author: BARRETT, Commissioner.

text:
    Emil Earl CORTE, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 49604.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.

      William M. Corrigan, V. James Ruddy, St. Louis, for appellant.
    Barnhart & Sommers, Don B. Sommers, St. Louis, for respondent.
   BARRETT, Commissioner.

On March 12, 1957, at 5:45 p. m. the plaintiff Emil Corte parked his automobile on Grand Avenue and proceeded on foot across the street to a drug store on the northeast corner of Natural Bridge Road and Grand Avenue. As he crossed the street, watching traffic, his right foot struck something and he fell on the pavement between the streetcar tracks and was injured. To recover damages for his resulting personal injuries Corte instituted this action against the City of St. Louis and the St. Louis Public Service Company. At the close of his evidence the plaintiff voluntarily dismissed the action against the city and a jury returned a verdict of $22,500 against the streetcar company. Four matters are briefed and argued upon this appeal by the streetcar company; one, that the trial court erred in not directing a verdict for the defendant company, two, that the court erred in admitting in evidence one section of the city charter, three, that the court erred in giving instruction 5, and four, that the verdict is excessive and should be reduced by substantial re-mittitur.

The contention that a verdict should have been directed is a three-pronged argument and inferentially involves the claim that the court erred in permitting counsel to read to the jury one section of the city charter. The defendant contends that there is no “substantial evidence” that defendant had either actual or constructive notice of the defect and that there is no evidence to support a finding that “plaintiff was caused to fall as the result of a defect in the pavement between the streetcar rails.” As to the latter point it is said that plaintiff did not know what caused his fall, that after he fell “he concluded that a defective portion of the pavement caused his fall.” But the first point in this connection is that there is no evidence that defendant owed “any duty to the plaintiff at the time he fell.” As stated, plaintiff introduced in evidence Article 19 of the charter entitled “Franchises,” particularly Section 4, “Maintenance of Streets by Street Railroads” which requires street railroad companies “to keep the street between the rails and between the tracks and to the extent of at least 12 inches outside of each rail in perfect repair and as nearly on a level with such rails as practicable.” It is said that this provision of the charter is only applicable to the relationship between the city and the defendant and does not set out any duty of the defendant to third parties. There was an ordinance, set forth in plaintiff’s petition, requiring streetcar companies to maintain that portion of the street between their rails and it is urged that plaintiff’s failure to introduce the applicable ordinance defeated its cause of action.

The appellant’s argument with respect to this provision of the charter is somewhat ingenious but it is not necessary to a disposition of this appeal to consider its several rather interesting academic facets. Before the plaintiff closed his case counsel for the parties entered into this stipulation, “in lieu of proof” * * * (defendant) “is orally stipulating with me that the Public Service Company was on March 12, 1957, and prior thereto, operating streetcars on their tracks on North Grand Avenue at the place alleged in the petition, pursuant to the Charter in the City of St. Louis, that has been read into evidence.” Under that stipulation there was, of course, no further obligation on the plaintiff to establish the defendant’s duty to the plaintiff (Jenkins v. Wabash Ry. Co., (Mo.), 322 S.W.2d 788) and the defendant was, by reason of the charter, under a duty to maintain the area of the street between its tracks. Asmus v. United Railways Co., 152 Mo.App. 521, 134 S.W. 92; Burow v. St. Louis Public Service Co., 339 Mo. 1092, 100 S.W.2d 269; Vanacek v. St. Louis Public Service Co., (Mo.), 358 S.W.2d 808, 811. After the initial objection to the admission of the ordinance, and after the case was dismissed as to the city, there were no motions to strike the charter provision and the defendant offered no instruction limiting the purpose and effect of the charter. Scott v. Missouri Ins. Co., (Mo.), 233 S.W.2d 660; State ex rel. Kansas City Public Service Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58. And after the initial introduction of the charter the subject of maintaining the street in “perfect” repair was not again referred to. In plaintiff’s argument as well as in his instructions the defendant was said to be under the duty “to exercise ordinary care to maintain the public street * * * in between the defendant’s streetcar tracks in a reasonably safe condition for persons who walked over said portion of the street.’” As indicated, in the circumstances of this record, there was no error in the admission of the charter provision and the defendant was not entitled to a directed verdict for plaintiff’s failure to prove its duty to the plaintiff. Huff v. St. Joseph Ry., Light, Heat & Power Co., 213 Mo. 495, 111 S.W. 1145.

In so far as pertinent to the objections made here, these were the questions and answers relating to his fall:

“A. Yes, sir, I looked around to see what I had fallen over.
“Q. What did you see?
“A. I saw cracks in the pavement.
“Q. Can you describe those cracks to us?
“A. Well, they appeared to be an inch to maybe three inches or so wide and there was a raised spot about two or three inches, something like that.
“Q. When you looked at these cracks, what kind of appearance did they give?
“A. Well, they were — edges were rounded off— * * * There was a crack in the concrete. I guess — excuse me — there was a crack in the street and there was a raised spot there and I fell.
“Q. Now, Mr. Corte, you started to say something about the edges of the -cracks.
“A. They were jagged..
“Q. Were there any worn spots on them?
“A. Worn spots, yes, sir.”

In view of this testimony the case is not as if the plaintiff had not known what he had fallen over and had returned to the place of his injury two or three months /ater and “concluded” that some object he then found was the thing that caused him to fall (Davidson v. Missouri Orpheum Corp., 236 Mo.App. 1025, 161 S.W.2d 707), and his description of the cracked, raised concrete was not a mere conclusion. Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303. There were photographs of the cracks and the raised place in the pavement between the tracks. The plaintiff said they were “worn” and “jagged” and upon these circumstances it was for the jury to say whether the condition had existed for such length of time as to give the defendant actual or constructive knowledge of the defect and its hazard. Jensen v. Kansas City, 361 Mo. 967, 238 S.W.2d 305; Wormington v. City of Overland, (Mo.App.), 224 S.W.2d 590; Gelhot v. City of Excelsior Springs, Missouri, (Mo.App.), 277 S.W.2d 650. It is not claimed here that the defect was so slight or trivial that injury could not be anticipated, and as to danger, negligence and liability the circumstances were for the jury. Rittershouse v. City of Springfield, (Mo.) 319 S.W.2d 518; Genova v. Kansas City, (Mo.App.), 254 S.W.2d 38.

Against instruction 5 it is ttrged that it is erroneous in that “it assumed the essential element of whether or not the street was in a dangerous and not reasonably safe condition,” there is no other objection to the instruction. Instruction 5 was the principal instruction and hypothesized the facts and the theory upon which plaintiff relied. To establish its claim of assumption of fact the appellant excerpts from the instruction two quotations: “said portion of the public street in between the defendant’s streetcar tracks was in a dangerous and not reasonably safe condition” and “the aforesaid dangerous condition in the public street.” Unfortunately these excerpts, extirpated from context, distort the matter. Hunt v. Kansas City, 345 Mo. 108, 111, 131 S.W.2d 514, 515. As urged, these two quotations are not preceded by “if you so find” or other language leaving or submitting the matter to the jury, however, there are six other “if you finds,” and one or more “therebys” and “that there-fores” and they are so interspersed throughout the instruction as to avoid the charge of assumption of fact. Kelly v. Kansas City Public Service Co., (Mo.), 335 S.W.2d 159. It is not necessary to encumber this opinion with the whole instruction to demonstrate that the quotations are out of context and in any event, are not comparable to an instruction which said that defendant was “bound to keep its premises * * * in a reasonably safe condition for the use by plaintiff” (Trautloff v. Dannen Mills, Inc., (Mo.App.), 316 S.W.2d 866; or to the statement “have slowed down more than he did” thus assuming that he had slowed down, as in George v. Allen, 362 Mo. 971, 245 S.W.2d 848. Since assumption of fact is the only objection to the instruction it is sufficient to say that it is a rescript of instructions which were upheld against a number of objections in Pohl v. Kansas City, (Mo), 238 S.W.2d 405; Hunt v. Kansas City, supra, and Jensen v. Kansas City, supra.

As a matter of fact the essentially meritorious problem upon this appeal is whether the verdict of $22,500 is excessive. After falling the plaintiff continued his trip, received first aid at the drug store, returned to his automobile, attended a meeting that evening and then went home. He had a headache, however, and there was a swelling in the hack of his head. The next day he consulted a physician, X-rays were taken and rest prescribed but the headaches continued, there was double vision, blackouts and nausea and he returned to his family doctor and was again hospitalized for a few days. Finally he was referred to Dr. Smolik, a neurological surgeon. Dr. Smol-ik correctly diagnosed the plaintiff’s injury and accompanying symptoms as a "subdural hematoma.” The doctor drilled two holes, "posterior-parietal openings” between the size of a nickel and a quarter, in the back of his head, inserted tubes and drained the hematoma. The holes, of course, remain and are permanent though covered with “smooth fibrous tissue.” But, admittedly, the headaches and all symptoms have disappeared. Corte was dismissed by Dr. Smolik on August 9, 1957, and has had no difficulty with his head since. On direct examination these were the questions and answers to and from the doctor: “Q. what was the progress of Mr. Corte, following? A. He did very well. Q. In your opinion, did you affect (sic) a complete cure of that hematoma? A. Yes, sir.” As a result of his injuries plaintiff was off from work from March 12 to March 18, from March 22 to April 15, from April 29 to May 20 and from May 28 to August 12, 1957. There may have been a loss of earning of $1,877.02, the plaintiff in support of the verdict does not point to the special damages. His hospital bills totaled $662.30, nurses $100, his family doctor $103 and Dr. Smolik’s bill was $750. Thus, there were special damages of approximately $3,500.

Needless to say, the court has not been cited to any comparable cases and research has revealed no instances of similar injuries and losses. The posterior-parietal openings, even though covered with “smooth fibrous tissue,” are of course permanent, but there is no evidence from any source that plaintiff will suffer any pain or disability and there is no claim here that he is in greater danger of brain damage in the event of another head injury, as was the case in Hackett v. Wabash Railroad Co., (Mo.), 271 S.W.2d 573. The case nearest in point, the only one that brings into play the general rule of uniformity of verdicts, is Gooch v. Lake, (Mo.), 327 S.W.2d 132, decided in 1959. There, as summarized in the syllabus, a 20-year old athlete suffered contusion and laceration of left eye, multiple contusion of left thorax and left shoulder, comminuted fracture of left clavicle, moderately severe contusion of brain and fracture of basilar portion of skull. There the plaintiff said, “as of today, I have no permanent injury,” there were special damages totaling $2,370.77, and the court reduced that part of the verdict referable to compensation for the injury, $12,629.23, $6,500. As indicated, the posterior-parietal openings are permanent but there is no proof of other or resulting disability and the doctrine of uniformity rather plainly indicates that this verdict is excessive by $8,500. Therefore, if plaintiff will, within 15 days, enter a remittitur of $8,500, the judgment will be affirmed as thus reduced; otherwise, the judgment will be reversed and the cause remanded.

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.


source: Caselaw Access Project

license: Public Domain

text:
    GATEWAY CHEMICAL COMPANY, Inc., Appellant, v. R. Dinwiddie GROVES et al., Respondents.
    No. 49551.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Gordon, Sanders, Adams & Niewald, Lewis W. Sanders, McKenzie, Williams, Merrick, Beamer & Stubbs, Jack G. Bea-mer, Kansas City, for appellant.
    Harry P. Thomson, Jr., Norman M. Tern-pel, Kansas City, Shughart, Thomson & Kilroy, Kansas City, of counsel, for respondent R. Dinwiddie Groves.
    Douglas Stripp, Robert B. Olsen, James F. Duncan, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City, of counsel, for respondents Harvey and Sage.
   BARRETT, Commissioner.

R. D. Groves and the widows of his deceased brothers own the building known as 1412-1414 Walnut Street, Kansas City. Since 1936 the Groves have leased the building to the plaintiff, Gateway Chemical Company, a manufacturer of metal and floor polish, sweeping compound and other “maintenance supplies.” In the written leases, the last five-year renewal ending on December 31, 1960, the lessors, Groves, agreed to keep and maintain the exterior of the building and “the heating plant.” In August 1957, Martin’s Mid-West Boiler and Welding Company made a written proposal to Groves to repair the boiler in the basement of the building. In the main the work consisted in removing part of the brickwork from around the boiler and then cutting off with an acetylene torch the old metal from the “mud leg” of the firebox and replacing it with new metal. On September 17, 1957, about 11 o’clock in the morning, and while the boiler work was in progress, there was a fire, particularly in the basement of the building, and Gateway Chemical Company sustained an alleged loss of property and business of $80,000. To recover these losses Gateway instituted this tort action against the Groves, the owners of the building, Martin’s, the contractor to repair the heating system, and its boilermaker, Russell J. Sage. The trial court dismissed the action and upon appeal to this court, Gateway Chemical Company v. Groves, Mo., 338 S.W.2d 83, it was held that the allegations of the petition met the essential tests for the application of the res ipsa loquitur doctrine. In the course of its decision the court again repeated the quotation: “ ‘The mere occurrence of a fire does not raise a presumption of negligence.’ ” But, the court said, “It will be noted that the petition alleges that defendants ‘were in complete control and custody of the heating plant in the said premises, and of an acetylene torch being used by defendant Sage * * * [and] as a direct result of the negligence of the defendant owners and the defendant Boiler Company * * * [and] of the defendant Sage, in the handling and operation of said acetylene torch, a fire was started in and about the heating plant * * We think it is clear that (1) a fire is not ordinarily started by the operation of an acetylene torch if the operator in charge thereof uses due care * * * (2) the acetylene torch which is alleged to have started the fire and the area where the fire started were unequivocally alleged to have been under the complete control and custody of defendants * * * and (3) since the offending instrumentality and the area where the fire started were in the custody and under the control of the defendants at the time the fire started they possess superior knowledge or means of information as to the cause of the occurrence * * (Italics supplied.) Upon the trial of the cause a jury returned a verdict in favor of the defendants and now the essentially meritorious question is whether the circumstances adduced upon the trial permit the inference of negligence as alleged in starting and causing the fire.

As to the respondents Groves it stands admitted that it was their duty to maintain the heating plant and that pursuant to that obligation they engaged Martin’s to make certain repairs on the boiler. It also stands admitted that during the time the repairs were being made there was a fire, for the most part in the basement, but one of the sharply contested issues was just where the fire was first seen, and presumably originated. The plaintiff claimed that the “principal part of the fire” was in the northwest corner of the basement in the vicinity of the boiler, as the plaintiff’s principal witness, the plant foreman, said, in the joists “coming up from the landing underneath the floor, the first floor. * * * the fire licked up from under the first floor joists from the north. * * * It was coming up from under the floor; the ceiling of the basement or the floor joists of the first floor, and it was coming directly from under the floor, just going across and up.” Positively and emphatically, he said, “There was no fire anywhere near the steps because the fire was up to the ceiling of the basement rather than to the base of the steps. It was coming up under from the ceiling of the basement, or under the floor of the first floor.” According to him, the firemen went down the steps and turned the hose on the floor where the flames were coming up, at that time, he said, there was no fire on the steps. But the first knowledge this witness had of the fact of the fire was when Sage came running up the steps to the first floor and said “I like to got trapped. * * * The place is on fire.”

The defendants claimed that the fire was first seen and originated underneath the stairway, a portion of the building under the control of the plaintiff. Sage said that underneath the stairway there were stored a lot of paint cans, clothing, rags, paint brushes, mops and brooms. He said that the boiler work had progressed to the point that he was inside the firebox using his cutting torch and a pressed board as a shield against the “dingle berries.” He was cutting the metal on the south side of the firebox and went outside to get a scraping tool, there was then no fire. He returned and had been working about five minutes when he felt the draft through the firebox change from cool to hot, and, he said, “I put my torch out, turned my torch out, climbed out of the firebox, went out of the boiler room, went out of the boiler room door, then I could see the fire.” Sage said that there was no fire to his left or to his right, but, he said, “There was fire under the stairs and behind the stairs in a — I guess it was an elevator shaft.” Later, he observed, “This stairwell had created a draft and this area right in here (indicating) was just an inferno of fire, shooting up these stairs. It was hitting this landing here, coming plumb around, which is a ceiling of the first floor, coming plumb around the side, out here and then this was coming through between the steps and sweeping upwards.” Sage said that underneath the stairs he could see the open paint cans and paint brushes burning. The first person he encountered on the first floor was a secretary, and next the plant foreman, Reeves, and “I says, ‘The basement is on fire,’ and I think I says — I told him then that I had been trapped and almost got my a-s-s burned off.”

Thus plainly it was established that there was a fire and it may be assumed that the plaintiff’s evidence reasonably establishes that the fire originated in the area of the heating plant. But, “As to fires, the general rule is the mere occurrence of a fire does not raise a presumption of negligence though ‘the doctrine (res ipsa loquitur) has been held to apply where * * * the circumstances under which the fire originated and spread are such as to show that defendant or his servants were negligent in connection therewith.’ ” Kapros v. Pierce Oil Corporation, 324 Mo. 992, 1002, 25 S.W.2d 777, 781, 78 A.L.R. 722. And as to an acetylene torch there are these general rules: “It has frequently been held or recognized that liability may be imposed upon the user or his employer for injury or damage resulting from fire started by the use of a blowtorch, at least upon a showing of negligence on the part of such user or his employer, but there is no liability in the absence of negligence. * * * However, the user of a blowtorch or his employer is not liable for injury or damage caused by fire, in the absence of sufficient proof of causal connection between the use of the torch and the fire. * * * However, the use of a blowtorch prior to a fire does not result in liability for injury or damage caused by the fire, in the absence of negligence on the part of the user of the torch.” Annotation 49 A.L.R.2d 368, 371, 374. These principles, including in appropriate circumstances the applicability of the res ipsa loquitur doctrine, were all tacitly recognized when the case was here before and the problem was whether the petition stated a cause of action. Gateway Chemical Company v. Groves, supra. And while the facts prerequisite to a res ipsa loquitur submission may be established circumstantially, as the court said of a capsized boat, “it is incumbent upon the plaintiff seeking to invoke it (res ipsa loquitur) to show by facts and attendant circumstances the existence of the conditions essential to the application of the doctrine.” Charlton v. Lovelace, 351 Mo. 364, 370, 173 S.W.2d 13, 16. And here the problem is whether from the attendant circumstances a jury could reasonably find the essence of the plaintiff’s hypothesis that “defendant Sage was operating said acetylene cutting torch in cutting the south inside wall of the boiler or heating plant referred in the evidence in such a manner as to directly cause a fire in the basement of the building at 1412-14 Walnut Street, then you are instructed that such facts, if you believe them to be true, are sufficient circumstantial evidence to warrant a finding by you that defendant Sage was negligent * *

Just prior to the discovery of the fire, Sage, admittedly, was using the acetylene torch in the firebox. He was not employing a welder’s shield against the sparks, he was using a pressed board and the metal of the firebox which he said was sufficient. But there is no fact or circumstance from which it was even a possible inference that there was a defect in the torch or its attachments or that Sage, as in Automobile Insurance Co. of Hartford v. J. C. Nichols Co. (Mo.App.), 309 S.W.2d 698, had gone to another part of the building to perform some task and in five or ten minutes “returned to the first floor and found that 'the acetylene tank was on fire and the hose of the cutting torch.’ ” Sage was repeatedly required to describe the manner in which he approached and went about the task of cutting and removing the metal from the mud leg but there was no question or answer suggestive of negligence in the use or operation of the torch. According to him, when he felt the warm draft, he turned the torch off and thereafter saw the fire beneath the stairway to the first floor. In short, other than the mere fact of the fire, there is no attendant circumstance from which negligence in connection with the acetylene torch or its use is a permissible inference hence permitting or invoking res ipsa loquitur (Triple A Machine Shop v. Waterman Steamship Corp., 9 Cir., 221 F.2d 916; Rockwood & Co. v. American President Lines, D.C., 68 F.Supp. 224; Fry v. Jordan Auto Co., 224 Miss. 445, 80 So.2d 53) unless it is to be found in the testimony of plaintiff’s witness Davis.

At one time or another Davis, an itinerant boilermaker, had been employed by Martin’s — it was denied that he was employed during the calendar year 1958. Davis, however, said that he was employed by Martin’s “off and on from 1953 until 1959.” He did not remember the month or the day but he said that one morning in 1958 Sage said, “Well, this is the day” meaning or referring to the day on which he was going to a lawyer's office — presumably to give a deposition. Davis testified, “And I said, ‘Well, what day?’ and he said, ‘Well, didn’t you know that I burned half of Kansas City down?’ * * * And I said, ‘No, I didn’t,’ and I said, T just come back into town’ and he says, ‘Well, you remember the Gateway Chemical Company ?’ * * * So he says, ‘I had a bottom there,’ and then I said, ‘Well, what happened?’ He said, ‘Well I went down there. There was a hole in the wall, and I cut this sheet, outside sheet, and then I go around and I start cutting on the inside, and after a while this heat hit my shoulder, and I crawled out of the firebox and I run outside and,’ he says, ‘there was fire everywhere.’ ” As to a shield and its use there were these questions and answers: “Q. * * * in your conversation with Mr. Sage was the subject of a shield mentioned? A. Yes, there was, but he said his lawyer would find one. * * * The Court: Said ‘his lawyer would find one?’ Isn’t that what you said? A. Yes, sir. Q. * * * Was that the extent of the conversation on the shield? A. And then he said — he laughed and he said, ‘Hah! What shield ?’ ”

In considering the evidence permitting the applicability of res ipsa loquitur this court has “no right to weigh the evidence, but it is within our province to determine whether it is substantial, and to point to inferences that may be drawn therefrom.” Ultimately the problem, quoting from the same case, is whether “there is anything indicating the defendant’s business was being conducted at the time other than in the usual manner; and there is nothing to show the equipment was defective, the surroundings faulty, or that the accident otherwise was prima facie due to the defendant’s negligence.” Kapros v. Pierce Oil Corporation, 324 Mo. 1. c. 1003, 1004, 25 S.W.2d 1. c. 781, 782. Davis’ testimony, the substance of which has been quoted, may be subject to more than one interpretation, serious or facetious, but it is not necessary here to carefully analyze his evidence and indicate the permissible inferences. Quotations from Hendricks v. Weaver (Mo.), 183 S.W.2d 74, are so compellingly apposite to the circumstances of this case as to demonstrate that Davis’ evidence is not of the probative force necessary, considered with all the other circumstances, to invoke application of the res ipsa loquitur doctrine and ultimately permit the finding of negligence. In that case it was claimed for a tenant or her deceased guest that res ipsa loquitur was applicable to an exploding fuel tank and heater and a child’s resulting death. In holding that the evidence was insufficient “to make out a prima facie case for plaintiffs under the res ipsa loquitur doctrine” the court said, 183 S.W.2d 1. c. 76-77:

“While there is evidence that the fire was first discovered in the vicinity of the front stairway, there is no evidence that it started in the private office where the stove was located; nor is there any evidence from which an inference can be drawn that the fire started from the stove or from oil. * * * Absent evidence that the oil stove and fuel tank exploded, causing the fire, the mere fact that the fire originated in that portion of the building in the possession and control of the defendants was wholly insufficient to support an inference that the fire was due to the negligence of the defendants. * * * There is no evidence that defendants’ business, at the time of and prior to the fire, was not being conducted in the usual and ordinary manner. There is no contention that the evidence shows any defective equipment, faulty surroundings, or other circumstances sufficient to make out a prima facie case that the fire was due to defendants’ negligence. * * *
“Appellants rest their case squarely on the proposition that ‘an explosion and fire was caused by said heater.’ Even if it be assumed that the oil stove was in operation immediately preceding the fire, there is no evidence from which an inference may be drawn that the fire which caused the injury and death of plaintiffs’ daughter originated from the fire in the stove or that the fire, which damaged the building and caused the injury and death complained of, ‘was caused by said heater.’ ”

In short, Davis’ testimony and all the circumstances considered, it may only be said that this record leaves the inference of negligence in starting the fire to surmise and conjecture. “Whether a case be one depending upon res ipsa loquitur or upon a charge of specific negligence, it is equally true that no case is made where the existence of negligence is left wholly to conjecture, * * Brown v. St. Louis County Gas Co. (Mo.App.), 131 S.W.2d 354, 360.

In these circumstances judgment was appropriately entered for the defendants and is, therefore, 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.

text:
    Edward E. COLE and Viola O. Stetina, Appellants, v. Catherine SMITH et al., Respondents.
    No. 49650.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Hal B. Coleman, Coleman, Ross & Cekov-sky, Clayton, William L. Mason, Jr., St. Louis, for appellants.
    Austin C. Knetzger, David E. Horn, William P. Chulick, St. Louis, Oliver F. Erbs, Kirkwood, for respondents.
   STOCKARD, Commissioner.

Plaintiffs have appealed from the judgment of the Circuit Court of the City of St. Louis dismissing their petition to contest the validity of the will of Rose Ott. The will purports to devise to persons other than plaintiffs the title to real estate which in the absence of the will would descend to plaintiffs as heirs at law of the testator. For this reason title to real estate is involved. Board of Trustees of Methodist Church v. Welpton, Mo., 284 S.W.2d 580.

Two church organizations and nine individuals were named in the will as beneficiaries and all were made defendants. Apparently personal service was obtained on all the defendants except Della Mason and Alvina Held. On December 22, 1961, plaintiffs filed two affidavits for service by-publication. One was executed November 14, 1961, the day the petition was filed, and it was stated therein that “Alvina Held resides in the City of St. Louis, State of Missouri, but that her present whereabouts are unknown, and cannot, after due diligence, be found within the state.” The other affidavit, executed on December 20, 1961, contained the identical statement concerning Della Mason. An order of publication of notice was issued on December 22, 1961, and the notice directed to Alvina Held and Della Mason was published, the last of the required four publications being made on January 24, 1962, seventy-one days after the petition was filed.

On April 11, 1962, Alvina Held and Della Mason filed a motion to dismiss the petition pursuant to Section 473.083, RSMo 1959, V.A.M.S., which provides in paragraph 4 thereof that in any action to contest the validity of a will “the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within sixty days after the petition is filed, the petition, on motion of any defendant, duly served upon the petitioner or his attorney of record, in the absence of a showing by the plaintiff of good cause for failure to secure and complete service, shall be dismissed by the circuit court at the cost of petitioner.”

Alvina Held and Della Mason were legatees, and were necessary parties to an action to set aside the will. Blatt v. Haile, Mo., 291 S.W.2d 85, 89. Neither was personally served, and apparently no summons directed to either was ever issued. At least, no non est return was made. Al-vina Held then resided, and for many years had resided, at 5718 Finkman Avenue, St. Louis, Missouri, and she was listed in the St. Louis City Directory and shown to be residing at that address. Della Mason then resided, and for many years had resided, at 2231 Brown Road, Overland, St. Louis County, Missouri. She was listed in the telephone book as “Mrs. D. Mason,” and she was also listed in the St. Louis County directory and shown to be residing at the above address. The application for letters testamentary in the estate of Rose Ott on file with the Probate Court of the City of St. Louis, contained the names of Alvina Held and Della Mason as legatees under the will, and the address of each was there shown to be as above stated. During the sixty day period following the filing of the petition both of these defendants were at their respective places of residence and subject to being personally served. Apparently, the only effort to locate Alvina Held and Della Mason for purposes of obtaining service on them was made by the secretary of plaintiffs’ counsel at his request. She checked the files in the office where she worked, “checked the phone books” and a “street directory.” She also called various persons listed under the name of Mason or Held but did not locate these two defendants. She did not know how many calls she made, but as she said, “it totaled probably four days phone calling back and forth because I located numbers and I called, and I would get no answers, and then I would try the next day.” She did not consult the St. Louis City or St. Louis County directories because “we didn’t have either one of those books in our office,” and she did not check the file in the Probate Court of the City of St. Louis pertaining to the estate of Rose Ott. She “couldn’t say for sure” whether she saw the listing in the telephone directory for “Mrs. D. Mason” because she was “looking for Della Mason.”

The trial court sustained the motion of Alvina Held and Della Mason and dismissed the petition. Appellants assert on this appeal that service by publication is a “separate and permissive” method of obtaining service, Civil Rule 54.08, V.A.M.R.; that the order of publication was made on December 22, 1961, but “the clerk [of the circuit court] made no copy available for the printer” until January 2, 1962; that “this Court knows that this was the Christmas and New Year’s holiday season, likely to be celebrated by Christians in a manner appropriate to the customs prevailing in St. Louis, Mo.;” and that this constituted “good cause for failure to secure and complete service,” or at least there was no showing of lack of good cause. The record shows only that order of publication was entered on December 22, 1961, that a copy was certified on January 2, 1962 as a true and correct copy, and that the first publication was had on January 3, 1962. It does not show the reason for the delay. Those respondents who have filed a brief in this court contend that plaintiffs have failed to “show good cause for failing to secure and complete service,” and that “service by publication did not cure the failure to procure personal service” because “statutes” providing for service by publication are strictly construed and the “publication was a nullity.” They fail, however, to state why they contend the service by publication was a nullity.

The right of an interested party to contest a will is statutory and can be exercised only as provided by statute. Black v. City National Bank & Trust Company, Mo., 321 S.W.2d 477; State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73; Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935, 129 A.L.R. 316; 57 Am.Jur. Wills § 759. The Legislature has declared the policy of this state to be that a contest of a will admitted to probate shall be expeditiously prosecuted or not at all as evidenced by the fact that the suit to contest the will must be filed in the circuit court within nine months after the date of the probate thereof and the petitioner must then “proceed diligently to secure and complete service of process as provided by law on all parties defendant.” Section 473.083, RSMo 1959, V.A.M.S. See also Blatt v. Haile, Mo., 291 S.W.2d 85. The Legislature has further declared, in furtherance of this policy, that if those who seek to contest the will do not secure and complete service of process within sixty days after the petition is filed, on motion of any defendant the petition “shall be dismissed” by the circuit court “in the absence of a showing by the plaintiff of good cause for failure to secure and complete service.” Section 473.083, supra. Personal service was not had in this case, and apparently was not even attempted. Service by publication was not completed within the sixty day period. The trial court heard the evidence on the question of whether appellants showed good cause for the failure to secure and complete service of process within the prescribed time and ruled against them. The question before us is whether the trial court abused its discretion in so ruling. Blatt v. Haile, supra; Hanna v. Sheetz, 240 Mo.App. 385, 205 S.W.2d 955.

Regardless of the evidence to the effect that the addresses of Alvina Held and Della Mason were available to appellants from other sources, the evidence clearly establishes that the names and addresses of Alvina Held and Della Mason were available to appellants in the file of the estate of Rose Ott in the Probate Court of the City of St. Louis, the court which had admitted to probate the will which appellants sought to contest. In addition, appellants knew or should have known that the file would contain the information necessary to obtain personal service on these two defendants because Section 473.017 provides that an application for letters testamentary shall state “The names, relationship to decedent, and residence addresses of the surviving spouse and heirs, devisees and legatees of the decedent, if any, * * *.” The failure of counsel to examine that file is unexplained except that the matter apparently was left to the attention of a secretary who did not examine the file. We know that as a practical matter a telephone call to the clerk of the probate court would probably have resulted in obtaining the needed information, but that telephone call was not made or attempted. We think that the evidence establishes that the trial court did not abuse its discretion in ruling that appellants did not show good cause for failing to obtain and complete personal service. In fact, the evidence compels that result.

Appellants say, however, that service by publication is a “separate and permissive” method of obtaining service in a case “affecting a * * * will,” see Civil Rule 54.08, V.A.M.R., which includes a contest thereof, and that the failure to complete the service by publication within the stated period was shown to be for good cause because of the delay on the part of the clerk in making available to the printer a copy of the order of publication. We shall assume that under the facts of this case service by publication was permissive and would have been sufficient if completed within the sixty days. However, under the circumstances we see no reason to rule that the trial court abused its discretion in dismissing the petition. The clerk was not charged with knowledge that the sixty day period was about to expire so that he had a duty to expedite the execution of a certified copy to be made available to the printer. However, appellants did know or should have known of the time limitation and that the Christmas and new-year season was approaching. But, as far as is shown by the record no request was made to the clerk by appellants to expedite the certification of a copy of the order of publication. See State ex rel. and to Use of City of St. Louis v. Priest, 348 Mo. 37, 152 S.W.2d 109, and the comments there made concerning the duties of clerks under such circumstances. More important, however, appellants had two alternative and permissive methods of obtaining service, or at least we have assumed so according to their contention, but they selected the method which could not be completed, or at least was not completed, within the prescribed period of time when by the exercise of ordinary diligence and care in the prosecution of the suit personal service easily could have been completed within the sixty day period. In doing this they did not proceed diligently to secure and complete service of process within the meaning of Section 473.083.

The trial court heard the evidence, passed on the issues of fact, and under the facts and circumstances we cannot rule that it abused its discretion in dismissing the petition. Therefore, 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.


author: LEEDY, Judge.

text:
    George L. FISHER, Respondent, v. CITY OF INDEPENDENCE, Missouri, Appellant.
    No. 49155.
    Supreme Court of Missouri, En Banc.
    Sept. 9, 1963.

      John F. Thice and Gilbert R. Titus, Independence, for appellant.
    Arthur B. Taylor, Independence, S. David Trusty, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   LEEDY, Judge.

This is a workmen’s compensation proceeding wherein the City of Independence has appealed from an order of the Industrial Commission, which order (made on motion of the claimant-respondent, George L. Fisher) vacated an award of compensation in favor of claimant, and dismissed his claim. The appeal went to the Circuit Court of Jackson County, where the order was affirmed. On the city’s further appeal from the circuit court’s judgment of affirmance, the Kansas City Court of Appeals reversed, and ordered that the cause be remanded by the circuit court to the commission with directions to reinstate the award (Fisher v. City of Independence, Mo.App., 350 S.W.2d 268). Upon application of claimant-respondent to this court, the case has been transferred here for final determination under the provisions of Art. V, § 10, Const. of Mo., V.A.M.S., and Rule 84.05, V.A.M.R.

The facts are stated at some length in the opinion of the Court of Appeals to which reference is made, but the following will sufficiently indicate the situation giving rise to the present issues: Fisher was employed by the city, and on June 20, 1957, was injured in the course of his employment. On June 6, 1958, he filed in the circuit court a common law action against the city to recover damages for the injuries so sustained. The city in due time filed its “motion to dismiss” which, after averring that “plaintiff has failed to state any cause of action under the law for which relief can be granted,” directly and more specifically challenged Fisher’s right to maintain the action in any event “for the further reason that the plaintiff, George L. Fisher, on the date of the alleged injury was subject to the provisions of the Missouri Workmen’s Compensation law, as set out by the Revised Statutes of the State of Missouri for 1949, and he has no action under the common law.” On July 11, 1958, the court sustained said motion and dismissed the action, as prayed by the movant.

On July 17, 1958, Fisher filed with the Division of Workmen’s Compensation his claim (now dismissed) for compensation for the aforesaid personal injuries suffered June 20, 1957, alleging the same to have been sustained by accident arising out of and in the course of his said employment. The course of the proceeding thus initiated by him, and the considerations affecting the making of the order appealed from sufficiently appear from these findings as made by the commission, and embodied in the order itself, viz.:

“The Commission having considered said motion [to vacate the award and to dismiss the claim] and the answer thereto filed by the employer, City of Independence, finds that the Commission has jurisdiction to entertain said motion inasmuch as thirty days have not elapsed since the entering of the award aforesaid; that the employee filed his claim on July 17, 1958, alleging that the City of Independence was a self insurer; that the City of Independence filed its answer thereto on July 25, 1958, answering that it was a self insurer; that on March 5, 1959, the date of the hearing before the referee, counsel for the City of Independence stated the city was a self insurer; that the Commission’s award of July 28, 1959, recited that the employer was a self insurer; that since the date of the entering of the Commission’s award, the parties have learned that while the City of Independence has elected to come under the provisions of Chapter 287, RSMo 1949, it is not, in truth and in fact, qualified as a self insurer thereunder; that the parties were proceeding under a mutual mistake of fact; and, further, that the filing of the claim by the employee herein did not constitute an election of remedies for-the reason that it was predicated on a. mistake of fact. See: 28 C.J.S. [Election of Remedies] Section 23, and Missouri cases cited thereunder. We find, and believe that Neff vs Baiotto Coal Co. [Mo.], 234 S.W.2d 578, on which, the employer relies, is clearly distinguishable on the facts.”

The question as to the city’s status as a self-insurer arises out of the following facts: In 1929 or 1930 the city duly elected to bring itself within the provisions of “The Workmen’s Compensation Law,” and gave-the commission notice thereof. Whether it proceeded at once to qualify as a self-insurer does not appear; but it is undisputed that in January, 1936, the city did self-insure its compensation liability by depositing in escrow with the Bank of Independence $3,000 (either in cash or securities) in compliance with the commission’s order of January 1, 1936, authorizing the same. Such was the state of affairs when oni September 30, 1949, the Attorney General held that part of the statute (§ 3693, ¶ 5,. RSMo 1939 — now § 287.090, subsection 2,. RSMo 1949 and V.A.M.S.) authorizing municipalities and certain other public bodies, to elect to come within the provisions of the compensation act to be unconstitutional. The commission thereafter sent to the city a letter from the commission’s attorney dated November 17, 1949, which letter, after stating and advising the city that the Attorney General had so ruled (on the date mentioned), continued: “It follows, therefore, that the attempt to bring your employees under the provisions of the Missouri Workmen’s Compensation Law by filing an acceptance of it with this Division is, and has always been, null and void, as is our authorization of you as a self-insurer. Your self-insurer’s authority, dated January 1, 1936, is, therefore, cancelled, effective September 30, 1949 (the date of the Attorney General’s opinion), and the escrow agreement, dated January 10, 1936, is also cancelled as of said date. The escrow agent is hereby author-dzed to return to you the securities therein •described.”

Subsequently, the Attorney General re■examined the constitutional question, and in an opinion dated February 7, 1950, concluded that his prior opinion was erroneous. In overruling and withdrawing such prior •opinion, he came to the further conclusion that the public employers named in said statute (including municipalities) “may severally elect to bring themselves within the terms of the Workmen’s Compensation Law.” Thereafter the division’s director dispatched the following letter to the city under date of February 24, 1950:

“On February 7, 1950, the Attorney General issued an opinion holding as Constitutional the provision of the Missouri Workmen’s Compensation Law that permits municipalities and other political subdivisions to accept the provisions of that law. By this opinion, the Attorney General reverses the position taken in the opinion of September 30, 1949, copy of which was sent to you.
“Your status as an employer under the workmen’s compensation law, therefore, is the same as before the opinion of September 30, 1949. At that time you were an authorized self-insurer, but such authority was canceled because of the Attorney General’s opinion and the surety ordered released.
“Your authority as a self-insurer will be reinstated upon your prompt ■advice that you wish it to be, to become •effective when you comply with the requirement of the minimum surety of $10,000 by one of three ways: (1) An approved surety bond; (2) depositing in escrow approved securities; (3) depositing cash in escrow.
“Will you please advise at once.”

No response of any kind was made to the foregoing letter, nor did the city at that time take any action looking toward compliance with the specified requirement of $10,000 minimal surety. It is not contended that anything was done by the city in that connection during the next ensuing eight years, nor until more than two years after the casualty occurred when there was an exchange of the following correspondence between the Independence city counselor’s office and the Division of Workmen’s Compensation concerning the city’s status as a self-insurer:

“July 16, 1959
“Mr. John Gloriod
“% Department of Labor
“Workmen’s Compensation
“Jefferson City, Missouri
“Re: City of Independence, Missouri
“Dear Sir:
“It has recently been brought to my attention that there is the possibility that the City of Independence, Missouri, is not properly classed as a self-insurer under law. It was my under- . standing that the City elected to come under the Workmen’s Compensation Law, and was permitted to be a self-insurer several years ago.
“If you have any information in regard to this matter, I would appreciate hearing from you in regard thereto. Also, if we are not self-insurers, please advise me what is necessary for the City to do to comply with your rules and regulations so that we will be self-insurers in the future. If we are not now classed as self-insurers, please furnish me with the necessary forms for us to use in complying with your laws.
"Your very truly,
“/s/ Gilbert R. Titus jsv
“GILBERT R. TITUS
“Assistant City Counseler”
“GRT/jsv

[Note: The date of the above letter is subsequent to that of the referee’s award in claimant’s favor, and twelve days prior to the date of the full commission’s “final award” as made on the city’s application for review.]

“July 17, 1959
“Gilbert R. Titus, Assistant City Counselor
“First National Bank
“Independence, Missouri
“Re: City of Independence, Missouri
“Dear Mr. Titus:
“The City of Independence was first granted authority to self-insure its compensation liability on January 13, 1936, and this authority remained constantly in force until September 30, 1949, about which time the Attorney General of Missouri rendered an opinion holding that the provisions of Section 3693, RSMo 1939, now 287.090, was unconstitutional in so far as it applied to municipalities or other political subdivisions. In accordance with that opinion we cancelled the self-insurer’s authority of all such municipalities as had accepted the compensation law; also cancelling the bonds or escrow agreements of such cities, authorizing the escrow agent to return to you these securities described.
“Thereafter on or about February 24, the Attorney General reversed his opinion of November 17 and held that cities and municipalities might accept the provisions of the Workmen’s Compensation Law and provide for the payment of its obligations thereunder out of its general revenue fund. We thereupon wrote all such municipalities, including the City of Independence, to that effect advising that their status under the Workmen’s Compensation Law was the same as it had been prior to our letter of November 17; that is that their acceptances were still valid but that it would be necessary to provide security, such as all self-insurers are required to post, and that the amount would be the minimum amount of $10,000.00, which had in the meantime been changed from a minimum of $3,000.00.
“We never received any acknowledgment of this letter from the City of Independence and, according to our records as they now stand, the City of Independence is not a self-insurer for its workmen’s compensation liability.
“If you desire to reinstate as a self-insurer, we suggest that since it has been some nine years since our letter of February 24 it would be a better procedure to make a new application on the enclosed forms, submit all three completed forms, and we will then advise you of the amount of security required. There will be no investigation fee required.
“Yours very truly,
“Ene. John A. Gloriod,
“jag :1c Legal Adviser”

Thereafter, in September, 1959, the city did file its application to become a self-insurer, as suggested, and posted bond in the requisite sum of $10,000. On approval of the bond, the city’s authority to operate as a self-insurer was “reinstated as of September 22, 1959,” and the city notified thereof by letter in the language just quoted.

The foregoing correspondence and the matters and things done pursuant to it (even though long subsequent to the particular time with which we are concerned, to wit, June 20, 1957) are not set forth as having determinative effect, but because factually they have a strong tendency to support the action of the commission in making the order appealed from unless it can be said that, as a matter of law (as held by the Court of Appeals) the city continued to remain a qualified self-insurer notwithstanding the opinion of the Attorney General (later reversed), and the subsequent efforts of the division to require the city to again comply with the requirements as to security in order to make reinstatement of its au-thoity as a self-insurer effective.

The reasoning underlying the holding thus made by the opinion of the Court of Appeals was, in essence, this: First, that cancellation of the city’s workmen’s compensation coverage could be effected only through “formal action of record by the Commission and cannot result from the voicing of an opinion by its attorney,” and that the record was insufficient to show any such formal record action on the part of the commission; and, secondly, “Even if the letters [dated November 17, 1949, and February 24, 1950] were based on action taken by the Commission itself on its own initiative, the same were ineffective” because of want of notice to the city under certain of the commission’s own rules.

We shall not inquire into the first of the foregoing bases whereon said opinion rests because even though the purported cancellation was not effected by and through formal record action of the commission so declaring, other means of termination were not only open, but at least one was self-executing, as provided by the very terms of Rule 10, § 1, which was under scrutiny and applied (erroneously, we believe) by the Court of Appeals. So it is out of the latter section of said rule that our disagreement arises with the second of the foregoing bases, i. e., ineffectuality of termination “because [to quote the opinion] no notice was given as specifically required by its own rules (Rule 10, Sections 2 and 11, supra).” (Actually, the sections of said rule previously cited in said opinion were § 1 and § 11, but not § 2; the latter does not relate to notice, so reference to it as having been cited “supra” was obviously an inadvertence, and we take it that § 1 was intended.)

With respect to the continuing force and effect or duration of self-insurance authority, once granted, Rule 10, § 1, provides as follows: “Such self-insurance authority, if granted, will continue in force and effect until revoked by the Division upon notice and hearing on show-cause order or until withdrawn by the employer, except that upon failure of a self-insurer to continuously maintain security, hereinafter provided for, in the amount required by the Division, such self-insurance authority shall forthwith terminate without such notice and hearing.”

It will be noted that the commission’s communication of February 24, 1950, distinctly informed the city that its self-insurer’s authority would be “reinstated upon your prompt advice that you wish it to be, to become effective when you comply with the requirement of the minimum surety of $10,000 by one of three ways: (1) An approved surety bond; (2) depositing in escrow approved securities; (3) depositing cash in escrow.” (Said minimum security required was fixed then, as now, by Rule 10, § 2, which also specified the three optional ways of furnishing the same.)

Conceding for present purposes that in consequence of the Attorney General’s two opinions and the matters and things done or attempted to be done pursuant to such opinions as reflected in the correspondence hereinabove set out, the city as lately as February 24, 1950 (the date of the letter last above mentioned), continued to remain within the coverage and protection of the Workmen’s Compensation Law as a qualified self-insurer, the fact remains that during the entire period of nine years thereafter it wholly failed to maintain the $10,000 minimum security prescribed by Rule 10, § 2, or any whatever. True, the city was informed its authority would be “reinstated,” but the use of that word is of no significance in the circumstances we are considering as affecting the obligation of the city to maintain security in the required amount as the condition upon which its self-insurance authority would rest. The matter was thus brought squarely and directly within the terms of Rule 10, § 1, governing revocation for that specific default; that is, “such self-insurance authority shall forthwith terminate without such notice and hearing.” It follows that the city’s self-insurance authority had automatically terminated long prior to the date of Fisher’s accident.

Such default and termination gave rise to and made applicable the employe s statutory right to elect to bring action against the employer for damages, or pursue his remedy for compensation under the act with payments commuted and immediately payable. § 287.280, RSMo 1959 and V.A.M.S. As stated, he first brought a common law action, but it was dismissed on the city’s motion and under its representation that it was a self-insurer under the act, whereas in fact it was not. In such a situation, the city will not be heard to say that the action of plaintiff in thereafter filing claim for workmen’s compensation constituted an election of remedies on his part, at least in the absence of knowledge of the true facts (as here) concerning the city’s status as being or not being a self-insurer.

The city makes the contention that the commission acted without or in excess of its powers when it entered the order appealed from. In this connection it invokes the provision of § 287.490 which declares that the “final award of the commission shall be conclusive and binding” unless appealed from within thirty days from the date thereof, and contends that the final award of July 28,, 1959, came within the purview of such provision, and said award not having been appealed from, the power of the commission was thereby exhausted, except for review of such award on the commission’s own motion or upon application of any party in interest “on the ground of a change in condition” under § 287.470 (a contingency not here involved). The contention must be disallowed. In the first place, the thirty-day period for appealing had not yet expired when the offending order was made so that the conclusive and binding nature and effect with which the statute would endow an unappealed final award had not then attached. Moreover, while it is true that power to take action of the nature here involved is not conferred upon the commission by statute specifically so providing, it by no means follows that the commission is without authority so to do. On the contrary, we think it plain, and accordingly hold, that such power or authority is to be implied from the very nature of the commission’s function in determining- not only the facts whereon its jurisdiction rests, but also the liability under the act of the persons before it. Compare Harris v. Pine Cleaners, Mo., 296 S.W.2d 27.

From what has been said it follows that the order appealed from should be, and it is, affirmed.

All concur, except HOLMAN, J., not sitting.


text:
    STATE of Missouri, Respondent, v. Samuel MONTGOMERY, Appellant.
    No. 49396.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.

      No attorney for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert R. Northcutt, Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Samuel Montgomery was found guilty by a jury of assault with intent to kill on purpose and with malice aforethought. Section 559.180 RSMo 1959, V.A.M.S. After finding that the defendant had previously been convicted and sentenced for the felony of murder, second degree, as alleged in the indictment, punishment was fixed by the trial judge at thirty-five years’ imprisonment. Sentence and judgment followed. A notice of appeal was not filed within the time prescribed by Supreme Court Rule 28.03, V.A.M.R., but a notice was subsequently filed pursuant to a special order of this court. Supreme Court Rule 28.07, V.A.M.R.

Defendant has filed no brief in this court. In this situation this court will review the assignments of error properly preserved in the motion for new trial. State v. Parks, Mo., 331 S.W.2d 547. By one of the assignments of error defendant asserts that the trial court erred in failing to direct a verdict of acquittal. In ruling this contention we consider the evidence, and the reasonable inferences therefrom, from a standpoint favorable to the state. When so considered a jury reasonably could find the following facts and circumstances.

At approximately 2:00 o’clock of the afternoon of October 31, 1960, Roy Witherspoon, age 62, was standing in front of the Meyer Brothers Grocery Store at 1903 Franklin Street in the City of St. Louis. The defendant approached and asked Witherspoon why he “told his woman to go home.” Witherspoon answered that he had not “told the woman anything,” and then asked, “Who is your woman?” Defendant replied that she was then coming across the street. The woman, not otherwise identified, went into a store, and when she came out defendant asked her to get in a truck but she refused. Defendant then told Witherspoon to “be there when I get back,” and he drove away. Ten or twenty minutes later defendant returned, walked up to Witherspoon, took a .38 caliber revolver from his waist and said to Witherspoon, “I am going to kill you,” and-he then shot him in the right chest or shoulder. After Witherspoon fell to the sidewalk, defendant stood over him and shot at him three times; two of the bullets striking him in the head. As one eyewitness said: “After that Roy [Witherspoon] fell on the ground there,” then the “man that shot him just stood over him and shot bang! bang! bang! Just like that.”

The evidence clearly justified submission of the case to the jury upon the charge of assault with intent to kill on purpose and with malice aforethought. See State v. Finnell, Mo., 280 S.W.2d 110. There is no merit to the contention that the trial court erred in refusing to direct a verdict of acquittal.

Not one of the remaining twelve assignments of error in the motion for new trial is sufficient under Supreme Court Rule 27.20, V.A.M.R., to preserve anything for appellate review. For example, the first assignment is that “there was irregularity in the proceedings of the court and jury by which defendant was prevented from having a fair trial;” the third assignment is that counsel for the state “appealed to the sympathy, passion and prejudice of the jury;” and the fourth assignment is that “there was misconduct of the jury by which defendant was prevented from having a fair trial.” As to the insufficiency of these assignments, see the general rules set forth in State v. Mallory, Mo., 336 S.W.2d 383, certiorari denied 364 U.S. 852, 81 S.Ct. 99, 5 L.Ed.2d 75; State v. Brewer, Mo., 338 S.W.2d 863; and State v. Turner, Mo., 272 S.W.2d 266, 48 A.L.R.2d 1008. The second assignment is that the court erred in “excessively interrupting counsel’s cross-examination of the witness Ann Meyer, and by improper remarks and interruptions prevented counsel from impeaching her testimony.” Although this assignment of error is insufficient, see State v. Gillman, Mo., 354 S.W.2d 843, we have read carefully all •of the testimony of Ann Meyer. We find that during the cross-examination of this witness the trial court said only seven words, “overruled,” “sustained,” and “Jury instructed to disregard it.” These words were said in ruling on two separate objections, and there is no assignment of error which purports to challenge the correctness •of these rulings. We see no occasion to lengthen this opinion by reciting the substance of the remaining assignments in the motion for new trial to demonstrate why they are insufficient under the rules to present any issue for appellate review.

Pursuant to our discretionary authority to determine whether there occurred plain error affecting substantial rights, Supreme ■Court Rule 27.20(c), V.A.M.R., we have •carefully read and examined the entire transcript, and our examination discloses no such error. We have also examined those matters m the record for which no assignment of error is required. Supreme Court Rule 28.02, V.A.M.R. The indictment is in proper form and is sufficient. The verdict of the jury is in proper form and is responsive to the issues, and the punishment fixed by the trial judge is within the limits prescribed by law. The record shows that defendant was arraigned and pleaded not guilty. Defendant and his counsel were present throughout the trial. Defendant was granted allocution, and the judgment is responsive to the issues and the verdict.

The judgment is affirmed.

BARRETT, C., concurs.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Judge.

text:
    Charles RICHARDSON, (Plaintiff) Respondent, v. Otto H. COPE, (Defendant) Appellant.
    No. 49642.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.

      Dorman Steelman, Salem, Samuel Riche-son, Dearing, Richeson & Weier, Hillsboro, for appellant.
    William E. Seay, Salem, Granville L. Gamblin, Clayton, for respondent.
   HOLMAN, Judge.

In this action plaintiff sought to recover damages in the sum of $83,000 for personal injuries sustained when the motorcycle he was operating collided head on with defendant’s automobile. The trial resulted in a verdict for defendant. Plaintiff’s motion for a new trial was sustained by the trial court because of “errors committed in the giving of Instructions No. S and No. 6.” Defendant has appealed from the order sustaining plaintiff’s motion for a new trial.

The collision in question occurred between 8 and 8:30 p. m. on Saturday, July 12, 1938, on east-west Highway No. 32 at a point about two miles west of Salem, Missouri. Plaintiff was proceeding in an easterly direction on the motorcycle and defendant was driving his Plymouth automobile westwardly on said highway. Bob Conaway was seated behind plaintiff on the motorcycle at the time of the collision.

Bob Conaway testified that he met plaintiff in Salem at about 5 p. m. on the day of the casualty; that they went into Halbrook’s Tavern and drank one beer and then they both got on the motorcycle and rode to Licking, Missouri, a distance of 22 miles; that he rode on the seat behind plaintiff; that while in Licking they drank another beer and later started home; that the motorcycle was being driven about 45 or 50 miles per hour and its headlight was lighted; that they were traveling east on Highway 32 and the motorcycle was on the south side of the road; that as they went over a sharp rise in the road he saw defendant’s car completely on the south half of the road; that plaintiff swerved the motorcycle to the right about five feet but struck the left headlight of defendant’s car; that defendant’s car was being operated about 20 or 25 miles per hour at that time; that the light on the mo’ tor cycle would reveal objects for a distance of 15 or 20 feet, and they were 15 or 20 feet from defendant’s car, “which had no lights,” when he first saw it.

Plaintiff testified that it was “dusky dark” when they left Licking to return to Salem and he turned the headlight on at that time ; that his headlight would reveal objects about 20 feet away; that he was operating the motorcycle at a speed of from 40 to 50, possibly 55, miles per hour; that he was driving about the middle of the south lane when he came up over a hill, and when the light of his motorcycle was projected downward he was 20 feet from defendant’s car which was being driven on the south side of the road; that he applied his brakes and swerved to the right, but hit the left front of the automobile; that he was then two or three feet south of the center line of the highway, and he saw no lights on defendant’s car.

Plaintiff read from a deposition of defendant, as an admission, an answer to a question in which he stated that his lights were not on at the time the accident occurred. However, in response to a subsequent question, he stated: “I don’t recall having turned on any lights. When I got out in front of my car, there was one of my lights burning and when I went around behind the car to turn my dogs out, a pair of foxhounds were there, my tail lights were burning.”

On behalf of the defendant, Trooper D. L. Walker of the highway patrol, testified that he was notified of the collision at 8:35 p. m. and arrived at the scene ten minutes later; that he found defendant’s automobile on the north side of the highway with each of the left wheels about two feet north of the center line; that dirt which had been knocked off of defendant’s automobile was in the westbound lane under defendant’s car; that defendant’s car had left skid marks on the highway with the marks from the left wheels starting near the center line and angling to the north; that there were no tire marks from the defendant’s car in the south lane and the skid marks in the north lane continued to where the wheels of the car stopped after the collision ; that there were two “dug out” places in the blacktop on the south side which were made by the motorcycle “after it was hit and got away from the driver”; that he talked with the plaintiff the next day at the hospital and that plaintiff told him that he had been drinking, and that the lights of his motorcycle had a habit of going off.

O. C. Naramore, who lived on Highway 32 about eight miles west of the scene of the collision, testified that he saw a motorcycle come by his home when it was “dusk dark” on the day of the collision, and that the light of the vehicle was going off and on while it passed his place; that it was off more than it was on; that to his best judgment the motorcycle was being driven at 60 miles per hour.

Lynn Adam testified that he arrived at the scene at about 8:25; that his car was the second to reach the scene after the collision; that defendant’s car was on the north side of the highway with the left side thereof about one and one half or two feet north of the center line; that the right headlight of the car was burning and that no light was burning on the motorcycle; that the left rear wheel of defendant’s car was six inches closer to the center line than the left front wheel.

Defendant, who was 74 years of age at trial time, testified that his home was three miles west of Salem on Highway 32; that he was going fox hunting on the occasion in question and had two hounds in the trunk of his car; that when he left home he first drove east; that he then changed his mind as to the place where he would release his dogs, and turned around in a driveway about one quarter of a mile east of the point of the collision; that after turning around he drove west on the highway toward Licking; that his car was on the right side — north side of the highway, and no part of the car was on the left side of the road; that he did not see the motorcycle, nor any headlight, before the collision; “I cannot call to mind of ever braking my car, of ever stepping on the brake and skidding my car, but the marks are there and everything.” He stated that he could not remember whether or not he had turned the lights on but that when he got out of the car after the collision the right headlight was burning (exhibits in evidence show that the left headlight was torn from the car at the time of the collision) ; that his car stopped immediately upon being struck by the motorcycle ; “it didn’t seem like I drove it an inch farther.”

Instructions 1 and 2 submitted plaintiff’s case upon the hypothesized negligence of defendant (1) in driving his car on the left side of the highway, (2) in failing to turn his car to the right of the center of said highway so as to pass the motorcycle without interference, and (3) in operating his automobile “without two lighted headlamps.”

The instructions which the trial court found were erroneous were offered by defendant and submitted issues concerning plaintiff’s contributory negligence. Instruction No. S reads as follows:

“The court instructs the jury that if you believe and find from the evidence in this case that on the occasion in question Mr. Cope was operating his automobile west-wardly over and along Highway 32 in Dent County, Missouri, and that the plaintiff was operating his motorcycle eastwardly over and along said highway, at a time of day which was more than one-half hour after sunset, and in the nighttime, and if you find that the plaintiff did operate his motorcycle in the center of the said highway, and did not operate his motorcycle on the right half of the roadway, or if you find that the plaintiff operated his motorcycle at a rate of speed which was high, excessive and dangerous under all of the facts and circumstances then existing according to the evidence, or if you find that the plaintiff was operating his motorcyle at a time of day which was more than one-half hour after sunset, and in the nighttime, without having a burning headlight directed to the front thereof and clearly visible at a distance of 500 feet under ordinary atmospheric conditions, and if you find that in so operating his motorcycle in any or all of the particulars aforesaid the plaintiff was negligent and that such negligence of plaintiff, if any, directly contributed to cause the collision in question and plaintiff’s injuries, then the plaintiff cannot recover against the defendant, and your verdict must be in favor of the defendant; and this is true, without regard to whether or not you find that the defendant was negligent under other instructions of the court.”

The main contention of plaintiff as to error in said instruction is that there was no evidence to support the submission of plaintiff’s negligence in not operating his motorcycle “on the right half of the roadway.” As best we understand plaintiff’s argument, it appears that he bases this contention on the fact that no witness testified that he saw the motorcycle on the left or north side of the highway.

We have concluded that there was substantial evidence to support the submission of plaintiff’s failure to operate his motorcycle on the right half of the roadway. This for the reason that there was an abundance of evidence to the effect that defendant’s car was north of the center line of the highway at the time of the collision, and there is no dispute about the fact that the motorcycle struck the left front of said car. Therefore, if the jury believed those facts it could reasonably have found that plaintiff’s motorcycle was not being driven on the right half of the roadway. In fact, if the jury believed the testimony to the effect that defendant’s car was entirely on the north half of the roadway at the time the vehicles collided, the conclusion would be inescapable that plaintiff was not driving his motorcycle on his right half of the roadway. Therefore, as stated, we rule that there was sufficient substantial evidence to support the submission in question.

In his motion for new trial plaintiff has alleged that there was “no evidence whatever” to support the submission of the other two assignments of contributory negligence in Instruction No. 5. In his brief, however, he has not referred to any alleged deficiency in the evidence supporting said assignments, and it would therefore appear unnecessary that we rule on that contention. However, a reference to the foregoing statement of facts will clearly demonstrate that those assignments (excessive speed and no burning headlight) were supported by substantial evidence.

Plaintiff also contends that the instruction was erroneous because sufficient facts were not hypothesized in connection with the submission that he “operated his motorcycle at a rate of speed which was high, excessive or dangerous under all the facts and circumstances then existing according to the evidence.” This contention is not preserved for appellate review. No grounds were stated at the time plaintiff objected to the giving of this instruction. Therefore, under Civil Rule 79.03, V.A.M. R., it was necessary for plaintiff to specifically allege the errors he desired to complain of in his motion for new trial. No complaint is made in the motion for new trial concerning the failure of Instruction No. S to include a proper hypothesis of the facts. Therefore, as stated, the point is not preserved for appellate review. Overton v. Tesson, Mo.Sup., 355 S.W.2d 909.

Instruction No. 6 reads as follows: “The court instructs the jury that if you believe and find from the evidence in this case that both parties were negligent, that is, if you believe and find from the evidence that the plaintiff was negligent as submitted to you in instruction No. Five, and if you also find that the defendant was negligent as submitted to you in instruction No. One or No. 2, and if you further find that the negligence of each directly contributed to cause the collision and plaintiff’s injuries, then the plaintiff cannot recover, and your verdict must be in favor of the defendant.”

In defending the action of the trial court in holding this instruction erroneous, plaintiff first contends that it was error to give it because it refers to Instruction No. 5, and, since No. 5 was erroneous, then, as a natural consequence, No. 6 was also erroneous. That would be true if plaintiff were correct in his premise that No. 5 was erroneous. However, since we have heretofore held that No. 5 was not erroneous, there is no merit in the contention that No. 6 was erroneous because it referred to No. 5.

The other ground specified in the motion for new trial is that the giving of Instruction No. 6 was error because it “overemphasized the question of contributory negligence, if any, on the part of the plaintiff, and thereby confused and misled the jury.” It is true that portions of this instruction constitute repetition of similar statements made in the instructions to which it refers. However, we see nothing in the instruction which unduly emphasized the issue of plaintiff’s contributory negligence or which would tend to confuse or mislead the jury. The instruction should have been helpful to the jury in that it consolidated and explained the effect of similar statements separately made in the other instructions. “The matter of repetition or the elaboration of the same subject matter in an instruction is generally considered to be within the trial court’s discretion and is not ordinarily held to be reversible error where not so considered by the trial court. Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449; Reidinger v. Adams, Mo.Sup., 266 S.W.2d 610.” Greenwood v. Wiseman, Mo.Sup., 305 S.W.2d 474, 477.

In this case the trial court did grant a new trial because “of the errors committed in the giving of Instructions No. 5 and No. 6.” It is clear, however, that there is nothing in that order to indicate that the court granted the new trial upon the discretionary ground that No. 6 was repetitious in overemphasizing the issue of contributory-negligence. Civil Rule 83.06(c) provides that “If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds.” Since we may not presume that the trial court granted the new trial on a discretionary ground, and since we are of the opinion that the instruction is not erroneous in the respects specified by plaintiff, we accordingly rule that the trial court did not err in giving said instruction.

As indicated by the foregoing, we rule that the court did not err in giving either Instruction No. 5 or No. 6, and it accordingly follows that the order of the trial court granting plaintiff a new trial is set aside and the cause is remanded with directions to reinstate defendant’s verdict and judgment.

All concur.


author: STORCKMAN, Presiding Judge.

text:
    William NEW, Respondent, v. Donald CORROUGH, Appellant.
    No. 49404.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.

      Robison & Miller, Maysville, for appellant.
    Gene Thompson, Maryville, for respondent.
   STORCKMAN, Presiding Judge.

This is an election contest involving the office of director of the Maryville R-II School District. There were four candidates for two vacancies on the six-man board of directors. The original notice of election contest was filed by William New and Raymond Younger against Harold Fields and Donald Corrough. The contes-tees Fields and Corrough were declared elected as the result of the regular canvass of the ballots cast at the election and were sworn in as members of the board of directors. The contest was dismissed as to con-testee Fields prior to trial. Pursuant to a stipulation filed by the remaining parties which defined and simplified the issues, the trial court rendered an interlocutory decree making certain findings and ordering a recount of certain designated ballots. The disputed ballots were recounted and the trial court entered its final decree finding that Harold Fields and William New had received the highest number of votes cast and were lawfully elected to the two offices of school director at issue in the election. The decree further ordered the contestee Donald Corrough to relinquish and surrender to the contestant William New his office of school director. The contestee Corrough filed a motion for a new trial and for judgment notwithstanding the judgment which motion was overruled and he has appealed. Hence the only parties in this court are the appellant Donald Corrough, a contestee, and the respondent William New, a contestant.

The supreme court has exclusive jurisdiction of an appeal from a final judgment in an action to contest the election of a school director because such action involves title to an “office under this state” within the meaning of the constitution. Art. V, § 3, Constitution of Missouri 1945, V.A. M.S. Bernhardt v. Long, 357 Mo. 427, 209 S.W.2d 112, 113 [1]; State ex rel. Worsham v. Ellis, 329 Mo. 124, 44 S.W.2d 129 [1].

The issues and facts were largely determined by the stipulation of the parties which provided, inter alia, that they submitted the case to the court on the agreed facts. At the time the contest was filed, the official count was: Fields, 1111 votes; Corrough, 1048; New, 1045; and Younger, 1042 votes. The contest largely revolves around 37 uncounted and uncanvassed absentee ballots, 4 absentee ballots which had been counted and included in the official count, and 9 ballots cast at the polls by students of Northwest Missouri State College.

The stipulation provided that for the convenience of the court the statement had been divided into two sections — “the first dealing with the issues pertaining to the absentee ballots, the second dealing with the issue pertaining to the right of certain college students to vote in local school elections.”

The disputed ballots may be divided into four groups as follows:

Group 1: Twenty-four uncounted absentee ballots submitted under paragraph V of the stipulation which provides: “It is stipulated that the only issue raised by the pleadings or submitted to the Court as to the validity or counting of these ballots is whether the failure of said Notary Publics to show expiration date of their commissions on their certificates on said affidavits on said envelopes invalidated the affidavit and-or the ballot enclosed therein.”

Group 2: Thirteen uncounted absentee ballots submitted under paragraph VI of the stipulation which provides: “that the only issues raised or submitted to the Court as to the validity and counting of these ballots are (1) the failure of said Notary (Lloyd Hanna) to show the expiration date of his Commission on the face of the affidavits which failure is admitted and (2) the additional question raised by Contestee in Paragraph 7 of his Statement for Recount that said Notary was paid an unreasonable sum to take the acknowledgments in violation of provisions pertaining thereto, which issue is submitted to the Court under agreed statement of facts set out in Appendix C attached hereto and by reference made a part hereof.” Appendix C is a sworn statement by Lloyd Hanna, the notary, which says in substance that he went to Maryville on the morning of election day where he certified and took acknowledgments for absentee ballots; that he made no charge to the voters but was paid $5 by another person apparently interested in the election; that the $5 payment was calculated to reimburse him for the time that he had lost from other work while taking acknowledgments.

Group 3: Four absentee ballots canvassed and included in the official count by persons who resided at Nodaway Rest Home which was privately operated by a lessee of the property which was owned by Nodaway County. The inmates received Old Age Assistance and endorsed their monthly checks of $65 to the Rest Home. The County paid to the operator an additional $5 per month for certain patients including the four in this group. The County made similar payments to operators of other nursing homes in Nodaway County. One of this group of voters, Ben F. Linville, was also challenged on the ground that he had been adjudged insane by the Nodaway County Court in 1933. He had been confined to a mental institution but was later released. While there had been no adjudication of restoration to sanity, no guardian of his estate or person had ever been appointed.

Group 4: Nine votes cast by college students covéred by Section II of the stipulation which recited that the legality of the residence of these students for voting purposes and the validity of their ballots were challenged and the issue submitted to the court on the depositional testimony of the students concerning their respective residences.

The trial court held that the absentee ballots should be counted, that the nine student votes should be excluded, and that the votes of Mr. Linville and the other three patients of the Nodaway Nursing Home were valid. As a result of the recount, the court found that the votes cast for each of the candidates were as follows: Harold Fields, 1106 votes; William New, 1078; Raymond Younger, 1074; and Donald Corrough, 1040 votes. Fields and New were declared to be the successful candidates.

The first question presented is whether the constitution and laws of this state authorize voting by absentee ballot in a regular election for directors of a reorganized school district. This court en banc recently held that the word “district” as used in § 112.010, RSMo 1959, V.A.M.S., made the absentee voting laws applicable to elections held in school districts. State ex rel. School Dist. of City of Jefferson, Cole County v. Holman, Mo., 349 S.W.2d 945, 947 [3]. See also State ex rel. Hand v. Bilyeu, Mo., 351 S.W.2d 457. The election involved in State ex rel. v. Holman was one to determine whether a debt should be incurred for the construction of school buildings as authorized by § 165.040, RSMo 1959, V.A. M.S. The opinion also holds that such an election involved the submission of “questions of public policy” as that term was used in § 112.010. An election involving “questions of public policy” is an alternative occasion for the use of absentee ballots with which we need not be concerned in the present case. Contrary to the appellant’s contention, the absentee voting laws should be liberally construed in determining the elections to which the act applies. State ex rel. School Dist. of City of Jefferson, Cole County v. Holman, Mo., 349 S.W.2d 945, 947 [2].

The election in this case was the regular annual election of directors of the Maryville R-II School District conducted pursuant to § 165.330, RSMo 1959, V.A. M.S., which provides for a vote by ballot and that the election shall otherwise be “conducted in the same manner as the elections for state and county officers”. Section 112.010 expressly provides for the casting of absentee ballots at elections for state and county offices. It follows from this and the holding in State ex rel. v. Holman that the election of directors for reorganized school districts is clearly within the purview of the absentee voting laws of this state. The trial court did not err in holding that the voting of absentee ballots at the election in question was authorized.

The next issue is whether the omission of the expiration date of the notarial commission on the ballot envelopes invalidated the absentee ballots so as to justify their rejection by the election officials. The stipulation of the parties on this question states: “It is agreed that the certificates of the respective Notary Publics on each of said affidavits did not show the expiration date of the Commission of said Notary Publics but that said Notary Publics * * * were in fact legally appointed, bonded commissioned and their commissions fully recorded as provided by law at the time of taking the acknowledgments shown on said affidavits; that none of their commissions had expired but were in full force and effect at the time of taking the affidavits; that each of said Notary Publics was in fact duly authorized to administer the statutory oath on the affidavits on each of the envelopes in question.” Section 112.050, RSMo 1959, V.A. M.S., provides that the absent voter shall make and subscribe to the affidavits provided for on the return envelope for the ballot “before any officer authorized by law to administer oaths”. The authority is not limited to notaries public. Neither § 112.040, which sets out an affidavit in substantially the form required, nor § 112.050, which directs the manner of marking and returning the absentee ballot, contains any express or inferential requirement that the “officer authorized by law to administer oaths” shall add to the jurat the expiration date of his commission.

Section 486.040, RSMo 1959, V.A. M.S., applying only to notaries public, provides that every notary public among other things “shall designate in writing, in any certificate signed by him, the date of the expiration of his commission.” It has been held, however, that the failure of the notary public to designate in the certificate the expiration date of his commission does not destroy the effectiveness of his certification. Kansas City & S. E. Ry. v. Kansas City & S. W. Ry. Co., 129 Mo. 62, 31 S.W. 451, 453; Baskowitz v. Guthrie Mfg. Co., 99 Mo.App. 304, 73 S.W. 227, 228; Brown Mfg. Co. v. Gilpin, 120 Mo.App. 130, 96 S.W. 669 [3] ; State ex rel. Savings Trust Co. v. Hallen, 165 Mo.App. 422, 146 S.W. 1171, 1177. See also Hatcher v. Hall, Mo.App., 292 S.W.2d 619, 622, footnote 2. Therefore, if § 486.040 were applicable (which we do not decide), the failure to give the expiration date would not invalidate the certification. The trial court did not err in holding this category of ballots to have been properly cast and in ordering them to be counted.

The absentee voting law, § 112.050, RSMo 1959, further provides that: “No charge shall be made by any officer in this state for the acknowledgment of affidavits prescribed in this chapter.” The notary public Lloyd Hanna was paid $5 by a Mrs. Howard Watson for his services in certifying absentee ballots. There was no charge to or payment made by any voter. It further appears from Mr. Hanna’s sworn statement that there was no arrangement made to pay for his services before he went to Maryville and the charge made after the services were completed was intended primarily to reimburse him for the time he had lost from his work. The purpose of the statutory provision is to protect the voter against being charged a fee for the privilege of casting his ballot. The absentee voters had no control over, or responsibility for, the act of the notary in his accepting the $5 since it was done after the voting was completed and without their knowledge. The statute was not intended to invalidate an absentee ballot under these circumstances. The trial court correctly ruled that these absentee ballots should be counted.

Art. VIII, § 2, of the Constitution, V.A.M.S. provides that “no person while kept in any poor house at public expense * * * shall be entitled to vote”. The attack upon the validity of the absentee ballots cast by the four inmates of the Noda-way Home would require a finding that the home was a county poor house and that the payment of $5 a month toward their upkeep from the welfare funds of the County would amount to their being kept at public expense. This privately-operated nursing home cannot be classed as a county poor house in these circumstances. The County had no priority in the admission of patients and it made similar payments from its welfare funds to other privately-operated nursing homes. Furthermore, a person who is “an inmate of a public institution” is not eligible for Old Age Assistance under § 208.-010, subd. 2(5), RSMo 1959, V.A.M.S. The trial court did not err in approving the right of these four patients to vote in the election.

The additional challenge against the absentee ballot of Ben Linville is that he had been declared insane by the County Court of Nodaway County and committed to a mental hospital in 1933 and had .not been adjudicated of sound mind. Prior to November 4, 1958, the 1945 Constitution, Art. VIII, § 2, provided that “no insane person” shall be permitted to vote. On the date mentioned, the constitution was amended so that this kind of disqualification now applies only to á person “who has a guardian of his or her estate or person”. It is conceded that Mr. Linville did not have a guardian of his person or estate at the time he cast his vote. Obviously the purpose of the amendment was to give polling officials something tangible on which to decide whether a person was disqualified by reason of his mental condition. The trial court did not err in holding that Mr. Linville was not disqualified.

Art. VIII, § 6, of the Constitution provides that: “For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence * * * while a student of any institution of learning”. The statements of the students to the effect that they “intended” to reside in the Maryville school district cannot prevail over admitted facts indicating a residence elsewhere. See Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997, and Goben v. Murrell, 195 Mo.App. 104, 190 S.W. 986, 197 S.W. 432. We agree with the trial court that the evidence was insufficient to establish a voting residence.

As we have previously stated, the issues and the material facts were largely determined by the stipulation agreed to by the parties and filed in the case. The parties are to be commended by the simplification of the issues in this manner. The parties and their counsel were present at the recount of the ballots and made objections which were recorded by the court reporter. An opportunity for a further hearing was provided prior to the final decree. The parties were afforded an opportunity to be heard on all the issues and the case was fairly tried.

We have examined all questions presented by the appellant and find them to be without merit. Accordingly the judgment is affirmed.

All of the Judges concur.