author: WELBORN, Commissioner.

text:
    Bud STILL, Quentin Still and Paul Still, Plaintiffs-Respondents, v. The TRAVELERS INDEMNITY COMPANY, a Corporation, the Maryland Casualty Company, a Corporation, the Safeguard Insurance Company, a Corporation, and the Continental Insurance Company, a Corporation, Defendants-Appellants.
    No. 49837.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.
    Motion for Rehearing or to Transfer to Court En Bane Denied Jan. 13, 1964.

      James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintiffs-respondents.
    Riddle, O’Herin & Newberry, Malden, for defendants-appellants.
   WELBORN, Commissioner.

This is an action to recover on four fire insurance policies issued by the appellants, The Travelers Indemnity Company, Maryland Casualty Company, Safeguard Insurance Company and The Continental Insurance Company. Respondents claimed as as-signee of the insured named as the owner of the insured property, and also as named security holders in standard union mortgage clause endorsements on each of the policies. Appellants denied liability on the grounds that the named insured was not the owner of the property insured and that respondents were not mortgagees of such property. On a trial to the court without a jury, a general judgment, without express findings of fact and conclusions of law, was entered in favor of respondents for the principal amount of the policies, $3,360 each in the case of Travelers, Maryland and Safeguard and $1,920 against Continental, interest of $258.72, penalty for vexatious delay of $361.87, and attorney’s fee of $420 against each of the first three named appellants, and $147.84, $206.78, and $240 for each of these three items, respectively, against Continental. The four defendants have joined in the appeal, and, the aggregate of the judgment appealed from exceeding $15,000, we have jurisdiction.

Steele Supply Co. was incorporated under the Missouri General and Business Corporation Law on June 12, 1959. The in-corporators were Paul G. Still and Quentin Still, two of the respondents here, and Howard Watkins. Of the $50,000 authorized capital, the corporation began business with 271 shares of $100 par value issued, 135 to each of the Stills and 1 to Watkins. The beginning capital was paid up by transfer of the assets of a partnership of the Stills which had previously operated under the name adopted by the corporation. The business of the corporation was operation of a lumber yard at which lumber, building supplies and hardware were sold. Paul G. Still was elected president of the corporation, Quentin Still, secretary-treasurer, and Watkins, vice-president. Watkins was also the manager of the lumber yard.

On December 12, 1959, an instrument captioned “Bill of Sale” was executed by the Stills and Watkins. By the bill of sale, the Stills sold Watkins their 270 shares of the capital stock of the Steele Supply Co. The instrument recited: “This stock includes all of the assets listed below.” Then followed an enumeration of two trucks, items of office furniture and equipment. “All merchandise now in stock including building materials of every nature.” The instrument recited that the buyer assumed liability for the accounts payable at the time of the transaction and that the Stills were to retain the accounts receivable at that date. (On trial, evidence was that these items were approximately $15,000 and $20,000, respectively.) The consideration recited was $20,000, of which $4,000 was to be paid down and the remainder at the rate of $1,000 per month, with interest at 6% until fully paid. The “sellers” agreed to rent to the “buyer” the buildings occupied by Steele Supply Co. at a rental of $100 per month. The instrument bore the signatures of the three named parties. The name of each of the Stills was typewritten below his signature, followed by “Pres” after Paul’s name and “Secy” after Quentin’s.

The $4,000 down payment was paid to the Stills by M. T. Utley. To evidence the indebtedness for the balance due on the purchase price, Watkins executed two promissory notes, dated December 12, 1959. One, in the amount of $12,500, was payable to both Stills. The other, for $3,500, was payable to Quentin. The second note was secured by a chattel mortgage, covering two trucks and office equipment. According to Quentin, who prepared the bill of sale, the parties considered a chattel mortgage on the stock of merchandise not feasible. He also said that the understanding was that the capital stock would not be assigned to Watkins until the purchase price was paid in full. No attempt was made to make such transfer. No action was taken by the corporation as such on the sale to Watkins.

On January 20, I960,.four policies of insurance covering the merchandise in stock and office furnishings and equipment were issued, each for a one-year term. The Travelers, Maryland and Safeguard policies were for $7,000 insurance and the Continental for $4,000. The policies described the property covered as the contents of three buildings, one of which was described as a lumber shed “located 2nd Rear of 307¿/2 N. Walnut Street * * * Steele, Missouri.” The insurance on the contents of this shed was $12,000, with each of the policies covering pro rata.

The named insured in each policy was: “Howard Watkins, Jimmy J. Watkins & Sue Watkins (as their interest may appear) D/B/A Steele Supply Company, Steele, Missouri.” (At the trial it was stipulated that Jimmy and Sue Watkins had no interest in the property.) Attached to each policy was a standard union mortgage clause, stating: “Loss or damage, if any, under this policy, shall be payable to Mr. Bud Still, Quentin Still and Paul Still as their interest may appear mortgagee [or trustee] * * (Bud Still was the father of the other two Stills and was described as their “financier.”) Premiums of $228.75 were paid on March 4, 1960.

On August 9, 1960, fire destroyed the lumber shed described as second rear of 307^4 North Walnut Street and its contents. On September 26, 1960, Watkins executed a sworn proof of loss, claiming $12,000 due under the policies for loss of the contents of the shed. The insurers had previously made an investigation of the loss. On December 2 1960, at the request of the insurers, the Stills and Watkins were’ interrogated under oath by an attorney for the insurers. According to answers to interrogatories, they learned then for the first time that Steele Supply Co. was a corporation.

By letter of January 5, 1961, an attorney for the insurers notified Watkins that his claim for loss had been denied. No reason for the denial was given. By letter of January 20, 1961, an attorney for the Stills was informed that the insurers had no obligation to the Stills for the following reasons :

“a). We have no contract with them.
“b). They do not hold a mortgage on any of the property destroyed and, therefore, under no circumstances could have an insurable interest therein.”

The property covered by the chattel mortgage securing the $3,500 note was not among the property for which claim of loss was made.

On February 10, 1961, Watkins assigned to Quentin Still his claim under the insurance policies. $300 was. paid Watkins for the assignment. -At. the time, there was a balance due on the notes of Watkins of around $14,000.

The three Stills brought this action on May 2, 1961. In their petition, they claimed as assignee of Watkins and also as insureds under the policy. The appellants denied that Watkins had an insurable interest in the property lost, except as the holder of 1 sharé of .stock of the Steele Supply Co., which they claimed had no value. They alleged that the property lost was the property of Steele Supply Co., a corporation. They denied that the respondents owned any of the property lost or held a mortgage on it or other security interest therein from the corporation.

The respondents’ evidence at the trial consisted of the testimony of Quentin Still and Watkins and documentary evidence of the transactions above described. The appellants’ testimony was designed to show that the operation of Steele’Supply Co. was unprofitable, and that, at the time of the loss, the one share of stock held by Watkins had no value.

The appellants here contend that the trial court’s judgment is erroneous for the reason that Watkins had no insurable interest in the property destroyed by fire. They ■contend that the bill of sale purporting to transfer the insured property to Watkins was void under Sections 351.400, 351.460, 351.465, 351.475, 351.480, 351.715, RSMo 1959, V.A.M.S. They also contend that the transaction is contrary to public policy. The statutes referred to by appellants are sections of the General and Business Corporation Law which provide procedure for the disposition of all or substantially all of the assets of a corporation (351.400) and the voluntary dissolution of a corporation (351.460—351.480). Section 351.715 reads: “For violation of any provisions of this chapter for which no other penalty is provided, the person violating shall be deemed guilty of a misdemeanor and upon conviction punished as provided in section 351.-720.”

Appellants’ position is that the failure to observe the statutory procedures made the attempted transfer void; that, the attempted transfer being void, Watkins had no insurable interest in the property lost. In support of this position, appellants rely upon the decisions of the courts of this state under which a person who has attempted to procure insurance on a motor vehicle which has been transferred to him without compliance by the seller with the motor vehicle title law has been held to have no insurable interest in the automobile. The leading case in this regard is State ex rel. Connecticut Fire Ins. Co. of Hartford, Conn. v. Cox, 306 Mo. 537, 268 S.W. 87, 37 A.L.R. 1456, decided in 1924. In that case, the court stated:

“The above act of 1921, not only required Robertson to make an assignment on the back of his certificate of title as a condition precedent to making a valid sale of the machine, but the law, as above quoted, described an attempted sale without a compliance with the requirements aforesaid as fraudulent and void. In addition to foregoing, section 29 of said act makes the violation of the requirements aforesaid, a criminal offense. Following the construction placed by this court upon laws of a similar nature, as disclosed in the cases heretofore cited, we are driven to the inevitable conclusion that the provision of the above act requiring the assignment, in case of a sale, to be made on the back of the certificate of title and returned as a part of such certificate is mandatory in its terms, and that the execution and delivery of the bill of sale was not a substantial compliance with said law.” 268 S.W. 90.

This case has been followed subsequently in Mathes v. Westchester Fire Insurance Co. of N. Y., Mo.App., 6 S.W.2d 66; Evens v. Home Insurance Co. of N. Y., 231 Mo.App. 932, 82 S.W.2d 111; Kelso v. Kelso, Mo.Sup., 306 S.W.2d 534, 71 A.L.R.2d 258; Bordman Investment Company v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72; Haynes v. Linder, Mo.App., 323 S.W.2d 505; Mackie and Williams Food Stores, Inc. v. Anchor Casualty Company, 8 Cir., 216 F.2d 317. See Sections 301.210, 301.440, RSMo 1959, V.A.M.S.

There is, however, a decisive difference between the motor vehicle title law and the statutes here relied upon by appellants. The motor vehicle law makes the transfer without proper assignment of the title unlawful, thereby subjecting the violator to the criminal penalties in Section 301.440. Bordman Investment Company v. Peoples Bank of Kansas City, supra. In addition, the statute (Section 301.210) expressly makes a transfer not in compliance with the statute “fraudulent and void.” No stronger language could have been used to evidence the legislative object that a transaction not in accord with the statute is a nullity and the courts have given effect to this legislative declaration of policy. No comparable provisions are to be found in statutes dealing with the sale of corporate assets or the dissolution of a corporation. The legislature has prescribed a procedure to be followed in such matters. However, it has not declared a transaction which does not follow the prescribed procedure “unlawful” or “fraudulent and void.”

In reaching its conclusion in the Cox case, the court considered the regulation in question “essentially a police regulation of the highest type, in which the public welfare was primarily considered in its enactment.” 268 S.W. 90. See Evens v. Home Insurance Co. of N. Y., 231, Mo.App. 932, 82 S.W.2d 111, 116.

Quite clearly, statutes dealing with the sale of substantially all of a corporation’s assets and corporate dissolution are not based primarily upon consideration of the public welfare. The statute on the sale of corporate assets is designed primarily for the protection of stockholders of the corporation. The procedure fixed by Section 351.400 calls for the directors to pass a resolution authorizing the transaction. The resolution is then submitted to the stockholders at either a special or regular meeting. Authorization requires a favorable vote of the holders of Y of the shares entitled to vote. No notice of such action is required to be given the public generally, to any public official or even to the creditors of the corporation. The object of this provision is made clearer yet by Section 351.405 which establishes the procedure whereby the rights of a dissenting shareholder are protected in a transaction of this type.

Similar statutes in other states have been held to be solely for the protection of stockholders. “Under the great weight of authority, statutes requiring numerical stockholder approval of a mortgage or transfer of substantially all of the corporate assets are ‘for the protection of the stockholders * * ” United States v. Jones, 10 Cir., 229 F.2d 84, 58 A.L.R.2d 778. See 6-A Fletcher on Corporations (Perm, ed.), Section 2949, page 706. Cases on this proposition are collected in an annotation at 58 A.L.R.2d 784. Cases are there cited which have also permitted failure to obtain the required statutory consent to be taken advantage of by the corporation’s creditors or anyone having a claim on its title, by its trustee in bankruptcy or assignee for creditors, or by a receiver in insolvency. 58 A.L.R.2d 795-798. See 13 Am.Jur., Corporations, 1963 Cum.Supp., Section 801, page 98.

In the case of Shell v. Conrad, Mo.App., 153 S.W.2d 384 (not cited by appellants), the court stated that an attempted transfer of a note of a stockholder in a transaction involving sale of all of a corporation’s assets was void where the statutory procedures for such transaction had not been followed. Although the court used the word “void” with regard to the attempted transfer, the case was reversed and remanded for trial on the issue of whether or not the maker of the note was estopped to object to the transfer because of his participation in the meeting at which it had been approved. We do not consider that case authority for permitting appellants here to attack the transaction in this case.

The purpose of the statutes on voluntary dissolution, relied upon by appellants, is similar to that of the statute on sale of all assets although the dissolution statutes are more clearly for the protection also of creditors of the corporation. However, nowhere in the provisions relied upon by appellants is to be found any language making non-compliance “unlawful” or a transaction not in accord with the statute “fraudulent and void.” Insofar as here appears, this transaction was not considered by the parties as one effecting a dissolution of the corporation. Among the exhibits introduced into evidence are minutes of a special meeting of the stockholders of the Steele Supply Co., held in November, 1960, at which Bud Still was elected a director to replace Watkins, which would indicate that the stockholders did not consider the corporate existence terminated.

Appellants argue that “the importance of preserving the integrity of the corporate entity is so important to public policy, that the law must permit a corporation only to act in conformance with the law and that any one who attempts to deal with the corporation in any other manner must bear the burdens and penalties of having such acts declared null and void as a matter of public policy.” As the source of corporate authority, the state does have some concern that the procedures fixed by the legislature be observed by corporations in the conduct of their affairs. However, where, as here, the regulation is not one for the protection of, or benefit to, tire public generally and is intended to control matters as between the corporation and its stockholders or creditors, compliance with the statutory procedure is not such a matter of concern to the state that noncompliance therewith will enable a stranger to the transaction to protest its validity. It has long been recognized, for example, that, although a statute may require a particular notice of a meeting of the shareholders of a corporation, the presence of all of the stockholders may dispense with the necessity of complying with the statutory requirements. In re P. B. Mathiason Manufacturing Co., 122 Mo.App. 437, 99 S.W. 502, 504. Likewise, only shareholders may object to the failure to give notice. Coerver v. Crescent Lead & Zinc Corporation, 315 Mo. 276, 286 S.W. 3, 12. See 19 C.J.S. Corporations § 968, page 423. Here the stockholders for whose protection the statute exists were. parties to the transaction. There is no evidence that creditors have in any manner objected to it. Even if they might, such right would not benefit the appellants in their defense of this action. Loe v. Downing, Mo.Sup., 325 S.W.2d 479.

Appellants point to Section 351.715, the general penalty provision of the corporation law. However, the legislature did not make noncompliance with the provisions of the statutes in question illegal or unlawful. No prohibitory language is found in the statutes here invoked. The general penalty provision does not make actions not in compliance with the procedures set out in the corporation law void and against public policy.

Other than the automobile cases, the appellants have cited no cases in which the courts have considered the question of insurable interest in property on the basis of its acquisition in an allegedly void or voidable transaction. They cite cases in which the courts have refused to enforce, between the parties thereto, contracts expressly declared void by statute or which were contrary to substantive statutory provisions. Inasmuch as none of the cases cited involved the question of insurable interest, we do not consider them relevant to the problem here presented.

The case of De La Vergne Refrigerating Machine Company v. German Savings Institution, 175 U.S. 40, 20 S.Ct. 20, 44 L.Ed. 65, relied upon by appellants, involved the attempted enforcement against a corporation of an ultra vires contract. We are not here concerned with an ultra vires act, because the corporation had, under the statutes referred to, authority to make the transfer objected to. The only objection is to failure to conform to the procedural requirements of the statute.

Appellants also rely on Walters v. Larson, Mo.App., 270 S.W.2d 112. There a party to a contract for the sale of corporate assets was permitted to rescind the contract because the attempted transfer was not by the corporate owner of the property, but by the principal stockholder. Here, however, we do not find any objection that the Stills lacked authority to transfer the assets on behalf of the corporation or that the transfer was not, in fact, on behalf of the corporation.

We conclude that the appellants’ objections to Watkins’ asserted ownership of the property destroyed is not well founded and that Watkins did have an insurable interest in the property. 44 C.J.S. Insurance § 175, page 870; American Central Insurance Company v. Kirby, Mo.App., 294 S.W.2d 556, 561.

The conclusion that Watkins had an insurable interest disposes of other grounds advanced by the appellants for the reversal of the trial court’s judgment, with two ex■ceptions. One relates to the admission of evidence on the trial. Still was asked about the negotiations leading to the issuance of the insurance policies. Over objection on the grounds that the testimony was hearsay, Still-was permitted to testify that the insurance agent told him “he would go over and talk to Mr. Watkins and check the inventory and if everything was in accordance with the bill of sale and what I had told him, the policies would be issued.” Watkins, over the objection that there was no showing that the agent was a general agent <rif the'appellants, was permitted to testify that the agent told him he had “heard that the yard had changed hands and they wanted to write up the insurance on it.” The •objection here is that this evidence is hearsay because the employees of the insurance agency were not general agents of any of the appellants.

Testimony of a witness regarding the statement of another is hearsay and inadmissible only when the statement is offered as proof of the matters therein stated. Mash v. Missouri Pacific Railroad Co., Mo.Sup., 341 S.W.2d 822, 827. In neither of the instances to which the objection was made here was the statement of the agents offered as proof of matters contained in such statements. Bond v. Wabash Railroad Company, Mo.Sup., 363 S.W.2d 1, 5. Nor is the nature of the agency material. The statements were not offered as admissions of the appellants. There is no dispute that the insurance policies issued and the statements concerning which objection was made are not the basis of any estoppel against the appellants. Therefore, we find no error in their admission.

Appellants contend that the testimony of Still and Watkins as to the value of the goods lost should not have been admitted for the reason that it constituted opinion evidence for which no proper foundation had been laid. Still testified that he knew the value of building materials and lumber and that he was acquainted with the contents of the shed that were lost in the fire. He stated that, although he had not been in the shed for possibly three weeks before the fire, he had been on the premises frequently and saw no significant increase or decrease in the contents of the building. He valued the contents of the shed at $12,-500 to $12,800. He testified that he also arrived at the same figure by taking the August 1st financial statement of the business and the inventories shown thereon and by taking a physical inventory of the stock remaining after the fire.

Watkins testified that he ran the business at the time of the fire and that he knew the contents of the building that burned; that he had been in the shed the day before the fire and that the value of its contents was between $12,000 and $12,500. Both Watkins and Still testified that the contents were completely lost. No other evidence was produced relative to the value of the property destroyed.

We are of the opinion that the court properly admitted the testimony of both Still and Watkins. Still testified on the basis of his knowledge of the contents of the building and also on the basis of a physical inventory of the stock remaining after the fire. Watkins testified on the basis of his familiarity with the value of the stock of merchandise from his actual conduct of the business. While there may well be, as appellants suggest better ways to establish the value of a stock of merchandise than that here employed, we do not consider the evidence inadmissible or without probative value. Culver v. Williamsburg City Fire Ins. Co., 141 Mo.App. 205, 124 S.W. 540, 541; Miller v. Great American Insurance Company, Mo.App., 61 S.W.2d 205, 206.

Appellants object to the trial court’s judgment in that it allows penalty and attorney’s fee for vexatious delay. They contend that their liability was an open question of law which they had a right to have determined prior to the payment of the loss without imposition of the statutory (Section 375.420, RSMo 1959, V.A.M.S.) penalties. Appellants cite State ex rel. Missouri State Life Ins. Co. v. Allen, 295 Mo. 307, 243 S.W. 839, and Rohlfing v. State Farm Fire and Casualty Company, Mo.App., 349 S.W.2d 472, as upholding their right to contest liability without the imposition of penalties.

Respondents assert that failure to pay the claim was vexatious and without reasonable cause. They point to the failure of the insurers to return or tender the return of the premiums paid, citing Lux v. Milwaukee Mechanics’ Ins. Co., Mo.App., 30 S.W.2d 1090, 1091, and Pauley v. Business Men’s Assur. Co. of America, 217 Mo.App. 302, 261 S.W. 340. They also point out that, in their answers to interrogatories, the appellants all stated they first obtained knowledge that Steele Supply Co. was a corporation on December 2, 1960, but, in their answers to the next question, they stated that, when the insurance policies were written on January 20, 1960, the agents of appellants specifically asked Watkins whether or not the insurance should be “in the name of the corporation” and were expressly directed by him not to put the insurance “in the corporation’s name.” Inasmuch as no corporation other than Steele Supply Co. appears to have been involved, the agents, judging from the above answer, must have known the Steele Supply Co. was incorporated at the time the policies were written.

Although, as appellants state, an open question of law may preclude imposition of the penalties, that fact alone will not preclude the penalty where there is evidence the insurer’s attitude was vexatious and recalcitrant. Lemay Ferry Bank v. New Amsterdam Casualty Co., 347 Mo. 793, 149 S.W.2d 328, 331. As respondents point out, failure to return the premiums paid, where the defense is lack of insurable interest, has been held to evidence bad faith on the part of the insurer. Lux v. Milwaukee Mechanics’ Ins. Co., Pauley v. Business Men’s Assur. Co., supra. Appellants here seek to avoid such effect being given their refusal on the grounds that they did not know to whom the premium should be refunded. The evidence did show the premium was paid by a check on the Still Gin Company account. However, there is no evidence that any effort was made to ascertain to whom the premiums might be returned or that the failure to return them was in any manner based upon such lack of information.

In addition, we have concluded that recovery should be allowed here on the basis of Watkins’ assignment of his claims under the policies. Such assignment could include his claim for penalties for vexatious delay (Lehmann v. Hartford Fire Ins. Co., 183 Mo.App. 696, 167 S.W. 1047, 1049; Bergerson v. General Ins. Co., 235 Mo.App. 806, 148 S.W.2d 812, 820) and no objection has been made that the assignment here did not include Watkins’ claim in that regard. Insofar as Watkins is concerned, the appellants, in denying liability, gave no reason whatsoever. Failure to assign a reason for refusing to pay a claim may evidence vexatiousness and lack of good faith. Saffran v. Rhode Island Ins. Co., Mo.App., 141 S.W.2d 98; Bennett v. National Fire Ins. Co. of Hartford, 235 Mo.App. 720, 143 S.W.2d 479, 482.

Here the loss occurred on August 9, 1960. Although proof of loss was not made until September 26, 1960, appellants’ answers to interrogatories disclose that two adjusters on behalf of the appellants and a special agent of the National Board of Fire Underwriters conducted an investigation of the loss for ten days from August 10 to August 20. Since the refusal to pay the policies was based, according to the appellants’ answers, upon a lack of insurable interest which appellants claim to have discovered on December 2, the investigators must have discovered in their 10-day investigation no substantial basis for refusal to pay the loss. In view of appellants’ failure to inform Watkins of the reason for their refusal and in the absence of any evidence on behalf of the appellants, the court might reasonably have concluded that, at the time of the refusal, the appellants were still seeking a basis for refusal and finding none other finally, in litigation, relied upon the lack of insurable interest. Buffalo Insurance Company v. Bommarito, 8th Cir., 42 F.2d 53, 70 A.L.R. 1211. The trial court properly found that appellants’ refusal to pay was vexatious. Civil Rule 73.01, V.A.M.R.

The judgment of the trial court is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Wanda Lee TRILLER, a Minor, by Joseph Triller, Next Friend, and Joseph Triller and Mary Triller, Appellants, v. Rudolph HELLWEGE, Respondent.
    No. 49955.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied and Opinion Modified on Court’s Own Motion Jan. 13, 1964.

      Hale W. Brown, Kirkwood, Thomas W. Wehrle, Clayton, for appellants.
    Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for respondent.
   HOUSER, Commissioner.

This is an action in two counts arising out of a collision between an automobile and an eight-year-old girl on U. S. Highway 61 in Perry County. In Count 1 Wanda Lee Triller sued for $100,000 for personal injuries. In Count 2 her parents sued for $15,000 damages for loss of earnings, hospitalization expenses, medical costs and drugs. The jury rendered a verdict for defendant. Judgment was entered for defendant on the verdict.

Plaintiffs gave notice of an appeal “to the St. Louis Court of Appeals from the Overruling of their Motion for a New Trial * * On its own motion the court of appeals, lacking jurisdiction, transferred the cause to this Court. Defendant has filed a motion to dismiss on the ground that the appeal was taken from an unap-pealable order, to a court without jurisdiction, and that the notice of appeal is insufficient to confer jurisdiction upon this Court. While the appeal should have been taken from the judgment rendered on the verdict and not from the order overruling the motion for new trial, Supreme Court Rule 82.04, V.A.M.R., and while the mistake has caused unnecessary inconvenience and delay, we consider that plaintiffs intended and in good faith attempted to appeal from a final judgment and that the notice of appeal inadvertently designated the overruling of the motion for new trial instead of the judgment rendered on the verdict as the order from which the appeal was intended to be taken, and it will be so treated. Terrell v. Missouri-Kansas-Texas R. Co., Mo. Sup., 303 S.W.2d 641, and cases cited, 1. c. 649[11]. Section 477.080, V.A.M.S., provides that in the event a case is improperly sent on appeal from a lower court to a court of appeals when the same should have been sent to the Supreme Court it is the duty of the court of appeals to transfer it to the Supreme Court, and the case shall be proceeded with in the court to which it is transferred “as if the same had gone there directly from the trial court.” We have jurisdiction by reason of the transfer order of the court of appeals and because the appeal involves more than $15,000. The motion to dismiss the appeal is overruled.

The case was submitted to the jury on humanitarian failure to stop, slacken speed, swerve or warn. Appellants, hereinafter designated plaintiffs, have assigned certain procedural errors. Respondent, hereinafter designated defendant, contends that the judgment is free of error, but that any procedural errors would be harmless since plaintiffs did not make a submissible case of humanitarian negligence.

U.S. Highway 61, a 20-foot concrete highway, runs generally north' and south through Longtown. The weather was clear and dry. The accident .occurred at 10 or 10:30 a.m. Wanda Lee’s parents were building a house in Longtown on the east side of the highway. Across the highway and somewhat south of the house under construction there was a grocery and hardware store. Wanda Lee bought some candy in the store, and when she left she dashed out of the door. At that time defendant, driving a 1949 Chevrolet, was proceeding south through Longtown on the highway. Wanda Lee jumped off the porch of the store, ran toward the highway, started across and was struck by the left front fender of defendant’s automobile near the center line of the pavement. Defendant’s car left sldd marks 10 feet long, 2 feet east of the center line.

Wanda Lee did not recall getting hit by an automobile, remembered nothing about the accident, or whether in her deposition she had stated that' she came out of the door of the store and ran across the street; that she jumped off the porch; that she stopped and looked; saw a car coming, and thought “she could beat him.”

These parts of defendant’s deposition were introduced as admissions against interest as a part of plaintiffs’ case:

“Q. And as you were driving along and approaching where this occurred, do you have an occasion to remember how fast you were driving your automobile?
“A. No, I looked at my speedometer before I hit Longtown and I know I was going below forty and I slowed down some, say about twenty-five or thirty.
“Q. Twenty-five or thirty? A. Uh huh.
******
“Q. Did she come down the steps or did she jump off the porch? A. Jumped off the porch.
“Q. And she was running down? A. That’s right.
“Q. I understand that she was running, is that right? A. That’s right.
“Q. Now, did the little girl come up to the edge of the road and stop? A. No, sir.
“Q. She kept right on running, didn’t she ? A. She kept right on running.
“Q. But you had seen her come out of the store? A. No, not out of the store. I saw her jump off the porch.
* * * * *
“Q. Why didn’t you try to swerve your car to miss her ?
“A. No, after I hit her I just pulled her off the highway as quick as I could get on the right side.
“Q. Yeah. I’m talking about before you hit her. Did you do anything besides put your brakes on? A. No, sir.
******
“Q. And how far up the road were you when you saw her come off the porch from where you actually struck her ?
“A. Oh, I say twenty, thirty feet, I said that awhile ago already.
******
“Q. Did you blow your horn ? A. No, sir, I didn’t have any time.”

Plaintiffs’ traffic engineer testified as follows: The distance between the edge of the store porch and the edge of the pavement was 26 feet 1 inch. The average running speed of án eight-year-old girl is approximately 6 to. 8 m. p. h., which is 9 to 12 feet per second. It would take a young girl, at a speed of 8 m. p. h. two and one-third seconds to run from the edge of the porch to a position in the path of the automobile ; four seconds to run from the porch to the center line of the highway. An automobile traveling 25 m. p. h. travels 37j4 feet a second and travels 44 feet a second at 30 m. p. h. In four seconds an automobile going 25 m. p. h. would travel 140 feet, and at 30 m. p. h. it would travel 176 feet. Reaction time is % of a second. At 25 m. p. h. a car travels 27^4 feet during reaction time. The stopping distance of a 1949 Chevrolet on a concrete surface at 25 m. p. h., including reaction time, is 5feet; at 30 m. p. h. total stopping distance is 76 feet. At 25 m. p. h. considering the deceleration factor, it would take defendant 1.6 seconds to travel 30 feet during a stop. Considering the reaction time of % of a second and the stopping time of 1.6 seconds, it would take 2.35 seconds for defendant to stop after plaintiff started moving toward his path. Assuming that plaintiff started from the front porch and that defendant had a reaction time of of a second, and that he was traveling 25 m. p. h., it would take 21/3 seconds both for him to stop and for plaintiff to get there.

Defendant, 65 years old at the time of the accident, testified to these facts: Approaching the store as he drove south in Longtown he was traveling 25 m. p. h. at all times looking forward ahead and to his right, observing the highway and objects alongside the road. He saw Wanda Lee jump off the porch and she was running fast. At that time he was going 25 m. p. h., and was 25 or 30 feet from the point of impact. When he saw her jump off the porch he applied his brakes with all his might as hard as he could. After the car struck the girl it stopped “right then,” right about where it hit her. The skid marks were over 20 feet long, in the southbound lane. Before the impact he was traveling in the right-hand lane, and when he stopped he was “very little” over the center line, which was caused by the car skidding. On cross-examination he testified that he was 25 or 30 feet back when he saw her jump off the porch; and that she was 25 feet from the center of the pavement when he first saw her; that it was 15 or 20 feet from the porch to the edge of the highway and another 10 feet to the middle of the highway. He did not know whether any cars obstructed his view or whether she ran out from behind another car. He did not know how far he was from her when she ran onto the pavement. When he put his brakes on she was running towards the highway. He did not blow his horn, but swerved just a little and hit her just about the center line. He did not swerve his car to the right to miss her because there was a car sitting there. His tires and brakes were in good condition and his horn worked.

Ernest Bergman saw the girl run out into the highway when defendant’s car was 15 feet away, going 20 m. p. h. The girl was about 2 feet across the center line when the car hit her. Defendant’s witness Edgar Benson, who was following defendant’s car, testified that defendant was traveling 20 or 25 m. p. h., and that he saw the girl standing next to the shoulder. Witness Bergman testified that she did not “stand out there.”

We are of the opinion that plaintiffs made a submissible case of humanitarian failure to stop, considering the evidence in the light most favorable to plaintiffs, as we are obliged to do in this case. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628. Defendant’s duty to act arose when Wanda Lee came into a position of imminent peril. She came into a position of imminent peril when defendant saw, or by the exercise of the highest degree of care could have seen, Wanda Lee moving toward the path of the automobile, apparently intending to continue into its path and apparently oblivious of its approach. Williams v. Ricklemann, Mo.Sup., 292 S.W.2d 276; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935. In this case the jury could have found Wanda Lee oblivious (which widens the zone of peril) and that she came into a position of peril, imposing upon defendant the duty to act, at the moment defendant first saw her, as she was jumping off the porch, running fast toward the highway. From that point to the point of impact, which the jury could have found occurred 2 feet beyond the center of the highway, Wanda Lee traveled approximately 36 feet at 6-8 m. p. h., or 9-12 feet per second. This required 3-4 seconds. Defendant was traveling 25 m. p. h. (37)4 feet per second) at the time he saw Wanda Lee jump off the porch. The stopping distance for a 1949 Chevrolet traveling 25 m. p. h. on a concrete surface, including reaction time, is 57)4 feet. The jury could have found that 4 seconds before the collision — at the time Wanda Lee came into a position of peril— defendant’s automobile was from 81 to 119 feet north of the point of collision; that defendant, with brakes that were “working good,” could have stopped his car within 57)4 feet, including reaction time, or within 2.35 seconds after the occasion to stop arose, but that defendant, with as much as 1.65 seconds in time and 81-119' feet in distance available within which to> stop, negligently failed to do so. See Edwards v. Dixon, Mo.App., 298 S.W.2d 466, 469, 470, [1-6].

It is true that the only testimony relating the position of the little girl to that of the automobile at any particular time was that given by defendant and witness Bergman; that defendant testified that his automobile was only 25 or 30 feet away from the place where she ran out onto the highway, when he saw her jump off the porch, running fast; and that Bergman testified that defendant’s car was only 15 feet back (north) when she ran out into the highway. The jury, however, was not obliged to accept this testimony, but was privileged to disbelieve it and find from other evidence in the case that the automobile was 81 to 119 feet north of the point of impact at the time she jumped off the porch, running toward the highway.

Plaintiffs’ first point is that the court erred in giving Instruction No. 4, which submitted defendant’s defense to humanitarian Instruction No. 1. Instruction No. 4 follows:

“The court instructs the jury with respect to the issue of negligence submitted in Instruction No. 1, that if you find and believe from the evidence that on the occasion in question Wanda Lee Triller, a girl nine years of age, was on the shoulder of Highway 61 in the village of Longtown, Missouri, on the West side of said highway, and if you further find that at the said time and place the defendant, Rudolph Hellwege, was driving his automobile Southwardly over and along said highway and that the girl, Wanda Lee Triller, moved from the shoulder of the said highway and toward and in front of the automobile being operated by the defendant amd that she was struck by the said automobile, and if you further find that prior to the time that Wanda Lee Triller moved from the shoulder of the said highway that she ms at a place where she was in no danger of being stmck and injured by the defendant’s automobile, and if you further find that when the defendant, Rudolph Hellwege, saw Wanda Lee Triller or by the exercise of the highest degree of care could have seen her in a position of imminent peril of being struck and injured by defendant’s automobile that Mr. Hellwege could not thereafter with safety to himself and with the means and appliances at hand have stopped his motor vehicle, slackened the speed thereof, swerved its course or given a timely warning and thereby have avoided coming in contact with the said Wanda Lee Triller, then you are instructed that under the law the plaintiffs are not entitled to recover under said Instruction No. 1 and your verdict will be in favor of the defendant, on both Counts 1 and 2 of plaintiffs’ petition, with respect to said issue.” (Our italics.)

Plaintiffs contend that Instruction No. 4 unduly restricted the zone of peril and improperly withdrew from the consideration of the jury Wanda Lee’s obliviousness, which widened the zone of peril to a time and place prior to her leaving the shoulder, and improperly withdrew defendant’s testimony that he applied his brakes when Wanda Lee jumped from the porch (testimony from which the jury could have found that she entered the zone of peril at that time).

By Instruction No. 4 defendant sought to be relieved of liability under the humanitarian doctrine on the basis that when Wanda Lee moved from the shoulder of the highway, where she was out of danger of being struck, into the path of the automobile defendant did not thereafter have the ability to avoid the contact. The giving of Instruction No. 4 was reversible error because that defense was untenable under defendant’s own testimony. Defendant himself testified that he saw Wanda Lee jump off the porch running fast out towards the highway, and that when he saw this he put on his brakes “with all [his] might as hard as [he] could,” and that she “kept on running,” i. e., did not hesitate or stop before trying to cross the pavement. Defendant thus testified to facts from which the jury could find the element of obliviousness, which considerably widened the zone of peril beyond the immediate path of the automobile, and beyond the zone of peril as limited by Instruction No. 4. Under this evidence the jury could have found, and should not have been restricted from finding, that the zone of peril extended as far back as the store porch, some 26 feet 1 inch from the edge of the concrete highway. The jury should not have been restricted to a zone of peril commencing when Wanda Lee left the shoulder, but Instruction No. 4 erroneously did restrict the jury to a consideration of that very narrow zone of peril which extended from the point where the shoulder meets the concrete highway to the path of the automobile, (at most a width of 6 feet). In thus narrowing and limiting the zone of peril the available distance within which defendant would have to stop to avoid a collision was so greatly shortened that it would have been a manifest impossibility for him to have stopped, and therefore the giving of Instruction No. 4 was tantamount to the direction of a verdict for defendant.

Respondent’s claim that No. 4 is a converse humanitarian instruction must be disapproved for the reason that verdict-directing Instruction No. 1, given on behalf of plaintiff, permitted the jury to find that the little girl was oblivious and that the zone of peril commenced when Wanda Lee jumped from the porch.

Respondent further contends that plaintiff did not raise this objection in the motion for new trial, and therefore it is not for consideration on appeal, but respondent has inadvertently overlooked assignment of error No. 3 of the motion for new trial, which clearly raises the precise point.

In this ruling we have considered Lucas v. Blanks, Mo.Sup., 362 S.W.2d 736, upholding Instruction D-4 in that case (a defensive instruction in a humanitarian case involving injuries to a child who ran out into an intersection and was struck by an automobile) as against the contention that it narrowed and limited the zone of imminent peril. The difference is that in the Lucas case the instruction was not so worded as to so restrict the zone of peril, plaintiff’s contention having arisen out of her misconstruction of the word “intersection,” and the instruction left the jury free to find that plaintiff was in imminent peril from the time she took her first step into the intersection.

Reversible error having been committed in the giving of Instruction No. 4 in this respect we need not consider plaintiffs’ other complaints about that instruction, or the points relating to the refusal of Instruction A, a cautionary instruction, and the final argument of defendant’s counsel, for these questions need not and likely will not reoccur on a new trial.

Judgment reversed and cause remanded for a new trial.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    GEM STORES, INC., a corporation, G. E. M. Southway, Inc., a corporation, and Chix Shop, Inc., a corporation, Appellants, v. Daniel V. O’BRIEN, Prosecuting Attorney of St. Louis County, Missouri, Respondent, and Thomas F. Eagleton, Attorney General of the State of Missouri, Intervenor-Respondent.
    No. 50355.
    Supreme Court of Missouri, En Banc.
    Dec. 9, 1963.
    Rehearing Denied Jan. 13, 1964.

      Guilfoil, Caruthers, Symington & Mon-trey, St. Louis, for appellants.
    Lewis, Rice, Tucker, Allen & Chubb, Arthur R. Tucker, Samuel H. Liberman, Charles L. Edson, St. Louis, special counsel for respondents Daniel V. O’Brien and Thomas F. Eagleton.
    John H. Martin, St. Louis, for Missouri State Labor Council, AFI^-CIO, amicus curiae.
    Stinson, Mag, Thomson, McEvers & Fiz-zell, Kansas City, amicus curiae.
   STORCKMAN, Judge.

This is an appeal from a declaratory judgment upholding the constitutionality of § 563.721, RSMo Supp. 1963, V.A.M.S., Laws 1963, Senate Bill No. 49, which became effective on October 13, 1963. The statute prohibits the selling at retail' of certain commodities on Sunday. The plaintiffs, GEM Stores, Inc., and G.E.M. Southway, Inc., are Missouri corporations conducting general retail department store businesses in St. Louis County. The plaintiff, Chix Shop, Inc., also a Missouri corporation, is a licensed concessionaire of the other plaintiffs and is engaged in the business of selling wearing apparel for children and infants at retail. The defendant Daniel V. O’Brien is the prosecuting attorney of St. Louis County. The attorney general of the State of Missouri, Thomas F. Eagleton, was served with a copy of plaintiffs’ petition pursuant to § 527.110, RSMo 1959, V.A.M.S., and was permitted to intervene as a party defendant. After the defendants filed their separate answers, the plaintiffs filed a joint motion for judgment on the pleadings. No evidence was offered and the cause was decided against the plaintiffs on the allegations of the pleadings. The plaintiffs appealed, but the parties will generally be referred to as they were designated in the trial court.

The complete text, including the title, of the legislative enactment, sometimes herein referred to as the Act, is as follows:

“An Act — To repeal sections 563.-690, 563.700, 563.710, 563.720 and 563.-730, RSMo 1959, relating to proscribed activities and conduct on Sunday and exceptions thereto, and to enact one new section in lieu thereof relating to the same subject.
“Be it enacted by the General Assembly of the State of Missouri, as follows:
“Section A. Sections 563.690, 563.-700, 563.710, 563.720 and 563.730, RSMo 1959, are repealed and one new section enacted in lieu thereof, to read as follows:
“Section 1. 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 Act is hereby declared to be a public and common nuisance.
“5. If any provision of this Act is found to be unconstitutional, the remaining provisions are and shall remain in full force and effect.
“The Legislature hereby declares that, if the inclusion of any category of goods, wares and merchandise in Section 1 is invalid under the Constitution, it intends to and does hereby exclude such category of goods, wares and merchandise from the categories of goods, wares and merchandise prohibited from sale or exposure for sale by Section 1 of this Act.”

The petition alleges' that the plaintiffs "have. been, and are engaged on Sunday from 12:00 p. m. to 6:00 p. m. in the business of selling, and sell and offer for sale on Sunday at retail, practically all of the items the sale of which on Sunday is prohibited by The Act.” The grounds upon which the constitutionality of the Act is attacked are stated in paragraphs 7, 8, and 9 of the petition as follows:

“7. The entire Act is an unconstitutional, void, and unenforceable special law, in violation of Article III, Sec. 40 of the Missouri Constitution of 1945, in that it proscribes the sale on Sunday of only the articles enumerated therein, and excludes from its proscriptions every other gainful activity carried on by every other business in Missouri.
“8. The entire Act is unconstitutional, void and unenforceable because it creates unreasonable, arbitrary and discriminatory classifications of activities prohibited on Sunday, in violation of plaintiffs’ right to equal rights and opportunity under the law, and to the equal protection of-the law, under Article I, Sec. 2 of the Missouri Constitution of 1945 and the Fourteenth Amendment of the United States Constitution in the following respects:
“(a) The classifications in The Act are arbitrary and bear no reasonable relation to the public welfare, health and safety;
“(b) The Act arbitrarily discriminates against plaintiffs in that it arbitrarily prohibits the sale on Sunday of certain items sold by plaintiffs and allows every other gainful occupation to be carried on on Sunday so that any and all persons, firms and corporations may lawfully engage in, for example, (i) manufacturing, mining, agriculture, and foodstuff production, and the processing, distribution, transportation and sale of the product thereof, (ii) the business of selling and offering for sale improved real property, such as homes, and- unimproved real proper ty, of every description; and (iii) the performance of work, labor and services in connection with the activities described in subparagraphs (i) and (ii) above, and also in connection with every service occupation such as, for instance, laundries, cleaning establishments and repair facilities of every description.
“9. The Act, in its entirety, deprives plaintiffs of liberty and property without due process of law, in violation of plaintiffs’ rights under Article I. Sec. 10 of the Missouri Constitution of 1945, and the Fourteenth Amendment of the United States Constitution, in that on its face, The Act evidences no purpose to promote the general public health, welfare, safety or recreation, but the purpose solely to restrict plaintiffs’ type of business.”

The petition further states that the plaintiffs “cannot comply with The Act except by ceasing to conduct business on Sundays, which would inflict immediate, substantial and irreparable damage and injury upon their business and property.” The prayer of the petition is that the Act be held “void and unconstitutional in its entirety”, and that the defendants be permanently enjoined from enforcing it.

The answers of the defendants deny the allegations of unconstitutionality in paragraphs 7, 8, and 9 of the petition and each affirmatively “avers that the Act on its face, conforms, in all respects, to the practice of the General Assembly, based on the recommendations of the Committee On Legislative Research, whereby specific expressions of a purpose to promote the general public health, welfare and safety are omitted as being unnecessary, in accordance with the presumption that laws have been passed with a view to the welfare of the community.”

The trial court decided all issues against the plaintiffs and entered its judgment holding the Act constitutionally valid from which judgment the plaintiffs have appealed.

This is a proper case for a declaratory judgment because the attack upon the validity of the state statute presents a jus-ticiable controversy in which the plaintiffs have a legally protectible interest. Section 527.020, RSMo 1959, V.A.M.S.; Sta-Whip Sales Company v. City of St. Louis, Mo., 307 S.W.2d 495, 497 [1]; State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, 176 [5]. The supreme court has jurisdiction of the appeal because a construction of the constitution of this state and of the United States is involved and the attorney general of the State of Missouri in his capacity as a state officer is a party. Art. 5, § 3, Constitution of Missouri 1945, V.A.M.S.

On appeal the plaintiffs make two principal contentions as to the constitutional invalidity of the Missouri Sunday Sales Act. One is that it violates the Fourteenth Amendment to the Constitution of the United States and §§ 2 and 10 of Art. 1 of the Constitution of Missouri 1945 in that: “The act denies to appellants due process of law and equal rights and opportunity under the law because it bears no valid relationship to the only constitutional basis for the exercise of the police power to regulate the Sunday activity of a lawful and harmless business, that is, the state’s objective to achieve a day of rest and tranquility for the general good of mankind.” The other contention is that the Act is a special law in violation of Art. 3, § 40, subparagraph (30), of the Missouri Constitution 1945.

The Missouri Sunday Sales Act is practically identical with a Pennsylvania statute enacted in 1959. The plaintiffs concede that except for the inclusion of motor vehicles and minor changes in the penalty sections, the Missouri Act “is a word-for-word borrowing from the 1959 Pennsylvania statute.” On May 29, 1961, the Supreme Court of the United States decided four cases involving the constitutional validity of Sunday selling or closing laws. They are: McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Two Guys From Harrison-Allenton, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563; and Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536. The Two Guys case directly held that the 1959 Pennsylvania Sunday retail sales law, after which the Missouri Act was patterned, does not violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 366 U.S. 589, 591-592, 81 S.Ct. 1139, 1140, 6 L.Ed.2d 551.

The plaintiffs seek to avoid the impact of the Two Guys decision by their contention that the 1959 Pennsylvania statute was sustained only because it was part of a body of law which included a 1939 Pennsylvania law prohibiting all “worldly employment” on Sunday and that Missouri does not have an over-all policy against Sunday employment because the 1963 Act repealed “those very sections of Missouri law which have banned such secular activity for 138 years.” This calls for an examination of the past and present Missouri Sunday laws. In evaluating the legislative policy of Missouri, however, it should be noted that Two Guys and the three companion cases each involved alleged violations of the religious proscriptions of the First Amendment of the United States Constitution in '■addition to the other constitutional issues. The instant case does not present any question under the First Amendment.

In the main, the five sections repealed by the 1963 Act had remained unchanged for more than 125 years, practically since the beginning of Missouri’s statehood. In briéf substance, § 563.690 provided that every person who labored or performed “any work' other than the household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars.” Section '563.700 exempted from the operation of § 563.690 members of a religious society who observed as a Sabbath a day other than the first day of the week and also ferrymen. Section 563.710 made it a misdemeanor for a person to engage in horse racing, cockfighting, or playing at cards or games of any kind on Sunday. Section 563.720 provided that every person who shall expose for sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on Sunday shall be guilty of a misdemeanor. Section 563.730 provided that § 563.720 should not be construed to prevent “the sale of any drugs or medicines, provisions or other articles of immediate necessity.”

These laws, designed to achieve a periodic day of rest for the general health and welfare of the inhabitants of the state, apparently served their purpose very well at the time they were enacted and while the state remained a predominately agricultural society. The objects of labor and commodities to which the laws were applicable were comparatively few and the laws were reasonably enforceable. With the advent of the industrial age, improved communication and transportation, and particularly the development of motor vehicles and good roads, the situation was drastically changed. Employments and commodities became numerous and varied. Concepts of what were works of necessity underwent a radical change. Attacks were made on the present validity of such laws. We need to refer to only two of the recent reported decisions of this court to demonstrate the conditions with which the general assembly was confronted when it considered and passed Senate Bill 49.

State v. Katz Drug Company, Mo., 352 S.W.2d 678, decided December 11, 1961, was an appeal from a conviction of exposing for sale on Sunday goods, wares, and .merchandise in violation of §§ 563.720 and 563.730. The facts were that on a Sunday morning four members of the Meat Cutters Union purchased from the defendant an electric frying pan, a card table, two decks of playing cards, and 20 ballpoint pens and refills which were articles the purchasers did not need. This court held that the statutes proscribing the Sunday sale of goods, wares, and merchandise, excepting drugs or medicines, provisions, or other articles of immediate necessity, were not invalid as being vague and uncertain and did not violate other constitutional rights. The court further held that the standard for determining articles of immediate necessity must be the necessity to people generally rather than the necessity of a particular individual on a particular occasion. The case was reversed and remanded for prejudicial error committed in the voir dire examination. The opinion notes, however, that “it would seem to be time to modernize our Sunday statutes since they contain some terms applicable to conditions of 1825” and further states: “Certainly a revision now could give better treatment and better standards for modern conditions but that is a matter for the Legislature.” 352 S.W.2d 678, 681. See also Cardinal Sporting Goods Company v. Eagleton, D.C., 213 F.Supp. 207, 219, decided January 11, 1963, appeal dismissed as moot, 374 U.S. 857, 83 S.Ct. 1866, 10 L.Ed.2d 1043.

In the wake of Katz came Harvey v. Priest, Mo., 366 S.W.2d 324, decided March 11, 1963. The plaintiff Fred Harvey, a corporate concessionaire at Union Station in St. Louis, obtained a declaratory judgment which specified commodities that could be sold on Sunday to the traveling public and railroad employees pursuant to § 563.720 and the exceptions stated in § 563.730. This was on the theory that Katz had indicated that supplies immediately needed to keep modern traffic moving would now be “articles of immediate necessity” (§ 563.730), as would supplies immediately needed to carry on “works of necessity” (§ 563.690). In its declaratory judgment the trial court specified 57 items and categories of commodities that could lawfully be sold on Sunday to the traveling public and railroad employees as articles of immediate necessity in order to keep modern railroad traffic moving. Very few, if any, of these articles would have been available to a stagecoach traveler of 1825 whose chief needs were food and overnight lodging. The complete list of the items specified appears at 366 S.W.2d 326. In this posture the court sua sponte re-examined the validity of §§ 563.720 and 563.730 and held that the statutes were so vague and indefinite that they were incapable of rational enforcement and, therefore, invalid.

The General Assembly of Missouri, which was in session when Harvey was decided, promptly addressed itself to the enactment of new legislation in keeping with the Missouri Supreme Court decisions and the public demand for laws to curb the upsurge of Sunday business activity that followed the Harvey decision. Both Katz and Harvey rendered it imperative that the new Act be more specific and definite than the old. The General Assembly was faced with the choice of undertaking to prepare a comprehensive list of articles of necessity that could be sold or to specify commodities that could not be sold. The General Assembly chose the latter course and enacted the law modeled after the 1959 Pennsylvania Act which Two Guys had held not unconstitutional.

In Two Guys the United States Supreme Court adopts from McGowan without restatement the standards for evaluating legislative compliance with the constitutional requirements of equal protection and due process as set out at 366 U.S. 425-426, 81 S.Ct. 1105, 6 L.Ed.2d 393: “The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. [Citing cases.]”

In a footnote to the above quotation, the Supreme Court further stated, 366 U.S. page 426, 81 S.Ct. 1105, 6 L.Ed.2d 393: “More recently we declared: ‘The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. The legislature may select one phase of one field and apply a remedy there, neglecting the others. A. F. of L. v. American Sash Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.'’ Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. (Emphasis added.)”

Appellants’ contention that Missouri abandoned its legislative policy of maintaining Sunday as a day of rest and tranquility by repealing five statutes relating to Sunday laws is without merit. The legislative intent to continue such policy is expressed by the declaration in the title that the purpose is to repeal the five sections named “relating to proscribed activities and conduct on Sunday and exceptions thereto, and to enact one new section in lieu thereof relating to the same subject." Emphasis added. Two of the statutes repealed, §§ 563.720 and 563.730, had been held invalid in Harvey. Both Katz and Harvey had cast doubt on the validity of § 563.690 because of the presence of the exception in general terms “other works of necessity”. With respect to Sunday labor generally, organized labor as well as individuals have discouraged it and business and industry have come to recognize a day of rest as conducive to greater efficiency of the employees. The result was that at the time in question a large segment of industry and business practiced Sunday closing apart from legal compulsion. So far as hunting on Sunday is concerned, there has been no serious attempt to enforce that part of § 563.690 for years and the prohibition has been of doubtful validity since 1936 when the self-executing provisions of § 40 of Art. 4 of the Missouri .Constitution were adopted vesting control of game and the hunting season in the Conservation Commission. Section 563.700 provided exceptions to § 563.690 and was useless without the latter. The Sunday activities prohibited by § 563.710 were regulated by later laws. Since 1870 cockfighting has been prohibited entirely in Missouri by what is now § 563.660. Horse racing on a public road is prohibited at all times, § 564.510, and bookmaking and betting on horse races is entirely prohibited, § 563.350, so that horse racing even on week days presents no problem in Missouri. Since 1895 there have been laws regarding horse races conducted by agricultural and fair associations in particular. Sections 561.820-561.850. Except as playing at cards or games runs afoul of gambling laws, these activities are now recognized as wholesome recreation.

The repeal of the five statutes, however, did not annul all legislative recognition of Sunday as a day of respite from labor and business activity. The following statutes recognize that there is generally a cessation of business, legal and judicial activities on Sunday; §§ 1.040, 9.010, 63.063 (RS Mo Supp.1961), 288.240, 362.520, 401.085, 401.194, 476.250, 482.140, 506.060, and 521.-050. Section 216.340(5) provides that no person confined in a state correctional institution shall be required to do any work on Sundays or holidays, excepting necessary work for the state. Sections 311.296 and 311.480, subd. 3 restrict the sale of intoxicating liquor on Sunday and were in force when § 563.720, which, among other things, proscribed the sale of liquor on Sunday, was repealed.

The repeal of the five statutes in question was a forthright effort to rid the statute books of provisions which had been declared invalid or were of doubtful validity and others which had been superseded or had become obsolete. The new section, 563.721, was intended as a modern replacement capable of being enforced. There was no legislative intent to abandon the public policy of constituting Sunday as a day of rest and recreation.

The plaintiffs, however, assert that the new Act is unconstitutional in that it bears no valid relationship to a proper exercise of the police power to achieve a day of rest and recreation for the general good of mankind. They say the Act is fatally defective because it does not include a “prohibition against worldly employment” on Sunday. The new Act and other stat-tues indirectly prevent or avoid Sunday labor in that they prohibit the conduct on that day of business activities and large retail operations which require large sales forces and other employees. On the other hand, recreational activities and facilities have been encouraged and in some cases provided by state and federal governments for the health and welfare of the people. Such activities require a large number of service and maintenance employees whose Sunday labor cannot be proscribed if the cause of recreation is to be served. Then too there are many present-day activities which by reason of their nature or need cannot be halted a day each week. In the same vein the plaintiffs complain that the Act discriminates against them in that it makes lawful every variety of secular pursuit except the retail sale of selected goods. It is evident that a blanket prohibition against all labor and all secular pursuits would require many exceptions. Such a list of exemptions would be quite lengthy and difficult to compile. It has not been demonstrated that such an approach would produce a more satisfactory result than the method the General Assembly adopted which is to apply prohibitions where the need appears and to leave the remainder unregulated.

The constitutional requirements of due process and equal protection of the laws as interpreted by the Supreme Court of the United States are binding on this court. Nevertheless, decisions of this state are in harmony with the federal cases. See ABC Liquidators, Inc. v. Kansas City, Mo., 322 S.W.2d 876. As quoted above from McGowan v. Maryland, 366 U.S. 425-426, 81 S.Ct. 1104-1105, 6 L.Ed.2d 393, the Fourteenth Amendment permits the states a wide scope of discretion in enacting laws which may affect some group of citizens differently than others. The state legislatures are presumed to have acted within their constitutional power despite the fact that in practice their laws result in some inequality. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective. Particularly pertinent here are the pronouncements that a reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind; that the legislature may select one phase of a field and apply a remedy there, neglecting the other; that evils in the same field may be of different dimensions and proportions, requiring different remedies; that the equal protection clause goes no further than to prohibit an invidious discrimination; that a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. Adjudged by these standards, the 1963 Act does not violate the due process and equal protection provisions of the state or federal constitution and we so hold.

The plaintiffs’ other contention is that the 1963 Act violates Art. 3, § 40(30) of the Missouri Constitution which provides that the General Assembly shall not pass any local or special law “where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.” This proposition is related in some respects to the ones just disposed of. We have ruled that by repealing five existing statutes and in enacting a new one in lieu thereof relating to the same subject, the Act did not repudiate the legislative policy of constituting Sunday a day of rest and recreation. Also the question of whether the Act is special in violation of § 40(30) of Art. 3 involves an inquiry into classification of legislative subjects which is similar in some respects to that required in determining if the equal protection provisions of the state and federal constitutions have been violated. See Walters v. City of St. Louis, 364 Mo. 56, 259 S.W.2d 377, affirmed 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660, State ex inf. McKittrick ex rel. Ham v. Kirby, 349 Mo. 988, 163 S.W.2d 990, 994 [3], and Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042, 1044 [4].

Under this point the plaintiffs rely chiefly on these two cases. In McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815, a city. ordinance prohibiting automobile dealers from keeping their places of business open on Sundays and on six specified legal holidays was held to he a special law in violation of Art. 3, § 40(30), of the Missouri Constitution. In City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1, a city ordinance prohibiting any person from keeping open on Sunday any theatre, playhouse, or any other place where theatrical performances, vaudeville shows or moving picture exhibitions are given or conducted was held to be viola-tive of the constitutional provision against special laws. The ordinances in these two cases were held unconstitutional because other businesses similarly situated were not included. The demands of the constitutional provision prohibiting a local or special law where a general law can be made applicable are satisfied if the statute in question includes all who are similarly situated and omits none whose relationship to the subject matter cannot reasonably be distinguished from those included. McKaig v. Kansas City and City of Springfield v. Smith recognize and apply this rule but the cases are not controlling on the facts of the present case.

The General Assembly may classify with reference to a particular evil to be prevented without covering the whole field of possible abuses, and legislation designed to prevent one evil is not void because it does not prevent another. City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450, 458 [18-20]. The appellants complain that the Act “permits every other gainful activity to be pursued on Sunday” and that the appellants and the items they are forbidden to sell on Sunday “are similarly situated to every other inherently lawful trade and business in Missouri.” The Sunday Sales Law never applied the standard for which the plaintiffs contend and the new Act is' not required to do so. The Act is not invalid if it does not include within its prohibitions the retail sale of drugs, medicines, provisions or other commodities which are necessary or which may contribute to Sunday as a day of rest and recreation. In formulating the legislation, the Legislature had a novel and difficult task; the courts can interfere with the enactment only if the General Assembly has transcended its legislative power.

The plaintiffs have failed to demonstrate that the Legislature has unreasonably or arbitrarily failed to include activities or commodities similarly situated or omitted any which cannot be reasonably distinguished. We hold that the enactment is not a special law in violation of Art. 3, § 40(30) of the Constitution. Marshall v. Kansas City, Mo., 355 S.W.2d 877, 884 [12-14] ; Borden Company v. Thomason, Mo., 353 S.W.2d 735, 766 [36].

We have been favored with briefs, by amici curiae. The Missouri State Labor Council, AFL-CIO, is a federation of local labor unions, 824 in number, composed of' approximately 300,000 individuals employed in all segments of industries and all geographical areas of the state. In its brief the Council states that it worked for the' enactment of the Bill in the General Assembly and, as amicus curiae, it adopts and. supports the position of the respondents^ The general counsel for Katz Drug Company as amicus curiae asserts that the legislation, if valid, will jeopardize the operations of the company’s 26 stores in this state- and supports the plaintiffs’ claim of constitutional invalidity. The general counsel for Katz further contends that the Act is SO' vague and indefinite that it is unconstitutional which is an issue not presented by any party to the action. An amicus curiae cannot inject new issues into the case and the court will not pass on grounds of invalidity urged by an amicus curiae but not presented by the parties. Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484, 497 [21-23]; Laret Investment Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65, 70 [11].

The issues properly presented on appeal have been considered and found to be without merit. Accordingly the judgment is affirmed.

All concur.