author: HOLMAN, Commissioner.

text:
    Florence K. ARATA and Carmen V. Arata, Plaintiffs-Appellants, v. MONSANTO CHEMICAL COMPANY, a Corporation, Defendant-Respondent.
    No. 48554.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Motion for Rehearing or for Transfer to Court en Banc Denied Dec. 11, 1961.

      Carroll J. Donohue, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for plaintiffs-appellants.
    Coburn, Croft & Cook, Richmond C. Co-burn, Alan C. Kohn, Edwin J. Putzell, Jr., St. Louis, for defendant-respondent.
   HOLMAN, Commissioner.

In this action plaintiffs sought to recover from defendant actual and punitive damages in the total sum of $200,000. The defendant’s motion to dismiss plaintiffs’ amended petition was sustained and a judgment of dismissal was entered accordingly. Plaintiffs have duly appealed.

Plaintiffs alleged in their amended petition that they were the owners of certain land located in St. Louis County, Missouri; that defendant had acquired 152 acres of land on the east side of Lindbergh Boulevard and 100 acres on the west side thereof and had erected thereon certain offices, laboratories, and other buildings; that from and after 1953 defendant had repeatedly sought to purchase or lease all or a portion of plaintiffs’ tract of land for use in connection with its operations in that vicinity; that defendant announced that it intended to build an overpass over Lindbergh Boulevard south of Olive Street Road for its convenience in the integration of its operations in that area; that negotiations for the purchase or lease of plaintiffs’ property by defendant were not successful and said negotiations were terminated by defendant on April 14, 1957.

It was further alleged by plaintiff that “thereafter, the State Highway Commission of the State of Missouri did file a petition for the condemnation of certáin property in the Circuit Court of St. Louis County, Missouri, the alleged purpose of which condemnation was for the construction of a cloverleaf traffic exchange on U. S. Highway 66 and the relocation of Olive Street Road approximately eight hundred feet (800') south of its then intersection with the said Lindbergh Boulevard and which purpose was alleged to be public in nature but which purpose was solely to place said road at a point where it could serve as a convenient mode of ingress and egress for defendant and not for a public purpose. The said petition included the following described property owned by the plaintiffs [description omitted]; * * * that said condemnation was not for a public purpose but was for a private purpose, in that the condemnation was undertaken for the purpose and with the intention of facilitating and integrating the development of defendant, Monsanto Chemical Company, in the vicinity of Lindbergh Road and Olive Street Road by affording a large and convenient mode of ingress and egress to defendant’s property. Plaintiffs further state that the facts concerning said road and its private use was not revealed to the court and that the said court, in ordering condemnation, had no knowledge or information of the actual purpose of the said condemnation. * * * That the defendant, through substantial private contributions of money and land for the acquisition of said land and the building of said road succeeded in having the State Highway Commission institute and process the said condemnation for the purpose of acquiring an overpass for the convenience of defendant’s development in the vicinity of Lindbergh and Olive Street Roads, and that, after its failure to negotiate successfully a purchase or lease of plaintiffs’ property for said purpose, it induced and instigated the said State Highway Commission to condemn plaintiffs’ land for said purpose.” The petition concluded with allegations concerning plaintiffs’ damages and a prayer for the aggregate amount heretofore stated.

Defendant’s verified motion to dismiss is as follows: “Comes now the defendant, Monsanto Chemical Company, and moves the court to dismiss the above-entitled cause for the reason that the plaintiffs’ amended petition fails to state a claim upon which relief can be granted.

“Further, the defendant 'states that on or about the 15th day of April, 1958, the Missouri State Highway Commission filed an action in the Circuit Court of St. Louis County to obtain by condemnation title to a tract or tracts of land described on pages 3 and 4 of the plaintiffs’ amended petition. That said cause was No. 222918 of the Circuit Court of the County of St.' Louis, Missouri, and was entitled ‘State of Missouri ex rel. State Highway Commission vs. Gorman et al.’ That the plaintiffs, Florence K. Arata and Carmen V. Arata, as well as Oliver S. Arata, were named as defendants in said cause and as owners of said tract or tracts of land. That on May 15, 1958, a judgment of condemnation was entered in said cause. That on June 24, 1958, commissioners duly appointed in said cause filed a report fixing damages of plaintiffs and Oliver S. Arata for taking their said land at $86,000.00. That on July 1, 1958, the said Aratas filed exceptions to the commissioners’ report, but on December 12, 1958, having reached a settlement of their dispute with the State Highway Commission, plaintiffs entered into a stipulation with the Missouri State Highway Commission for the 'entry of a judgment in their favor for the taking of-said land in the amount of $96,-000.00, which judgment was duly entered on that date and has been fully paid. That because of the foregoing the plaintiffs have been fully compensated for the taking of their land or for any alleged wrongful act complained of in plaintiffs’ amended petition, and cannot lawfully obtain further or additional satisfaction from the defendant therefor.

' “Further, the defendant says that in said aforementioned cause plaintiffs and Oliver S. Arata filed an answer on or about May 12, 1958> in which they denied that the aforesaid condemnation was for public purposes and alleged that it was for private purposes. That a judgment of condemnation was entered on May 15, 1958, by which the court found, among other things, that plaintiffs’ property was being taken for public purposes. That on May 26, 1958, the Aratas filed a motion for new trial against said judgment. That on August 15, 1958, said motion for a new trial was overruled. That on August 21, 1958, a notice of appeal was filed by the Aratas to- the Supreme Court of Missouri, but the said Aratas failed to perfect said appeal and on September 7, 1959, an order was entered in said cause dismissing said appeal for failure to comply with the rules of the Supreme Court of Missouri. That as a result, the judgment of May 15, 1958, entered in the aforesaid cause to which plaintiffs were parties, that their property was .being taken for public purposes, became a final judgment binding upon plaintiffs. That as a result thereof said judgment that plaintiffs’ property was being taken for public purposes is res adjudicata of said fact and binding upon plaintiffs in this cause of action and estops and precludes plaintiffs from asserting in this cause of action that their property was taken by the Missouri State Highway Commission and the defendant for private purposes, and that since plaintiffs’ property was taken for public purposes, the act of the Missouri State Highway Commission in taking plaintiffs’ property as aforesaid was a lawful act performed within its discretion, and cannot under any circumstances be the basis for any recovery by plaintiffs against defendant as the alleged instigator of said lawful act.’’

Upon the hearing of the motion to dismiss defendant offered in evidence the court files in the condemnation case. Plaintiff objected upon the ground that “the file hasn’t been properly identified by a person so qualified to identify it.” The court indicated that it could take judicial notice thereof and overruled the objection. We will not give any detailed recital of the facts shown in the aforementioned files. It is sufficient to state that they contained proof of all of the facts alleged in defendant’s motion.

As we view plaintiffs’ petition it bases their right to recover upon the allegation (1) that defendant, through contributions of money and land, induced the State Highway Commission to condemn plaintiffs’ land and (2) that said condemnation was not for a public purpose but was for the private purpose of providing an overpass for the convenience of defendant in the use of its lands and facilities in that vicinity.

At the outset of our consideration of the questions presented it should be noted that Section 28, Art. 1, Constitution of Missouri 1945, V.A.M.S., provides that “private property shall not be taken for private use with or without compensation, unless [certain exceptions omitted]; and that when an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard ' to any legislative declaration that the use is public.” In considering the quoted provision we have recently stated that “The distinction between ‘public use’ and ‘public necessity’ has been pointed out in the cases. The former is a judicial question, determinable by the courts; the latter is essentially political in nature, and therefore to be determined in a different forum—in the instant case, by the city council * * *. ‘In order to constitute public use, it is not necessary that the whole community or any large part of it should actually use or be benefited by a contemplated improvement. Benefit to any considerable number is sufficient. * * * Nor does the mere fact that the advantage of a public improvement also inures to a particular individual or group of individuals deprive it of its public character.’ Kansas City v. Liebi, 298 Mo. 569, 593, 252 S.W. 404, 408, 28 A.L.R. 295 * * * . There is no more ‘public use’ to which property can be devoted than that of a public street open alike and accessible to all members of the public.” In the Matter of Proceedings to Grade, Etc., Mo.Sup., 270 S.W.2d 863, 867, 868.

The allegation heretofore designated as (1) does not aid plaintiffs in their efforts to state a claim for relief. This for the reason that it is settled that the mere fact that certain individuals or interests who are specially benefited by a proposed improvement contribute to the cost thereof does not show that the improvement is for a private purpose or render it any the less public within the meaning and scope of the law of eminent domain. Gruntorad v. Hughes Bros., Inc., 161 Neb. 358, 73 N.W. 2d 700; Weaver v. Pennsylvania-Ohio Power & Light Co., 6th Cir., 10 F.2d 759; Union Lime Co. v. Chicago & N. W. R. Co., 233 U.S. 211, 34 S.Ct. 522, 58 L.Ed. 924; 18 Am.Jur., Eminent Domain, § 44, p. 673; 29 C.J.S. Eminent Domain § 97, p. 898.

Allegation (2) above directly presents the issue as to whether plaintiffs’ land was condemned for a public purpose. Defendant contends that said issue was determined in the condemnation case, is res judicata, and that plaintiffs are therefore barred from contending in this case that the taking was for a private purpose. The defense of res judicata may be presented in a motion to dismiss. Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526.

Before considering questions concerning the issue of res judicata we must decide whether the court files in the condemnation case were properly admitted in evidence. Plaintiffs here contend, as they did in the trial court, that the records were not admissible because “not identified by any witness competent to state what they were.” The defendant answers with the assertion that “a trial court may take judicial notice of records of its own court which are offered in evidence.” We agree with defendant’s contention. “A court has knowledge of the genuineness of its own records * * *. Having such knowledge,, it was competent for the trial judge to determine the identity and genuineness of the papers offered in evidence * * Wahl v. Cunningham, 332 Mo. 21, 56 S.W. 2d 1052, 1060. To like effect is the statement in 32 C.J.S. Evidence § 634, p. 486, that “The book of records of a court proves itself when offered in evidence in the same court, since a court will take judicial notice of its own records, and this principle extends to different parts or sections of the same court.”

In support of their contention that the court could not take judicial notice of the files in question the plaintiffs have cited Spurlock v. Missouri Pacific Ry. Co., 76 Mo. 67; Smith v. Berryman, 272 Mo. 365, 199 S.W. 165, 1 A.L.R. 1692; Walker v. Ross, Mo.App., 71 S.W.2d 124, Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78, and State v. Washington, Mo.Sup., 335 S. W.2d 23. The situation presented in those cases readily distinguish them from the case at bar. In the Spurlock, Smith, and Walker cases it does not appear that the records were offered in evidence. The opinion in the Carp case merely indicates that the records of another court should be identified before being received in evidence. We find nothing in the Washington case which applies in any manner to the question before us.

As indicated, we rule that the files in question were properly admitted upon inspection by the trial court without further proof of authenticity.

The petition in the condemnation case alleged that the proposed highway therein described was needed to facilitate the movement of through traffic in a congested traffic area. The answer filed by defendants Arata denied the allegations of the petition and specifically alleged “that the purpose of condemning these defendants’ land and properties, and to divest their title therefrom, is to establish a private, and not a public use and therefore said lands and properties are not subject to the condemnation prayed for.” The condemnation judgment contained a finding “that said lands, property and rights are condemned for public state highway use.” In due time that judgment became final.

Plaintiffs say that the plea of res judicata is not available to defendant herein because there is not an identity of parties in the two cases. It is true that the State Highway Commission is not a party in the present case and Monsanto, while a defendant in the condemnation case, does not appear to have been an adverse party to the present plaintiffs. While we agree that as a general rule there must be an identity of parties or their privies in order for the former judgment to be pleaded as res judi-cata we think the situation in the instant case comes within one of the well-recognized exceptions to the general rule.

“In respect to the matter of the conclu-sivencss of judgments, it is a recognized principle that persons so connected in interest and liability, though not falling within the true technical status of privies, may nevertheless avail themselves of a former judgment in bar of a subsequent action or proceeding upon the same subject-matter, in view of the policy of the law to end litigation by preventing a party who has had one trial of a question from again bringing it into controversy. Brown v. [Wabash] Ry. Co., 222 Mo.App. 518, 281 S.W. 64; Taylor v. Sartorious, 130 Mo. App. 23, 108 S.W. 1089, 34 C.J. 975.” Wors v. Tarlton, 234 Mo.App. 1173, 95 S.W.2d 1199, 1207.

The issue presented by the allegations of plaintiffs’ petition is whether the State Highway Commission condemned plaintiffs’ land for a public purpose. Plaintiffs, as defendants in the condemnation suit, denied that the taking was for such a purpose. The condemnation suit was.the proper action in which to determine the question as to whether the highway commission was taking the land of the Aratas for a public purpose and consequently not in violation of the constitutional provision heretofore quoted which prohibits condemnation for private use. The Aratas have had their day in court on that issue and it was determined adversely to them. The judgment in the condemnation case is a bar to any further contention by the Aratas that the highway commission did not condemn their land for a public purpose. It can be pleaded by Monsanto as a bar to this action and, under the circumstances here presented, it is of no consequence that there was not an identity of parties in the two actions. Our conclusion is in accord with the policy of the law (under circumstances such as are here presented) to end litigation by preventing a party who has had one trial of a question of fact from again drawing it into controversy.

In contending that their petition stated a claim for relief which was not barred by the prior adjudication plaintiffs have relied almost entirely upon the case of Justis v. Georgia Industrial Realty Co., 109 Va. 366, 63 S.E. 1084. That case was an equitable action in which a- condemnation judgment was collaterally attacked for fraud' in its procurement. The Virginia court held that the petition stated a cause of action. The facts alleged were: “That the William R. Trigg Shipbuilding Company, a private corporation, undertook to acquire Justis’ Island by purchase from W. M. Justis, for use in connection with its adjacent shipyard. That, its efforts to purchase the island proving unsuccessful, it entered into an agreement with certain managing officers of the city of Richmond to the effect following: That the city would condemn Justis’ Island pretendedly, as necessary for the improvement of its harbor, and when thus acquired would convey it to the Trigg Company in exchange for certain other property owned by that company, and which the city needed for its purposes; the company paying the agreed difference in values between the two properties in money. That in pursuance of this agreement the city council (well knowing that the island was not needed or to be condemned for the purposes stated in the ordinance, but was to be immediately conveyed to the Trigg Company in exchange for other property) passed an ordinance directing the city attorney to condemn the island for the alleged improvement of the harbor. Justis’ Island was condemned accordingly, and the contract between the Trigg Company and the city consummated by the execution of mutual conveyances to the respective properties.”

We do not think the Justis case is applicable here. In that case it does not appear that the landowner knew of the fraudulent scheme or defended the condemnation action upon that issue. Unlike the present case the Justis case was one attacking the condemnation judgment for fraud in its procurement. In the case at bar there is no specific allegation of fraud and it appears from the pleadings in the condemnation case that plaintiffs had some knowledge of the alleged intended private use. Plaintiffs do allege that at the instance of defendant the purpose of the condemnation was not revealed to the court. However, smee plaintiffs (defendants therein)' pleaded in the condemnation case that the taking was for a private use they should have offered evidence (if such existed) which would have revealed the alleged unlawful purpose to the court.

For the reasons stated we rule that the trial court properly sustained defendant’s motion to dismiss and entered judgment dismissing plaintiffs’ action.

Judgment affirmed.

COIL and HOUSER, CC,, concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: BOHLING, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Roger Lee GILLIAM, Appellant.
    No. 48437.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Dec. 11, 1961.

      No attorney of record for appellant.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., for respondent.
   BOHLING, Commissioner.

Roger Lee Gilliam was separately charged, tried and found guilty of robbery in the first degree by means of a dangerous and deadly weapon, with a prior conviction of a felony, and appeals from a judgment imposing a sentence of fifteen years’ imprisonment. §§ 560.120 and 560.-135. (Statutory references are to RSMo 1959 and V.A.M.S.) The defendant introduced no evidence and has filed no brief. In his motion for new trial, he alleges error, among others, in the admission of evidence, in limiting the cross-examination of the State’s witnesses, in finding defendant subject to the provisions of the new habitual criminal act (§§ 556.280 and 556.290), in failing to grant defendant’s request for the inspection of certain police reports, and in giving an instruction.

The State’s evidence warranted the following findings: About 7:45 p. m. on March 2, 1960, three colored men robbed the Ross Rexall Drug Store, 925 Goodfel-low, St. Louis City, Missouri. Mr. Ross had just gone home. Stanley Schneider was part owner of the business. The employees present were Mrs. Maxine Rushing, a sales clerk, and Charles Wagstaff, a nineteen-year-old high school student, who were near a cash register at the rear of the store, and David Block, a registered •pharmacist in charge of the store, who was at the prescription counter on the other side.. of the store. Gladys Maxwell followed . one and preceded another colored man into the store. The first was later identified to her as Roger Gilliam and the other as James Beard. Another man, referred' to as robber No. 1, put a gun on Mrs. Rushing, told her it was a holdup and to give him the money, except the pennies, in a cash register. She was frightened and screamed. Wagstaff looked, saw the gun and put his hands up. This robber told Mrs. Rushing to be quiet, he didn’t want to hurt her; and Wagstaff to put his hands down and come over by the register. Gladys Maxwell, about midway of the first aisle, turned to leave, saw Beard standing by the front door, and was told to stand where she was, which she did. Mrs. Rushing took the money from the cash register, put it in a bag and handed it to the robber. Mr. Block started to turn around when he heard the scream, felt something poking him in the back, and a voice said: “Don’t turn around and do what I tell you and you won’t get hurt.” There was testimony that this man had been in the store two or three times and Mrs. Rushing and Wag-staff positively identified Roger Gilliam as this..-robber. Each testified that he was poking Mr. Block in the back with a gun. Mr. Block was then ordered to walk down that aisle. When they came to another cash register, he was told to put the money, including the change, in it in a bag. He did this and handed the bag of money to the robber behind him. The robber continued to poke Mr. Block in the back, and telling him not to look around. Mr. Block followed the instructions. Robber No. 1 and defendant then forced Mrs. Rushing, Wagstaff, Mr. Block and two or three customers, who had entered the store, into a back room. Gladys Maxwell, who had been left standing in the store, came back to the room after the robbers departed, knocked on the door, and said: “They are gone now, you can come out.”

The robbers obtained $249 of the store’s money. Mr. Block’s possession of the money was sufficient evidence of ownership to sustain a conviction. State v. Montgomery, 181 Mo. 19, 29, 79 S.W. 693, 696, 67 L.R.A. 343; State v. Moore, Mo., 80 S.W.2d 128 [1].

Following the robbery Gladys Maxwell and Wagstaff were taken to the police station, identified the man at the door, and were informed his name was James Beard. See State v. Deppe, Mo., 286 S.W.2d 776 [8]. Defendant objected to this testimony on the ground it was immaterial and irrelevant, and assigns error in its admission. Assignments of error in defendant’s motion for new trial not presented to the trial court at the time of defendant’s objections to the evidence are not preserved for appellate review. State v. Hernandez, Mo., 325 S.W.2d 494, 496 [3, 4] ; State v. Richardson, Mo., 321 S.W.2d 423, 427 [4]. Under the State’s evidence a jury could infer that James Beard aided and abetted the chief perpetrators of the robbery by acting as a “lookout.” He entered the store, stood by the door while the robbery was progressing, was given no order by the chief actors during the robbery, was not forced by them to accompany other customers to and remain in the back room of the store, and was not in the store after they left. The jury could find that witnesses Maxwell and Wagstaff were identifying (State v. De Poortere, Mo., 303 S.W.2d 920, 924 [3] ; State v. Robertson, Mo., 328 S.W.2d 576, 582 [5]) an aider and abettor of the robbery (State v. Holmes, 316 Mo. 122, 289 S.W. 904, 907 [4]; State v. Childers, Mo., 313 S.W.2d 728, 731 [5]). If this testimony were immaterial and irrelevant, defendant’s objection to its admission, it did not prove any issue in the case, and was not prejudicial.

A number of assignments (six) in defendant’s motion question the admission in evidence of State’s Exhibit No. 1 and the court’s finding that defendant was subject to having his sentence, in the event he be found guilty by the jury, determined by the court under the habitual criminal act. Defendant’s assignments are verbose and, although they purport to set forth the rea¿ sons for the asserted error, some ..are general, in the nature of conclusions, and do not set forth with particularity the specific grounds or causes of the error. Sup.Ct. Rule 27.20, V.A.M.R. For instance: Assignments, among others, that a verdict or a finding of fact “is against the evidence”; “is against the law”; “is against the law and the evidence,” preserve nothing for appellate review. State v. Roberts, Mo., 332 S.W.2d 896, 898 [2-4] ; State v. Townsend, Mo., 327 S.W.2d 886 [2]; State v. Russell, Mo., 324 S.W.2d 727, 733 [14].

After a hearing in the absence of the jury at the close of the evidence, the court found defendant was subject to the habitual criminal act. State’s Exhibit 1, so far as involved here, was an authenticated copy of a judgment and sentence wherein, upon withdrawing a plea of not guilty to “robery” as charged and entering a plea of guilty, defendant was sentenced to three years’ imprisonment in the Arkansas penitentiary by a circuit court of the State of Arkansas and defendant’s record of confinement in and discharge from the Arkansas penitentiary upon the expiration of said sentence. Defendant takes the position said exhibit was inadmissible because “robery” is not a crime in Arkansas or any other jurisdiction. A reading of the exhibit indicates this was not mistaken orthography but a clerical error. Whichever it may be, the stated ground was no reason for excluding the exhibit. A person of common understanding who reads the exhibit, not for the purpose of finding defects but to ascertain its meaning, would not be misled or in doubt as to its meaning. The misspelling does not change the pronunciation of robbery, or obscure the meaning of the exhibit; and the wording is .readily understandable and apprises one of the offense involved. Such clerical or grammatical errors are not fatal. State v. Byrd, 278 Mo. 426, 213 S.W. 35 [1]; Melber v. Yourtee, Mo., 203 S.W.2d 727, 729 [2]; State v. Gilmore, 336 Mo. 784, 81 S.W.2d 431, 433 [7] ; Toler v. Coover, 335 Mo. 113, 71 S.W.2d 1067, 1071 [12].

The authenticated copies of the official records from the State of Arkansas appearing in State’s Exhibit 1 were admissible in evidence under §§ 490.130 and 490.-220, and an objection to their competency that they were not the best evidence but copies is without merit. State v. Hagerman, Mo., 244 S.W.2d 49, 53. [10-12]; State v. Ash, Mo., 296 S.W.2d 41, 43 [4].

It also follows that the assessment of defendant’s punishment under Laws 1959, S.B. 117 (now §§ 556.280 and 556.-290) by the court upon the jury’s returning a verdict of guilty was proper, and defendant’s complaints against the form of verdict' instruction because the jury did not assess the punishment are overruled. State v. Williams, Mo., 343 S.W.2d 58, 60 [3-7]; State v. Chamineak, Mo., 343 S.W.2d 153, 163 [20], and cases cited in the above cases.

The following occurred during the cross-examination of witness Wagstaff:

“Q. Had you and she [referring to Maxine Rushing] discussed what you thought- — ■
. “Mr. Murphy.: (interrupting) I will object- to that question about a discussion, your Honor.
“The Court: Sustained.”

The State’s objection may have been premature. However, nothing further with respect to this inquiry appears of record, and the trial court should not be convicted of error without some showing of prejudice to defendant. State v. Francies, Mo., 295 S.W.2d 8, 11 [5]; State v. Feltrop, Mo, 343 S.W.2d 36, 38 [6, 7].

Witness Wagstaff, after answering that defendant’s counsel came to the drug store on a specified Sunday and asked to talk to him, was asked: “Did you talk to me on that Sunday?” The State’s attorney objected, stating in part: “I think that is an impropriety with respect to talking to a State’s witness, and I will object to the question.” The court informed defendant’s counsel he could ask the witness if he refused to talk to him, and struck from the record and directed the jury, at defendant’s request, to disregard the suggestion of the State’s attorney that such action by defendant’s counsel was an impropriety. The record clearly, shows - that the court did not sustain the State’s objection. Defendant’s assignments to the effect the court erred in sustaining the. State’s objection- and in refusing his re quest for a mistrial because of the word “impropriety” in the objection are without merit. There was no abuse of discretion on the part of the trial court. State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113 [10]; State v. Green, Mo. 292 S.W.2d 283, 288 [10]. The witness was under no legal obligation to talk to defendant’s counsel.

Defendant assigns error in the court’s refusal of his oral requests at the close of the direct examinations bf witnesses Maxine Rushing and Charles Wag-staff to require the State to make available for inspection the police reports of conversations had with them. Defendant -has failed to establish reversible error for át least two reasons. The assignments in defendant’s motion- for new trial merely assert that the court erred in refusing defendant’s said requests without setting forth any specific ground for the'asserted error. Sup.Ct.R. 27.20; State v. Sheard, Mo, 276 S.W.2d 191 [1, 2]; State v. Schramm, Mo., 275 S.W.2d 343 [1], The requests appear to be based on Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, which involved rules of procedure and evidence in the federal courts. The request was not for a signed or otherwise approved written statement by a witness, but for the production of a police officer’s summary of conversations had with the witness, and not required under federal procedure to be produced under Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. Consult Anderson v. State, 239 Ind. 372, 156 N.E.2d 384 [1-4]; State v. Kelly, 249 Iowa 1219, 91 N.W.2d 562 [1-4]. Defendant did not show that the requested police reports were in existence or that they were material and relevant. He assigned no reason for the granting of his requests, and appears to have been embarking on a fishing expedition. State v. Hinojosa, Mo., 242 S.W.2d 1, 6 [6], states: “The court would have had no authority to order the production of irrelevant and immaterial matter not admissible in evidence, and this is true even though such matters might aid in the preparation for trial.” Approved in State ex rel. Clagett v. James, Mo., 327 S.W.2d 278, 290. We find no error. Consult State ex rel. Page v. Terte, 324 Mo. 925, 25 S.W. 2d 459, 462 [2, 3]; State v. Brown, 360 Mo. 104, 227 S.W.2d 646, 649 [3], and cases there cited; State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85, 89 [1, 4, 7]. See 23 C.J.S. Criminal Law §§ 855, 955.

It appears that the court, when he started to read the instructions, informed the jury he was reading the instructions in the case of State of Missouri versus John Lee Gilliam. The caption to the instructions correctly designated defendant as Roger Lee Gilliam, and the instructions thereafter referred to him as “defendant.” His counsel called the mistake to the court’s attention, entered his objection thereto and moved for a mistrial on the ground, so far as carried forward in his new trial assignment, that the jury could conclude defendant had an alias and prejudice could result. The court then informed the jury that he had inadvertently made a mistake in referring to defendant as John Lee Gilliam and that his name was Roger Lee Gilliam. This was no “instruction” to the jury or comment upon the evidence in the case within the meaning of Sup.Ct. Rules 26.02 and 26.09. The jury was not misled and defendant was not prejudiced by the court’s inadvertently using the wrong Christian name. The correction was immediately made. Consult State v. Craighead, 32 Mo. 561; State v. Meals, 184 Mo. 244, 257, 83 S.W. 442 [4] ; State v. Thomas, Mo., 82 S.W.2d 885 [7]; State v. Paulsgrove, 203 Mo. 193, 101 S.W. 27 [2, 4].

Defendant complains of instruction No. 3. The instruction informed the jury that persons who act together with a common intent in the commission of a crime are equally guilty; that- the mere presence of one as a spectator at or near the scene of a crime does not make him a participator therein; but if, being present, he aids, abets, assists, et cetera, with the intent to encourage the commission of the crime, then he is equally guilty with the persons who physically commit it. Passing any issue with respect to the sufficiency of the assignment in defendant’s motion for new trial, a substantially like instruction was held not reversible error in State v. Lunsford, Mo., 331 S.W.2d 538, 540 [2-5]. The instruction was more favorable to the defendant than he was entitled to have it. He is in no position to complain. See also State v. Affronti, 292 Mo. 53, 70 (IV), 238 S.W. 106, 110 [4]; State v. Tharp, 334 Mo. 46, 64 S.W.2d 249, 253 [7].

Our examination of matters required to be reviewed under Sup.Ct.R. 28.02 discloses no reversible error.

The judgment is affirmed.

BARRETT and STOCKARD, CC., Concur.

PER CURIAM.

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

All concur.


author: WESTHUES, Presiding Judge.

text:
    John VANNEMAN, a Minor, by His Father and Next Friend, Ralph F. Vanneman, Appellant, v. W. T. GRANT COMPANY, a Corporation, Respondent.
    No. 48025.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Rehearing Denied Dec. 11, 1961.
    Louis A. Silks, Jr., John R. Monaghan, Silks, Silks & Curtis, Kansas City, for appellant.
    Rodger J. Walsh, Kansas City, for respondent. Davis, Thomson, VanDyke, Fair-child & Walsh, Kansas City, of counsel.
   WESTHUES, Presiding Judge.

Plaintiff John Vanneman, a minor, by his father and next friend, Ralph F. Vanneman, filed this suit against the defendant W. T. Grant Company, a corporation, wherein he sought $5,000 actual and $5,000 punitive damages. Plaintiff alleged in his petition that while in defendant’s place of business he was willfully assaulted, unlawfully detained, and slandered without just cause.

The case was tried in the Circuit Court of Jackson County, Missouri, where the jury found the issues in favor of defendant and plaintiff appealed from the judgment entered pursuant to the verdict. After motion for new trial was overruled, a notice of appeal was -filed in this court on December 23, 1959, which was before our appellate-jurisdiction was raised to $15,000.

The occurrence out of which this case arose happened in defendant’s storeroom in Mission, Kansas. Plaintiff, a fourteen-year-old student in the tenth grade, and a school companion went to defendant’s store on February 17, 1958, at about four o’clock in the afternoon. Plaintiff desired to purchase a watch band. After they entered the store, the boys separated. Plaintiff went to look for a watch band while his companion went to a counter where records were on display and where a record player was available. Plaintiff was unable to find the location where the watch bands were kept for sale and joined his companion at the record counter. After playing a record, they left that counter and approached the man in charge, a Mr. Ripley, and inquired about a watch band. Ripley and the boys went to the place where the bands were on display and after looking at a number of them, plaintiff stated that none of the bands was the kind he wished to buy. The boys then started to leave the store. Plaintiff was wearing a short jacket which, when zipped, bulged somewhat at the chest. After the boys had taken a few steps, Mr. Ripley said to them, “Just a minute, boys,” or words to that effect. The boys stopped, whereupon Mr. Ripley examined plaintiff’s jacket. He testified that he thought the boy might have hidden a record under the jacket. No record was found. Ripley apologized to plaintiff and stated, “We have had quite a bit of shop-lifting in the store, I naturally had my eyes open.” The boys then left the store. Plaintiff informed his father of what had occurred. The father went to the store and had a conversation with Ripley. Later this suit was filed. The above account is substantially what occurred. There was some difference in the evidence as to just what was said at the time by Mr. Ripley to plaintiff. PIow-ever, all agreed that the boys were detained for not more than two minutes; further, that no harsh words were spoken and that the assault consisted of Mr. Ripley’s pushing on plaintiff’s jacket to determine if it contained a record.

On this appeal, in plaintiff’s brief, it is stated that the trial court erred in giving, at defendant’s request, instructions No. 2 and No. 3; further, that the trial court erred in not discharging the jury when defendant’s counsel made statements before the jury to prejudice plaintiff and his witness. In the last assignment, plaintiff says the trial court erred in not admitting evidence showing what the hearer understood by the defendant’s alleged slanderous words.

Instruction No. 3, complained of, reads as follows: “The Court instructs the jury that if you find and believe, that at the time-mentioned in evidence, that the defendant’s agent, servant and employee did not deprive the plaintiff of his freedom of movement, if so, or restrain his liberty, if so, or did not with malice assault plaintiff, if so, or did not put him in fear for his safety and physical well being, if so, or did not slander plaintiff, if so, then your verdict must be for defendant.”

This instruction in the disjunctive informed the jury that the verdict must be for the defendant if the jury found against plaintiff on any one or more of the elements mentioned in the instruction. In other words, the jury was told that even though plaintiff may have been deprived of his freedom, restrained of his liberty, assaulted, put in fear for his safety, and slandered, yet, if defendant’s agent “did not with malice assault plaintiff, * * * then your verdict must be for defendant.” We find no theory on which this instruction may be justified. The element of malice is, of course, important on the question of punitive damages. 35 C.J.S. False Imprisonment § 67, p. 776. Plaintiff, however, sought actual as well as punitive damages and the case was so submitted. The absence of malice is not a defense to actual or compensatory damages. 35 C.J.S. False Imprisonment § 64, p. 770; Comer v. Knowles, 17 Kan. 436, cited with approval in Perry v. S. H. Kress & Co., 187 Kan. 537, 1. c. 540, 358 P.2d 665.

In point three, plaintiff says the trial court should have declared a mistrial because the attorney for the defendant made statements -concerning plaintiff’s father when the father was on the witness stand. In the argument of the brief, plaintiff complains of the following statement made by defendant’s counsel in open court: “Mr. Walsh: The witness testified from the stand he has always had this boy with him, he has a high degree of care for the boy, he has not even paid for the child, support of this boy and had to be garnisheed. After he brought it out I have a right to impeach his testimony on that point.” When the father was on the witness stand, the following occurred while plaintiff’s counsel was examining the witness:

“Q. John is your grown son? A. Yes.
“Q. You have three daughters? A. Three daughters.
“Q. Two of whom now live with your former wife and the other is in a convent? A. That is correct.
“Q. Could you just tell the jury and the Court in your own words how you raised your son John? Mr. Walsh: I object to that, it wouldn’t have any bearing on this case.
“Mr. Silks: If your Plonor please, one of the elements—
“The Court: T will sustain that for the reason he could go on and on and tell how he raised his son. Ask him some questions.
“Q. (By Mr. Silks) Are you close to your son John? A. Very close.
“Q. Do you do things together ? A. Everything.
“Q. Such as? A. We hunt, fish, all sports, baseball, football games, we go to or he participated in.
“Q. Has that been ■ tr-ue- since- he . -was a small lad? A. Since he was a little boy.”

By that evidence, plaintiff, whose purpose could have been only to impress the jury, placed in issue the father’s attitude toward the son. The evidence with reference to the mother and plaintiff’s sisters 'had no bearing on any issue in the case. Defendant had the right to refute the evidence regarding the father since he (the father) testified as to the relationship between him and plaintiff. Plaintiff, by offering evidence concerning the good things about the family, cannot now complain because the opposing party offered evidence to the contrary. The sour must be taken with the sweet. On a retrial, the evidence should be confined to the life of plaintiff. He is the person directly concerned. Evidence relative to the lives of the other members of the family should not be introduced.

Plaintiff based an assignment of error on a ruling of the court which excluded evidence as to what the witness, then being examined, understood the words spoken by Ripley to mean. The statements attributed to Ripley were in our opinion ambiguous. The evidence should have been admitted. See 53 C.J.S. Libel and. Slander § 201b, p. 311; Frank v. Herring, 240 Mo.App. 425, 208 S.W.2d 783, 1. c. 788(2). Defendant, to justify the ruling of the trial court, says, among other reasons in the brief, that the question asked was leading and suggestive. We need not decide whether that contention is correct because the case must be remanded for the error in instruction No. 3. On a retrial, similar evidence may be offered and we therefore ruled the question of admissibility of such evidence.

Instruction No. 2, given at defendant’s request, of which plaintiff complains, covered the defense of justifiable detention on the theory that there was probable cause for Ripley’s actions. This subject was considered at length by this court in the case of Teel v. May Department Stores Co., 348 Mo. 696, 155 S.W.2d 74, 1. c. 77, 78 (1-3), 137 A.L.R. 495. What was said in that case should be a sufficient guide on a retrial of this case. It may be noted that justification for the detention of a person based on reasonable cause may be pleaded and by instruction submitted to a jury provided there is evidence to justify such submission.

For the reasons above indicated, the judgment of the trial court is reversed and the cause remanded. It is so ordered.

All concur.


author: LEEDY, Judge.

text:
    STATE of Missouri, Respondent, v. Sterling Willis YOUNG, Appellant.
    No. 48465.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1961.
    Sterling W. Young, in pro. per.
    Thomas F. Eagleton, Atty. Gen., Moody Mansur, Asst. Atty. Gen., for respondent.
   LEEDY, Judge.

Sterling Willis Y'oüng,' a prisoner in-the penitentiary, appeals- from the denial by the Circuit Court of the City of St. Louis of his motion to vacate and set aside the four separate sentences (previously imposed by said court) by virtue of which he is presently incarcerated. (Rule 27.26, V.A.M.R.) We shall refer to the prisoner-appellant as defendant.

Three of the four charges which culminated in the sentences now under attack were that of forcible rape; the other, burglary in the first degree. On January 7, 1959, defendant appeared in the trial court in person and by his privately retained counsel, Messrs. William Hirsch and Irl Baris, and, by leave, withdrew his former plea of not guilty in each of the four cases, and entered pleas of guilty. He was thereafter put on the stand by his counsel, and examined at some length, during the course of which it was developed that he not only understood the nature of the charges against him, but he also identified the localities in the City of St. Louis where, and the approximate dates during the preceding spring and summer on which he had committed the several offenses (his victims being white women, whereas he is a Negro). In the instance involving burglary, he described how he broke into the premises with part of his clothes off, i. e., pants, shoes and shirt, his story being that he was “either - looking for a woman or going to steal something.” It was further developed that he understood the significance of withdrawing his pleas of not guilty, and entering pleas of guilty; that he pleaded guilty “cause I did it.” He also stated that he had previously talked to the police about the matters to which he had testified, and that he recalled “signing some statements for the police.” He went on to say that his counsel (both of whom were present) had talked to him on a number of occasions about the case; that they had been retained by his family to represent him; that they arranged for him to be, and he was examined at the hospital “to see was I crazy”; that as a result of his stay at the hospital, and on the night before he left there, one of the doctors told him “he didn’t recommend Fulton.” Near the end of his oral examination, these questions were put to him by his own counsel, and he made these replies:

“Q. Sterling, have there been any promises made to you concerning your statement here in court today that if you told these things, that anything might happen to you, either for or against you? A. No, sir.
“Q. And it is your intention to enter this plea of guilty to these offenses that you have been charged with? A. Yes, sir.
“Q. Is that correct? And you understand that as a result of it, the Court has the power to sentence you to the penitentiary? A. Yes, sir.”

At the conclusion of the examination, the court assessed defendant’s punishment and accordingly entered judgments sentencing him to life imprisonment in each of the three rape cases, and to a term of ten years’ imprisonment on the charge of burglary in the first degree. The four charges under which these sentences were imposed were preferred by grand jury indictments, and the single assault defendant makes upon said sentences is thus stated in his motion to vacate and set aside: “Movant submitts that each of above crimes were charged by Grand Jury indictments; and that the material evidence presented to the Grand Jury, were statements and admissions of his own guilt, of which statements and admissions were obtained by the police officers through means of dress duress as set forth in the following particularity to-wit:” [Here follow allegations to this effect: First, that in violation of “Amendment Six (6), and Amendment Fourteen (14), Constitution of the United States,” he was “beaten, threatened, and subjected to inhuman, uncivilized treatment for over a period of four days,” during which time he “was subjected to continuous interrogation without being permitted to contact a lawyer, relatives, or friends”; and, secondly, that “in violation of Amendment 5, Constitution of the United States * * * and Art. I, Sec. 19 and Sec. 21, Constitution (1945) of Missouri [V.A.M.S.],” he was taken to a hospital ostensibly “for minor psychiatric examinations,” but instead was “injected intravenously with 2 cc of Sodium Amytal, alias ‘Truth Serum,’ and while under the influence of this drug was questioned by police officers about other crimes unrelated to the crimes for which movant was charged.”]

We do not pause to further notice the second (or last) of the foregoing allegations for the simple reason that it appears on their face that the subject matter of the claimed unlawful interrogation while defendant was under the influence of “truth serum” was wholly extraneous to the charges upon which the challenged sentences were imposed, such questioning having been (as the motion expressly alleges) “about other crimes unrelated to the crimes for which movant was charged.” In this connection, we take occasion to say that the instant proceeding is another example of an all-too-frequent type of afterthought attack, under Rule 27.26, upon the validity of a judgment and sentence in a criminal case (with its accompanying lagniappe by way of still another or added review on appeal, albeit, as here, vexatious), and so, as in the ordinary run of such cases, the “pro se” typewritten brief filed here in defendant’s behalf (admittedly prepared by a fellow inmate — obviously a lay person, and unlettered, too) has not been of the slightest assistance to the court, nor, in consequence, of any benefit to defendant.

We are not here concerned with the quashal or setting aside of indictments upon motion prior to trial or plea. On the contrary, the question presented is reduced to this: Assuming (as we must for present purposes) that defendant’s admissions of guilt as made to the police were rendered incompetent as evidence because coerced, and hence involuntary, does the fact that such incompetent evidence was heard by the grand jury render void and subject to collateral attack the sentence imposed on a plea of guilty to the indictment returned by that grand jury to which such incompetent evidence related? We unhesitatingly give a negative answer to the question thus posed.

The facts of this case readily distinguish it from those cases decided by the Supreme Court of the United States upon which defendant relies and which either hold or recognize that the introduction in evidence and use against an accused upon his trial of a coerced or involuntary confession (whether induced by psychological pressure or by physical violence) constitutes a denial of due process of law, contrary to the Fourteenth Amendment. (Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed. 2d 246; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 and Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, are the cases defendant cites.) To demonstrate the distinguishing factual difference to which reference has just been made, it need only be said that in the case at bar neither defendant’s own admissions of guilt, as made to the police, nor any other kind of proof was .offered or used on behalf of the state in the course of the proceedings whereby defendant’s pleas of not guilty were withdrawn, and in their place and stead his pleas of guilty were entered. .

If, as the cases hold, it is not ground for quashing an indictment that some incompetent evidence may have been heard by the grand jury (State v. Shreve, 137 Mo. 1, 5, 38 S.W. 548; State v. Pierson, 337 Mo. 475, 85 S.W.2d 48, 50-51), then it follows that the effect (of the use of some incompetent evidence before the grand jury) upon a judgment and sentence entered and pronounced upon a wholly voluntary plea of guilty would be no more rigorous and severe than in the case of timely pre-trial challenge by motion to quash, and certainly, in any event, not the drastic one of divesting the court of jurisdiction, or otherwise rendering the judgment and sentence void and thereby subject to collateral attack.

We fail to see how the use before the grand jury of the allegedly incompetent admissions could have affected defendant’s plea of guilty several months later. Had the grand jury returned the indictments in the absence of any evidence whatever, the way would have been open to defendant to impeach their validity by a timely and appropriate motion to quash. State v. Pierson, supra; State v. Grady, 84 Mo. 220, 223; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74. Failing in this, the way would still have been open to prevent the use of coerced admissions — if, in fact, they were such — by appropriate objection thereto interposed when the same were offered against defendant at his trial.

The view we have taken of defendant’s claims, as hereinabove expressed, make it plain that the records and files of the case show conclusively that he is entitled to no relief, hence the trial court’s order overruling his motion to vacate should be, and it is, affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    Martin ROSENBLOOM and Bluma Rosenbloom, His Wife, and Herman L. Litwack, and Mildred Litwack, His Wife, Plaintiffs-Appellants, v. Sam GROSSMAN and Rebecca E. Grossman, His Wife, Defendants-Respondents.
    No. 48571.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.

      Bernard Susman, St. Louis, for appellants (plaintiffs). William L. Mason, Jr., St. Louis, of counsel.
    John Grossman, St. Louis, respondents (defendants).
   HOUSER, Commissioner.

This is a suit in equity to ascertain and determine title to real estate, under Section 527.150 RSMo 1949, V.A.M.S., and for a judgment, in accordance with Section 527.-020 RSMo 1949, V.A.M.S., declaring that plaintiffs’ Lot 19, Block 22 of University Park in University City, is not bound by a certain recorded instrument in writing purporting to create an easement. Defendants’ answer claimed an easement over plaintiffs’ lot by the terms of that instrument, and also by prescription, and by necessity. The Circuit Court, declining to pass upon the effect of the written instrument, adjudged that plaintiffs were the fee simple owners of Lot 19, subject to an easement by prescription and a way of necessity in favor of defendants over the east 10 feet of Lot 19, for ingress and egress of automobiles as a driveway; that plaintiffs had no easement over defendants’ Lot 20, and enjoined plaintiffs from obstructing or interfering with defendants’ use of the easement and way of necessity. Plaintiffs appealed on the ground that the evidence was insufficient to support the judgment of the trial court; that the judgment creates a cloud on the titles of the lots of the respective parties. Plaintiffs ask for a declaration that defendants have no easement either by 'agreement, perscription or necessity, and for a dissolution of the injunction.

Under the pleadings and the decree of the trial court establishing an easement over plaintiffs’ lot, title to real estate is involved, and we have jurisdiction under the Constitution. Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894; Davis v. Lea, 293 Mo. 660, 239 S.W. 823.

In an equity action we review the entire record upon both the law and the evidence, and reach our own conclusions as to the facts, determining the credibility of the witnesses and the weight and value to be given the evidence, giving due deference to the findings of the trial chancellor, where proper. Long v. Kyte, Mo.Sup., 340 S.W.2d 623; Anderson v. Abernathy, Mo.Sup., 339 S.W.2d 817.

These are the pertinent facts: Separate apartment buildings were erected on the south side of the 7200 block on Amherst Street in University City on Lots 19 and 20, Block 22, University Park. Lot 19 lies immediately west of and adjoins Lot 20. Two-car garages were erected at the rear of each of the buildings. There is no alley at the rear of the premises. The only access to the garages is a driveway from the front. The distance between the walls of the two buildings is 14 feet. The driveway between the buildings is 14 feet wide. Ten feet of this width lies on Lot 19 and 4 feet of this width lies on Lot 20. From Amherst Street to the building line the driveway is only 10 feet wide. This part of the driveway lies altogether on Lot 19. Ingress and egress to and from defendants’ garage over this entrance therefore is impossible without passing, over plaintiffs’ land. While ingress and egress to and from plaintiffs’ garage may be physically possible without passing over defendants’ 4-foot strip and the concrete apron in front of defendants’ garage doors, it is not feasible or practical. Rosen-bloom’s automobile, 15 feet long, could be driven into his garage by driving straight down his 10-foot strip to the wall at the rear of the premises, then backing into the garage, but this would be difficult, awkward and inconvenient. It would be an engineering feat to drive a second automobile into and out of plaintiffs’ garage without encroaching upon defendants’ 4-foot strip. It is of great advantage to drivers using plaintiffs’ garage to have the use of defendants’ 4-foot strip and the concrete apron in front of defendants’ garage. Sam Gross-man and wife were grantees in a deed to Lot 20 dated February 19,1945, acknowledged February 23, 1945, delivered March 20, 1945, and recorded on March 22, 1945 at 10:40 a. m. Guy C. Chamberlain and wife were grantees in a deed to Lot 19 by deed dated April 18, 1945, acknowledged May 25, 1945, and recorded May 25,1945. On March 14, 1945, before the delivery of these deeds, the Grossmans and Chamberlains, intending to become next-door neighbors, entered into an agreement, Exhibit 1, which follows:

“Agreement
“Whereas, Samuel Grossman and Rebecca E. Grossman, his wife, are the owners of the following described property situated in the County of St. Louis and State of Missouri, to wit:
“Lot 20 in Block 22 of University Park, a subdivision as recorded in Plat Book 16 pages 38 and 39 of the St. Louis County records. And
“Whereas, Guy C. Chamberlain and Genevieve E. Chamberlain, his wife are the owners of the following described property situated in the County of St. Louis and State of Missouri, to wit:
“Lot 19 in Block 22 of University Park, a subdivision as recorded in Plat Book 16 Pages 38 and 39 of the St. Louis County records. And
“Whereas, there is a driveway between the two parcels of improved property above described serving as entrance to the garages on each property;
“Now, Therefore, in consideration of the mutual benefit to arise to the future owners of said lots, the parties hereto establish and create an easement over the West four feet two inches, more or less, of Lot 20 and over the East ten feet, more or less, of Lot 19 of the above described properties extending, from the front concrete walk to the rear of said lots and over the aprons adjoining the front of the garage doors on the rear portions of said lots, for ingress and egress of automobiles as a driveway for the benefit of the present and future owners of said properties. The owners of the above described properties further agree not to allow parking of automobiles in the area reserved for the joint use of the driveway between the two buildings. The present and future owners agree to divide the expenses for the maintenances or repairs of the driveway in the area between the two buildings from the concrete walk to the rear of said lots.
“In Witness Whereof said parties have hereunto set their hands this 14th day of March, 1945.
“Guy C. Chamberlain
“Genevieve E. Chamberlain
“Samuel Grossman
“Rebecca E. Grossman”

This instrument, acknowledged in due form, was filed for record with the Recorder of Deeds March 22, 1945, at 10:41 a. m. From the time defendants moved into the property in June, 1945 to the date of trial on May 9, 1960 defendants used the driveway in accordance with the rights reserved under the provisions of Exhibit 1. From 1940 to 1947 a tenant who lived in defendants’ building used the driveway, without any special agreement. Servicemen, such as electricians, pickup trucks and grocery trucks, used the driveway through the years. Plaintiffs Rosenbloom and Litwack, and their wives, became the owners of Lot 19 on May 26, 1953 and moved into the property in June, 1953. Nothing was said about the driveway by the Grossmans or plaintiffs when the latter moved in, but thereafter plaintiffs began to use the driveway for other purposes than ingress and egress to the garage. Rosenbloom parked his car in the driveway at the back door of his house to load and unload things. A portable plastic swimming pool was placed in the driveway for the use of Litwack’s children. Rosenbloom broke the concrete and installed two-inch sleeves or pipes in the driveway to receive removable clothes poles and used the driveway for the hanging of clothes to dry. Grossman protested and in reply Rosenbloom said, “You stay on your side, on your, four feet, and we’ll do what we want on our ten feet.” Both parties consulted counsel and on October 19,1953 plaintiffs’ counsel wrote Grossman a letter demanding the payment of $5 per month for the use of the driveway. Grossman did not pay, continued to use the driveway as before, and thereafter made repairs to the driveway over the major portion of the length of the driveway, “clear across” its 14-foot width, at a cost of $495. Grossman made demand upon plaintiffs for their share of the cost, and upon refusal to pay filed suit against plaintiffs. In that suit plaintiffs counterclaimed in two counts. Count I sought a declaratory judgment declaring the invalidity of the easement. Count II, in the alternative, sought reimbursement from defendants, under the terms of the easement, for one half the sums spent by plaintiffs repairing the driveway. That suit is now being held in abeyance pending the outcome of the instant litigation.

In their brief plaintiffs as appellants first make the point that the evidence was insufficient to establish prescriptive rights in defendants by adverse user, or that the way over Lot 19 was a way of necessity. We do not dwell on the questions whether defendants have prescriptive rights, or a way of necessity, in the use of the east 10 feet of Lot 19, because we are convinced that the rights of the parties are governed by Exhibit 1.

While ordinarily easements are created by grant or prescription, they may be acquired by agreement. 17A Am.Jur. Easements, § 27; 28 C.J.S. Easements §§ 23, 28; Jones on Easements, § 104. Where the owners of adjoining lots contract for reciprocal easements which enhance the usefulness and value of their respective properties and entitle each to use the property of the other for the purposes of ingress and egress, as a driveway, “the way is annexed as an easement to their lands, and by a subsequent conveyance by either, his grantee takes the benefit of the right of way which his grantor had, and holds his land subject to the burden impo'sed by the agreement of the original owners.” Jones on Easements, § 104. Easement agreements of this general nature may be enforced in equity by one of the owners, St. Louis Safe Deposit & Savings Bank v. Kennett Estate, 101 Mo.App. 370, 74 S.W. 474, or by a purchaser from one of such owners, against a purchaser from the other with notice. Jones on Easements, § 104, p. 83. The mutuality of the covenants of adjoining landowners thus imposing cross restrictions upon each other’s lands is a sufficient consideration for their respective grants. 17A Am.Jur. Easements § 27. “Owners of adjoining lots of land may impose mutual restrictions upon the land of each, and the mutuality of their covenants is a sufficient consideration for their respective grants. Their covenants in such a case are construed as grants of reciprocal easements which may be enforced in equity when the remedy at law is insufficient.” Jones on Easements, § 113. Exhibit 1 does not contain the word “grant” but the use of that word is not necessary if the intention to constitute a grant of an easement is manifest. Goddard on Easements, Sixth Edition, p. 152; 17A Am.Jur. Easements § 27. “No particular words are necessary to constitute a grant, and any words which clearly show the intention to give an easement, which is by law grantable, are sufficient to effect that purpose, provided the language is certain and definite in its terms.” 28 C.J.S. Easements § 24, p. 677. The intention of the Grossmans and Chamberlains to establish, create and grant to each other reciprocal easements for their mutual benefit is plain to see by reading Exhibit 1. The description of the land subjected to the servitude is definite and sufficiently precise. The covenants of the parties embrace acts relating to and affecting the use of land, entered into not on a temporary but on a permanent basis, not only for the benefit and toi the burden of the parties signatory, but also expressly for the benefit and to the burden of “the future owners of said lots.” The intention of the parties to bind their heirs and assigns thus clearly appears. These are covenants running with the land, which are attached to and encumber both lots. Exhibit 1, entered into with all the formalities necessary for the conveyance of land, was recorded, thus giving notice of the encumbrances to all the world. Plaintiffs, subsequent purchasers of Lot 19 with constructive notice that Lot 19 was burdened with an easement, took subject to the easement. Jones on Easements § 118. They are bound by the agreement of their predecessor in title, 17A Am Jur. Easements § 158, and must fail in their principal contention.

Plaintiffs object that the consideration recited in Exhibit 1 (“the mutual benefit to arise to the future owners of said lots”) was no consideration at all, because plaintiffs have sufficient access to their garage by using their own 10-foot strip, without using the 4-foot strip in defendants’ lot; that there was no benefit to plaintiffs; that plaintiffs’ lot was burdened without benefit, and defendants’ lot was benefited without burden; that with no mutuality in the agreement, the consideration fails. The whole of the testimony on this issue, considered in connection with the plat of the premises and the several excellent and illuminating photographs of the garage entrances and areaway in question, convinces us that there is no merit in plaintiffs’ claim that the easement over Lot 20 confers no benefit upon them. Grossman testified that people entering or leaving plaintiffs’ garage “use the entire portion of the driveway” in getting in and getting out; that “[N]o car can get in or get out from either garage without using the entire apron — my part and their part.” Rosenbloom testified that his car is 15 feet long; that the way hf entered his garage was to drive straight down the 10-foot strip “all the way to the wall, and back into the garage.” Evidently such maneuvering was rarely undertaken, for Ros-enbloom only “occasionally” used the garage, “when the weather was bad,” and admitted that “here lately” he had been using the garage for storage of materials cleaned out of the basement. Pressed on the question, Rosenbloom could not remember whether he had put his automobile in the garage as many as ten times in the past seven years. We conclude that ingress and egress to and from the garages on Lots 19 and 20 in an automobile is a practical impossibility unless an automobile driver uses the parts of both lots described in Exhibit 1; that the owners of Lot 19 were benefited by the easement, and that the mutual covenants constituted a sufficient consideration.

Plaintiffs strenuously object that the parties to Exhibit 1 were mere strangers to the title, neither owning the property at the time of its execution; that an easement, being an interest in real estate, can be conveyed in no other way than “by deed executed by any person having authority to convey the same, or by his agent or attorney * under the provisions of RSMol939, § 3401, in effect at the time of the execution of Exhibit 1; that the burden was upon defendants to prove, but defendants failed to prove, that the Chamberlains were the owners of the property when Exhibit 1 was signed or had authority to sign Exhibit 1 as the agents or attorneys of the owner. Plaintiffs regard Exhibit 1, if valid at all, as nothing more than a mere private agreement between the defendants and Chamberlains, not binding upon plaintiffs. Defendants’ answer alleged that the parties who executed Exhibit 1 were the owners of their respective lots on March 14, 1945, the date Exhibit 1 was signed, and claim they made a prima facie case of ownership by introducing Exhibit 1 in evidence. They say the effect of § 3435, RSMo1939, was to make the certificates of the notaries who took the acknowledgments of the signatures on Exhibit 1 “evidence of all the facts recited therein,” including the recitals of ownership, citing Sanders v. Raster, Mo.Sup., 222 S.W. 133. The difficulty with this is that there was evidence that the warranty deed by which defendants took title, although executed prior to March 14, 1945, was not delivered until after that date, and that the warranty deed by which the Chamberlains took title was not executed until April 18, 1945. Delivery is essential to the validity of a deed, which takes effect from the date of delivery and not from the date of execution. Sando v. Phillips, Mo.Sup., 319 S. W.2d 648. Presumably Lots 19 and 20 were owned by the grantors named in those deeds, and they may be presumed to have intended to convey land to which they had title. 26 C.J.S. Deeds § 100b., 26A C.J.S. Deeds § 182f. Looking at the facts realistically, we conclude that the Grossmans and the Chamberlains did not have title to Lots 20 and 19 when they executed Exhibit 1. This, however, is not the end of the matter. Contracts are expressions of the intentions of parties, and although the parties did not actually have title on March 14, 1945, they nevertheless clearly evinced an intention to burden the lots with the easements after they acquired title, Albers v. Acme Paving & Crusher Co., 196 Mo.App. 265, 194 S.W. 61, 70, and the after-acquired title would be sufficient. In Kansas City Milling Co. v. Riley, 133 Mo. 574, 34 S.W. 835, one who did not actually hold legal title subdivided certain lands and undertook to dedicate streets by the filing of a plat. It was held that although this was ineffectual as a statutory dedication of the streets, a subsequent conveyance which cured the defect in his title enured to his benefit and cured the defect in the dedication of the streets. In Wells v. North East Coal Co., 255 Ky. 63, 72 S.W. 2d 745, the court treated a like problem in this manner, 72 S.W.2d, 1. c. 747: “But we perceive no reason why as between the parties there may not be an agreement or contract to grant an easement appurtenant to property to be acquired in futuro, which, as between the parties and their privies with notice, is enforceable when the dominant tenement is acquired, just as a mortgage covering after-acquired property is good as between the parties and their privies with notice. See United States Cast Iron Pipe & Foundry Co. v. Henry Vogt Machine Co., 182 Ky. 473, 206 S.W. 806. Therefore, conceding that the property from which the coal is now being taken was not in the ownership of Mayo at the time of the Burchett deeds, yet, when such land was acquired, as between Burchett and her privies with notice, appellant being such, and Mayo and his privies, the easement attached thereto by virtue of the Burchett deed.” So we construe Exhibit 1 as an agreement to grant easements appurtenant to lots to be acquired in the future. While it had no effect upon the title before delivery of the Grossmans’ and Chamberlains’ deeds, the easements attached to the respective lots upon the occurrence of these events. And Exhibit 1 having been recorded, the easements were binding upon Chamberlains’ subsequent grantees, including plaintiffs.

Accordingly, the judgment of the circuit court is affirmed insofar as it (1) finds that plaintiffs are the fee simple owners of Lot 19, subject to an easement; (2) describes the easement; (3) finds that defendants are the fee simple owners of Lot 20; (4) grants injunctive relief; and (5) assesses the costs against plaintiffs, but is reversed insofar as it (a) finds that defendants’ rights rest in prescription or necessity; (b) finds that plaintiffs had no easement over Lot 20, and (c) fails to declare the rights of parties under Exhibit 1; and the cause is remanded with directions to the circuit court to set aside its judgment and decree of August 24, 1960 and enter a new judgment and decree as of that date consistent with the views expressed in this opinion.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.