author: WELBORN, Commissioner. PER CURIAM:

text:
    John STORM, an Insane Person, by Dewey Heath and Joe Davidson, His Guardians, Plaintiff-Appellant, v. Ray C. MARSH and Ola E. Marsh, Husband and Wife, and O. D. Clayton, Defendants-Respondents.
    No. 52361.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.

      W. Clifton Banta, Charleston, for appellant.
    Robert A. Dempster, Dempster, Edwards & Robison, Sikeston, for respondents Ray C. Marsh and Ola E. Marsh.
    David E. Blanton, Blanton, Blanton & Rice, Sikeston, for respondent O. D. Clayton.
   WELBORN, Commissioner.

This is an action to set aside a deed on the grounds of lack of mental capacity of the grantor. The trial court refused to set aside the deed and the grantor’s representatives appealed.

In 1945, John Storm’s grandparents conveyed to him an 80-acre tract of land in the vicinity of Bertrand, in Mississippi County. John, a minor at that time, lived with his grandparents until his grandfather’s death in 1946. John, then some twelve years old, went to live with an uncle, Loren Storm. In July 1954, Loren filed an information in the Mississippi County Probate Court for inquiry into the sanity of John. On July 30, 1954, the court found John insane and ordered him committed to the hospital at Farmington. John spent some time in the hospital, apparently being readmitted one or more times.

In September, 1958, the probate court, on the petition of Loren as John’s guardian, entered an order restoring John’s sanity. Thereafter, John lived on and farmed the 80-acre tract. For approximately a year and a half he had a feminine companion residing with him on the farm. When she left, John apparently lost interest in farming the tract, and, according to one witness, “All he done was ride around in the car.”

In October, 1960, David Tyler, a licensed real estate salesman employed by R. D. Clayton of Sikeston, a brother of defendant O. D. Clayton, was looking for farm land in the Bertrand vicinity which might be for sale. The persons farming the Storm land told Tyler that the 80-acre tract might be for sale, so Tyler sought out John. John told him that he did not want to sell his land, but that he might trade it.

Tyler had represented the sellers in a transaction in which O. D. Clayton had purchased a 76-acre farm in Scott County for $7300. Knowing that Clayton was a real estate trader, Tyler felt that he might be interested in exchanging the 76-acre tract for Storm’s land, so he took Storm to examine the Scott County tract. According to Tyler, he and Storm looked over the tract and, without any particular discussion of the relative value of the two tracts, Storm said he might be interested in trading for a $9,000 difference.

The next day, October 6, 1960, Tyler and Clayton looked over Storm’s land. Clayton thought that he might be willing to trade on the basis of the $9,000 difference and they went to see Storm. Storm agreed to the deal and the parties went to Clayton’s office where deeds were prepared. Clayton paid Storm $500, with the $8500 balance to be paid when the title had been approved. Storm executed the deed to Clayton and went with Clayton to Charleston, where the deed was recorded and a deed of trust on the property released.

Although the deed from Clayton to Storm for the 76-acre tract was dated October 6, 1960, the deed from the sellers to Clayton was dated October 7, 1960. Both were recorded in Scott County on October 18, 1960. On October 11, 1960, Loren filed a petition in the Mississippi County Probate Court for the appointment of a guardian for John.

On October 23, 1960, Roderic Ashby of Charleston, as attorney for John, filed a motion to dismiss the petition. On November 4, 1960, the motion was overruled and the matter set for hearing on November 18. However, the hearing was not held on that date.

John had no formal contract with Clayton, but had received an acknowledgment that Clayton owed him $8500. On December 9, 1960, John appeared at the office of Robert Dempster, a Sikeston attorney, and told Dempster that Clayton owed him $8500 on a real estate deal. Dempster got in toúch with Clayton who came to Demp-ster’s office with a draft for $8500. On the same date, a bank account was opened for John in a Sikeston bank. Part of the money was deposited in a savings account and part in a checking account. John directed that checks be drawn for debts which he owed and Dempster prepared such checks, including one payable to himself for $250, on which the notation “Retainer fee” appeared. Dempster said that the fee was for his services in closing the transaction and that he had not been retained to represent John in the competency proceedings. Dempster did represent John in those proceedings, but he could not recall when he was employed for that purpose. Dempster acknowledged that he was probably involved in the last of December in prohibition proceedings pertaining to the probate court proceedings.

On December 13, 1960, Ray Marsh let Clayton know that he was interested in purchasing the 80-acre tract. The next day, Clayton called Marsh and they agreed on a price of $22,000. The transaction was closed on December 14, and a deed executed by Clayton to Marsh on that date was recorded December 17,1960.

On March 17, 1961, John was adjudged incompetent and a guardian appointed for him. On December 22, 1961, the probate court authorized the guardian to file this action to set aside the deed. The petition which was filed alleged that the reasonable value of John’s 80-acre tract was $25,000; that, on the date of the deed to Clayton, John was mentally ill, incompetent and lacking mental capacity to execute the deed; that Clayton, knowing John’s condition, purchased the land for “a grossly inadequate consideration”; that, while incompetency proceedings were pending, the Marshes, knowing of such proceedings and of .John’s condition at the time of the sale to Clayton, purchased the property from Clayton.

The trial court’s decree for defendants was without specific findings of fact.

What was the evidence offered to establish the lack of mental capacity on the part of the grantor? Evidence of adjudication of incompetency was admitted. However, the 1954 adjudication had been terminated and the second adjudication was not made until some six months after the deed. Although this evidence might have some bearing upon John’s general mental state, it would riot be conclusive as to his condition on October 6, 1960.

The medical testimony came from an osteopathic physician who had examined John in 1954 and again in 1961 and whose report was considered in the sanity proceedings. The witness, although not trained in psychiatry, had had practical experience in dealing with mental illness. He stated that, in 1954, he found John mentally ill, suffering from dementia prae-cox. According to the witness, at that time John “didn’t talk much, * * * was very silent; he was uncooperative, unresponsive * * * had hallucinations and illusions.” The doctor testified that he examined John on March 8, 1961. At that time, he found John “very unresponsive. I could only get a ‘Yes’ or ‘No’ answer out of him, and, again, he was hearing voices and he was quite unkempt at that time, apparently had no desire to keep himself clean and, * * * he was hitchhiking around the country.” He concluded at that time that John was suffering from “a depressive type of mental illness.” In answer to the question of whether on October 6, 1960, John “would have had sufficient mental capacity and insight in order to have sold his property,” the witness stated: “My opinion is that he probably would not have been completely capable of making real sound decisions. * * * During all the time that I have known him, he is not acutely aware, apparently, * * * of the everyday happenings.”

On cross-examination, the witness said that he was unfamiliar with John’s activities in October, 1960, and that he could not say with any reasonable medical certainty that John was not, on October 6, capable of carrying on ordinary business affairs.

Such testimony, standing alone, can hardly be considered convincing. Storm, John’s uncle with whom John lived for some eight years prior to the first adjudication, said that, as a boy, John “didn’t seem to mingle with other children much, he was off to himself a good deal; outside of that, he, was about normal * * When he started going to high school, he ran away from home. At that time “he talked religion a good deal and he acted kinda funny, peculiar. * * * And he looked funny out of the eyes quite a little.” “[H]e’d be eating at the table maybe and he would start to laugh, I would say ‘what are you laughing about?’ There wasn’t nothing said that was funny, * * On one occasion, John threatened to kill Loren.

According to Loren, after John was hospitalized, “He acted pretty good for awhile.” “He was acting pretty good” when restoration was ordered. “He acted pretty good for awhile until his wife, well, a woman living with him, until she left him and then he got worse.” After the woman left, “he got a car and went to riding around, giving bad checks.” “ * * * [H]e wouldn’t work, he would just run around and spend money.” Shortly before he sold the farm, “he wouldn’t have much to say, sometimes when I would see him, he would want to borrow money and if I would give him money, that was the end of it just as soon as we give it to him.”

Loren’s wife, Lena, testified that, in 1954, John “just stared at you and acted just wild or something * * *. He just looked like he was scared * * *, looked like he was off, unbalanced.” She had seen John only twice in 1960, once at the store and once at Loren’s house when he came to get money from Loren. “[H]e sure acted awful funny.” “[H]e would just grunt, he wouldn’t talk. He wouldn’t have nothing to say to nobody, he would just look at you real wild looking * *

Noah and Dewey Heath owned the Dogwood Store, which was in the vicinity of John’s land, and John was a customer of the store. Dewey, who had known John since he was five or six years old, said that, in 1954, before he was committed to Farmington, John “looked wild out of his eyes.” “John wouldn’t talk very much.” “When you would ask him a question, when he would come in and want anything, he would mumble, you couldn’t understand him, he would stare off in space.” Two days before he ran away and the Highway Patrol picked him up, “he looked wild.”

After his restoration, John started farming for himself, but “he didn’t know just what he was doing or what it was all about.” “After this woman left him, * * * John begin to drift off again.” “He was again at his worst stage, like he was in ’54.” His conduct was “poor.” “He looked wild. He wouldn’t shave. He wouldn’t keep clean or anything like that.”

Noah Heath said that, in 1954, John “didn’t look normal and he didn’t act normal.” “[H]e looked in a dazed condition, didn’t look right out of his eyes.” After he was released from Farmington, “He acted a little better than he did before.” When he started farming for himself in 1958, he wouldn’t talk, “just answer questions, but then, [the boy] didn’t know how to farm or operate anything himself.” The only time Noah saw John in the late summer and early fall of 1960 was when he came to the store. “[H]e was, I am pretty sure, drinking * * * and he got out and come back and he wanted $5.00, and I could tell he wasn’t right, well, he was drinking.”

H. W. Duke, who knew John from having clerked in the Dogwood Store for twelve years, testified that, in 1960, when John came to the store, “it was pretty hard to get anything out of John, he would come in the store, come in and stand around with his head down, you would ask John if you could wait on him, sometimes he’d answer you and sometimes he’d grunt and you couldn’t tell what he was saying, eventually you’d get him waited on.” “John didn’t look too good, didn’t look too healthy.”

Harland Maxwell, a farmer living in the community, had known John for twenty years and seen him frequently around the Dogwood Store. In 1954, John “didn’t talk, actually. You had to ask him a question, he would answer that question, that was about all. He would sit around with his head down, act very depressed.” “[H]e had a far-away look in his eyes, he just didn’t look normal to me.” Maxwell saw John about once a week around the Dogwood Store in the summer and fall of 1960. John acted “[a]bout the same way. Well, he just wouldn’t hardly talk. You had to ask him a question before he’d say anything. He acted very depressed, had his head down most of the time when he was sitting around.”

Joe Davidson, a co-guardian, who had known John since 1940 and for whom John worked when he was twleve, thirteen or fourteen years old, said: “I would say when you are around anyone like that, that you can tell when he is not too bright.” “[Y]ou could tell him to go do something, he just couldn’t do it and do it right, he tried but he just couldn’t do it.” “You couldn’t get much talk out of him, always had his head down.” John sometimes looked “wild.” John worked for Davidson in 1957 and 1958. “[H]is conduct was better than at any other time and at one time he was working for me for about four months straight * * *. I thought he was in pretty good shape, then he went off and I just had to finally just quit working him, I was afraid he would get injured.” John worked for Davidson in 1960, but Davidson quit working him because he “couldn’t understand just how to do things.” “I would say lot of times just looked wild and just wouldn’t look at you and wouldn’t tell you anything you understood.” In 1960, shortly before John sold his farm, the witness saw John every day or two and “could tell he was getting worse. * * * Mental.”

Except for Mrs. Storm, each of these witnesses expressed the opinion that John was not capable of handling his affairs at the time of the farm transaction.

However, the testimony of these witnesses, upon analysis, reveals little basis for the conclusion that John lacked the requisite mental capacity on October 6, 1960.

Uncommunicativeness is not necessarily evidence of mental incapacity. That characteristic of John appears to have most impressed the witnesses. The frequent reference to the “wild look” in John’s eyes can hardly be accepted in lieu of testimony regarding John’s actual capabilities to handle his property.

Although the owners and clerk at the Dogwood Store were of the opinion that John lacked capacity to manage his affairs, the store did a regular business with John, extending him credit in a sizable amount. In fact, in August, 1960, John executed two promissory notes to the Dogwood Store, one for $300 and one for $168, secured by a deed of trust on his land. The notes were paid by John’s check for $500, dated December 9, 1960, this being one of the checks issued at John’s direction upon completion of the deal with Clayton. The check was accepted and cashed and the deed of trust released.

Altogether, considering the observations which these witnesses recited as the basis of the opinions expressed by them, we do not feel obliged to accord weight to such opinions, particularly when the actual activity of at least some of the witnesses was wholly inconsistent with the opinions expressed by them. Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84, 87 [1-3].

Further bearing upon the issue of mental capacity was the testimony of John, who testified in his own behalf, although he was apparently still under the 1961 adjudication.

At the trial, held October 21, 1965, John, a high school graduate, testified that he had owned land around Bertrand that his grandpa left him and that he had traded. He said that he had talked to Marsh about borrowing some money and that Marsh sent Clayton over to see him about buying his land. John said that he and Clayton got to talking about the price of the land and that he told Clayton that he wanted about $24,000 for his land. Clayton told John that he had a farm that he’d like to trade and they went to look at the farm, which John described as in the vicinity of “Kelly High.” (There was evidence that the Scott County farm was across the road from a new school known as Kelly High School.) John said that he had no idea of the value of the Scott County land and that he asked no one about it, but that Clayton told him it was worth $150 per acre. According to John, he and Clayton talked one day and made the deal the next. John recalled that he received $500 when he signed the deed and that he was to get $8500 more. John’s recollection was that he got the $8500 about ten days later and that he spent the money paying bills and buying a truck which he used in a coal hauling business that winter. John identified the $500 check to Heath and the $250 payment to Dempster. He said the fee to Dempster was “for writing the, O, paper of some kind.” He identified a check for $350 payable to Aubrey Michael. He recalled that this was payment for seeding the 76-acre tract. (Michael testified that in the fall of 1960, John and Clayton came to his office in Benton and Storm asked him to double disc the Scott County land for him and sow it in rye and vetch. Michael agreed to do the work for $350 and did it.) He identified a check to Commercial Credit Corporation for $888.06 as a payment for a car and other checks prepared and issued when the $8500 payment was received from Clayton.

Our de novo review of the evidence leads us to conclude that the plaintiff failed to produce the necessary clear, cogent and convincing evidence of John’s lack of capacity at the time of the execution of the deed to Clayton.

Although the law does require a greater mental capacity for an arm’s length transaction than it does for a deed of gift, nevertheless the essential test in an arm’s length transaction is the capacity of the grantor to “understand the nature of the act and to apprehend its consequences.” 26 C.J.S. Deeds § 54b, p. 720 ; 29 Am.Jur., Insane Persons, § 77, p. 198; Masterson v. Sheahan, Mo.Sup., 186 S.W. 524, 526 [4]; Vining v. Ramage, 319 Mo. 65, 3 S.W.2d 712, 721 [5,6]. The grantor’s own testimony in this case clearly demonstrated that he recalled the transaction and understood its consequences. The witnesses who expressed the opinion that John was unable to manage his affairs in October, 1960 did not testify to facts which supported such opinions. Other than the Heaths, no witness testified as to facts involving John’s capacity to engage in business transactions. The Heaths actually did business with him, and, although there was some effort to show that they did so in reliance upon Loren’s taking care of John’s account, Duke testified positively that he sold John on John’s credit.

Thus, the only evidence relating to John’s ability to conduct business transactions wholly failed to demonstrate lack of capacity on his part sufficient to cause us to set aside the deed. The evidence might justify a finding of some mental weakness on John’s part, but not such a degree of impairment as would invalidate the transaction in question.

Plaintiff’s representatives argue that there are factors, which, considered with John’s mental weakness, would call for the nullification of this transaction. They point particularly to an alleged insufficiency of consideration received by John. According to plaintiff’s guardians, John sold a farm reasonably worth $24,000 for $9,000 and a farm reasonably worth $4,500. However, the evidence does not conclusively show such a disparity. John did say that he wanted $24,000 for his farm and there was testimony of witnesses in the vicinity (Loren, the Heaths) that John’s 80-acre tract was worth $300 per acre. Dewey acknowledged that in the 1961 competency hearing he valued the farm at $275 per acre. Clayton sold it to Marsh for $22,000 which was probably fairly indicative of its value.

Although plaintiff’s witnesses depreciated the value of the Scott County farm and Clayton admittedly paid only $7300 for it shortly prior to the trade, there was testimony from Aubrey Michael, the Scott County Collector who was not shown to have any interest in the litigation, that the value of the Scott County land was $150 per acre. We do not find that there was such a grossly inadequate consideration going to John as would indicate overreaching or taking advantage of his rather obviously unequal mental capacity and trading acumen.

Plaintiffs representatives also point out other facts to be considered, facts which might tend to indicate some doubts on the part of the defendants in the efficacy of the transaction with John. The fact that the deed was recorded on the same day is emphasized. Prompt recording was considered indicative of a grantee’s doubts in Vining v. Ramage, 319 Mo. 65, 3 S.W.2d 712, and Gruetzmacher v. Hainey, Mo.Sup., 373 S.W.2d 45. Here, Clayton and John were in Charleston together on the day of the sale, clearing a deed of trust from the record. That the deed would be recorded then is reasonable and we would draw no unfavorable inference in such circumstances.

Also emphasized is Clayton’s “obvious ‘padding’ * * * of documentary stamps” on the deed to John. The deed from the Schuerenbergs to Clayton bore documentary stamps in the amount of $11.-00, the tax payable on a consideration of $10,000. Clayton said that he paid only $7300 for the land. There was no testimony as to who computed the tax on that transfer. On the deed to John, the documentary stamps totalled $20.90, indicating a sale price of $19,000. There was no evidence as to who determined the amount of tax which should be paid on that transaction. No inquiry on the subject was made in the examination of Clayton, either direct or cross. We are unable to draw an unfavorable inference against Clayton.

On Clayton’s knowledge of the pendency of the competency proceedings before the deed to John was recorded, another factor relied upon by plaintiff’s representatives, the testimony was conflicting. Mr. Clifton Banta, who represented the informant in those proceedings, testified that around October 11, 1960, Loren Storm and Dewey Heath came to his office and told him about the deal between John and Clayton. Loren said he didn’t think the transfer should be made and asked Banta what could be done about it. Banta testified that he called Clayton and told him that “we didn’t think [John] was of sound mind, [and] that his uncle was getting ready * * * to have him declared of unsound mind.” According to Banta, Clayton said that the transaction “had gone too far and that he’d have to see his lawyer.” There were no further dealings with Clayton or his lawyer. Clayton recalled Banta’s call, but said that Banta merely told him “that somebody didn’t want him to trade the land, and I said ‘I’ll see my attorney about that.’ ”

Accepting Mr. Banta’s version of the conversation, there is no question that it occurred subsequent to the execution of the deed by John and its having been placed on record. There was no evidence of any effort to avoid the placing of the deed to John on record and no evidence of any offer to restore the status quo and rescind the transaction. We would not attach any particular significance to Clayton’s knowledge obtained at that time and in such circumstances.

An unfavorable inference would also be drawn from Clayton’s conveyance of the Scott County land to John before he had title to it. The deed from Clayton to John is dated October 6 and the deed from the Schuerenbergs to Clayton October 7. However, the evidence was that Clayton’s contract with the Schuerenbergs was prior to October 7. The exact date was not shown, but there is no reason to infer that, as of the date of the deal with John, Clayton was in no position to carry out his part of the bargain.

Plaintiff’s representatives also would infer doubt on the part of Clayton about the transaction from the fact that the balance due John was not paid until after title insurance had been obtained on John’s 80-acre tract. Clayton’s explanation for the delay was waiting for his lawyer to approve the abstract and John had not requested that the transaction be closed. According to Clayton, John had “made a trip somewhere.” Clayton said that he did get title insurance on the 80-acre tract, but there is no reason to assume that the closing was delayed until such insurance had been obtained.

Reference is made to the Marshes’ interest in purchasing the land and Marsh’s allegedly false testimony as to his knowledge of the incompetency proceedings. Plaintiff’s witnesses testified that Marsh exhibited an interest in acquiring the land before the deal with Clayton. Marsh denied having spoken to plaintiff’s witnesses about the possibility of acquiring the land. Clayton said that when he purchased the property, he had no idea that Marsh was interested in it. When Marsh exhibited an interest, Clayton called Tyler in Illinois to find out whether Tyler had made any commitment to sell to the persons farming the land. John said that Marsh had not said anything to him about buying the land, although Marsh had agreed to lend him $1100 on the security of a deed of trust on the land. The deed of trust was actually executed and placed on record but no money had been advanced to John. When John and Clayton went to Charleston on October 6 to record the deed, the deed of trust, by arrangement with Marsh, was released.

Plaintiff’s guardians also assert that Marsh’s testimony that he was unaware of the competency proceedings at the time he bought the land from Clayton was false. Banta testified that on three or four occasions Marsh came to his office and they discussed the sanity proceedings and Marsh said that he was interested in buying the farm. Banta told him that it would be dangerous to do so, but Marsh said that if “they” got title insurance he would be protected. On the last visit, Banta said that Marsh told him that he was going to get title insurance and go ahead and buy the farm.

Marsh testified that he had talked to no one about buying the farm until the day before his deal with Clayton on December 14. He said that he was in Banta’s office only once and that he did not discuss the purchase of the property.

Again, this is a matter on which there was a direct conflict in the testimony. Accepting Mr. Banta’s version, it would show at the most that Marsh was in fact aware of the sanity proceedings. However, total disbelief of Marsh’s testimony will not produce affirmative evidence of the essential lacking element of plaintiff’s cause of action, John’s lack of mental capacity on October 6, 1960.

Our de novo review leads us to conclude that the alleged lack of capacity on the part of John to execute the deed on October 6, 1960 was not proved.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

HENLEY, P. J., SEILER and HOLMAN, JJ., concur.

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


source: Caselaw Access Project

author:
STOCKARD, Commissioner.
      PER CURIAM.

license: Public Domain

text:
    Dorothy NICHOLS, Appellant, v. Charlotte D. BLAKE, Respondent.
    No. 52355.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.

      Sherman Landau, St. Louis, for appellant.
    Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment for defendant, entered pursuant to a unanimous jury verdict, in her action for damages in the amount of $22,500 for loss of consortium alleged to have resulted from personal injuries sustained by her husband in an automobile collision.

The facts and circumstances giving rise to the present action are set forth in detail in Nichols v. Blake, Mo., 395 S.W.2d 136, the suit by plaintiff’s husband for his personal injuries, and will not be repeated here. It is sufficient to say that on the morning of October 22, 1962, automobiles operated by plaintiff’s husband and by defendant collided after defendant had entered upon U. S. Highway 40 in St. Louis County and was attempting to make a U-turn. On November 14, 1962, through her attorney defendant entered a plea of guilty in the magistrate court of St. Louis County “to the charge of wrongful failure to yield the right of way” and paid a fine of $10 and court costs.

Plaintiff’s first point is that the trial court erred in overruling her motion for a directed verdict on the issue of liability only. Plaintiff inferentially acknowledges that the general rule as stated in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559, that “In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached.” See also Rutledge v. Baldi, Mo., 392 S.W.2d 244, 246; Schaefer v. Accardi, Mo., 315 S.W.2d 230; Beezley v. Spiva, Mo., 313 S.W.2d 691. However, plaintiff asserts that defendant's plea of guilty in the magistrate court “was conclusive upon defendant as a ‘confession of the truth of the charge’ of failure to yield the right-of-way on the occasion in issue in this instant suit.” Plaintiff cites and relies on Howard v. Riley, Mo., 409 S.W.2d 154; In re Estate of Laspy, Mo.App., 409 S.W.2d 725; and Gancy v. Dohna, 25 Conn. Sup. 138, 198 A.2d 66.

In Howard v. Riley a plea of guilty by the defendant in a magistrate court to a charge of operating an automobile in a careless and imprudent manner was admitted in evidence as an admission against interest in a civil suit against defendant arising out of the same occurrence. The issue in that case was whether it was permissible for the defendant to offer evidence to explain the plea of guilty. This court quoted with approval from Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 9C, § 6196, as follows: “ ‘Evidence of a plea of guilty to a criminal charge arising out of an automobile accident is generally admissible, but it is not conclusive, and may be explained.’ ” Of course, if the plea of guilty may be explained by the defendant, it is not conclusive whether explained or not, and it has the same status as any other admission against interest. The weight and effect of the proof of the plea of guilty is for the jury. This case is authority contrary to plaintiff’s position.

In re Estate of Laspy presents a different factual situation. There the widow, who had been convicted of intentionally shooting and killing her husband, filed a claim against her husband’s estate for statutory allowances. The issue was whether in her claim for such allowances the criminal conviction was “conclusive” of the issue as to whether she had killed her husband without justification or excuse. The substance of that ruling was that when one seeks to benefit by an act which has been adjudicated to be a crime and which act when constituting a crime destroys the right of the benefit, that person may not collaterally attack the criminal judgment in the proceeding in which the benefit is sought. See the cases annotated in 18 A.L. R.2d 1287, and particularly those in § 3 thereof beginning at page 1299. As stated in the Laspy opinion, the courts are not in accord, but in any event, the Laspy ruling does not aid plaintiff in this case. Defendant is not seeking a benefit based on or arising out of the commission of an act judicially determined to constitute a crime.

Gancy v. Dohna pertained to a summary judgment procedure in another jurisdiction in which it was held that the failure of the defendant to file a counter affidavit or other documentary evidence pertaining to the plea of guilty resulted in plaintiff being entitled to a declaratory judgment on the issue of liability. We do not agree that this rule should prevail in Missouri.

We conclude that the above cases do not establish a rule in this state that a plea of guilty by a defendant in a criminal case, even though unexplained in a subsequent civil proceeding in which plaintiff has offered evidence of the plea, constitutes a “confession” as a matter of law which removes the issue of liability from the consideration of the jury. As previously stated, the plea is a declaration against interest to be considered by the jury as other declarations against interest.

Another reason why plaintiff was not entitled to a directed verdict on the issue of liability should be mentioned. Plaintiff’s claim is based on the loss of consortium resulting from defendant’s alleged negligence. “Actionable negligence involves, (1) the existence of a duty on the part of the defendant to protect plaintiff from an injury; (2) the failure of the defendant to perform the duty; and (3) the injury to the plaintiff from such failure. When these elements occur, they constitute actionable negligence.” Biscoe v. Kowalski, Mo., 290 S.W.2d 133, 138. See also, Schaefer v. Accardi, Mo., 315 S.W.2d 230. Irrespective of whether defendant’s plea of guilty in the magistrate court constituted a “confession” of failure to yield the right of way, defendant made no judicial admission of injury to plaintiff. Whether plaintiff sustained injury was an issue for determination by the jury, and in doing so it may find against a party on his uncontradicted and unimpeached evidence. Cluck v. Abe, supra.

The trial court did not err in refusing plaintiff’s motion for a directed verdict on the issue of liability.

Plaintiff next asserts that the trial court erred “in permitting defendant’s counsel to imply, intimate and argue to the jury that plaintiff was improperly attempting to secure a ‘double recovery,’ and in overruling the multiple objections of plaintiff’s counsel to the allusions to the husband’s previous action, to the dates when the separate actions were filed, to the pleadings in the separate actions and to the date when the husband’s suit was tried.”

In order to determine the incidents to which plaintiff refers it is necessary to refer to the argument portion of her brief. She has isolated several phrases or referred to incidents, placing them out of context, which she apparently contends resulted in defendant erroneously arguing to the jury that plaintiff was seeking a “double recovery.” We shall first examine the isolated phrases and incidents referred to in plaintiff’s brief.

The first incident occurred when plaintiff’s counsel offered to read into evidence, apparently as a declaration against interest, the testimony of defendant taken in the trial of plaintiff’s husband against defendant for personal injuries. Counsel for defendant asked that counsel for plaintiff “tell the jury exactly from where he is reading, what it is he is reading from, and of what proceedings they are taken, so the jury knows where she said these things, and what was going on when she did.” Whether this was a proper request under the circumstances is not before us. Plaintiff’s counsel complied with the request without protest and stated that what he intended to read was “from the transcript * * * in the claim of Warren Nichols against * * * Mrs. Charlotte D. Blake,” and after some discussion counsel for defendant supplied the dates of trial. Later, during cross-examination of the doctor who appeared at the trial at the request of plaintiff and who testified on direct examination concerning his examination and treatment of Mr. Nichols, defendant’s counsel asked: “I believe you that you testified in Mr. Nichols’ damage suit that he tried to a conclusion in September of 1964, is that correct?” The doctor answered that he did, and he was then further cross-examined concerning that testimony. Plaintiff interposed no objection whatever in reference to the above two incidents, and while we have difficulty in finding anything improper under the total circumstances, plaintiff cannot on appeal base an allegation of prejudicial error as to these incidents when she made no objection at the trial. Eddings v. Keller, Mo., 400 S.W.2d 164; O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904.

During cross-examination Mr. Nichols was asked concerning his alleged injuries and the time he first consulted a doctor. He was then asked this: “As a matter of fact, Mr. Nichols, didn’t you file a damage suit in this court claiming you suffered injuries to your back before you ever saw Dr. Luebbert?” Mr. Nichols admitted that was true. There were then some comments concerning the location of a file, and plaintiff’s counsel then objected to the question, which had already been answered, “because there’s no showing that this witness filed any suit,” and for the further reasons “that it is not a damage suit, it is a suit for personal injuries” and “petitions are ordinarily filed by counsel and are not be [by] client, as defendant’s counsel well knows.” The trial court overruled the objection, and properly so, with the comment that the petition “was filed by an attorney on his behalf, and it is really the petition of his, it is his petition.” After establishing the date on which Mr. Nichols’ petition was filed, counsel then asked: “In that lawsuit that you filed on January 2, 1963, did you plead * * At this point counsel for plaintiff objected, and in a conference out of the hearing of the jury counsel for defendant informed the trial court that he desired to read that portion of the petition wherein Mr. Nichols alleged that he had been caused to incur expenses for necessary medical care and treatment because the evidence established that no medical attention had been received by Mr. Nichols prior to filing the petition. This was permitted, and we think properly so, and Mr. Nichols stated by way of explanation that he “never saw the petition that was filed.” He was then asked: “Well, did Mr. Landau talk with you before he filed this damage suit for you?” Counsel for plaintiff then commented: “If the court please, I did not file any damage suit for him, I filed a suit for personal injuries, as counsel well knows.” The trial court then stated, “Well, let’s term it personal injuries.” Later, defendant’s counsel referred to “this lawsuit that Mr. Landau filed for you, to recover damages for your injuries, * * No objection was made to this reference.

We think it is a choice of words whether the reference should have been to a “damage suit” or to a “suit for personal injuries.” In fact, in view of the terminology in the measure of damages instruction, see MAI 4.01, the former may, technically speaking, be a more accurate description than the latter. We find no prejudicial error.

Over plaintiff’s objection that it was “immaterial and irrelevant,” defendant was permitted to show that plaintiff’s petition was filed on June 14, 1965, and that her husband’s suit for personal injuries was tried before a jury in September 1964. The result of the husband’s suit was not disclosed to the jury. Defendant argues that this evidence was admissible because it “tended to show that plaintiff’s action was not given serious consideration until after her husband’s case had been considered.” For the reasons stated in Eickmann v. St. Louis Public Service Company, Mo., 323 S.W.2d 802, and in view of the related facts and circumstances in evidence in this case, the time of the filing of this suit in relation to the trial of plaintiff’s husband’s suit tended to throw some light upon the question of plaintiff’s damages, and in view of the general objection of plaintiff the trial court did not err in overruling plaintiff’s objection.

Plaintiff next asserts that “further exploiting the court’s erroneous ruling to reap the greatest benefits, defendant’s counsel waxed oratorical” in his argument to the jury, and plaintiff then sets out in her brief a statement by counsel for defendant to the effect that the present lawsuit was not one brought by plaintiff’s husband for his personal injuries, but was a “lawsuit by someone who wasn’t in the accident, someone who wasn’t injured, someone who now claims that she suffered damages as a result of what happened to somebody else.” Plaintiff interposed no objection whatever, and whether this was permissible argument is not before us. Defendant’s counsel then said: “This is this kind of lawsuit, and I don’t know, folks, I really don’t know who Mr. Landau will find next to come into court and claim that they were damaged on account of his injuries.” Plaintiff objected to this as “being improper,” and the trial court sustained the objection. No other relief was requested. This cannot result in prejudicial error on the part of the trial court. Olsten v. Susman, Mo., 391 S.W. 2d 328, 330; Halley v. Schopp, Mo., 400 S.W.2d 123, 126.

We have examined the various incidents set out in plaintiff’s argument, and for the reasons above set forth we find no prejudicial error. However, plaintiff asserts, to use her exact words, that the “improperly admitted evidence, combined by the prejudicial and unwarranted comments by defendant’s counsel combined to have the effect of misleading the jury into the conclusion that this plaintiff was improperly attempting to secure a double recovery, without actually employing that exact phrase.” We consider this assertion not to be sustained by the facts. However, if it could be said that the jury obtained that impression, it was not by reason of erroneous rulings by the trial court. Plaintiff was the first to bring to the attention of the jury that her husband’s suit had previously been tried when she read to the jury certain testimony of the defendant at that trial. When plaintiff offered her husband and the doctor who treated him as witnesses in her trial she knew that they became subject to cross-examination, and that they could be examined concerning differences between their present testimony and that given at the husband’s trial. Plaintiff is asking too much when she contends, inferentially, that while she was entitled to maintain her suit separately from that of her husband and use the same witnesses, the jury is never to know of the existence of of the husband’s case even though this knowledge is inescapable as the result of authorized and proper cross-examination. The defendant cannot, of course, argue “double recovery” to the jury, which plaintiff admits defendant did not do by the use of that exact phrase. Plaintiff selected, presumably for trial strategy purposes and apparently upon advice of counsel, the trial procedure of maintaining her suit separate from that of her husband, and having made that selection she is in no position to complain, in the absence of prejudicial error which was preserved for appellate review by proper and timely objections, that the jury learned that there had previously been a trial of her husband’s suit. Plaintiff did not advance to the trial court the reason she now presents to this court, and in view of the inherent danger resulting from the trial of plaintiff’s case in the manner selected by her, we cannot now on appeal convict the trial court of error resulting from the above circumstances. This case most emphatically demonstrates the soundness and advisability of the provisions of Civil Rule 66.01, V.A.M.R., which became effective July 1, 1965, and therefore were not mandatorily applicable to this suit.

Plaintiff’s last point is that the trial court erred in overruling her “objections to the tactics of defendant’s counsel in heckling plaintiff’s counsel throughout his final argument to the jury in such manner, and to such extent as to effectively deprive plaintiff’s counsel of his right to jury argument.”

Nowhere in plaintiff’s brief does she set out what she contends constituted “heckling” by defendant’s counsel. She does list six transcript page references. We find nothing on those pages except objections to oral argument made in the accepted and usual form. We decline to set out the circumstances of each objection because this contention is so totally without merit that no purpose would be served. It is sufficient to say that on one of the pages referred to the objection was by plaintiff’s counsel and not defendant’s counsel; on another the court overruled two objections by defendant’s counsel and we have no hesitancy in saying that these two rulings were incorrect; and that on the other four pages we find two objections by defendant’s counsel which were meritorious and were inferentially sustained by the rulings of the court. No language was used by defendant’s counsel other than that necessary to present the objection and the reason therefor to the trial court. The charge of “heckling” is without justification or merit.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

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

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


author: STONE, Presiding Judge.

text:
    CITY OF ASH GROVE, Missouri, a municipal corporation, Plaintiff-Respondent, v. Alta DAVIS, Defendant-Appellant, and Myrtle Hulston et al., Defendants.
    No. 8659.
    Springfield Court of Appeals. Missouri.
    July 28, 1967.

      E. W. Collinson, John B. Newberry, Springfield, for defendant-appellant.
    John K. Hulston, Lincoln, Haseltine, Forehand & Springer, Wallace N. Springer, Jr., Springfield, for plaintiff-respondent.
   STONE, Presiding Judge.

From a declaratory judgment entered in this action under the Sawyers Act [V.A. M.S. § 71.015; Laws 1953, p. 309] authorizing plaintiff, the City of Ash Grove, Missouri, to annex contiguous lands, the instant appeal has been perfected by defendant Alta Davis, who owns a tract of about 43 acres, most of which is in the area sought to be annexed (hereinafter referred to as “the proposed area”).

Our appellate function is to review the case de novo and to reach our own conclusions with respect to the law and the facts, weighing and evaluating all competent evidence with due deference to the findings of the trial court where the credibility of witnesses is involved. V.A.M.R. Rules 87.11 and 73.01(d); V.A.M.S. §§ 527.070 and 510.310; City of Houston v. Duff, Mo.App., 338 S.W.2d 373, 375(1); City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505, 516(1). As we review and consider the facts, we remain mindful of certain well-established principles, to wit, (1) that the Sawyers Act authorizes the proposed annexation only if (a) it “is reasonable and necessary to the proper development of [the'] city” and (b) the city is able “to furnish normal municipal services” to the annexed area within a reasonable time [V.A.M.S. § 71.015; City of Aurora v. Empire District Electric Co., Mo.App., 354 S.W.2d 45, 48], (2) that reasonableness and necessity to proper municipal development are separate but closely related concepts [City of Olivette v. Graeler, Mo., 338 S.W.2d 827, 836-837(15); City of Woodson Terrace v. Herklotz, Mo.App., 349 S.W.2d 446, 448(1)], (3) that “both parties,” i. e., both the city and property owners in the area sought to be annexed, are entitled to the test of reasonableness [City of Olivette, supra, 338 S.W.2d at 837(16); City of St. Ann v. Buschard, Mo.App., 356 S.W.2d 567, 575], (4) that the burden of pleading and proving the statutory prerequisites to annexation rests upon the city [City of Olivette v. Graeler, Mo., 369 S.W.2d 85, 93(3); City of Creve Coeur v. Patterson, Mo.App., 313 S.W.2d 739, 744 (3)], and (5) that the city carries its burden of proof when the evidence raises “fairly debatable” issues as to those statutory prerequisites [City of St. Peters v. Kuester, Mo.App., 402 S.W.2d 70, 75(5); City of Creve Coeur v. Huddleston, Mo. App., 405 S.W.2d 536, 539-540(2)], which “merely means that if there is substantial evidence both ways, then the legislative conclusion [of the board of aldermen] is determinative.” City of Olivette, supra, 369 S.W.2d at 96(5). See State ex inf. Mallett ex rel. Womack v. City of Joplin, 332 Mo. 1193, 1205, 62 S.W.2d 393, 398; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 397, 228 S.W.2d 762, 774(15). (All emphasis herein is ours.)

Ash Grove is a city of the fourth class situate in Boone Township, Greene County, Missouri, about eighteen miles northwest of Springfield. It is a clean, wholesome residential community, whose inhabitants are understandably proud of the historical fact (included in the transcript before us) that it was “established” by Nathan Boone, the youngest son of Daniel Boone. But, although the city has continued to grow in stature by reason of the character of its citizens and the attainments of its native sons, it passed its numerical peak more than thirty years ago when the Ash Grove Lime and Portland Cement Company, the only major employer in the community, terminated its operations there. So, like hundreds of towns in rural areas, Ash Grove has experienced a slow but steady erosion in population, as evidenced by United States decennial census figures read into the record by counsel and within our judicial ken anyway, to wit, 1107 in 1930, 1101 in 1940, 970 in 1950, and 886 in 1960. Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4); Kirst v. Clarkson Construction Co., Mo.App., 395 S.W.2d 487, 497-498(15). The accelerated rate of decline in later years was not stemmed by two annexations, one about 1945 and another about 1949 or 1950, and there is no evidence from which it reasonably might be inferred that any reversal in trend has occurred since 1960 or is likely to occur in the foreseeable future. Many of the residents are retired, some work locally, and a substantial number are employed in Springfield. The city’s counsel referred to Ash Grove as “a bedroom town . for people who work in Springfield.”

Ash Grove has one regular police officer (identified by the city clerk as the “chief of police” and by the officer himself as “city marshal”) who “is on call 24 hours a day” and some weeks is relieved by “a special police . . . maybe two nights.” The city marshal is also a deputy sheriff, with a portion of his compensation paid by Greene County. He patrols and furnishes the same police protection in the city and in the proposed area; and when on night patrol, he usually can be reached only by radio through the sheriff’s office. The city marshal serves in still another capacity as fire chief. The city owns a 1949 or 1950 model fire truck with a 300 gallon pumper tank and also provides “storage space for the Greene County truck.” A squad of eight volunteer firemen man the equipment and answer calls both inside and outside the city. Within the corporate limits, the city truck is used and water is available through fire hydrants in the municipal water system. Without the city, the county truck is used and, of course, no water is available from the municipal system.

Residents of the annexed area, “all of them,” already have water service from the municipal system; but, since mains outside the city have been laid by the customers, they are “small water lines . not sufficient for fire hydrants.” To supply sufficient water “in case of a fire,” larger mains would have to be laid. When asked “how many water mains” to the perimeter of the proposed area the city could lay in the event of annexation, the water and sewer superintendent said “one probably without any additional money.”

The municipal sewer system was constructed in 1956 with capacity to handle double the present load. Most of the business buildings and a few of the residences in the proposed area “are already on the sewer,” having been connected at the expense of the property owners. Of the bonds issued for construction of the sewer system, general obligation bonds in the aggregate principal sum of $53,000 and revenue bonds in the aggregate principal sum of $64,000 remained outstanding at the time of trial. The last general obligation bonds mature in 1976 and the last revenue bonds in 1981. In the event of annexation, the sewer system could be extended to serve other residents in the proposed area only “through [another] bond issue.” A periodic examination of the city’s books and financial records by certified public accountants, completed only a few months prior to trial, showed that adequate balances were being maintained in the sinking funds and that the city’s financial condition was good.

Ash Grove has no street department. As the city clerk explained, street maintenance “is done by the county but with our tax money” — “it is taken out of our tax money that the county collects.” There is no showing that Ash Grove has a health department or officer; and there is no municipal zoning ordinance or building, plumbing or electrical code. The area outside the city already is “under the [county] zoning and planning commission that calls for an inspection of the sewage disposal, septic tank, lateral lines, footings [and] construction of the building proper.”

Empire District Electric Company provides the same electric service at the same rates to customers in the city and in the proposed area. A 20-year natural gas franchise was granted to the Gas Service Company but the city’s water and sewer superintendent added that “to comply with qur ordinances they are to have our [distribution] system in the Fall of 1966.” At the time of trial in March 1966, construction had not begun either on the municipal distribution system or on the pipeline to supply that system.

The city clerk testified that the area within the present corporate limits of Ash Grove is 322.4 acres; but, although knowledgeable in practically every other field of interrogation, she declined to “even guess” as to the size of the proposed area. Pointing to the testimony of witness Hall, the sole member of the board of aldermen called to the stand, the city’s brief states that “the only witness who gave a judgment as to the acreage contained in the proposed area to be annexed estimated it to be 150 acres which appears accurate from an examination of petitioner’s exhibit 20,” a large map of the city and proposed area (hereinafter referred to as “the map”) drawn to scale and identified by the county surveyor. However, this was the testimony of witness Hall: “Q. [D]o you know how many acres of vacant farm land the city is proposing to take into the City of Ash Grove at the present time? A. Not exactly Q. What is your judgment? A. About 150 I would guess." Defendant’s brief opens with the statement that this action involves “the annexation of some 200 acres of land to the city,” but the only transcript reference is to the annexation ordinance which (as it appears in the record) simply provided for annexation of the additional territory between the then city limits and the proposed city limits as outlined on the map attached to and made a part of the ordinance. Finding no testimonial statement indicating the total acreage in the proposed area, we have turned to the map and, calculating it as closely and carefully as we can, have found that the proposed area contains approximately 206 acres. About 112 persons reside in that area. Since the form and outline of the area within the present city limits and of the proposed area are highly irregular and defy intelligible linguistic portrayal, we here include a copy of the large map received in evidence, necessarily so reduced in size that much of the detail is illegible but which will perhaps, with the aid of the designations we have added, enable the reader to follow our discussion.

The major part of the city is laid out with north-south and east-west streets, but the business and central portions are laid out on the bias on the northeast side of the tracks of the St. Louis-San Francisco Railway Company which enter the city at a point near the center of the south boundary and, running in a general northwesterly direction, wind through the city in a gentle, elongated S-curve, thus placing the major portion of the city on the northeast side of the tracks. U.S. Highway 160 with a two-lane blacktop roadway approaches from the northeast, enters the city at a point north of the center of the east boundary, runs due west through the city north of the business district until the highway right-of-way meets the railroad right-of-way, and then swings to the northwest as it runs out of the city alongside the curving railroad right-of-way.

Of the 206 acres in the proposed area, approximately 8 acres are contained in a curved prong (identified on the map and hereinafter referred to as the west tract) extending about 900 feet in a northwesterly direction from the west side of the city and embracing (1) the railroad right-of-way running in a general northwesterly-southeasterly direction, (2) the contiguous highway right-of-way on the northeast side of the railroad right-of-way, and (3) a strip of land, 200 feet in width, adjacent to and on the northeast side of the highway right-of-way. The only testimony concerning the west tract was that given by witness Keck, who filled treble roles as city marshal, deputy sheriff and fire chief; and the extent of his testimony pertaining to the west tract was (a) that there was a “traffic problem” in that the “speed limit is 70 miles an hour through the area . . . and there’s a service station and people pulling out onto the highway on the curve” and (b) that there was a package liquor store “just outside the city.” These unelaborated statements fall far short of the evidence offered in reported cases where the need for traffic regulation [e. g., Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236, 244, 247, 249; Rogers v. City of Deepwater, 240 Mo.App. 795, 219 S.W.2d 750, 756] and for keeping the peace [e. g., City of Deep water, supra, 219 S.W.2d at 756; Seifert v. City of Poplar Bluff, Mo.App., 112 S.W.2d 93, 99], together with other cogent factors, have been deemed to support annexation. However, the annexation ordinance treated of the proposed area in its entirety, as have the parties in this proceeding, so we express no opinion concerning the reasonableness of and necessity for annexation of the west tract alone. City of Aurora, supra, 354 S.W.2d at 55-56(8).

The remainder of the proposed area, to wit, approximately 198 acres (hereinafter referred to as the east tract), which includes those areas identified on the map as northeast parcel> pocket, middle parcel and southeast parcel, is contiguous to the present east boundary of Ash Grove. Beginning at the extreme northeast corner of the city limits, the present east boundary descends in an irregular stairstep pattern, punctuated north of the center of the east boundary by a relatively deep pocket (hereinafter referred to as the pocket), 899.5 feet in depth, east and west, and 627 feet in width, north and south, at the open (east) mouth of the pocket. Approaching Ash Grove from the northeast, Highway 160 enters the mouth of the pocket at the north side thereof, runs through the pocket in a southwesterly direction, and crosses the present east boundary in the (west) base of the pocket, leaving a triangular tract of approximately six acres on the north side of the highway in the pocket and a somewhat larger tract on the south side of the highway in the pocket. When defendant’s witness Joe Richter, a contractor, purchased the 6-acre tract on the north side of the highway in 1961, “the first thing I did was to see if I could get that 6 acres declared city property.” Failing in that, Richter proceeded with construction of several small business buildings on his 6-acre tract and, at his own expense, connected them with the municipal water and sewer systems. Insisting that there was no traffic problem on the highway in that area, Richter was opposed to annexation at the time of trial. Photographic exhibits show two filling stations and a small cafe on the south side of the highway in the pocket.

Below (south of) the pocket, the present east boundary resumes its irregular stair-step pattern with the southernmost step being a thin protruding finger of land 1,510 feet in length, east and west, and 390 feet in width, north and south. An east-west two-lane blacktop road (hereinafter referred to as the Bois d’Arc road), platted within the city as Crookham Street, runs down the center of this finger (identified on the map and hereinafter referred to as the Crookham finger) for the entire length thereof and thence out of the city. In our further discussion, we will refer to that portion of the east tract lying north of Highway 160 (exclusive of land in the pocket) as the northeast parcel, to that portion of the east tract lying between Highway 160 on the north and the Bois d’Arc road on the south (exclusive of land in the pocket) as the middle parcel, and to that portion of the east tract lying south of the Crookham finger and the Bois d’Arc road as the southeast parcel.

The northeast parcel embraces approximately 36.5 acres, and its eastern boundary is one-fourth mile east of the present boundary on the north side of Highway 160. Within this parcel, one small addition of five acres containing ten lots, known as the Buckley-Linderman Addition, was platted about five years before trial. During that period, seven houses had been built in that addition, one of which had, at the time of trial, been vacant “several months.” There was no evidence as to the number or location of dwellings in the remainder of the northeast parcel.

The middle parcel embraces approximately 111 acres, the major portion of the east tract. The pocket is immediately west of the north part of that parcel. In the next stairstep south of the pocket, some of the buildings of the Ash Grove consolidated school district are located just inside the present east boundary, while two new buildings just outside that boundary, which were under construction at the time of trial, no doubt have been completed. The next descending stairstep in the east boundary is the Crookham finger, in which there are homes on each side of the Bois d’Arc road. The east line of the middle parcel is a north-south country road known as Piper Road, which is almost three-fourths mile east of the point at which Highway 160 presently enters the city in the base of the pocket, one-half mile east of the present east boundary immediately south of the pocket, almost three-eighths mile east of that boundary at the next descending stairstep where the school buildings are located just inside and outside the boundary, and one-eighth mile east of the east end of the Crookham finger.

Defendant Alta Davis’ tract is bounded on the south by the Bois d’Arc road. The major portion of that tract is outside the present city limits and in the southeast part of the middle parcel, but a portion of the tract and defendant Davis’ home are inside the city. From that portion inside the city, “some lots” on the north side of the Bois d’Arc road have been sold; but only one lot outside the city, just east of the east end of the Crookham finger, has been sold. No part of the Davis tract has been platted and, in fact, there is no platted addition in the middle parcel and no evidence of any dwelling in that parcel, excepting only the home on the lot just outside the Crook-ham finger.

A draw runs from east to west through the center of the middle parcel and thus across the Davis tract providing natural drainage for all of the land in that parcel, i. e., from Highway 160 on the north and from the Bois d’Arc road on the south. “There’s a branch down through [the draw]”; and, when asked whether it ever floods, the city’s water and sewer superintendent agreed “I expect it does.” Defendant Davis’ son, Stanley, said that “there’s times when quite a hit of water runs down through there.” There is a stock pond on the Davis tract. Outside the city, the tract is used for pasture and the only buildings on it are a stock barn and a grain bin. At the time of trial, Stanley Davis was running 12 head of cattle on it, but the previous year he had run about 50 head on it.

In the city’s brief, counsel assert that witness Stanley Davis “admitted that the [Davis tract] was more valuable for building sites than for farm land” and “admitted that some lots had been sold from it for building sites and that the balance was being held for sale as lots until such time as a prospective purchaser would pay the required price.” We quote the testimony to which counsel refer, as it appears immediately following the positive statement by witness Stanley Davis that “with the exception of the one [lot],” all lots sold by his mother, defendant Alta Davis, had been inside the city: “Q. Do you feel in your judgment that those lots that were sold off for building sites, does that make your land more valuable than as farm land there ? A. I don’t follow your question. Q. In your judgment is this land more valuable for building sites than it is for farm land? A. Yes. . . . Q. Isn’t it because it is contiguous with the City of Ash Grove? A. People will pay more for building lots than they will for farm land. Q. Yes, and because it’s right next to the City of Ash Grove won’t they? A. Well, it was in the city. Q. And the ones (sic) you sold outside the city too. A. Yes. Q. Any more lots been offered out there for sale? A. We haven’t had any buyers. Q. . . . If they came and paid you your price, you would sell them a lot or your mother would, wouldn’t she? A. Yes, if they’d pay more than it was worth for farm land. Q. . . You are probably holding that and wanting to sell them as lots in that area, are you not, sir? A. I’d be happy too (sic), if it ever happened.” But after only two unrelated questions, we find the following: “Q. Is this land . . . other than being used for pasture is it used for any other farming purpose? A. Not for crops. It’s pasture land. ... Of course the lower part of it there where that drain goes down through it, why pasture land is all it will ever be good for. Q. And the upper part of it is valuable for city lots ? A. Just about what’s been sold off, is all.”

Taking the testimony of witness Stanley Davis as a whole, as we must do [Dimond v. Terminal R.R. Ass’n. of St. Louis, 346 Mo. 333, 353, 141 S.W.2d 789, 799(12); Cotton v. Voss Truck Lines, Mo.App., 392 S.W.2d 428, 433(4); Garrard v. State Dept. of Public Health and Welfare, Mo.App., 375 S.W.2d 582, 592(25)], we think it clear that its substance and import were simply that, since “people will pay more for building lots than they will for farm land,” those lots which his mother had sold on the north side of the Bois d’Arc road were more valuable as building sites than as farm land; that he would “be happy” if any additional portion of the Davis tract could be sold for building sites; but that a part of the tract certainly would never be usable as anything other than pasture land and, in his judgment, his mother already had sold about all of the tract that would be suitable for building sites. Significantly, we think, no witness took issue with the two last-quoted answers of Stanley Davis and there was no evidence demonstrating the suitability or the adaptability of the Davis tract outside the city for urban usage or showing that the value of such lands had been enhanced “by reason of their adaptability for prospective town uses.” State ex inf. Major v. Kansas City, 233 Mo. 162, 214, 134 S.W. 1007, 1022; City of Houston, supra, 338 S.W.2d at 379-380, and cases collected in note 9. And there was no such testimony concerning any of the more than 150 acres of vacant, unplatted farm land included in the proposed area. Contrast City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, 14-15, 18-19; State ex inf. Major v. Kansas City, supra, 233 Mo. at 220-222, 227-229, 134 S.W. at 1024-1027. For that matter, there simply was no evidence of the reasonable market value of any of the lands in the proposed area at any time or for any use.

The southeast parcel embraces approximately 37 acres, of which about 22 acres are in that portion of the R. L. Hayes Addition outside the present city limits, i. e., south of the Crookham finger and the Bois d’Arc road. Because two residents of that parcel testified, we know that some homes are located there, although strangely (to us) the transcript does not disclose their number. One resident contented himself with the simple statement “yes, I’d like to go in.” The other was opposed to annexation. When asked whether he could connect with the municipal sewer system, he said that he could not “because I’m over the hill,” thereafter describing the lay of the land in some detail.

Conceding that the population of Ash Grove “has not shown growth,” the city’s counsel suggest that “growth is evidenced in other ways,” pointing to testimony of the postmistress that postal receipts almost doubled during the 10-year period from 1956 to 1965, inclusive, and to the “considerable increase” in the loans, deposits and assets of the Bank of Ash Grove during that same period. Of course, the postoffice serves a large surrounding area with rural routes covering about 166 miles, and patronage in that area coupled with sharply increased postal rates must have contributed substantially to the higher receipts. And, with the bank likewise serving customers outside as well as inside Ash Grove, the growth in the bank’s loans, deposits and assets no doubt reflects not only the economic prosperity of the entire area and the uninterrupted inflationary trend during the past decade but also well-grounded public confidence in the sterling management and fiscal integrity of the bank. But this is not the kind of “growth” which, against a backdrop of steadily declining population, constitutes persuasive evidence that annexation of the proposed area of approximately 206 acres, which would enlarge the city’s present acreage by more than 63%, would be “reasonable and necessary to the proper development” of Ash Grove. V.A.M.S. § 71.015.

The city clerk stated that, since 1950, 46 homes and 13 businesses “have been added to the tax books”; but no one inquired, and the clerk did not report, how many had been dropped during the same period. She also testified that there were no vacant houses for rent inside the city and only two or three for sale, and that, although there were some “desirable lots,” defined by her as “lots in a desirable part of town,” and many "undesirable lots” within the city limits, “the desirable ones can’t be bought” —“they can’t buy them so they go outside.” The city’s evidence was to the effect that “the trend” of residential construction is “southeast and northeast” and of business construction is “on Highway 160.” Defendant’s son, Stanley Davis, who said that he had made “a survey” as to vacant lots and houses in Ash Grove, found 75 or more vacant lots — “level lots that would be suitable for building” and 15 or more vacant houses, “some that have been kept up and some that are practically falling down.”

With an average population density of only 2.75 persons per acre within the present boundaries of Ash Grove (i. e., the 1960 census figure of 886 persons divided by the acreage of 322.4), we are not disposed to join in the statement of the city’s counsel that “growth in the Ash Grove community” has been outside the city “because of the saturation of the land confined within the present city limits.” However, for the purposes of this discussion we accept the testimony of the city clerk as to the unavailability of desirable lots within the corporate limits; and, proceeding on that premise, we probe the record to determine the nature and extent of new construction in the proposed area in recent years which, of course, represents the maximum measure of the city’s claimed “growth” in that area.

When asked how many new homes had been built in the proposed area since the city’s unsuccessful attempt some 2½ years previously to annex an even larger tract of 346 acres, the city clerk answered “I know there is one out east and I can’t remember if there’s been maybe two over in the north part, I believe.” To a similar inquiry, defendant’s son Stanley Davis said “there is one house under construction, one that’s been built [in the Buckley-Linder-man Addition] that’s been vacant for some time . . . there were two houses built in another part of the [proposed] area.” The only witness of whom inquiry was made as to “growth” during a longer period of time was the city’s witness Robert Hausman, a great-grandson of Nathan Boone, a lifetime resident of Ash Grove, and “a real estate broker and in the insurance business.” When interrogated as to how many homes had been built in the proposed area in the past five years, Haus-man’s response was “I’d say 12 or 13, that I can think of”; and, as we have seen, 7 of those were in the Buckley-Linderman Addition in the northeast parcel of the east tract. Thus, the evidence most favorable to the city was that an average of no more than 2.6 homes per year had been constructed in the proposed area of 206 acres, and that more than one-half of those had been located in the S-acre Buckley-Linderman Addition. There was no evidence of recent business construction outside the pocket. While we certainly do not share the dire view of defendant’s counsel that Ash Grove is “a small city, dying a slow death,” obviously the record does not permit us to find that the city actually has, within the past 30 years, experienced any substantial measure of “growth” within the meaning of that term as used in annexation cases. For, even if it be assumed (contrary to experience and probability) that since 1960 there has been no decrease in the number of inhabitants within the present city limits, taking into the city’s fold all of the 112 persons said to inhabit the proposed area would do little more than recoup the population loss during the 1950-1960 decade.

As a relevant and material, although not in and of itself controlling, factual facet of the situation before us, we observe that the average population density of .54 person per acre m the proposed area (i. e., the population estimate of 112 persons divided by the acreage of 206) is, without exception, substantially lower than in any reported case in which annexation has been approved and the acreage and population figures have been recorded in the opinion [see cases collected in City of Houston, supra, 338 S.W.2d at 378 (note 6)], and that the human census of 112 persons is likewise substantially lower than the “cattle census” taken by defendant’s son, Stanley Davis, which showed (so he testified without contradiction) that “on an average” 175 to 200 head of cattle are kept in the proposed area.

We have not overlooked other considerations urged upon us by the city’s counsel, including, inter alia, the following:

(a) The fact that the acting school superintendent stated without objection that the board of education favored the proposed annexation in order that the two new school buildings just outside the present east boundary might have better fire protection and hopefully might carry lower fire insurance rates.

(b) The testimony of city marshal-deputy sheriff-fire chief Keck that there is an alleged “traffic problem” on Highway 160 in the pocket of the east tract, where motorists turn from and onto the highway in patronizing service stations and business establishments, and that it would be helpful to be able to enforce the municipal speed limit of 25 miles per hour in that area.

(c) The testimony of pastor Russell that his congregation of about 55 members had purchased land (the location of which was fixed no more definitely than that it was in the proposed area) with the intention of building a church thereon, and that he favored annexation because “it would give us the privileges if they did, to put in a sewer system . . . and also we’d be more interested in the lighting out front, we really need the lighting and water.” But we note also that on cross-examination this witness stated the sewer system presently is “close enough to our church that without too much expense we can go to it now” at the church’s expense and “we are already hooked up to the city water through a neighbor but we don’t have a meter,” and that, as heretofore recorded, Empire District Electric Company furnishes the same electric service at the same rates both inside and outside the city.

(d) The testimony of the city’s water and sewer superintendent that, in the event of extension of the sewer system to serve the proposed area, “to have a gravitity (sic) feed you would have to follow this natural drainage,” referring to the draw running from east to west through the center of the middle parcel. However, any such extension of the sewer system admittedly would require a bond issue; and, with most of the businesses and a few of the residences in the proposed area “already on the sewer,” it would be speculative in the extreme and altogether unwarranted for us to assume that, if the proposed area were to be annexed, the electorate would approve a bond issue in sufficient amount to provide for extension of the sewer system to the unconnected residents in the proposed area, scattered as they are in the east tract of approximately 198 acres and widely separated as they are with some in the northeast parcel and others in the southeast parcel but only one home in the middle parcel. Furthermore, should the city need to make use of the draw or other land in the middle parcel in connection with the municipal sewer system, it could acquire the right to such use, by condemnation if necessary, regardless of whether the land was inside or outside the corporate limits. V.A.M.S. §§ 250.010(1), 88.844, 88.077.

Cognizant that the “aids or guides developed by the cases before the Sawyerfs] Act are still helpful in arriving at a decision of the ultimate fact questions specified” in the statute [City of Olivette, supra, 338 S.W.2d at 837], we have reviewed again a multitude of our Missouri annexation cases. In thereafter sorting and resorting, sifting and resifting, pondering and repondering the facts reflected by the instant record, we have kept before us all of those aids or guides initially stated in the landmark case of State ex inf. Major v. Kansas City, supra, 233 Mo. at 213-214, 134 S.W. at 1022, and reiterated in many subsequent cases [see those cited in City of Houston, supra, 338 S.W.2d at 380 (note 10)] and also the additional factors recognized as having some relevance in certain situations [City of Houston, supra, 338 S.W.2d at 380(5) and cases collected in note 11], all of which need not be detailed again in this opinion. And we have been particularly mindful that a city is not foreclosed from annexing adjacent territory simply because it may yet have undeveloped tracts within its present boundaries [City of Fulton, supra, 325 S.W.2d at 517] or because its citizens will not build within certain areas [City of Joplin, supra, 332 Mo. at 1206, 62 S.W.2d at 399; Faris v. City of Caruthersville, Mo.App., 301 S.W.2d 63, 69(11)], and that a case of reasonableness and necessity to proper municipal development may be made for annexation of contiguous land “even though a part of the land is vacant, or a small portion thereof is used for agricultural [or pasturing] purposes.” City of Crestwood, supra, 257 S.W. 2d at 249 (7); City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546, 551.

On the other hand, city officials no longer may rely upon a strong current of presumptive reasonableness and validity (which ran in earlier cases, e. g., City of Caruthersville, supra, 301 S.W.2d at 68) to carry them into the haven of a favorable judgment. City of Houston, supra, 338 S.W.2d at 382; City of St. Ann, supra, 356 S.W.2d at 575. Although such officials have the right and the duty to provide for fairly foreseeable needs for the reasonably predictable future [City of St. Joseph, supra, 312 S.W.2d at 18; City of Woodson Terrace, supra, 349 S.W.2d at 451], annexations may not be found reasonable and necessary to proper municipal development on the basis of “ ‘visionary’ ” needs [City of Aurora, supra, 354 S.W.2d at 48(5); Stoltman v. City of Clayton, 205 Mo.App. 568 586, 226 S.W. 315, 321] or “vaulting ambition.” Jones v. City of Clayton, Mo.App., 7 S.W.2d 1022, 1025. “The expansion and rate of growth during the immediate past furnishes some criterion by which to judge the immediate future, for the expansion needs of a stagnant city with a static population would not be the same as those of a city with an expanding economy and a growing population.” City of Caruthers-ville, supra, 301 S.W.2d at 69. Otherwise put, in annexation cases a look over the shoulder into the past is usually helpful in sharpening one’s vision to peer into the future.

The issues of reasonableness and necessity are not to be resolved by any rule or formula [City of Creve Coeur, supra, 313 S.W.2d at 744; Mauzy v. City of Pagedale, Mo.App., 260 S.W.2d 860, 864(3)], and the aids or guides stated in the- cases simply point out factors of which the court should be cognizant, with each relevant factor to be considered in relation to the other relevant ones and with no single factor a legal absolute in the sense that it is conclusive. City of St. Peters, supra, 402 S.W.2d at 74(3); City of Aurora, supra, 354 S.W.2d at 48. In the final analysis, each annexation case presents a separate and distinct problem to be determined on its own facts and circumstances. City of St. Joseph, supra, 312 S.W.2d at 17; Johnson v. Parkville, Mo.App., 269 S.W.2d 775, 778.

Having scrutinized the facts in the case at bar in the light of all of the relevant guides suggested in prior annexation cases, we are unable to escape the conclusion that the city has failed to carry its burden of proof by adducing “substantial evidence” [City of Olivette, supra, 369 S.W.2d at 96(5)] that annexation of the proposed area of approximately 206 acres, three-fourths of which is vacant, unplatted farm and pasture land, “is reasonable and necessary to the proper development of [the] city.” V.A.M.S. § 71.015. We hasten to add that this holding should not be misunderstood as indicating the view that no annexation of additional territory could be supported. But the fact that a case of reasonableness and necessity might be made for annexation of certain portions of the proposed area does not make the proposed annexation reasonable and necessary in its entirety. City of Aurora, supra, 354 S.W. 2d at 55(7); City of Sugar Creek, Mo. v. Standard Oil Co., 8 Cir., 163 F.2d 320, 324(7). We have neither authority nor desire to redraw the boundaries laid out by the board of aldermen. That being a legislative function [City of St. Joseph, supra, 312 S.W.2d at 17(14) ; City of Joplin, supra, 332 Mo. at 1203, 62 S.W.2d at 397], such revision of boundaries is for the city itself acting through its legislative body. However, it may not be inappropriate to comment that even casual examination of the map should serve to suggest changes in the present proposal which not only would enable the city to support a modest annexation but also would extend to residents of the proposed area as well as the new school buildings just outside the present east boundary whatever benefits might accrue from annexation to the city.

Entertaining, as we do, the highest respect for the distinguished trial judge, we have been slow to reach, and reluctant to announce, a conclusion contrary to his. But appellate review would become an empty formality and we would be unworthy of the trust reposed in us, if we yielded our firm conviction simply because he, with an equal sense of justice, found differently. Dodds v. Dodds, Mo.App., 353 S.W.2d 810, 814; Shilkett v. Shilkett, Mo.App., 285 S.W.2d 67, 72; Campbell v. Campbell, Mo.App., 281 S.W.2d 314, 319; Prudot v. Stevens, Mo.App., 266 S.W.2d 756, 758. In this connection it should be pointed out that in our protracted study of the case the precise testimony as recorded in the transcript has been available to us for repeated reference, whereas he had no such opportunity.

The judgment of the circuit court is set aside and the cause is remanded with directions to enter a judgment dismissing plaintiff’s petition with prejudice as of March 16, 1966, the date of' the original judgment.

HOGAN and TITUS, JJ., concur.


author: WOLFE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Don G. ANDERSON, Defendant-Appellant.
    No. 32633.
    St. Louis Court of Appeals. Missouri.
    June 13, 1967.
    Motion for Rehearing or to Transfer to Supreme Court denied July 7, 1967.
    Stewart & Bruntrager, Raymond A. Bruntrager, Joseph G. Stewart, St. Louis, for defendant-appellant.
    Thomas W. Shannon, Lawrence J. Lee, Pros. Attys., William Knox, Allen I. Harris, Asst. Pros. Attys., St. Louis, for plaintiff-respondent.
   WOLFE, Judge.

The appellant was convicted of operating a motor vehicle without proper Missouri State license. The vehicle he was operating carried a load in excess of that permitted under the provisions of V.A.M.S. 301.060. The trial was to the court and the defendant was found guilty and his punishment was assessed at $27.50 and costs.

Two days prior to trial the defendant filed a motion to suppress evidence on the grounds that the evidence was obtained by a search and seizure and that the officer arresting the defendant had no warrant for the defendant’s arrest. It is asserted that this was in violation of the Constitution of Missouri and to permit use of said evidence would be compelling him to give testimony against himself.

Coincident with the filing of the motion an agreed statement of facts was filed with the court which was as follows:

“It is agreed and stipulated in the above case that at 4:05 p. m. on March 21, 1966, patrolman Eugene Siewing observed the aforementioned tractor-trailer being operated in the 2600 block of North Broadway, at which time the officer had the driver pull the unit to the curb for a license check.
“It is further agreed that the officer in this matter is a police officer of the City of St. Louis, as defined in Section 302.230.
“The truck at that time was licensed to carry 42,000 lbs. The tractor-trailer was then escorted to the Convent Gardens Scale Service, located at 2601 North Broadway, where the truck was weighted by scale master Sam Kaufer, who reported a total gross weight of 44,750 lbs., some 2,750 lbs. over the weight permitted on the license.
“It is further agreed and stipulated that the driver was at that time issued a summons for exceeding the authorized weight on license by 2,750 lbs.
“In addition to the facts previously stated, the defendant admits the accuracy of the scales and no testimony will be offered in this regard.”

It is contended that the court erred in considering evidence obtained through an unlawful search in violation of V.A.M.S. Constitution of 1945, Art. 1, § 15, V.A.M.S. This is the only point raised. The appellant cites us to three cases relating to search: State v. Cuezze, Mo., 249 S.W.2d 373; State v. Hunt, Mo., 280 S.W.2d 37; State v. Reagan, Mo., 328 S.W.2d 26. The first of these cases concerns a search made of a car in which the defendants were riding. The police made them get out of the car and by search found two pistols under the right front seat. These facts certainly bear no resemblance to the facts here stipulated. The same may be said of the second case for it was the search of a residence for stolen goods.

In the third case, State v. Reagan, supra, a police officer’s car was crowded to the curb by a passing panel truck. He followed the truck which stopped at a filling station. The driver of the truck got out and when asked by the police officer why he was driving in the manner in which he had been the driver paid no attention to him. The officer looked into the truck and saw the propeller of an outboard motor protruding from under a rug which covered the motor. He asked the driver what he had under the rug and was told it was an old outboard motor which he was going to sell for $50.00. The officer then asked if he could look at it and when the driver assented the officer opened the rear door of the truck and found a new outboard motor worth about $400 or $500. It had been purchased a week before and stolen from the parked station wagon of its owner. In passing upon defendant’s contention that an illegal search had been made of its panel truck the Supreme Court stated, quoting with approval from State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688:

“ * * * ‘ * * * Constitutional guaranties against unreasonable search and seizure apply where seizure is brought about by an unlawful search. Those guaranties are not infringed where the recovery and possession of property theretofore stolen is accomplished without search and where such property lies fully disclosed, open to the eye and in plain view. Where the evidence of an unlawful act is discovered by the officer without a search there is no violation of those constitutional guaranties. A search, within the constitutional provisions invoked, basically involves “of necessity, a quest for, a looking for, or a seeking out of, that which offends against the law. It implies a prying into hidden places for that which is concealed.” Observation of that which is open to view is not a search. A search (such as is prohibited by the constitutional provisions invoked) is not made by merely looking at that which can be seen.’ * * ⅝ 97

Applying the foregoing to the facts at hand we have concluded that there was no search, there was no “prying into hidden places for that which is concealed.” The truck was driven onto the scale at the request of the officer, the weight of its load registered on the scale and was “fully disclosed, open to the eye and- in plain view.” There was no search of the truck under such circumstances.

The judgment is affirmed.

ANDERSON, P. J., and RUDDY, J., concur.