author: HYDE, Judge,

text:
    STATE of Missouri, Respondent, v. Vito CUSUMANO, Appellant.
    No. 49876.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.
    Opinion Modified on Court’s own Motion and Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 9, 1963.

      O’Hanlon & Daly, Robert J. O’Hanlon, Richard L. Daly, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, William L. Hungate, Sp. Asst. Atty. Gen., Troy, for respondent.
   HYDE, Judge,

Defendant was convicted of perjury and sentenced to two years’ imprisonment. Secs. 557.010, 557.020 (statutory references are to RSMo and V.A.M.S.) Defendant has appealed and contends the court erred in refusing to sustain his motion for a directed verdict at the close of the entire case.

The indictment charged defendant with falsely swearing: “That he, Vito Cusu-mano, saw Edward Brown, the deceased, display and exhibit a .32 caliber automatic pistol in the presence of Joseph Costello in the Tic Toe Club located at 421 DeBali-viere, St. Louis, Missouri, on February 10, 1962, shortly prior to 4:00 P.M. and that he, Vito Cusumano, at this same aforementioned time and place heard one ghot fired, then saw Joseph Costello on the floor with Edward Brown, the deceased, lying on top' of Joseph Costello, when he then heard more shots, whereas, in truth and in fact, Edward Brown, the deceased, did not have any kind of a weapon in his hands and there were no shots fired while Edward Brown, the deceased, was lying on the floor on top of Joseph Costello; but on the contrary, Vito Cusumano did not see Edward Brown, the deceased, display and exhibit a .32 caliber automatic pistol in the presence of Joseph Costello in the Tic Toe Club located at 421 DeBaliviere, St. Louis, Missouri; on February 10, 1962, shortly prior to 4:00 P.M., and Vito Cusumano did not hear any shots fired when he saw Joseph Costello lying on the floor with Edward Brown, the deceased, lying on top of Joseph Costello.”

Defendant’s alleged perjured testimony was given before a grand jury investigating the killing of Edward Brown by Joseph Costello at the Tic Toe Club operated by Brown. Costello was indicted for second degree murder but died before being brought to trial. The killing resulted from an altercation between Brown and Costello over an arrangement they were making for Costello’s taxicabs to bring persons to Brown’s establishment for which Brown was to pay Costello one thousand dollars. Brown had paid three hundred and was to pay the rest by Friday, February 9, 1962. It had not been paid and Costello drove to Brown’s Club on Saturday afternoon, February 10th, to see about it. Costello took with him his niece Valerie Pilcher, Mel Soles (who worked for Costello) and Mrs. Thyra McGinty, an employee of Brown, who was to get her pay for the week at that time. Before going to the Club, Soles and Mrs. McGinty had gone to the airport, where Costello met Valerie, after which they went to a restaurant and then to the office of Costello’s taxicab company. While there Costello called defendant to find out whether Brown had given defendant the money due Costello and then took an automatic pistol out of a desk drawer and put it in his pocket. (It was identified as the .32 caliber pistol used to shoot Brown.) When they reached the Club, Brown was there alone but defendant came in soon, having followed them in his car. Mrs. McGinty and Valerie went to the dressing room to look at costumes. Soon afterward Mrs. McGinty heard “something, sounded like a chair hit the floor” and Soles came running back and said: “You girls have to get out of here, there is going to be trouble.” She heard Costello say: “If we can’t settle it one way, there is always another way to settle it.” As Mrs. McGinty ran in front of the bar, she saw Brown on top of Costello backed up against an overturned table leaning against the wall. Costello yelled for somebody to get him off of him and defendant pulled Brown off.

Mrs. McGinty further testified: “He pulled him back toward the cigarette machine and Joe Costello picked the gun up off the floor and he shot him. * * * Q And you saw Cusumano pull Brown back there; is that right? A Yes, sir. Q And did you say that Costello picked up a gun and did something? A He shot him. Q Where was the gun at the time you saw it? A It was lying on the floor. * * * Q You say Costello picked up the gun and — A He did it like I would bend over and pick up something, he sort of stumbled and picked it up and — Q Did he fire the gun? A Yes, sir. Q And where was Brown at the time he fired the gun? A He was standing back there (indicating) and Vito was pulling him back — not because he did the shooting, but because he was trying to get him away from Joe Costello. Q Did Costello advance toward Brown at the time he was shooting? A Yes, sir. Q And what happened then ? A Well — and as he went in to him he was fighting like this and Vito sort of, oh, let him go * *

On cross-examination, Mrs. McGinty testified that she heard no shots before she saw the men in the corner by the table, or on the table. She said defendant pulled Brown “all the way to the cigarette machine” ; that she saw Costello “stumble out, like, and pick up that gun”; that at the time, Brown was “away back here (indicating)”; and that after getting the pistol Costello shot four times. She further testified: “Q (By Mr. Daly) Now, when Mr. Soles came back here (indicating) and said: ‘There is a commotion, there is trouble, you better get out of here,’ you could not see any one at that time; is that correct? A No, sir. Q Just the girl and Mr. Soles; is that right? A Yes, sir. Q I will ask you at this time: can you tell us, when Mr. Soles came back and made this statement to you, did Ed Brown have a gun in his hand at that time? A I can’t say. I couldn’t see him. How could I see? Q You can’t say? A I can’t say if I couldn’t see him.”

A model representation of the Tic Toe Club room was used in connection with the testimony at the trial with the witnesses indicating positions on this model. Neither Soles nor Miss Pilcher testified at the trial. It was stated by defendant’s counsel at the oral argument herein that they refused to testify. Defendant’s testimony at the trial, as to the shooting, was substantially the same as that given before the grand jury.

Defendant relies on the rule that perjury must be proved by the testimony of two witnesses or one witness and strong corroborating circumstances, citing State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 325. (See also statement of the rule in State v. McGee, 341 Mo. 151, 106 S.W.2d 480, 482, 111 A.L.R. 821.) There were two charges of perjury in the indictment and as defendant says the state had to prove one of the following: “(1) that Vito Cusumano did not see Edward Brown, the deceased, display and exhibit a .32 caliber automatic pistol in the presence of Joseph Costello, etc.; (2) that Vito Cusumano did not hear any shots fired when he saw Joseph Costello lying on the floor with Edward Brown, the deceased, lying on top of Costello.”

It is true, as defendant contends, that the state had no witness who saw the parties at the beginning of the altercation and could say that Brown did not have a pistol in his hand prior to the time when Mrs. McGinty saw them struggling on the floor (or against an overturned table) with Brown on top of Costello. It was also shown by several state’s witnesses that Costello had been shot in the left forearm, the bullet going through and out without striking a bone. There is no explanation in the evidence as to how or when Costello was shot. Four .32 caliber shell casings were found in the room by the police who were soon there making a thorough investigation; also a clip with one live shell in it was found there. Four bullets were accounted for, three taken from Brown’s body and one that went through the north wall 18 inches above the floor and was found in an adjoining building. Two automatic pistols owned by Brown were found in the Club by the police, one of larger and one of smaller caliber than Costello’s pistol. The .32 caliber shells could not be used in them and both were fully loaded. One was found in a locked cabinet and the other on a shelf behind the bar covered with cobwebs and dirt. Thus, while the state had no direct testimony of anyone, who saw the beginning of the altercation, that Brown did not have a pistol in his hand before Mrs. McGinty saw them struggling in the corner, there was strong circumstantial evidence to show he did not. No pistol that had been fired was found, and no shell casings from any pistol, except Costello’s pistol, were found. However, Costello was shot through the left forearm and certainly the evidence does not indicate he shot himself; but of course he could have been shot in a struggle over the pistol before Mrs. McGinty came into the room. Nevertheless, according to the state’s evidence the pistol was on the floor, out of the possession of either of the men, when Mrs. McGinty first saw it at the Club. She said Costello picked his pistol off the floor when defendant pulled Brown off so it is evident that Costello did not have control of it all the time. Even if no other pistol was involved, it is left uncertain as to whether or not Brown might have had possession of this one at some time. Therefore, we must hold that the state did not make a sufficient showing by direct contradictory testimony of any witness for submission of the issue of perjury of defendant in stating that he saw Brown have a pistol in his hand before Mrs. McGinty came into the room.

However, as to whether the shots that killed Brown were fired while Costello and Brown were on the floor with Brown on top of Costello, as defendant testified before the grand jury, or whether they were fired after defendant had pulled Brown off of Costello and Costello had picked his pistol off the floor as Mrs. McGinty testified, there is a clear and complete conflict between the testimony of defendant and Mrs. McGinty. Of course, this was very material on the issue of whether Costello was guilty of a crime, either second degree murder or manslaughter. There were also strong corroborating circumstances for Mrs. McGinty’s version by the fact that Costello armed himself before going to the Club with the pistol she said he used (police investigation identified the ammunition used as his), as well as what he said about “another way to settle it,” the results of the police investigation of the premises as to weapons and ammunition found, and the nature of the wounds Brown sustained, one in the right chest “two inches medially toward the center of the nipple line,” one in the left chest “at the level of the ninth rib,” and one in the left buttock, the latter wound especially not likely to have been inflicted while Brown was on top of Costello (face to face) on the floor. Defendant argues this latter wound supports defendant’s testimony that all shots were fired while the men were struggling on the floor (and also says the fact the bullet hole in the wall was only 18 inches above the floor supports that version) but we conclude that the jury more reasonably could take the other view if Mrs. McGinty’s testimony was believed. Our conclusion is that the state’s evidence was sufficient to submit perjury in this testimony of defendant and the court properly overruled defendant’s motion for a directed verdict.

Defendant alleges error in giving Instruction No. 2 because the state’s evidence would not sustain a conviction of perjury by defendant in testifying he saw a pistol in Brown’s hand. Instruction No. 2 authorized a finding of guilty if the jury found defendant falsely testified “that he, Vito Cusumano, saw Edward Brown, the deceased, display and exhibit an automatic pistol in the presence of Joseph Costello in the Tic Toe Club located at 421 DeBaliviere, St. Louis, Missouri, on February 10, 1962, shortly prior to 4:00 p. m., and that he, Vito Cusumano, at this same aforementioned time and place heard one shot fired, then saw Joseph Costello on the floor with Edward Brown, the deceased, lying on top of Joseph Costello, when he then heard more shots; (whereas, in truth and in fact, Edward Brown, the deceased, did not have any kind of a weapon in his hands and there were no shots fired while Edward Brown, the deceased, was lying on the floor on top of Joseph 'Costello) ; but on the contrary, Vito Cusumano did not see Edward Brown, the deceased, display and exhibit an automatic pistol in the presence of Joseph Costello in the Tic Toe Club located at 421 DeBaliviere, St. Louis, Missouri, on February 10, 1962, shortly prior to 4:00 p. m., and Vito Cusumano did not hear any shots fired when he saw Joseph Costello lying on the floor with Edward Brown, the deceased, lying on top of Joseph Costello.”

Defendant cites State v. Blize, 111 Mo. 464, 473, 20 S.W. 210, in which two assignments of perjury were contained in the indictment, one of which “general reputation * * * for virtue and chastity” of a complaining witness, was submitted in a way which the court said “[was] well calculated to mislead the jury as to what evidence would be required to convict defendant of swearing falsely to the reputation of complaining witness.” The other perjury charge was that the defendant falsely swore that he himself had had sexual intercourse with the prosecutrix. While one of the instructions submitted both of these charges, the other submitted only the one as to general reputation and the court said it improperly referred to a specific act as evidence from which general reputation could be shown. The court’s conclusion was: “As the case was submitted, we are unable to say upon which charge the verdict was rendered” and the judgment was reversed and the cause remanded. Defendant also cites 70 C.J.S. Perjury, § 73, p. 545, stating: “Where there are several assignments of perjury, the jury should ordinarily be informed as to which assignment or assignments of false testimony are submitted to them as a basis for their verdict.”

However, Instruction 2 submitted all matters conjunctively and, while the state lacked direct testimony of a witness that Brown did not have a pistol in his hand before he was seen on top of Costello on the floor, nevertheless as we have noted there was strong circumstantial evidence that he did not. The thorough police investigation showed only Costello’s pistol involved. The facts shown by this investigation, the nature of Brown’s wounds and Mrs. McGinty’s testimony as to what occurred in strong circumstantial evidence that Brown did not have a pistol in hand. Some courts have held that perjury can be found from circumstantial evidence only. 41 Am.Jur. 35, Perjury, Sec. 65; Annotations, 15 A.L.R. 639, 27 A.L.R. 857, 42 A.L.R. 1063; 70 C.J.S. Perjury § 60, p. 532. While we adhere to our rule of direct contradictory testimony of one witness and strong corroborating circumstances for conviction in this kind of a perjury case (which Instruction 3 herein stated to the jury), we have also held the effect-of such a conjunctive submission is “to impose upon the state a greater burden than that which the law imposed upon it,” and, therefore, not prejudicial to the defendant. In State v. Anglin, Mo.Sup., 222 S.W. 776, the criticised instruction required a finding that the defendant “did wrongfully take and carry away $100 lawful money of the United States and one diamond ring.” In that case, the evidence did not prove both charges of stealing but the court held the conjunctive submission not prejudicial saying: “Learned counsel for appellant, however, seems to mistake the effect of this instruction; for he says that it 'authorizes the jury to convict defendant of the offense of grand larceny if they find that he stole, took and carried away either the currency or the diamond ring.’ A reading of the instruction discloses the error of this statement. The jury was required by the instruction to find the defendant guilty only in the event that it found that he stole both the currency and the ring.” See also 1 Raymond Missouri Instructions 62, and cases cited, Sec. 69; State v. Wakefield, 73 Mo. 549; State v. Bunyard, 253 Mo. 347, 161 S.W. 756; State v. Baird, 271 Mo. 9, 195 S.W. 1010; State v. Daegele, Mo. Sup., 302 S.W.2d 20, 26; State v. Brim, Mo.Sup., 339 S.W.2d 775, 779. The rule of harmless error from conjunctive submission “does not apply where one of the several grounds of negligence conjunctively submitted is an improper statement of the law and a positive misdirection.” Miles v. Gaddy, Mo.Sup., 357 S.W.2d 897, 901; see also Donaldson v. Manzella, Mo.Sup., 338 S.W.2d 78, 83. However, as we have stated, in this case the state did have strong circumstantial evidence on this issue, there was no improper statement of the law and the state had ample proof to sustain a conviction on the other charge of perjury submitted. Therefore, we hold this instruction only imposed on the state a greater burden than was properly required of it and the instruction was not prejudicially erroneous.

Defendant also claims error in allowing Mrs. McGinty to testify to activities of and conversations with Costello, Soles and Miss Pilcher; allowing testimony of police officers concerning search of Costello’s home, finding .32 cartridges there and stating the tests made of them; and allowing testimony of police officers and a doctor concerning the arrest of Costello at Barnes Hospital and his condition at that time. Defendant concedes “some evidence of the nature of the events leading to the shooting was necessary to make the subject matter of the appellant’s alleged perjury intelligible to the jury” but says “what happened after the shooting was not background material, or no longer an explanatory preamble to the evidence of the shooting on which the charge of perjury was brought”; and that by allowing it “the issue of the murder was accentuated, the defendant’s counsel was drawn into cross-examining each witness at great lengths on irrelevant issues.” There were few objections to the testimony concerning what was said and done before the shooting and we find no prejudicial error in the rulings on them. The testimony of the police officers concerning the cartridges they found and tests on them was properly admitted because this evidence tended to show that Brown did not have or use a pistol there and that the only pistol involved was the one owned by Costello. Thus this was competent and material evidence on the issue of perjury of defendant.

Defendant states the objectionable testimony as to what occurred after the shooting, as follows: Mrs. McGinty “was allowed to testify that after the shooting and outside the presence of appellant, she got into the car with Costello, Soles and Pilcher; that Costello wanted to throw the gun in the river, that Valerie Pilcher put the gun in her purse, and that Costello went to the doctor’s office. She then testified about her movements back at the Tic Toe, back at the hotel, her conversation with appellant at his apartment and finally her arrest.” Objections as to what Costello said he wanted to do with the gun were sustained and no other action was requested. Defendant’s objections to Mrs. McGmty’s testimony, as to what she did after leaving the hospital, were to giving reasons for what she did and as to conversations with others not involved and these were sustained. Two objections were made to questions as leading and one sustained. Certainly Mrs. McGinty’s testimony about defendant advising her to go back to Chicago and offering to assist her to go to the airport to do so was properly received. State v. Faulkner, 175 Mo. 546, 75 S.W. 116, 130, cited by defendant is not in point on this situation. As to the testimony of the police officers and the doctor concerning the gunshot wound in Costello’s left forearm, this was not prejudicial to defendant because it was a circumstance tending to prove he told the truth about Brown having a pistol that evening. Our conclusion is that there were no prejudicially erroneous rulings on admission of the testimony of which defendant complains.

Defendant further claims error in overruling his objection and request for a mistrial made because of a statement of the prosecutor in his closing argument. The state says this was retaliatory and invited by statements of defendant’s counsel and it appears that the trial court could properly have so considered it. Defendant’s counsel commented several times on the failure of the state to produce Mel Soles and Valerie Pilcher to testify, concluding as follows:

“We don’t know what Valerie Pilcher saw. Four people were in there. The burden is on the State to prove his guilt, and wouldn’t it be nice to know what Valerie would say? If she were here, what would she say? What did Jamie Glanton (Mrs. McGinty) tell Lieutenant Frank O’Neill? He is right across the street. When he took her down there, what did she say ? Wouldn’t it he nice to know? Wouldn’t it be helpful to you to decide this case, if you could say, ‘Here’s what she told O’Neill’? The burden is not on me; I don’t have an investigative force to send people to Connecticut and everywhere. That burden is on the State. If he is cheated, and he is cheated when they don’t bring those witnesses in, you are cheated, because under your oath, you have the responsibility of deciding this thing today.” (Parenthetical insert ours.)

Thereafter the prosecutor said:

“Mr. Daly asks where are Valerie Pilcher and Melvin Soles. Well, I wish that they were here, too. I wish that they could tell you what went on in here. I can’t tell you what I know about it, because under the Rules of Evidence that’s not admissible.”

On what theory defendant thought it would be admissible for the state to show what Mrs. McGinty told a police officer about the occurrence is not explained and this would be some basis for a reference to the rules of evidence. In any event, the trial court has considerable discretion in acting on retaliatory statements and the appellate court must rely to some extent upon this discretion. State v. Fuller, Mo. Sup., 302 S.W.2d 906; see also State v. James, Mo.Sup., 347 S.W.2d 211; State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, certiorari denied 352 U.S. 936, 77 S.Ct. 237, 1 L.Ed.2d 167; State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, and other cases under <&=3726, Criminal Law, West’s Missouri Digest. Although we do not approve the statement made, our conclusion is that abuse of the trial court’s discretion is not shown and this assignment of error is overruled.

Defendant’s other assignments of error are that the court refused to permit him to have the entire transcript of his testimony before the grand jury prior to the trial and that when the entire transcript was tendered to him by the state immediately before the trial he should have been given additional time to study it. A week before the trial began, defendant requested “an order allowing to inspect and copy the transcript of his testimony.” The court ordered the defendant be furnished all questions and answers on the following issues:

“(1) Whether defendant saw Edward Brown display and exhibit a pistol in the presence of Joe Costello in the Tic Toe Club located at 421 DeBaliviere, St. Louis, Missouri on February 10, 1962 shortly prior to 4 P.M., and (2) Whether defendant heard one shot fired, and whether defendant saw Joe Costello on the floor with Edward Brown lying on top of Joe Costello, and whether the defendant then heard more shots.”

A transcript of this testimony (three and a half pages) was given to defendant. On the morning of the day the trial began, prior to the voir dire examination, the entire transcript of defendant’s testimony (54 pages) was tendered to defendant in the court’s chambers. Defendant’s counsel orally requested a reasonable amount of time prior to the trial to examine the transcript and the state said there was no objection to that provided the case was “not continued beyond today.” The court stated it would not continue the case but would bear the matter in mind “in connection with the progression of the case” but did not think “it should interfere with the selection and impanelling of the jury.” No actual application for a continuance was made and the only objections made concerned failure to order the entire transcript produced originally and “because that part which was produced was not extracted by the Court, but was extracted ex parte by the Circuit Attorney’s Office.” However, the part first furnished contained all of defendant’s testimony before the grand jury that the state offered in evidence at the trial. Defendant made no request for additional time when the court convened that afternoon to hear the first witness or thereafter. We have said the trial court has discretion to permit inspection of testimony before a grand jury. State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 153; State v. Brinkley, 354 Mo. 337, 189 S.W. 2d 314, 335; State ex rel. Clagett v. James, Mo.Sup., 327 S.W.2d 278, 291. After the latter case, we adopted Criminal Rule 24.24, V.A.M.R. authorizing the court to permit inspection of such testimony “upon a finding of necessity to meet the ends of justice, preliminary to or in connection with a judicial proceeding, either civil or criminal.” This was intended to and does give the court wide discretion within the limitations stated in the Rule. Since defendant was timely given all his grand jury testimony used by the state at the trial and there is no showing of materiality or importance to his defense of the rest of his testimony given to him before the trial began, we find no abuse of discretion in the court’s action in limiting- the grand jury testimony ordered to be furnished defendant or in its action concerning allowance of time after the entire transcript was delivered.

We have examined the record as required by our Rules 28.02 and 28.08 and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    BAKELITE COMPANY, a Corporation, Substitute Union Carbide Corporation, Appellant-Respondent, v. J. H. MILLER and Shirley A. Miller, Appellants-Respondents.
    No. 50098.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.
    Motion for Rehearing or to Modify Opinion and to Transfer to Court En Banc Denied Dec. 9, 1963.

      Brown & Normile, Edina, for plaintiff-appellant.

      Schmiedeskamp, Jenkins & Robertson, Quincy, Ill., Carstarphen, Harvey & Was-inger, Harry Carstarphen, Hannibal, for defendants-appellants-respondents.
   COIL, Commissioner.

A division of Union Carbide Corporation, called Bakelite Company, brought an action against J. H. Miller and his wife, Shirley, in two counts, seeking to recover an alleged indebtedness evidenced by six promissory notes each in the sum of $2,000 executed by J. H. Miller Manufacturing Company, a corporation, payable to plaintiff and endorsed by defendants; and in the second count to recover $6,000 as the alleged balance due on an open account for merchandise sold and delivered by plaintiff to J. H. Miller Manufacturing Company, the payment of which had been guaranteed in writing by defendants. We shall continue to refer to the parties as they were designated in the trial court.

A jury returned a verdict on Count 1 for plaintiff and assessed its damages at $12,000 with interest from the date of said notes and on Count 2 a verdict for the defendants. Plaintiff has appealed from the judgment on Count 2 and defendants ■ have appealed from the judgment on Count 1.

We shall consider first the plaintiff’s appeal and here state the evidence pertinent to the issues under Count 2.

It was conceded that J. H. Miller was the president of the J. H. Miller Manufacturing Company, a corporation, hereinafter sometimes called Miller Company, located in Quincy, Illinois, and that Shirley A. Miller was his wife. Prior to April 1958, the Miller Company owed plaintiff $21,000 for merchandise theretofore purchased from plaintiff. Frank Bielevicz was the manager of plaintiff’s Bakelite division’s eastern credit office and was handling the Miller Company account. As a result of discussions between him and Mr. Miller in Quincy in the latter part of April 1958, a series of fifteen notes dated May 2, 1958, and totaling $21,000, were executed by the company and on May 16, 1958, endorsed by Mr. and Mrs. Miller. Also on May 16, 1958, Mr. and Mrs. Miller executed a guaranty agreement by the terms and provisions of which they agreed to guarantee the payment to plaintiff “of any and all open and other accounts” of the Miller Company, whether then due or thereafter incurred, until such time as the guarantors revoked the agreement (there was no contention that the agreement had been revoked). Plaintiff did not at the trial contend, and does not here contend, that the agreement had anything to do with the indebtedness evidenced by the notes; on the contrary, plaintiff stated at the trial that the guaranty agreement did not cover the notes but only the open account, which by the time the present action was filed was in the amount of $6,000.

Mr. Bielevicz testified by deposition taken on September 7, 1962, a week prior to trial on September 12, that he was personally familiar with the accounts of J. H. Miller Manufacturing Company and J. H. and Shirley A. Miller as individuals, as they appeared on the books of the Union Carbide Corporation and that the original books and records reflecting the transactions evidencing those accounts were kept under his supervision. He testified that such books and records showed that the Miller Company and the Millers as individuals then (September 7, 1962) owed plaintiff a total of $18,000, $12,000 evidenced by notes and $6,000 on open account; that no payments had been made on the account since the institution of this lawsuit (July 16, 1959) and no credits other than those entered were due; that the prices charged were plaintiff’s standard published prices for the goods delivered; that about February 3, 1959, he had talked with Mr. Miller by telephone; that Miller agreed to pay the then $7,000 open account in full within a week; that thereafter $1,000 was paid on the account; that written demand for the balance of $6,000 was again made by letter dated March 16, 1959; that “Mr. Miller never did deny that $18,000 was due and owing. He just kept asking for more time to pay.” Mr. Bielevicz testified further that the merchandise sold for which $6,000 was due was sold and shipped to the Miller Company in reliance upon the guaranty agreement.

Mr. Miller, who testified both as plaintiff’s witness and later in his own behalf as defendant, testified (relevant to the open account) that he did not have any conversation with Bielevicz on or immediately prior to February 10, 1959, to the effect that the open account would be paid within a week thereafter; that at that time (February 1959) he (Miller) was not in control of the business; that a Mr. Hanlon was then running the company; that he had introduced Bielevicz to Hanlon in a telephone conversation on February 4, 1959, and had told Bielevicz that Hanlon would be running the business.

Plaintiff first contends that the trial court erred in failing and refusing to direct a verdict for it because its claim that $6,000 was due on open account was established by “uncontradicted testimony and documentary evidence about which there was no real dispute and about which the defendants did not offer one scintilla of evidence.”

It is true, as plaintiff contends, that its evidence (sufficient to have made a prima facie case on the open account claim) was not denied or contradicted in any essential respect by any evidence offered by defendants; but defendants’ answer to Count 2 specifically denied the averments by plaintiff that defendants by reason of their guarantee owed plaintiff $6,000 on open account. Thus, the burden was on plaintiff to prove the essential facts necessary to establish its claim. The jury could believe or not believe plaintiff’s uncontradicted or uncontroverted evidence, and if the jury did not believe plaintiff’s evidence, it properly could find for defendants. J. D. Streett & Co. v. Bone, Mo., 334 S.W.2d 5, 9 [5].

Plaintiff seeks to bring itself within an exception to the above-stated rule on the ground that its proof was largely “documentary” and that neither Mr. Miller nor Mrs. Miller denied that the Miller Manufacturing Company did in fact owe $6,000 on open account even though each was a witness in the case. The only “documents” to which plaintiff refers are its own books and records. The fact is that even those books and records were not offered in evidence, and even if they had been offered, those books and certain letters written by plaintiff to defendant J. H. Miller were certainly not “documentary” within the meaning of the exception to the rule.

The general rule as to “conclusive documentary evidence” is stated in Baugh v. Life & Casualty Ins. Co. of Tenn., Mo., 307 S.W.2d 660, 664, as follows: “ * * * it must be an instrument or record having legal efficacy to which the one sought to be bound is in some way a party, or the truth of which he vouches for, either expressly or in legal effect, or is estopped to deny.” There was no such documentary evidence adduced in this case. Further, there was no admission at the trial by either Mr. or Mrs. Miller that they owed the $6,000 and their failure to deny that they owed that amount (they were not asked) did not constitute an admission.

Plaintiff contends further that the trial court should have granted it a new trial on the ground that the verdict on Count 2 was against the weight of the evidence and where, as here, it is contended that “there is a complete absence of probative facts to support a verdict an appellate court is authorized to interfere.” Plaintiff again overlooks the fact that a verdict in defendants’ favor need not be supported by any evidence. “The sufficiency of the evidence to support the verdict in defendant’s favor is not an open question in this court; therefore we need not concern ourselves about what the evidence showed in that regard.” Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559 [1-3]. The trial court may, in the exercise of a sound judicial discretion, 'determine to set aside or determine not to set aside a verdict as against the weight of the evidence, and “it is the rule that where the burden of proof is on the plaintiff who relies on oral testimony, or upon documentary testimony that is not legally conclusive, or a mixture of both, to establish all or some of the essential elements of his cause of action a verdict in the defendant’s favor is not required to have evidentiary support but rests upon a finding by the jury against the party having the burden of proof, and after the trial court exercises its discretion by overruling a motion for new trial,” an appellate court will not entertain the contention that the trial court thereby abused its discretion. J. D. Streett & Co. v. Bone, supra, 334 S.W.2d 10 [7].

Plaintiff contends further that the trial court erred in giving defendants’ instruction 3.

Plaintiff submitted its case on Count 2 by instructions 4 and 5 requiring the jury to find (instruction 4) that defendants “executed the guaranty agreement mentioned in evidence, and * * * that the plaintiff, relying on said guaranty, thereafter sold and delivered merchandise mentioned in evidence to the J. H. Miller Mfg. Company and that J. H. Miller Mfg. Company failed to pay for said goods, and that within a reasonable time thereafter plaintiff notified defendant thereof, then your verdict should be for the plaintiff and against the defendant on Count II of the petition,” and further (instruction 5) that if the jury found for plaintiff on Count 2 and found “that there was delivered to the J. H. Miller Mfg. Company merchandise for the agreed price of $7,000.00, and if you further find from the evidence that J. H. Miller Mfg. Company paid to the plaintiff the sum of $1,0001)0, which was credited on said account, if you so find, leaving a balance due to plaintiff thereon of $6,000.00, if you so find, and that plaintiff made demand for its payment, then your verdict on the second count of plaintiff’s petition should be for the plaintiff for $6,000.00.”

Defendants’ instruction 3 was; “The Court instructs the jury that plaintiff makes claim under Count II herein that plaintiff delivered to J. H. Miller Manufacturing Company on or about September 23, 1958 at the special instance and request of the J. H. Miller Manufacturing Company certain goods and merchandise. You are further instructed that unless you find from the preponderance of the evidence that the plaintiff has proven such allegations, then the plaintiff cannot recover under Count II.”

The evidence heretofore reviewed demonstrates that the jury reasonably could have found the facts to be as they were hypothesized in instructions 4 and 5, and if the jury so found, plaintiff was entitled to recover $6,000. Defendants’ instruction 3 required as a prerequisite to a verdict for plaintiff a finding by the jury that plaintiff “delivered to J. H. Miller Manufacturing Company on or about September 23, 1958 at the special instance and request of the J. H. Miller Manufacturing Company certain goods and merchandise.” The instruction then directed that unless the jury found that plaintiff had proved those facts “the plaintiff cannot recover under Count II.”

In our view the giving of instruction 3 was tantamount to directing a verdict for defendants on Count 2 because there was no evidence in the case from which the jury could have found that plaintiff delivered “certain goods and merchandise” to “J. H. Miller Manufacturing Company on or about September 23, 1958.” Proof that certain goods were delivered on or about the specified date was not essential to plaintiff’s recovery under instructions 4 and 5. It follows that the giving of instruction 3, particularly in view of the fact that plaintiff’s evidence in support of its claim on the open account was uncontradicted, constituted reversible error. Defendants have made no point or argument in their brief with respect to plaintiff’s claim that instruction 3 was erroneous.

As noted, defendants appealed from the judgment entered on the jury’s verdict on ■Count 1 awarding plaintiff $12,000 principal and interest from May 2, 1958, on the promissory notes heretofore mentioned. Plaintiff sought to recover on notes numbered 10 through 15 which had been executed by J. H. Miller Manufacturing Company, by J. H. Miller, and on the back of which J. H. Miller and Shirley A. Miller had signed their names. Plaintiff’s verdict-directing instruction 2 directed that if the jury found that J. H. Miller and Shirley A. Miller endorsed the six notes “after delivery of said notes to the plaintiff then you are instructed that the defendants are guarantors of said notes” and that presentment to the Miller Company for payment, refusal of payment by the Miller Company, and timely notice of such refusal to the defendants were not necessary.

Defendants contend that under the substantive law of Illinois (which the parties agree is applicable) the trial court erred in giving instruction 2 because defendants were endorsers and not guarantors and, as endorsers, were entitled to presentment to the maker and notice of dishonor to them in accordance with the provision of the then applicable Illinois law. (The parties agree that at the time of the transactions here in question, the Negotiable Instruments Law, adopted by Illinois in 1907, was applicable although that law was repealed when Illinois adopted the Uniform Commercial Code in July 1962.) We here state the evidence pertinent to the question whether a jury reasonably could have found that defendants were guarantors and thereby not entitled to notice of presentment and dishonor.

Mr. Bielevicz testified, as heretofore noted, that he went to Quincy on April 29, 1958, to discuss the status of Miller Company’s $21,000 past due account. As a result, Mr. Miller agreed to sign notes for $21,000 as president of the company and agreed that he and his wife would endorse those notes personally and that they would sign a personal guaranty of present or future indebtedness which, as we have heretofore noted, plaintiff contends was to and did cover only amounts which might become due by reason of future sales on open account. Mr. Bielevicz said that he prepared the notes and the guaranty agreement in New York and mailed them to the Miller Company or to Mr. Miller in Quincy, Illinois, and that the fifteen notes totaling $21,000 were endorsed personally by Mr. and Mrs. Miller.

Defendant John H. Miller testified that the notes were dated May 2, 1958 (and the presumption is that they were signed on that date, § 31, N.I.L.) ; that he and his wife each signed their names on the back of each note on May 16, 1958, and that the notes had been sent to Union Carbide Corporation prior to May 16, 1958.

Defendant Shirley A. Miller testified that she signed her name on the back of each note on May 16, 1958.

Plaintiff contends that the Negotiable Instruments Law did not expressly cover a situation in which one other than a maker of a promissory note signed his name on the back thereof in blank after delivery of the note to the payee; that the N.I.L. covered only the situation in which a party endorsed in blank before delivery and that the majority rule both before and since the N.I.L. is that one who endorsed after delivery was liable as a guarantor and -not as an endorser.

The evidence for the jury’s consideration on this aspect of the case, restated, was that there was an agreement between Mr. Miller and plaintiff in April 1958 that the Miller Company would execute notes totaling $21,000 payable to plaintiff; that he and his wife would endorse those notes; that they would also sign a guaranty agreement guaranteeing' the payment of indebtedness which might accrue by reason of .future sales on open account by plaintiff to Miller Company; that plaintiff prepared the notes and the guaranty agreement in New York and mailed them to the Miller Company in Quincy; that the notes were executed by Miller Company on May 2; that some time after May 2 and prior to May 16 the notes were sent to plaintiff; and that the notes were endorsed in blank by Mr. and Mrs. Miller on May 16. While there is no direct evidence, it is a reasonable inference, and we do not understand plaintiff to contend to the contrary, that Mr. and Mrs. Miller’s endorsements were written in Quincy and, consequently, it follows that the notes were returned by the payee to the maker prior to May 16.

Plaintiff argues that inasmuch as the N. I.L., Section 213, defined “delivery” as meaning "transfer of possession, actual or constructive, from one person to another,” and that inasmuch as N.I.L., Section 36, provided in part that the delivery to be effective between the immediate parties "must be made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be,” the only way the Miller Company could have prevented its act of sending the notes to the plaintiff the first time from being an effective delivery would have been by reason of the Miller Company having imposed conditions which would have made the delivery a conditional one; that no conditions were shown and consequently an effective delivery had been made prior to the endorsements on May 16.

We do not agree. It is true that by reason of the provisions of the sections above noted, a delivery of the notes by Miller Company to plaintiff without any conditions imposed by Miller Company was an unconditional'delivery; but the question is whether there was an “effective delivery” which involves not only whether there was an unconditional physical transfer of the notes by defendants but also includes whether there was an acceptance of the notes by plaintiff. It is well established that to “complete a delivery, and to make it effective, the * * * note must be accepted by the payee or by some one acting for him.” 10 C.J.S. Bills and Notes § 80, p. 519.

It is our view, therefore, and we so hold, that the facts, standing alone, that the notes in question had been executed by the maker, sent to plaintiff, returned to the maker, and thereafter endorsed by Mr. and Mrs. Miller, do not tend to prove that the Millers endorsed the notes after delivery. On the contrary, those facts support the opposite conclusion, viz., that the notes were not accepted by plaintiff when received by it the first time, but were returned for the Millers’ personal endorsements in accordance with their prior agreement, and thus that there was no acceptance of the notes until the personal endorsements of the Millers had been placed thereon and, consequently, the Millers’ endorsements were made before effective delivery.

The cases relied upon by plaintiff do not deal with whether there was an acceptance by the payee and thus an effective delivery, but only with the questions whether and where delivery was made; acceptance by the payee was conceded or assumed.

Under the circumstances, it is unnecessary for us to determine whether, under the substantive law of Illinois, one who was not otherwise a party and who endorsed a promissory note after delivery was (under the N.I.L.) liable as a guarantor or as an endorser.

Plaintiff contends further that the trial court did not err in giving instruction 2 in any event because, even if the defendants were not guarantors, they were “accommodation endorsers” and consequently, says plaintiff, presentment and notice of dishonor were not required. While plaintiff’s contention in that respect is not developed in the argument portion of its brief, we understand plaintiff to mean that Section 136, N.I.L., supports the assertion that defendants were accommodation endorsers. That section provides in pertinent part:

“Notice of dishonor is not required to be given to an indorser in either of the following cases: * * *
“3. Where the instrument was made or accepted for his accommodation.”

We think it is clear that the notes in this case were not made or accepted for the accommodation of the endorsers, present defendants, and thus that Section 136 did not dispense with the necessity for notice of dishonor to them. Tucker v. Mueller, 287 Ill. 551, 554-556, 122 N.E. 847. The only case cited by plaintiff in support of its contention is National Builders Bank of Chicago v. Simons, 307 Ill.App. 562, 31 N.E.2d 274. That case decided whether an endorser under the facts there shown waived notice of presentment and dishonor and whether paragraph 2 of section 136, N.I.L., which provided that notice of dishonor is not required to be given an endorser where he is the person to whom the instrument was presented for payment, was applicable. (There is no contention here that Mr. Miller, one of the endorsers, was, under the evidence, the person to whom the note was presented for payment and consequently we do not reach that question.)

Defendants do not contend that the trial court should have directed a verdict for them on Count 1, and, in view of the fact that we may not know what the evidence will be on another trial on the questions of presentment and notice of dishonor or on the question of waiver as to either or both endorsers, we remand the case for a new trial on Count 1.

Defendants contend further that the trial court erred in striking paragraph 5 of their answer which, as amended orally at the trial, averred that plaintiff was barred from recovering on the notes in question because it had sought to recover as a preferred creditor in the bankruptcy proceedings of the J. H. Miller Manufacturing Company; that the guaranty agreement of May 16, 1958, the chattel mortgage and a subordination agreement were all executed as part of one transaction which resulted from a conference among Bielevicz, Miller, and Messrs. Burkett and McMurray (mortgagees in the chattel mortgage) ; that defendants endorsed the notes in question pursuant to an agreement by plaintiff that the chattel mortgage would be accepted as and considered as the primary security for' any debts of Miller Company to plaintiff; that plaintiff alleged in a pleading filed in the bankruptcy proceedings that by virtue of the subordination agreement it was a secured creditor of the Miller Company as though it were the mortgagee in the aforesaid chattel mortgage and that the trustee disclaimed the property upon which the mortgage had been given; that plaintiff did not hold a public auction as provided for by the terms of the mortgage and that some of the mortgaged property was lost or stolen; that at the time the property covered by the chattel mortgage was returned to plaintiff and other parties claiming it in the bankruptcy proceedings, said property was worth in excess of the amount of all Miller Company’s indebtedness to plaintiff; that plaintiff agreed with Burkett and McMurray on February 3, 1961, on a method under which the proceeds of the sale of the property covered by the chattel mortgage were to be distributed.

We have difficulty in understanding defendants’ exact contention but, as best we interpret their argument, it is that the trial court erroneously struck paragraph 5 and thereby prevented them from offering evidence which would have constituted a bar to plaintiff’s recovery on the notes. Defendants made an offer of proof which, if it contained a proffer of admissible evidence, also contained a proffer of inadmissible evidence and, of course, the trial court did not err in excluding the entire offer because, under Missouri procedure, when an offer of proof includes both admissible and inadmissible evidence, the court is not required to sort out that which is admissible but may properly reject the whole offer. Eller v. Crowell, Mo., 238 S.W.2d 310, 313 [1-3].

It appears, however, that because there may be a retrial, it may be of some assistance if we indicate our views generally with respect to the admissibility of certain of the proffered evidence without attempting to sift through the entire offer of proof; and what is said as to admissibility of evidence will at the same time indicate our opinion that proof of the matters alleged in paragraph 5 would not constitute a bar to plaintiff’s recovery on Count 1 and, thus, that the trial court did not err in striking that paragraph.

We are of the opinion that evidence which tends to show that plaintiff received money from Miller Company assets subsequent to the accrual of its claimed indebtedness, would be admissible to reduce the amount plaintiff could recover. And such is true whether that money was received as a result of the sale of assets released by a trustee in bankruptcy or otherwise; nevertheless, under the terms of the written guaranty agreement in evidence, defendants specifically agreed that in the event of the Miller Company’s bankruptcy, they would pay to plaintiff the amount due for all merchandise which plaintiff had sold to Miller Company. Consequently, evidence pertaining to the pleadings or positions or claims of the parties in the bankruptcy proceedings is irrelevant; the relevant matter is whether plaintiff received money, irrespective of its source, which should have been credited against the Miller Company’s claimed indebtedness to plaintiff and, if so, the amount thereof.

We are of the further opinion that evidence would be admissible to show that plaintiff would have received additional money which should have been credited against the total claimed indebtedness of Miller Company, which plaintiff did not receive as a direct result of its negligence; provided that the amount of such credit, if any, is established with reasonable certainty.

And, of course, evidence of oral agreements, conversations, or understandings not incorporated in the unambiguous written documents referred to in the evidence which would tend to vary the terms and provisions of any such document is not admissible.

The judgment on Count 1 is reversed; the judgment on Count 2 is reversed; and the case is remanded.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.

      . All section references to N.I.L. are to sections of the Negotiable Instruments Law as they appear in Chapter 98, Smith-Hurd Illinois Annotated Statutes, Permanent Edition.


text:
    Ida Shatro OGLESBY, Appellant, v. VONDER HAAR CONCRETE COMPANY, Respondent.
    No. 49880.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.

      James B. Herd and Deeba, DeStefano, 'Sauter & Herd, St. Louis, for appellant.
    Walter F. Timm, James E. McDaniel, McDonald, Barnard, Wright & Timm, St. Louis, for respondent.
   COIL, Commissioner.

Leroy Shatro was killed as a result of .a cave-in of a dirt bank in an excavation where he was working as an employee of the St. Louis County Highway Department. His widow claimed $25,000 as damages for his wrongful death from respondent whose driver delivered ready-mixed concrete to the excavation site. We shall refer to the parties as they were designated below.

At the close of plaintiff’s evidence, the trial court directed a verdict for defendant for the assigned reason that no negligence had been shown.

Plaintiff has appealed and here contends that the trial court erred in so ruling because the evidence considered favorably to her made the question of defendant’s proximate negligence one for the jury.

We are of the opinion that the trial court correctly ruled for the reason that the record contains no evidence from which a jury reasonably could have found that defendant was negligent.

At a place on east-west Forder Road in St. Louis County about 300 yards west of north-south Telegraph Road, there was a 48-inch drainage pipe which ran from north to south under Forder Road (about five or six feet below its surface). Where the pipe emerged at the south side there had been a “head wall” for the purpose of holding the pipe in place. As we understand, the head wall is a concrete structure which is built around the end of a culvert pipe. The old head wall had become defective and a witness said it had “caved in.” A county highway department crew had begun work on Monday, May 8, 1961, to break up and remove the remaining concrete from the defective head wall and had continued on Tuesday and Wednesday with other necessary labor, including the excavation of a surrounding area, in order that a concrete base (5 to 7 feet wide) for a new head wall could be poured. On Wednesday, the 10th, a hole approximately 20 to 25 feet long, 8 feet wide, and 10 to 12 feet deep had been excavated by means of a back hoe (a tractor with a scoop bucket on its front), apparently some chat had been placed on the bottom of the portion of the excavation on which the concrete footing was to be poured, and some steel beams had been placed to reinforce the concrete. During the night some dirt had fallen on the chat at the east end of the hole and, on the 11th, some of the crew were in the excavation removing that dirt (about four or five wheelbarrows full). About the time they had finished, a small section of moist dirt caved in from the north wall of the excavation about three feet from the floor (about five gallon buckets full). The evidence showed that from May 4 through May 8 there had been 6.08 inches of rainfall at Lambert Field but no measurable rainfall on May 9 or 10. The excavation had been so dug that the center of the culvert pipe was midway between its west and east ends; the north wall was adjacent to the south edge of Forder Road and was straight up and down and not sloped in any degree whatever. There was no shoring or lateral support of any kind of the dirt sides of the excavation. The south side of the excavation was sloped to the south and afforded a means of egress for the men working therein. The dirt from the excavation had been piled in two piles, one at the east and one at the west end.

When the crew had just about completed the removal of the dirt from the small cave-in, ' the supervisor, who was sitting on the bank at the west end of the excavation, from which position he looked down into the hole, announced that the “concrete is hére,” loud enough for each of the crewmen to hear. One of the crew, Mr. Johnson, who was in charge of pouring the concrete, immediately left the excavation, went to Forder Road (a blacktop, 20 feet wide), where he observed defendant’s (42,000 pounds with load) concrete truck approaching from the east. He indicated to the driver where the concrete was to be dumped. In response to Johnson’s motions, defendant’s driver went past the excavation about 50 feet, then started to back eastwardly, then swung the rear of his truck to the south, all in accord with Johnson’s directions. As the truck was backing slowly, Johnson, as was his custom, was getting the chute attached to the rear of the truck ready for use. The truck came to a stop so that its closest part (overhang) was some 10 feet northwest of the north wall of the excavation and its rear tire closest to the excavation was 12 to 15 feet away from the excavation and two to five feet north of Forder Road’s center line. Within a few seconds after the truck stopped, another cave-in occurred in the same area as the last, of sufficient size to completely cover Shatro, who was in the process of leaving. All of the four crew members had been told to leave the excavation prior to the cave-in, and had been told more than once.

The reason Johnson stopped the truck just prior to the cave-in was that he wanted to determine how far the chute would reach; that would determine whether he would have the truck back closer to the excavation. The truck driver followed Johnson’s instructions. -At some time during the process of backing apparently the truck driver placed one foot on the truck’s left running board and looked back to see whether Johnson was getting the chute arranged properly. There was evidence that some of the men standing in or leaving the excavation could have seen the truck as it was backing, but there was no evidence that the driver of the truck was able to see into or did see into the excavation.

A civil engineer, in answer to a hypothetical question, testified that while he could not say the cave-in would not have occurred had the truck not been there, the presence of the additional weight of the loaded truck in the immediate vicinity of the excavation increased the likelihood of a collapse, and thus was a contributing cause of the failure of the dirt bank.

The theory upon which plaintiff relies for recovery is not too well defined or developed in her brief, but probably this paragraph from the brief suggests the basis for her contention that the question whether defendant company, through it agent and servant, the driver of the concrete truck, was negligent was for the jury:

“Under the foregoing authority, if the defendant’s driver in the present case ought to have anticipated that some injury to workmen in the Forder Road excavation might occur as a result of the operation of 'his concrete truck near the edge of the excavation, he was bound to take such reasonable precautions as would protect them (and the decedent) from injury. It is the plaintiff’s primary contention that common experience and the circumstances confronting the defendant’s driver imposed upon him a duty to the decedent which he violated.”

We have examined the cases cited by plaintiff. Other than those which state well-established general rules pertaining to the law of negligence, they are in nowise applicable to the facts of this case and no purpose would be served by reviewing them.

There are probably several sufficient reasons which support the trial court’s ruling, but basically it seems apparent that under the circumstances disclosed by the foregoing statement of facts, before the truck driver could have been negligent he had to have known, either actually or constructively, both that the proximity of the truck to the excavation was likely to cause a cave-in and that it was likely that someone would be injured thereby. There were no facts in evidence to support either hypothesis. There was no showing that the truck driver or his employer, or anyone connected with defendant, had received any prior information as to the nature of the project or instructions concerning it, or had any knowledge of the purpose for which the concrete was to be used or even that there was an excavation or, if so, the type of excavation, or the degree of the slope of its walls, or whether proper shoring and lateral support had been provided; and there were no circumstances shown in evidence which reasonably could have been found to have put the truck driver on notice of a dangerous condition or situation. (In passing, we note that the truck never did get any closer to the excavation than was the traffic on Forder Road — the evidence showed that at the place in question only the north lane of Forder was being used because the south lane was blocked by the dirt from the excavation. The truck’s rear tire, closest to the excavation, never did get south of Ford-er Road’s center line.) Furthermore, the evidence was that the truck driver did exactly what Mr. Johnson directed him to do and that Mr. Johnson gave those directions in the presence of the county highway department supervisor. Likewise, there was no; evidence from which the jury could have found that the truck driver knew or should have known that, any persons were in the excavation at the time he backed his truck, or that, if there were, they were not supposed to be there or that it was unsafe for them to be there.

In short, there was no evidence in this case that defendant, through its driver-agent, did or failed to do any act which a jury reasonably could have found constituted a failure to use that degree of care that an ordinarily careful and prudent person would have used under the same or similar circumstances.

Defendant’s motion, taken with the case, to dismiss the appeal' for the alleged failure of plaintiff to comply with Civil Rule 83.-05, V.A.M.R. is overruled.

The judgment-is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


text:
    ST. LOUIS COUNTY, Missouri, Plaintiff-Respondent, v. Orion J. LITZINGER and Audrey Litzinger, Defendants-Appellants.
    No. 50013.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.
    Rehearing Denied Dec. 9, 1963.
    LovellW.-George, Clayton,'for appellants.
    Norman C. Parker, St. Louis County Counselor,' Joseph B. Moore, Asst. County Counselor, for respondent.
   •HENRY J. WESTHUES, Special Com■missioner. .

This action, designated as a “Petition for Mandatory Injunction,” was filed by St. Louis County,' Missouri, against Orion J. Litzinger 'and his wife, Audrey Litzinger, asking the court to order appellants to deposit in the County treasury certain funds in their possession. The trial court, after a hearing, granted respondent’s request and entered a judgment against the appellants. An appeal was taken to this Court.

The material facts were stipulated. The fund in question came into possession of Litzinger while he was serving as a constable in St. Louis County, Missouri. He held the office of constable in the Second Magistrate District from January 1, 1951, to January 1, 1957. In 1954, a fifth magistrate district was created and Litzinger was appointed to serve as constable therein. He held this office until January 1, 1957, when he resigned as constable in both the second and fifth districts to take over the duties of Sheriff of St. Louis County to which office he had been elected.

Respondent St. Louis County is operating under a special charter pursuant to the provisions of Article VI, Sec. 18 of the 1945 Missouri Constitution, V.A.M.S. Sec. 18 (b) reads:

“The charter shall provide for its amendment, for the form of the county government, the number, kinds, manner of selection, terms of office and salaries of the county officers, and for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state.”

Sec. 104.220, of the St. Louis County ordinances, fixed the salary of Litzinger at $6,-000 per annum. He was not entitled to any other compensation but was paid for actual expenses incurred in performing his duties, among which was the serving of process in civil cases filed in the Magistrate Court. By a rule, established by the magistrate judges of 'the county, parties filing suits were required to deposit $4 if only one defendant was to be served with process and an additional sum if more than one person was to be served. These, deposits were required to cover the cost of serving process and other constable fees as set forth in the fee schedule for constables in Sec. 63.140, RSMo, V.A.M.S., and by an ordinance of the County, No. 63.40. Sec. 104.390 of the ordinances provided that “All fees, costs and any other monies received or collected by any elective official of St. Louis County shall be paid by him into the County Treasury at least once each month.” Sec. 303.010 of the ordinances stated that “Any officer, employee, or agent of St. Louis County who shall receive any moneys belonging to the County, or any moneys not belonging to the County, which may be obtained by him by virtue of, or under color of such office or employment, which are to be held, paid out, or transmitted by the County or any officer, employee, or agent thereof, shall promptly deposit all such moneys in the County Treasury; * * *.” Sec. 303.020 of the ordinances prescribed a procedure for the disbursement by the County of any money net belonging to the County which was deposited in the County treasury as required by Secs. 104.390 and 303.010 of the ordinances.

The deposits required to secure the cost of constable fees were paid to the constable by the clerk of the court. Litzinger turned over to the treasury an amount taxed as cost. In many cases, the cost would be less than the deposit. Litzinger retained the excess and it is this excess that is the subject matter of this lawsuit. The amount agreed on is $15,191.06. It was also agreed that the money does not belong to Litzinger nor does it belong to the County. The excess in each case should have been refunded to the litigant making the deposit.

Respondent County relies upon the ordinances referred to supra and contends that by the provisions of the ordinances Litzinger was required to turn over to the County ■treasury all of the deposits to secure cost. The County further contends that it has provided by ordinance a method of refunding excess deposits to the litigants. The County contends that the duty of Litzinger to turn' over to the County treasury fee money is a ministerial duty which a court of equity may enjoin him to perform.

Litzinger contends that the County is not entitled to this fund and that he must retain the sum in question and refund it to the litigants; further, that under his bond, he is required to pay the money to the parties legally entitled thereto; that because of this obligation in his bond, the ordinances requiring him to deposit this fund in the County treasury are unconstitutional as impairing the obligation of his contract.

The duty of Litzinger to deposit in the County treasury all funds coming into his hands in connection with constable fees is in fact a ministerial duty. In such circumstances, a constable or other officer may not question the constitutionality of the ordinances. This rule is well established. 16 C.J.S. Constitutional Law § 82 b, pp. 252, 253, and see also State ex rel. Chicago, R. I. & P. Ry. Co. v. Becker, 328 Mo. 541, 41 S.W.2d 188, 1. c. 190 (1, 2), where this court en banc said: “It is well settled in this state and in a great majority of our sister states that, as a general rule, a ministerial officer cannot defend his refusal to perform a duty prescribed by a statute on the ground that such statute is unconstitutional. State ex rel. [Wiles] v. Williams, 232 Mo. 56, 133 S.W. 1, 6 [34 L.R.A.,N.S., 1060]; State ex rel. [Missouri & N. A. R. Co.] v. Johnston, 234 Mo. 338, 137 S.W. 595, 598; State ex rel. Atlantic Coast Line R. Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 [30 A.L.R. 362]; 30 A.L.R. 378-387, and cases cited.”

But, say appellants, the case of State of Missouri, to Use of Judge v. Gatzweiler, 49 Mo. 17, is directly in point and settles the law in this case. We have no fault to find with the opinion in that case. Therein a •sheriff was ordered to pay money in his hands by virtue of an execution to a person not entitled thereto. This Court in speaking of the 'sheriff's bond as a contract said, “The duty of the sheriff is to pay over money coming into his hands to those legally entitled thereto, and his bond is the contract that he will not fail upon any account to do this act.”

In the case before us, the constable Litz-inger did not come into possession of the fund of $15,191.06 by any authority of law. We'have been cited to no statute or ordinance authorizing the clerk of the Magistrate Court to turn over the entire deposit to secure the cost of constable fees to Litz-inger. It is interesting to note how the manner of dealing with the subject of deposits for constable fees came into being. We shall give its history. By Sec. 483.615, V.A.M.S., as amended in 1959, a fee of six dollars is allowed the magistrate in each civil case. All such fees are required to be deposited in the State treasury. The State pays the salary of the magistrate. Sec. 63.-140, V.A.M.S., and St. Louis County ordinance No. 63.40 provide for a schedule of fees for constables. Since St. Louis County pays the constable a fixed salary, all such • fees are required to be paid 'into the County treasury. The .stipulation in this case recites that the magistrates and constables of St. Louis County held several meetings to discuss the matter of requiring deposits for cost of constable fees. Note the result as stated in the stipulation:

“ ‘2) As a result of such discussions the Magistrates of St. Louis County, in 1947, or 1948, promulgated an unwritten rule to the effect that, in addition to the aforementioned “magistrate’s fee” of $5.00 (now $6.00), persons filing civil actions in the magistrate courts of St. Louis County should be required by the clerks of said courts to deposit the sum of $4.00, plus $1.00 more for each defendant in excess of one, for the purpose of “securing the costs” in such actions, and deposits in that amount have ever since been required in the magistrate courts of districts 1, 2, 3 and 4, of St. Louis County.
“ ‘3) Upon the establishment of magistrate district 5 in the year 1954, this deposit-to-secure-costs procedure was adopted in that district, but with’ the variation that, instead of $4.00, plus $1.00 for each defendant in excess of one, the deposit required is $4.00 plus an additional $4.00 for each defendant who resides at an address different from that of any other defendant.
“ ‘4) From the inception of this deposit-to-secure-costs procedure the clerks of each of the magistrate courts of St. Louis County also have followed the practice of transferring the deposits so made to the constables who serve the process of their courts as soon as the court files are made up, and the constables, upon receipt thereof, have caused the money so transferred to them by the clerks to be deposited in whatever accounts are maintained in commercial banks of their selection for the deposit of moneys received in the performance of their duties as constables.’ ”

The practice of the clerk to pay the entire deposit to Litzinger does not make it legal. The constable in any event was not entitled to collect more than the actual fee. There is a procedure prescribed by ordinance, cumbersome as it may be, whereby litigants may obtain a refund if the entire deposit is not consumed. We have not been cited to any ordinance or statute that authorizes the constable to collect the fund in question or to make refunds. Under the provisions of the ordinances, it was his duty to transfer all of the money collected in connection with constable fees into the County treasury. Litzinger, under the law, is in no position to question the validity of the ordinances.

Appellants say that the court did not have the authority to issue a “Mandatory Injunction.” It is immaterial whether this proceeding is called a mandatory injunction or mandamus. It is clear that the duty of Litzinger was a ministerial duty which a court of equity may compel him to perform. 55 C.J.S. Mandamus § 132, p. 216; State ex rel. Hand v. Bilyeu, Mo.App., 346 S.W.2d 221, 1. c. 227(9). The ruling of the Court of Appeals in that case was approved by the Supreme Court in State ex rel. Hand v. Bilyeu, Mo., 351 S.W.2d 457, 1. c. 460(2) (3).

Appellants contend that the trial court was in error in finding that Litzinger held said fund in trust. Under the law, Litzinger’s compensation was fixed at a definite salary. All funds coming into his hands as fee money were required to be paid into the County treasury. Such funds were held by him as trustee. 67 C.J.S. Officers § 90, pp. 327-329; 67 C.J.S. Officers § 118, p. 408.

In the brief, the appellants say the County has no standing in a court of equity because of the “clean hands doctrine.” They contend that the practice in Magistrate District No. 4 is to charge the entire deposit of $4.00 as a flat fee for constable costs; that the entire sum is retained by the County. It is apparent that the “clean hands doctrine” does not apply in this case. What may be the practice in District No. 4 has no bearing on any issue in this case. The rule is well stated in 30 C.J.S. Equity § 98, p. 491: “The misconduct which falls within the clean hands maxim must relate directly to the transaction concerning which complaint is made or the subject matter in litigation.”

In point 8 of the brief, appellants say that the trial court erred in ordering them to deposit the $15,191.06 in the County treasury for the reason that in the agreed statement of facts there is: first, no admission that appellants have any funds in their possession; futher, that “defendant does not now hold the sum of $15,191.06 in any special account, or any particular account or accounts.”

Respondent, in the petition, alleged that a sum of $5,000 was in the joint names of Orion J. Litzinger and his wife, Audrey Litzinger. An audit disclosed that a check drawn on Litzinger’s account as constable created that joint account. This fact probably was the reason for Mrs. Litzinger’s being made party defendant.

The agreed statement of facts does show that an undisputed balance of $15,191.06 had accumulated in the account of Litzinger as constable; further, that the accumulation was made up of moneys received by Litzinger by virtue of his office. It was also stipulated that the constables, in this case Litzinger, “upon being requested so to do, but not otherwise” would refund the excess deposit above fees to the litigant. (Emphasis supplied.)

In connection with point 8, let us glance at point 9 of the brief, wherein complaint is made that the trial court implied defendant Litzinger had been unjustly enriched and had somehow achieved an unconscionable result. Under this point, Litzinger says that “The court’s suggestion of ‘unjust enrichment’ is based upon arbitrary assumptions that ‘requests’ will not be made for said undisbursed balance, or, that if made, appellant Orion J. Litzinger will interpose the defense of the statute of limitations in the face of the stipulation in the Agreed Statement of Fact, paragraph T9,’ that said appellant has received a substantial number of requests for refunds since this suit was brought in February, 1958, but that all such refunds have been deferred pending final determination of this action.”

What Litzinger, in fact, says is that he will if requested by the litigants refund to them the $15,191.06. If that be so, it is immaterial whether he has that sum in any special or particular account or accounts. Litzinger can avoid all of the detailed work of refunding to the numerous litigants the fund in question by complying with the court’s order and depositing the sum in question in the County treasury. The County can then make the refunds.

We have disposed of all points necessary to the disposition of the issues presented. Our conclusion is that the trial court in this equitable action had the authority to order the appellants to deposit the funds in question in the treasury of the County. We agree with the trial court that appellants should do so.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM.

text:
    STATE ex rel. ST. LOUIS COUNTY, Missouri, Relator-Respondent, v. Frank L. MALONE, (Formerly) Constable for the First Constable District, St. Louis County, Missouri, Defendant-Appellant.
    No. 50014.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.
    Rehearing Denied Dec. 9, 1963.
    William J. Becker, Joseph J. Becker, Clayton, and Lovell W. George, Clayton, for appellant.
    Norman C. Parker, St. Louis County Counselor, Joseph B. Moore, Asst. County Counselor, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

This suit and the issues involved are identical to those in St. Louis County v. Litzinger, case No. 50013, Mo. 372 S.W.2d 880. The relator St. Louis County, Missouri, filed what was designated as a “Petition for Writ of Mandamus or in the Alternative for Mandatory Injunction.” In case No. 50013, the petition was called “Petition for Mandatory Injunction.” The relief sought in the two cases is the same. The County asked the Court to order the defendant Frank L. Malone, Constable of the First Constable District of St. Louis County, to deposit in the County treasury any and all sums in his hands which came to him as deposits for constable fees. Malone, just as Litzinger in case No. 50013, did deposit in the County treasury the fees actually, earned. Malone retained any sums which were in excess of the amount earned. At trial time, Malone had an amount estimated at $1000 which he was holding to be refunded to litigants entitled thereto.

The judgment of the trial court reads in part as follows:

“ 'As in the Litzinger case, the Court feels that the simple measure of returning to the litigants or their attorneys by mail any excess deposits they had, as reflected by their books, would have been the simplest manner of disposing of the matter, and the respondent in this case has apparently been making such refunds. The amount involved here is somewhere in the neighborhood of One Thousand ($1,000.00) Dollars, indicating to the Court the respondent’s efforts in making such refunds. However, as agreed by the Stipulation of Facts in this case, there is no controversy as to the amount and the respondent has readily offered to comply with any decision o'f the Court in the event that the Court rules m favor of the relator. The respondent by his agreed statement has indicated his willingness to present any accounting to the relator that relator may desire.
“ ‘The Court therefore orders that the respondent deposit all funds now in his possession over to the Treasurer of St. Louis County, together with any ■interest accumulated thereon, if any, .all in accordance with the St. Louis County Revised Ordinances numbered 104.390, 303.010, and 303.020. Costs .against the respondent.’ ”

For reasons stated in case No. 50013, the judgment of the trial court in the case before us is hereby affirmed.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the -opinion of the Court.

All of the Judges concur.