author: HYDE, Judge.

text:
    Paul W. PREISLER, (Plaintiff) Appellant, v. Warren E. HEARNES, Secretary of State of the State of Missouri, and Thomas F. Eagleton, Attorney-General of the State of Missouri, (Defendants) Respondents.
    No. 49370.
    Supreme Court of Bfissouri, En Banc.
    Dec. 11, 1962.

      Paul W. Preisler, St. Louis, appellant, pro se.
    Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld and Wayne W. Waldo, Asst. Attys. Gen., Jefferson City, for respondents.
   HYDE, Judge.

Action for declaratory judgment to determine the validity of Chapter 128, Secs. 128.202-128.305, RSMo Cum.Supp.1961, dividing the state into ten congressional districts, enacted by the 71st General Assembly, hereinafter called “the 1961 Act”. The trial court found against plaintiff’s claims and declared the Act valid and constitutional and that plaintiff had “no right to vote for the nomination or election of Representatives in Congress from Missouri from the state at large, or to become a candidate for nomination to the office of Representative in Congress from the state at large.” Plaintiff has abandoned the latter claim in this Court because this case was submitted after the 1962 primary election.

An act creating ten congressional districts was necessary because under the Decennial Census of 1960 the number of Rep1-resentatives in Congress from Missouri was reduced from.eleven to ten. Plaintiff contends that the 1961 Act violates Sec. 45, Art. Ill, Missouri Constitution, V.A.M.S., claiming the districts established are grossly unequal in population and composed of irregular noncompact territory; and that the Act violates the 14th Amendment to the United States Constitution, and Sec. 2, Art. I of the Missouri Constitution, claiming the influence of his vote in the district of his residence is not equal to that of the individual voter in other districts of the state, depriving him of equal protection of the laws. For these reasons, plaintiff further contends there are no valid districts and that he has the right to vote for the nomination and election of Representatives in Congress from the State at large. Plaintiff cites U.S. Code, Title 2, Sec. 2a(c), as follows: “Until a State is redistricted ⅛ the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: * * * (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large.” Plaintiff claims this provision applies because he says there has been no valid redistricting law enacted. Plaintiff is a resident of the Third district.

The population of the state, the districts established by the 1961 Act and their variation over and under one-tenth of the state total is as follows:

Defendants contend the provisions of Sec. 45, Art. Ill, Mo. Constitution, are not mandatory requirements for the Legislature because of Sec. 4, Art. I, of the U. S. Constitution, which they say places no such restrictions on the Legislature. However, these requirements would surely be relevant to the claim of violation of equal protection of the laws and because of the view we take we will not discuss that contention but decide this case on the assumption of its applicability. Sec. 45, provides that, after each decennial census “the general assembly shall by law divide the state into districts corresponding with the number of representatives to which it is entitled, which districts shall be composed of contiguous territory as compact and as nearly equal in population as may be.” Our Constitution makes the same requirements for state senatorial districts, Secs. 5 and 8, Art. Ill, Mo.Const.; and Sec. 7, Art. Ill, providing for a commission to make the decennial reapportionment provides that “the population of no district shall vary from the quotient by more than one-fourth thereof.” While this does not mean that variations so great would always be a fair redistricting, especially if combined with violation of the requirement of compactness, it does provide maximum and minimum standards which must not be exceeded and has some bearing upon the meaning of the requirement of “as nearly equal in population as may be.”

Plaintiff mainly relies on Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427 (and cases therein cited), in which we held invalid a senatorial redistricting by the Board of Election Commissioners of the City of St. Louis. However, we pointed out in that case: “[W]e are not dealing with a law enacted by our General Assembly, which as a coordinate branch of our government has all of the legislative power of the State except that denied it by express limitations of the Constitution. * * * [I]n this case, we are considering acts of administrative officers who have been delegated very limited legislative power for a single purpose, namely: to divide the City into senatorial districts ‘of contiguous territory, as compact and nearly equal in population as may be.’ There is even good authority for proceeding against such officers by mandamus when they have not followed mandatory constitutional provisions in district-ing.”

Nevertheless, in that case we also stated: “It is well settled that courts have jurisdiction and authority to pass upon the validity of legislative acts apportioning the state into senatorial or other election districts and to declare them invalid for failure to observe non-discretionary limitations imposed by the Constitution. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, loc. cit. 473, 146 S.W. 40, loc. cit. S3 and cases cited; Annotation A.L.R. 1337; 18 Am.Jur. 191— 201, Secs. 16-31; 16 C.J.S. Constitutional Law, § 147 p. 438. See also Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, loc. cit. 570, stating that the courts of 38 states had exercised this power. However, as these authorities show, the courts may not interfere with the wide discretion which the Legislature has in making apportion-ments for establishing such districts when legislative discretion has been exercised. It is only when constitutional limitations placed upon the discretion of the Legislature have been wholly ignored and completely disregarded in creating districts that courts will declare them to be void. In such a case, discretion has not been exercised and the action is an arbitrary exercise of power without any reasonable or constitutional basis. As said in a leading case, State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N.W. 35, 55, 17 L.R.A. 145: ‘If, as in this case, there is such a wide and bold departure from this constitutional rule that it cannot possibly be justified by the exercise of any judgment or discretion, and that evinces an intention on the part of the legislature to utterly ignore and disregard the rule of the constitution in order to promote some other object than a constitutional apportionment, then the conclusion is inevitable that the legislature did not use any judgment or discretion whatever.’ Likewise, In re Sherill, 188 N.Y. 185, 81 N.E. 124, 128, the Court said: ‘But, if the Legislature under the assumption of an exercise of discretion does a thing which is a mere assumption of arbitrary power, and which, in view of the provisions of the Constitution, is beyond all reasonable controversy, a gross and deliberate violation of the plain intent of the Constitution, and a disregard of its spirit and the purpose for which express limitations are included therein, such act is not the exercise of discretion, but a reckless disregard of that discretion which is intended by the Constitution. Such an exercise of arbitrary power is not by authority of the people. It is an assumption, and, when it is claimed that an act is thus in violation of the Constitution, a question of law is presented for the determination of this court.’ Thus, in the matter of dis-tricting, as well as in other matters, the Legislature has no authority to enact unconstitutional laws.”

Plaintiff also strongly relies on Brown v. Saunders, 159 Va. 28, 166 S.E. 105, in which a congressional redistricting was held invalid. In that case, because of the 1930 census, the number of Representatives in Congress to which Virginia was entitled was reduced from ten to nine. Virginia had been entitled to ten representatives since 1880 and the last changes in districts had been 20 years before, after the 1910 census. The court said, because of the inequality of representation, the result appeared arbitrary and noted that the Governor refused to sign the bill. (One 1961 Act was signed by the Governor.) One district had population more than one-fourth greater than the quotient of one-ninth of the population of the state while another was much more than one-fourth below the quotient. Two others showed almost as much disparity. The Court said: “It appears that no bona fide effort was made to divide the state into nine districts containing as near as practicable an equal number of inhabitants.” It said that instead all counties and cities (except three counties of small population transferred to another district) of two old districts were placed together in one district making it contain one-fourth the area and one-seventh of the population of the state, with no changes being made in any other districts, although the population of the largest was almost double that of the smallest due to population changes in the preceding 20 years.

Plaintiff’s main complaint seems to be that all three districts in St. Louis area (the City of St. Louis and St. Louis County) are above the state quotient in population. However, the St. Louis area had three Congressmen 40 years ago when the rest of the state had 13 (Secs. 10712 — 10728, R.S. 1929) ; 30 years ago when the state’s representation was reduced to 13, the St. Louis area was given three and the rest of the state ten (Secs. 12296 — 12309, R.S.1939, and Secs. 128.210-128.330, R.S.1949); likewise ten years ago when the state’s representation was reduced to 11, the St. Louis area retained three and the rest of the state had eight. (Secs. 128.201-128.311, R.S. 19S9.) Under the 1961 Act, the St. Louis area still has three and the rest of the state seven. Thus all of the reduction in representation consistently has been in the state outside the St. Louis area, and therefore the representation of the St. Louis area has been proportionately increased after each reduction in the state’s representation. It is also to be noted that the largest of the St. Louis area districts is less than two per cent above the ten per cent of the population of the state, which would be the exact proportion for absolute equality. Furthermore the St. Louis area as a whole has 30% of the state’s representation in Congress and its population is less than 34% of the state’s population. This is far different from the situation in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, where differences went as high as 19 to 1 (concurring opinion of Justice Douglas, 82 S. Ct. 1. c. 725) with no reapportionment in 60 years; or in Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, where although no reapportionment had been made since 1901 and the difference in population of congressional districts ranged from six to one to almost nine to one, the Supreme Court did not hold the districts were invalid. In the Kentucky case cited by plaintiff, Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315, disparity of population of districts reached 6 to 1, with many districts given at least twice the representation to which they were entitled and others only about half. As hereinabove shown no' district established by the 1961 Act was as much as two per cent above ten per cent of the population of the state and the lowest only about 1¼% below it. Certainly this does not show an irrational disregard of any standard of apportionment or an “invidious discrimination”. See Baker v. Carr, supra, 82 S.Ct. 1. c. 705, 725. This situation is also very different from that in State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 475, 146 S.W. 40, where the population of St. Louis divided by the state quotient entitled the City to one more senator than it was given in the redistricting of the state.

Another suggestion of plaintiff is that compactness and equality of population could better be obtained by dividing counties. However, counties are important governmental units, in which the people are accustomed to working together. Therefore, it has always been the policy of this state, in creating districts of more than one county (congressional, judicial or senatorial) to have them composed of entire counties. Sec. 5, Art. Ill, Mo.Const., specifically provides that “no county shall be divided” in making senatorial districts of more than one county. We must hold that it was proper for the legislature to follow this policy. In fact, to do otherwise could lead to the most vicious kind of gerrymander. The only departure therefrom in the 1961 Act was in our two largest cities, St. Louis and Kansas City. The northernmost St. Louis District (First) includes both city wards and county townships. In the Kansas City district (Fifth) all but four city wards and a Jackson County area between the south city limits and the southern boundary of the county (most of which is to be annexed to Kansas City) are included; the rest of Jackson County (containing a number of smaller cities) is in the Fourth district with seven other counties. Urban conditions may justify this treatment.

All of the districts established by the 1961 Act are reasonably compact except the Tenth, although the Eighth, Ninth as well as Tenth could have been improved in that respect by adjustments of counties between the Eighth and Ninth (and also either the Fourth or Sixth) on the north and between the Eighth and Tenth on the south and east. However, there are no shoe string districts such as some in Missouri forty years ago, when there were 16 districts, before Sec. 45, Art. Ill, was added to our Constitution. The 1961 Act did not attempt to reduce the number of districts by one, as did the 1932 Virginia Act, by putting two districts together and leaving the others unchanged without regard to population changes of 20 years. Our former Eleventh district was composed of 17 counties. Of these, by the 1961 Act one was .added to the Fourth district, one was added to the Ninth district, two were added to the Sixth district, three were added to the Seventh district, and the remaining ten placed in the Eighth district. However, the former Eighth district was reduced by placing one of its counties in the Ninth district and four in the Tenth district. Although the Tenth district is less compact than previously, this is due to adding two •of these counties to the north and two of these counties on the southwest. Plaintiff says that if counties to the west of the north part of the district had been added instead of the two farther south the Tenth district could have been made more compact. While this is true, the two counties to the west chosen added more to the population of the Tenth district than would the two counties suggested by plaintiff and thus brought it nearer the quotient. We cannot say this was an abuse of legislative discretion to provide more population rather than better compactness. While both compactness and population of the Tenth district could have been aided by also adding these counties plaintiff mentions and others adjoining them it must be realized that every member of the Legislature has his own views (as do his constituents) as to the district in which his county (and others with which his county has previously been associated in a congressional district) should be placed and it is not improper to consider the precedents of allocation of counties to existing districts in deciding the composition of new enlarged districts. Very likely each legislator individually would draw somewhat different district lines. Therefore, any redistricting agreed upon must always be a compromise. Mathematical exactness is not required or in fact obtainable and a compromise, for which there is any reasonable basis, is an exercise of legislative discretion that the courts must respect. Furthermore, the people of this state have a remedy for even valid redistricting, which they do not like, through our initiative and referendum provisions. Secs. 49-53, Art. Ill, Mo.Const. As above stated, it is only when constitutional limitations are completely disregarded, resulting in an arbitrary exercise of power that cannot be justified by exercise of judgment or discretion but obviously done to promote some other object than constitutional apportionment, that the courts will declare the Act unconstitutional. For the reasons we have stated, we do not find that situation here.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WESTHUES, Judge. DALTON, Presiding Judge

license: Public Domain

text:
    Joyce STRATTON, Respondent, v. KANSAS CITY, Missouri, A municipal Corporation, Appellant
    No. 48857.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Keith Wilson, Jr., City Counselor, Robert A. Meyers, John J. Cosgrove, Associate City Counselors, L. B. Saunders, Asst. City Counselor, for appellant.
    James H. Ottman, David H. Clark, Kansas City, for respondent. Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
   WESTHUES, Judge.

Plaintiff Joyce Stratton filed this action against Kansas City, Missouri, seeking damages for personal injuries alleged to have been sustained when she fell on a sidewalk in the 400 block on 14th Street in Kansas City, Missouri. In the prayer of the petition, plaintiff asked for $50,000. A trial resulted in a verdict for the defendant. Plaintiff’s motion for new trial was sustained and the defendant City appealed.

In a previous trial, there was a verdict for plaintiff for $15,000. On appeal, the judgment was reversed and the cause remanded for retrial. See Stratton v. City of Kansas City, Missouri, Mo., 337 S.W.2d 927, where, in an opinion of this court, a detailed statement of the facts may be found.

In the case before us, the trial court sustained plaintiff’s motion for new trial on the ground that instruction No. 5, given at defendant’s request, was erroneous. In plaintiff’s brief, it is claimed that instruction No. 6, given at defendant’s request, was also erroneous and justified the granting of a new trial. Before considering the instructions, we shall state facts necessary for a disposition of the points briefed.

Plaintiff was employed by the Red Shield Nursery, a department of the Salvation Army. Plaintiff’s duties required her to take a group of small children to class at the Franklin School. On January 18, 1955, at about 11:30 a. m., plaintiff, with a group of children, was on her way from the school to the nursery; while the group was in the 400 block on 14th Street, plaintiff fell on the sidewalk and was injured. Plaintiff testified that the cause of her fall was a defective sidewalk.

There was substantial evidence to sustain a finding that plaintiff’s fall and injury were due to a defect in the walk and the evidence justified a submission of the question of liability to a jury. We so held in the previous opinion on the first appeal. See 337 S.W.2d 1. c. 930(3).

Defendant claimed that the sidewalk was in a reasonably safe condition; that plaintiff was guilty of contributory negligence; and that her fall was caused by a general condition of snow and ice.

To sustain its theory, defendant introduced evidence that the sidewalk was in a reasonably safe condition. It was conceded that snow had been falling all morning of the day in question and that at the time of plaintiff’s fall, the snow was from two to three inches in depth. There was evidence that the sidewalk was covered with snow; also that parts of the walk could be seen and that there was a path through the snow about the center of the walk. Plaintiff testified that she could see parts of the walk; that the cause of her fall was not the snow but the defective sidewalk. Note what she said:

“A I stubbed my toe on an object, Mr. Meyers, that did not move, and fell.
⅜ ⅜ ⅛ ⅜ * *
“Q Was this object that you struck, what was it?
“A It was the sidewalk.
“Q It was an edge of the sidewalk ?
“A It had to be because it didn’t move, it couldn’t have been anything else or it would have moved.
⅜ * * * * *
“A I saw the broken sidewalk, partially covered with snow in places.
“Q And you stepped and put your foot right against the broken sidewalk ?
“A Yes, sir, I did, I stumped my toe on the sidewalk, I caught it.”

Plaintiff’s cause was submitted to the jury on the theory that the sidewalk at the point in question had become rough and uneven and that the sidewalk was dangerous and defective and not reasonably safe for the ordinary use of the public. Defendant requested, and the court gave, instruction No. 5 which the trial court deemed erroneous in his order for a new trial. The instruction reads: “The Court instructs the jury that a city is not required to keep its sidewalks in such an absolutely safe condition as to insure the safety of travel, or free from all slight or trivial defects, but is required to use ordinary care to keep sidewalks in a reasonably safe condition.

“Therefore, you are further instructed that if you find and believe from the evidence that the sidewalk where plaintiff claims to have fallen was in a reasonably safe condition for travel, and if you further find plaintiff fell because of a general condition of snow or ice, then your verdict must be for the defendant.”

In respondent’s brief, it is stated:

“A. Instruction No. 5 is erroneous for the reason that it permits the jury to exercise a roving commission, to speculate, without the hypothesization of facts or, for that matter, without any evidence in support, as to the cause of Respondent’s fall, and was prejudicial in that it misled and confused the jury. (Omitting citations.)
“B. Instruction No. 5 is erroneous for the further reason that it is not a true converse instruction as it goes beyond the mere negativing of Respondent’s verdict directing instruction or of an essential element of said instruction. (Omitting citations.)”

If we omit from the instruction the clause, “and if you further find plaintiff fell because of a general condition of snow or ice,” instruction No. 5 would constitute a true converse of plaintiff’s instruction and theory of recovery. Plaintiff’s theory was at the trial, and is on this appeal, that the sidewalk was in a dangerous condition and not safe for ordinary use. An essential element of recovery was that the sidewalk was not in a reasonably safe condition. Instruction No. 5 informed the jury that if the jury found as a fact that the sidewalk was in a reasonably safe condition then a verdict for the defendant was authorized. That is a true statement of the law. See Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 1. c. 564, 565 (1, 2), and authorities there cited. See also Luettecke v. City of St. Louis, 346 Mo. 168, 140 S.W.2d 45, 1. c. 48, 49(2-4). Respondent’s contention that the instruction permitted the “jury to exercise a roving commission, to speculate, without the hy-pothesization of facts,” is without merit. The jury was required to find, before authorizing a verdict for the defendant, that an essential element of plaintiff’s case was not supported by the evidence. McCarty v. Milgram Food Stores, Mo., 252 S.W.2d 343.

Now we reach the question, did the clause (which is in the conjunctive), “and if you further find plaintiff fell because of a general condition of snow or ice,” render the instruction prejudicially erroneous? In our opinion, it did not.

Respondent, in the brief, says that “Appellant claims that this second phrase is not error for the reason that (1) there was evidence to support this submission and (2) appellant assumed a greater burden than necessary. If the former contention is true, which Respondent denies, then Appellant should have hypothesized those facts allegedly in evidence for the jury to find rather than submitting the conclusion of ‘general condition of ice and snow’.”

The record disclosed that all parties agreed that snow had been falling all morning of the day plaintiff fell. Plaintiff so testified that she saw children making snowballs and trying to skate; that there were places on the sidewalk where the snow was packed. At the trial, she denied that snow or ice caused her to fall. In our opinion, the record shows that plaintiff had made claims before her case was filed that she had fallen on a sidewalk covered with snow and ice. Plaintiff’s notice to the City of her injury contained the following which was read into the record by plaintiff: “ 'by means of falling over a defective condition in the sidewalk which was covered by snow and ice on the north side of 14th Street approximately in front of 408 West 14th Street, or about ten feet east of the east curbline of the alley to the east of Franklin School.’ ”

A police officer, who arrived on the scene a few minutes after plaintiff fell and while plaintiff was still lying on the sidewalk, testified for the defendant. Note his evidence:

“Q And did you ask the lady how she happened to fall, do you recall that?
“A Yes, I did ask her what happened, there at that time.
“Q What did she say?
“A She stated that she had fell on the snow there at that location.”

A witness, Agnes McMahon, an employee at General Hospital, testified that the clinical history of plaintiff at the time of her admittance contained a note to the effect “ ‘29-year-old white female slipped and fell on the ice about 11 a. m. this morning. Immediately noted considerable pain in right hip region. Also couldn’t move the leg without causing increased pain.’ ” Another notation read: “Fall on street short time ago.” We rule that the evidence of the police officer to the effect that plaintiff told him a few minutes after her fall that she had fallen on the snow, the notice to the City of her injury wherein it was stated that plaintiff had fallen over a defective condition in the sidewalk which was covered by snow and ice, plaintiff’s evidence that she saw children throwing snowballs and trying to skate, and the notation in the hospital record were sufficient evidence to support a finding that plaintiff’s fall was due to a general condition of snow or ice. Instruction No. 5 was not erroneous for lack of evidence to support the finding required therein. Furthermore, we rule that the additional finding requiring that “plaintiff fell because of a general condition of snow or ice” to justify a verdict for the defendant was a burden unnecessarily assumed by the defendant. A finding that the sidewalk was in a reasonably safe condition was a complete defense. We find nothing in the clause in question that was likely to misdirect or confuse the jury. A finding that “plaintiff fell because of a general condition of snow or ice” is equivalent to a finding that the cause of her fall was the snow or ice. The words “because of” are defined in Webster’s Third New International Dictionary to mean “by reason of” and “on account of.” The instruction as a whole required the jury to find, in order to return a verdict against plaintiff, that plaintiff’s fall was due to the snow or ice and that the sidewalk was in a reasonably safe condition. The instruction contained no misstatement of the law. Such a conjunctive finding was not prejudicial to plaintiff’s rights. Glowacki v. Holste, Mo., 295 S.W. 2d 135, 1. c. 140(4—6) ; Harboum v. Katz Drug Company, Mo., 318 S.W.2d 226, 1. c. 233(9).

Plaintiff, in the brief, says that instruction No. 6 was erroneous because it “erroneously gave the jury a roving commission to speculate on what conditions confronted Respondent at a time when the dangerous and unsafe sidewalk was concealed wholly or partially by snow.” Instruction No. 6 reads as follows: “The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in evidence there was a raised place in the sidewalk, and if you further ■find that plaintiff was, or by the exercise of ordinary care, could have seen said raised place, if any, and if you further find that plaintiff knew, or, in the exercise of ordinary care, could have known that said raised place, if any, rendered said sidewalk dangerous and unsafe for use by one in the exercise of ordinary care for her own safety, in. time to have stepped over or around the same in safety by the exercise of ordinary care, but failed so to do, and if you further find that plaintiff was thereby negligent, and if you find that such negligence, if any, directly caused or directly contributed to cause her fall and injury, if so, then your verdict must be for the defendant.”

Plaintiff’s requested instruction No. 1, given by the court, contained the following language which authorized a plaintiff’s verdict on the theory that if “the public sidewalk at a point” in question “from any cause whatever had become rough and uneven, if so, so that there was a raised place or places of approximately one and one-half inches between one portion of said sidewalk and that portion of said sidewalk immediately adjacent thereto,” caused plaintiff’s fall and injury. It is evident that plaintiff claimed that raised places in the sidewalk rendered it unsafe. On the question of whether there was any evidence to sustain a finding of contributory negligence, we find that plaintiff had passed over this sidewalk regularly for several years. She testified that she knew its condition; further, that on the day in question, she had in mind that the sidewalk was unsafe. Note her evidence as to what she did as she and the children reached the sidewalk: “ * * And I stopped the children because of the condition of the sidewalk, that we were coming onto. I didn’t want them playing around in that broken part of the sidewalk as I was afraid they might fall. I didn’t want them to get wet or to hurt themselves, and when I did so, I — of course I was turned around facing the children and they were lined up in twoes behind me, in couples, and I told them to be very careful, to watch me, to do as I did, to pick their feet up and to put them down carefully as we were going to go across the bad sidewalk. And I turned around and I made, I think it was two steps and all of a sudden my right toe struck a solid object in the sidewalk, which did not move, and caused me to lose my balance and I fell * * *.

“ * * * Q Now, Mrs. Stratton, did you, after you turned around, and took those steps, did you slip or slide on any snow, ice or anything else to cause your fall?
“A There was no ice, and I did not slip. There was nothing to slip on.” (Emphasis supplied.)

Note her evidence on cross-examination:

“Q Was the entire sidewalk covered with snow or with — was anything protruding out of it?
“A No, the entire sidewalk was not covered with snow, Mr. Meyers, there was a path of footsteps and part of the sidewalk was showing.
“Q Was what?
“A Showing.
“Q Part of the sidewalk was showing?
“A. You could see it. Part of the sidewalk.
“Q And was it in this pathway that — where you could see part of the sidewalk that you struck your foot on the sidewalk?
“A Yes, sir.”

We rule that plaintiff’s evidence justified an instruction on contributory negligence and further that the jury was not given a roving commission to find for the defendant.

Plaintiff, in the motion for new trial and in the brief stated that “(a) Instruction No. 6 erroneously directs a verdict in favor of the defendant if the jury find that plaintiff in the exercise of ordinary care saw or should have seen ‘a raised place in the sidewalk,’ thereby placing a burden upon plaintiff to have avoided any and all raised places, whether concealed or unconcealed, if plaintiff saw or should have seen ‘a raised place.’ ” Instruction No. 6 informed the jury, in substance, that if plaintiff could, in the exercise of ordinary care, have discovered the raised portion of the sidewalk and in the exercise of ordinary care could have stepped over or around the raised portion and failed to do so, and that such failure was negligence and that such negligence caused her to fall and to be injured, the verdict should be for the defendant. We deem it immaterial whether the sidewalk was covered with snow. Plaintiff testified that she knew of the defects and the raised portion and further that where she fell there was no ice on the sidewalk and nothing to slip on. We rule that the evidence justified the instruction as written.

The court gave an instruction specifically covering the subject of the burden of proof on contributory negligence. The jury was told in plain language that the burden of proof was on defendant to show that plaintiff was negligent. Instruction No. 6 was not prejudicially erroneous.

Plaintiff’s theory of recovery and the City’s theory of defense were fairly submitted to the jury by the instructions.

The order granting a new trial is reversed with directions to the trial court to reinstate the verdict of the jury and to enter a judgment for the defendant. It is so ordered.

HOLLINGSWORTH and HYDE, JJ., concur.

DALTON, P. J., dissents in separate opinion filed,

DALTON, Presiding Judge

(dissenting).

It is with regret that I find it necessary to dissent in this case. As indicated in the opinion, Instruction No. 5 closed with the words “and if you further find plaintiff fell because of a general condition of snow or ice, then your verdict must be for the defendant.” (Italics ours.) The trial court granted the plaintiff a new trial because of error in the giving of this instruction.

I regard the closing portion of this instruction to be legally and factually erroneous. In fact I find this closing part of the instruction to be confusing and misleading and, to me, it does not make good sense. How could a general condition of ice or snow be the direct and proximate cause of plaintiff’s fall on the particular sidewalk and at the particular time? The conditions existing where she fell may have been general throughout the city, but she did not fall by reason of these general conditions. She fell because of specific conditions existing on the sidewalk at the place where she fell, and the evidence of both parties was directed to the particular conditions there existing. There was no testimony that the exact conditions existing at this particular place existed any place else in the city.

It therefore seems to me that this portion of the instruction was inconsistent with the theory of either party as evidenced by the testimony offered concerning the cause of plaintiff’s fall.

As indictated, plaintiff’s testimony tended to show that she stumped her toe on a portion of the broken and uneven sidewalk where she saw “the broken sidewalk partially covered with snow in places.” It is true that defendant’s evidence supported the theory that the sidewalk at the place in question was “in a reasonably safe condition for travel”; however, defendant offered testimony that plaintiff told various witnesses that she “fell on the snow there in that location.” (Italics ours.) There was also evidence that she had said that she “slipped and fell on the ice about 11 a. rrr. this morning.” There was no testimony in the record from which the jury could find that plaintiff fell “because of a general condition of snow or ice” throughout the city. There was conflicting evidence as to the specific conditions at the specific place where she fell, but she either fell by reason of stumping her toe on a portion of the rough and uneven sidewalk or she fell at the particular place because of ice or snow at that particular point. Defendant’s evidence further tended to show the specific conditions at the specific place, but, even in argument, appellant city insists “that plaintiff had fallen because of snow or ice on the sidewalk instead of any defective condition therein.” (Italics ours.) One of defendant’s witnesses testified that there was “a path of packed down snow” approximately two feet wide in the middle of the sidewalk. Another witness for defendant testified to slush and rock salt on the sidewalk.

Defendant also offered a witness who testified that a boy running down the sidewalk bumped into plaintiff and caused her to fall. Clearly there was no testimony by anybody that the general conditions of snow and ice in the city caused plaintiff to fall as contrasted with specific conditions shown to exist at the point where she fell. All of the evidence was directed to the condition of the sidewalk where she fell, either supporting her testimony or the position of the city with reference to conditions at that point. While we agree that there was evidence of a general condition of snow or ice existing in the city, it is our position that there is no evidence from which an inference could be drawn or the jury could find that these general conditions, unless they specifically existed at the point where plaintiff fell, could have been the direct and proximate cause of her fall.

The majority opinion reaches the conclusion that, because of the conjunctive submission of this closing portion of this instruction with a portion that is not subject to criticism, therefore, plaintiff’s rights could not have been prejudiced. We think that matter was for the trial court, and the fact that the trial court granted a new trial because of this instruction is certainly some evidence that the court considered the instruction prejudicial to plaintiff’s rights even though this confusing, misleading and improper statement was conjunctively joined with a proper statement of the law and a proper submission of facts.

Since the instruction was not technically correct and was unsupported by evidence tending to show that conditions throughout the city, other than on the particular sidewalk, had anything to do with plaintiff’s fall, we think it was within the trial court’s discretion to grant plaintiff a new trial. Further, we think the trial court was in a far better position to determine whether plaintiff’s rights were prejudicially affected by this closing portion of the instruction than is this Court, and this Court should defer to the finding of the trial court that the instruction was erroneous and in granting plaintiff a new trial. It is well settled that this Court will be much more liberal in sustaining a motion for a new trial where granted by the trial court than in granting a new trial to an appellant where the trial court has overruled his motion for a new trial.

I would affirm the order granting plaintiff a new trial.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    Richard G. LEWIS and Frances E. Lewis, Appellants, v. Rolla STEPHENS, Norman Petersen, Floyd Scott, C. T. Kelly and Southwest Investment Company, a corporation, Respondents.
    No. 49270.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.

      Charles D. Tudor, Joplin, for appellants.
    Stanley P. Clay, Joplin, for respondents.
   STOCKARD, Commissioner.

Plaintiffs have appealed from an adverse judgment in their suit to quiet title in them to certain real estate in Jasper County, Missouri. A statement of the background of this litigation is necessary to an understanding of the issues.

In December 1952 Joe D. Merrick, then a minor, purchased the property in question, which was a house and lot, from Billie J. Swiney and Ruby Irene Swiney for $4,500. Merrick made a down payment of $1,100 and paid certain expenses of the transaction. He paid the balance of the purchase price by executing a note in the amount of $3,400, secured by a deed of trust on the property, payable to C. T. Kelly, which by subsequent endorsements became the property of Rolla E. Stephens. Merrick was married in February 1953 and he and his wife moved into the house. He was separated from his wife four months later .and she obtained a divorce in January 1954. Merrick reached his majority on March 1, 1954, and on March 23 he filed suit in two counts against the Swineys, Rolla E. Stephens, and certain others who are nominal parties. In Count I he alleged that he “does now repudiate any and all contracts and agreements entered into by him in connection with the foregoing transaction while he was a minor,” and he sought to recover from the Swineys and Rolla E. Stephens the sum of $1,262.96 which was the amount of the down payment and expenses paid by him. In Count II he alleged that “he does now repudiate said note and deed of trust,” and he sought a judgment against Rolla E. Stephens in the amount of $225, the amount he had paid on the note.

The Swineys were in California, and on the theory that his disaffirmance of the purchase of the property had reinvested them with title thereto, Merrick obtained service by attachment against the property. On June 17, 1954 the trial court made the following minute entry: “Jury waived. Trial by Court. Judgment by default for plaintiff against defendants Billie J. Swiney and Ruby Irene Swiney in the sum of $1,100.00 and costs. Attachment sustained. Special fieri facias ordered and property ordered sold.” There is no copy of this judgment in the transcript, which apparently was interlocutory because Stephens was also a defendant. See Sections 511.110 and 511.130 RSMo 1949, V.A.M.S., then applicable, and Civil Rules 74.045 and 74.-08, effective April 1, 1960. On July 8, 1954, according to a minute entry, Merrick dismissed Count I as to Rolla E. Stephens, but there was no order that there should be a trial of Count I separate from Count II, and no final judgment was entered as to Count I, or at least there is none shown in the record before us. In any event, on July 9 special execution was issued by the clerk, and the property was levied upon and sold by the sheriff on September 9, 1954 to Richard G. Lewis and Frances E. Lewis, the plaintiffs-appellants in the pending action.

As to Count II, after the disposition of several motions, Rolla E. Stephens and the nominal defendants filed an answer on June 21, 1956 in which they asserted that even though he was a minor, Merrick was not entitled to disaffirm the note or the deed of trust. By way of counterclaim Stephens also asserted that Merrick had defaulted in his payments on the note and according to its terms the unpaid balance of the principal was due. It was then alleged that “defendants, Richard G. Lewis and Frances E. Lewis, husband and wife, have or claim some interest in or lien upon the premises described in said deed of trust which defendant, Rolla Stephens, asserts is junior and subject to his mortgage lien herein asserted.” How and in what manner they became “defendants” in the suit, if they did, is not revealed by the transcript. Minute entries show that they were made “3rd party defts,” that a motion to quash the service on them was sustained, and that then a motion “to add 3rd party defts [was] overruled.” The judgment of the trial court, entered on September 16, 1959, “in reference to Count II” was that “plaintiff take nothing by his writ,” and that “in reference to defendant’s counterclaim * * * the plaintiff, Joe D. Merrick, is indebted to the defendant, Rolla Stephens, on account of the debt in said deed of trust on the property * * * in the sum of * * * $3,175.00 along with interest * * * [in] a total sum of * * * $4,239.63, the debt aforesaid found to be due, together with costs herein, to be levied on the real estate in the said deed of trust described, and the said real estate to be sold by the sheriff under special execution, * * * ” On appeal by Merrick from the above judgment the Springfield Court of Appeals ruled on July 30, 1960 that he “should be held to his contract and the judgment should be affirmed.” Merrick v. Stephens, Mo.App., 337 S.W.2d 713. In the meantime, on May 23, 1960, pursuant to a special execution based on the judgment entered September 16, 1959, and from which the appeal was then pending in the Springfield Court of Appeals, the sheriff levied on the property and sold it for $600 to Southwest Investment Company.

With this background, we turn now to. the suit resulting in this appeal. Richard G. Lewis and Frances E. Lewis, the purchasers, at the sheriff’s sale on September 9, 1954,. filed suit against Stephens, and others,, and in which Southwest Investment Company has by agreement been added as defendant, in which they allege that by reason of the sale to them they are “the owners in fee simple absolute” of the property in question, but that the defendants claim an. interest therein. They then allege that when Merrick purchased the property and signed the note and deed of trust he was a minor; that he repudiated the purchase and his obligations under the note and' deed of trust; that he obtained a judgment against the Swineys and the property was-sold to them under special execution; and1, that the court should quiet title to the property in them. The answer of Southwest-Investment Company was in effect a denial* of plaintiffs’ claim and an assertion that it is the owner of the property by reason of the sale to it on September 16, 1960. It also-sought by counterclaim to recover $500' damages for the wrongful withholding of' the property. The trial court found “the-issues for defendants * * * and against, plaintiffs on plaintiff’s petition” and it disallowed the counterclaim. It also decreed that fee simple title to the property was in. Southwest Investment Company. The Lew-ises have appealed.

The contention of the appellants on this-appeal is premised on the proposition that when Merrick disaffirmed the purchase of" the property, “the conveyance to him by Swineys was void ab initio so that as far as the title to the real estate was concerned' Joe D. Merrick at no time was ever possessed with any rights of ownership in said" real estate * * * [and] could not execute a deed of trust which would encumber-the real estate.” They argue that the ruling of the Springfield Court of Appeals that Merrick should be held to his contract on the note and deed of trust “in no way affected or attempted to affect the title to the real ■estate” because, as we understand their argument, title was reinvested in the Swin-■eys by the disaffirmance, and that while the note has been held to be a valid contract it purports to be secured by a deed of trust •on property in which the maker had no title, and the sale to Southwest Investment Company passed only such title that Merrick had in the property and he had none.

It is apparent that the factual situation was such that in the suit by Merrick against the Swineys, Stephens and others, the trial court should have exercised its discretion and not permitted separate trials of Count I and Count II. See section 510.180 RSMo 1949, V.A.M.S., then applicable, and Civil Rule 66.02, now effective. As a result of permitting separate trials, with or without an order to that effect, we have what purports to be a final judgment by default that Merrick disaffirmed the purchase of the property, at least as to the Swineys, and what purports to be a final judgment that he was not entitled to disaffirm the note and deed of trust which were executed as a part of the purchase transaction.

We shall assume that as between Merrick and the Swineys there was a valid disaffirmance by Merrick of the purchase of the property, that a valid attachment was obtained by Merrick against the Swineys, and that there was a valid levy and sale to appellants of the interest in the property of the Swineys. Even so, we must agree with the Springfield Court of Appeals that the result of the disaffirmance by Merrick of the purchase, as between himself and the Swineys, did not destroy the validity of the deed of trust or its application to the property. The reasoning by which that court reached this conclusion, as set out in Merrick v. Stephens, supra, 337 S.W.2d at p. 718, is as follows: “The mortgage given by [Merrick] * * * was part of ‘one complete transaction’ which involved the transfer of title to [Merrick]. [He] could not get title until he gave the mortgage. In practical effect [Merrick] took the title subject to the lien. * * * The purchasers [appellants in this case] at the special execution sale [of September 9, 1954] did not acquire any equities of the infant [Merrick], They took the title subject to the state of the record which showed this mortgage. They bought under the rule of caveat emptor.” Whether we follow the above reasoning of the Springfield Court of Appeals or whether we consider that Merrick acquired title to the property and then executed the note secured by the deed of trust on the property, the result is the same. Deeds and other instruments affecting title to real estate executed by a minor are not void but are voidable only. Merrick v. Stephens, supra, 337 S.W.2d at p. 717; Windisch v. Farrow, Mo.App., 159 S.W.2d 392; Mutual Bank & Trust Co. v. Stout, Mo.App., 231 S.W.2d 274 ; 43 C.J.S. Infants §§ 36 and 51. In view of the ruling by the Springfield Court of Appeals that Merrick was not entitled to disaffirm his note and deed of trust, each instrument has the same validity it would have had if executed by Merrick after he had reached majority. We consider the situation here to be the same as where a minor purchases real estate and then after reaching his majority executes a note secured by a deed of trust on the real estate. It is usually held that in such circumstances the former minor cannot thereafter disaffirm the sale. Wright v. Hepler, 194 N.C. 542, 140 S.E. 90. Where he purports to do so by obtaining a default judgment against the grantor, such disaffirmance would not, in our opinion, affect the validity of the deed of trust or remove its effect on the title to the real estate. In this case Merrick had the same legal capacity to execute a valid note and deed of trust that he would have had if he had reached his majority, and his subsequent disaffirmance did no more than reinvest title in the Swineys subject to the deed of trust. Therefore, when the property was sold on September 9, 1954 pursuant to the special execution the purchasers acquired only the interest of the Swineys, which was subject to the deed of trust, 33 S.J.S. Executions § 287. The subsequent sale upon special execution to foreclose that deed of trust extinguished the interest which the Lewises had acquired subsequent to the deed of trust with at least constructive knowledge thereof. S. S. Kresge Co. v. Shankman, 240 Mo.App. 639, 212 S.W.2d 794.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: WESTHUES, Chief Justice.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. The Honorable Richard C. JENSEN, Judge of the Circuit Court of Jackson County, Division 13, at Independence, Missouri, Respondent.
    No. 49513.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1962.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for relator.
    James Daleo, Jack L. Simms, Kansas City, for respondent.
   WESTHUES, Chief Justice.

The State of Missouri at the relation of the State Highway Commission instituted this proceeding in prohibition in this court to restrain the Honorable Richard C. Jensen, Circuit Judge of Jackson County, from enforcing a subpoena duces tecum directed to three persons in connection with a notice to take depositions. The position of relator is that the material sought is privileged under Supreme Court Rule 57.01, V.A.M.R., for the reason that it is a work product prepared in anticipation of litigation.

Respondent says that the material sought to be obtained is not exempt as a work product and is such as may be produced under S.Ct. Rule 57.20.

The question grew out of a condemnation proceeding instituted by the State Highway Commission to acquire land for road purposes. The suit was filed on December 12, 1958, wherein the State Highway Commission was plaintiff and the defendants, among others, were Sarah Tenenbaum, Angelo A. Vitale, and Frances Vitale, as having an interest in property located at 3213 Truman Road, Jackson County, Missouri. Commissioners were appointed to assess damages. On February 27, 1959, the report of the commissioners was filed. The State Highway Commission and the Vitales filed exceptions to the award made by the commissioners. On February 15, 1962, defendant Angelo A. Vitale filed interrogatories to relator herein as to whether relator’s agents, servants, or employees inspected or caused to be inspected the prop-i erty of Vitale, the names of the persons inspecting the property, and the results of such inspections. In response to the interrogatories, relator’s attorney supplied under oath the names of Walter F. Page and Vincent J. O’Flaherty, professional real estate appraisers, as having been employed to inspect and appraise the property; that Henry Schoenfeld, a dealer in restaurant equipment, was employed to inspect and appraise the fixtures on the property in question; further, that these parties were expected to be used as witnesses in the trial.

On April 3, 1962, notice was served on relator to take depositions of the three persons named supra. An order was issued by the respondent Judge, which is the subject matter of this prohibition proceeding, requiring the persons named above to produce “Any and all records of any kind or nature including but not necessarily limited to letters, memoranda or notes pertaining to appraisal, inspection and/or observation of property located at 3213 Truman Road.”

In determining the question of whether the order of the respondent Judge calls for material which is privileged as a work product, we shall keep in mind that the three persons named in the order were employed by relator approximately ten months prior to the date the report of the commissioners was filed, and before the con-i demnation suit was brought. The ques-i tion then is, do the provisions of Supreme Court Rule 57.01, to the effect that “The examining party may not inquire as to the contents or substance of statements, written or oral, obtained from prospective witnesses by or on behalf of another party. The production or inspection of any writing obtained or prepared by the adverse party or coparty, his attorney, surety, indemnitor, or agent, in anticipation of litigation or in preparation for trial,” apply to the situation before us? We are of the opinion that the rule applies.

The principal duties of the State Highway Commission are the construction and the maintenance of roadways, Sec. 227.030, V.A.M.S. Incident thereto is the power of condemning property for road purposes. Sec. 523.010, V.A.M.S., which is applicable to the relator State Highway Commission, authorizes the filing of condemnation proceedings only in such cases where the condemnor “and the owners cannot agree upon the proper compensation to be paid.” Kansas City, St. Joseph & Council Bluffs R. R. Co. v. Campbell, Nelson & Co., 62 Mo. 585. That no agreement could be reached is a jurisdictional fact and must appear of record. Greene v. St. Louis County, Mo., 327 S.W.2d 291, 1. c. 299, 300 (12); State ex rel. State Highway Commission v. Williams, Mo.App., 69 S.W.2d 970, 1. c. 971 (1, 2).

Under the law, the relator State Highway Commission was not authorized to file a condemnation suit to appropriate the property in question unless an agreement could not be reached as to the compensation to be paid the owners. Relator would not be in a position to bargain with the owners until it had, through its agents, made an investigation as to the value of the property. In such a situation, the con-demnor, herein the State Highway Commission, was justified in anticipating that litigation might follow. In the circumstances, we rule that the work product in question is privileged as having been prepared by relator’s agent in anticipation of litigation.

In the brief, respondent argues that since the “work product” involved was prepared ten months prior to the time exceptions to the report of the commissioners were filed, relator is not protected by S.Ct. Rule 57.01, supra. Note what respondent says in the brief: “Respondent submits further that the documents and writings called for under subpoenas duces tecum were not prepared or caused to be prepared by the Relator, its attorney, surety, indemnitor or agent. Under Rule 57.01, in preparation for or anticipation of litigation, Relator did not have reasonable grounds to believe there would be litigation in this case. The Relator maintains that it hired the subject witnesses for the purpose of giving testimony at the trial of exceptions filed in this case. This, of course, was denied by Respondent’s return. There would be no litigation to which Relator refers until after the filing of exceptions and they could not reasonably believe that exceptions would be filed until after the report of the duly appointed commissioners was filed.”

If the rule were interpreted as respondent contends it should be, then in every con-¡ demnation case the condemnor could be compelled under subpoena duces tecum to disclose the work product made by its employees or agents during the negotiations to reach an agreement as to the amount of compensation to be paid to the owner. Any wortc product made by agents of the con-demnor, after suit is filed, would of necessity, to a great extent, be a duplication of that made prior to filing suit. An interpretation such as contended for by respondent would not be just and would defeat the purpose of Rule 57.01. For a general discussion of what is privileged or not privileged, see 27 C.J.S. Discovery § 72,. pp. 224-233.

Respondent contends that the material' sought under the order of subpoena duces tecum may be produced under S.Ct. Rule 57.20. Note respondent’s argument in the brief: “Respondent seriously contends that, for the purpose of co-ordinating our rules-in keeping abreast, if you please, with the modern trend of liberalization of our rules-of discovery and also keeping in mind that this Honorable Court, since the inception of its new rules of civil procedure, has not expressed itself as to the scope and meaning of Rule 57.20, said rule should be read and interpreted along with and in connection with Rule 57.01.

“Pointedly stated, Rule 57.20 in keeping with the liberalization of discovery should be construed along with Rule 57.01, in that discovery may be had of writings and documents which may reasonably tend to lead to admissible evidence. This may be done by this Court at this time in the interests of justice, fairness and in the expediting of litigation. At the same time, it would come completely abreast with the Federal Rules of Civil Procedure from which it was initially patterned.”

We agree with respondent’s statement to the effect that “Rule 57.20 * * * should be read and interpreted along with and in connection with Rule 57.01.” The portion of Rule 57.01, to the effect that “The examining party may not inquire as to the contents or substance of statements, written or oral, obtained from prospective witnesses by or on behalf of another party. The production or inspection of any writing obtained or prepared by the adverse party or coparty, his attorney, surety, ini demnitor, or agent, in anticipation of litigation or in preparation for trial,” specifically protects a work product which is privileged. Said Rule 57.20 in no way abrogates or curtails those provisions. There is not a word in Rule 57.20 that tends to do so.

We therefore rule that the material sought to be obtained by the order of the respondent Judge is protected and privileged under S.Ct. Rule 57.01. It follows that our preliminary rule in prohibition should be made absolute. It is so ordered.

All concur.


author: EAGER, Judge.

text:
    STATE of Missouri at the Relation of J. C. BRESHEARS et al., Relators, v. MISSOURI STATE EMPLOYEES’ RETIREMENT SYSTEM, Respondent.
    No. 49505.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1962.

      Morris E. Osburn, Robert L. Hawkins, Jr., Graham & Hawkins, Jefferson City, for relators.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Judge.

This is a proceeding in mandamus, in which we granted an alternative writ. Relators moved for judgment on the pleadings, and from the petition and return the following facts appear: that Relators represent a class of approximately 1,850 former state employees who were eligible to become and did become members of the Missouri State Employees’ Retirement System (§§ 104.310-104.600, RSMo 1959, V.A. M.S., being Laws 1957, p. 706 et seq.) established in 1957; that they all retired prior to October 13, 1961, without electing to receive accumulated contributions in a lump sum as permitted under § 104.380(3), but did accept the annuity provisions of the Act; that each of them has since been paid upon the annuity formula provided by § 104.390, namely, a sum computed at five-sixths of one percent of the member’s average compensation multiplied by the number of years of his creditable service; that from the effective date 'of the Act ini 1957 payroll deductions of 4% were regularly made from the Relators up to the times of their respective retirements; that the legislature in 1961, and effective October 13, 1961, amended § 104.390 of the said Act, so as to read, in part: “The normal annuity of a member shall equal one per cent of the average compensation of the member multiplied by the number of years of creditable service of such member, * * * provided, however, that the annuity of any member shall never exceed two-thirds of the compensation being paid to members of the general assembly.” So far as this case is concerned, the only change was to increase the five-sixths of one percent to one percent, as used in the basic calculation. The contribution required of active members was not thereby increased, and, of course, Relators have not made contributions since retirement. Relators have requested payment of annuities on the increased basis effective October 13, 1961, but this has been refused, largely by reason of an Attorney General’s opinion that an increased payment to them would be unlawful. The reasons will be developed in our subsequent discussion. It has been alleged and admitted that the existing funds were adequate to make such payments, but the Respondent (to whom we shall sometimes refer as the “Board”) further asserts that such payments “might result in depletion of the fund to such an extent that it would be required to increase the amount of contribution” by present, active employees. As stated, their contributions are now at the rate of four percent, but the percentage is not limited by the Act, as is the State’s.

The issue has been thus stated rather simply. Its resolution is not so simple. Relators assert here, in substance: that the legislature clearly intended to include the annuities of retired members in providing for the increase; that the enactment, as thus construed, violates no constitutional provisions; that the relationship between the State and its employees, including Re-lators, constitutes a contract founded upon the offer by the State and its acceptance by all participating employees, and, in effect, that the contract was amended for the benefit of all employees with no further consideration required; also, that the funds, having reached the Board, have ceased to be “public money.” The Board insists: that mandamus is not the proper remedy; that the amendment operates only prospectively and should not be construed to be applicable to any persons who had retired prior to its effective date; that, if construed as applicable to them, it would be violative of § 39(3), Art. 3 of the Mo. Constitution; and finally, that so construed, the amendment would be violative of the constitutional provisions requiring due process and prohibiting the impairment of contracts, in so far as it affects those members who had not retired prior to October 13, 1961, and have contributed to the fund; particularly noting § 104.540 of the Act.

At this point we quote, for convenience, the applicable portions of § 39(3), Art. 3 of the Constitution and the section of the Retirement Act last referred to: “Section 39. The general assembly shall not have power: * * * (3) To grant or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or contractor after service has been rendered or a contract has been entered into and performed in whole or in part; * * ” Section 104.540, supra, is as follows: “1. All payroll deductions and deferred compensation provided for under sections 104.-310 to 104.550 are hereby made obligations of the state of Missouri. No alteration, amendment, or repeal of sections 104.310 to 104.550 shall affect the then existing rights of members and beneficiaries, but shall be effective only as to rights which would otherwise accrue hereunder as a result of services rendered by an employee after such alteration, amendment, or repeal.”

Mandamus is a discretionary remedy. Ordinarily, where we have issued the alternative writ, we follow through to a final decision. State ex rel. Phillip v. Public School Retirement System of City of St. Louis, Banc, 364 Mo. 395, 262 S.W.2d 569, 574. The action has frequently been entertained in matters involving extraordinary emergencies or of considerable public importance, and of more than local concern. The Phillip case, just cited, is an appropriate example, with a somewhat similar factual background. In cases of such a character this court has ruled in mandamus the constitutionality of statutes. State ex rel. School District No. 24 of St. Louis County v. Neaf, Banc, 344 Mo. 905, 130 S.W.2d 509. Respondent Board objects that the active members are not parties. Respondent has been constituted a body corporate by § 104.320, and in its presentation here it is adequately and properly representing those members. We proceed on the merits, keeping in mind that Relators must always show a clear and unequivocal right to relief in mandamus.

It is true that a statute will not generally be given a retrospective application unless such an intent is “manifest upon the face of the statute.” Atchison v. Retirement Bd. of Police Retirement System of Kansas City, Mo., 343 S.W.2d 25; also, that statutes should be given their plain and rational meaning. State ex rel. Wright v. Carter, Banc, Mo., 319 S.W.2d 596. We have no particular difficulty in arriving at the meaning and intent of this statute. In 1957 the legislature said that “[t]he normal annuity of a member shall equal five-sixths of one per cent of the average compensation * * In the same enactment (§ 104.310) it defined a “member” as “ * * * a member of the Missouri state employees’ retirement system, without regard to whether or not he has been retired.” In 1961 the legislature provided (effective as of October 13, 1961), that “The normal annuity of a member shall equal one per cent of the average compensation * * ” (Italics ours.) It did not change the definition of a member as it then existed. The only reasonable construction is that the legislature intended that all future annuity payments, both to members retired before October 13, 1961, and thereafter, should be computed on the new basis. We cannot rule otherwise without discarding the statutory definition of a “member.” Thus construed, the Act is prospective to the extent that it contemplates increased payments only for the, future, to all members. It is retroactive in the sense that the future increases are made applicable to members already retired, but this is really accomplished not by our construction but by the legislature’s own definition. We thus construe the amendment as applicable to Re-lators, by its terms.

We shall not attempt to distinguish all the various cases cited. In Atchison v. Retirement Bd., supra, it was held that a new legislative act prescribing a new formula for the computation of police pensions did not apply to members theretofore retired and already receiving pensions under the prior act. The new Act (1957) provided that those in service on June 15, 1946, or entering it after that date “may retire” after twenty-five years of service (and “shall retire” after thirty years) and that they “shall receive” certain designated compensation upon a new and different basis. The Act was held to look only “to the future” as to eligibility, retirements, and compensation, from its very wording; and thus, that it could not apply to those who had retired and were receiving pensions prior to its effective date. There was not present in that case any such controlling legislative definition as we have, extending the meaning of the term “members”; also, in our case the only applicable reference to the future concerns payments, not retirement or eligibility. The Atchi-son case was properly decided, but on its facts is not applicable here. Cases from other states holding that particular amendments to retirement plans should be construed prospectively, follow recognized rules of construction but are based upon materially different statutes and facts. Miner v. Stafford, 326 Ill. 204, 157 N.E. 164; Schwarzkopf v. State House Comm., 123 N.J.L. 78, 8 A.2d 103; Jensen v. Pritchard, 120 Ind.App. 439, 90 N.E.2d 518, 91 N.E.2d 846. Other cases involving statutory constructions by which increases in benefits were held to be applicable to persons already retired, and certainly under no more compelling terms than are present in our Act, are: McCord v. Iowa Employment Security Comm., 244 Iowa 97, 56 N.W.2d 5; People ex rel. Albright v. Bd. of Trustees, 103 Colo. 1, 82 P.2d 765, 118 A.L.R. 984. Respondent argues that § 104.540 quoted above evidences an intent that the present amendment should operate only prospectively. That section provides that no alteration, etc., shall affect existing rights, but shall only be effective as to rights which would subsequently accrue. In the first place we believe that this section was intended to prohibit the cutting down or repeal of rights already accrued, and that its intent was not, per se, to prevent additional benefits. Moreover, since the additional payments here are expressly provided for the future only, and we have so recognized, that element sufficiently satisfies the “prospective” injunction of that section. We conclude that, by its terms and upon its face, the amended § 104.390 is applicable to Relators.

But the problem does not end here and two points, each more difficult, are presented. (1) Is the amendment, thus construed, unconstitutional by reason of § 39(3) of Art. 3; and (2) does it constitute an impairment of contract or a retrospective law in violation of § 13, Art. 1, or a violation of due process under the appropriate constitutional provisions? We consider (2) first.

There is much confusion in the adjudicated cases as to the nature of the interests created by pension and retirement plans. One need only examine the extended, state by state, annotation appearing at 52 A.L. R.2d 437, to appreciate this. Much, of course, depends on whether the plan is a contributory one, and some courts distinguish upon the basis that the plan provides for a voluntary, as contrasted with a compulsory, contribution. Raines v. Bd. of Trustees, 365 Ill. 610, 7 N.E.2d 489; Krebs v. Bd. of Trustees of Teachers’ Retirement System, 410 Ill. 435, 102 N.E. 2d 321, 27 A.L.R.2d 1434; Ridgley v. Bd. of Trustees of State Institutions Teachers’ Pension & Retirement Fund, 371 Ill. 409, 21 N.E.2d 286. If that be a valid distinction, it would seem that the voluntary nature of the individual contributions in our case is sufficiently established by the fact that the employees involved have all remained in the service (or entered it) after the enactment of the legislation, and that all are given the option to withdraw their contributions in a lump sum upon retirement, if they desire. Substantially the same principle was involved in the Phillip case, supra, where the court said, 262 S.W.2d 569, at loe. cit. 575: “Relators say that ‘the statute set up a compulsory plan to which the employee was required to contribute.’ We think it provided for voluntary participation. * * * No one was required to accept employment with the School District but, if one voluntarily did so, it was ‘a condition of their employment’ that they became members of the Retirement System.” The Missouri authorities, Phillip, supra, and Atchison et al. v. Retirement Bd., Mo., 343 S.W.2d 25, definitely recognize the existence of a contract relationship. In Phillip, in answer to a contention that a pension is a mere gratuity, the court said 262 S.W.2d at loe. cit. 577, 578, after discussing prior Missouri cases: “The A. L.R. annotations cited show the changing attitude of the courts, the wide diversity of opinion, the conflict of decisions and the marked changes in public policy which have resulted in the passage of laws providing for modern retirement systems that are very different in operation and in principle from the early pension laws, which were not based upon any contractual relationship. * * * We are not here considering the rights under the Act of those members who have heretofore completed all of the necessary steps for the immediate payment of benefits under the Retirement System and whose rights have fully accrued and are now vested. See State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 72 (6-7). * * * Considering the 1943 Act as a whole and giving effect to all of its provisions and considering the applicable amendatory provisions in force and effect immediately prior to the effective date of the 1953 Act, we think it is clear that the 1943 Act and its subsequent modifications were intended to and did provide for the creation of specific contractual rights in the members of the Retirement System to obtain specific benefits upon compliance with the terms. These rights cannot be divested in the manner and form sought to be divested in the 1953 Act.” The court there also noted that a provision of the statutes rather similar to our § 104.540 “evidences an intention to create contractual rights.” And finally, the court there held that an amendment which excluded a certain class of members from the Retirement System and purported to substitute other benefits of undemonstrated value, was void as an impairment of the contract, although the excluded class was seeking to enforce the substitution.

Respondent here concedes the existence of a contract relationship “whereby the members have certain vested rights and the state certain obligations”; and again, it states that § 104.540 “does create ‘vested interests’ in the members of the plan which cannot be affected by legislative amendment.” We conclude that under our Act those who have retired, as did Relators, have a vested right in the continuance of their respective annuities under the law as it existed at the time of their respective retirements; that active members have certain vested interests, extending at least to all payments which have been made into the retirement fund to the present time; that the legislature may alter, amend or repeal the law, but only subject to the rights existing at that time. See, generally, the annotation in 52 A.L.R.2d 440, at loe. cit. 443, and the review of the Missouri cases at loe. cit. 463-464.

In passing, we note that in various cases which we have considered, the allowance of increased pensions to retired persons has been denied, and for various reasons. Some of the courts have relied entirely upon statutory constructions, namely, that the disputed amendment was solely prospective in its operation; some have held the increase to be a mere gift or gratuity from public funds for past services and therefore void; and some have specifically held such increases to be void as constituting extra compensation for services already performed under constitutional provisions similar to our § 39(3) of Article 3. In one (State ex rel. Thomson v. Gies-sel, 262 Wis. 51, 53 N.W.2d 726) the payment of $100 by each retired member was held insufficient to validate the amendment, in view of such a constitutional provision. There have been vigorous dissents in some of those cases, based largely upon arguments concerning changing economic conditions, moral obligations of the state, the great breadth of legislative discretion, and in at least one, the frank assertion that the courts should hold that the “extra compensation” provisions were not applicable to a bona fide retirement system. In Illinois, such increases have been held valid upon the payment of a lump sum by each retired member (Raines v. Bd. of Trustees, 365 Ill. 610, 7 N.E.2d 489); in a few other cases, they have been validated merely upon constructions of the amending statutes (without constitutional considerations), for somewhat vague reasons of general public concern, from the necessity of promoting an efficient system of public employment, because of the exigencies of inflation, or as a “moral obligation.” We realize that this brief summary of cases is somewhat off the immediate subject, but it furnishes some background for our problem.

The present amendment, applying as it purports to do to all “members,” would necessarily take a portion of the existing fund to pay the increases to retired members. We hold that this would constitute an impairment of the contract in violation of § 13 of Article 1, Mo. Constitution as to all members not retired, on October 13, 1961, and who have since continued to contribute. It is perhaps unfortunate that evidence was not taken in this case; we have no available and legally sufficient information concerning the precise status of the fund. But we do know that the payment of the increased benefits to retired members whose status was fixed prior to October 13, 1961, for no additional consideration, would deplete the fund to a substantial extent, and do so gratuitously. As the court said in Koehnlein v. Retirement System for Employees of Allegheny County, 373 Pa. 535, 97 A.2d 88, 92: “If legislative inroads upon retirement funds by way of gratuitous disbursements therefrom were to be tolerated, it would not be long before retirement systems in general would be imperiled, if not destroyed, to the detriment not only of the retired employees intended to be benefited by the unconstitutionally increased retirement allowances but also of the current contributors to retirement funds who are still in the service of the municipality.” And see Porter v. Loehr, 332 Ill. 353, 163 N.E. 689. The prohibition of § 13, Art. 1, is against any law impairing the obligation of contracts, “or retrospective in its operation.” A law is retrospective when “it looks or acts backward from its effective date, and if it has the same effect as to past transactions or considerations as to future ones, then it is retrospective.” Graham Paper Co. v. Gehner, Banc, 332 Mo. 155, 59 S.W.2d 49, 50. The present amendment, as we have construed its meaning, has precisely the same effect upon the annuities of those whose service has been rendered entirely in the past as it does upon those who are still employed and contributing. We cannot do otherwise than hold that the law, as it affects retired members, is retrospective.

These objections would not be eliminated, in our opinion, by the requirement of an arbitrary payment such as was apparently approved in Raines v. Bd. of Trustees, 365 Ill. 610, 7 N.E.2d 489, and disapproved in State ex rel. Thomson v. Giessel, 262 Wis. 51, 53 N.W.2d 726. Those payments were in minor, fixed amounts, and could not conceivably be considered to supply equitably any deficiency created in the fund. If, perchance, the legislature should see fit to provide retroactively for an increase upon the payment of such a sum or sums as might constitute the approximate cash value of the proposed increase, upon an actuarial basis, we would have a different question. The system is supposedly operated upon an actuarial basis. Section 104.510. As the matter now stands, we must and do hold that the increase so provided is unenforceable and void as to those members who retired prior to October 13, 1961. If the State wishes to provide for such an increase solely out of its own funds, then we will have a question calling directly for a construction of § 39(3), Article 3 of our Constitution. In such event that section should probably be considered and construed along with § 38 of Article 3. There is no necessity for such a construction in this case, as it now stands.

We fully appreciate the desirability of adequate retirement annuities, but we can only construe the statutes and our Constitution as presented. Many such retirement plans must operate on a system of “trial and error,” — developing and improving as they go along. Incidentally, none of these Relators could possibly have contributed to the fund for longer than approximately four years, whereas many of the now active members will contribute for much longer periods and until they reach the normal retirement age of 65 (or the optional age of 60).

In view of all the foregoing, the alternative writ is discharged and the application for the permanent writ is denied.

All concur.

      . All statutory references are to this revision except as otherwise stated.


text:
    Verene WESSELS, Respondent, v. Virgil W. SMITH, Appellant.
    No. 49246.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.

      Randolph & Randolph, St. Joseph, for respondent.
    Downs & Pierce, St. Joseph, for appellant.
   STOCKARD, Commissioner.

Defendant has appealed from an order of the trial court granting plaintiff a new trial on the issue of damages only after a jury verdict in the amount of $1,500. Jurisdiction of this appeal is in this court because the action of the trial court reinstated plaintiff’s claim under the petition in which she sought damages in excess of $27,000. Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740; Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 466; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126. By way of caveat, however, we note the different rule when plaintiff appeals from an order allowing a new trial to defendant when the verdict was less than our jurisdictional amount. See State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Deaver v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 83.

The order of the trial court granting the new trial from which this appeal is taken states that it was entered “on the grounds that the verdict in the sum of Fifteen Hundred Dollars ($1,500.00) for the plaintiff is inadequate.” That was the only ground for new trial set forth in plaintiff’s motion.

The defendant’s only contention on this appeal is that “The trial court erred in granting plaintiff a new trial on the ground that the jury award was inadequate because plaintiff had heretofore in the first trial been granted a new trial on this ground.” We have searched the transcript filed in this appeal in vain to find anything there which indicates that a previous new trial was granted for that reason. However, in appellant’s brief he refers to a previous opinion by this court in Wessels v. Smith, Mo., 341 S.W.2d 104, and by taking judicial notice of our own files pertaining to a previous appeal in the same case (see Bushman v. Barlow, 321 Mo. 1052, 15 S.W.2d 329), we find that after a previous trial of this case, in which the jury returned a verdict in favor of plaintiff in the amount of $1,000, a new trial was allowed the plaintiff on the issue of damages only on the ground that the verdict was inadequate.

Civil Rule 78.01, V.A.M.R., provides that the trial court may grant a new trial for the reasons and under the circumstances therein set out, hut that “Only one new trial shall be allowed on the ground that the verdict is against the weight of the evidence.” The rule also requires that every order allowing a new trial shall specify of record the ground or grounds on which the new trial is granted. The ground for allowing a new trial in the first and in the second trial of this case was that “the verdict is inadequate.” This is not the precise language of the rule which defines the one situation in which only one new trial to a party may be allowed. However, the trial court could not make the determination that the verdict was inadequate without weighing the evidence and concluding that the verdict in the amount rendered was against the weight of the evidence. In fact, that is the only basis on which a verdict can be determined to be inadequate.

The courts have repeatedly stated that the effect of allowing a new trial “ 'on the ground of the inadequacy of the damages’ ” is “ ‘to grant a new trial on the ground that the verdict was against the weight of the evidence,’ ” and that “ ‘the trial court, in the exercise of its judicial discretion, had the power to grant one new trial on that ground.’ ” Underwood v. Brockmeyer, Mo., 318 S.W.2d 192. See also Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426; Sapp v. Key, Mo., 287 S.W.2d 775; Combs v. Combs, Mo., 295 S.W.2d 78; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126; Coats v. The News Corporation, 355 Mo. 778, 197 S.W.2d 958; O’Shea v. Pattison-McGrath Dental Supplies, Inc., 352 Mo. 855, 180 S.W.2d 19; Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S.W.2d 698; State ex rel. State Highway Commission v. Liddle, Mo.App., 193 S.W.2d 625; Gedville v. Mahacek, Mo.App., 231 S.W.2d 305; Aut v. St. Louis Public Service Co., 238 Mo. App. 1136, 194 S.W.2d 753.

As previously noted, the only issue on this appeal is the legal question whether the trial court had authority to enter the order allowing a new trial on the ground set forth in its order. Appellant does not contend on this appeal that if the trial court had such authority the order allowing the new trial was improper for some other reason. Respondent has filed no brief. Under no possible circumstance can the testimony in the second trial on the issue of damages have any bearing, directly or indirectly, on any issue preserved and presented for appellate review. However, appellant has filed a transcript here containing over 200 pages of testimony pertaining only to the issue of damages. If proper and authorized arrangements had been attempted to use an abbreviated transcript, but which were unsuccessful because the prevailing party on this appeal insisted on the testimony pertaining to damages being included, this unquestionably would present a situation for this court to tax costs as authorized by Civil Rule 82.12, V.A.M.R.

The order granting a new trial is reversed and the cause remanded with directions to reinstate the verdict and judgment.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.