author: HOUSER, Commissioner. PER CURIAM.

text:
    Harry H. ROBERTS, Respondent, v. The EMERSON ELECTRIC MANUFACTURING COMPANY, a corporation, Appellant.
    No. 48988.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.

      Harry H. Roberts pro se.
    R. H. McRoberts, R. H. McRoberts, Jr., St. Louis, for defendant-appellant. Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
   HOUSER, Commissioner.

Harry Roberts sued The Emerson Electric Manufacturing Company for failure to comply with the service letter statute, § 290.140 RSMo 1949, V.A.M.S. At the first trial plaintiff recovered judgment for $17,-800, reversed on appeal for error in an instruction. Roberts v. Emerson Electric Manufacturing Co., Mo.Sup., 338 S.W.2d 62. Reference is made to that opinion for the general factual background. A second trial resulted in a jury verdict for defendant. The trial court granted plaintiff a new trial and defendant has appealed from the order sustaining plaintiff’s motion for a new trial.

We have jurisdiction, since plaintiff prays in his petition for $50,000 actual and $50,000 punitive damages.

The trial court granted a new trial “for the reasons stated in Paragraphs 10, 11, 12, 13, 14, 15, 16 and 19 of Plaintiff’s Motion for New Trial,” which follow:

“10. Because the Court erred in allowing defendant to introduce, over the objection of the plaintiff, incompetent, irrelevant and immaterial evidence offered by the defendant.
“11. Because the Court erred in refusing to strike out and to instruct the jury to disregard, upon motion of the plaintiff incompetent, irrelevant and immaterial evidence offered by the defendant and received in evidence.
“12. Because the Court erred in excluding, upon objection of defendant, competent, relevant and material evidence offered by the plaintiff.
“13. Because the Court erred in striking out and instructing the jury to disregard, upon motion of defendant, competent, relevant and material evidence offered by the plaintiff and received in evidence.
“14. For the reason that the court erred in giving and reading to the jury, over plaintiff’s objections, an erroneous, improper, illegal and prejudicial instruction, offered by the defendant, said instruction being numbered 3 for the reason that said instruction erroneously instructed the jury on an issue not relative or pertinent to said case and which instruction was outside of the issues involved therein; that said instruction was highly prejudicial and injected an issue in said case which was not applicable or relevant thereto.
“15. That the court herein should grant a new trial for the further reason that plaintiff’s cause of action was based upon a statute which required the defendant corporation to furnish plaintiff with a letter truly stating the reasons or cause for plaintiff’s discharge or leaving the defendant’s service. And, that in the testimony of defendant’s witness, G. F. Craig, it was revealed that said witness was confused at the time of the writing of such letter and did not know the true reason for discharging the plaintiff ; that defendant’s counsel, R. H. McRob-erts, in his summation or closing argument, told the jury that they, meaning Emerson Electric Manufacturing Company, G. F. Craig and others concerned therewith did not know who had falsified certain charts mentioned in the evidence or who had destroyed a certain chart mentioned in the evidence as Chart 'B’.
“16. That the plaintiff denied categorically that he had «either (sic) destroyed a chart or falsified a chart and that thereupon the burden of proof of the destruction of a chart or the falsification of another chart was upon the defendant and that said defendant failed to carry said burden and further admitted both in the testimony of G. F. Craig and in the closing argument of R. H. McRoberts that they, meaning the Emerson Electric Manufacturing Company and G. F. Craig, did not know who had destroyed said chart or falsified said other chart; that by reason thereof the defendant wholly failed to refute plaintiff’s evidence concerning said charts.
“19. The court erred in admitting evidence in chief of defendant, over the objections of plaintiff concerning the relationship between the plaintiff and his attorney or other attorneys; that said evidence was highly prejudicial, inflammatory and immaterial to any issue involved in the case; that said evidence prejudiced the jury against the plaintiff and bore no relation to the issue in the case i. e. whether the letter sent to plaintiff truly (emphasis ours) stated the cause for plaintiff’s discharge.”

That portion of the order of the trial court assigning paragraphs 10-13, both inclusive, as grounds for granting a new trial does not meet the requirement of § 510.370, RSMo 1959, V.A.M.S., and Sup.Ct. Rule 75.01, V.A.M.S., that every order granting a new trial specify the grounds therefor. The purpose of the statute and rule is not served or fulfilled by the assignment of such general and unspecific “grounds.” They furnish no significant information either to defendant or to this Court as to the real basis of the court’s action. Johnson v. Kansas City Public Service Co., 360 Mo. 429, 228 S.W.2d 796. In this situation, under Sup.Ct.Rule 83.06(b), there is a presumption that the trial court erroneously granted the motion for new trial on these grounds, and the burden of supporting the action of the trial court is placed upon respondent. Johnson v. Kansas City Public Service Co., supra. Respondent failed to meet that burden. In his 45-page brief respondent makes no effort to support the action of the trial court in granting a new trial for improperly receiving or refusing to exclude evidence offered by defendant, or for improperly excluding evidence offered by plaintiff, or for improperly striking evidence offered by plaintiff and admitted in evidence (except as to Paragraph 19, which we consider fully hereinafter).

Of the grounds which are sufficiently specific to merit consideration, Paragraph 14 assigns error in the giving of Instruction 3, which follows: “The Court instructs the jury that this action is not one for damages for wrongful discharge of plaintiff by defendant, and the question as to whether plaintiff was rightfully or wrongfully discharged by defendant is not material to any of the issues in this action and should not be considered in your deliberations.” Instruction 3 was a cautionary instruction intended to guard against the consideration of a false issue. “It is not only the office of instructions to inform the jury as to the law of the issues raised, but, where the evidence is of a character as might easily lead to the raising of a false issue, the court ought to guard against such an issue by appropriate instructions.” Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S.W. 316. Some of plaintiff’s evidence was of that character. For instance, plaintiff emphasized his long tenure of employment with Emerson (31 years); his receipt of awards for meritorious suggestions during his employment; that he was discharged through a conspiracy between the company and the union; that at the time of his discharge plaintiff was suffering from pneumonia and diabetes and could not appear and defend himself at the final hearing on the charges made against him; that he was nevertheless proceeded against in his absence; that before discharge he was earning about $7,000 a year; that after discharge he went to more than fifty places of employment looking for work, but was unable to get a job. Instruction 3 was properly given in order to direct the jury away from the false issue of wrongful discharge.

The grounds stated in Paragraphs 15 and 16 are insufficient as a basis for the granting of a new trial. The transcript reveals no confusion on the part of defendant’s Mr. Craig at the time he wrote the service letter, or any failure on his part to know and understand the true reason for plaintiff’s discharge, or who had destroyed the one chart and falsified the other. He testified clearly and without any confusion to the following: The plant engineer and his assistant showed him two charts, Chart C, which was whole and entire, and another chart which had been torn up and pasted together on a piece of paper, both of which covered the same time period. The line tracing on Chart C appeared to him to have been manually drawn. It was not a normal line as it would appear on a temperature indicator. He was told that plaintiff had been on duty during that shift. He conducted a hearing. Plaintiff and his union representatives were present. Plaintiff, confronted with the torn up chart, denied that he had ever seen it previously, but admitted that it “looked like” his writing. After Mr. Craig granted a continuance of the hearing plaintiff called Mr. Craig on the telephone, admitted that he had not told the truth, that he had done a grievous wrong to the company for which he was sorry, and said he would throw himself on Mr. Craig’s mercy. Mr. Craig then related the substance of the telephone conversation to the union representatives, and discharged plaintiff. Mr. Craig knew and understood that the reason for discharging Roberts was that he had falsified company records. Mr. Craig apparently was confused at the first trial as to whether the chart with the counterfeit line was the one taken off by the refrigeration man or the one handed to the foreman, but this was an immaterial matter. The record does not confirm the suggestion that Mr. Craig was confused in the respects charged, either at the time he wrote the service letter or at the time he testified at the second trial.

The complaint that defendant’s counsel in final argument conceded that defendant and Mr. Craig did not know who had falsified the one chart or destroyed the other, is equally lacking in merit. There is no such concession in counsel’s argument, in the sense in which it is urged. In the course of the argument counsel stated that he did not know what happened; that he was not there, which obviously was true, but he continued by suggesting that “nobody was there but Harry Roberts,” and proceeded to marshal and assemble the circumstantial evidence which led to the conclusion that it was plaintiff who destroyed the unfavorable chart and substituted the concededly “phony” chart. There is no basis for this complaint.

Nor was the ground stated in Para-: graph 19 a sufficient basis for the action of the trial court, under the record in this case. The complaint is improperly admitting evidence “in chief of defendant”. concerning the relationship between plaintiff and his attorney or other attorneys, but nowhere in defendant’s case in chief was a single word said by any witness with reference to this relationship. The only place in the record where any such evidence is to be found is in the cross-examination of plaintiff, during which counsel for defendant was permitted to interrogate plaintiff with reference to and read to the jury a paragraph from a letter written by plaintiff to his attorney, discharging him as his counsel, in which plaintiff accused “every lawyer who has come into this case on either side” with having joined up with a mob made up of the management of Emerson and members of his union to make him “a smear goat” for the purpose of getting the company out of a bad situation with the government with reference to their defense contracts. This evidence was admitted in this background : Plaintiff thought that a great many employees at Emerson were unfriendly to him; that “everybody” was unfriendly. Plaintiff filed a written complaint charging that certain named employees had discriminated against him for 25 years (a statement retracted by plaintiff at the trial as untrue). Plaintiff had “a lot of cat and dog trouble” with two other employees for about a year. Plaintiff believed these men “would like to fire” him an were “setting booby traps” for him. He considered that the day shift men were “playing their cards against” him “all they could.” He felt that he was resented all over the plant because of his low badge number. He named three other employees who were “after” him. He admitted sending the company a letter stating that he was “the victim of a lying conspiracy,” and testified that he was “charging that right now and that’s why I am in court,” but when asked to name any of the parties to the alleged conspiracy, declined to do so. At this point counsel for defendant asked plaintiff if he had not charged that while confined to his home with pneumonia, unable to defend himself, plaintiff had been framed by a mob consisting of employees of the company and members of the union, which made him “a smear goat.” Plaintiff admitted making a similar statement in a letter and asked that the letter he read, stating “I love the truth, but I love the whole truth.” Plaintiff’s counsel, however, objected to the introduction of the letter on the ground that it was a confidential communication and was immaterial. The court permitted the last three paragraphs of the letter to be read to the jury, as follows:

“I charge; While I was confined at home with pneumona (sic) and completly (sic) unable to defend my self. I was framed by a mob, consisting of members of the Emerson Co. and the union which made me a smear goat for the purpous (sic) of getting the company out of a bad situtation (sic) with the government. In connections with their defence (sic) contracts.
“Or it could have been the case of lower management getting themselves out of a bad situtation (sic) with top management.
“I further charge every lawer (sic) who has come into this case on eather (sic) side has joined up with this mob.”

Over objection counsel for defendant was permitted to ask plaintiff to identify the members of the mob, which plaintiff failed to do, and to ask if plaintiff still charged every lawyer who had come into this case on either side with having joined the mob to smear him. Plaintiff Answered that apparently they had; that was his belief on the day of trial. (Plaintiff had three different lawyers at various times. His last lawyer was permitted to withdraw in this 'Court, after plaintiff filed a lawsuit against him for $1,000,000 actual and $1,000,000 punitive damages.) Confronted with contradictory testimony in his deposition, plaintiff’s excuse was that he had been misled, and he testified that he had charged his lawyer with misleading him. Plaintiff further testified that Mr. Craig had always treated him fairly and was “an eighteen carat gentleman,” until counsel for defendant “got [his] puppet strings on” Mr. Craig.

While the relationship between plaintiff and his lawyers and counsel for defendant, strictly speaking, was immaterial to the question whether the service letter truly stated the cause for plaintiff’s discharge, the cross-examination in question was not prejudicial, inflammatory or improper. Plaintiff’s lack of harmony and inability to have a normal relationship with his coemployees, superiors and attorneys; his suspicious and defensive attitude with respect to his associates, which approached a persecution complex, and his unsubstantiated charges that he was the victim of a “lying conspiracy” and that he had been discharged as a result of having been framed by a mob, including the lawyers, were proper subjects of cross-examination. Such evidence would be of value to a jury in assessing and evaluating plaintiff’s essential soundness, credibility and reliability as a witness. Generally, anything “having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of a witness, including the surrounding facts and circumstances, is proper to be shown and considered in determining the credit to be accorded” the testimony of a witness. 98 C.J.S. Witnesses § 460, p. 323. Wide latitude is allowed in the cross-examination of a party to an action who offers himself as a witness. Hall v. Clark, Mo.Sup., 298 S.W.2d 344, 350, and the scope and extent of such cross-examination in a civil case is discretionary with the trial court. Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675, and cases cited, l.c. 682. No abuse of that discretion appears in this case.

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

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: COIL, Commissioner. PER CURIAM.

license: Public Domain

text:
    Edwin R. LINNEMAN and Emilie Linneman, Appellants, v. Melvin Gerald FREESE, Respondent.
    No. 49150.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    W. F. Daniels, Fayette, for appellants,
    Hampton Tisdale, Boonville, Clyde E. Rogers, Fayette, for respondent.
   COIL, Commissioner.

Mr. and Mrs. Edwin Linneman sought $25,000 as damages for the wrongful death of their son Harlan, 19, who died of injuries allegedly caused by the negligence of defendant, Melvin Freese. There was a defendant’s verdict and plaintiffs have appealed from the ensuing judgment. They contend the court erred in giving contributory negligence instruction D-3 and in admitting evidence of the speed of plaintiffs’ decedent’s automobile at times and places prior to and allegedly remote from the scene of the accident.

Defendant denies that the trial court erred in either respect and contends also that decisive in any event is the fact that the trial court should have directed a verdict for defendant for the reason that plaintiffs’ evidence failed to show that any negligence of defendant proximately caused or, contributed to cause injury and death to plaintiffs’ decedent.

We are of the view that for the reasons which will appear defendant’s contention in that respect must be sustained.

Plaintiffs’ verdict-directing instruction submitted that if defendant was negligent in failing to exercise the highest degree of care in keeping a lookout, in keeping his automobile under control and in operating his automobile with defective brakes, and if such negligence caused Linneman’s injury and death and Linneman was not negligent as set forth in the contributory negligence instruction, the jury would find for plaintiffs.

There can be no doubt that a jury reasonably could have found from the evidence that Freese was negligent in the respects submitted, but we are unable to find in the record any evidence from which the jury reasonably could have found that any of that negligence or any other act or omission <on Freese’s part proximately caused or contributed to cause Linneman’s injury and death.

The evidence as supplied in an abbreviated transcript consisted of the testimony of two of plaintiffs’ witnesses, viz., the defendant and a highway patrolman, and two photographs of automobiles. The evidence tended to show that on July IS, 1958, about 10 p. m., defendant Melvin Freese, driving one automobile, and Harlan Linneman, driving another, left Salisbury and thereafter turned south on Highway S. Originally Freese was following Linneman, but about a mile from the place of the subsequent accident Freese passed Linneman. Both cars were then traveling 75-80 miles per hour. As the Freese car topped the crest of the hill “right before the accident happened,” it was going 70 m. p. h. and the Linneman car was “right behind.” Thereafter Freese came upon a southbound car driven by Mr. Freeman. At the time, a northbound car prevented Freese from immediately passing the Freeman car. Freese attempted to slow but was unable to do so sufficiently and as he swerved to his left in an attempt to go around the Freeman car, his right front fender hit Freeman’s left rear fender and Freese continued on for a distance of 500 feet and came to a stop after he had returned to the southbound lane of the highway. At the time of the collision Freese was going 60 m. p. h. and the Linneman car was right behind him. After the impact the Freeman car apparently proceeded in the southbound lane for 51 feet when the car driven by decedent ran into its rear. When a highway patrolman arrived at the accident scene, he found the Freeman car in a ditch on the west side of the road 57 feet from the point of the second impact and lying on its left side. He found the Linneman boy’s body lying 180 feet from the second impact point on the east edge of the highway and- his car another 100 feet to the south in a field on the east side of the highway. There was no evidence as to the kind of pavement, condition of the road surface, the width thereof, or the weather.

There was no evidence that the northbound traffic lane was in any way obstructed at the time the Linneman car ran into the rear of the Freeman car. On that subject, Freese testified that after his right front fender struck the left rear fender of the Freeman car, his (the Freese) car skidded to the left side of the road, that he continued on without application of brakes or gas, fighting the steering wheel to the right to prevent his car from going into the ditch on the left, and proceeded on until his car had returned to the southbound lane where he came to a stop some 500 feet south of the impact point. None of his testimony on the subject indicated or supported an inference that there was any period of time when he was blocking the northbound lane in such a way as to prevent the Linneman car from using that lane for the purpose of passing the Freeman car.

The only item of testimony in the record which tends to imply that the impact between the Freese car and the Freeman car had anything to do with the subsequent collision between plaintiffs’ decedent’s car and the Freeman car was contained in the testimony of plaintiffs’ witness, a highway patrolman, who said that defendant told him at the scene how the accident happened by stating, “I was coming down the draw, I saw his lights and there was a car coming. After I got by, I swung out, but I must have been too close and hit him. My brakes weren’t as good as they should have been. I must have spun him around so the other car hit him.” If the last sentence above might, under any circumstances, constitute evidence of causal connection between Freese’s negligence and Linneman’s injuries, its evidentiary value is destroyed when the testimony of Freese and other testimony of the patrolman is taken into account. At the trial these questions were asked Freese and these answers given: “Q. When you hit the Freeman car, what happened to it ? A. My car swerved to the east side of the road. Q. It knocked the Freeman car around, did it spin it around? A. Not that I know of, Sir. Q. Well, do you know? A. No, Sir.” Freese also testified that when he collided with it, the Freeman car was not “pushed one way or the other”; that the Freeman car was not turned over by the impact of his (Freese’s) car hitting the Freeman car; that all the debris was on the right side of the road, i. e., in the southbound lane of the highway; that he, Freese, did not know what the Freeman car did after he hit it. The highway patrolman testified that there were two separate piles of debris, but both of them were in the southbound lane west of the center line; that there were no skid marks prior to either impact point, and that while he, the patrolman, did not witness the accident and thus had no personal knowledge of what the Freeman car did after it was hit the first time, there was nothing, based on his examination of the scene of the accident, to show that the Freeman car had been spun around; that there was no evidence to show that the Freeman car had ever crossed the center line; he recalled no evidence to indicate that the Freeman car ever went out of control as the result of being struck by the Freese car; and that the Freeman car after the first impact traveled 51 feet directly south in the southbound traffic lane.

A photograph of the Linneman car indicates extensive damage to the front, especially the right half thereof; and a photograph of the Freeman car shows terrific damage to its entire rear (including the back seat), and especially heavy damage to all but the right rear fender. The reasonable conclusion from that photographic evidence is that the center right front of the Linneman car struck the center of the rear of the Freeman car with great force.

There was no evidence that the collision between defendant’s car and the Freeman car damaged Freeman’s lights and defendant said that he saw the Freeman car’s lights prior to the first impact.

It seems to us that only by resorting to speculation and conjecture outside of and beyond the scope of the evidence may it be found that any negligence of Freese (however negligent he was in colliding with the Freeman car) proximately caused or contributed to cause any injury to Linneman. No fact essential to liability, including, of course, the essential fact of proximate cause, may be found or inferred in the absence of a substantial evidentiary base therefor and, of course, the finding of an essential fact may not “rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence.” Probst v. Seyer, Mo., 353 S.W.2d 798, 802[1-3]. Plaintiffs failed to adduce evidence from which a jury reasonably could have found that defendant’s negligence was a proximate cause of injury to plaintiffs’ decedent, and therefore the judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


text:
    L. VASQUEZ, Plaintiff-Respondent, v. VILLAGE CENTER, INC., Defendant, John Dooly, Defendant-Appellant.
    No. 49448.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.

      Walter S. Berkman, St. Louis, for John Dooly, co-defendant-appellant.
    Boyle, Priest, Elliott & Weakley, Howard Elliott, Edward D. Weakley, St. Louis, for Leo Vasquez, respondent.
   COIL, Commissioner.

Respondent L. Vasquez, the plaintiff below, an excavating and grading contractor, brought an action against Village Center, Inc., for $12,606.12 and interest thereon, the balance due for labor performed allegedly at the special instance and request of Village Center, and to have real estate owned by appellant John Dooly impressed with a mechanic’s lien for the amount of such judgment. The jury returned a verdict, including interest, for $16,271.91, and found that the plaintiff had perfected and established the right to a mechanic’s lien against the realty. Dooly alone has appealed and contends that the judgment impressing his property with a mechanic’s lien was void because the trial court was without jurisdiction, erred in failing to direct a verdict for him, and erred in giving instructions on behalf of plaintiff.

All the evidence in the case was adduced by plaintiff and we state it from a standpoint favorable to him. Edward Bilhorn testified that he and his brother-in-law, James J. Nicholson, and Terry Nicholson, from 1953 until sometime in 1956, constituted the officers and directors and owners of all the stock of Nicholson & Bilhorn, Inc., a corporation which was engaged in real estate development and that, beginning in 1954, that company was engaged in developing about 200 acres of land in the vicinity of Manchester and New and Old Ballwin Roads in St. Louis County involving approximately 500 homesites in various sections of an area known as Ball-win Hills. Those homesites were developed (construction began in 1954) by a subsidiary corporation of Nicholson & Bilhorn, Inc., viz., Suburban Homes, Inc. A plot of ground fronting approximately 1,300 feet on the south side of Manchester Road and running southwardly for approximately 300 feet was to be developed as a commercial tract (a shopping center) by another subsidiary corporation of Nicholson & Bilhorn, Inc., to be known as Village Center, Inc., to be owned and operated by the same three individuals, i. e., the two Nicholsons and Edward Bilhorn.

All of the land, including the homesites and the commercial property, was acquired under one purchase contract and record title was taken in the names of James Nicholson and his wife and, at some later time (the exact date was not shown), all of the land was deeded by James Nicholson and his wife to Nicholson & Bilhorn, Inc. The plaintiff did grading and excavating in connection with the development of the residential homesites during 1954, 1955, and 1956.

Mr. Bilhorn, on behalf of Village Center, Inc. (Village Center, Inc. had not then been incorporated, a matter to which we' shall later refer), ordered plans for the development of the tract from an architect. Those plans, dated February 20, 1955, purported to show a floor plan for buildings and facilities, including a parking area for the proposed shopping center. According to the testimony of both the plaintiff and Edward Bilhorn, in April or May of 1955 Mr. Vasquez attended a conference on the proposed commercial site. Present also were Edward Bilhorn, James Nicholson, and Terry Nicholson, and probably the construction superintendent for Nicholson & Bilhorn, Inc. The plans, including a sketch which showed the elevations for the proposed buildings, were displayed to Mr. Vasquez and the work that it was desired that he perform was explained to him. The land in question was rough, there was a large creek meandering through it, there was a steep hill on the southwest corner, some low and swampy parts in the center and there were some places where the land adjoining Manchester Road was six feet below the level of that road. Plaintiff was told that he was to realign the creek, prepare the ground for parking lots, prepare subgrades for the planned buildings and provide access to the shopping center along the frontage on Manchester. The rates were agreed upon in detail providing for hourly rates for the use of various types of equipment. Mr. Vasquez was employed on behalf of Village Center, Inc., the corporation which was planned as a subsidiary of Nicholson & Bilhorn, Inc., to develop the commercial tract.

Plaintiff proceeded to do the work as directed during the remainder of 1955 and in 1956, completing the job on August 21. He worked under the control and direction of Edward Bilhorn and performed the work agreed upon. The total charges figured at the stipulated rates amounted to $15,606.12. In December 1955, a $3,000 payment was made by a check of Nicholson & Bilhorn, Inc., leaving a balance due of $12,606.12.

Mr. Bilhorn testified that Vasquez was the general contractor and, according to the evidence, plaintiff was the only contractor involved in any work on the land in question prior to the time it was conveyed to Mr. Dooly on December 10, 1956. No buildings had been constructed on the property by the time it was conveyed to Dooly.

In August 1955 the corporation, Village Center, Inc., was formed as theretofore planned by James and Terry Nicholson and Edward Bilhorn. They were the officers and directors, owned all the stock, and conducted its business in accordance with the plan which existed at the time title to the property was taken in the names of James Nicholson and his wife. The commercial site in question was conveyed to Village Center, Inc., on April 2, 1956. Plaintiff understood that the work he performed on the commercial tract in 1955 and 1956 was on a separate project and that the work was to be done for Village Center, Inc. Mr. Vasquez did not know Mr. Dooly and had had no dealings with him.

Appellant Dooly contends that the judgment impressing his land with a mechanic’s lien is void because, he says, the court was ■without jurisdiction of the case inasmuch as the parties to the contract were not made parties to the action as required by statute.

Section 429.190 mandatorily requires that the parties to the contract be made parties to a mechanic’s lien action. Harrison v. Creason, Mo.App., 238 Mo.App. 118, 176 S.W.2d 849; Hughes Bros. Paint & Hardware Co. v. Prewitt, 170 Mo.App. 594, 157 S.W. 120, 121 [3, 4] ; Simon Devine Welding Co. v. Kuhn, Mo.App., 329 S.W.2d 249, 252 [1-3], The contract referred to in the statute is the agreement made for the performance of the work or for the furnishing of materials. Harrison v. Creason, supra, 176 S.W.2d 850 [1-2]; Foster v. Wulfing, 20 Mo.App. 85, 87.

Appellant argues that the evidence shows that the contract to do the work was made with James Nicholson, Terry Nicholson, and Edward Bilhorn, and that the property was then owned either by James Nicholson and his wife or Nicholson & Bilhorn, Inc. And he points out that Village Center was not in existence at the time the arrangement was made for plaintiff to do the work and that the land was not conveyed to Village Center, Inc., until April 1956. Therefore, says appellant, since neither Bilhorn and the two Nicholsons, nor James Nicholson and his wife, nor Nicholson & Bil-horn, Inc., were made parties to the suit, the court was without jurisdiction over the subject matter and the judgment was void.

We are unable to agree with appellant’s contention. We are of the view that, for the reasons which will appear, Village Center was the only “party to the contract” which the statute required be made a party to this action.

While it is true that one who seeks to avail himself of the benefits of the mechanic’s lien law must substantially comply with the provisions of the applicable statutes, Wadsworth Homes, Inc. v. Wood-ridge, Mo.App., 358 S.W.2d 288, 291 [1], nevertheless, the purpose of the mechanic’s lien law is to give security to mechanics and materialmen for labor and materials furnished and it should be construed as favorably to those persons as its terms will permit. Ladue Contracting Co. v. Land Development Co., Mo.App., 337 S.W.2d 578, 584 [5]. An examination of some of the early cases will disclose that the purpose to be accomplished by the mandatory requirement of the statute that the parties to the contract be made parties to the lien action is to provide a party against whom a personal judgment will lie (the lien, of course, being only an incident to a personal judgment) and a party who is in a position to defend the claim forming the basis for the personal judgment sought, and thus the basis for the establishment of the mechanic’s lien. Crane Co. v. Hanley, 53 Mo.App. 540; Steinmann v. Strimple, 29 Mo.App. 478, 482, 483; Russell v. Grant, 122 Mo. 161, 26 S.W. 958, 962; Steinkamper v. McManus, 26 Mo.App. 51, 52; Foster v. Wulfing, supra. Some of the foregoing cases and others, while recognizing that the statute’s requirement that the parties to the contract be made parties to the lien action is mandatory, hold that there is substantial and sufficient compliance with the statute if one of the parties to a contract under which one did work or furnished materials is before the court even though there may have been other parties to that contract who were not made parties to the action. Steinmann v. Strimple, supra, 29 Mo.App. 484, 485; Hassett v. Rust, 64 Mo. 325, 327; Foster v. Wulfing, supra. Furthermore, it was pointed out in an early case that if the owner of the property against which the lien is sought desires that other persons be made parties to the action, he may, upon a proper showing, have those parties made defendants. Putnam v. Ross, 55 Mo. 116, 118.

It is true, of course, that Village Center, Inc., not having come into existence as a legal entity until some three months after plaintiff’s contract was made, was not and could not have been a party to the contract at the time it was made. Under the undisputed evidence, however, Village Center, Inc., became “a party to the contract” in accordance with the stated plan of the Nicholsons and Bilhorn and in accordance with the understanding of the plaintiff. The evidence justifies, if it does not compel, the conclusion that the Nichol-sons and Bilhorn and the plaintiff, at the time the agreement was made, understood and agreed that when Village Center, Inc., was organized as planned, it was to be plaintiff’s sole debtor. We need not concern ourselves with what the situation might have been had Village Center never come into existence as a legal entity in accordance with the plan and understanding of the parties. The fact is that the corporation was formed as planned. Further, the evidence is such that no other conclusion is reasonable than that Village Center ratified and adopted the contract theretofore made by its incorporators and accepted the benefits of that contract and became liable under it. Austin & Bass Builders, Inc. v. Lewis, Mo.App., 350 S.W.2d 133, 138; Schmidt v. Morival Farms, Mo., 240 S.W.2d 952, 958. Under the evidence in this case plaintiff could not have obtained a personal judgment for the amount due him for labor performed under his-contract against anyone other than Village Center, Inc. Thus Village Center was a party to the contract, it was the proper party to defend against the claim (in the event it was not just or proper), and it was a party against whom a personal judgment could be rendered. Therefore, we hold on this-record that the fact that Village Center was made a party to this action satisfied the mandatory requirement of the statute that the parties to the contract be made parties to the action. If appellant believed, for example, that from his standpoint the Nicholsons and Bilhorn or Nicholson & Bilhorn, Inc., or James Nicholson and his-wife were also liable and he wished those entities made parties to this action, he was at liberty to have proceeded to make the showing necessary to have accomplished his desire in that respect.

Appellant contends that the trial court should have directed a verdict for him for two reasons: (1) that the lien claim was not filed in time because plaintiff was not an original contractor, and (2) that the grading work performed by plaintiff was not such as to entitle him to a mechanic’s lien under Section 429.010.

Section 429.080 requires that an “original contractor” file his lien account within six months and that others file their accounts within four months after the indebtedness shall have accrued. Plaintiff last worked on August 21, 1956, and his lien account was filed with the St. Louis County Circuit Clerk in January 1957. The account, while filed within six months, was filed more than four months after the indebtedness accrued, and thus it was filed in time only if plaintiff was an original contractor. One who makes a contract to perform labor or furnish materials with the then owner of the property is an original contractor. E. C. Robinson Lumber Co. v. Baugher, Mo.App., 258 S.W.2d 259, 260. Thus, says appellant, inasmuch as plaintiff’s evidence was that at the time the Nicholsons and Bilhorn contracted with plaintiff they were acting for Village Center, Inc., which they intended to later form and inasmuch as they could not have been agents for a corporation not in existence, plaintiff did not contract with anyone who was the owner of the land at the time and consequently was not an original contractor.

The evidence makes it abundantly clear that the three parties with whom Vasquez dealt, even though they purported to act for a corporation which was not then in existence, also were acting as agents for whoever held the record title at the time, whether it was James Nicholson and his wife or Nicholson & Bilhorn, Inc. The plain inference from the evidence is that whoever held the record title held it for the benefit of the entity which was to develop the commercial tract and that James and Terry Nicholson and Edward Bilhorn represented and acted for the record owner. So that the contract was made with the owner within the meaning of Section 429.-010, which provides a lien for work or labor performed “under or by virtue of any contract with the owner * * * or his agent * * Thus, in any event, plaintiff, who, incidentally, was the only contractor who did any work on the land prior to Dooly’s ownership, was an original contractor and his lien claim was timely filed.

Section 429.010 provides in part: “Every mechanic or other person, who shall do or perform any work or labor upon * * * any building, erection or improvements upon land, * * * under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of sections 429.010 to 429.3 10, shall have for his work or labor done, * * * a lien * *

In support of his claim that the work done was not lienable, Mr. Dooly points to the evidence that the work involved was the grading of vacant land in preparation for a shopping center; that no building was constructed thereon (prior to the conveyance to appellant), no concrete was poured and no materials were placed on the land such as brick or concrete blocks; that no permit for construction of any building was applied for or obtained; that no contracts were entered into for the construction of buildings; and he concludes from the foregoing that the grading work was not performed as part of a contract for the construction of a building.

The evidence and the reasonable inferences therefrom, considered from a standpoint favorable to plaintiff, showed also that the grading was work which had to be done before the proposed buildings could be placed at the locations designated on the plan and in order to provide adjacent parking areas and means of access to those areas and to the proposed buildings from Manchester Road; that the area was graded by the plaintiff in accord with building stakes which had been placed on the ground; that the ground in designated places had to be prepared for concrete floors which would be poured in accordance with building plans and in accord with the over-all plan for the development of the tract; and that Mr. Bilhorn was present at a conference where a savings and loan company committed itself to make a construction loan on the property for three quarters of a million to a million dollars. The evidence showed further that Village Center, Inc., had entered into written lease contracts with Kroger, F. W. Woolworth Company, Sands Drugs, and probably with others, which called for the construction of designated buildings in the shopping center, and that those contracts were entered into prior to the time plaintiff finished his work.

It appears to us that there was substantial evidence from which a jury reasonably could have found that the work performed by plaintiff was lienable within the meaning of the language of Section 429.010, construed, as it should be, as favorably to plaintiff as its terms will permit. That is because there was evidence justifying a finding that the work plaintiff did was performed as an integral part of a total plan to proceed without delay to erect a group of buildings as a shopping center on the land in question. The evidence that the course of the creek which meandered through the property was changed; the evidence as to the leveling and filling, the construction of parking areas adjacent to designated building sites, the providing of means of ingress and egress for the proposed shopping center and the parking areas to and from Manchester Road, the preparing of sub-grades for buildings on which concrete slabs were to be poured as the next step in the construction process — all amounted to evidence of essential work in the accomplishment of the specific plan and intention to build a shopping center including buildings. See Ladue Contracting Co. v. Land Development Co., supra, 337 S.W.2d 582-585; Arthur Morgan Trucking Co. v. Shartzer, 237 Mo.App. 535, 174 S.W.2d 226.

Appellant relies on the Morgan case, supra, for the contention, apparently, that for the work in this case to have been lienable it must have been a part of an “integral and indivisible contract for the construction of a building” on the property. The Morgan case does not hold that there must have been a “contract” to construct a building, as demonstrated by this language, 174 S.W.2d 228 [3]: “We think the controlling element for consideration in any such case is and ought to be, what was the immediate purpose of the owner in having the old building wrecked? W.as it a part of the owner’s scheme and plan to proceed without interruption or delay and as one project with the erection of a new building? If that was the intention, purpose, and aim of the owner, to be determined in each case from all of the attending facts and circumstances, the claim is and ought to be a lienable one, being in effect for work or labor upon the new building, erection or improvement; in other words, the destruction of the old was a necessary element or part of the construction of the new. It all comprised one project. On the other hand, work or labor performed for the sole purpose of wrecking and removing an old building, with no definite and formed plan or intention of proceeding without delay or interruption with a new building, erection or improvement, as in the case of Holzhour v. Meer, supra [59 Mo. 434], would not constitute a lienable claim, and for two reasons, first, because a lien cannot be established against a lot or land alone, and, second, the demolition would not be an integral and constitutive part of a fixed plan or project for enhancing the value of the land or lot by placing thereon a building, erection or improvement.” (Bracketed citation ours.)

Certainly, it seems to us that the grading work in this case was an integral part of the plan to construct buildings on the land in question and that the trial court did not err in refusing to direct a verdict for appellant on the ground that the work done was not lienable as a matter of law.

Appellant contends that the trial court erred in giving plaintiff’s instructions 1 and 4. Instruction 1, a verdict-directing instruction for a money judgment against Village Center, Inc., hypothesized, inter alia, that plaintiff, at the instance and request of James and Terry Nicholson and Edward Bilhorn, did the work in question and that at the time those three were acting for Village Center, a corporation to be formed, that Village Center was formed and ac-. cepted the contract and the benefits under it and directed the remaining work to be done and, while the remaining work was being done, the corporation took title to the tract of land. Instruction 4, a verdict-directing instruction, pertaining to the establishment of a mechanic’s lien against Dooly’s property, hypothesized, inter alia, that if the jury found for plaintiff under instruction 1 and further found that the work was done in connection with the construction of buildings, roadways, parking lots, etc., on the ground in question, and that within six months after the last work, the lien claim was filed in the office of the St. Louis County Circuit Clerk and within ninety days thereafter the suit was filed, etc.

Appellant contends instruction 4 failed to require a finding that, but assumed that, plaintiff was an original contractor by permitting the jury to find that the lien account was timely filed if it was filed within six months after the completion of the work. It is apparent that the instruction does make the assumption suggested and plaintiff so concedes. Plaintiff contends, however, that the matter omitted from instruction 4 is fully supplied by instruction 1 and that the instructions, read together, consti-ute a proper charge.

We are of the opinion, for the reasons which will appear, that instruction 4 is fatally defective for failure to require findings which would establish the essential fact that plaintiff was an original contractor and thus make the filing of his lien account within six months timely.

We have noted heretofore that while the lien account in this case was filed within six months, it was filed more than four months after the indebtedness accrued, and thus, under the provisions of Section 429.080, the lien account was timely filed only if plaintiff was an original contractor; or, in other words, if he contracted with the “owner or proprietor * * *, or his agent, trustee, contractor or subcontractor * * It is essential to show the timely filing of the lien account in order to establish the right to a mechanic’s lien. Baker v. Smallwood, 161 Mo.App. 257, 143 S.W. 518; Wilson v. Berning, Mo.App., 293 S.W.2d 151, 156 [8].

It follows, therefore, that the timely filing of the lien account was an essential element of plaintiff’s case to establish his right to a mechanic’s lien and, of course, an essential element may not be omitted from a verdict-directing instruction, where, as here, the omitted element was not conceded.

In determining heretofore that there was sufficient evidence from which the jury reasonably could have found that plaintiff was an original contractor, we pointed out that under the evidence it was abundantly clear that the three parties with whom Vasquez dealt even though purporting to act for a corporation which was not then in existence, also were in fact acting as agents for whoever held the record title at the time, whether it was James Nicholson and his wife or Nicholson & Bilhorn, Inc., and that the evidence showed further that whoever held the record title held it for the benefit of the entity which was to be created for the purpose of developing the commercial tract. The fact, however, that there was evidence in the record to sustain a finding that Vasquez contracted with the owner’s agents and was therefore an original contractor does not obviate the necessity for hypothesizing such a finding in the verdict-directing instruction; and that is true even though the supporting evidence is abundant, clear, and undisputed, where, as here, it was oral.

Instruction 1 does not cure the defect of instruction 4. We have heretofore summarized the hypotheses of the pertinent facts as set forth in instruction 1. A finding of all those facts could not amount to a finding that plaintiff contracted with the owner of the property at the time he contracted to do the work.

It is true that it is not necessary that the “owner” of the property at the time of the contract must necessarily be the one then vested with fee simple title. For the “owner” at the time might well be only an equitable owner exercising the rights of a proprietor in the land at the time a contract for work was made. See Waters v. Gallemore, Mo.App., 41 S.W.2d 870, 873 [7]. In the present case, however, the only fact as to ownership which the jury was required to find was ownership in an entity which did not exist until several months after the contract was made. The lien of a mechanic attaches at the time of the commencement of the work. Raithel v. Hamilton-Schmidt Surgical Co., Mo.App., 48 S.W.2d 79, 81 [2, 3], Consequently, the owner referred to in the statute is the owner on the date the work was commenced. J. H. Magill Lumber Co. v. Carter, Mo. App., 17 S.W.2d 581, 583 [2, 3],

We cannot escape the conclusion that the failure of instruction 4 to require a finding of facts (by reference or otherwise) which would be tantamount to a finding that plaintiff was an original contractor and thus permit the jury to find that the lien account if filed within six months was timely filed was an omission of an essential fact prerequisite to plaintiff’s being entitled to a mechanic’s lien and that, consequently,! the case must be reversed and re|manded for a new trial.)

Appellant has made many other attacks on instructions 1 and 4. It will be unnecessary to deal with those, but we are certain that plaintiff will wish to redraft his instructions in the light of the additional criticisms made of them by the appellant.

The judgment is reversed and the case remanded.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.

      . All section citations refer to sections of BSMo 1959 and V.A.M.S.


author: BARRETT, Commissioner. PER CURIAM.

text:
    PECK’S PRODUCTS COMPANY et al., Appellants, v. Del L. BANNISTER, Collector of the City of St. Louis, Respondent.
    No. 49257.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.

      Chopin & Boisaubin, Alfred L. Boisaubin, St. Louis, for appellants.
    Thomas J. Neenan, City Counselor, Thomas F. McGuire, and John J. Horgan, Asso. City Counselors, Stephen M. Hereford, Asst. City Counselor, Paul Welch, Donald Gunn, St. Louis, for respondent.
   BARRETT, Commissioner.

Ten plaintiffs, owners of commercial and industrial property, have joined in this “proceeding in equity” against the Collector of the City of St. Louis to contest a part of the 1959 state and county tax assessments against land (separated from its improvements) owned by them. In their argument the plaintiffs say, “This is an action in equity” and that they “are contesting their ad valorem real property taxes for the year 1959.” In their jurisdictional statement the plaintiffs say, “This proceeding is one to declare an order of the Missouri State Tax Commission fixing and determining the assessed valuation of real estate, null and void” and that “The proceeding is also one in which appellants seek to enjoin the collection of a portion of their real estate taxes for a given year” for the reasons that the assessments were made in violation of the uniformity, classification and assessment provisions of the constitution (Const. Mo., Art. 10, Secs. 3-4, V.A.M.S.) and therefore infringe the due process safeguards of both the state and federal constitutions. Mo. Const., Art. 1, Sec. 10, Fourteenth Amendment Const. U.S. After extensive briefs and arguments and after a six-day trial, the circuit court entered a general judgment in favor of the defendant collector and dismissed the plaintiffs’ action and they have appealed. Notwithstanding the statements in their brief and argument it is very important, in fact it is of the essence, to precisely understand just what the plaintiffs have attempted to do throughout this proceeding and what it is they seek upon this appeal. Therefore it is necessary to briefly summarize their petition, consider at least illustratively from this voluminous record some of the salient facts and finally analyze the basic and determinative arguments made in this court.

Two of the plaintiffs are owners of so-called business or commercial property; in downtown St. Louis there is the International Building at 722 Chesnut Street, and in South St. Louis, 6200-6300 Chippewa, there is one of the original shopping centers, Hampton Village Shopping Center, owned by Webb & Knapp, Inc. Then to select for the purposes of illustration from the eight industrial properties there is Foster Bros. Manufacturing Company at 2101 South Vandeventer and McCabe-Powers Body Company at 5900 North Broadway. Each plaintiff separately alleges its ownership of described property and sets forth the 1959 tax assessment, for example Webb & Knapp’s Hampton Village, land $1,273,930, improvements $1,356,700, total $2,630,630. Then it is alleged that in July 1959, the State Tax Commission issued an order “which purported to equalize the valuation of real property among the respective counties.” But it is alleged that in violation of its statutory and constitutional duties the commission “knew or should have known that it had deliberately, intentionally and systematically ordered and permitted the assessment of real property of petitioners and of other real property in the City of St-Louis at a higher and unequal valuation than the assessment of similar, comparable and other real property located in other counties-of the state.” In this connection it is-charged that since 1953 the commission has-known that real property in St. Louis, including the plaintiffs’ property, was assessed at a higher valuation than real property in other counties and was “bearing a greater burden of taxation than real property in< other counties within the state” and therefore there was discrimination against St.. Louis property and a consequent infringement of due process and equal protection of the laws. Then after setting forth the statutory duties of assessors it is alleged that for the year 1959 and for many years previously the Assessor of the City of St-Louis and his deputies failed to assess the plaintiffs’ properties at their “actual cash values,” that in so doing the assessor had' “deliberately, intentionally, fraudulently and systematically ordered and permitted the assessment of petitioners’ property and other property * * * on the basis of substantial non-compliance with said statutory provision (s),” and therefore the .petitioners-conclude that the assessments of their properties are void.

The plaintiffs have computed and paid that part of the tax attributable to improvements and they have tendered into court the amount-of the tax on the land valuation and, according to them, are “contesting only the foregoing portions of assessments against their land for the taxable year, 1959.” In view of all these allegations the plaintiffs assert that they are “without an adequate, certain and complete remedy at law” to prevent systematic discrimination by the State Tax Commission “in the matter of purportedly equalizing the valuations of real prop■erty assessments among all the counties in the State of Missouri,” particularly since there is no provision for administrative appeal or statutory remedy for taxpayers at this stage of the taxing process. In addition to general equitable relief the plaintiffs pray that the court grant the following five types of relief: (1) declare null and void the commission’s 1959 order of equalization, (2) reduce the valuation of real property in St. Louis “to the same or similarly comparable valuation of real property as same is assessed in other counties," (3) declare void "that portion of the assessments of the above described land of petitioners and all assessments of all state, school and local and other taxes against said properties, based on such assessments,” (4) enjoin and restrain the defendant collector from attempting to collect “any unpaid taxes” for 1959, and (5) relieve the plaintiffs of any liability for interest and penalties for their failure to pay the tendered part of the taxes for 1959.

In the first place, with respect to the general relief sought and certain of the prayers, it is well to note that when a taxpayer pursues his administrative remedy and directly appeals a tax commission order neither a circuit court nor an appellate court has the power to fix the valuation and thus assess specific property, “the courts have no right to substitute their judgments, as such, for the values fixed by the assessor or by reviewing boards.” Cupples-Hesse Corporation v. State Tax Commission, (Mo.) 329 S.W.2d 696, 700; Koplar v. State Tax Commission, (Mo.) 321 S.W.2d 686, 697. Despite their seeming hodgepodge, our constitution and statutes contemplate a comprehensive plan for the valuation of property for tax purposes and in general the administration of the over-all scheme, including valuation and assessment, has been entrusted to the State Tax Commission. Const. Mo., Art. 10, Sec. 14, Ch. 138 R.S.Mo.1959, V.A.M.S.; In re St. Joseph Lead Company, (Mo.) 352 S.W.2d 656, 659. When the administrative remedy is pursued the court on appeal may only determine, with deference to findings involving credibility, whether the commission could reasonably have made the finding and set aside decisions clearly contrary to the overwhelming weight of the evidence. Ulman v. Evans, (Mo.) 247 S.W.2d 693, 694; Drey v. State Tax Commission, (Mo.) 345 S.W.2d 228, 234. Assuming that plaintiffs are entitled to maintain this proceeding in equity, the court in another suit to enjoin the collection of taxes said, “it is perhaps not amiss to say that chancery courts must not be made the resort of all who may be discriminated against in the assessment of their property.” Jefferson City Bridge & Transit Co. v. Blaser, 318 Mo. 373, 386, 300 S.W. 778, 785. Despite the scope of appellate review of court-tried cases (Sup.Ct.Rule 73.01(d), V.A.M.R.) and despite the fact, as appellant argues, that equity cases may be reviewed de novo, “We have not set the evidence out in detail for review, because it is not within our province to weigh it, make a specific finding as to the value, and then substitute our judgment for that of the tax commission and the board of equalization. Our function (there also an equity suit involving an assessment) is limited to the setting aside of the assessment as made, if it be found to be fraudulent.” St. Louis Electric Bridge Co. v. Koeln, 315 Mo. 424, 429, 287 S.W. 427, 429. For the indicated reasons, the consequence in this case is that in no event should this court attempt to find and fix values as to specific property and thus reduce or incréase assessments ordered by the commission or levied by the assessor. By the same token neither should the court undertake to relieve the plaintiffs of interest or penalties not in fact involved in this proceeding. These considerations are not determinative but they do have an over-all bearing upon the final disposition of the appeal.

The appellants insist that their primary attack is against the intercounty assessment on the ground of fraud on the part of the State Tax Commission: “These plaintiffs have attacked the validity of the inter-county equalization order.” Because of the allegation of fraud against the commission it is asserted that the plaintiffs have the right to maintain this suit in equity to enjoin the collection of the tax and thus bypass the local county assessing authorities and boards, the State Tax Commission and ultimately all the conventional administrative remedies. Despite their protestations, however, the plaintiffs have also launched, more or less obtusely, an attack on the intra-county procedure and assessments. For example one of their complaints here is that “The assessment on plaintiffs’ property is void because (the assessor and) the deputy assessors failed to assess according to the norm prescribed by statute.” And throughout their brief and argument there is a tan-gentical if not direct attack upon the procedures of the county taxing agencies and their appraisal and assessment of the plaintiffs’ properties even as compared to other similar properties in the City of St. Louis. And admittedly the plaintiffs did not so much as attempt to pursue the conventional administrative remedies, particularly the remedies contemplated by the 1945 constitution. Specifically, they did not appeal their valuations and assessments to the local board of equalization and the State Tax Commission and finally seek review of the commission’s order under the Administrative Procedure Act. Instead of pursuing any administrative remedy they have prosecuted this proceeding in equity claiming that the administrative procedures afford an inadequate and incomplete remedy.

It is not necessary to pursue this subject in detail, examine the rules and apply them to specific points and arguments in the plaintiffs’ brief. Judicial policy has not always been spelled out clearly, perhaps, and sometimes it has been “necessary that we rechart our course” in an attempt to reconcile the cases, particularly Boonville National Bank v. Schlotzhauer, (1927) 317 Mo. 1298, 298 S.W. 732 and subsequent cases. Nevertheless, in an attempt to “re-chart our course” these observations were made, also by the court en banc, “in a general way, however, that the exclusive jurisdiction to grant equitable relief will not be exercised in any case where the legal remedy, either affirmative or defensive, which the injured or defrauded party might obtain would be adequate, certain, and complete- * * * In any event such rule should, on grounds of public policy, be rigorously applied in attacks on assessment judgments.. * * * We do not recede from any of the positions taken in the Schlotzhauer Case;, we merely supplement its holdings by the-further holding that a taxpayer, who is aggrieved by a fraudulent assessment of his-property is not entitled to relief (for undervaluation of other property) in a court of equity until he has first exhausted the remedies afforded by the statute.” Brinkerhoff-Faris Trust & Savings Co. v. Hill, 323 Mo. 180, 189, 194, 19 S.W.2d 746, 749, 752. Later, in a suit in equity to set aside an alleged excessive assessment by a county assessor, it was said, “This court en banc held in Brinkerhoff-Faris Trust & Savings Co. v. Hill * * * which has been followed in at least seven recent decisions, that a taxpayer who claims his property has been: fraudulently assessed, must exhaust his remedy imder these statutes before he can resort to equity; and that ‘the remedy provided by statute is adequate, certain and, complete.’ ” State ex rel. Merritt v. Gardner, 347 Mo. 569, 574, 148 S.W.2d 780, 783. And finally, in the first Cupples-Hesse case in 1959, it was announced as a general rule “that ordinarily the legal remedial procedure provided by the Statutes and the Section of the Constitution mentioned supra affords the taxpayer adequate remedies for complaints of fraud, illegality or discrimination in the assessment of taxes for a given-year and that such procedure must ordinarily be availed of by the taxpayer before a resort to equitable relief.” Cupples-Hesse Corporation v. Bannister, (Mo.) 322 S.W.2d 817, 821. This rule, as with the preceding factor, is not determinative of the essential merits of this appeal, but it certainly renders unnecessary consideration of so much of the plaintiffs’ claims as relate to the actions of local taxing authorities. As to local taxing authorities and intracounty valuations and assessments the plaintiffs are concluded by the fact that they made no effort to obtain administrative relief. Thus the merits of this appeal are in fact reduced to the plaintiffs’ single claim of fraud againt the State Tax Commission and its action in so far as it relates to aggregate intercounty valuation and assessment.

This appeal is not concerned with whether the petition states a cause of action in fraud and therefore a case of equitable cognizance (Columbia Terminals Co. v. Koeln, 319 Mo. 445, 3 S.W.2d 1021), it is assumed for immediate purposes that the petition states a claim upon which relief could be granted. This is not to say that the plaintiffs are not entirely serious in their claims here, nevertheless there should be the caveat that the charge of fraud is not a mere formal charge lightly invoked or, more importantly, established upon meager proof. But again the ultimate decision is not to turn alone on this point and it is sufficient to briefly note certain generalities from a few of the leading tax assessment cases. “Such fraud will not be established by the mere showing of an over-valuation which might have resulted from mistake or error of judgment; it must be made to appear that the assessment is so grossly excessive as to be entirely inconsistent with an honest exercise of judgment.” St. Louis Electric Bridge Co. v. Koeln, 315 Mo., 1. c. 429, 287 S.W., 1. c. 429. As to both pleading and proof, “The sole complaint appears to be that the assessed value was fixed at more than its cash value. * * * If the bill contained nothing more than the bare charge that plaintiff’s property was assessed at more than its cash value, it would be clearly demurrable, because a charge of mere overvaluation does not ordinarily state a case of fraud, or even of discrimination. In order to allege discrimination, there must be the further charge that other property in the same class was undervalued.” Jefferson City Bridge & Transit Co. v. Blaser, 318 Mo., 1. c. 384, 300 S.W., 1. c. 784.

In connection with the charge of fraud the plaintiffs claim to have established the fact and the tax commission’s knowledge of it by showing the six annual intercounty equalization orders from 1953 to 1959, computing and inferring from them that real property in St. Louis had been “assessed in the aggregate at 36% of value * * while real property throughout the State of Missouri has been assessed in the aggregate below 30%.” In part this particular argument overlooks the significant fact that “Each year’s tax is a separate transaction and each action relating to each year’s tax is a new cause of action. * * * It is not clearly seen that the issues of law and fact in the assessment of the 1956 tax were or are to be all the same in assessing the taxes for 1957 and for the stated subsequent years, even though as alleged, the ‘formulas and methodology’ utilized by the Assessor in 1956 were or are to be utilized by the Assessor in the assessments for 1957 and subsequent years.” Cupples-Hesse Corporation v. Bannister, 322 S.W.2d 1. c. 823. It is also said by the plaintiffs that as to aggregate intercounty assessments and orders the proceedings are ex parte, that there is no provision or opportunity for taxpayer representation, a hearing, or an appeal and that therefore they are without adequate legal remedy or relief from administrative action. The argument may be sound in part, but if so it does not mean that there is no possible relief from intercounty valuations. Counties if not other political subdivisions are interested parties in tax valuations and assessments and in certain circumstances may secure judicial review and relief from some tax commission orders. May Department Stores v. State Tax Commission, 308 S.W. 2d 1. c. 757; In re St. Joseph Lead Co., supra. But here the plaintiffs claim that the proof has brought their case within the indicated requisities for relief, particularly as indicated in the second Cupples-Hesse case, 329 S.W.2d 696. While these cases and rules have a material bearing, as indicated, they are not necessarily determinative and it is not necessary to pursue them further and precisely illustrate their applicability or inapplicability to each of the plaintiffs’ specific claims.

The only witness offered by the defendant collector was an experienced, professional appraiser of St. Louis property. He examined the property of each of the plaintiffs and valued it in the light of his definition of “fair market value.” He compared their properties, as did some of the plaintiffs’ expert witnesses, to other comparable.property in the city and to what sales there had been of similarly located property. In addition, he employed plats, photographs, zoning maps and other material furnished by the city’s staff. In each instance he described in detail the size and location of the property, its improvements and related facilities and when requested supported his reasons for his opinions of value. The plaintiffs do not attack the valuations found by this witness, their only attack on him is that “The testimony of defendant’s appraiser as to the value of plaintiffs’ lands is inadmissible because it is at war and inconsistent with the Assessor’s theory of value.” (Emphasis supplied.)

These are the circumstances which the plaintiffs say establish the defendant’s theory of value and their specific point that the testimony of this witness is “inadmissible.” The plaintiffs took the deposition of the Assessor of the City of St. Louis and of the several deputy assessors who engaged in the valuations of their properties. The plaintiffs sought to show by the depositions of the assessor and his deputies that they did not know the “true value in money” of plaintiffs’ or any other property, that they did not assess the land at “actual cash value,” in short, that they did not assess “according to the norm prescribed by statute” and therefore the valuations and assessments were void. Even though they did not attempt to pursue an administrative remedy, they took the deposition of one of the members of the State Tax Commission. He was particularly examined with respect to the commission’s use of a “ratio study” in arriving at its intercounty order. When offered it was said that the commissioner’s deposition was “substantial evidence to attack the validity of that order” in that it showed over a period of years that property “in Missouri was assessed at 30% level, and property in St. Louis was being assessed at 36%.” These witnesses were not parties to this suit and, as stated, the defendant offered no witnesses other than the professional appraiser. It is not necessary, however, to say whether any of these depositions, particularly that of the member of the commission (Foster Bros. Mfg. Co. v. State Tax Commission, (Mo.) 319 S.W.2d 590, 594; State ex rel. Gottlieb v. Western Union Tel. Co., 165 Mo. 502, 65 S.W. 775), were properly admissible in evidence. As to the depositions of the assessor and his deputies the plaintiffs assert that “Deputy assessors are in privity with defendant Collector, hence their depositions may be used as admissions against interest.” Thus it is through “privity” and as “admissions against interest” that the plaintiffs claim to have established the “assessor’s theory of value” by which they now say he is conclusively bound.

It is not necessary to examine these contentions in detail, in so far as they relate to complaints of local action they have been disposed of inferentially. These witnesses were not in fact parties to this action, and whatever their relationship to other taxing officials and to the various political subdivisions, it certainly is not comparable to the privity and admissions of a truck driver and his employer in a negligence action as was the problem in the cited case of Roush v. Alkire Truck Lines, (Mo.) 299 S.W.2d 518, 521. Furthermore, in this suit in equity, the plaintiffs overlook the fact that neither the circuit court nor, if concerned with the testimony, the tax commission had to believe and accept at face value all the testimony adduced by them. Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d, 1. c. 701; May Department Stores v. State Tax Commission, 308 S.W.2d, 1. c. 761. Perhaps for the purposes of this appeal it is sufficient to say that the testimony of the defendant collector’s expert is not inadmissible for the reasons asserted here.

The noticeably significant thing about the testimony of the defendant’s expert appraiser is that whatever the assessor and his staff may have known of “true value in money” or “fair market value,” their final valuation of the plaintiffs’ properties for the purposes of taxation was indeed within the values attributed to them by this witness. To briefly illustrate from three of the properties only McCabe-Powers Body Company, Food Equipment Corporation and Be-Mac Transport Company. This witness fixed the value of the McCabe-Powers land at $237,-500, it was valued for tax purposes at $75,-760, less than 30% of its value. He fixed a value of $104,700 for the Food Equipment land, its assessed value was $30,550, slightly over 30% of its value. And for the Be-Mac Transport land he fixed a value of $429,900, it was assessed at $123,020, slightly more than 30% of its appraised value. Thus, according to this witness, the local taxing authorities, if not the tax commission, either intentionally or unwittingly assessed a large part of the plaintiffs’ properties at approximately 30% of their actual or true values, the percentage at which the plaintiffs claim other comparable property in the city and throughout the state is assessed. Thus, as to a large number of the properties, it would be neither proper nor possible for this court to substitute its judgment for that of the taxing authorities. But as to other of the plaintiffs’ properties, even these computations and comparisons are not conclusive, in view of the considerations noted throughout the opinion and reviewing the record under the noted limitations, it is not possible for this court to arrive at a finding and conclusion at variance with that inferentially found by the circuit court. In short, without further detailed analysis and illustration, the plaintiffs have not established fraud in the valuation and assessment of their properties. In all other respects than the defendant’s proof as to the value of specific property, the plaintiffs’ evidence and case fall within and are governed by the previous equity cases if not by those in which the administrative remedy was pursued, particularly St. Louis Electric Bridge Co. v. Koeln, supra; Brinkerhoff-Faris Trust & Savings Co. v. Hill, supra; Bank of Carthage v. Thomas, 330 Mo. 19, 48 S.W.2d 930.

For the reasons indicated the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Paul Arthur BAZADIER, Alias Paul Arthur Sparks, Appellant.
    No. 49296.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1962.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 11, 1962.

      Louis Wagner, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Lynn-B. Nelson, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Paul Arthur Bazadier has appealed from-a judgment, entered pursuant to jury verdict, imposing a sentence of six years confinement for the offense of assault with intent to rob with malice , aforethought. Section 559.180 RSMo 1959, V.A.M.S.

On February 9, 1961 about four o’clock in the afternoon three men, one of whom was appellant, ran into the Mock Hardware Store located at 1201 East 31st Street, Kansas City, Missouri. In the store at the time, in addition to Mr. and Mrs. Mock, were Mr. James Harrison, a clerk, Mr. Donley Eastley, the owner of a nearby business, and a customer by the name of Murray. The appellant ran past Mr. Mock, “pushed” Mr. Eastley and told him to “get down,” and then hit him on the head with some object. Mr. Eastley “went with the blow” and was not knocked down. He then “pushed” appellant and ran to the rear of the store “to get a rod,” apparently referring to a piece of gas pipe. The second man, identified as Myron Clay, was “scuffling” with Mr. Mock, and appellant and Clay started trying to hit Mr. Mock over the head. Mr. Harrison had a hammer in his hand and he hit appellant in the forehead with the hammer and knocked him down. Appellant then produced a gun and shot Mr. Harrison, but not fatally, and also fired a shot toward Mr. Mock which went between his legs without injuring him. In the meantime the third man, identified as Sylvester Granbury, fired his gun and it jammed. When he then started toward Mrs. Mock, Mr. Mock obtained a small pistol from beneath a counter and shot and killed him. Appellant and Myron Clay then ran from the store. In the melee Mr. Mock was shot in the back, but the source of the bullet was not established. At no time did appellant and his companions say that they wanted money or any property, and the only words spoken by any of them were those of appellant when he told Mr. Eastley to “get down.” No money or property was taken.

Appellant surrendered to the police on February 13, 1961, and at that time, as indicated by a photograph, he had a well-defined round bruise in the middle of his forehead about an inch in diameter.

Appellant testified and offered evidence in support of an alibi. His evidence, if believed, established that at the time of the shooting he was with his uncle watching television. Appellant’s explanation of the bruise on his forehead was that on February 7 while he was placing a fan belt on his mother’s automobile she engaged the starter and the fan blade struck him in the forehead.

Appellant has filed a brief in this court, and he contends in his first point that “there was no substantial evidence to support a conviction” for assault with intent to rob with malice. He assigns as reasons therefor that (1) there was no evidence of any robbery, attempted robbery or intent to rob; (2) there was no evidence of any felonious taking or attempt to take money or any thing of value; (3) there was “no evidence that [Floyd] Mock was put in fear of his life; rather the exact converse was true;” and (4) the evidence “could only support a conviction for common assault, and such evidence, being equally consistent with innocence as with guilt of appellant, requires reversal.”

Appellant’s only argument under this point is limited to a portion of the fourth reason set out above. He says that the fact that “the evidence is as consistent with appellant’s innocence as with his guilt is amply demonstrated by the fact that the primary and apparently conclusive factor in establishing the identity of appellant as one of those present was the mark on appellant’s forehead.” He then attempts to demonstrate that his explanation of the presence of the bruise was more reasonable than that he was struck on the forehead with a hammer.

In determining whether a sub-missible case was made we accept as true all the evidence tending to show appellant’s guilt, together with all favorable inferences reasonably to be drawn therefrom. Appellant’s contrary evidence is to be disregarded. If a submissible case is thus presented, the truth of the testimony and the reasonableness of the inferences to be drawn therefrom were matters exclusively for the jury. State v. Brewer, Mo., 325 S.W.2d 16, 20. In addition to the evidence concerning the bruise on appellant’s forehead and that Mr. Harrison struck him on the forehead with a hammer, appellant was positively identified by Mr. Harrison, Mr. Mock and Mr. Eastley as one of the three men who ran into the store and did some of the shooting. It is evident that the identity of defendant as one of those who made the attack on Mr. Mock was a jury question.

Although the other contentions in the first point are presented without argument, we shall now consider them except the contention that the evidence would support only a conviction of common assault. That will be considered later. In order to commit the offense of assault with intent to rob with malice it is not essential that the robbery be completed or that any money or thing of value actually be taken. State v. Brown, Mo., 245 S.W.2d 866. In addition, the offense of robbery in the first degree may be committed “by violence to his person, or by putting him in fear of some immediate injury to his person.” Section 560.120 RSMo 1959, V.A.M.S., State v. Van Horn, Mo., 288 S.W.2d 919. Therefore, to commit the offense of assault with intent to rob with malice it is not essential that the evidence establish that the victim was- in fact placed in “fear of his life,” as appellant apparently contends.

The only serious question is whether there was sufficient evidence from which the jury could find an intent to rob. This intent, by express words, is made an essential element of the offense and must be proved. State v. Arvin, Mo., 123 S.W.2d 182. There was no property actually taken and no verbal demand therefor was made. The intent to rob, therefore, cannot in this case be inferred from the fact that property was actually taken or demanded. However, intent may and generally must be established by circumstantial evidence, and it is the unusual situation where there is direct evidence of the intent of a person when charged with the commission of a crime such as in this case. State v. Chevlin, Mo., 284 S.W.2d 563; State v. Fulkerson, Mo., 331 S.W.2d 565, 572. The evidence here was that Mr. Mock and the others in the store did not know the three men who came running into the store, and that the only time any of them previously had been in the store was about thirty minutes earlier when appellant and Myron Clay purchased six cents worth of bolts. The manner of their entry and their immediate unprovoked assault on Mr. Mock and others present are circumstances inconsistent with an inference that they intended to purchase something, visit with those present, look at the merchandise or engage in any other lawful activity. Their conduct, however, is consistent with the reasonable inference that if Mr. Mock and the others had not taken up arms against them, either by violence to the person or by placing in fear they intended to take money or property belonging to Mr. Mock. In fact, that is the only possible reasonable inference which may be drawn from their conduct, and for that reason the circumstances are inconsistent with any reasonable theory of innocence. There was sufficient evidence to support a conviction of the offense charged and of which appellant was found guilty.

Appellant’s next point is that prejudicial error resulted from certain remarks of the trial court made to the jury. The transcript shows that the jury retired to start its deliberations a few minutes before three o’clock. At 4:45 o’clock the trial court inquired from the foreman of the jury whether or not it appeared that the jury would be able to reach a verdict, and the foreman replied that it did not “at the present.” The court then advised the jury “that after a case of this character is submitted to you, you can’t separate, you will have to remain down here tonight in a hotel room, and I wanted you to know that so that we could begin to make our plans accordingly.” The court also commented on the desirability that the jury reach a verdict and that each member should not close their minds to ideas other than their own but should give consideration to the other man’s thinking. The court also stated that he was asking the jury to continue their deliberations, and that if a verdict was not reached in the next thirty minutes “I expect we will send you out to dinner, and of course, you will be in the custody of the sheriff, and you won’t be permitted to separate.”

No objection whatever was made to any part of the remarks of the trial court, and the jury was permitted to return to the jury room for further deliberations without there being made any claim of prejudice or request for corrective action. The first claim of prejudice was made in the motion for new trial.

State v. Whitaker, Mo., 275 S.W.2d 316, involved a similar factual situation concerning comments of the trial court to a jury on the desirability of reaching a verdict which is identical in principle. This court held: “But, defendants, in effect, consented to the remarks [of the trial court] by making no objection whatever, and took their chance with the jury. They ‘cannot thus gamble on a favorable verdict’ by permitting the trial to go to conclusion without objection, and then contend for the first time in their motion for new trial that the court committed reversible error.” See also State v. Mosier, Mo., 102 S.W.2d 620; State v. Pittman, Mo., 221 S.W.2d 163; State v. Johnson, Mo., 248 S.W.2d 654; State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751. The above rule applies to this case. However, we have reviewed carefully all the remarks of the trial court to determine whether there is any basis for invoking Supreme Court Rule 27.20(c), V.A.M.R., which had not been adopted at the time of State v. Whitaker. We find the Rule not applicable because not only is there no “plain errors affecting substantial rights,” but the remarks of the trial court were not improper under the circumstances, and would not have resulted in a reversal of the judgment even if the alleged error had been preserved for appellate review. See State v. Baker, Mo., 293 S.W.2d 900; State v. Roberts, Mo., 272 S.W.2d 190; State v. Stegall, Mo., 327 S.W.2d 900.

Appellant next contends that the trial court erred in refusing his request for an instruction on common assault. He cites and relies on Section 556.230 RSMo 1959, V.A.M.S., which provides that “Upon an indictment for an assault with intent to commit a felony, or for felonious assault, the defendant may be convicted of a less offense; and in all other cases, whether prosecuted by indictment or information, the jury or court trying the case may find the defendant not guilty of the offense charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him.” Common assault is, of course, a lesser included offense of assault with intent to rob with malice aforethought, State v. Higgins, Mo.App., 252 S.W.2d 641, but although, Section 556.230 validates “a conviction for a lesser degree of the crime when all the evidence showed the defendant was guilty of a greater, if any * * *; still he is not for that reason entitled to instructions on the lesser degrees.” State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077. This question was recently ruled again by this court in State v. Burns, Mo., 328 S.W.2d 711. In that case the accused was charged with assault with intent to kill with malice aforethought, and on appeal he assigned as error the refusal of the court to instruct on assault with intent to kill without malice aforethought. We quote from the opinion in that case to show the applicability of the ruling because of the unusual similarity in the factual situation there and here. “He [the appellant in that case] seems to take the position that in a prosecution for assault with malice aforethought it is mandatory, under Section 556.230, for the trial court to instruct on the lesser offense of assault without malice. We do not agree. It is well established that an instruction on the lesser offense is required only if there is evidence to support such a submission. * * * The evidence is that three men, masked and armed, approached unannounced and entered the office of Mr. Gazzoli. They did not orally announce their purpose, but their acts and conduct spoke unmistakably of malicious and unlawful intent. There was positive evidence that they all shot at Mr. Gazzoli and that defendant fired the first shot. At least two of his bullets were effective. The evidence indicates an assault with malice aforethought, and no other interpretation of their conduct is reasonably possible.” The evidence in this case indicates an assault with malice aforethought, and there is nothing to justify a finding only of common assault. Therefore, appellant was not entitled to an instruction on common assault, see also State v. Brown, Mo., 245 S.W.2d 866, and of course he is in error in contending in his first point that the evidence would support only a conviction for common assault.

The last contention in appellant’s brief is that the designation of him as “Alias Paul Arthur Sparks” was prejudicial. We find that no objection whatever was made to this designation at the trial or in the motion for new trial. Therefore, the matter is not preserved for appellate review.

The above disposes of all points in appellant’s brief, and pursuant to Supreme Court Rule 28.02, V.A.M.R., we need not review those assignments of error in the motion for new trial not briefed. There is no challenge in the brief as to any of those matters for which no assignment of error in a motion for new trial is necessary for appellate review, but notwithstanding this we have reviewed them. We find that the information is in proper form and charges the appellant with the offense of assault with intent to rob with malice aforethought; he was properly arraigned; the verdict is in proper form; the sentence imposed is within the prescribed limits, allocution was granted and the judgment is in due form and responsive to the verdict.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.