author: EAGER Judge.

text:
    STATE of Missouri, Respondent, v. Alvin CALDWELL, Appellant.
    No. 53105.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Sidney Fortus, Special Asst. Atty. Gen., Clayton, for respondent.
    J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas Ctiy, for appellant.
   EAGER Judge.

Defendant was convicted by a jury of assault with intent to kill, with a deadly weapon, and with malice aforethought. Upon allegations and findings of a previous conviction, sentence and imprisonment for a felony he was sentenced to a term of seven years. Defendant was represented at the trial by employed counsel who filed a motion for new trial; this appeal was taken promptly when that motion was overruled. He is represented upon this appeal by the Public Defender of Jackson County, by appointment.

Since only one question is raised in defendant’s brief, we need not relate all factual details; however, the jury could have believed all of the following facts from the evidence produced. One William Broussard and his friend Leon Wyatt, both regularly employed, stopped . in a tavern known as the Miami Bar at 27th Street and Troost Avenue in Kansas City, between 6:00 and 7:00 p. m. on May 7, 1966. Each ordered a-glass of beer; Broussard sat at the bar while Wyatt went to watch a pool game a little farther hack. While Brous-sard was sitting at the bar a woman, whom he did not know, brushed against him, merely in passing. At about that time three men had entered the place, and one (specifically identified as this defendant, whom Brous-sard had never seen before) started a very loud argument with Broussard, insisting that the woman “was somebody’s old lady,” and that “I am trying to put you onto the facts,” with some repetition and considerable name-calling; Broussard replied that he had a wife and was “not interested in anybody’s old lady” and to “forget it.” Hearing the argument, Wyatt came back and persuaded Broussard to leave; he did leave and walked to his car parked on a small lot about half a block (or less) north on the west side of Troost. Wyatt remained a very short time to see if he could placate the other party or parties. Brous-sard got into his car and started it, then got out and walked back to the sidewalk to wait for Wyatt. He soon saw the defendant and a small group of men coming towards him from the tavern; defendant was holding an open knife with a blade of approximately six inches, which Broussard saw from approximately 25 feet; defendant called Broussard a vile name, said he was “going to get him,” and ran up to him. Broussard circled around and tried to fend off the knife with his hands and arms, getting a few minor cuts in the process, but he finally stumbled and fell between two parked cars. While he was thus lying on the ground, defendant stabbed him in the back and pierced a lung; he then remained “astraddle” of him for a short time. Various people were around this scene, but no one interfered. Broussard tried to kick the defendant, but with no effectiveness. Finally, one of defendant’s companions said “Well, you got him, Joe, so let’s go.” Thereupon they departed, in some haste, and with no hindrance. Wyatt got his friend across the street to a bowling alley where he collapsed. The police and an ambulance were called; Broussard was in the hospital for several days.

Wyatt had followed defendant and his companions from the tavern and saw these occurrences. Both Broussard and Wyatt positively identified defendant at the trial as the man who stabbed Broussard, and the testimony further showed: that Broussard had first identified defendant from a police picture (there being no objection to this evidence) and later in a lineup; that Wyatt had identified him in a police lineup. Broussard first learned defendant’s name after these things had occurred. Wyatt confirmed all the substance of Broussard’s testimony. All of the persons directly concerned were colored. Broussard and Wyatt were most extensively cross-examined concerning the identity and appearance of the aggressor, perhaps to the point of tediousness. At one point, when Wyatt was asked why this affair made such an “imprint,” he said: “Because the man had a knife and was trying to kill another man.”

On behalf of defendant, three witnesses (two male, one female) testified. Two of these were in the “Barclay Cafe” outside of which the stabbing occurred; while “goofing around,” as one of these witnesses said, they heard and saw a commotion outside so they went out. The woman testified that she saw the man stabbed, but that the person who did it was not this defendant. The other, her male associate, testified that he saw the man with the knife, fighting, and that it was not this defendant. Both of these had known the defendant previously. The third witness, who had just been standing on the sidewalk in front of the cafe, ran closer to see the fight. He testified: that he had seen the aggressor around the neighborhood previously; that he knew the defendant, having spent some “time” with him at the Municipal Farm. He inferred that the man who stabbed Broussard was not this defendant. The defendant did not testify.

The Court gave the usual instructions on the presumption of innocence and credibility; it also gave one on alibi, to which no objection is made here. It gave two verdict-directing instructions, No. 3 and No. 4; the first submitted defendant’s guilt of an assault with malice; the other, his guilt of an assault without malice. We need not consider the latter, since defendant .was not found guilty under it and the defendant complains here only of Instruction No. 3. Such is his sole point of error. We quote the pertinent parts of Instruction No. 3 omitting definitions of which no complaint is made: “The Court instructs the jury that if you believe and find from the evidence in this case, beyond a reasonable doubt, that at the County of Jackson and State of Missouri, on the 7th day of May, 1966, the defendant herein, ALVIN CALDWELL, did then and there unlawfully, wilfully and fe-loniously make an assault upon one William Broussard with a dangerous and deadly weapon, to-wit: a knife likely to produce death or great bodily harm, with felonious intent, and on purpose with Malice Aforethought to kill or do great bodily harm to the said William Broussard, if such be your finding, then you will find the defendant guilty of Assault with Intent to Kill with a knife with Malice Aforethought and so find in your verdict.

“And, unless you find the facts to be as above stated, you are instructed to acquit the defendant of Assault with Intent to Kill with a knife with Malice Aforethought.”

The arguments made in support of this appeal, insofar as we understand them, are: that the supposed facts supporting guilt were affirmatively stated in the instruction, whereas the theory of defendant’s innocence was stated negatively in the “unless” clause; that this tended to assume, or to give the jury the idea, that the affirmative recitals were “actual occurrences,” particularly since they were referred to as “facts”; and that the jury should have been instructed that there was a difference between “fact and evidence.” Counsel thus conclude that the “unless” clause here was a “positive misdirection,” and that the words therein implied a “lesser obligation” than did the hypothesis of the first paragraph. It is a little difficult for us to follow this argument.

Three cases are cited, namely: Rosebraugh v. State Social Security Commission, Mo.App., 196 S.W.2d 27; Krisman v. Unemployment Compensation Commission, 351 Mo. 18, 171 S.W.2d 575; McCrabb v. Moulton, 8 Cir., 124 F.2d 689. The first two concern the use of the word “unless” in statutes regulating appeals, as there applied to Social Security and Unemployment Compensation cases. These would be more confusing than enlightening if we attempted to apply the discussions to our facts. In McCrabb, the Court was considering a contract for the purchase of oil leases; this contained a provision that the buyer would reassign the leases “unless” on or before a stated date he began the actual drilling of a well, with certain further conditions. The Court held: that the contract merely gave the buyer an option to drill or reassign, and that it created no affirmative obligation to drill; that the suit was one for the breach of a contract to drill, and not for a breach of the agreement to reassign ; that, moreover, the contract contained a further provision rendering it void for failure to drill by a certain date, that this provision was self-executing, and hence, there could be no damages. That decision in nowise conflicts with the ordinary meaning of the word “unless,” as we see it, and there is no occasion here to get into an exercise in semantics. The case is apparently cited as holding that the word “unless” imposes no obligation, but merely an option; but even on the facts of that case the conclusion does not follow generally, for the buyer would have been obligated to reassign the leases, had it not been for the nullifying provision.

We shall proceed to consider the use of similar provisions in Missouri in criminal instructions, which is more to the point. It is, of course, customary and proper that the Court should hypothesize for the jury those factual elements which constitute the crime charged. In State v. Adamson, Mo., 346 S.W.2d 85, this Court said at loe. cit. 89: “As we view the instruction, the court merely hypothesized the facts which were essential to a finding of guilt, as taken from the actual evidence, and applied the recognized law thereto. There was nothing unusual or improper about this; * * See also: State v. Shaw, Mo., 357 S.W.2d 894; State v. Barr, 340 Mo. 738, 102 S.W.2d 629; State v. Stark, Mo., 249 S.W. 57. In fact, there is no other way in which the Court may properly instruct the jury as to the application of the law to a given set of facts. The “unless you so find” clause has frequently been used as a converse, given to protect the defendant. State v. Nasello, 325 Mo. 442, 30 S.W.2d 132, 141; State v. Messino, 325 Mo. 743, 30 S.W.2d 750, 762. In those cases the clause was recognized as a converse; in Messino it was recognized as sufficient to justify the refusal of defendant’s proffered converse instructions. Later, in State v. Fraley, 342 Mo. 442, 116 S.W.2d 17, the Court held that the use of that clause at the end of the State’s verdict-directing instruction did not, in and of itself, justify the refusal of a correct, express converse instruction when offered by defendant. That opinion in nowise sought to impair the correctness of an instruction of the State hypothesizing the constitutive facts of the crime and containing the “unless” clause. And such instruction was considered as entirely sufficient where no correct converse instruction was offered by the defendant. The subsequent cases have not changed this rule. State v. Bradley, 361 Mo. 267, 234 S.W.2d 556; State v. Niehoff, Mo., 395 S.W.2d 174; State v. Engberg, Mo., 377 S.W.2d 282. In both Niehoff and Engberg, verdict-directing instructions containing the “unless” clause were given. In State v. Barr, 340 Mo. 738, 102 S.W.2d 629, it was held that such an instruction did not assume the facts hypothesized but required “the jury so to find.”

No converse instruction whatever was offered by defendant in this case. We hold: that Instruction No. 3 did not assume any facts to be true; that the clause reading “unless you find the facts to be as above stated you are instructed to acquit * * * ” not only did not subordinate defendant’s theory of innocence, but gave to defendant a gratuitous converse, when he had not even requested one. The very wording of the instruction does distinguish between “evidence” and “facts”; it refers to a finding “from the evidence”; it tells the jury that “unless you find the facts to be as above stated,” you will acquit; and in the first paragraph there is the added caution, “if such be your finding.” In the absence of the offer of an express converse (which it was not the court’s duty to prepare and give, — Engberg, supra) there was no other way in which the issues could be submitted properly.

This is not a case where defendant advanced a specific theory of defense and asked an instruction “in keeping with it.” Engberg, supra. The defense here was an attack upon the “credibility of the state’s case.” id. Defendant was given the full benefit of the presumption of innocence and of reasonable doubt, as noted in Nie-hoff and Engberg, supra. Under these circumstances, there was no error whatever in Instruction No. 3, as given. We appreciate the diligence of appointed counsel in pursuing the point, but, finding it of no substance, it is denied.

The amended information and the verdict are sufficient; we find, however, that the allocution, judgment and sentence do not conform to the actual charge upon which the defendant was convicted. The entry of record recites: “Now said defendant being informed by the court of the verdict of the jury, heretofore returned herein, finding him guilty of Assault with Intent to Kill with a Deadly Weápon, under the Habitual Criminal Act, and the court fixing the punishment at seven (7) years, to be confined at the direction of the Reception and Diagnostic Center, Department of Corrections, Jefferson City, Missouri, for said offense of Assault with Intent to Kill with a Deadly Weapon under the Habitual Criminal Act.” The remainder of the allocution and the sentence then followed. The defendant was actually convicted under § 559.180 RSMo 1959, which crime, of necessity, includes the element “of malice aforethought." All reference to that element, and consequently a complete reference to that particular crime has been omitted in the entry of the allocution, judgment and sentence. It is only because of that element that a sentence exceeding five years is proper. See, for comparison, § 559.190. We affirm the case on the merits, but we reverse the judgment and remand the cause with directions to the trial court to have the defendant brought before it for a proper allocution, judgment and sentence in accordance with the amended information and the verdict.

It is so ordered.

All of the Judges concur.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    Charles F. CASH, Respondent, v. Charles John BOLLE, Jr., Appellant, and Delores Sanfilippo, Respondent.
    No. 52251.
    Supreme Court of Missouri, En Banc.
    Jan. 8, 1968.
    Rehearing Denied Feb. 12, 1968.

      Thurman, Nixon, Smith & Howald, Jeremiah Nixon, Robert Lee Smith, Hillsboro, for plaintiff-respondent.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellant.
    James A. Blackwell, St. Charles, for respondent Sanfilippo.
   DONNELLY, Judge.

In this jury-tried action for damages resulting from vehicular collisions in Jefferson County, Missouri, which occurred on April 12, 1963, plaintiff, Charles F. Cash, received a verdict in the amount of $6,000 against defendant, Charles John Bolle, Jr., and defendant, Delores Sanfilippo, on her cross-claim, received a verdict in the amount of $12,000 against defendant, Charles John Bolle, Jr. Bolle appealed. We reverse and remand as to Cash’s claim against Bolle, and affirm as to Sanfilippo’s cross-claim against Bolle.

The collisions occurred on Highway 61-67, a four-lane roadway, with two lanes for northbound traffic and two lanes for southbound traffic. The northbound lanes were divided from the southbound lanes by a center line, but no median strip. Cash and Bolle were northbound, with Cash in the right northbound lane, and Bolle in the left northbound lane. Bolle was passing Cash. Sanfilippo was southbound, in the southbound lane nearest the center line. As Bolle and Sanfilippo approached each other, both crossed the center line. There is a conflict in the testimony as to which of these two automobiles first crossed the center line. Bolle and Sanfilippo collided, and Sanfilippo then collided with Cash.

Bolle contends that the trial court “erred prejudicially in giving plaintiff Cash’s instruction No. 4, because it directed a verdict in favor of Cash and against Bolle, on a finding that only Mrs. Sanfilip-po was negligent.” Instruction No. 4, as given, reads as follows:

“Your verdict must be for plaintiff Charles Cash if you believe:
“First, defendant Delores Sanfilippo drove on the wrong side of the road, and
“Second, defendant Delores Sanfilippo was thereby negligent, and
“Third, such negligence directly caused or contributed to cause damage to plaintiff Charles Cash.”

Instruction No. 4 properly should have read:

Your verdict must be for plaintiff Charles Cash and against defendant Delores Sanfilippo if you believe:
First, defendant Delores Sanfilippo drove on the wrong side of the road, and
Second, defendant Delores Sanfilippo was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage to plaintiff Charles Cash.

Instruction No. 4, as given, was erroneous. Supreme Ct.Rule 70.01(b), V.A.M.R.; MAI No. 31.03, Instructions No. 4, 6 and 8. We must judicially determine its prejudicial effect. Supreme Ct.Rule 70.01(c), V.A. M.R. In Brown v. St. Louis Public Service Co., Mo.Sup., 421 S.W.2d 255, this Court said: “It must be recognized * * * that a system of instruction such as MAI is inherently standardized and inflexible. If this court is to make this system work, and perserve its integrity and very existence, we must insist that mandatory directions be followed and that the pattern instructions be used as written. Otherwise, as we quoted the special committee’s report in our opinions in Motsinger v. Queen City Casket Co., Mo., 408 S.W.2d 857, 860, and Hunter v. Norton, Mo., 412 S.W.2d 163, 166: ‘ * * * If counsel are permitted to ‘improve’ the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such ‘improvement’ by one counsel will prompt an offsetting ‘improvement’ by his opponent and after a while the court will not be able to find the original with a divining rod.” ’ * * *

“It is our understanding that the bench and bar generally approve of MAI, have found it to be a distinct improvement over the old system of instructions and desire its continuation. We have confidence that the lawyers can and will utilize the system as it is intended. We have written at some length on the subject because we feel that, in fairness to bench and bar, we should make it crystal clear that ‘To accomplish the purpose for which the forms were prepared, the courts must insist that they be utilized.’ Motsinger v. Queen City Casket Co., supra, 408 S.W.2d l. c. 860.

“Accordingly, where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.”

We are of the opinion that under Instruction No. 4, as given, the jury could have found for Cash and against Bolle if they believed Sanfilippo negligent. The giving of Instruction No. 4 was error and prejudicial to Bolle on Cash’s claim against Bolle.

The judgment on Cash’s claim against Bolle must be reversed and the cause remanded for new trial. Other points briefed as to this judgment relate to matters which will not likely recur upon retrial of the cause and need not be discussed.

We next consider Bolle’s assignments of error which may relate to the judgment on Sanfilippo’s cross-claim against Bolle.

Cash testified on direct examination, in part, as follows:

“Q Did you see an automobile driven by the defendant Bolle, here?
“A Yes, I did.
“Q Tell the jury when you first saw that car.
“A He had passed me — -just before we came up on to the curve he had passed me and he got about two to three car lengths ahead of me. * * *
“Q And what lane did he pass you in ?
“A In the center lane next to the center line.
‡ ⅜ ⅜ ⅜ ⅝
“Q What did you see the Bolle car do then?
“A I seen him swerve to his left.
“Q Did you see whether his car crossed the center of the highway or not? A Yes, I did.
“Q Did you see a car driven by Mrs. San-filippo? A Yes, sir.
“Q Did you see that car before or after you saw the Bolle Car?
“A I seen it after I saw the Bolle car.
“Q Did you see the Sanfilippo car before or after you saw the Bolle car go across the center line?
“A I seen it after I seen the Bolle car go across the center line towards his left.
“Q Then what happened?
“A Well, after I seen both cars then she came across — not straight across — on an angle across the highway into my lane.”
Cash testified on cross-examination, in part, as follows:
“Q (By Mr. Richeson) Now, you said it was two-thirds of the way across the center line. What do you mean by ‘it’ ?
“A The Bolle car was two-thirds of the way across the center line.
“Q At the instant that you first saw the Sanfilippo car?
“A Yes, sir.
“Q And where was the Sanfilippo car at that time?
“A It was moving across the center line.
“Q How much of it was across the center line?
“A At the time that I seen it it was two-thirds of the way.”

Bolle then sought to impeach Cash’s testimony with his deposition, wherein Cash had said:

“ ‘Question: Where was her car, in what lane, when you first saw it ?
“Answer: It was in the center northbound lane.’ ”

The trial court instructed the jury to disregard the deposition testimony. Bolle urges that the trial court erred. He contends that in his deposition “Cash was saying that all of the Sanfilippo car was in the center northbound lane,” and that this statement was inconsistent with the testimony given at the trial. We do not agree. “Great latitude should be allowed in the cross-examination of a witness whose testimony contradicts his previous statements on a material issue.” Dempsey v. Horton, 337 Mo. 379, 386, 84 S.W.2d 621, 625. However, on this record, a direct contradiction does not appear. The “law is well settled that the extent and scope of cross-examination in a civil action is discretionary with the trial court and its rulings in regard thereto will not be disturbed unless an abuse of discretion is clearly shown.” Eickmann v. St. Louis Public Service Company, Mo.Sup., 323 S.W.2d 802, 807. We find no abuse of discretion on the part of the trial court.

Bolle urges the trial court erred in permitting counsel for Sanfilippo to read certain testimony from Cash’s deposition. The transcript on appeal reads as follows:

“Q (By Mr. Blackwell) Do you recall this question being asked you and this answer being given:
“ ‘Question: Would you say you saw the Sanfilippo car about the same time he [Bolle] cut to the left or before or after?’
“MR. RICHESON: Just a moment—
“THE COURT: (interrupting) May I see the deposition, please?
“MR. RICHESON: I would like to ask that the question and answer be stricken, Your Honor.
“MR. BLACKWELL: ‘Question: Would you say you saw—
“THE COURT (interrupting) Mr. Rich-eson, were you objecting to this?
“MR. RICHESON: Yes.
“THE COURT: The objection will be overruled.
“MR. BLACKWELL: ‘Question: Would you say you saw the Sanfilippo car about the same time he [Bolle] cut to the left or before or after ?
“ ‘Answer: No; just a few seconds after he [Bolle] cut to the left, then she come. I seen her car.’
“MR. RICHESON: I move that that question and answer be stricken because of the Court’s ruling with regard to the offer of testimony from the deposition which I made.
“THE COURT: Mr. Richeson, you were using a different question and answer in an attempt to impeach this witness on other evidence- — questions and answers that were asked and given. The objection will be overruled.”

We are of the opinion that the trial court did not err in this regard. The basis of Cash’s claim against Sanfilippo was that Sanfilippo “drove on the wrong side of the road.” Cash’s deposition testimony tended to show that Sanfilippo “drove on the wrong side of the road” to avoid Bolle after Bolle entered her lane of traffic. Cash’s deposition statement is an admission against his interest and was admissible at the trial. Brown v. Kroger Company, Mo.Sup., 344 S.W.2d 80, 82 [2],

Bolle urges the trial court erred in permitting counsel for Sanfilippo to read in evidence certain notations made and entered by Doctor Judge in the hospital records of Jefferson County Memorial Hospital. The transcript on appeal reads as follows:

“MR. BLACKWELL: Your, Honor, at this time I would like to read into the record excerpts from the medical records of Mrs. Delores Sanfilippo, from the Jefferson Memorial Hospital at Festus, Missouri.
“MR. RICHESON: May I see them please ?
“OUT OF THE HEARING OF THE JURY
“MR. RICHESON: Your Honor, we have a problem here in connection with counsel’s proposal to read from the hospital records the statement of the attending physician, because a good many months ago demand was made on me to furnish plaintiff’s counsel with a copy of Doctor Donnell’s report of his examination, which they were entitled to, and when that demand was made on me, I immediately demanded of plaintiff’s counsel that they furnish a report of their examining physician but they have failed to furnish it to this date, so that I believe that, under the rule, the statement of the attending physician should not be read from the hospital records.
“MR. BLACKWELL: I have in my file, if the Court please, correspondence sent from the Sanfilippo file from Earl Blackwell showing that Sam Richeson, Attorney for Charles Bolle, asked him to provide Sam Richeson with copies of any medical reports which the said Earl Blackwell had in his possession.
“I, too, have the file showing that Earl Blackwell said he had no medical records in his possession. These medical records were never in the possession of Earl Blackwell, nor Jim Blackwell. The defendant San-filippo’s counsel have never had a medical report in their possession.
“MR. RICHESON: Let me correct counsel’s statement about my demand. It was made by letter on November 23, 1964, in which I said: ‘We enclose a copy of Doctor Donnell’s report of examination of Delores Sanfilippo. Please forward copies of all medical information in your possession.’
“THE COURT: Did you, Mr. Richeson, in reply to that letter, receive any reply from Mr. Earl Blackwell or Mr. James Blackwell ?
“MR. RICHESON: Yes, I did. I received a reply dated November 24, 1964, from Earl Blackwell in which he said: ‘Dear Sam: I have no written medical information in my possession concerning De-' lores Sanfilippo.’
“THE COURT: Do you have any reason to doubt the contents of that letter ?
“MR. RICHESON: Nothing except the existence of the hospital records.
“THE COURT: Based upon the written demand and written reply of Mr. Earl Blackwell, the Court will overrule the objection.”

Our S.Ct.Rule 60.01(b) (1), V.A.M.R., to which counsel for Bolle referred at the trial, reads as follows: “If requested by the party against whom an order is made under Rule 60.01(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions, together with like reports of all earlier examinations of the same conditions. After such request and delivery the party causing the examination to be made shall be entitled upon request to receive from the party or person examined a like report of any examination, previously or thereafter made, of the same condition. If the party or person examined refuses to deliver such report the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial.”

It is similar to Rule 35(b) (1), Federal Rules of Civil Procedure, 28 U.S.C.A. In Weir v. Simmons, D.C.Neb.1964, 233 F. Supp. 657, at 660, the Court said: “There remains for consideration the scope of production under Rule 35 (b) (1). The defendant has moved the court for production of reports from all doctors, dentists, clinics and hospitals which have made examinations of the plaintiff. Not all of these reports are within the ambit of Rule 35. The question arose in Butts v. Sears, Roebuck & Co., supra, D.C., 9 F.R.D. 58, as to what type reports a moving party could obtain. Therein the defendant had moved to require the plaintiff to produce certain reports of medical examinations, hospital records and physician’s personal records. Judge Holtzoff held that this rule did not place a burden upon the plaintiff of procuring copies of hospital records or office records, but was limited to reports of medical examinations conducted at the request of the plaintiff. This court concurs with Judge Holtzoff’s interpretation of the scope of Rule 35.”

We need not decide whether Judge Holt-zoff’s interpretation, in its entirety, should be followed in Missouri. Only hospital records are involved on this appeal. We hold that under S.Ct.Rule 60.01(b) (1), supra, Sanfilippo was not required to procure and deliver copies of the hospital records. The trial court did not err in admitting the hospital records in evidence.

Bolle contends that Sanfilippo’s $12,000 verdict is excessive. The evidence showed that she had a gash of four to six inches on her forehead, a laceration of the ear, and a cut on her eyelid. She suffered a broken right leg at the knee requiring surgery and the wearing of a cast for eight or nine weeks. Four ribs were fractured. She required traction and the wearing of a Thomas cervical collar for three months for injuries to her back, spinal column, and cervical area. At the time of trial she suffered from eruptions along the scar on her face, discoloration of the left cheek, was nervous, suffered from sleeplessness, had pain in the right leg, back, chest, and shoulders, and suffered headaches. Before the collision she was a “very healthy person.” Her health is now so impaired that she cannot perform her duties as a housewife as well as before the collision. She is thirty-six years of age.

In Brown v. Moore, Mo.Sup., 248 S.W.2d 553, at 559, the Court said: “ * * * We must keep in mind that the question of the amount of damages is primarily for the jury. The jury’s broad discretion in fixing the amount of the award is conclusive on appeal, especially where the verdict has the approval of the trial court, unless the appellate court can say that the verdict is so shockingly and grossly excessive or inadequate as to indicate that the amount of the verdict is due to passion and prejudice; and that the broad discretion granted to the jury and to the trial court in weighing the evidence has been arbitrarily exercised and abused. * * * ”

We do not consider the verdict excessive under the evidence in this case.

Bolle urges the trial court erred in sustaining an objection to a portion of his counsel’s argument. The transcript reads as follows:

“Mr. Nixon said: Richeson brought a doctor here! Yes, I did. I brought the doctor here because I wanted you to know exactly what was wrong with these people. Did they bring them ? Did Blackwell bring a doctor? Did he bring Doctor Judge? No; he didn’t bring Doctor Judge! Why didn’t he? He didn’t bring Doctor Judge because this jury is entitled to infer from Doctor Judge’s absence that if Doctor Judge would have been here his testimony would have been unfavorable to Mrs. Sanfilippo and that he would have said that she had nothing wrong with her neck and nothing wrong with her back as a result of this accident. That’s the inference you are entitled to draw from the absence of Doctor Judge here, and if that were not true these two men wouldn’t be sitting there quietly now while I make that statement. That is—
“MR. BLACKWELL (interrupting) Your Honor, that’s improper argument. Mr. Richeson — I understand that he has the right to comment but he doesn’t have the right to impugn our integrity — ‘sitting there’ and—
“MR. RICHESON (interrupting) I’m saying that I have a right to make that statement and—
“The COURT (interrupting): Counsel, you do not have the right to make a statement to say that you are saying something that you know is not correct. That part of the argument is objectionable and the obj ection will be sustained.
“MR. RICHESON: I say to you, ladies and gentlemen of the jury, that you do have the right to infer from the absence of Doctor Judge that if he came here his testimony would be unfavorable to Mrs. Sanfilippo.
“MR. BLACKWELL: I object to that, Your Honor, as being repetitious. He said it four times already.
“MR. RICHESON: I can say it as many times in one statement as I want to, if I want to.
“THE COURT: The objection will be overruled.”

In Griffith v. Gardner, 358 Mo. 859, 879-880, 217 S.W.2d 519, 530-531, this Court said: “ * * * We have repeatedly held the trial court is allowed wide discretion in ruling on the propriety of the arguments with respect to the question of prejudice. The standard of such propriety varies in each case just as the facts, the conduct of the parties, the surrounding circumstances, and the conduct of counsel also differ in each case. Unless we find the trial judge who is in a better position to rule on this question has clearly abused his discretion, we have always deferred to his judgment.” We cannot convict the trial court of an abuse of discretion on this record.

We find no prejudicial error in San-filippo’s case against Bolle. This judgment must be affirmed.

Judgment in favor of plaintiff Cash and against defendant Bolle reversed and remanded. Judgment in favor of defendant Sanfilippo and against defendant Bolle affirmed.

All concur.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. George Henry SMALL, Appellant.
    No. 52908.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Frederick E. Steck, Sp. Asst. Atty. Gen., Sikeston, for respondent.
    George J. Jeggle, St. Louis, for appellant.
   STORCKMAN, Judge.

The defendant George Henry Small was convicted of the offense of illegal possession of Dextroamphetamine Sulphate, designated as a stimulant drug by the Missouri State Division of Health, pursuant to § 195.230, RSMo 1959, V.A.M.S. Since the defendant had been convicted of a prior felony, punishment was assessed by the court and the defendant was sentenced to four years’ imprisonment in the custody of the Department of Corrections. Sections 195.270 and 556.280. He appealed from the judgment of conviction.

The defendant rests his appeal upon his statement of facts which we have construed to mean that he attacks the sufficiency of the evidence to sustain the conviction. State v. Patton, Mo., 412 S.W.2d 154, 155[1]. This is the only issue presented.

The evidence of the state tended to prove that on November 11, 1966, at about 8:30 p.m., two patrolmen of the St. Louis Metropolitan Police Department, James Ketterman and Terry Schell, stopped their patrol car at the northeast corner of Sarah and Olive Streets in St. Louis where the defendant and four other Negro men were standing. Patrolman Schell was driving and Patrolman Ketterman was on the right side of the front seat. As the patrol car stopped at the curb on Sarah Street, the men “scattered” in different directions. The defendant, who was on the sidewalk about six feet from Patrolman Ketterman, took a white box from the right pocket of his blue and white sports jacket and dropped it to the sidewalk as he started to walk north on Sarah Street. Patrolman Ketterman retrieved the box, looked at it and saw that it contained what appeared to be a stimulant drug. He pursued the defendant and apprehended him about ten to fifteen feet from the place where the box had been dropped. The corner in question was illuminated by street lights. As the officers arrived at the corner the defendant was standing with his back and right side toward them. Both officers saw the defendant take the box from his pocket and drop it.

At the trial Patrolman Ketterman identified the box and the six foil packages of yellow powder it contained as the object he saw the defendant take from his pocket and drop and as that which the officer picked up from the sidewalk. He delivered the box and packages to Robert Seto, a chemist for the police department on November 12, 1966. Mr. Seto testified that he made a chemical analysis of the yellow powder and found it to be Dextroampheta-mine Sulphate which is a stimulant drug.

The defendant was the only witness in his behalf. He testified he had been convicted in Missouri of stealing a motor vehicle valued at more than $50 and had been convicted in Illinois on three counts of armed robbery. He had no previous drug conviction. On the night in question he was standing by a parked car on Olive Street near Sarah eating a polish sausage sandwich and drinking a coke which he had purchased at a nearby restaurant. No one was standing near him, but there were other people moving on the street. A patrol car stopped on Sarah Street and a police officer got out and called to him. He put down his sandwich and drink and went toward the policeman who told the defendant “don’t go near your pocket” and placed him under arrest. The defendant denied that he took anything out of his pocket and dropped it. The defendant requested a directed verdict of acquittal at the end of the state’s case and again at the close of all the evidence. Both requests were denied. The case was submitted to a jury which found the defendant guilty as charged.

In determining the sufficiency of the evidence to support a verdict of guilty, the appellate court must consider as true all substantial evidence favorable to the verdict together with favorable inferences that may be reasonably drawn therefrom and must reject evidence unfavorable to the verdict. State v. Turnbough, Mo., 388 S.W.2d 781, 783 [4]; State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 804[2], The reviewing court does not undertake to determine the credibility of witnesses or weigh the evidence. State v. Hampton, Mo., 275 S.W.2d 356, 359[4],

The evidence favorable to the verdict is that the police officers saw the defendant take from his coat pocket a box containing packages of a powder, drop it to the sidewalk and walk away from it, that the officers immediately retrieved the box and packages and arrested the defendant, and that the powder in the packages on chemical analysis was found to be Dex-troamphetamine Sulphate. This is substantial and competent evidence and is sufficient to support the jury’s verdict that the defendant was guilty of having illegal possession of the contraband drug as charged. State v. Starks, Mo., 419 S.W.2d 82, 84[3]; State v. Hodge, Mo., 399 S.W.2d 65, 67[1]; State v. Baines, Mo., 394 S.W.2d 312, 316 [9], certiorari denied 384 U.S. 992, 86 S.Ct. 1900, 16 L.Ed.2d 1008; State v. Jefferson, Mo., 391 S.W.2d 885, 888 [3]; Vincent v. United States, C.A.Mo., 361 F.2d 474, 476[5]; Williams v. United States, C.A.Mo., 344 F.2d 264, 265 [2], certiorari denied 382 U.S. 857, 86 S.Ct. 112, 15 L.Ed.2d 95; Vincent v. United States, C.A. Mo., 337 F.2d 891, 897[9], certiorari denied 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281, rehearing denied 381 U.S. 947, 85 S.Ct. 1775, 14 L.Ed.2d 713.

We have examined those parts of the record subject to review under S.Ct. Rule 28.02, V.A.M.R., and find them legally sufficient and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


author: WELBORN, Commissioner. PER CURIAM:

text:
    James F. RUPPEL and Hester S. Ruppel, (Plaintiffs) Respondents, v. RALSTON PURINA COMPANY, a Corporation, (Defendant) Appellant.
    No. 52118.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1968.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 12, 1968.
    Spencer, Hines & Petri, Columbia, for plaintiffs-respondents.

      John C. Kibbe, California, J. A. Fraser and F. W. Schwarz,- St. Louis, for defendant-appellant.
   WELBORN, Commissioner.

This is an appeal by Ralston Purina Company from a judgment, entered on a jury’s verdict, awarding James F. Ruppel and Hester S. Ruppel actual damages of $25,000 and punitive damages of $15,000 for injury to their property resulting from the operation of Ralston Purina’s turkey processing plant in the City of California, Missouri.

In 1955, James F. Ruppel and his wife, Hester, purchased a 94-acre tract of land, lying east of California, for $8500. Mr. Ruppel is a brick mason and he has from time to time built houses for sale. His idea in purchasing the property was eventually to develop it for residential purposes. In 1961, 40 acres of the tract lying alongside and north of the Missouri Pacific Railroad tracks were sold to the City of California for $13,600. Mr. Ruppel knew at the time that the city proposed to use the land for industrial purposes, although the exact use proposed was not known.

In November,. 1962, Mr. Ruppel began construction of a house on the 54-acre tract remaining. Mr. Ruppel did the work himself and completed a house which served as the residence of the Ruppel family which included five children. Rup-pel valued the completed house at “around $11,500.”

In April, 1963, construction began on the 40-acre city-owned tract of a plant to be occupied by Ralston Purina for processing turkeys. The plant was financed by municipal revenue bonds and leased to Purina. The cost of the project was in excess of $4,000,000.

The primary function of the operation of the plant is the killing of live turkeys, trucked to the plant, and the processing of the carcasses for human consumption. The plant is designed to handle approximately 350,000 pounds of live weight birds per day or a maximum of some 20,000 birds. The killing operation is seasonal, starting in late spring or early summer and ending around the last of the year. During periods of peak production in late summer, two shifts are required to handle the operation. The packing operation is year-round. When the plant first began operation, in September, 1963, approximately 200 persons were employed. At the peak of production, almost 500 persons are employed, and at the time of the trial of the case (December, 1965), 400 persons were employed.

In addition to the facilities for killing and preparing the birds for human consumption, the plant includes facilities for handling the waste products incidental to the killing and packing. The byproducts plant began operation in June, 1964. Generally, two categories of waste are processed. The first is the feathers, which are removed from the birds mechanically and are transported in water through a flume to the feather reel in the drying, or byproducts plant. The water is separated from the feathers in the reel and the feathers are transferred to a cooker where they are “hydroized” under high temperature steam and then cooked. After cooking the feathers are dried and ground into a mealy substance.

The second category of waste consists of the remaining inedible portions of the birds, such as heads, feet and entrails. These parts are also conveyed from the processing plant to the byproducts plant in water. They are removed from the water and cooked, also producing in the end a mealy substance. The end product of the processing of both types of waste is used in pet and poultry foods manufactured by Ralston Purina.

Operation of the plant involves the use of large quantities of water, some 70 gallons per bird. To handle the waste at the plant, the City of California constructed three sewage lagoons in the vicinity of the plant and on the 40-acre tract obtained from the Ruppels. The lagoons are located near the road which runs east and west and divides the Ruppels’ land from the city-owned land. The easternmost lagoon is some 400' to 500' from the Ruppel house. The second lagoon is directly south some 300' from the Ruppel house. The third lagoon is to the west of the second. The lagoons have a total area of approximately 18 acres. The waste water from the byproducts plant flows into the first and second lagoons. Sanitary sewage from the processing plant also flows into the No. 2 lagoon. No. 1 lagoon drains into No. 3, as does the No. 2 lagoon. From the No. 3 lagoon, the effluent flows through a 12-inch line for some 3600' where it is discharged into a dry ditch.

The plans for the lagoon sewage treatment facilities were prepared by Mr. Clifford Smith, an engineer who had been employed by Ralston Purina for some twenty years and who had handled the company’s sewage problem for 15 or 20 years. The construction of the lagoons was done on behalf of the City of California by its mayor. Problems with rock encountered during the construction reduced the area of the lagoons from approximately 25 acres as planned to 18 acres. The land on which the lagoons are located is not leased to Ralston and the operation and maintenance of the lagoons are the responsibility of the city.

Plaintiffs’ petition in this action, filed in August, 1964, charged that odors generated at the plant, loud and unusual noises caused by crying fowls, flies and insects resulting from the accumulation of filth, the flow of waste water from the plant onto plaintiffs’ land, and the improper design and use of the sewage lagoons which caused the contamination of the plaintiffs’ well constituted a nuisance. Although there was evidence concerning the noise, plaintiffs’ verdict-directing instruction submitted the unreasonable use by defendant of its property to plaintiffs’ damages as: “(a) Ill-smelling odors escaped from the premises used by Ralston-Purina onto the Ruppels’ property, and (b) Ralston-Purina Company deposited quantities of waste materials into the sewage disposal system in excess of the capacity of the system, and (c) Large quantities of bugs were bred at the sewage disposal system, and such bugs came onto the Ruppels’ property, and (d) Ralston-Purina Company deposited waste materials into improperly designed sewage lagoons and thereby caused contaminated water to escape from the sewage lagoons onto the Ruppel property.”

On this appeal, appellant’s assignments of error are limited to charges that the trial court erred in submitting plaintiffs’ case as one for damages for a permanent nuisance and in submitting the issue of punitive damages. We need consider only such further facts as bear upon these issues.

Plaintiffs’ evidence, substantiated in varying degrees by that of the defendant, was that unbearably foul odors were produced by the sewage lagoons and the operation of the byproducts plant. Appellant does not question the sufficiency of the evidence to support a finding of a nuisance by reason of such conditions. Appellant does contend that whatever deficiency might have existed in the plant and its operation was remediable and abatable. Therefore, according to appellant, submission of plaintiffs’ claim for damages for a permanent nuisance was erroneous.

The issue here presented being one of submissibility, we, of course, must examine the evidence in the light most favorable to plaintiffs. So viewed, the evidence showed that odors from the lagoons persisted at the time of the trial. The persistence of such odors, in spite of the defendant’s efforts to rectify the condition would support a finding that the nuisance was permanent and unabatable. There was testimony that sewage lagoons, properly constructed and properly operated, would not produce offensive odors. However, plaintiffs’ witness, Paul Decker, Chief of Designs and Construction and Operation of the Missouri Water Pollution Board, testified that 5% of the lagoons under the jurisdiction of that agency do have odors. There was testimony in this case that defendant and the city had taken certain steps to reduce the odor output of these lagoons. For example, the defendant had installed a clarifier in the line in which waste flowed from the byproducts plant to the lagoons. This device was designed to reduce the volume of solid waste which flowed into the lagoons. However, plaintiffs’ evidence was merely that the clarifier would “help” and might increase the capacity of the lagoons by 15%. In view of such evidence, the jury certainly would not be required to find that the clarifier would certainly eliminate the odors.

As appellant points out, there was evidence that some of the known sources of lagoon odors could be remedied. For example, there was testimony that the freezing and thawing of lagoons causes odors and that such situation may be remedied by the use of sodium nitrate. There was testimony that the accumulation of solid materials in weeds and grass along the banks of lagoons produced odors and that that condition could be remedied by keeping the banks free of weeds and grass. However, there was also testimony from defendant’s expert witness that lagoons, even though properly constructed and operated, may give off unpleasant odors under cloudy and overcast weather conditions. Mr. Decker testified that he knew of no preventive measure which would prevent odors in such circumstances. Decker further stated that “any sewage treatment facility will have odors of short duration.” Whether the nuisance produced by the sewage lagoon odors was a permanent one was clearly a factual issue, to be determined by the jury.

The same conclusion is reached with regard to the odors produced by the byproducts plant. Again plaintiffs’ evidence showed that such odors persisted until the time of trial. Defendant testified that various steps had been taken to alleviate the situation, but in view of the evidence of the persistence of the odors, the jury could find that the condition was permanent and not abatable.

On the insect situation, plaintiffs’ evidence showed large quantities of mosquito-like insects were produced at the lagoons and that they invaded the plaintiffs’ property in large numbers. Mrs. Ruppel identified a quantity taken from the window of her residence in June, 1965. Again, there was evidence that proper maintenance of the lagoons by keeping weeds and grass off the banks and the use of insecticide would prevent infestation by insects of the lagoon area. However, the situation did persist and, according to defendant’s expert witness, the cause of flies around lagoons is unknown. The permanency of this source of nuisance was sub-missible on the evidence presented.

Appellant cites three cases in support of its contention that the evidence did not warrant submission of damages as for a permanent nuisance. All three, Flanigan v. City of Springfield, Mo.Sup., 360 S.W.2d 700; Shelley v. Ozark Pipe Line Corporation, 327 Mo. 238, 37 S.W.2d 518, 75 A.L.R. 1316, and McCracken v. Swift & Co., 212 Mo.App. 558, 250 S.W. 953; Mo.Sup., 265 S.W. 91, involved claims for damages for temporary nuisances. None provides an exact precedent for this case. Mc-Cracken did involve a poultry and egg establishment, but the issue decided was the proper measure of damages for a temporary or recurrent nuisance. Shelley v. Ozark Pipe Line Corporation involved a leaking oil pipe line. Appellant relies upon language in that case indicating that a temporary nuisance involves negligence. However, plaintiffs in this case did not rely upon negligent acts of the defendant as the basis of their complaint and the evidence does not show, as a matter of law, that the invasion of the plaintiffs’ property was the result of negligence of the defendant. Flanigan v. City of Springfield involved the right of a landowner to sue for damages for a temporary nuisance resulting from operation of a sewage treatment facility. The court in Flanigan held that, in view of the testimony of the defendant’s witnesses about the possibility of odor-free operation of the plant in the future, “it was a jury question whether it was scientifically possible and reasonably practicable for defendant to have so operated its plant that foul and noxious odors would not have escaped therefrom.” 360 S.W.2d l. c. 704 [5]. Flanigan might well support the submissibility, particularly on defendant’s evidence here, of plaintiffs’ claim in this case as for damages for a temporary nuisance. However, plaintiffs elected to submit their claim as one for a permanent nuisance and defendant offered no instruction which would have presented to the jury the issue of permanent or temporary nuisance. Flanigan does not preclude the submission of plaintiffs’ claim as based upon a permanent nuisance. In fact, Flani-gan’s major significance, insofar as this case is concerned, is its recognition of the rule, theretofore enunciated by the Springfield Court of Appeals in Newman v. City of El Dorado Springs, 292 S.W.2d 314, and Hillhouse v. City of Aurora, 316 S.W.2d 883, that a municipal sewer system is not inevitably, necessarily and inherently a permanent nuisance, “ ‘except the lands in the vicinity thereof and such as will, in reasonable contemplation, be permanently affected by it.’ ”

The evidence in this case would warrant a finding that improvements in the operation of the plant and the sewage lagoons did not and would not terminate the interference with plaintiffs’ enjoyment of the use of their property and, in view of the factors which would be arrayed against judicial abatement of the operations resulting in the nuisance, the trial court was, on the facts, justified in submitting the case as one for damages for a permanent nuisance. We may here note that defendant makes no objection to the legal basis of plaintiffs’ right to damages as for a permanent nuisance in this case, defendant’s case on appeal being limited to the question of whether the evidence showed conclusively and as a matter of law, that the situation was remediable and abatable. Nor does defendant, on this appeal, in any manner make an issue based upon the city’s responsibility for the operation of the sewage lagoons.

Related to the appellant’s first contention is a second assignment charging error in the court’s giving of plaintiffs’ instruction on damages and refusing two instructions offered by defendant. The error in giving plaintiffs’ instruction is based upon the contention that there was no evidence to justify submission of future damages. We have already answered this contention.

As for the defendant’s offered instructions, they would, alternatively, have limited damages to those sustained up to the filing of suit, or the time of trial. Although these instructions would have properly limited the time for which damages for a temporary nuisance might be recoverable (see Thompson v. Hodge, Mo.App., 348 S.W.2d 11, 15[9, 10]), the defendant’s instructions would not have required the jury to make the requisite finding, in view of plaintiffs’ election to stand on a claim for damages resulting from a permanent nuisance, of the abatability of the nuisance. Defendant’s offered instructions would, in effect have declared, as a matter of law, that the nuisance was a temporary one. We have previously demonstrated the fallacy of this theory in the present case.

On the issue of punitive damages, the right to recover such damages for a nuisance is established. Vaughn v. Missouri Power & Light Co., Mo.App., 89 S.W.2d 699; Schumacher v. Shawhan Distillery Co., 178 Mo.App. 361, 165 S.W. 1142; Krebs v. Bambrick Bros. Const. Co., 144 Mo.App. 649, 129 S.W. 425. In this case, plaintiffs submitted the issue by MAI No. 10.01, accompanied by the definition of legal malice found in MAI No. 16.01, as “the doing of a wrongful act intentionally without just cause or excuse.” Appellant contends that the evidence did not justify such submission because there was no showing of “ill will, bad motive, wantonness, or reckless disregard of others.” Again, the issue is one of submissibility, requiring consideration of the evidence in the light most favorable to the trial court's action.

The mere erection and operation of defendant’s plant were not shown to have overtones of disregard for the rights of surrounding landowners. There was no showing what defendant’s experience had been with similar operations elsewhere. There was, on the other hand, evidence that sewage lagoons do not necessarily give off offensive odors and nothing to show that such situation might not reasonably have been anticipated here. Likewise, there was no showing what the experience had been in the operation of plants, if there were any, similar to that here involved.

There was evidence that complaints were made to defendant about odors after the operation began. However, plaintiffs, having taken the position that the conditions causing damage to their property were permanent and unabatable, are hardly in a position to contend that delay in taking steps aimed at remedying the situation evidences bad faith on the part of defendant. In Vaughn v. Missouri Power & Light Co., supra, the court held that failure to remedy, after complaints, an easily remediable situation justified the imposition of punitive damages. Plaintiffs here cannot, in this respect, claim to occupy a position similar to that of plaintiff in Vaughn.

There is, however, one aspect of defendant’s operation which would, in our opinion, support the submission of the punitive damages issue. As previously stated, the plans and specifications for the sewage treatment lagoons were prepared by defendant’s engineer. Plaintiffs’ witness Decker testified that the maximum loading of the facilities as constructed and operated was 1,120 pounds of B.O.D. (biochemical oxygen demand) and that the Water Pollution Board’s construction permit called for such capacity. Decker testified that, in fact, the operating load was in excess of twice the design capacity and that, had he known that the actual operation involved such an overloading, an operating permit for the facility would not have been issued. According to Decker, such overloading “could lead to odors and nuisances.” The overloading could have been found to have been attributable to the fact that the design capacity was intended to handle approximately 11,000 birds per day, using 50 gallons of water per bird, whereas actual operation involved killing as many as 20,000 birds, requiring 70 gallons of water per bird.

Defendant did not dispute Decker’s testimony that the lagoons were overloaded by more than twice the capacity determined by the Water Pollution Board, although defendant did dispute the Pollution Board’s criteria for determining the capacity of the system and contended that it could handle a far greater volume than fixed by the construction permit. Certainly the jury could have found such overloading and we are here concerned only with the question of whether plaintiffs’ evidence justifies a finding of a wrongful act, done intentionally without just cause or excuse, by defendant, to plaintiffs’ injury. On this appeal, defendant answers plaintiffs’ claim based upon the overloading charge on the grounds that the state Water Pollution Board had taken no action based upon the alleged overloading. Other than Decker’s statement, that he would not have recommended an operating permit on the basis of the operating load, the record is silent as to any official action by the Board. However, the inaction of that agency would not necessarily justify the defendant’s operation or prevent the jury’s finding that the conduct of defendant in this particular regard was such as would call for punitive damages.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Iudges concur.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    In the Matter of the ESTATE of William Lewis SIMMS, Deceased. Leslie Clay SMITH, Appellant, v. COMMERCE TRUST COMPANY, Co-Executor, Respondent.
    No. 52575.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1968.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 12, 1968.

      Rufus Burrus, Independence, for appellant.
    Johnson, Lucas, Bush & Snapp, Hilary A. Bush, Kent Snapp, Kansas City, for respondent.
   STOCKARD, Commissioner.

Leslie Clay Smith, herein referred to as “Claimant,” filed a claim in two counts against the estate of his uncle, William Lewis Simms, deceased, in the probate court of Jackson County. The first count was for services rendered to the deceased during his lifetime. The second was to determine title to a bank account in the amount of $25,400.07. The judgment of the probate court as to Count-1 was in favor of claimant in the amount of $3,959.00; as to Count II it was in favor of the estate. Claimant appealed to the Circuit Court of Jackson County, a separate trial was had as to Count II, and the judgment of the probate court as to that count was affirmed. Claimant has appealed to this court.

The record before the probate court is rather voluminous, and it pertained to the issues of Count I as well as to Count II. That testimony is before this court. Additional testimony was taken before the trial court, including testimony of the claimant to which respondent objected on the basis of the “dead man’s statute.” Claimant contended that the prohibitions of that statute had been waived. The trial court permitted the testimony, reserved its ruling, and subsequently sustained the objection and excluded the testimony from its consideration, but commented that if it had taken the testimony into consideration it “would not have changed or modified the findings of fact, conclusions of law, and judgment.”

Claimant contends on this appeal that the trial court erred in sustaining the objection to his testimony, but he admits that “as a practical matter it may be that such error was harmless.” We do not need to decide whether the ruling of the trial court was error. The testimony is before us, we review this court tried case de novo, and we shall do so taking into consideration the testimony of claimant and shall afford it such weight as we determine it merits.

The evidence clearly establishes that for several years, at least ten or twelve, before the death of Mr. Simms, he and his nephew, claimant in this case, occupied a confidential relationship. Claimant assisted Mr. Simms when ill, paid bills for him and performed many helpful tasks that his uncle could not do, or which would have been inconvenient for him to have performed. For some undisclosed period of time claimant had authority to write checks on a checking account of Mr. Simms in the Commerce Trust Company.

In 1951 Mr. Simms executed a will which had been drafted by Mr. David Dabbs a lawyer and personal friend of Mr. Simms. This will was in effect at the time of Mr. Simms’ death, subject to the provisions of a codicil hereafter mentioned, and was admitted to probate. The will was before the probate judge as a part of the file, but we do not find its complete terms in the record before us. However, it did provide for a trust with two sisters of Mr. Simms being named as beneficiaries. Both of these sisters died prior to April 1962. During that month Mr. Simms arranged for Mr. Dabbs to bring the will to his home, and Mr. Simms wanted to know if he would have to write a new will in view of the death of his two sisters. He was advised by Mr. Dabbs that the provision for a trust was “obsolete” and a new will was not necessary. According to Mr. Dabbs, Mr. Simms then read the will “line by line” and stated that it provided for exactly what he wanted. In July 1962, or shortly thereafter, Mr. Simms called Mr. Dabbs on the telephone and asked him if he was “sure” that he did not need to change his will by reason of the death of his two sisters, and he was again assured that no change was required. Mr. Simms again stated that with the trust provision being obsolete the will was “just what he wanted.” This will provided that the Commerce .Trust Company should be executor and that Mr. Dabbs should be attorney for the estate. Claimant was named as a beneficiary.

In October 1962 Mr. Simms was a patient at St. Luke’s Hospital. According to claimant, Mr. Simms told him that he wanted him (claimant) to arrange to have a power of attorney prepared designating claimant as his attorney in fact to transfer various bank accounts to one account, and “he wanted them put in my name.” Claimant asked if he had an attorney, and Mr. Simms said he did not. Claimant then asked “how about the attorney who drew your will,” and, according to claimant, Mr. Simms replied, “I haven’t heard from him for years and as far as I know he may be dead.” Mr. Simms then asked if claimant knew an attorney, and he replied that he did and he mentioned that Mr. James B. Nourse handled some legal work for the business where he was credit manager, and Mr. Simms said, “Well, have it done.”

On October 8 claimant told Mr. Nourse that Mr. Simms wanted to see him, and Mr. Nourse went to the hospital that day. According to Mr. Nourse, Mr. Simms said to him, “I want a will,” and further stated that he was single, 86 years of age, and facing a prostate operation. He said that he “had in mind” remembering four of his nephews and nieces and that he desired that claimant be the executor. Mr. Simms’ further instructions, according to Mr. Nourse were as follows: “Immediately I want a power of attorney to take care of the present situation. I don’t want to be bothered with any details. Clay Smith [claimant] knows what I want. There are quite a few of bank accounts. I want them placed into one account. It will be a checking account. If there is anything after I get through all of this and after Clay has taken care of me, I deem Clay to be a son. Then I want Clay to have whatever remains of the cash in bank.”

Pursuant to these instructions, Mr. Nourse prepared a power of attorney, using a printed form, providing that Mr. Simms thereby named and appointed “L. Clay Smith true and lawful attorney for me and in name, place and stead to make deposits and make withdrawals in each and every one of my bank accounts, namely [here were listed four banks in Kansas City, one in Columbia, Missouri, one in Boonville, Missouri, and one in Wichita, Kansas] to receive and pay out moneys for my account or otherwise as may be deemed best by my attorney in fact, to enter into and upon and take possession of each and everyone of my safe deposit boxes wherein my personal papers are located and kept, specifically in the Commerce Trust Company and the Plaza National Bank; to care and provide for my maintenance, care and support, giving and granting to my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully to all intents and purposes, as I might or could do if personally present at the doing thereof, with full power of substitution or revocation, hereby ratifying and confirming all that my said attorney, or his substitute, may or shall lawfully do, or cause to be done, by virtue hereof.” This power of attorney was signed by Mr. Simms on October 11, 1962, before two witnesses one of whom was his medical doctor, and was acknowledged by Mr. Nourse.

On November S, 1962, Mr. Nourse went to the Commerce Trust Company with claimant, apparently having the executed power of attorney with them, and talked to Mr. Wuerth at the bank. According to Mr. Nourse and claimant, it was at the suggestion of Mr. Wuerth that an account was opened at the Commerce Trust Company in the name of “L. Clay Smith, Trustee.” Thereafter, the funds from all of the banks listed in the power of attorney were transferred to this trustee account except the funds in the accounts in the name of Mr. Simms in the Commerce Trust Company and in the bank at Boonville, Missouri. Claimant testified that he “didn’t see any reason” to transfer the account in the Commerce Trust Company to the trustee account because he had “connection” with that account. This was the account upon which he previously had the authority to write checks. The total amount transferred to the account in the name of “L. Clay Smith, Trustee” was $29,189.97. Prior to the death of Mr. Simms, claimant wrote several checks, all but one of which were to pay expenses and bills of Mr. Simms or to provide money to him for his personal use. One check in the amount of $1,309.00 was to claimant, and he testified that it was for “services for two months,” and that it was made “on the suggestion” of Mr. Simms to “take care of my time.” There is no contention that claimant improperly used any of the funds. The balance in the account at the death of Mr. Simms on December 12, 1962, was $25,400.07.

On October 10, Mr. Nourse learned that Mr. Simms already had a will, and apparently claimant furnished him a copy. Claimant testified that Mr. Simms wanted him to be the executor of his estate, but claimant told him that he “wouldn’t want to be the executor” and that the Commerce Trust Company was executor. Mr. Simms then said, “Well, I’ll make you coexecutor.” According to claimant, Mr. Simms said that he wanted Mr. Nourse to be attorney for his estate. Mr. Nourse prepared a codicil which provided that claimant was to be coexecutor of the estate with the Commerce Trust Company, and that Mr. Nourse was to be the attorney. It made no other changes in the will. This codicil was executed on October 13. Mr. Nourse testified that he had “an uncompleted instruction to prepare a will,” but he determined that it should be handled in the interim by the codicil.

There is some confusion in the record concerning the preparation of a second codicil. At one time Mr. Nourse testified that the drafting of a second codicil was completed on November 6. However, he later stated that this second codicil was first discussed on November 20, and that it was written in final form on December 4, 5 and 6. This second codicil was never executed by Mr. Simms, but as finally drafted by Mr. Nourse, it provided that claimant should “be paid for services rendered me over the years and for services which he is now rendering * * * in addition to my bequests to him.”

In the conversation which led to the preparation of this second codicil, according to Mr. Nourse, Mr. Simms stated: “I am exceedingly disturbed and worried about Clay. Clay has had a setback. I want no misunderstandings. I want Clay to be protected and paid — if not for his services, then in the alternative I want Clay to have my International Harvester Company Stock.” The issues pertaining to Count I are not before us, but by that count claimant sought and was awarded compensation for services rendered.

In the process of assembling the assets of the estate, upon the request of the representative of the Commerce Trust Company as co-executor, claimant transferred the funds in the trust account to the account in the name of the estate, but he made it perfectly clear that he considered the funds in the trust account to belong to him personally.

At the trial before the circuit court claimant testified that Mr. Simms had given him oral instructions to put the money from the various accounts into one account in his (claimant’s) name. He testified that he did not claim the money belonged to him prior to the death of Mr. Simms, but he claimed that the part not used for Mr. Simms’ needs and care was to go to him at the death of Mr. Simms. He stated that he drew nothing from the account without the authority of his uncle and that his uncle saw every transaction.

The trial court entered findings of fact to the effect that Mr. Simms did not intend to make a gift to claimant of the funds placed in the trust account or to transfer the title to the funds to claimant until after his death; that there was no delivery of the funds “as to immediately divert deceased of any title to or right of dominion” over the funds; and that claimant was holding the funds “as agent for the deceased, and was charged with a legal duty to use any part or all of said funds for the use and benefit of deceased, so long as deceased lived.” The trial court’s conclusions of law were that claimant’s evidence failed to establish a gift inter vivos or causa mortis, and that an attempted gift to take effect on the death of the donor is void as in violation of the statute of wills.

In his brief to this court claimant challenges the findings of fact and conclusions of the trial court because as he asserts generally, the evidence established that Mr. Simms “intended the transfer to be a present gift and to be the property of claimant.” We cannot determine with certainty whether claimant contends that the transfer of the funds constituted a gift inter vivos or a gift causa mortis. The trial court held it to be neither. In his points in his brief claimant seems to attack only the holding pertaining to a gift inter vivos. However, some of the authorities cited and relied on pertain to a gift causa mortis.

The law pertaining to gifts is well settled, and we need state only general principles. The essentials of a valid gift inter vivos of personal property are a'present intention to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee, whose ownership takes effect immediately and absolutely. Michaelson v. Wolf, 364 Mo. 356, 261 S.W.2d 918, 924; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135, 144.

The writings in this case, that is, the power of attorney and the first codicil to Mr. Simms’ will, do not afford any basis whatever for the conclusion that Mr. Simms ever had the intention to make a gift to claimant. In fact, they provide circumstantial evidence that he had no such intention. Mr. Simms was a successful business man, and he appreciated the significance of a will. He understood that his intention as to the disposition of his property, in view of changing circumstances, had to be expressed therein. This is evidence by the fact that after the death of his two sisters who were beneficiaries of a trust provided for in his will, he obtained legal advice whether or not it was necessary to change his will. The power of attorney and the codicil to his will were prepared by an attorney, who of course understood and appreciated the legal significance of the words used in each instrument, and presumably, in his attorney-client relationship, advised Mr. Simms. Yet, the writing entitled a power of attorney in no way whatever purported to carry out any wish or intent on the part of Mr. Simms that ownership of the funds should be in claimant. The same is true as to the codicil. By the codicil Mr. Simms changed his will in two respects and reaffirmed the remainder of it, and in this manner expressed approval of the provision in that will for claimant which did not include ownership of the funds in the trust account. Even, if we should consider the terms of the unexecuted second codicil, it expressed no intention on the part of Mr. Simms that claimant should become the owner of the trust account. Therefore, if any intent on the part of Mr. Simms existed that claimant should become the owner of the money in the trust account, or of the balance remaining at his death, it must be found in the oral statements attributed to him.

Although oral statements attributed to a person, who by reason of death can neither affirm nor deny, should be received with caution, we have no reason to doubt or question that Mr. Simms said what the witnesses testified he said concerning his intent as to the funds placed in the trust account pursuant to the power of attorney. Mr. Nourse testified that Mr. Simms said that he wanted a “power of attorney to take care of the present situation,” and that he wanted his several bank accounts placed in one checking account.” Mr. Simms further said, according to Mr. Nourse, that “if there is anything [in that checking account] after I get through all of this and after [claimant] has taken care of me * * * I want Clay to have whatever remains of the cash in the bank.” Mr. Nourse also testified that Mr. Simms said that he wanted claimant “taken care of” and that he “expected [him] to have any residue of any monies in hand or in bank.” At another time Mr. Nourse testified that Mr. Simms said he wanted claimant “to be protected and paid — if not for his services, then in the alternative I want [him] to have my International Harvester stock.” In this latter statement no reference was made to the trust account, and we note that according to claimant he drew a check on the trust fund in the amount of $1,309.00 at the specific direction of Mr. Simms to compensate him for his “services for two months.” Claimant’s son testified that he heard Mr. Simms say to claimant, in reference to the trust account, “I expect you to have whatever is left” and “Whatever is left from this amount I expect to go to you.” Mary Marshall, a friend of Mr. Simms and a nurse, testified on deposition that Mr. Simms had $28,000 or $30,000 which “he hoped would take care of him as long as he lived,” and that “he had given that to [claimant] with the understanding * * * [that claimant] was to take care of him as long as he lived and then the rest was to be [claimant’s], if there was any left.” When we accept these oral statements attributed to Mr. Simms they not only do not indicate, but they refute, an intention on the part of Mr. Simms, at the time of the execution of the power of attorney, and at the time of the surrounding circumstances, to make an irrevocable gift of the trust account to claimant. This was claimant’s view of the transaction. He testified that he did not claim the money was his prior to the death of Mr. Simms, that Mr. Simms had the right to use any or all of it, and that he drew nothing from the trust account without authority from Mr. Simms. The evidence does not authorize a finding that Mr. Simms intended to make a gift inter vivos to claimant.

The transaction seems to have more of the features of a gift causa mortis, but it does not meet the minimum requirements of that form of a gift. As a rule, a gift causa mortis is made under circumstances which preclude a formal transaction. 38 C.J.S. Gifts § 76, p. 899. This was not the situation in this case because a part of the transaction was the formal execution of a power of attorney which did not provide for a gift, but instead provided for claimant to -act as agent to control and manage certain property of Mr. Simms which is the same property now contended to constitute the subject of the gift. Also, Mr. Simms subsequently executed a codicil to his will, a transaction more formal than the execution of the power of attorney. It has been said that gifts causa mortis are not favored in the law because they conflict with the general policy of the law relating to the disposition of the estates of deceased persons and the statute of wills. McDonough v. Portland Savings Bank, 136 Me. 71, 1 A.2d 768. See the excellent and thorough discussion of gifts causa mortis, including the history of the doctrine, in Foster v. Reiss, 18 N.J. 41, 112 A.2d 553, 48 A.L.R.2d 1391. While a gift causa mor-tis is made in expectation of death, and is conditional on the occurrence of death, there must be the intent on the part of the donor to pass title of the property to the donee at the time of the delivery. Slager v. Allen, Mo.App., 220 S.W.2d 752; Albright v. Davis, Mo.App., 64 S.W.2d 121; Kling v. McCabe, 8 Cir., 36 F.2d 337; Foster v. Reiss, supra; King v. Merryman, 196 Va. 844, 86 S.E.2d 141; In re: Gallinger’s Estate, 31 Wash.2d 823, 199 P.2d 575; O’Mara v. Dentinger, 271 App.Div. 22, 62 N.Y.S.2d 282; Barham v. Khoury, 78 Cal.App.2d 204, 177 P.2d 579; 38 C.J.S. Gifts §77; 24 Am.Jur., Gifts § 21. The intention must he to make a present gift, and to surrender the property during the donor’s life, subject to the right of revocation if death does not occur. In this case, the evidence does not support a finding of an intent to make a present gift or to surrender control of the property during the lifetime of the donor or until revoked. Mr. Simms did not say, in effect, that he gave claimant the money to be his if he did not recover. Instead he said, in effect, that he turned the money over to claimant to use for his, the donor’s, benefit, and that if donor did not use it all, then the balance should then at the time of the donor’s death become the property of claimant. This was an attempt to pass the title of property at the time of death without complying with the formal requirements of the statute of wills, Section 474.320 RSMo 1959, V.A.M.S. and for that reason the attempted gift was of no effect.

Claimant cites and relies on several cases which we shall consider briefly. In Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132, the donor indorsed several notes without recourse and gave them along with two personal checks to A. W. Lincoln who was then president of the board of trustees of the donor’s church. The checks were cashed and a bank account was opened in the name of “A. W. Lincoln, Trustee.” The donor also conveyed some real estate to Mr. Lincoln as trustee with directions that it be sold and the proceeds be used to pay certain indebtedness and make specified gifts. Mr. Lincoln disclaimed any personal interest in the property, but asserted that he held it in trust for the church for certain specified uses. The court held that the “declarations of the deceased made after such delivery and before her death indicate an absolute, irrevocable gift, immediately effective, having no reference to the future and in no sense conditional upon the fatal termination of the donor’s illness,” and further that the property “was given outright while the donor was yet alive to defendant as trustee for the improvement of the buildings of this particular church, and the gift constituted an executed trust.”

Michaelson v. Wolf, 364 Mo. 356, 261 S.W.2d 918, pertained to the situation where the trial court directed a verdict, and this court held that under all the circumstances there was a fact issue for the jury on the issue of whether a transfer constituted a gift. General principles were stated with which we find no fault.

Albright v. Davis, Mo.App., 64 S.W.2d 121, pertained to a gift causa mortis, and the judgment was reversed because of an error in an instruction. However, it was said therein that “to constitute a valid gift causa mortis, the gift must be fully executed as distinguished from a mere executory gift; but the gift, though fully executed, is nevertheless a conditional and revocable gift.”

Deneff v. Helms, 42 Or. 161, 70 P. 390, also pertains to a gift causa mortis, and the court found that “It is clearly manifest from what he said and did that it was his present purpose to part with the title to the money, and bestow it upon his sister, after the payment of the specified expenses and charges, which he directed Helms [the one to whom delivery was made] to see to.”

Edson v. Lucas, Commissioner of Internal Revenue, 8 Cir., 40 F.2d 398, contains a lengthy opinion with complicated facts not comparable to those of this case. The court found that “After Mrs. Edson parted with this property, in 1919, she had neither the legal title, nor possession, nor control, nor the income, nor the proceeds i{C ⅜ »

These cases cited by claimant state general legal principles which when applied to the facts of this pending case, do not support claimant’s contentions.

For the above reasons the judgment of the trial court was correct and is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE ex rel. BERBIGLIA, INC., a Corporation, Relator, v. Honorable Alvin C. RANDALL, Judge, Sixteenth Judicial Circuit, Respondent.
    No. 52877.
    Supreme Court of Missouri, En Banc.
    Jan. 8, 1968.
    Rehearing Denied Feb. 12, 1968.

      George L. Gisler, Kansas City, for relator; Gisler, Howell & Simms, Kansas City, of counsel.
    James, McFarland & Trimble, by Walter R. James, North Kansas City, for respondent.
   HENLEY, Judge.

This is an original proceeding in prohibition. Relator seeks to prohibit respondent from taking any action to enforce a judgment entered January 17, 1967, alleged to be void because it altered or changed a final judgment entered August 4, 1966, from which an appeal had been taken and was pending in this court. The provisional rule was issued March 14, 1967, and we determine that it should be made absolute.

It appears from the allegations of the petition for the writ, respondent’s return, and relator’s reply that the facts are not controverted. The petition alleges that in December, 1963, relator, as plaintiff, filed a suit in the circuit court of Jackson county against William T. and Elizabeth E. Poteet (hereinafter referred to as defendants) to cancel a fifteen-year lease dated November 7, 1961 (and for damages), wherein defendants were lessors and relator was lessee; that defendants filed an answer in the nature of a general denial and a counterclaim praying that the court declare the lease valid and binding upon relator; that City Bond and Mortgage Company (hereinafter referred to as in-tervenor), owner of an assignment of defendants’ interest in the lease made to secure a $75,000 loan for construction of the building leased to relator, was permitted to intervene as a party defendant and filed answer.

The petition for the writ further alleges that the suit was tried before the court in July, 1966; that on August 4, 1966, respondent made and filed his findings and conclusions, and entered a decree in favor of relator. The decree is as follows:

“It is the judgment of the Court that plaintiff has been deprived of the beneficial use of the leased premises described in Defendants’ Exhibit No. 1, the lease between plaintiff and defendants, and that it has been so deprived of the beneficial use by the defendants, or at their instance or consent. Thirty days is a reasonable time for plaintiff to vacate the premises. Therefore, the Court declares that the lease should be and is voided from and after 30 days from this date.

“The costs of this action are assessed against defendants.” The court found against relator on the issue of damages.

The petition for the writ further alleges that on August 18, defendants and inter-venor filed separate motions for new trial; that the motions, not having been passed on within 90 days, were overruled by operation of law on November 16. Civil Rule 78.04; § 510.360. The petition further alleges that defendants did not appeal from the judgment entered August 4, but that on November 25, intervenor appealed to this court.

The petition further alleges that on December 14, 1966, after the August 4, judgment had become final as to defendants and while intervenor’s appeal therefrom was pending, defendants filed a motion to set aside the August 4, findings and judgment and to dismiss plaintiff’s (relator’s) petition on the grounds that relator had failed to vacate the premises within 30 days after August 4, and had thereby waived its right to have the lease declared void; that over relator’s objection, respondent, on January 17, 1967, without setting aside the August 4, findings and judgment entered an order (hereinafter referred to as an order or the second judgment) as follows:

“It is the judgment of the Court that plaintiff has waived its right to abandon the leased premises and avoid further obligations under its lease by reason of the constructive eviction found by this Court to exist in its order of 8-4-’66. Final judgment is hereby entered in favor of defendants and against plaintiff.”

The petition further alleges that relator filed a motion to reconsider and set aside the second judgment on the same grounds stated in its objection made before and during the hearing on defendants’ December 14, motion: that is, that the August 4, judgment was final as to defendants, that intervenor’s appeal therefrom was pending, and, therefore, the court was without jurisdiction to enter the second judgment; that relator’s motion was heard and respondent, by letters to counsel, advised that it would be overruled and the second judgment permitted to stand, unless this court should direct otherwise. The petition further alleges that relator has, since the judgment of August 4, remained in possession of the premises and performed all of its obligations under the lease “ * * * so as to maintain the status quo of the parties * * * ” pending disposition of intervenor’s appeal, and a definitive final determination resolving their respective obligations and rights under the August 4, and January 17, judgments; that defendants have instituted an unlawful de-tainer- action against relator based on the void second judgment; that relator will be subjected to a multiplicity of actions and counter-actions by defendants, and will suffer irreparable injury, unless this court by its writ prohibits respondent from taking any action in the premises, except to rescind the second judgment; and, that relator has no adequate remedy at law.

By his return respondent admits: (1) that the two judgments above quoted were entered on the dates mentioned; (2) that motions for new trial were filed by defendants and intervenor and overruled by operation of law on the date above stated; (3) that intervenor appealed to this court from the August 4, judgment but that defendants did not appeal; and (4) that defendants on December 14, filed a motion to set aside the first judgment, and that relator, after January 17, filed a motion to set aside the second judgment. Respondent denied generally all other allegations of the petition, and alleged: (1) that the judgment entered August 4, did not dispose of all issues and substantive rights between the parties, and was conditional in that the relief it granted relator was subject to the condition that relator make restitution of the leased premises to defendants within thirty days thereafter; (2) that relator had admitted it had not vacated the premises within thirty days; (3) that the judgment entered August 4, was not final but was interlocutory; and, (4) that he had jurisdiction to enter the judgment of January 17, and thereby settle and finally dispose of the substantive rights of and equities between the parties.

The question whether a particular judgment, or decree in equity, is final or interlocutory most frequently arises as a question of appealability, and most of the cases cited in the briefs and those found by us involve that question. However, we are not concerned here with that particular question. We are concerned primarily with two other aspects of the finality of a judgment or decree. We note that a judgment may be characterized as final in one sense or for some purposes and not in another sense or for other purposes; that a judgment may be regarded as in suspension for some purposes and not for others. For example, a judgment or decree final for the purposes of appeal is most certainly not final in the sense that it is conclusive on the parties until the losing party has failed to appeal within the time allowed by law, or, having appealed, until the appeal is determined; and, although it is not final in that sense because an appeal is pending, yet during that period it may be final in the sense that the court from which the appeal was taken has exhausted its authority and is without jurisdiction to change, vacate or modify the judgment, or to enter another judgment. Berry v. Chitwood, Mo., 362 S.W.2d 515, 517 [1, 2], 13 A.L.R.3d 1185; Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S.W.2d 598, 600 [8]; State ex rel. Maple v. Mulloy, 322 Mo. 281, 15 S.W.2d 809, 813 [3-5]; Cox v. Frank L. Schaab Stove & Furniture Co., 332 Mo. 492, 58 S.W.2d 700, 701 [3, 4]; Lee’s Summit Building & Loan Ass’n v. Cross, 345 Mo. 501, 134 S.W.2d 19, 22 [2-7]; State ex rel. Mason v. Schmoll, Mo.App., 37 S.W.2d 972, 973 [1]; State ex rel. Templeton v. Seehorn, Mo.App., 208 S.W.2d 789; Thompson v. Hodge, Mo.App., 348 S.W.2d 11, 14 [7]; 49 C.J.S. Judgments § 11b, p. 39.

In 30A C.J.S. Equity § 582, pp. 647-649, it is said: “A decree is final when it fully decides and disposes of the whole merits of the cause, and leaves no further questions therein for the future judgment of the court, although ministerial or administrative action may be necessary in order to settle the details of the litigation, or in the course of the execution of the decree, and although there are express orders or reservations in this regard. * * * In order to be final the decree must be complete and certain * * *; it must show intrinsically and distinctly, and not inferentially, that the matter has been adjudicated; it must contain the sentence of the law. * * * The court cannot, by its subsequent action, divest a decree of its character of finality. A final decree is not rendered interlocutory by the retention of the case on the docket, or by the subsequent rendition of another decree therein.” Irwin v. Burgan, 325 Mo. 309, 28 S.W.2d 1017, 1021 [7, 8]. The decree entered August 4, 1966, fully decided and disposed of the whole merits of the cause between relator, defendants and intervenor; it left no questions for future judgment of the court; it was neither interlocutory nor conditional in any respect; it was a final decree. Moreover, defendants and intervenor recognized its finality by filing motions for new trial and by appeal to this court.

On January 17, 1967, when respondent purported to enter the second judgment, the motions for new trial had been overruled by operation of law, and intervenor had appealed from the first judgment. Prior to that date the first judgment had become final for all purposes as between relator and defendants. Respondent had exhausted his authority and was without jurisdiction to change, alter or modify the August 4, judgment, or to enter another.

We hold that respondent exceeded his jurisdiction in entering the January 17, judgment and that it is void and should be stricken from the record.

Moreover, the entry of the January 17, judgment without vacating the first, had the effect of leaving the cause with two judgments. In Irwin v. Burgan, supra, 1. c. 1021, the court quoted with approval from 1 Black on Judgments (2d Ed.) §§ 24, 304, as follows: “‘“There cannot be two final judgments in the same action.” * * * “It has been held that the entry of a second judgment in the same action is not a vacation of the first judgment, if there is nothing further to show that such former judgment was regularly canceled or set aside. ‘When a judgment is once entered of record, it must stand as the judgment unless it is vacated, modified, or disposed of by some means provided by law. Entering additional judgments is not one of them.’ ” ’ ”

In connection with his contention that the August 4, judgment was interlocutory in that it did not settle all the equities between the parties, respondent asserts that relator failed to vacate the premises within thirty days after August 4, as required; that relator thereby failed to do equity and has waived its right to insist upon the finality of that judgment. There is no merit in this contention, or in respondent’s oral argument here that in entering the January 17, judgment he was merely “construing” the August 4, judgment. As between relator and defendants the August 4, judgment was not final until the motions for new trial were overruled and the time had expired for defendants to appeal; as between relator and intervenor it was not final until the latter’s appeal was dismissed. Civil Rule 78.02; State ex rel. Mason v. Schmoll, supra. Until the judgment became final by disposition of the motions and the subsequent appeal, relator could not, with impunity from liability for the rent reserved by the lease, vacate the premises, because until final disposition there remained the possibility that the judgment could be set aside, first, by respondent on the motions, and second, by this court on appeal. Boyd v. Logan Jones Dry Goods Co., supra, 74 S.W.2d l. c. 600. A supersedeas bond would not have availed relator anything on intervenor’s appeal. The motions and the appeal had the effect of suspending, postponing or holding in abeyance the finality of the judgment as against the parties until final disposition of the appeal.

It remains for us to pass on respondent’s contention that prohibition is not the proper remedy; that he has entered the January 17, judgment and “there is nothing to prevent;” that if anything the judgment is merely “erroneous” for which relator has an adequate remedy by appeal. It is a well-known general rule, requiring no citation of authority, that prohibition cannot be substituted for a remedy by appeal. But the right of appeal must be an adequate remedy before its availability will preclude resort to prohibition. We have held herein that respondent exceeded his jurisdiction in entering the second judgment and that it is void; however, there is nothing to prevent its enforcement, and its use in other litigation, except by granting the relief relator seeks by this proceeding. In view of the nature of the rights involved, the disposition of which has been too long delayed, it is evident that the remedy by appeal is inadequate. State ex rel. Maple v. Mulloy, supra; State ex rel. Templeton v. Seehorn, supra.

The provisional rule in prohibition heretofore issued is made absolute.

All concur.

      . References to rules are to Rules of Civil Procedure and V.A.M.R.; references to sections of statutes are to Revised Statutes of Missouri, 1959, and V.A.M.S.

      . Intervenor’s appeal, docketed as our case number 52,657, was still pending here when this proceeding was argued and submitted on October 3, 1967; it was dismissed October 24, 1967.

      . By relator’s reply to respondent’s return, its brief and through oral arguments of counsel the court is informed that relator vacated the premises in April, 1967, and defendants have relet the premises to another tenant for the balance of the original lease term at the same rental.

      . The court is also informed by relator’s reply, its brief and by oral argument of counsel that subsequent litigation between relator and defendants consists of (1) the above-referred-to unlawful detainer action; (2) a suit by relator to enjoin prosecution of the unlawful detainer action; and, (3) an action by defendants to recover ?17,500 as expenses incurred and losses sustained by them in leasing the premises to the second tenant.

      . See Moss v. Kansas City Life Insurance Company, (8th Circuit, CA), 96 F.2d 108, 112 [4], a Missouri case wherein the court discusses fully the several aspects of finality of judgments and decrees.