of [its] provisions.” By its Report and Order the Commission directed M. K. & T. “to cancel * * * the provisions in Item 275,” and on appeal the Circuit Court of Cole County affirmed that order. M. K. & T. has appealed to this court.

We are first faced with the question of the jurisdiction of this court. M. K. & T. purports to invoke its jurisdiction on the ground that there is involved in this appeal the construction of the Constitution of this state and of the Constitution of the United States. While perhaps not necessary for a determination of the issue of jurisdiction, it will be helpful to set forth to some extent the evidence in this case.

Item 275 of the tariff provides as follows:

“Applicable Only on Intrastate Traffic Moving Between All Stations in Missouri on the Missouri-Kansas-Texas Railroad Company Except Boonville, Columbia, Eldorado Springs, Fayette, Kansas Ciy, Moberly, Nevada, Pilot Grove, Sedalia, and St. Louis, Missouri.
“Less-than-carload freight will be handled only when loaded with carload freight or in lots of 6,000 lbs. or more (Note 1) to one consignee or from one consignor.
“Note 1. — Will also apply when shipped in lots of less than 6,000 lbs. provided freight charges are assessed on basis of a minimum weight of 6,000 lbs. On mixed less-than-carload shipments consisting of articles subject to varying weights and weighing less than 6,000 lbs., the deficit or difference between the actual weight and the minimum weight of 6,000 lbs. will be charged for at the lowest less-than-carload rate applicable to any article in the mixed shipment.”

This proposed tariff would affect less-than-carload (L.C.L.) intrastate freight at thirty-six stations in Missouri. While the precise meaning of Item 275 is not readily apparent from reading it out of context, its purpose is to authorize M. K. & T. to establish as a minimum rate for all intrastate L.C.L. shipments below 6,000 pounds the rate for a 6,000 pound shipment at all stations in Missouri other than at those stations excepted therefrom. M. K. & T. does not transport all L.C.L. intrastate shipments by rail. Such shipments consigned to points between St. Louis and Franklin, Missouri, are transported by motor common carrier. Those shipments from St. Louis to points west of Franklin are moved by rail in truck trailers loaded on what is known as T. T. X. cars and then are delivered to the point of consignment by Coordinated Transportation Company, a wholly owned subsidiary of M. K. & T. which operates tractors and trailers in over the road truck service in interstate and intrastate commerce over specific routes, that is, from Franklin to Eldorado Springs via Sedalia, Clinton and other intervening stations, and from St. Paul, Kansas, to Eldorado Springs, Missouri, via Nevada, Missouri, and other intervening stations. Only L.C.L. shipments between St. Louis, Franklin, Columbia, Moberly and Fayette are transported by M. K. & T. in rail boxcars.

The evidence established that since 1957 there has been a decided decrease in tonnage of L.C.L. intrastate shipments handled by M. K. & T., and as a result the frequency of service has been affected. Prior to January 1, 1961, two motor tractors and trailers operated out of Franklin on a five day schedule. Thereafter, the equipment was reduced to one tractor and trailer, and after August 7, 1961, the service was reduced to two days a week. During the first eight months of 1961, twelve of the affected stations did not forward or receive any L.C.L. shipment, and eleven of the affected stations had an average of less than two L.C.L. shipments per month. Detailed cost studies were placed in evidence which we need not attempt to set out in full. It is sufficient to say that the L.C.L. intrastate business at the affected stations had declined to the extent that subsequent to August 7, 1961, for every $1.97 collected by M. K. & T. for L.C.L. shipments it spent $8.48. In addition the loss of M. K. & T. over its entire system from L.C.L. freight was in excess of $259,000, and in recent years M. K. & T. in all its operations has operated at a deficit.

At the hearing the Commission did not attempt to contradict the evidence of M. K. & T. as to the cost of maintaining the intrastate L.C.L. freight service, or the figures of M. K. & T. concerning its deficit operations. The substance of the evidence of the Commission was that the proposed tariff would result in a discrimination in rates between the excepted and the affected stations. One of the exhibits, prepared by a Commission staff member, shows (1) the present tariff, (2) the proposed tariff, and (3) the tariff by motor common carrier for a “Class 70” commodity to be shipped from St. Louis to twelve of the affected stations- and the eight excepted stations for L.C.L. shipments of 100, 500, 1,000, 2,500 and 6,000 pounds. This exhibit shows, for example, that for a 100 pound “Class 70” item moving from St. Louis to Nevada, Missouri (an excepted station), the present tariff is $4.00, the proposed tariff would be $4.00, and the motor common carrier tariff is $3.30. However, for a 100 pound “Class 70” item moving from St. Louis to Walker, Missouri (an affected station which is only a few miles from Nevada) the present tariff is $4.00, the proposed tariff would be $91.20, and the motor common carrier tariff is $3.30. As the size of the L.C.L. shipment increas.es the difference between the present and proposed tariff decreases, and for á 6,000 pound shipment óf a “Class 70” 'item the tariffs are as followspresent tariff, $91.20; proposed tariff, $91.20.; and. for motor common carrier, $99.00.

In its Report and Order the Commission recognized that “a difference’ in circumstances and conditions may warrant higher or lowfef freight charges for various services at certain localities than at others,” but the Commission concluded that “when L.C.L.' freight service is provided between rail stations by means of the same facilities and over the.same .routes, it should be provided to all'stations and‘types of traffic on the same relative level of rates and charges'” and that á' lesser amount of L.C.L.'business at certain stations “is not in and of itself a sufficient difference in the circumstances and .conditions to warrant a different level-of rat.es. and charge.s.” The Commission then ruled that the tariff proposed-by M._ ft. & T. “would be a source of unreasonable prejudice and disadvantage to certain localities and descriptions of traffic as prohibited by Section 387.110 ESMo 1959,” and that it should be- canceled. In addition, the,. Commission also concluded and found that the L.C.L.'rates and charges to and from, all of the stations óf M. K. & T. in Missouri “are now on the same relative level .and the contribution of each station to the overall cost burden is in proportion to the number and weight of shipments received and forwarded,” and that “Under the circumstances * * * the rates and charges to and.from certain of [M. K. & T.’s] stations are not insufficient to yield reasonable compensation for the service rendered, and that the present rates are not unjust and unreasonable or otherwise unlawful, and that there is no lawful basis in his record for the Commission to prescribe any other maximum rates and charges to be hereafter observed.” We note,, however, that in its brief the Commission , does not challenge M. K. & T.’s contentions concerning its losses on intra-s.tate L.C.L. shipments, and notwithstanding the above conclusion and finding that the present rates are “not insufficient to yield reasonable compensation,” the Commission states in its brief that ‘ it “recognized the fact that the evidence offered by [M. K. & T.] might have justified a general freight rate increase for L.C.L. shipments to and from all the stations * * * in Missouri.” We note also that in its brief the Commission admits that “discrimination, ipso facto, is not unlawful and that under different circumstances and different conditions justifying it there may be a difference in charges, or a discrimination, which is not unlawful;” that if the proposed tariff “applied to all stations on the lines of [M. K. & T.] no one would have reason to complain, all stations are being treated in the same manner;” and that if it can be found “that the conditions and circumstances are different at the stations to which the provisions do not apply * * * [from the condition’s] at the stations that come under the provisions of the proposed tariff, then [M. K. & T.] is justified in making a difference in its rates to the different stations.”

’By its first two points, M. K. & T. contends- that the trial court erred (1) in affirming '-the order of the Commission wherein it found that the present rates and charges for intrastate L.C.L. shipments are not insufficient to yield reasonable compensation for the services rendered, (2) in failing and refusing to find that the proposed charges are compensatory, reasonable and otherwise lawful, and (3) in ordering the proposed tariff to be canceled. M. K. & T. then asserts that for these reasons the Commission denied M. K. & T. the right to assess and collect compensatory freight charges for its transportation services “in violation of Section 387.190 RSMo 1959, and in violation of the provisions of Article I, Section 10 of the Constitution of Missouri [the due process clause], and the [due process clause] of the Fourteenth Amendment to the Constitution of the United States.” This is the only manner in which M. K. & T. purports to present an issue re; quiring or calling for the construction o£ the federal' constitution or the constitution of this state. We conclude for the subsequently stated reasons that the only issues presented by these points for determination do not call for a construction of either of the constitutional provisions cited.

Section 387.190 provides, among other things, that whenever the Commission shall be of the opinion, after a hearing, that the rates of a railroad corporation for the transportation of property within the state “are unjust, unreasonable, unjustly discriminatory or unduly preferential, or in anywise in violation of any provisions of law, or that the maximum rates, fares or charges, chargeable by any such * * * railroad corporation * * * are insufficient to yield reasonable compensation for the service rendered, and are unjust and unreasonable, the commission shall, with due regard, among other things, to a reasonable average return upon the value of the property actually used in the public service and to the necessity of making reservation out of income for surplus and contingencies, determine the just and reasonable rates, fares and charges to be thereafter observed and in force as the maximum to be charged for the service to be performed, * * M. K. & T. contends that the Commission violated this statute in two respects, that is, that it found the present rates to be sufficient, and in failing to find the proposed rates to be compensatory, reasonable and lawful. It also contends in a subsequent point that the Commission should have determined what would have constituted lawful compensatory rates.

M. K. & T. does not contend that it did not have notice of the hearing before the Commission or that it was denied the opportunity to be heard. No complaint is made concerning the procedure before the Commission or the circuit court. In addition, no attack is made as to the constitutionality or validity of the statutes which provide the jurisdiction and powers of the Commission in a case of this kind. M. K. •& T. simply says that by its order, which M. K. & T. contends violated Section 387.-190, the Commission violated the due process clauses of the state and federal consti-utions. It may be that use of the broad phrase “constitutional question” has led to some misunderstanding of the meaning and scope of phrase in Article V, Section 3, Constitution of Missouri, V.A.M.S., that the “supreme court shall have exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state * * However, it has repeatedly been held that because a judgment may be erroneous it does not follow that there has been a denial of due process of law. “ ‘A judgment may be erroneous, yet rendered in due process of law.’ ” Stegall v. American Pigment & Chemical Co., 263 Mo. 719, 173 S.W. 674.

This court recently had before it a situation similar to that presented here. In State ex rel. Doniphan Telephone Company v. Public Service Commission, Mo., 369 S.W.2d 572, the telephone company appealed from the judgment of the circuit court affirming the order of the Commission, and contended on appeal that by its order directing another company to give telephone service in an area, it was deprived of its property without due process of law and denied equal protection of law. This court had this to say: “Since Doni-phan does not complain of any procedural matter affecting due process, and makes no attack upon the validity or constitutionality of the statutes defining the powers of the Commission in this type of case, the only conceivable complaint remaining within the scope of the instant contention is that the Commission exceeded its authority. What Doniphan is really saying is that the Commission did not have the power or authority to make the orders it made. It is not necessary to construe any constitutional provision in order to determine that contention. It may be decided by a construction of the applicable statutes for the purpose of ascertaining whether the Commission exceeded its authority in making the orders. ‘The commission is not a court. It is a creature of the Legislature. Its jurisdiction, powers, and duties are fixed by the statute. The constitutionality of such statute is not attacked. Since the jurisdiction of the commission is fixed by statute, and since the validity of that statute is not attacked, the case may be properly determined by a construction of the statute for the purpose of determining whether or not the commission exceeded its statutory authority. The Court of Appeals has authority to construe the statute for that purpose.’ State ex rel. Orscheln Bros. Truck Lines, Inc. v. Public Service Commission, 338 Mo. 572, 92 S.W.2d 882, 884. See also State ex rel. Harline v. Public Service Commission, Mo.Sup., 332 S.W.2d 940.”

M. K. & T. does not assert that the due process clause of either the state or federal constitution grants to it any right it does not have as the result of what it contends to be a proper construction of Section 387.190. In other words, if the Commission acted according to M. K. & T.’s construction of Section 387.190, there is nothing denied it which it contends it is entitled to as a result of the cited provisions of the state and federal constitutions. Therefore, we necessarily conclude that in this case there is no issue requiring the construction of the Constitution of this State or of the United States, but only a determination of whether the Commission exceeded its jurisdiction, powers or duties as fixed by statute, and that this court does not have jurisdiction of the appeal on the basis of what is called a “constitutional question.”

In view of the fact that we have concluded that this court lacks appellate jurisdiction for the reason asserted by M. K. & T., we should determine whether we have jurisdiction for any other reason. The only other possible basis would be that it is a case in which the amount in dispute, exclusive of costs, exceeds the sum of $15,000. Art. V. Sec 3, Constitution of Missouri; Section 477.040 RSMo 1959, V.A.M.S. It has previously been held that an appeal from the judgment of the circuit court approving the order of the Commission authorizing a rate schedule which will yield an annual increase of gross revenue in excess of its minimum jurisdictional amount vests this court with jurisdiction. Smith v. Public Service Commission, Mo., 351 S.W.2d 768; Smith v. Public Service Commission, Mo., 336 S.W.2d 491. However, jurisdiction on the basis of the amount in dispute attaches only when the amount in controversy, independent of all contingencies, exceeds the minimum jurisdictional amount, Hogue v. Wurdack, Mo., 292 S.W.2d 576, and it cannot be on a basis of mere chance. M.F.A. Mut. Ins. Co. v. Quinn, Mo., 251 S.W.2d 633. The amount in dispute cannot be left to speculation or conjecture. It must affirmatively appear from the record that the amount actually in dispute exceeds the minimum jurisdictional amount. Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509.

Assuming that the type of case we have here is included in what properly comes within the “amount in dispute” provision of Art. V, Section 3, of the Constitution, in this case M. K. & T. does not seek a general rate increase to bring in additional gross revenue. Actually it seeks-a change in its tariff which will have the effect of reducing its gross receipts, and the issue on this appeal does not in fact involve any amount in dispute. However, if it can be contended that the amount in dispute consists of the amount of the reduction in gross revenue, whether the proposed change in the tariff would at any time result in a reduction of more than $15,000 of gross revenues or result in a net saving to M. K. & T. of any particular amount is a matter based entirely on speculation and conjecture. It cannot affirmatively be determined from the record that the amount in dispute exceeds our minimum jurisdictional amount.

In view of our conclusion that no point is raised which would require a construction of a constitutional provision, and that there is no other basis for vesting appellate jurisdiction in this court, we rule that the supreme court is without appellate jurisdiction of this cause.

This case is transferred to the Kansas City Court of Appeals.

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: HYDE, Presiding Judge.

text:
    In the Matter of the Estate of Early G. Tyler Castlio, Deceased, Selma S. SMITH, Administratrix, W. W. A. Child Evangelism Fellowship and Billy Graham Evangelistic Association, Respondents, v. DARDENNE PRESBYTERIAN CHURCH, Appellant.
    No. 50156.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.
    Gerald M. Smith, Thomas L. Croft, St. Louis, for appellant.
    Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondents.
   HYDE, Presiding Judge.

This action began as an appeal to the Circuit Court from an order of distribution made in the Probate Court of St. Charles County. The issue is the distribution of the residuary estate of Mrs. Early Graves Tyler Castlio (hereinafter called testatrix) which consists mainly of real estate; so we have jurisdiction because title to real estate is involved. Sec. 3, Art. V, Const., V.A.M.S. The Circuit Court found that Dardenne Presbyterian Cliurch (hereinafter called Dardenne) was riot entitled to any of the residuary assets’ and ordered- the residuary estate divided between the other two claimants. Dardenne has appealed.

The provision of testatrix’s will involved is as follows: “EIGHTH: All the rest, residue and remainder of the property which I may own at the time of my death, both real and personal, and of every kind and description, wherever the same may be situated, I give, devise and bequeath to the BILLY GRAHAM EVANGELISTIC ASSOCIATION, of Minneapolis, Minnesota, to the CHILD EVANGELISM FELLOWSHIP, of Pasadena, California, and to the DARDENNE PRESBYTERIAN CHURCH, of Dardenne, Missouri, in equal shares; provided, however, that said Dar-denne Presbyterian Church shall share in such residue only if within nine months after my death it shall have a full-time pastor and be holding church services regularly, and if not, all of the residue shall go to the said Billy Graham Evangelistic Association and Child Evangelism Fellowship in equal shares.”

Testatrix’s will was made September 29, 1958, and she died June 5, 1961. The parties agree that the nine months’ period for Dardenne to comply with the requirements of her will was from June 5, 1961, to March 5, 1962. The court’s findings, orally stated in announcing his decision, were (as the evidence showed) “during the nine months after her death there were four church services, two of which were presided over not by a pastor but by a layman, two of which were presided over by pastors — by two different pastors. * * * that — could not possibly, in this Court’s opinion, be construed as regular church services and a full-time pastor.” The records of Dardenne show its governing body of three members held only three meetings during 1961; one on June 15, 1961, at which only fencing the cemetery was discussed; one on October 28, 1961, the minutes of which state, “We considered the bequest to the Church by will of deceased member, Mrs. Tyler" Castlio. ’ If was. decided to try to qualify to accept the bequest”; and one on March 4, 1962, the minutes of which state, “The bequest was farther considered. Plans were made for the cleaning up of the Church property in the spring.” There was testimony that, at the March '4, 1962, meeting, they “set up a plan for regular services” and services were started in April and were held every month thereafter (prior to the trial in January 1963) on the fourth Sunday, except in December, because of Christmas, the services were on the fifth Sunday.

Dardenne was an old church, established before the Civil War, and had been served by one pastor for more than 40 years during a period sometime prior to the date testatrix made her will. At the time her will was executed, there was a general feeling of discouragement about the continued existence of Dardenne. It had only ten members who were in the fifty to eighty year age group and there was no ordained minister in charge. Services were sometimes held by laymen and by ministers when found by members. The practice for about twenty years had been to hold services on the last Sunday of each month during good weather months. The Dardenne Church was about 75 yards from a state-improved road but during wet weather automobiles could not leave the road and drive up to the church. In January 1959, the St. Louis Presbytery took jurisdiction over Dardenne and Dr. Stuart Salmon, an ordained minister, who was Chairman of the Presbytery’s Committee on Extension, by virtue of that office “became the pastor for that church, the minister in charge.” He was and remained pastor of the church at Overland and said his responsibility as to Dardenne was “to see that the property is held, the location continued, that services as advisable in the judgment of the local session are provided and to securing — either do it myself or have it done just as I would in Overland; if I have to be absent from Overland I get a pulpit supply.” Dr. Salmon also said he “held funeral memorial services and sick visitation;” but the evidence as to his activities is very meager. He further testified: “Q And the times and frequency of church services,. — has that changed any since September, 1958? A No, sir; there is no reason why it should.” However, as noted, it does appear that services were held more regularly after March 1962 than during 1961. A member of Dardenne’s governing body stated that it was Dr. Salmon’s responsibility to see that we had a minister and that he would be called when they wanted a minister for a service. Dardenne’s records show that, when a minister held services there, he was usually paid an honorarium of $25.00.

Dardenne’s contentions are that the requirement of a full-time pastor was met by the relationship of Dr. Salmon to it. However, during the nine-month period specified in testatrix’s will, from the date of her death June 5, 1961, to March 5, 1962, Dr. Salmon only once held services there and two of its four services were held by laymen. Dardenne further contends that the phrase “full-time pastor” required only that the pastor be an ordained minister devoting his full time to pastoral duties and not devoting his full time at Dardenne. It is argued that testatrix knew Dardenne had not for many years had a pastor who devoted his full time to it and did not have the number of members or resources to support a pastor to serve it exclusively. Dardenne also contends that the requirement of “holding regular services” was met “by the holding during the proviso period of services monthly during the good weather months.” It is argued that testatrix knew of the long-standing custom of Dardenne to hold only monthly meetings and that is what she meant by “holding regular services.” Our view is that even though it be conceded that a full-time pastor would not mean one who had no other church but instead one available for all the pastoral duties required by Dardenne and though it also be conceded that “holding regular services” meant holdr ing only monthly services, nevertheless the evidence shows there was no compliance with either requirement during the proviso period. As stated, during that period, Dr. Salmon held services only once and the four services held were in the four months of June, July, August and September only. The fact that in 1962, services were held in every month from April through December demonstrates that in 1961 Dardenne was not holding regular services even on a good-weather monthly basis and was not actually having the services of a full-time pastor during the proviso period. We are convinced that testatrix’s will required more than was done during the proviso period.

Furthermore, Dardenne’s October 1961 record indicates that its governing body realized it had not complied with testatrix’s condition by stating its decision “to try to qualify to accept the bequest.” Nevertheless, nothing was done until the next meeting on March 4, 1962, the last day of the proviso period, when a plan for regular monthly services was made and thereafter put into effect. Dardenne says it substantially complied with the terms of the will by establishing during the proviso period a program for services to be commenced as soon as weather conditions permitted access to the church. However, the condition of testatrix’s will was for Dar-denne to share in the residue “only if within nine months after my death it shall have a full-time pastor and be holding church services regularly.” Certainly this did not mean plan to do so at some time in the future.

Dardenne argues that we must consider the background from which testatrix spoke including her knowledge of its past practices in construing her will and we have done so. As stated in Housman v. Lewellen, 362 Mo. 759, 244 S.W.2d 21, 23, and cases cited: “The keystone of construction in determining the meaning of any will is the intent of the testator. This intent must be gathered from the whole will. * * * When the intent of the testator is found, the proper construction of the will is solved.” Our conclusion is that the provision for a “full-time pastor” meant more than having- the responsibility for obtaining a minister, at times requested by Dar-denne’s elders, in the chairman of a committee of the governing Presbytery even though he occasionally performed some pastoral duties and that the provision for “holding church services regularly” meant more than four services in an entire year with half of them held by laymen.

The judgment is affirmed.

All concur.