author: HOUSER, Commissioner.

text:
    William J. BEGGS, Respondent, v. UNIVERSAL C. I. T. CREDIT CORPORATION, a corporation, Appellant.
    No. 51807.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.

      Donald L. Mason, Mason, Gant & Moran, Kansas City, for respondent.
    Preston H. Longino, John W. Schwartz, Kansas City, for appellant.
   HOUSER, Commissioner.

Action by owner of a motor transport tractor against a finance company for unlawfully taking possession of and damaging the vehicle. Judgment was entered on a jury verdict for plaintiff for $1,800 actual and $14,000 punitive damages. This was the second trial of the case. The first resulted in a judgment for plaintiff for $2,500 actual and $13,000 punitive damages. That judgment was reversed for wilful and intentional concealment by several jurors of information which should have been disclosed on voir dire examination. Beggs v. Universal C.I.T. Credit Corporation, Mo.Sup., 387 S.W.2d 499. Defendant has appealed from the judgment for $15,800.

Plaintiff owned two Diamond T tractors. Defendant had a mortgage on one of them. Plaintiff was behind in his payments. Defendant demanded payment and plaintiff failed to pay on demand. Defendant’s agent Price took possession of the tractor on which defendant did not have a mortgage. When recovered it needed extensive repairs. It was out of service for several weeks during the period of detention and repair.

On this appeal defendant contends that the award of actual damages is not supported by evidence and is excessive; that the issue of punitive damages should never have been submitted to the jury because the evidence is insufficient to establish wilful, wanton or malicious conduct (that Price merely made a mistake); that if the issue of punitive damages was sub-missible the award is so enormous that it should be substantially reduced, and that the court erred in excluding defendant’s Exhibit No. 5.

Actual damages: We find substantial evidence to support the verdict of $1,800 actual damages. There was believable testimony that defendant’s agent called a towing service which towed the tractor through the streets without “pulling the axles” or lifting the rear wheels off the street, thereby extensively damaging the transmission and power train; that the cost of repairing the damages was $909 and that plaintiff lost the use of the vehicle for three weeks at a loss of $300 a week, or $900.

Punitive damages: We find substantial evidence justifying the submission of the question of punitive damages.

There was testimony from which the jury could have believed the following facts: Plaintiff owned two Diamond T tractors. One was mortgaged to the defendant and the other was mortgaged to a bank. The one mortgaged to defendant was a 1959 model, diesel-powered, with a 194-inch wheelbase, two sets of drive wheels, a sleeper cab and a vertical exhaust pipe located at the back of the cab. The tractor on which defendant did not have a mortgage was a 1958 model, gasoline-powered, with a 142-inch wheelbase, a single set of drive wheels, no sleeper cab and a horizontal exhaust pipe located underneath the tractor. Although both vehicles were red in color, trimmed in white, there were distinctive differences in appearance between the two.

The original loan on the 1959 tractor was for $19,837. When Price demanded payment there was a balance due of approximately $7,000, and three monthly payments of $551.03 were in arrears.

Defendant’s collection manager Price was assigned to find Beggs, find the unit for which the defendant had been looking, a 1959 Diamond T diesel tractor, and bring the account current or make other arrangements, namely, “store” the tractor until the account should be brought to date. As an adjuster it was Price’s duty “to get the money or get the truck.” Considerable pressure had been brought to bear on Price by defendant to find Beggs and collect the past due money. When asked if there was “a lot of pressure” on him “to do this” Price answered “Just my job.”

One evening Price found Beggs on the lot of the Blue Valley Transfer Company, where Beggs parked his tractors. There is nothing to indicate that the 1959 diesel tractor was parked there that day. The 1958 tractor had just completed a run and the driver had put the vehicle in gear and locked the cab. Price told Beggs that he was behind three payments and that he had to have the money “now.” Beggs said that he did not have the money but that he could get it the next morning. Price told Beggs either to pay him “now” or he would “take this truck, and you can bring the money over in the morning and get your truck back”; that “we would have to store the truck until the account was brought current to date.” Price was referring to the 1958 tractor then parked on the lot. Beggs said, “No, you can’t take the truck, because you haven’t got a lien on it.” Price answered, “Well, pay me the money and I won’t.” Beggs told Price that the bank had a lien on the truck and that he would pay the payments due “but [Price] wouldn’t take no for an answer.” The vehicle with which Price was concerned was “that truck right there.” When Price was asked “You were not concerned whether that was the right truck or wrong truck, you were concerned with taking that truck or getting your money, weren’t you?” Price answered “That is what I was sent out there for.” The conversation went on for 30 or 45 minutes. Price followed Beggs into the office, from which Price made a telephone call to defendant’s credit manager, to whom he said, among other things, that he had “finally trapped Beggs down here” at Blue Valley; that Beggs was there and had promised to pay him some money the next day, and that “the truck” was at the Blue Valley Transfer Company lot. The credit manager suggested that Price call the owner of the lot and get permission to drive the truck off the lot, and to have the truck towed away. The credit manager could not recall whether he asked Price if the truck on the lot was a 1959 Diamond T diesel, or if he had checked the serial number on the tractor he was about to take, stating that he relied on Price’s training and judgment. After finishing the telephone conversation Price turned to Beggs and said “This is your last chance. I am going to take this truck unless you pay me the money”; that the truck would be released as soon as the account was brought to date. Beggs again told him that he could not take the truck because he had no lien on it. Price then called a towing service and arranged for the towing away of the tractor on the lot — the 1958 tractor which was not listed on defendant’s mortgage.

At that time Price knew that the only truck owned by Beggs on which defendant had a mortgage was a 1959 Diamond T diesel. Price had in his possession the information as to the serial number of the 1959 Diamond T diesel, but he did not check the serial number on the tractor which he ordered towed away. Price did not ask Beggs if the tractor on the lot was a 1959 Diamond T diesel and Beggs did not volunteer the' information that it was a 1958 Diamond T gasoline powered vehicle. When asked if he had asked Beggs for the serial number of the tractor on the lot Price answered that it was not Beggs’ responsibility to tell him. Price claimed to be “under the impression” from an interoffice memo that this was the right truck. He had no previous experience with Diamond T trucks and did not know the difference between 1958 and 1959 models. At the trial Price testified that he did not know the difference between a diesel and a gasoline-powered truck, but acknowledged that in his deposition he had testified that he did know the difference. When the tractor came in that evening Price acknowledged that he did not know “for sure” what model it was. He did not know that the tractor he caused to be towed away was a 1958 model until the next morning when he went to his office. When he found out he did not make any effort to call Beggs and tell him he was sorry and that he had made a mistake. He said it was then out of his hands; that he had “done his job”, that he did not know what Beggs’ telephone number was and that he really “could have cared less.”

The test to be applied in determining whether malice existed as a basis for the award of punitive damages is whether the defendant did a wrongful act intentionally and without just cause or excuse. “This means that defendant not only intended to do the act which is ascertained to be wrongful but that he knew it was wrongful when he did it. There must be, in order to justify punitive damages, some element of wantonness or bad motive, but if one intentionally does a wrongful act and knows at the time that it is wrongful he does it wantonly and with a bad motive.” Luhmann v. Schaefer, Mo.App., 142 S.W.2d 1088, 1090 [7]; Hussey v. Ellerman, Mo.App., 215 S.W.2d 38, 41; Davis v. Nash Central Motors, Mo.App., 332 S.W.2d 475, 480. Furthermore, an evil intent may be implied from reckless disregard of another’s rights and interests. Pashalian v. Big-4 Chevrolet Co., Mo.App., 348 S.W.2d 628, 637.

The jury could properly believe that in taking possession of the 1958 tractor under the circumstances of this case defendant was doing a wrongful act intentionally and without just cause or excuse. The only pretense under which defendant could have claimed the right to take possession of plaintiff’s 1958 Diamond T tractor was under and by virtue of a mortgage on that particular tractor. Its authorized agent, however, was plainly and repeatedly informed of a fact which if true completely destroyed its claim. Twice Price was told that his company had no lien on the vehicle which he proposed to take. He was further informed that “the bank” had a mortgage on it. In spite of this notice, Price made no effort to identify the tractor on the lot as the tractor covered by defendant’s mortgage, notwithstanding he had been trained to make such a check before repossessing property. With actual notice that the vehicle in question was not the vehicle for which he was looking, and without taking the elementary precaution of checking the serial number of the intended vehicle against the serial number stated in the records in his possession, defendant’s agent forcibly took possession of the wrong vehicle over the repeated protests of the rightful owner. Price’s conduct, for which •defendant is responsible, demonstrated a •callous disregard for and a studied indifference to the known rights and interests of the plaintiff.

Exhibit No. 5: There was no error in ■excluding defendant’s Exhibit No. 5. This was an interoffice communication in Price’s handwriting, signed by him, reporting the interview with Beggs, that the truck was “now setting on our lot” and asking for instructions about selling it. Attached to the memo was a “repossessed car appraisal” printed form, with the blank spaces filled in, signed by Price, reporting that the repossessed vehicle was the 1959 Diamond T truck and stating the correct serial number of the 1959 vehicle. These papers were dated April 17, 1961. They purported to report on events which happened on April 15, 1961. They were offered under the Uniform Business Records as Evidence Act, § 490.680, V.A.M.S., on the issue of the “mental state of mind of defendant as to whether or not the defendant knowingly committed a wrongful act at the time of the repossession of the 1958 truck” on the theory that it is evidence that Price was reporting that repossession in the usual manner and that he was reporting the repossession of a 1959 truck with a 1959 serial number and other identification, showing that he considered that he had repossessed the right truck.

The exhibit was objected to on the ground that it was a self-serving statement. Price, who prepared and signed it, attended the trial, was available as a witness and testified. By his own testimony it was established that Price discovered that the tractor taken was a 1958 model the next morning when he went to the office; less than 24 hours after the taking. Thereafter Price prepared Exhibit No. 5, reporting the taking of the 1959 model. By his own testimony Price must have knowingly made a false report. The court, which has a wide discretion in determining whether proper facts have been established to justify the admission of a record under the uniform act, Fisher v. Gunn, Mo.Sup., 270 S.W.2d 869, did not err in excluding this exhibit, which was clearly self-serving, see Terrell v. Missouri-Kansas-Texas R. Co., Mo.Sup., 327 S.W.2d 230, 240, and which was branded false by its own author.

Excessiveness: On the question of the size of the award for punitive damages defendant claims that $14,000 is so enormous under the circumstances that the jury must have misjudged the penalty necessary as a deterrent to future actions of this kind, and is so excessive that it shows bias and prejudice on the part of the jury.

Punitive damages are awarded for the purpose of inflicting punishment for wrongdoing, and as an example and deterrent to similar conduct. Polk v. Missouri-Kansas-Texas R. Co., 351 Mo. 865, 174 S.W.2d 176; Peak v. W. T. Grant Co., Mo.App., 386 S.W.2d 685; Wehrman v. Liberty Petroleum Co., Mo.App., 382 S.W.2d 56; State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757. The amount to be awarded lies wholly within the sound discretion of the jury and a court will not interfere with the jury’s assessment of punitive damages unless there is an abuse of discretion. Mitchell v. Pla-Mor Inc., 361 Mo. 946, 237 S.W.2d 189; Peak v. W. T. Grant Co., supra; or the size of the award is indicative of passion, prejudice or bias. Hunter v. Kansas City Rys. Co., 213 Mo.App. 233, 248 S.W. 998. Ordinarily abuse of discretion in this reference means so out of all proper proportion to the factors involved as to reveal improper motives or a clear absence of the honest exercise of judgment. Peak v. W. T. Grant Co., supra. There is no fixed relation between the amount of actual damages and the amount of punitive damages that may be awarded, State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351; Wehrman v. Liberty Petroleum Co., supra, and no fixed standard by which they can be measured, Sperry v. Hurd, 267 Mo. 628, 185 S.W. 170, but generally, punitive damages must bear some relation to the injury inflicted and the cause thereof. The jury should take into consideration the attendant circumstances, State ex rel. St. Joseph Belt Ry. Co. v. Shain, supra, including the mitigating and aggravating circumstances. Summers v. Keller, 152 Mo.App. 626, 133 S.W. 1180. The defendant’s worth or financial condition (shown here to be $49,000,000) is a consideration. Brown v. Payne, Mo.Sup., 264 S.W.2d 341; Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43; Thomas v. Durham Motors, Inc., Mo.App., 389 S.W.2d 412. And see 25 C.J.S. Damages § 126(1).

In support of its position defendant cites two cases: Randol v. Kline’s, Inc., 330 Mo. 343, 49 S.W.2d 112, and Newport v. Montgomery Ward & Co., 344 Mo. 646, 127 S.W.2d 687. In Randol, decided in 1932, an award of $25,000 punitive damages in a malicious prosecution action was ordered cut to $5,000. In Newport, decided in 1939, a remittitur of $10,000 was ordered where the jury had awarded $12,000 punitive damages in a false imprisonment case.

In Irons v. American Ry. Express Co., 318 Mo. 318, 300 S.W. 283, a malicious prosecution case, a verdict of $13,000 punitive damages was upheld. In Polk v. Missouri-Kansas-Texas R. Co., (1943), supra, another malicious prosecution case, an award of $18,000 punitive damages was considered excessive by $9,000. In Wehrman v. Liberty Petroleum Co., (1964), supra, a punitive damage verdict for $7,500 in a false arrest case was approved. In 1937 a verdict of $1 actual and $10,000 punitive damages was returned in an action for failure to give a proper service letter upon discharging a railroad employee. The trial court ordered a remittitur of $6,000. On certiorari this Court upheld the action of the Kansas City Court of Appeals affirming the circuit court judgment, in effect approving an award of $4,000 punitive damages in a case where the actual damages were $1. State ex rel. St. Joseph Belt Ry. Co. v. Shain, supra.

Turning to cases of wrongful seizure of a motor vehicle by a finance company, in 1936 the Supreme Court of Pennsylvania declared that an award of $1,260 as punitive damages was not excessive, in Stone v. C.I.T. Corp., 122 Pa.Super. 71, 184 A. 674. Two years later the same court held that $2,500 for the wrongful taking of an automobile worth $800 was excessive and required a reduction of $1,500. Voltz v. General Motors Acceptance Corp., 332 Pa. 141, 2 A.2d 697. In Thomas v. Commercial Credit Corp., Mo.App., (1960), 335 S.W.2d 703, a trial jury awarded $2,000 punitive damages for wrongfully taking an automobile valued at $400, but the award was set aside because the evidence did not warrant any award of punitive damages.

There is nothing to indicate that the managing officials of the defendant were guilty of wrongdoing, such as conspiring to tie up Beggs’ operations, or instructing their agent Price to take any of Beggs’ property he might find. Price was instructed to take the 1959 tractor on which the company had a lien, if he could not get the money. If the managing officials themselves were at fault it was in putting too much pressure on Price to get results. Under all of the facts and circumstances of this case, in the light of the general principles of law and the decided cases, we have concluded that the award of $14,000 punitive damages is excessive by $6,500.

It is therefore ordered that if plaintiff will within fifteen days enter in this Court a remittitur of $6,500 from the award of punitive damages as of the date of the judgment, the judgment will be affirmed in the sum of $1,800 actual and $7,500 punitive damages; otherwise, the judgment will be reversed and the cause remanded.

WELBORN and HIGGINS, CC., would affirm without remittitur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: CROSS, Presiding Judge.

license: Public Domain

text:
    In the Matter of the ESTATE of Julius LASPY, deceased. Barbara Jean McCALLOP, nee Mason, Administratrix-Respondent, v. Elsie Mae LASPY, Claimant-Appellant.
    No. 24542.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.

      Rufus Burrus, Independence, for appellant.
    Downey, Sullivan & McCormick, Kansas City, for respondent.
   CROSS, Presiding Judge.

On January 1, 1955, Elsie Mae Laspy shot and killed her husband, Julius Laspy. Thereafter she filed claim against his estate under Section 474.250 V.A.M.S. for a widow’s allowance in money for one year’s maintenance and for $400.00 in cash in lieu of specific personal property. From an adverse judgment of the probate court, claimant appealed to the circuit court.

Upon trial de novo it was stipulated by appellant and respondent administratrix that claimant Elsie Mae Laspy is the widow of Julius Laspy, deceased, and that they were living together as husband and wife at the time of his death.

Pursuant to offer on behalf of the estate the court received in evidence the record of claimant’s final conviction “for manslaughter in the death of her husband, Julius Laspy”, in the case of State v. Laspy, affirmed by the Supreme Court of Missouri, 323 S.W.2d 713, reference to which shows that she was tried three times by a jury in Jackson County on an information charging her with first degree murder. The first trial resulted in a conviction for second degree murder which was set aside by the trial court. The second trial resulted also in a judgment of conviction for second degree murder which was reversed on appeal. Upon her third trial she was convicted of manslaughter and sentenced to a term of ten years’ imprisonment in the penitentiary. The cited Supreme Court opinion affirming the manslaughter conviction contains a meager recital of facts and refers to the opinion in her prior appeal reported in 298 S.W.2d 357 for a more complete statement of facts. From these sources we learn that claimant admittedly shot and killed her husband about 6:15 A.M., on January 1, 1955. The shooting climaxed an all night New Year’s party in the Laspy home in Independence, which was attended by numerous people, as the party was in process of breaking up. The tragedy seems to have grown out of the husband’s resentment over claimant’s failure to lock the bathroom door when she entered therein. According to her testimony Laspy cursed her and kicked her in the stomach, procured a pistol, waved it in her face and threatened to kill her. Soon after, in their bedroom, Laspy again cursed and threatened to kill her, and then turned and reached into the closet. As he did so claimant picked up a pistol lying on the bed and shot him at least three times in rapid succession. He died almost immediately. Claimant testified she shot him in self defense because she thought he was reaching for a gun to kill her with.

During trial of the claim for allowances in circuit court an offer was made on claimant’s behalf to show the nature and value of the estate, and the salary of decedent, as bearing on the amount of the maintenance allowance she should receive. Additionally claimant was tendered as a witness offering to testify that she shot and killed her husband “in defense of herself, in fear of being shot herself, in self defense”. These offers were both refused.

The trial court found (1) that claimant was the wife of Julius Laspy at the time of his death on January 1, 1955, (2) that claimant caused his death by shooting, for which homicide she was tried and convicted of the crime of manslaughter, (3) that the conviction had been appealed to and affirmed by the Supreme Court, and (4) that claimant has been released from penal confinement “after commutation of sentence and/or parole”. Upon those findings the court rendered judgment denying appellant’s claim for allowances on the ground that “the Applicant (appellant herein) caused the death of her deceased spouse and should not be permitted to recover her allowance for one year’s support or for additional personal property by reason of the commission of said crime for which she was convicted, and that Applicant should not be permitted to profit by reason of her own wrong, or to base any claim or to acquire property by reason of the commission of such crime”. From that judgment claimant appeals.

The primary issue in this case is whether a wife who feloniously kills her husband will be permitted to take from his estate the property and allowances provided by statute for surviving widows. Appellant presses this court to rule that her conviction for the crime of manslaughter does not affect her right as a surviving spouse to receive support for one year. It is argued on her behalf that Section 474.260 as amended in 1957, clearly provides for such allowance and contains no exception that it shall be denied “because of any manslaughter conviction of the surviving spouse”; that even if by prior court decisions it had been the rule that a person who murdered his spouse thereby forfeited his rights to inherit her property, such court construction cannot be read into Section 474.260 as re-enacted in 1957, without specific inclusion therein; and, that since the probate code by Section 474.140 RSMo 1959, V.A.M.S., does in fact make certain exclusions whereby a spouse forfeits inheritance and statutory rights by reason of misconduct, but provides no exclusion for homicide, it is to be considered that the legislature intended there be no denial of marital rights because of that crime, and that thereby the legislature repudiated court decisions to the contrary. These arguments are without merit and stand in conflict with prevailing authority herein to be noted.

In 1908 the Supreme Court rendered a landmark decision on these questions in the case of Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641, 16 L.R.A.,N.S., 244. The court there decided that a husband, who killed his wife without legal justification or excuse, and three hours later killed himself, could not inherit the portion of her estate otherwise given to him by the statutes of inheritance, and that hence his children took no interest therein. In a comprehensive and superbly reasoned opinion by Judge Graves it was pointed out that Missouri statutes of descent and distribution were borrowed largely from the common law and are generally expressive of the common law; and that, furthermore, when we adopted the common law, as we did in 1816, and in later reiterative adoptive statutes, we took the body of all the common law applicable under our state and federal constitutions, and that such is the law of this state, except where repealed, changed or modified by statute. Pertinent illustrative portions of the opinion are here quoted:

“In the case of Box v. Lanier, 112 Tenn. [393], 1. c. 409, 79 S.W. [1042], 1045, 64 L.R.A. 458, the Supreme Court of Tennessee said: Tt has been well said that there are certain general and fundamental maxims of the common law which control laws as well as contracts. Among these are: “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are adopted by public policy, and have their foundation in universal law administered in all civilized countries.” These maxims embodied in the common law, and constituting an essential part of its warp and woof, are found announced both in textbooks and in reported cases. Without their recognition and enforcement by the courts,, their judgments would excite the indignation of all right-thinking people. The first of these maxims is applied in order to prevent one from taking the benefit of his own fraud. Why should not the last be enforced so as to forbid a party receiving the fruits of his own crime?
“And Earl, J., for the New York court of last resort, in (Riggs et al. v. Palmer et al., 115 N.Y. [506], 1. c. 511, 22 N.E. 188, 190, 58 L.R.A. 340), * * * said: ‘Besides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.’ * * *
* ⅜ ⅜ * ⅜ ⅛
“ ‘Under the civil law evolved from the general principles of natural law and justice by many generations of juris-consults, philosophers, and statesmen, one cannot take property by inheritance or will from an ancestor or benefactor whom he has murdered. * * * But so far as I can find, in no country where the common law prevails had it been deemed important to enact a law to provide for such a case. Our revisers and lawmakers were familiar with the civil law, and they did not deem it important to incorporate into our statutes its provisions upon this subject. This is not a casus omissus. It was evidently supposed that the maxims of the common law were sufficient to regulate such a case, and that a specific enactment for that purpose was not needed.’
“These maxims of the common law are expressly made a part of our laws by the statutes of this state, first adopted in 1816, as we have hereinabove indicated. They are a part of the law of the state by force of section 4151, Rev. St. 1899, unless they have been repealed, changed, modified, or wiped out by statute law. Have we by statute either expressly or impliedly changed or modified the maxims discussed in the Tennessee and New York cases, supra? Has the common law in this respect been repealed, changed, or modified? We think not. If not, they are a part of our law. If not, then this statute must be read in connection therewith, and when so read the father of appellees acquired no interest in the estate in controversy, and appellees have none.
⅝ ⅝ ⅜ ⅝ Sji
“To our mind our statutes of descents and distributions are so largely expressive of the common law that we must consider these maxims and the whole body of the applicable common-law doctrines; that we must read them together as parts and parcels of the same system, and when so read there can be but one answer to the query suggested by the facts of this case.
“For these considerations alone, we think tlr's case should be reversed, (denying the inheritance) but we take up next a discussion of this statute.”

The “discussion of the statute” above referred to in the Perry opinion was in response to the contention there made on behalf of claimants, as it is also made in the instant case, that the right of inheritance was provided and governed solely by the applicable statutes of descent and distribution, strictly in accordance with the plain language incorporated therein, regardless of what the rule may have been at common law; that the statute alone establishes the rule of descent and distribution, unaffected by any criminal act of the heir or distributee. The court’s answer to this argument was that statutes should be read in the light of the common law, without presumption that the legislature intended to make any innovation upon the common law further than the case absolutely required, and that no court should be inclined to other than a construction which would make the statute comport with reason and fundamental maxims of the law. Concluding its construction of the statute in question, the court said:

“In fact, the pathway of judicial literature from the earliest period down to the present is literally strewn with cases which, like beacon lights, have guided the hand of justice in preventing unjust, unrighteous, absurd, unreasonable and abhorrent results from the use of general words and expressions in statutes. To cite and quote more would be but to become tedious. We have gone thus far on account of the newness of the particular question of this case. Under these authorities we should not, and will not, hold that ‘widower’ as used in section 2938, supra, means one who has created a condition by murderous hands and heart. This case is without the statute. ‘Widower’ as there used means one who has been reduced to that condition by the ordinary and usual vicissitudes of life, and not one who, by felonious act, has himself created that condition”.

The principles established by Perry v. Strawbridge are still the law of this state and have been followed and reaffirmed by all succeeding Missouri cases involving the questions there decided, including Grose v. Holland, 357 Mo. 874, 211 S.W.2d 464; Barnett v. Couey, 224 Mo.App. 913, 27 S.W.2d 757; Eisenhardt v. Siegel, 343 Mo. 22, 119 S.W.2d 810 and Hopkins v. Metropolitan Life Insurance Co., Mo.App., 151 S.W.2d 527. Thus it is clear that in this case we must apply the rule that “no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his iniquity, or to acquire property by his own crime”. Section 474.140 must he construed in the light of the foregoing maxim and in accordance with the rules of statutory construction delineated in Perry v. Strawbridge, so that claimant may qualify as a “widow” within the purview of that statute, entitled to its benefits, only if she has been “reduced to that condition by the ordinary and usual vicissitudes of life” and not by a felonious act which created that condition.

Claimant undertakes to avoid the effect of Perry v. Strawbridge by arguing that the crime which disqualified the killer from inheritance in that case was murder, whereas claimant’s crime in this case was only manslaughter; that malice is an essential ingredient of murder, premeditation a necessary element of murder in the second degree, but that neither malice nor premeditation is a necessary element of manslaughter. Therefore, says claimant, since neither malice nor premeditation accompanied the slaying of her husband, Perry v. Strawbridge cannot be considered as authority for denying her widow's allowance under the statute. We do not accept the foregoing as valid reasons for distinguishing murder and manslaughter as causes to forfeit the statutory allowance. Our Supreme Court indicated in Perry v. Strawbridge that it would make no such distinction by incorporating in the opinion the following quotation from Wharton on Homicide, 3rd Ed., Sec. 665, which the court characterized as a terse statement of the common law rule: “ ‘To permit a person who commits a murder, or any person claiming under him, to benefit by his criminal act, would be contrary to public policy. And no devisee can take under the will of a testator whose death has been caused by the criminal and felonious act of the devisee himself. And, in applying this rule, no distinction can be made between a death caused by murder and one caused by manslaughter.’ ”

We accept Wharton’s statement with some qualification and necessary distinction between the various crimes that are denoted in this state as manslaughter. Section S59.070 defines manslaughter as “every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide.” Although the statute does not define voluntary and involuntary manslaughter, the courts still continue to distinguish between these offenses “in that the former embraces an intentional killing, (40 C.J.S. Homicide § 40) while the latter extends to an unintentional killing while culpably negligent (Id. Sections 55, 62).” State v. Elgin, Mo.Sup., 391 S.W.2d 341. Also see State v. Foster, Mo.Sup., 338 S.W.2d 892. Other statutes'provide that it shall be manslaughter when death results from abortion, from a mischievous animal unlawfully suffered by its owner to go at large, from the ministrations of an intoxicated physician, and from the wilful or negligent operation of unsafe steamboats or railroad trains.

Well reasoned authority, more fully referred to later herein, holds that whether a particular act of manslaughter should or should not be held to bar the killer from enjoying the fruits of his crime hinges upon whether it was perpetrated with or without criminal intent, a quality which is defined as “an intent to do, knowingly and willfully, that which is condemned as wrong by the law and the common morality of the country”. 22 C.J.S. Criminal Law, § 1, p. 7. The judgment convicting claimant of manslaughter was entered on a verdict from a jury which, under the court’s instructions, found that “defendant herein, Elsie Mae Laspy wilfully and feloniously * * * shot and killed the said Julius Laspy * * This finding was made under a defining instruction which told the jury that, “ ‘Wilfully’ means intentionally, not accidentally”, and that “ ‘feloniously’ means wickedly and against the admonition of the law, that is, unlawfully”. Therefore, the manslaughter crime for which claimant stands convicted has been judicially determined to be intentional — that is, not accidental or the result of culpable negligence. We bear in mind that the real reason underlying the decisions in adjudicated cases denying claims against the decedent’s estate and claims to recover benefits from his life insurance is that the killer intentionally took the life of the ancestor or the insured and that the intentional act should not place the miscreant in position to enjoy a benefit which might never have been available to him except for the wicked intentional killing. Such reasoning which has controlled in murder cases applies equally well to the instant case, because claimant’s crime of manslaughter was the intentional shooting and killing of her husband. This being so, the law operates to bar her from receiving any benefit from his estate. This expression is not to be interpreted that we would so rule in cases involving unintentional, accidental, involuntary manslaughter or manslaughter caused by culpable negligence.

These views are amply supported by substantial authority. For a comprehensive discussion of the distinction properly to be made between intentional manslaughter and unintentional manslaughter as a bar to recovery of benefits made possible by the crime itself, see Metropolitan Life Insurance Co. v. McDavid (D.C.Mich.), 39 F.Supp. 228, where a widow who intentionally shot and killed her husband was convicted of voluntary manslaughter and thereby was held to forfeit all rights in his life insurance proceeds and his estate. In the Texas case, Greer v. Franklin Life Insurance Co., 148 Tex. 166, 221 S.W.2d 857, the court construed a Texas statute, the terms of which “eliminate the interest of the beneficiary in favor of" ‘the nearest relative of insured’ where the beneficiary ‘willfully’ brings about the death of the insured”. Viewing the statute as a general restatement of the common law, the court interpreted it in the light of the common law to mean that an intentional, unlawful killing of the insured by the beneficiary, not in self defense, required forfeiture of the beneficiary’s interest. In so doing the court stated that the word “willfully” does not in substance mean “maliciously”. Applying the statute so construed to the facts in the case the court ruled that a wife who stabbed and killed her husband and pleaded guilty to the charge of murder without malice thereby forfeited her beneficial interest in the proceeds of his life insurance, even though the killing was done under the immediate influence of sudden and violent passion from an adequate cause. Relying strongly upon the McDavid case in reaching its result, the court said:

“Among the common law authorities heretofore mentioned, including the Restatement, the rule is sometimes expressed in terms of the crime of ‘murder,’ and there is some confusion of opinion where the conduct of the beneficiary amounts only to ‘manslaughter.’ Metropolitan Life Ins. Co. v. McDavid, supra; Appleman, Insurance Law and Practice, supra; see also 20 Tex.L.Rev. supra, p. 239; 49 Harv.L.Rev. supra, p. 722. One of the best considered opinions we have examined on the subject as appertaining to the instant situation is that of the McDavid case last above cited, in which upon a careful review of the authorities, it was held that where the beneficiary intends to kill the insured and the killing is illegal, the beneficiary loses his or her rights under the policy, even though the killing was done under the immediate influence of sudden and violent passion from an adequate cause. We consider that decision a sound expression of the common law. The principle that one shall not profit by his (or her) own wrong has, of course, its limits, as evidenced by the refusal of courts to bar the beneficiary in cases of negligent homicide or ‘involuntary manslaughter’ * ⅜

Also see United States v. Foster (D.C. Mich.), 238 F.Supp. 867, where a widow' who was beneficiary of her husband’s life insurance pleaded guilty and was convicted on the charge of manslaughter- — -a crime defined in the jurisdiction of its commission as “murder without malice”. The conviction was held to bar her from recovering the policy proceeds.

Claimant’s brief presents one more assignment: that the trial court erred in refusing her offer to prove she shot her husband in self defense. She argues that the judgment convicting her of manslaughter is not res judicata of the self defense issue because the parties here are not the same parties present in the criminal action and that therefore the court should have heard additional evidence on the issue. The respondent submits that claimant’s conviction of manslaughter is competent evidence in the instant civil controversy, is conclusive of the issues involved, and that the trial court properly excluded evidence offered by claimant to show that the homicide was in self defense and therefore justifiable.

There has been much contrariety of judicial opinion as to the admissibility and effect of a conviction or acquittal in a criminal case, as evidence, in a civil case, of the facts upon which it was based. The earlier cases generally observed a rule to the effect that a judgment in a criminal case, whether of conviction or acquittal, was incompetent and should be excluded when offered in a civil case to prove the facts upon which it is based. Courts following that rule advanced various reasons to support it — all of which have been severely criticized. One frequently stated reason was to the effect that the issues, objects and procedures involved in criminal trials were different from those in civil cases. This argument was weakened with the passage of time and the development of substantive and procedural safeguards which afford the accused a more favorable opportunity to prevail on an issue of fact in a criminal trial than in a civil proceeding — for example, the presumption of innocence attending the accused, the necessity of proving his guilt beyond a reasonable doubt, construction of statutes in his favor, and his privilege of refusing to testify. Another frequently asserted reason for the exclusion rule was that the parties to the criminal case and a derivative civil proceeding lacked mutuality, and that consequently there was no mutuality of estoppel. This objection arose from the common law concept that a transaction between two parties ought not to disadvantage a third party who has not had his day in court. Broom’s Legal Maxims 648 (10 Ed.Kersley, 1939). However, it does not appear reasonable that this rule would be violated by admitting evidence of a prior criminal conviction in a civil suit brought by the convict against the third party, since the admission of the judgment of conviction would operate to the advantage rather than to the disadvantage of the third party who offers it. Missouri courts have uniformly held that a criminal judgment may not be admitted in a civil case as evidence of the facts determined in the criminal case. Sklebar v. Downey, Mo.App., St. Louis, 1926, 220 Mo.App. 5, 285 S.W. 148; Summers v. Rutherford, Mo.App., Springfield, 1917, 195 S.W. 511; Myers v. Maryland Cas. Co., Mo.App., Kansas City, 1907, 123 Mo.App. 682, 101 S.W. 124. We note, however, that each of the cited Missouri cases involved a civil proceeding brought against the convicted defendant to recover damages for acts previously determined to be unlawful by the criminal judgment. As will be more fully developed hereinafter, we believe that this same rule does not and should not apply in a civil action brought by the convicted defendant for the purpose of profiting from his criminal conduct.

It is the present tendency of courts to abandon any such general rule applicable to all criminal judgments and to resolve the question of admissibility from the point of view of the particular judgment offered as evidence. 18 A.L.R.2d 1288, Anno. Conviction or Acquittal as Evidence; Mineo v. Eureka Security Fire & Marine Ins. Co., 182 Pa.Super. 75, 125 A.2d 612; Connecticut Fire Ins. Co. v. Ferrara, 8 Cir., 277 F.2d 388. This is a reasonable approach to the problem because, for example, the rule as to the admissibility of a beneficiary’s conviction for the murder of an insured in an action on the policy may conceivably differ from that governing admissibility of a traffic violation conviction in a negligence action or a conviction for assault and battery. The courts have been particularly apt to accept criminal convictions as evidence of the facts upon which they are based “where the convicted criminal attempts, in a civil action, to reap the fruits of his own criminal acts”. See 18 A.L.R.2d 1288, Anno. That Missouri courts might receive criminal convictions as evidence in such cases was inferentially forecast by this court in Osborn v. Gibson, Mo.App., 309 S.W.2d 15, where we said, “Most of the leading cases approving of the admission, in civil actions, of a previous criminal conviction as evidence of the facts upon which it was based, have involved situations where the convicted criminal has sought to take advantage of rights growing out of the criminal act. 18 A.L.R.2d 1300”. Since the case before us is of that precise nature, we believe the exception to the general rule of exclusion should be applied, that the record of claimant’s conviction is competent evidence on the issues, and that its admission by the trial court was the proper course of judicial action. We rule accordingly.

Thus we come to the problem: what evidentiary effect is to be accorded a judgment of conviction when it is received as evidence in a civil action in which the person convicted seeks to enforce a right arising from the crime? The courts are at variance on the question. On the one hand, a majority of courts have regarded the prior conviction, when admitted, as only prima facie evidence of the facts adjudicated by the criminal proceeding. Anno: 18 A.L.R.2d 1288. The leading authority expounding this view is the often cited case of Schindler v. Royal Ins. Co. (1932), 258 N.Y. 310, 179 N.E 711, 80 A.L.R. 1142. Apparently, however, in that case the New York court reached its conclusion with reluctance. In an equivocal and divided opinion it was strongly intimated that probably the sounder view would be that a judgment of criminal conviction should be conclusive, but that the court was constrained by established precedents to refrain from so ruling. Suggesting that the legislature could nullify existing authority by enacting that all convictions shall be conclusive evidence of the guilt of the convicted person in any proceeding, civil or criminal, whoever may be parties, the opinion concedes that “The court might so decide were the occasion imperative and the necessity clear, but established precedents are not to be lightly set aside, even though they seem archaic”. Opinion has been expressed to the effect that the Schindler decision was an expedient compromise between “the extremes of exclusion — the traditional rule, and conclusiveness — a logical but radical departure therefrom”, 39 Va.L.Rev.1953, p. 995 — Note—Admissibility and Weight of a Criminal Conviction in a Subsequent Civil Action.

On the other hand there is substantial authority holding that the judgment of conviction is conclusive of the facts adjudicated. Although this is the minority view, numerically and historically, we believe the trend of decisions is in that direction. Apparently the first decision to rule that the criminal conviction was conclusive in a subsequent civil action was rendered in the Virginia case, Eagle, Star & British Dominions Ins. Co. v. Heller (1927), 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490, where the court held that an insured’s conviction of wilfully burning his property conclusively barred his recovery of benefits under a fire insurance policy. Inasmuch as Heller is the pioneer and still the leading case on the doctrine it announced, we quote at some length from the opinion :

“While the judgment in the criminal case is not res judicata as to the company, and while it does not operate technically as an estoppel on the plaintiff, because of lack of mutuality, the insurance company, not being a party thereto, nevertheless, lest the reasons for the rule be overlooked, it should be remembered that the plaintiff in error, Heller, was a party to the criminal case, that he there had the fullest opportunity to make all of his defenses, that the identical question which he has reopened in this case was solemnly adjudicated in that case, and that it was there found beyond a reasonable doubt that he had burned his property for the purpose of collecting the insurance from this insurance company. Therefore he should not be permitted again to raise that question by this collateral attack upon that judgment, and thus to avoid its legal and logical consequences.
* * * * * *
“To permit a recovery under a policy of fire insurance by one who has been convicted of burning the property insured, would be to disregard the contract, be illogical, would discredit the administration of justice, defy public policy and shock the most unenlightened conscience. To sustain such a judgment would be to encourage and give support to the current thoughtless and carping criticisms of legal procedure, and to justify the gibe that the administration of the law is (the) only remaining legalized lottery.
“Our conclusion, then, under the facts of this case, is that the court erred in refusing to admit evidence of the conviction; that, when admitted, the precise finding of fact, that the accused was criminally responsible for the fire, unquestionably incendiary, which destroyed his goods, is conclusive upon the plaintiff, Heller; that this judgment of a court of competent jurisdiction was a determination of that particular and decisive fact as against him; that this judgment cannot be attacked except upon the ground of fraud, perjury, collusion, or some other such ground of invalidity; and that when so admitted in evidence there could have been but one proper verdict, and that a verdict for the defendant. We shall, therefore, reverse the judgment in favor of the plaintiff and enter judgment here in favor of the defendant”.

The Heller case was followed by the Illinois case, Austin v. United States (1942), 7 Cir. 125 F.2d 816, a suit to recover life insurance benefits by a war risk insurance policy beneficiary who had been convicted of murdering the insured — her husband. Quoting from and relying upon the Heller opinion, Diamond v. New York Life Ins. Co., 7 Cir., 50 F.2d 884, 886, and Burt v. Union Central Life Ins. Co., 187 U.S. 362, 23 S.Ct. 139, 141, 47 L.Ed. 216, the court held that the judgment of conviction imported verity, was not subject to collateral attack and was a conclusive bar to a recovery by the convicted plaintiff in her civil suit. Another leading authority holding that the prior criminal conviction was a conclusive bar to a civil action on the same facts is the previously cited Pennsylvania case, Mineo v. Eureka Security Fire & Marine Ins. Co., 182 Pa.Super. 75, 125 A.2d 612. There, likewise as in Heller, convicted arsonists sought recovery of fire insurance indemnity for the loss of the property. The Pennsylvania court, relying principally upon the Heller case from which it quoted at length, held that the judgment of criminal conviction rendered against the insureds was conclusive and barred recovery under the policy. The court said:

“This rule is founded upon the public interest which requires that the laws against crime be enforced, and that courts aid no man in any effort he may make to benefit from his own violation of them. The rule is enforced upon the ground of public policy alone and not out of consideration for the defendant to whom the advantage is incidental.
‡ ‡ ⅛ ‡ ‡ ‡
“Whether the insureds set the fire or not is a question of fact which has been established beyond a reasonable doubt in a court proceedings. Once this fact has been established, and the Commonwealth, in whose hands rests the maintenance of public policy, has satisfied itself of the fact, why then should it permit its courts to be used by the insured in an effort to obtain reward for the crime which the Commonwealth has already concluded he has committed?”

A case of particular persuasion that the “conclusive” rule should be followed by Missouri courts is Connecticut Fire Ins. Co. v. Ferrara, 277 F.2d 388—a Missouri case decided by the United States Court of Appeals, Eighth Circuit. As in Heller and Mineo, the suit arose upon a fire insurance claim by an insured under criminal conviction for burning the property. Considering but not ruling the question whether the conviction should be accepted only as additional evidence or held to be an automatic and conclusive bar to the civil action, the court acknowledged that the first stated alternative was the one followed by the numerical majority of decisions, but clearly expressed disapproval of such a rule. The court said:

“Nonetheless, the reasoning of Austin v. United States, supra, (125 F.2d 816); Mineo v. Eureka Security Fire & Marine Ins. Co., supra; and Eagle Star & British Dominions Ins. Co. v. Heller, supra, wherein the criminal conviction was held conclusive of the civil issue, is persuasive for, if public policy demands that a criminal be not allowed to profit by his crime and considering the fact that the criminal judgment was based upon a burden of proof requiring guilt beyond a reasonable doubt, there seems little justification for allowing the civil tribunal to reach a conclusion inconsistent with that policy”.

Other cases following the “conclusive” rule as exemplified by the cases we have previously cited, quoted from and commented upon include Poston v. Home Insurance Co., 191 S.C. 314, 4 S.E.2d 261, 123 A.L.R. 1451; Teitelbaum Furs Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439; and Taylor v. Taylor, 257 N.C. 130, 125 S.E.2d 373.

The foregoing authorities are soundly reasoned and convincingly persuasive that the “conclusive” rule should be applied under the circumstances which are present in this case. We take that course and hold that the judgment of claimant’s criminal conviction shall be accepted as conclusive evidence in this civil suit that the killing of her husband was not done in self defense, was legally unjustifiable, and was an intentional manslaughter — hence, a crime that bars her from any benefit arising out of her victim’s estate, and that she is collaterally estopped by that judgment from further consideration of the issues it determined. This ruling is founded on the same principles of public policy enunciated in Heller, Mineo, Ferrara, and other cases above noted which require that laws against crime be enforced, that a miscreant be not allowed to profit by his crime, and that courts aid no man in any effort to do so.

It may be conceded to claimant that the judgment in the criminal case is not res judicata in its strictly technical sense because the “mutuality of parties” that tradition has generally regarded as an essential of the rule is not present — the estate not having been a party to the criminal case. Nonetheless, the absence of mutuality of parties is no deterrent to our application of the rule of collateral estoppel by criminal judgment which precludes re-litigation of issues previously determined in the criminal case, as the courts have done in the Heller case and in the cases which have followed its reasoning. In fact, “collateral estoppel” is recognized as but an aspect or refinement of the general rule of res judicata. See cases digested in 7A Words and Phrases, Collateral Estoppel. The concept of mutuality of estoppels has undergone recent reappraisal by the U. S. Circuit Court of Appeals, 2d Circuit, in reviewing the consolidated cases of Zdanok et al. v. Glidden Co., Durkee Famous Foods Division, and Alexander et al. v. Glidden Co., Durkee Famous Foods Division (2 Cir.1964), 327 F.2d 944. The cited cases were actions by separate groups of union members seeking redress from their common employer for its alleged violation of a collective bargaining agreement. Upon final appeal the reviewing court held that a prior determination of issues resulting from trial of the Zdanok case, where the parties had full opportunity to litigate them effectively, was conclusive upon the defendant Glidden in the subsequently tried Alexander case, and precluded Glidden from introducing additional evidence on the issue of its liability to the Alexander plaintiffs who had not been parties to the prior action but were seeking relief from defend-, ant on the same grounds of liability successfully asserted against it by the plaintiffs in the Zdanok case. The court stated that the reason for its ruling “lies in the principle somewhat undescriptively called ‘collateral estoppel’ ”. Acknowledging that such a result would have seemed impossible fifty years ago, Judge Friendly further commented:

“This doctrine of the need for mutuality of estoppels, criticized by Bentham over a century ago as destitute of any semblance of reason, and as ‘a maxim which one would suppose to have found its way from the gaming-table to the bench,’ ibid. fn. 14, has been much eroded in recent years. Perhaps the leading federal decision is Judge Hastie’s in Bruszewski v. United States, 181 F.2d 419 (3 Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950), which this court followed in Adriaanse v. United States, 184 F.2d 968 (2 Cir. 1950), cert. denied, 340 U.S. 932, 71 S.Ct. 495, 95 L.Ed. 673 (1951). We see no purpose in multiplying citations since it is recognized that the widest breach in the citadel of mutuality was rammed by Justice Traynor’s opinion in Bernhard v. Bank of America, 19 Cal.2d 807, 811-813, 122 P.2d 892, 894-895 * * *. Having explained why ‘The criteria for determining who may assert a plea of res judi-cata differ fundamentally from the criteria for determining against whom a plea of res judicata may be asserted,’ and that there is ‘no compelling reason * * * for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation,’ he said:
‘In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits ? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?’ ”

The foregoing criteria suggested in the Bernhard case appear to be logically founded. Applying them to the situation in the present case, and answering the three questions propounded in the test, the result comes out like this: (a) The issue decided in State v. Laspy was the identical issue presented in the instant civil claim, (self defense); (b) there was a final judgment on the merits (conviction for manslaughter) ; (c) Elsie Mae Laspy, against whom the present plea of estoppel is directed, was a party to the prior adjudication (defendant in State v. Laspy). Therefore, if the rule of res judicata should be accepted as it is recognized and applied by Bernhard, Zdanok and cases cited in those authorities, it might be said that claimant is barred from litigating the issues here by the application of res judicata. It is not necessary, however, for us to engage further in semantics in exploration of that possibility. It is sufficient to say that claimant is barred by collateral estoppel resulting from the criminal judgment and to base that holding on the Heller doctrine.

Claimant has had her day in court. Three separate trials have extended her more than ample opportunity to establish the facts she would now relitigate. Three separate juries have weighed evidence bearing upon the merits of her plea that she killed her husband in self defense. Each jury rejected that defense and found her guilty of a wilful, felonious homicide, beyond a reasonable doubt. The judgment of conviction entered upon the third and final verdict has been reviewed and affirmed by Missouri’s court of last resort. No attack can be made upon it except on the ground of fraud, perjury, collusion or some other kindred species of vice or error sufficient to upset the conviction itself, and then only by a separate, direct proceeding instituted for that specific purpose. The judgment is immune from collateral attack here.

The patient processes of the law have finally established as a particular and decisive fact, beyond a reasonable doubt and to the satisfaction of the state, that claimant Laspy feloniously and intentionally killed her husband without legal justification. To open this question to inquiry again, in a civil forum where she might prevail and take from her victim’s estate a bounty made possible only by her crime, would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.

The judgment is affirmed.

All concur.

      . Section 474.140 RSMo 1959, V.A.M.S., provides: “If any married person voluntarily leaves liis spouse and goes away and continues with an adulterer or abandons his spouse without reasonable cause and continues to live separate and apart from his spouse for one whole year next preceding his death, or dwells with another in a state of adultery continuously, or if any wife after being ravished consents to lier ravisher, such spouse is forever barred from his inheritance rights, homestead allowance, exempt property or any statutory allowances from the estate of his spouse unless such spouse is voluntarily reconciled to him and resumes cohabitation with him”.

      . See 23 Am.Jur.2d, Descent and Distribution, Sec. 94, p. 838, where it is stated that “It is generally, if not universally true that a potential heir or distributee who feloniously brings about the death of his intestate will not be allowed to take and enjoy the property of the person so killed”.

      . 39 VaX.Rev. 995 (1953); 41 Harvard L.Rev. 241 (1927); 12 Minn.L.Rev. 540 (1928); 10 Rocky Mt.L.Rev. 282 (1938).


author: SPERRY, Commissioner.

text:
    Ethel DREHER, Plaintiff-Respondent, v. Henry SWEIGERT, Defendant-Appellant.
    No. 24545.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.
    Fred H. Maughmer, Jr., Savannah, for respondent.
    Downs & Pierce, St. Joseph, for appellant.
   SPERRY, Commissioner.

This is a suit for damages arising out of a single car collision wherein plaintiff suffered serious injuries. The collision occurred in the state of Kansas and defendant has pleaded and relies on the provisions of the Kansas guest statute, plaintiff having been a non-fare paying passenger in defendant’s automobile, which he was operating at the time. Plaintiff submitted her case on her own testimony, that of her doctor, and that of a portion of defendant’s testimony taken by deposition. Defendant submitted no evidence. He stood on his motion for a directed verdict. The jury returned a verdict for plaintiff in the sum of $10,000.00 and costs. From a judgment thereon defendant appeals.

Since defendant presents for consideration on this appeal the single question of whether a submissible case was made under the Kansas guest statute (gross and wanton negligence) it is wholly unnecessary to consider the extent of plaintiff’s injuries. In passing, however, we observe that her injuries were very serious. Both legs were broken. Since defendant offered no evidence but insists that plaintiff’s evidence fails to establish his liability under the law of Kansas, we must accept the evidence adduced, favorable to plaintiff’s right to recover, as true, and we must draw every reasonable inference therefrom which tends to establish her right to recover. Swinney v. Ward, 187 Kan. 746, 360 P.2d 193, 194-195.

When the casualty occurred plaintiff was sixty one years of age, her husband was seventy nine, and defendant was eighty two. Her husband was a brother of defendant’s wife. They were making a trip from their homes near St. Joseph, Missouri, to the site of the Tuttle Creek Dam, near Manhattan, Kansas, during the morning hours of a beautiful September day. Prior to the collision the automobile was proceeding at a speed of forty miles per hour. It was in good condition, so far as was known, and had given no mechanical trouble. They were proceeding northward on highway K-13, in Riley County, Kansas, nearing its intersection with Allen Road. The highway was a little upgrade and consisted of four traffic lanes. They were travelling in the right hand lane. Mrs. Sweigert and plaintiff were in the rear seat. When the automobile reached a point about three hundred feet south of Allen Road, Mrs. Sweigert held up her hand and said, here is where we turn. At that time defendant lifted his foot from the accelerator and the speed gradually slowed to twenty five miles per hour. The road was clear of traffic. When the automobile reached a point one hundred fifty feet south of Allen Road, where it was intended to turn right, defendant applied the brakes, began pumping and said, my brakes are out. When it reached Allen Road defendant in executing a right turn, operated it so that it swung wide, to the left. The left front tire struck the south curb of a concrete traffic island on Allen and blew out. The vehicle proceeded diagonally across the island, striking a traffic sign-post, breaking it off, (it came up on top of the car), and proceeded down grade at an accelerated speed, some sixty feet, where it struck a utility pole, fourteen and one half inches in diameter and forty six inches in circumference, pushing it forward four inches. The automobile struck the pole “dead center”, doubling the front bumper and grill work back against the motor, as shown by plaintiff’s testimony and by a picture of the automobile, plaintiff’s exhibit No. 2.

The above are the facts as shown in evidence by plaintiff. She also stated that defendant, later, said that the collision could have been avoided if he had used his good emergency brake. She further stated that he said that he intentionally drove into the pole in order to keep the automobile from going over an embankment. Defendant stated, in his deposition, that he intentionally drove into the pole and hit it dead center. He made no statement that appears in evidence as to why he chose to hit the pole. He offered no evidence, in his deposition or otherwise, in regard to the existence of any dangerous condition which he was attempting to avoid so as to justify his choice of such an heroic measure to bring the vehicle to an abrupt halt.

Section 8-122b, Kansas Statutes Annotated (Official) provides:

“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator, for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle”.

Defendant denies that the above undisputed facts establish gross and wanton negligence under the laws of Kansas. Defendant rightly contends that the construction of the statute is controlled by decisions of the Supreme Court of Kansas. Yarnall v. Gass, 240 Mo.App. 451, 217 S.W.2d 283, 285.

By instruction numbered four the court informed the jury as follows:

“The term ‘negligence’ as used in these instructions means gross and wanton negligence. It must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act”. Defendant does not complain of the giving of that instruction.

Since defendant’s automobile, following several occurrences, struck a utility pole, the happening which actually caused plaintiff’s injuries, we will not rule as to whether or not defendant was guilty of negligence, or of gross and wanton negligence, when he attempted to turn right on Allen Road with a clear road ahead, upgrade, and knowing that he had no foot brakes. However, after making that disastrous decision, he then intentionally steered the vehicle into a large utility pole, striking it with such force as to move it four inches at the base. There is no substantial evidence which tends to explain or excuse such conduct. Plaintiff stated that defendant told her that he intentionally hit the pole to prevent going over an embankment. There is no evidence tending to prove that there was an embankment within that area; nor is there any evidence regarding traffic conditions on Allen Road. Consequently, defendant’s intentional act appears to have been completely unjustified on any theory. The cold fact is that, after having struck a sign-post, he intentionally steered the automobile for a distance of sixty feet, so as to cause it to hit the utility pole dead center.

Defendant cites the Kansas court ruling in Polzar v. Raymond, 189 Kan. 340, 369 P.2d 373-375, where it was held that defendant was not guilty of gross and wanton negligence under the following facts:

“After traveling approximately one and one-half miles further west on K-16, at about sixty-five to seventy miles per hour, the automobile proceeded down a fairly sharp decline, started up hill, and then encountered a ninety degree turn to the south. At this point, while negotiating the turn and after a tire blew out, the defendant driver lost control of the automobile and it rolled over one and one-quarter times. Plaintiff sustained severe and permanent injuries in the accident”.

Defendant in that case knew that the road upon which the accident occurred had sharp curves. All occupants of the car, including plaintiff, also knew this fact and failed to protest the speed.

The court ruled that speed alone was the cause of the accident and that the court had ruled repeatedly that speed alone does not constitute gross and wanton negligence. The facts in the instant case are so differ-, ent from those shown in the Polzar case that the ruling there has no application to the case at bar.

In the Polzar case the court said, 369 P.2d 377:

“ ‘Former decisions of this court have interpreted the phrase “gross and wanton negligence,” as it appears in G.S.1949, 8-122b, to mean wanton conduct and wanton conduct is something more than ordinary negligence and yet is something less than willful injury. The act in question must indicate a realization of the imminence of danger and a reckless disregard and complete indifference to the probable consequence of the act’.” (Emphasis ours). Also see Swinney v. Ward, supra, 360 P.2d 194, syllabus by the court. In Tillman v. Zum-walt, 363 Mo. 167, 250 S.W.2d 142, 144 (en banc), the court quoted language from In re Estate of Wright, 170 Kan. 600, 607, 228 P.2d 911, 917, as follows:

“A wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It might be said to include a willful, purposeful, intentional act, but not necessarily so; it is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result”. (Emphasis ours).

From the undisputed evidence in this case, the jury could have found that the defendant intentionally drove his automobile into and against a utility pole of such size as to indicate to a person of ordinary intelligence that the resulting collision would be of such force as to almost certainly cause serious injuries to the occupants of the vehicle; the jury could have found that the defendant acted with such reckless disregard for the rights of plaintiff with a total indifference to the consequences, although a catastrophe might be the natural result, as it was in this case.

In discussing his negligence, defendant says that he was not negligent in attempting to turn right at the intersection with Allen Road, at a speed of twenty five miles per hour, with no effective foot brake. We have not rested our decision on that incident. He cites Mount Olivet Baptist Church v. George, 378 S.W.2d (Mo.) 549, 555, which declares that one who in a sudden emergency acts according to his best judgment or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence. We recognize the rule; but it has no application to a case where, as here, defendant chose to drive into a pole at a time when he was not confronted with an especially dangerous condition. There was, as we have said, no evidence that Allen Road carried any traffic other than defendant’s vehicle. The contention is rejected.

The judgment is affirmed.

MAUGHMER, C., not sitting.

PER CURIAM:

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.


author: MAUGHMER, Commissioner.

text:
    Paul A. DANIELS, Appellant, v. TIP TOP PLUMBING & HEATING, INC. et al., Respondents.
    No. 24518.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.

      Clark S. Ullom, Kansas City, for appellant.
    Thomas I. Osborne, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for respondents.
   MAUGHMER, Commissioner.

This is a suit for the recovery of property damages to plaintiff’s automobile. In the magistrate court the finding and judgment was for defendants. Plaintiff appealed. The circuit court entered summary judgment for defendants. Plaintiff has appealed to this court. The sole question presented is the propriety of the summary judgment.

Plaintiff, Paul A. Daniels, in his petition alleged that on June 29, 1965, his Corvair automobile was being operated by his son Stephen W. Daniels when it was negligently struck and damaged by a 1953 Pontiac, which was being driven by the defendant, Lester Huber, who at the time was acting “as an agent, servant and employee” of the respondent, Tip Top Plumbing & Heating, Inc. The prayer was for judgment in the amount of $600.

The trial in the magistrate court was to the court. Evidence was heard. The finding and judgment was for defendants. Plaintiff appealed.

In the circuit court the defendants, pursuant to the procedure provided in Rule 74.04(b) V.A.M.R., moved for summary judgment. Therein it was alleged (1) that plaintiff had “fully compromised and settled any and all claims against the named defendants herein by accepting $275 and signing a release which discharged defendants”, and (2) that no genuine issue of fact existed between the parties as to the matter. Attached to this motion was: (a) the release, (b and b-1) the settlement drafts and (c) an affidavit declaring that plaintiff admitted the signatures appearing on the release and drafts were those of himself and his wife. We set forth the pertinent parts Of the release and settlement drafts:

“RELEASE
“Received of Tip Top Plumbing and Heating Inc. and Lester A. Huber this 11th day of August, 1965, the sum of Two Hundred Seventy Five-and 00 100 Dollars ($275.00), in full satisfaction and discharge of all claims, accrued or to accrue, in respect of all known and unknown injuries or injurious results, direct or indirect, arising or to arise, from an accident sustained by me on or about the 29 day of June, 1965, through an automobile accident at or near the intersection of Prospect Ave. and US 71 hi-way, Kansas City, Jackson County, Missouri.
X Stephen W. Daniels (Seal) Witness
(Signature of witness)
“This is to certify that we, the undersigned, father and mother of the above named, a minor of 19 years of age, in consideration of the above payment, which is made to said minor at our request, do hereby acknowledge satisfaction in full of all claims, arising out of said known and unknown injuries and do release and forever discharge said Tip Top Plumbing and'Heating Inc and Lester Huber and all other persons, firms and corporations, hereinafter called obli-gee from any liability by reason thereof.
“As further consideration for payment of said sum, we hereby agree to protect the said obligee against any claim for damages, or otherwise, on the part of our said minor child or any other party, growing out of or resulting from injury or damage to our said child or to his property, in connection with the above mentioned accident, and to reimburse or make good to said obligee any loss or damage or costs which the said obligee may have to pay if any litigation arises from said injuries.
“Witness our hands and seal this 11th day of August, 1965.
Edythe I. Daniels (Seal) Paul A. Daniels (Seal)
“Witness:
(Signature of witness)

We note that the release is in three paragraphs. In the first, Stephen W. Daniels, the minor son and operator of plaintiff’s vehicle, acknowledged receipt of $275 from defendants in “full satisfaction and discharge of all claims” arising from this particular accident. In Paragraph 2, plaintiff and his wife “acknowledged satisfaction in full of all claims arising out of said known and unknown injuries and do release and forever discharge” said defendants "from any liability by reason thereof’ (referring to the described accident). By Paragraph 3, plaintiff and his wife agree to protect said obligee “against any claim for damages or otherwise on the part of our said minor child or any other party arising out of or resulting from the injury or damage to our said child or to his property * * *

We look at the two settlement drafts for further clarification. The first — for $137.50 is payable to plaintiff and his wife “individually and as husband and wife and as parents and guardians of Steven Daniels”. It recites for "Full and final settlement of any and all claims” and refers specifically to the loss of June 29, 1965.

The second settlement draft or cashier’s check is merely payable to Paul and Edythe Daniels and as parents and guardians of Stephen Daniels. The italics in the foregoing release and checks are supplied by us.

It is plaintiff’s position on appeal that the release and drafts covered only the minor’s personal injuries and did not release or extinguish plaintiff’s claim for property damage to his automobile. He cites four cases in support of this theory and we examine those decisions.

In Bigbee v. Coombs, 64 Mo. 529, defendant hired a horse from plaintiff and allegedly killed him by over-driving. The plaintiff, with knowledge of the killing, presented to defendant an account “containing, among other items (not described) one for hire of the horse which defendant paid and took a receipt” expressed to be “in full of all demands”. It was ruled this receipt under the circumstances did not bar a recovery for killing the horse. The opinion held that “a bailee may be chargeable both with the hiring and the horse’s value if killed by his negligence” and authorized evidence aliunde that damages for loss of the horse was not embraced in the settlement.

Kopp v. Traders Gate City Nat. Bank, Mo. en Banc., 357 Mo. 659, 210 S.W.2d 49, was a suit for services covering a 30 year period rendered by a niece for her uncle. The suit was against the uncle’s estate. The opinion merely holds that evidence may be received to overcome the presumption that such services performed by a near relative are presumed to be performed gratuitously.

In Birmingham v. Kansas City Public Service Co., Mo.Sup., 235 S.W.2d 322, plaintiff allegedly jumped from the back of a bus and was struck by an automobile. He sued both the bus company and the motorist, but compromised with the motorist, executing a “partial release” which recited therein that it released the motorist only and specifically reserved his right to proceed against the bus company. It was held that the draft from the motorist for $2100 marked “full settlement” was not a bar in his suit against the bus company.

In Williams v. Riley, Mo.App., 243 S.W.2d 122, plaintiff sued and secured a default judgment against defendant on a promissory note. Plaintiff entered into an agreement with defendant to manage him as an athlete and as a boxer. Later, and for a certain consideration, this agreement was terminated and each party released the other from any obligations, liability or claims which they had against the other. It was held this release applied only to the managerial contract and did not apply to or release the judgment on the promissory note. The Kopp and Birmingham cases are not close to the issue in the case before us. In Bigbee and Williams there were two separate claims — not just one, as we have here.

None of these four cases is decisive as to the issue before us. This particular accident on June 29, 1965, was the only matter subject to claim between these parties. The release signed by plaintiff, his wife and son released defendants “from any liability by reason thereof” (referring to the accident). The first settlement draft was “for full and final settlement of any and all claims” arising out of the accident of June 29, 1965. It was payable to plaintiff and his wife, individually, and as husband and wife, and as parents and guardians of Stephen Daniels. The draft was endorsed by them. This draft alone would probably extinguish their claim.

In Williams v. Riley, supra, 243 S.W.2d p. 124, the court said:

“A general release which is not restricted by its terms to particular claims or demands will ordinarily be regarded as embracing all claims or demands which had matured at the time of its execution”.

The same pronouncement may be found in 76 C.J.S. Release § 51, pp. 696, 697:

“A general release, not restricted by its terms to particular claims or demands, ordinarily covers all claims and demands due at the time of its execution and within the contemplation of the parties, and it has been said that any existing liabilities intended to be excepted from such a release should be expressly set forth therein. On the other hand, a release which is confined or which is construed as being confined to claims or demands arising from, or relating to, a specified matter operates to release all the particular claims or demands properly embraced in the specifications, but it does not release other claims or demands, particularly those expressly excepted from the operation of the release”.

There was no controversy between these parties except those arising from the automobile accident of June 29, 1965. No exception was mentioned or specified. Corpus Juris tells us that a release not restricted to a particular demand or claim ordinarily covers all claims then due. The release and drafts as we read them, purport to compromise, settle and release not only all claims of the minor arising from the accident, but the payment to plaintiff and his wife, individually covers all their claims arising therefrom, including not only property damage, but loss of the son’s services during his minority and any other claims which plaintiff might assert as having resulted from this particular incident.

In our opinion plaintiff has settled his claim for property damage to his automobile, which he claims it sustained in the accident of June 29, 1965, has given a release therefor, and endorsed a draft given in payment. This being so, the trial court did not err when it sustained defendants’ motion and entered summary judgment for defendants.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: HOWARD, Judge.

text:
    Dolores POE, Respondent, v. SAFEWAY STORES, INC., Appellant.
    No. 24558.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.
    Morris H. Kross, Rogers, Field & Gentry, Kasas City, for appellant.
    William A. Piedimonte, Thomas D. Cochran, C. William Kramer, Piedimonte & Cochran, Independence, for respondent.
   HOWARD, Judge.

In this case respondent seeks to recover damages for personal injuries incurred when she slipped and fell in appellant’s grocery store located on the Blue Ridge Mall, in Jackson County, Missouri. The suit was originally filed in magistrate court where judgment was for the plaintiff. It was appealed to the circuit court where it was tried to the court without a jury, resulting in a judgment for plaintiff in the amount of $1,200.00. Appellant has duly appealed to this court. We shall refer to the parties as they appeared below.

On January 10, 1963, about 5:30 P.M., the plaintiff, Dolores Poe, entered the Safeway Store through a door at the west front of the building. As she entered the door, a row of check-out counters confronted her with counters numbered 5, 6, 7, 8, 9 and 10 being to her right. Plaintiff desired to go to a check cashing booth in the south part of the store to cash a check and then do her grocery shopping. She turned to her right and walked past check-out counters 5, 6 and 7. In doing so, she met several people coming out of these check-out counters. She then walked on to check-out counter number 8, where her left foot slipped and she fell, grabbing the west end of check-out counter number 8, with her left hand and falling on her right knee and hand. She was assisted to her feet and then saw that her left foot had slipped on a piece of lettuce on the floor, about two feet west of the west - end of check-out counter number 8. A check-out girl was operating the cash register at check-out counter number 8, checking out a customer’s groceries. She was standing at the east end of the check-out counter and a sack boy was standing at the west end sacking the groceries as they were checked out. There were two other customers standing in line waiting to check out at counter number 8. Plaintiff did not see the piece of lettuce before she fell, she did not know how the lettuce got on the floor, and she did not know how long it had been there before she stepped on it.

Defendant offered no evidence and the plaintiff’s testimony as summarized above was the only evidence adduced as to the cause of the slip and fall. No issue is made on this appeal as to plaintiff’s injuries or the amount of the judgment; therefore, it is unnecessary to refer to the evidence on this subject.

Defendant contends that the trial court erred in refusing its motion for judgment because the plaintiff’s evidence failed to make a submissible issue of defendant’s negligence for the reason (1) there was no evidence to support a finding of defendant’s negligence in failing to discover the lettuce on the floor prior to plaintiff’s fall, and (2) there was no evidence sufficient to import constructive knowledge of the piece of lettuce on the floor.

Plaintiff in her brief contends that she is entitled to every inference of fact which may reasonably be drawn from the evidence and that the evidence must be considered in the light most favorable to her. This assertion is correct as to jury tried cases which were involved in the authorities cited by plaintiff. However, the case at bar was tried to the court without a jury. In such cases we review the case upon both the law and evidence as in suits of an equitable nature, as required by Civil Rule 73.01(d), V.A.M.R. See Willoughby v. Safeway Stores, Inc., Mo.App., 397 S.W.2d 748 and authorities therein cited.

Defendant points out that in this case there was no evidence of actual notice to defendant of the presence of the piece of lettuce on the floor and there was no evidence as to how the lettuce got on the floor, or how long it had been there. The plaintiff herself was the only witness on this subject and she disclaimed any knowledge as to either of these factors. From this state of the evidence defendant concludes that it can not be convicted of negligence in failing to remedy the dangerous situation or to warn plaintiff thereof, relying on such cases as State ex rel Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99; Lance v. Van Winkle, 358 Mo. 143, 213 S.W.2d 401; Robinson v. Great Atlantic and Pacific Tea Company, 347 Mo. 421, 147 S.W.2d 648; Uelentrup v. Switzerland Stores, Inc., Mo.App., 164 S.W.2d 650 and Richardson v. Safeway Stores, Inc., Mo.App., 379 S.W.2d 827. Plaintiff, in essence, agrees with these contentions, but by way of avoidance seeks to take this case out from under the authorities relied on by defendant, by arguing that the facts in this case are comparable to those in Alvey v. Sears, Roebuck & Company, Mo., 360 S.W.2d 231, and Maybee v. Missouri Orpheum Corp., 238 Mo.App. 537, 181 S.W.2d 771, and that she is entitled to recover under the doctrine of those cases.

In the Alvey case, supra, the plaintiff entered the door of the Sears store and proceeded down an aisle a short distance until she stepped on a round object on the floor, which rolled with her and caused her to fall. An employee of the defendant, who was an assistant manager of the department where the fall occurred, had walked down the aisle about fifteen feet ahead of plaintiff. There was evidence to show that among his duties, he was required to see that the aisles were kept clean and to remove any foreign objects therefrom. No one was in the aisle between the employee and plaintiff. From these circumstances, the court held that the jury could infer that the employee negligently failed to perform his duty of removing foreign objects from the aisle. In Maybee v. Missouri Orpheum Corp., supra, an usher with a flashlight had shown plaintiff and her husband to seats in a dimly lighted theater. Plaintiff then decided to change her seat and in stepping from the seat row into the aisle caught her toe in a cupped place in the aisle carpet and fell. There was evidence to show that the usher had a duty to discover such dangerous condition and to remedy the same, or to warn customers thereof. The court pointed out that in shining his flashlight on the place where the defective carpet was, he should have seen the defect and warned plaintiff, and was negligent in failing to do so.

To bring her case within the doctrine of Maybee and Alvey, plaintiff in the case at bar argues that the view of the check-out girl and the sacker at check-out counter number 8 was unobstructed; that from their positions, they could have seen the piece of lettuce on the floor, if they had looked, and that therefore constructive notice should be imported to defendant and it should be held liable for failure to remedy the dangerous condition or to warn plaintiff. This contention is summarized in plaintiff’s brief as follows: “ * * * where the property owner had employees working in close proximity to the place of the accident, and, from which the peril could have been discovered, a submissible question is made as to whether failure to discover was negligence.”

It is apparent that this quoted contention of plaintiff goes far beyond the decision in the Maybee and Alvey cases, supra, and finds no support in any other Missouri case. Here plaintiff testified that it took her from eight to ten seconds to walk from the door to the place where she fell. There is absolutely no evidence as to how long the lettuce had been on the floor. Perhaps eleven seconds, perhaps an hour, or more. There is no evidence that either the sacker or the checker had any duty to keep a watch for foreign objects on the floor, to remove the same, or to warn customers. The evidence does show that both the checker and sacker were busy checking out a customer at the time of the fall. When the presence of the lettuce was discovered, after the fall, another employee was called to clean it up with a broom and dust pan.

In cases such as this, the plaintiff has the burden of showing that defendant knew, or should have known, of the dangerous condition, in time to have remedied the same, or warned plaintiff. See Lance v. Van Winkle, 358 Mo. 143, 213 S.W.2d 401. Such rule is universally recited in all the cases heretofore mentioned in this opinion. In this instance the plaintiff has entirely failed to carry the burden. There is no evidence of actual notice; there is no evidence that the condition had existed for such time as to import constructive knowledge to the defendant. The facts do not bring this case within the doctrine of Maybee v. Missouri Orpheum Corp. or Alvey v. Sears, Roebuck & Co., supra, because there is no evidentiary basis for an inference that any of defendant’s employees negligently failed to perform their duty to discover such dangerous condition and remedy the situation or warn plaintiff. We conclude from the evidence that the finder of fact could only find notice, either actual or constructive, in defendant on the basis of guesswork and speculation. There is no evidence from which such notice could be reasonably inferred. Therefore, the trial court erred in failing to enter judgment for the defendant on its motion. The judgment is reversed.

All concur.


text:
    CITY OF ST. JOSEPH, Missouri, Plaintiff, v. Ervin F. MILLER, Defendant.
    No. 24575.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.
    Edward P. Speiser, Robert E. Douglass, St. Joseph, for plaintiff.
    Louis Kranitz, Theodore M. Kranitz, St. Joseph, for defendant.
   SPERRY, Commissioner.

Plaintiff, City of St. Joseph, by and through its duly qualified officials filed a complaint, on February 23rd, 1965, charging defendant with a violation of ordinance No. 13-89.113. The cause was tried in Municipal Court where defendant was found guilty. From that judgment defendant appealed to the Circuit Court of Buchanan County where, upon trial to the court, the following judgment was entered, “xxx finds the defendant guilty of drag racing, as charged in the information and his punishment for said offense is by the Court assessed at imprisonment in the Buchanan County jail for a period of three days, and the costs herein”. Defendant appeals to this court.

Before trial defendant moved the court to dismiss the information on the ground that “said information fails to state a cause of action upon which guilt can be predicated and punishment assessed, in that it fails to apprise defendant of the acts or offense with which he is charged”.

The motion was overruled and defendant then obj ected to the introduction of any evidence, which was overruled. Defendant then filed a motion for a rehearing on those rulings. It was overruled and the cause proceeded to trial. After judgment was entered defendant moved for a new trial.

The main ground relied on in the motion for.new trial, and on this appeal, is that the information fails to apprise defendant of the facts, or offenses, with which he is charged and, therefore, fails to state a cause of action upon which guilt can be predicated and punishment assessed.

The charge was laid in a uniform traffic ticket, which appears in the transcript by photostatic copy. It is scarcely legible but appears to be as follows:

UNIFORM TRAFFIC TICKET

Then follow some lines naming various violations, with appropriate lines and squares for checking to indicate various named traffic violations. Such check spaces are blank. Then follows: Other violations (describe). Following is “Drag Racing”, in handwriting.

Following this matter there appear a number of lines with printed matter in each with appropriate blank spaces, for use of the arresting officer in more particularly describing the charged violation; but such blank spaces have nothing either printed or written therein, except the following: “In violation of Section 13-89.113 as amended”.

Thereafter appears the following in handwriting and in print, (some of it almost illegible) :

Briefly, it is alleged in the information, as amended, that: that on or about the 17th of February, 1965, at or near 9th and Mitchell at 9:00 P.M., within the county and state aforesaid Ervin F. Miller xxx did unlawfully operate Olds Convt. state license No. HGO-666 and then and there did commit the following offense, to wit: “Drag Racing” xxx in violation of Section as revised or amended 13-89.1-13.

In view of the single issue presented on this appeal we think the statement of facts herein below set out is sufficient. South 9th Street, in St. Joseph, Missouri, is a one way street for southbound traffic. Defendant was proceeding along south 9th and stopped at the stop sign at Mitchell Avenue. At that time a Mr. Routon, another motorist, (who was also charged with “Drag Racing”), was already stopped at that intersection, in the east traffic lane. The evidence is in dispute as to whether the two drivers started their cars simultaneously, as plaintiff contends, or one moved before the other did, as defendant contends. Shortly thereafter, both were arrested and charged with “Drag Racing”. The ordinance provides, in part, as follows :

Section 13-89.1 DRAG RACING
“(a) Drag Racing is defined as the operation of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other. Persons rendering assistance in any manner to such competitive use of vehicles shall be equally charged as participants. Any person expressly or impliedly authorizing or knowingly permitting any vehicle or vehicles owned by him or under his control to engage in drag racing as defined in this section shall be equally charged as the participants.
“(b) The operation of two or more vehicles side by side either at speeds in excess of prima facie lawful speeds established by Section 13-30, Municipal Code of St. Joseph Missouri, or rapidly accelerating from a common starting point to a speed in excess of such prima facie lawful speed shall be prima facie evidence of drag racing.
“(c) ⅜ * *
"(d) * * *

Defendant contends that plaintiff simply pleaded a conclusion of law, to wit, drag racing, without pleading the facts which would establish what constitutes drag racing under the ordinance. Supreme Court Rule 37.18, V.A.M.R., provides as follows:

“37.18 INFORMATION OR COMPLAINT-FORM AND SIGNATURE.

The information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. In Traffic Cases such information or complaint shall be substantially in the form hereinafter provided in these Rules as to such cases. An information shall be signed by the prosecutor and a complaint by the complainant. Neither need contain a formal commencement, a formal conclusion or any other matter not necessary to such statement of essential facts. Allegations of one count may be incorporated by reference in another count”, (emphasis ours).

In the recent case of Kansas City, Missouri v. Franklin, 401 S.W.2d 949 (par. 2-5) 953-954, this court ruled that a charge of violating a city ordinance, even though a civil matter, must allege all of the facts necessary to show such violation; that the charge must allege facts constituting an act prohibited by the ordinance under which the charge is laid. The charge here does not conform to that rule. This court, there in that decision, reviewed a number of decisions. We reaffirm the rule we there declared.

The judgment is reversed.

MAUGHMER, C., concurs.

PER CURIAM:

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

All concur.