author: STOCKARD, Commissioner.

text:
    John H. JULIAN and Helen M. Julian, Appellants, v. The MAYOR, COUNCILMEN AND CITIZENS OF the CITY OF LIBERTY, a municipal corporation, Respondent.
    No. 51062.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 12, 1965.

      Wm. Coleman Branton, Kent E. Whitta-ker, Kansas City, Brewer, Myers & Bran-ton, Kansas City, of counsel, for plaintiffs-appellants, John H. Julian, Helen M. Julian.
    William E. Turnage, Liberty, for respondents.
   STOCKARD, Commissioner.

In their petition for injunctive relief against the “Mayor, Councilmen and Citizens of the City of Liberty” (designated by Laws of Missouri 1860-61, p. 210, as a body corporate and politic with authority to sue and be sued by that name, but hereafter referred to as the “City of Liberty” or as “defendant”) plaintiffs alleged that the City of Liberty had purported to annex an unincorporated area, including land belonging to them, without complying with the provisions of Section 71.015 (all statutory references are to RSMo 1959, V.A. M.S.) known and hereafter referred 'o as the “Sawyers Act.” The prayer was that the purported annexation be declared null and void, and that the defendant be enjoined from exercising any jurisdiction over the area. The City of Liberty filed a motion to dismiss the petition on the grounds that (1) the Sawyers Act does not apply to the City of Liberty because it is a special charter city, and (2) the Sawyers Act is unconstitutional because it is too indefinite and uncertain to permit a construction thereof “which would give effect to any sufficiently clearly expressed intention of the legislature.” The trial court sustained the motion “on each and both grounds stated therein” and entered judgment accordingly.

Plaintiffs have appealed to this court on the theory that a constitutional question is involved within the meaning of Art. V, Sec. 3, Const, of Mo., V.A.M.S., but defendant states in its brief that it does not now contend that the Sawyers Act is unconstitutional. However, the trial court has held the Sawyers Act to be unconstitutional, and plaintiffs have preserved and presented that issue for appellate review. Defendant’s position that it will not attempt to sustain the ruling of the trial court does not remove the issue from the case. Jurisdiction of this appeal is in this court because of a live constitutional question.

The City of Liberty was incorporated as a special charter city in 1861, Laws of Missouri 1860-61, p. 209, and has so remained. This legislative special charter is to be distinguished from the constitutional special charter for a municipality authorized by Mo.Const.1945, Art. VI, Sec. 19. Therefore, the application of the Sawyers Act to the City of Liberty is not affected by the principle announced in McConnell v. City of Kansas City, Mo., 282 S.W.2d 518, and City of Hannibal v. Winchester, Mo., 391 S.W.2d 279.

Generally speaking, the extension of the boundaries of a city is purely a political matter within the discretionary prerogative of the legislative branch of the government, and it is a legislative function which may be exercised without judicial restraint absent an arbitrary and oppressive exercise of its legislative power. City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4. There is no contention made in this case that the Legislature may not grant to a special legislative charter city by general legislation the authority to extend its limits by annexation, and also to prescribe the procedure to be followed in the exercise of that authority. It is agreed by the parties that the authority for the City of Liberty to extend its limits by annexation is set forth in Section 81.080 as follows : “Any city or town of less than twenty thousand inhabitants and having a special charter, * * * may at any time extend its limits by ordinance, specifying with accuracy the new lines to which it is proposed to extend such limits.” The basic question of this case is whether the above statute, in addition to granting the authority to annex, sets forth all the procedure necessary to be followed in the exercise of that authority, or whether the provisions of the Sawyers Act also are applicable and compliance therewith constitute essential steps in the required procedure for annexation.

The Sawyers Act was enacted in 1953, and provides that “Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of chapter 527 RSMo, praying for a declaratory judgment authorizing such annexation.” It is then further provided that the petition for a declaratory judgment shall state facts showing the area to be annexed, that such annexation is reasonable and necessary to the proper development of the city, and the ability of the city to furnish normal municipal services of the city within a reasonable time after the annexation is to become effective. By its terms, the Sawyers Act, if applicable at all, applies to “any city,” and that includes all cities of all classes, City of Olivette v. Graeler, Mo., 338 S.W.2d 827, 833, except those where the terms of the Sawyers Act conflict with the constitutional provisions relating to annexation, McConnell v. City of Kansas City, supra, and those cities to which the Sawyers Act is made inapplicable by subsequent legislation. See Section 71.920, Laws of Missouri 1963, p. 126, V.A.M.S. pocket parts. The contention of the City of Liberty, as set forth in its brief, is that the term, “Whenever the governing body of any city has adopted a resolution to annex” etc., means “when and if” the governing body adopts a resolution to annex. It then argues that a “resolution to annex” is not required by Section 81.080 and, therefore, since the City of Liberty was not required to and did not adopt a resolution to annex, there is no requirement that in order to extend its limits pursuant to the authority of Section 81.080 it must obtain the declaratory judgment referred to in the Sawyers Act.

The basic rule of construction of a statute is to seek the intention of the Legislature, Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832, which should be ascertained from the words used, if that is possible, Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, and in doing so the words should be given their plain and ordinary meaning so as to promote the object and manifest purpose of the statute. Baker v. Brown’s Estate, 365 Mo. 1159, 294 S.W.2d 22. See also City of St. Joseph v. Hankinson, supra. “The term ‘resolution’ denotes something less formal than the term ‘ordinance;’ generally, it is a mere expression of the opinion or mind of the council concerning some matter of administration coming within its official cognizance, and provides for the disposition of a particular item of the administrative business of a municipal corporation. * * * A resolution is not a law, and in substance there is no difference between a resolution, order, and motion.” 37 Am.Jur. Municipal Corporations § 142; 62 C.J.S. Municipal Corporations § 411; Vol. 5, McQuillin, Municipal Corporations, § 15.02; Baker v. Lake City Sewer Dist., 30 Wash.2d 510, 191 P.2d 844; Mitchell v. Parshall, N.D., 108 N.W.2d 12; Kalamazoo Municipal Utilities Association v. City of Kalamazoo, 345 Mich. 318, 76 N.W.2d 1, 61 A.L.R.2d 583. In the absence of some express requirement, a resolution need not he in any set or particular form, 37 Am.Jur. Municipal Corporations § 145, and while a resolution “is a very different thing” from an ordinance, City of Cape Girardeau v. Fougeu, 30 Mo.App. 551, 556, and will not suffice when action on the part of a municipality is required to be taken by ordinance, Schmoll v. Housing Authority of St. Louis County, Mo., 321 S.W.2d 494, 499, every ordinance necessarily includes all the essential elements of a resolution.

Turning now to the language of the Sawyers Act, it provides that whenever the governing body of any city has adopted a resolution to annex, or stated another way, whenever the governing body of any city has expressed its intention to annex any unincorporated area of land, then “before proceeding as otherwise authorized by law or charter” the declaratory judgment provided for therein shall be obtained. We consider it to be immaterial how that intention to annex is expressed, that is, by a resolution denominated as such, by a motion or order of the governing body of the city, or by an ordinance, which is more than but includes all the elements of a resolution. The name given to the action of the governing body is not the controlling factor. The clearly expressed intent of the Legislature in enacting the Sawyers Act was that any city to which the Act is applicable shall not proceed beyond the expression of intent to annex until it obtains the declaratory judgment therein required, and to hold otherwise would be to give an extremely technical construction to the words used, and would result in thwarting the obvious purpose of the statute. We hold in this case that the Sawyers Act by its terms is applicable to> the City of Liberty, and that once the governing body thereof announced its intention to annex an unincorporated area of land,, regardless of how that intention was expressed, the requirements of the Sawyers; Act became mandatory, and constituted a condition precedent to the exercise of the delegated legislative authority to annex an unincorporated area.

We need not discuss at length the issue of the constitutionality of the Sawyers Act-The City of Liberty has abandoned its contentions pertaining to this issue though successfully made in the trial court. It is. sufficient to say that the reasons advanced in the trial court in support of the contention that the Sawyers Act is unconstitutional were advanced to this court in City of St. Joseph v. Hankinson, Mo., 312 S.W. 2d 4, and there ruled to be without merit.

The judgment of the trial court dismissing-plaintiff’s petition is reversed and the cause is remanded for further proceedings consistent with the views herein expressed.

BARRETT and PRITCHARD, CC.„ concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Roy Lee ENGBERG, alias Walter Johnson, Appellant.
    No. 51095.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 12, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City, Howard L. McFadden, Asst. Atty. Gen., for respondent.
    No appearance for appellant.
   EAGER, Presiding Judge.

On May 9, 1963, this defendant was sentenced to a term of life imprisonment for first degree murder in Division No. 8 of the Circuit Court of Jackson County. He had been tried for that crime in February, 1963. On May 10, 1963, the defendant was sentenced in Division No. 9 of that court to a term of twenty years for first degree robbery. He had been tried for that crime in April, 1963. The first judgment was affirmed by this court in an opinion appearing at 376 S.W.2d 150; the second judgment was likewise affirmed in an opinion appearing at 377 S.W.2d 282.

On September 8, 1964, there was filed in Division No. 8 of that court defendant’s “Motion to Vacate Sentence and Judgment * * In certain respects the motion seems to constitute an attack upon both judgments. We hold that Criminal Rule 27.26, V.A.M.R. does not contemplate any such broadside attack, and that a motion to vacate filed pursuant to that rule must be confined to an attack upon a single judgment and sentence. The wording of the rule clearly indicates this, since it frequently refers to the “sentence” and the “judgment” in the singular. Indeed, endless confusion would be the likely result both in trial and appellate courts if anything more should be permitted. The trial court here (Division No. 8) considered this motion as one solely attacking the murder conviction and entered on September 8, 1963, an order which was in part as follows: “This case was tried in this division. The jury found the defendant guilty of Murder in the First Degree, and assessed his punishment at Life Imprisonment. He was represented by competent appointed counsel. After the verdict a Motion For a New Trial was filed. The Motion was overruled. This case was appealed to the Supreme Court and was by the Court affirmed. It was reported in 376 Southwestern, page 150.

“I have examined the Motion To Vacate, and am overruling said Motion without granting the Petitioner a hearing thereon, as the Motion on its face discloses that no claim for relief was stated therein, and the Petition does not state facts which would entitle the Petitioner to vacation or correction of his sentence.”

The “Notice to Appeal” filed thereafter contains much surplusage and is argumentative, but it will serve as a sufficient notice of appeal from the order and judgment ruling on the motion to vacate the murder conviction, that being the only matter ruled by the trial court. If the defendant wishes to file a separate motion to vacate the conviction for robbery he may do so. Neither the trial court’s ruling nor this opinion precludes him from doing so.

In this motion defendant alleges, in substance, that after his arrest in Denver, Colorado, on a murder warrant from Missouri, he consulted with “his parole officer” and signed a waiver of extradition; that after his return to Kansas City he was interrogated by detectives but that his requests to be allowed to confer with an attorney were ignored; that he later requested the magistrate to appoint counsel for him to protect his rights at the preliminary hearing, this being a capital case, but that the magistrate declined to do so, telling him that he would have counsel in the Circuit Court; that his constitutional rights were thereby violated, and that “there is evidence in the case that would have prevented the prosecution * ⅜ *,” if he had then had counsel; that the prosecutor “deliberately and willfully suppressed evidence and facts”; that an illegal search and seizure was “committed” by the police at a motel room previously rented by him and that “exhibits” were gathered therefrom, the police entering with the approval of the proprietor; that his conviction of murder was “blindly” affirmed on appeal under the felony-murder doctrine which he says was “fantastic,” and with no support in the evidence. Defendant further asserts that he is innocent of the crime. Basically, defendant seems to rely upon a denial5 of due process under the federal decisions.

Upon the filing of the notice of appeal, the trial court entered an order permitting the appeal in forma pauperis and granting defendant a free transcript. In the lengthy notice of appeal complaint is made that Judge Buzard should have disqualified himself from ruling on the present motion, he having presided at the trial. We disregard the assertion entirely, for no steps whatever were taken to disqualify the judge and normally he would be the proper one to pass upon the motion. In that notice defendant further emphasizes that he is attacking both convictions, but that one of them has been ignored. We have already ruled on that point.

The court offered to appoint counsel for the defendant at his arraignment on July 16, 1962; he first declined the offer and entered pro se a plea of not guilty, but later he relented and counsel was appointed for him on that day. This was approximately seven months before the trial. He was represented both at the trial and on appeal by three attorneys.

We have considered on several occasions, and recently, the contention now made that defendant was denied due process by the failure to appoint counsel for him at the preliminary hearing. In State v. Worley, Mo., 383 S.W.2d 529, at loc. cit. 532-533, we said: “Defendant complains that he had no counsel at his preliminary hearing. In the recent case of State v. Gagallarritti, Mo., 377 S.W.2d 298, after discussing the applicable federal cases, this court held that under our practice (contrary to the. procedure in Alabama and Maryland) no prejudice had resulted to defendant by the waiver of a preliminary hearing, without counsel, and that nothing resulting from that action had been used at the trial against him. There the point had been raised at the trial; here it has not been raised until two years later on an after-trial motion. See also State v. Turner, Mo., 353 S.W.2d 602. The only function of a preliminary hearing in Missouri is to determine probable cause. Defendant here waived no rights, and he lost nothing. The cases of Hamilton v. [State of] Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. [State of] Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, are distinguishable upon the grounds stated in Gagallarritti, supra. Following the preliminary, defendant pleaded not guilty at his arraignment, counsel was appointed and he preserved his full rights to a trial completely unhampered by any waivers or admissions.”

Even more recently the question has been re-examined in the case of State v. Phelps, Mo., 384 S.W.2d 616, 619-620,' where the Court said: “As urged by defendant we have reexamined State v. Turner, Mo., 353 S.W.2d 602 and State v. Gagallarritti, Mo., 377 S.W.2d 298 in the light of Crooker v. [State of] California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Douglas v. [People of State of] California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and we find no reason, including those advanced by defendant, not to adhere to our holdings in Turner and Gagallarritti, supra. Defendant’s rights preserved by the Constitution of the United States and the Constitution and laws of Missouri were not violated by the failure to appoint counsel to represent him at his preliminary examination, and we again so hold.” In that case a preliminary hearing was held (not waived), as in the present case. We adhere to those rulings, and hold that this defendant was not deprived of due process, or of any other constitutional rights by the failure of the magistrate to appoint counsel for him.

The defendant asserts that when he was interrogated by the police he was denied the right to “confer” with counsel. He obviously had not employed counsel then, for he had none at arraignment. Defendant does not assert that a confession or any detrimental admissions were obtained from him at any time, and in fact he states affirmatively that no confession was made. No facts whatever are stated which, in connection with the interrogation, would have tended to make his subsequent trial unfair because of the absence of counsel. We discussed this question rather fully in the case of State v. Donnell, Mo., 387 S.W.2d 508, 511-512, where, after reviewing the recent federal cases, we determined that the interrogation and detention of the defendant without counsel under such circumstances did not constitute a deprivation of any of his constitutional rights. We so hold here.

An allegation is made that the prosecutor “deliberately and willfully suppressed evidence and facts.” The transcript of the trial consisted of 528 pages, much of which was testimony. Not a single fact or supposed fact is stated which is claimed to have been suppressed. Such an allegation is very similar to one asserting merely that a conviction has been obtained by the knowing use of false testimony. We have held that such a statement, without factual allegations, is a mere conclusion and that it raises no factual issue requiring a hearing. State v. Statler, Mo., 383 S.W.2d 534, 536-537; State v. Donnell, Mo., 387 S.W.2d 508, 512. Since defendant was represented by three competent lawyers, and had the right to compulsory process, it is obvious that such a statement averring “suppression” is the rankest of conclusions and raises no factual issue. Statler, Donnell, supra.

Defendant also claims that an illegal search and seizure by the police resulted in the taking of certain unspecified “exhibits” from a motel room which he had previously rented, in violation of his right to “due process.” Whatever may be the constitutional right which he presumably seeks thus to invoke, we have held specifically that this is not such a matter as may be Raised in a collateral attack upon a judgment of conviction. State v. Worley, Mo., 383 S.W.2d 529, 533; State v. Durham, Mo., 386 S.W.2d 360, 362; State v. Howe, Mo., 364 S.W.2d 546, certiorari denied 373 U.S. 943, 83 S.Ct. 1552, 10 L.Ed.2d 698. No such question was raised on defendant’s appeal from his murder conviction, 376 S.W.2d 150. The proper place to have raised such a point was in the original criminal proceeding, and the preferable method is by a motion to suppress the evidence. See cases last cited. Merely in passing we note, and not as a ground for this ruling, that this very point was raised by motion to suppress evidence in the robbery prosecution and also by objections made during that trial; the motion was denied and the objections were overruled; the question was considered there at some length on the appeal, where it was adjudicated adversely to the defendant. 377 S.W.2d 282, 285. We do not find from a casual examination of the present trial transcript that any of the articles taken from the motel room were even offered as exhibits in the murder trial.

With reference to defendant’s unflattering assertions concerning the affirmance of his conviction in this court, we merely note that the judgment has been affirmed, and that a motion under Rule 27.26 may not be employed for the purpose of a retrial of a defendant’s guilt, nor may it constitute a second appeal. State v. Statler, Mo., 383 S.W.2d 537-538; State v. Donnell, Mo., 387 S.W.2d 508, 513; State v. Hagedorn, Mo., 305 S.W.2d 700, 702; State v. Warren, Mo., 344 S.W.2d 85, 87.

We hold that defendant has stated no facts which raise a bona fide issue as to the constitutional validity of his trial; hence, the trial court properly denied the motion from a consideration of the files and the records and the motion itself, without the necessity of an evidentiary hearing.

The judgment is affirmed.

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Artura Winifred HAMILTON, Appellant.
    No. 51036.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Gwendolyn M. Wells, Kansas City, for appellant.
   FINCH, Judge.

This is an appeal from a conviction of murder in the second degree. Defendant was sentenced to imprisonment for a term of twelve years.

The jury returned its verdict on June 16, 1964. On that same date, on application of counsel for defendant, the court granted thirty days from June 16, 1964, to file motion for a new trial. Thereafter on July 17, 1964, a motion for new trial was filed. It was taken up and overruled on August 24, 1964, and on that same date an appeal was taken to this court.

Rule 27.20(a), V.A.M.R., requires that motions for new trial in criminal cases be filed within ten days after the verdict is returned, with the proviso that the court may extend the time on application for a maximum of thirty additional days. The transcript in this case discloses that on June 16, 1964, the court entered an order granting a total of thirty days from June 16, 1964, in which to file a motion for new trial. That extended the time to and including July 16, 1964. No application for a further extension was made. Then on July 17, 1964, a motion for new trial was filed. We have held repeatedly that compliance with Rule 27.20(a) is mandatory and that a motion for new trial not filed in conformity therewith is a nullity and preserves nothing for review. We are precluded from consideration of matters required to be preserved in a motion for new trial. State v. Franklin, Mo., 379 S.W.2d 526; State v. Parker, Mo., 310 S.W.2d 923, and State v. Kenton, Mo., 298 S.W.2d 433. The motion for new trial herein was not filed in accordance with the Rule.

No brief on behalf of defendant was filed in this court but the transcript discloses that defendant was represented ably throughout the trial and in all after-trial proceedings in the Circuit Court by an attorney of his selection.

Pursuant to Rule 28.02, V.A.M.R., we have reviewed those matters therein enumerated, for which assignments in a motion for new trial are not necessary, and we find no error. The information is sufficient, the verdict is in order, the punishment fixed was within the statutory limits, defendant was accorded allocution and the judgment is in proper form.

The judgment is affirmed.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Erskine Mike NELSON, Appellant, v. Gilbert Absolom BROWNING, Respondent.
    No. 50743.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 12, 1965.
    See also Mo., 391 S.W.2d 881.

      Hyde, Purcell & Wilhoit, Poplar Bluff, for respondent.
    Schwartz, Schwartz & Gilden, St. Louis, for appellant.
   HOUSER, Commissioner.

Action for $100,000 damages for personal injuries. Plaintiff has appealed from an order sustaining defendant’s motion for summary judgment.

On February 11, 1963 plaintiff filed a petition in the Circuit Court of Butler County, Missouri charging defendant with negligently causing a collision between defendant’s truck and plaintiff’s vehicle resulting in the loss of plaintiff’s left arm and other personal injuries to plaintiff. The collision referred to occurred on June 4, 1956 at which time plaintiff lacked about one month of having attained the age of 19 years.

On March 5, 1963 defendant filed an answer in which he denied the charges of negligence, pleaded contributory negligence, and further pleaded in bar that on October 11, 1956 plaintiff executed a release for $10,500, following statutory proceedings in the Circuit Court of Randolph County, Arkansas for the removal of plaintiff’s disabilities as a minor.

On March 5, 1963 defendant filed a motion to dismiss plaintiff’s petition on the ground that more than 5 years had elapsed since the removal of plaintiff’s disabilities and therefore the action is barred by limitations, and that plaintiff’s petition did not state sufficient grounds upon which relief could be granted. The court did not act on the motion to dismiss.

On the same day defendant filed a motion for summary judgment, alleging that there were no genuine issues as to any material fact; that under Civil Rule 74.04, V.A.M.R. defendant was entitled to a summary judgment in his favor as a matter of law. Incorporated by reference were a copy of plaintiff’s petition for removal of disabilities of minority; a transcript of the hearing therein in the Arkansas court; a copy of the order removing plaintiff’s said disabilities and a copy of a release signed by plaintiff. Defendant asked for summary judgment on two grounds: (1) that the transcript, petition, order and release disclose that more than 5 years had passed since the removal of plaintiff’s disabilities of minority and before this suit was instituted, and (2) that after the removal of his disabilities as a minor plaintiff, in consideration of the payment of $10,500, had executed a binding release of all claims against defendant arising out of the facts alleged in plaintiff’s petition.

Plaintiff filed a reply to the answer, and an “Answer to Defendant’s Motion for Summary Judgment.”

Plaintiff’s reply alleged that in order to obtain the purported release defendant and defendant’s insuror, representatives and attorneys represented to plaintiff that defendant was insolvent and that a judgment against him over the amount of his indemnity insurance coverage (maximum limits $15,000) would be uncollectible; that $10,-500 was the maximum amount plaintiff could possibly collect on his claim; that the only means to legally effect a settlement, in view of plaintiff’s minority, would be through proceedings in an Arkansas court to have his legal disabilities as a minor removed so that he could execute a valid and binding release; that on June 4, 1956 plaintiff was an actual and legal resident of the City of St. Louis, Missouri; that although following his injury plaintiff and his wife stayed temporarily at the home of relatives in Arkansas, his Missouri residence was not given up and he was not in fact or in law a resident of Arkansas at the time he instituted the proceedings in the Arkansas court. Plaintiff alleged that the Arkansas court was without jurisdiction over the subject matter because plaintiff was not a resident of Arkansas or a resident of Randolph County at the time the proceedings were instituted, and that the petition for removal of disabilities was not verified. Plaintiff’s reply further alleged that the foregoing representations were false, and made with knowledge of their falsity or in reckless disregard whether true or false; that in fact defendant was solvent and that a judgment in a sum substantially larger than $10,500 would have been collectible; that defendant’s insurance coverage was in excess of $15,000; that the removal of the disabilities of minority was not the only legal method by which a settlement with plaintiff as a minor could have been effected; that there was then a method in Arkansas similar to that prevailing in Missouri, by which a minor could effect a legal settlement in a proceeding by next friend in which the court would make full inquiry into all the facts and circumstances surrounding the claim, and the amount of the proposed settlement, to determine whether it was fair and reasonable and in the minor’s best interest; that to avoid this inquiry and determination by the court defendant, his insuror, etc., fearing that no court would approve the proposed settlement as fair, and knowing of these applicable Arkansas laws, resorted to the device of removal of disabilities of minority for the sole purpose of accomplishing the settlement for $10,500, which was far less than the amount to which plaintiff was entitled; that but for these false and fraudulent representations he would not have consented to these proceedings; that duress was practiced upon him and that he acted only in full reliance on these representations.

There is nothing of record to show that plaintiff, upon repudiation of the release, restored the $10,500 or tendered that amount before the institution of this lawsuit or before the filing of his reply, or at any other time. Neither in his brief nor in oral argument did plaintiff contend that he made a tender, or seek in any way to excuse his failure to restore or offer to restore the fruits of the settlement. Furthermore, there is nothing in this record to show whether at the time plaintiff became 21 years of age he was still in possession of the money received in settlement, or whether he had spent, wasted and dissipated the funds received.

Plaintiff’s “Answer to Defendant’s Motion for Summary Judgment” alleged that “there is a genuine dispute beween the parties as to certain issues of fact, as more fully set forth in plaintiff’s reply herein filed,” copy of which was made a part of the answer. In support of his “answer” plaintiff filed a 14-page affidavit setting forth in greater detail the facts alleged in plaintiff’s reply. Plaintiff alleged that the affidavit showed the existence of disputed factual issues making trial necessary and summary judgment “wholly unwarranted.”

Defendant filed no affidavit or affidavits in support of his motion for summary judgment or in opposition to plaintiff’s “answer” and supporting affidavit.

At the hearing on the motion for summary judgment the following was introduced in evidence, pursuant to a stipulation of the parties: a verified copy of the petition of plaintiff for the removal of his disabilities of minority; the transcript of the proceedings in that matter in the Circuit Court of Randolph County, Arkansas; the decree and order of that court removing said disabilities; the releases executed by plaintiff and his wife; the procedural statute of Arkansas enabling circuit courts to authorize any male person who is a resident of the county and above the age of 18 years power to transact business in general in like manner and effect as if done by one who had attained his majority; the Arkansas statute defining minors as males of the age of 21 and females of the age of 18 years; and copies of proceedings for the correction of a date in the Arkansas judgment.

Following its rendition plaintiff filed a motion to set aside the summary judgment or in the alternative for a new trial. When that was overruled plaintiff appealed.

The question for decision is whether the court erred in rendering summary judgment for defendant. Are there pleadings, depositions, admissions on file, or affidavits which show that there is no genuine issue as to any material fact and that defendant is entitled to a summary judgment as a matter of law; has it been shown by unassailable proof that defendant is entitled thereto? Civil Rule 74.04, (c), (h).

Plaintiff’s only point on this appeal — that the court erred in rendering summary judgment for detendant — is based upon these contentions: that the record, pleadings, exhibits and affidavits do not show unassail-ably as a matter of law that movant was entitled to summary judgment; that there are many undetermined issues of fact (whether the release was fraudulently procured by false representations of defendant’s insolvency and the uncollectibility of any judgment beyond $15,000; whether it was represented to plaintiff that the proceedings in Arkansas for the removal of his disabilities was the only method of legally effecting a settlement; whether plaintiff was a resident of Missouri or Arkansas when the proceedings were instituted); that the proceedings in Arkansas were not effective in this state; that the Arkansas court had no jurisdiction over plaintiff, a resident of Missouri; that the Arkansas judgment was fraudulently procured; that the court did not make the full inquiry necessary to protect the interests of a minor; that the release was procured by fraud, and that the action is not barred by limitations.

The burden is on the moving party, the defendant in this case, to establish the nonexistence of a material fact. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318; Sprague v. Vogt, 8 Cir., 150 F.2d 795; Stoffel v. Mayfair-Lennox Hotels, Inc., Mo.App., 387 S.W.2d 188[3].

Defendant’s first point is that plaintiff having made no tender of, or offer to tender, the $10,500 which he received when he signed the release, the allegations of his. reply charging fraudulent procurement of the release should not be considered. Plaintiff pleaded fraud in the treaty (i. e. in the inducement) and not fraud in the factum (i. e. in the execution). Fraud in the factum renders the contract void and no tender is necessary. Fraud in the treaty, however, makes a release merely voidable and not void, and absent some other ground dispensing with the rule, tender is a prerequisite or condition precedent to the avoidance of the release and to the maintenance of an action on the original claim or cause of action. Watson v. Bugg, en banc, 365 Mo. 191, 280 S.W.2d 67, [1], and seven Missouri cases cited, l. c. 69, State ex rel. Order of United Commercial Travelers of America v. Shain et al., 339 Mo. 903, 98 S.W.2d 597, 602; Wolf v. St. Louis Public Serv. Co., Mo.App., 357 S.W.2d 950, [8]. This rule is based upon the essential justice of not allowing a plaintiff to appropriate the benefits of a contract of settlement and at the same time deny its obligations. The rule, however, has its limitations when applied to the disaffirmance of a release executed by an infant. (Plaintiff claims he was an infant at the time of the execution of the release, October 11, 1956; that he did not attain his majority until July 7, 1958). An infant may repudiate or dis-affirm his contract after attaining his majority, but in so doing he is obliged to restore to the other contracting party the fruits of the contract within his possession at the time, that is, he must surrender and return the consideration received by him and thus far at least place the parties in status quo, if the consideration is still in his hands. Lacy v. Pixler, 120 Mo. 383, 25 S.W. 206; Craig v. Van Bebber, 100 Mo. 584, 13 S.W. 906; Western Life Insurance Co. v. White, Mo.App., 331 S.W.2d 19[4]; Sassenrath v. Lewis Motor Co., Mo.App., 246 S.W.2d 520; Freiburghaus v. Herman Body Co., Mo.App., 102 S.W.2d 743; 43 C.J.S. Infants § 76 c., p. 183. If during infancy he has wasted or squandered the consideration, or has otherwise made away with it so that he is unable to restore it, he may nevertheless repudiate the contract without making a tender. This on the theory that the privilege of repudiating a contract is accorded an infant because of the indiscretion incident to his immaturity, and if he were required to restore the equivalent where he has wasted or squandered the consideration received, the privilege would he of no avail when most needed. Craig, Freiburghaus, supra, and cases cited; 43 C.J.S. Infants § 76 c., p. 183. The burden is on the other party to the agreement (defendant in this case) to show that the consideration has not been expended if he insists upon restoration of the consideration. Britton v. South Penn Oil Co., 73 W. Va. 792, 81 S.E. 525. The point is ruled against defendant for the reason that defendant has not met the burden of showing (and it is not admitted by plaintiff) that at the time plaintiff reached age 21 years the $10,500 or any part of it was still in his hands.

Next, defendant raises the defense of estoppel. It is urged that by invoking the Arkansas disabilities-removal procedure; by alleging and testifying under oath in that proceeding that he was a resident of Randolph County, Arkansas and by executing a release plaintiff has es-topped himself from again asserting his claim in Missouri. The defense of estoppel must be rejected. Infants are incapable of binding themselves by way of estoppel and are to be relieved from the effect of facts which would create an estoppel against them if they were of full age. Campbell v. Laclede Gas Light Co., 84 Mo. 352; McBeth v. Trabue, 69 Mo. 642; Beck v. Kallmeyer, 42 Mo.App. 563. We reaffirm what the St. Louis Court of Appeals said in Miller v. St. Louis & S. F. R. Co., 188 Mo.App. 402, 174 S.W. 166, 169, in upholding an instruction that plaintiff, because of his infancy, was not bound by a release he executed: “There seems to be authority for the proposition that an infant who has reached the years of discretion may be es-topped in some cases where the conduct on which the estoppel is sought to be based has been intentional and fraudulent, as will appear by reference to 22 Cyc. 512, 513 (now 43 C.J.S. Infants § 26, pp. 87, 88). But, whatever the rule may be elsewhere, the doctrine referred to is without influence here. The rule of decision established by our Supreme Court is to the effect that infants are not subject to the binding effect of estoppel. And the court did not err in refusing defendant’s instruction (that plaintiff was estopped from asserting that he was an infant when he executed the release, by his recital that he was an adult) * * *.» (Parentheses ours.)

The third, fourth and fifth questions sought to be raised by defendant revolve around the question of plaintiff's majority or minority.

Defendant asserts that plaintiff procured a perfectly valid and legal judgment in the Circuit Court of Randolph County, Arkansas, removing his disabilities as a minor; that the decree of the Arkansas court invested plaintiff with the capacity to contract; that that judgment is entitled to full faith and credit in Missouri; that after procuring that judgment plaintiff entered into a valid and binding contract of release by which the instant claim against defendant was fully released; and that in any event plaintiff is barred by the 5-year statute of limitations, which defendant says began to run on October 11, 1956, the date plaintiff’s disabilities as a minor were removed; that limitations ran on October 11, 1961, 16 months before plaintiff filed this action. Defendant contends that all of these things are shown by unassailable proof as a matter of law.

Plaintiff, availing himself of the rule that a judgment of a sister state may be attacked collaterally in this state on evidence dehors the record for lack of jurisdiction and for fraud in its concoction, In re Veach, 365 Mo. 776, 287 S.W.2d 753, 759; Leichty v. Kansas City Bridge Co., 354 Mo. 629, 190 S.W.2d 201 [1, 2], attacks the judgment for lack of jurisdiction over the person of plaintiff on the ground that plaintiff was a nonresident of Arkansas, ineligible to avail himself of Arkansas Statute 34-2001. Plaintiff also attacks the judgment and the release on the ground that they were procured by fraud, and seeks to escape the defense of limitations on the ground that plaintiff was only 18 years old (a minor under Missouri law) at the time he executed the release; that Missouri law and not the Arkansas courts governs in determining when infants attain their majority; that the procedure under Arkansas Statute 34-2001 to remove plaintiff’s disabilities as a minor was invalid in Missouri and without effect in our courts — and that under § 516.170, V.A.M.S., plaintiff had 5 years after reaching his 21st birthday on July 7, 1958 within which to commence his action.

The question is the propriety of the summary judgment rendered for defendant. Has defendant shown by unassailable proof as a matter of law that he is entitled to judgment on either of the three grounds (removal of disabilities by the Arkansas procedure; settlement and release; statute of limitations) ? We are obliged, as a matter of law, to answer the question in the negative.

In order to get to the core of this case we will assume that the judgment of the Circuit Court of Randolph County, Arkansas, purporting to remove plaintiff’s disabilities as a minor, was valid in the state in which it was rendered; that the court had jurisdiction, and that fraud was not practiced in the concoction of the judgment.

The Arkansas judgment ruled that plaintiff’s disabilities of minority were removed generally and for all purposes and authorized him to transact business and manage his affairs generally with the same effect as if done by a person of full age who had attained his majority. Defendant claims that this judgment validated the release subsequently executed while plaintiff was 18 years of age and ended the toll of the 5-year statute of limitations.

The release, executed in Arkansas, purported to release a cause of action which accrued in Missouri. (The accident occurred in Wayne County, Missouri.) While generally matters bearing upon the execution and validity of a contract are determined by the law of the place where the contract is made, State of Kansas ex rel. Winkle Terra Cotta Co. v. United States Fid. & Guar. Co., 322 Mo. 121, 14 S.W.2d 576; 7A Mo.Dig., Contracts, the validity of a contract of release as a defense to an action of tort is governed by the law of the state that created or gave rise to the right released. Western Newspaper Union v. Woodward, (W.D.Mo.1955) 133 F.Supp. 17, 23; Bittner v. Little, 3 Cir., 270 F.2d 286, [5]; Daily v. Somberg, 49 N.J.Super. 469, 140 A.2d 429; Preine v. Freeman, D. C., 112 F.Supp. 257, 260; Mayle v. Criss, D. C., 169 F.Supp. 58; Lindsay v. Chicago, B. & Q. R. Co., 7 Cir., 226 F. 23; Goldstein v. Gilbert, 125 W.Va. 250, 23 S.E.2d 606; 76 C.J.S. Release § 39; Minor on Conflicts, § 197, p. 485; Story on Conflict of Laws, § 558, p. 775; 2 Beale on Conflicts, §§ 388.1, 389.1, pp. 1302, 1303. Under Missouri law the release, executed by a person under the age of 21 years, was voidable at plaintiff’s option for lack of capacity to contract. The internal law of Missouri, where the cause of action accrued, and not the Arkansas law, governs in determining whether plaintiff was or was not a minor, and therefore whether plaintiff was capable or incapable of executing a valid release. In Philpott v. Mo. Pac. Ry. Co., 85 Mo. 164, the parents of a 19-year-old boy, citizens and residents of Texas, brought suit in Missouri for loss of the services of their son as a result of his death in a train collision which occurred in Missouri. Rejecting the defense that plaintiffs did not prove the age of minority in Texas, and that this was an essential element of their case, this Court said, 85 Mo., l. c. 167: “We must be guided by our own law in this respect. As to acts done and rights acquired here, the laws of this state and not those of Texas, must determine whether the son was or was not a minor. 4 Kent’s Com. (12 Ed.) 233, n. c.; Gilberth [State, to Use of Gilbreath] v. Bunce, 55 [65] Mo. 349. * * * ”

The decree of the Arkansas court, which conferred upon plaintiff a personal privilege in a special proceeding applicable only in Arkansas whereby he was enabled to transact business within that state and within the jurisdiction of the law authorizing such a procedure, did not purport to and did not change plaintiff’s status from that of minority to majority in other states where his actions and contracts are governed by the laws there prevailing. The status of minority or majority of all persons within a state is exclusively a matter for that state to determine itself. Deason v. Jones, 7 Cal.App.2d 482, 45 P.2d 1025. Under the full faith and credit clause of the federal constitution the courts of Missouri were not required in this action to recognize the Arkansas decree, or any contract made under its sanction relating to a cause of action which accrued in Missouri. Acting under a predecessor statute of Arkansas Statute 34 — 2001, a resident of Arkansas under the age of 21 years applied to and obtained an order from an Arkansas court permitting him to sue in Missouri for moneys belonging to him, and to execute releases therefor as if of full age. Pursuant to this authority the infant instituted an action in Missouri, which he prosecuted in his own name. This Court affirmed the action of the Circuit Court of Cooper County sustaining a demurrer to the petition, and held that the legislature of Arkansas had no power “to pass a law to override and control our laws” and could not authorize its courts to do this, saying what we repeat here as pertinent, 65 Mo., 1. c. 352: “Our own statutes * * * provide when infants shall attain their majority, and they must be our guide, and not the laws that emanate from a foreign jurisdiction.”

With respect to the statute of limitations, defendant argues that plaintiff, a minor under both the laws of Missouri and Arkansas at the time of the accident, took his transitory cause of action from Missouri, where it accrued, to Arkansas, where he appropriated it; that his disabilities as a minor were removed by the Arkansas court decree of October 11, 1956; that the statute of limitations commenced to run on that date; that the cause of action was barred after October 11, 1961, so that plaintiff’s suit, filed February 11, 1963, was barred by limitations.

Matters relating to the limitation of actions are procedural matters which are governed by the law of the forum, Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455, 129 A.L.R. 829; State of Kansas ex rel. and to Use of Winkle Terra Cotta Co. v. United States Fid. & Guar. Co., 328 Mo. 295, 40 S.W.2d 1050, irrespective of the residence of the parties at the time the cause of action accrued. 53 C.J.S. Limitations of Actions § 27. This rule applies not only to the actual bar itself (the 5-year' limitation in this instance) but also to matters of exception from the bar fixed by the statute. 53 C.J.S. Limitations of Actions § 27. Infancy is. a matter of exception from the bar of limitations; infancy tolls the statute until that disability is removed. Under Missouri law plaintiff was an infant until July 7, 1958, the date on which he attained age 21 years. Missouri’s 5-year statute of limitations, § 516.120(4), V.A.M.S., was tolled until that date, when it commenced to run. Under § 516.170, V.A.M.S., a person under age of 21 years, entitled to bring an action of this kind, is at liberty to do so within 5 years after his disability is removed. Plaintiff therefore had until July 7, 1963 within which to file suit and this action, commenced February 11, 1963, was timely filed.

Defendant was not entitled to summary judgment in the present state of the record. The judgment is reversed and the cause remanded for further proceedings.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Under Arkansas Statute 34 — 2001 the circuit courts of that state are empowered to authorize any male person above the age of 18 years who is a resident of the county to transact business as if done by a person who has attained his majority.

      . Under Arakansas Statute 34 — 2001 the circuit courts of that state are empowered to authorize any male person above the age of 13 years who is a resident of the county to transact business as if done by a person who has attained his majority.

      . This assumption, made only for the purpose of facilitating the disposal of this appeal, is a violent one. Our review of the record indicates that defendant failed to establish by unassailable evidence that plaintiff was a resident of Arkansas or that the judgment was not procured by fraud. Both questions were raised by plaintiff. They were controverted facts. Plaintiff’s charges presented issues which, if decisive, required a trial in order to be determined. The validity or invalidity of the Arkansas judgment, however, is a matter of no consequence for the reasons given, infra.


text:
    Mary Ann NELSON, Appellant, v. Gilbert Absolom BROWNING, Respondent.
    No. 50744.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Motion for Rehearing or to Transfer to Court En Bane Denied July 12, 1965.
    See also Mo., 391 S.W.2d 873.

      Schwartz, Schwartz & Gilden, St. Louis, for appellant.
    Hyde, Purcell & Wilhoit, Poplar Bluff, for respondent.
   HOUSER, Commissioner.

Action for $50,000 damages for loss of services, society, comfort and consortium of her husband, Erskine Mike Nelson. Plaintiff has appealed from an order sustaining defendant’s motion for summary judgment.

On April 20, 1963 plaintiff filed a petition in the Circuit Court of Butler County, Missouri charging that on June 4, 1956 defendant negligently caused a collision between defendant’s truck and plaintiff’s husband’s vehicle resulting in the loss of plaintiff’s husband’s left arm and other personal injuries to him which caused him to develop a severe anxiety state producing headaches, nausea, dizziness, nervousness, an inferiority complex; that as a consequence plaintiff’s husband has been disabled and restricted in his normal activities and pursuits and kept from enjoying life as a normal person, thereby depriving plaintiff permanently of the services, society, comfort and consortium of her husband.

On May 10, 1963 defendant filed a motion to dismiss plaintiff’s petition on the ground that on June 4, 1956 there was no cause of action in favor of a wife for loss of services, etc. of her husband, and that plaintiff’s cause of action is barred by limitations. The court did not act on the motion to dismiss.

On May 10, 1963 defendant filed a motion for summary judgment, alleging that there was no genuine issue as to any material fact; that under Civil Rule 74.04, V.A.M.R. defendant was entitled to a judgment as a matter of law; that female residents of the State of Arkansas attain their majority at age of 18 years and may execute a valid release; that plaintiff signed and executed a valid and binding release of all claims arising out of this accident, including her claim for loss of services. A copy of the release was attached to the motion for summary judgment. Defendant alleged that he was entitled to have judgment directed in his favor by reason of the execution of the release and for the further reason that “more than five years have passed since the removal of disabilities of minority by operation of law of the State of Arkansas and the commencement of this action.” The release, dated October 11, 1956, recited a consideration of $1.00 and other good and valuable considerations. It was a general release by plaintiff of any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action, arising from any previous act or occurrence and particularly on account of all loss or damages of any kind in consequence of the accident of June 4, 1956. It further recited that Mary Ann Nelson was “more than 19 years of age” and that in it she agreed that “this compromise settlement” should apply “to all unknown and unanticipated injuries and damages” resulting from the accident as well as to those then disclosed, and that “said payment and settlement in compromise is made to terminate further controversy respecting all claims for damages” theretofore asserted or which might thereafter be asserted because of the accident.

Plaintiff filed an “Answer to Motion for Summary Judgment,” alleging that there were several distinct material issues of fact, as shown by an accompanying affidavit which was incorporated in plaintiff’s “answer”; that plaintiff was entitled to have said issues tried “as part of plaintiff’s entire case” and that there was no basis in law for the rendition of summary judgment.

Plaintiff’s affidavit in opposition to defendant’s motion for summary judgment stated that she was uncertain whether she did in fact execute the “purported” release but that if she did it was obtained from her without her receiving any consideration; that she complied with the request of defendant and his insuror that she execute the release, upon their representations that inasmuch as she had not and was not making any claim for injuries to her own person her signature to the release “would be merely a matter of form to which she should have no objection”; that at no time was mention made of any possible claim she might assert for loss of services of her husband; that if she executed the release she did not understand from its language that she was releasing any such claim nor was it intended by her or the other parties to the release that it embrace any such claim, but that the whole purpose of the release was to definitely establish in writing that she was not making any claim for injuries to her own person; that except for her reliance on these representations and her understanding of the aforesaid purpose of the release she would not have signed it, because she never intended to release the claim which is the subject of this action; that in fact it was not known, understood or contemplated by any of the parties that as a wife she had any right to assert a claim or collect damages for loss of services of her husband.

Defendant filed no answer to the plaintiffs petition; no affidavit or affidavits in support of his motion for summary judgment, in opposition to plaintiff’s “Answer to Motion for Summary Judgment,” or in opposition to plaintiff’s affidavit.

At the hearing on the motion for summary judgment the following was introduced in evidence, pursuant to a stipulation of the parties: a verified copy of the petition of plaintiff’s husband for the removal of his disabilities of minority; the transcript of the proceedings in that matter in the Circuit Court of Randolph County, Arkansas; the decree and order of that court removing plaintiff’s husband’s disabilities as a minor; the releases executed by plaintiff and her husband; the procedural statute of Arkansas enabling circuit courts to authorize any male person who is a resident of the county and above the age of 18 years power to transact business in general in like manner and effect as if done by one who had attained his majority; the Arkansas statute defining minors as males of the age of 21 and females of the age of 18 years; and copies of proceedings for the correction of a date in the Arkansas judgment.

Following its rendition plaintiff filed a motion to set aside the summary judgment or in the alternative for a new trial. When that was overruled plaintiff appealed.

The question for decision is whether the court erred in rendering summary judgment for defendant. Are there pleadings, depositions, admissions on file, or affidavits which show that there is no genuine issue as to any material fact and that defendant is entitled to a summary judgment as a matter of law; has it been shown by unassailable proof that defendant is entitled thereto ? Civil Rule 74.04(c), (h).

Plaintiff’s first point is that the court erred in not limiting its consideration to “the pleadings, depositions and admissions on file, together with the affidavits, if any” referred to in Civil Rule 74.04(c); that there was no conceivable basis for the entering of summary judgment if the court had so confined itself. In effect plaintiff argues that the only pleading before the court was her petition; that defendant filed no answer; that defendant’s motions to dismiss and for summary judgment are motions, not pleadings, and may not of themselves provide the basis for the showing necessary to grant a summary judgment; that there were no depositions and no admissions on file; that defendant filed no affidavits — that the only affidavit on file was plaintiff’s. Defendant properly counters with the suggestion that this ignores the evidence introduced by stipulation for the court’s consideration in passing upon the motion for summary judgment, and admits that to sustain the summary judgment he is counting only on the matters set forth in his motion for summary judgment, and not on those stated in his motion to dismiss. This, together with the fact that the court’s order does not mention it, eliminates plaintiff’s point that the court erroneously based its decision on the case of Novak v. Kansas City Transit, Inc., Mo. Sup., 365 S.W.2d 539, and narrows our inquiry to the question whether defendant has shown by unassailable proof that defendant is entitled to judgment as a matter of law on either of two grounds: (1) the release, or (2) the statute of limitations.

The opinion in Nelson v. Browning, Mo., 391 S.W.2d 873, handed down concurrently herewith, controls the disposition of this case. We held there that the validity of a contract of release as a defense in an action of tort is governed by the law of the state that created or gave rise to the right release (Missouri in this case); that under Missouri law a release, executed by a person under the age of 21 years, is voidable at the option of the releasor, for lack of capacity to contract; that questions of minority or majority of persons within a state who seek to assert rights which accrued within the state, are to be determined by the law of the forum (Missouri in this case) ; and that matters of exception from the bar fixed by the statute of limitations, such as infancy, are procedural matters which are governed by the law of the forum (Missouri).

As to the matter of limitations: Plaintiff was over the age of 18 years and under the age of 21 years on June 4, 1956, when the accident happened, and on October 11, 1956, when the release was alleged to have been executed. She became 21 years of age on December 27, 1958. Causes of action sounding in tort accrue, and limitations thereon begin to run, from the time the person damaged acquires a present right to sue. Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 24 A.L.R.2d 611; 54 C.J.S. Limitations of Actions §§ 108, 109, 168a; 34 Am.Jur. Limitation of Actions, § 113. Plaintiff’s present right to sue accrued on her 21st birthday, she having been under age under our law when the accident occurred. The 5-year statute of limitations was tolled by infancy until December 27, 1958, at which time the statute began to run. Plaintiff had until December 27, 1963 within which to file suit. The filing on April 20, 1963, within the 5-year period provided by § 516.170, V.A. M.S., was timely. As a matter of law this action is not barred by limitations.

As to the release: At the time she executed the release plaintiff is undis-putably shown to have been over the age of 18 years and under the age of 21 years. Under the case of Nelson v. Browning, supra, we disregard the law of Arkansas, Arkansas Statute 57-103, under which females over the age of 18 years are considered of full age for all purposes, and apply the Missouri law, under which plaintiff was a minor. We declare as a matter of law that when she executed the release plaintiff, a minor, lacked capacity to contract; that the release was voidable at the option of plaintiff, and that she was entitled to disaffirm and repudiate the release at any time during her minority and within a reasonable time after coming of age. Robison v. Floesch Const. Co., 291 Mo. 34, 236 S.W. 332, 20 A.L.R. 1239. “What is a reasonable time is ordinarily a question of fact, to be determined according to the circumstances of each case, unless, it has been said, the matter is so clear one way or the other that the court can decide it as a matter of law.” 43 C.J.S. Infants § 75, p. 173. Whether plaintiff lost her right to disaffirm and repudiate the contract of release by waiting too long after attaining her majority is a question which has not been raised on this appeal, and which we will not undertake to decide. Defendant may be advised to raise this issue, on proper allegations, on remand of this cause, but so far defendant has failed to show by unassailable proof that he is entitled to summary judgment on the basis of the release, and it was error to so rule.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Paul Earvin JEFFERSON, Appellant.
    No. 50843.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, John H. Denman, Asst. Atty. Gen., for respondent.
    James V. Gallen, St. Louis, for appellant.
   STORCKMAN, Judge.

The defendant Paul Earvin Jefferson was charged, tried, and convicted of the illegal possession of amphetamine, a stimulant drug. Section 195.270, RSMo 1963, Cum. Supp., V.A.M.S. The court also found that he had been previously convicted on four occasions as charged pursuant to the Habitual Criminal Act. Section 556.280, RSMo 1959, V.A.M.S. The defendant’s motion for new trial was overruled and he was sentenced to a three-year term of imprisonment.

The defendant was represented at the trial by able court-appointed counsel and is represented here by the same attorney. Defendant’s brief presents three points: (1) that the court erred in refusing to sustain the defendant’s motion to suppress certain evidence alleged to have been illegally seized in violation of the defendant’s constitutional rights; (2) that the state failed to prove that the defendant had possession of the drug within the meaning of the law; and (3) that the state failed to prove that the defendant had in his possession a drug which had an exciting effect on the central nervous system of a human or an animal as alleged in the information.

On December 29, 1963, at about 10 p.m., four police officers went to a house located at 4144 Fairfax in the City of St. Louis accompanied by Cleveland Owens who had been arrested on a charge of stealing three items valued at less than $50. In the course of questioning, Cleveland Owens had told the police that he had sold one of the stolen articles to a Russell Yates at the Fairfax address for a $5 package of amphetamine. In response to a knock by Owens, the defendant came to the door and upon seeing the police officers retreated into the house followed by the officers. The defendant was arrested along with Russell Yates and two other persons. The police seized a syringe and hypodermic needle seen in the right hand of the defendant and a rag or piece of cloth tied around the upper part of defendant’s left arm. The defendant’s motion to suppress these articles and exclude them from evidence was overruled. The fluid in the syringe was analyzed by a chemist employed by the Metropolitan Police Department and was found to contain amphetamine.

The defendant’s first assignment is that the court erred in refusing to sustain his motion to suppress the syringe, needle, and armband as evidence because the articles were obtained by an “unlawful arrest, search and seizure in that no reasonable and probable cause existed for such arrest, search and seizure and no search warrant had issued” contrary to §§ IS and 19 of Art. 1 of the Constitution of Missouri 1945, Y.A.M.S., and the Fourth, Fifth and Fourteenth Amendments of the United States Constitution.

The legality of the seizure of the articles sought to be suppressed depends largely on the testimony of Detective Richard A. Miller. When Officer Miller and the others reached 4144 Fairfax, Patrolman Robert Beeks was detailed to guard the front door and the others went to a door on the east side next to which was a porch about ten by twelve feet. Cleveland Owens was directed to a position in front of the door and Officer Miller stood to his right. Detective James A. Whealan was behind them standing on the porch steps and Sergeant Gay Carraway was behind Whealan.

Cleveland Owens knocked on the door and one of three small apertures or windows in the door was opened by the defendant. The door was then opened. The door led into a small hallway or area from which there was a door leading south into a middle room of the house. Detective Miller testified that when the defendant opened the outside door, he was wearing a vest and his left shirt sleeve was rolled up and a rag or armband was tied around the muscle of his upper left arm. In his right hand the defendant held a syringe with a hypodermic needle attached. When the defendant saw that Owens was accompanied by others, he attempted to close the outside door. Detective Miller tried to identify those present as police officers, but all he was able to call out was “Police” before he had to push against the outside door to prevent its being closed. The defendant went through another door into the middle room and attempted to slam that door behind him, but Detective Miller followed him closely and also prevented the inner door from being closed. In the middle room Detective Miller struggled with the defendant who put his hands behind him and Officer Miller saw the defendant drop the syringe and hypodermic needle to the floor. After Detective Miller subdued and handcuffed the defendant, he took possession of the syringe, hypodermic needle and armband which were introduced into evidence.

The other police officers followed Officer Miller into the house and corroborated the testimony of Detective Miller except they were not in a position to see the syringe, hypodermic needle and armband while they were in the defendant’s possession. The defendant questions whether there was sufficient light at the outside door where the defendant was standing for Officer Miller to see the rag on the defendant’s arm and the syringe and hypodermic needle in his hand. Officer Miller testified that when the defendant opened the door the light from the inside and from the streetlights outside were sufficient to enable him to see the defendant clearly. It is a reasonable inference from all the evidence that the outside lighting was sufficient for the defendant to recognize Cleveland Owens standing directly in front of the door when he looked through the peephole in the door and sufficient to see the accompanying officers when he opened the door, and that this unexpected sight caused him to hurry back into the middle room and attempt to close the doors behind him. The positive evidence of Officer Miller and other reasonable inferences constitute substantial evidence that the defendant did appear at the door with the band on his left arm and the syringe and hypodermic needle in his right hand and was seen by Officer Miller in this condition. The essential question for determination is whether the arrest of the defendant was lawful in these particular circumstances.

An arrest by a police officer of the City of St. Louis without a warrant is authorized by law when the police officer has reasonable grounds to believe that an offense against the law has been committed by the person arrested. Section 84.090, RS Mo 1959, V.A.M.S.; State v. Edmonson, Mo., 371 S.W.2d 273, 276 [4]; State v. Vollmar, Mo., 389 S.W.2d 20, 24[4]; City of St. Louis v. Washington, Mo.App., 223 S.W.2d 858, 862[1], It is further well settled that when a person has been lawfully arrested, a search without a warrant may be made of the person and of the premises where he was arrested. State v. Vollmar, Mo., 389 S.W.2d 20, 25 [7]; State v. Berstein, Mo., 372 S.W.2d 57, 59 [4].

Where the articles sought to be suppressed were in plain sight of the arresting officer, were dropped or thrown away by the person arrested, and were picked up by the officers, the articles are admissible in evidence over an objection that they were seized as the result of an unlawful search. State v. Owens, Mo., 391 S.W.2d 248 (No. 50,686, decided June 14, 1965); State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551, 553[6]; State v. Harris, Mo.App., 325 S.W.2d 352, 356 [4]. See also State v. Engberg, Mo., 377 S.W.2d 282, 285 [5, 6]. As previously stated, the essential question is whether the arrest was lawful. In this connection, both sides have referred us to numerous federal decisions bearing on the question. We have examined all of them but find it unnecessary to review them in the opinion since the Missouri and federal constitutional standards are not inconsistent. State v. Owens, Mo., 391 S.W.2d 248 (No. 50,686, decided June 14, 1965).

What constitutes reasonable grounds to believe that an offense has been committed by the person arrested is incapable of an exact definition beyond saying that the officer must not act arbitrarily, must exercise his discretion in a legal manner, must use all reasonable means to prevent mistakes and must be actuated by such motives as would influence a reasonable man acting in good faith. State v. Cantrell, Mo., 310 S.W.2d 866, 869[6]; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 225[2, 3], 228[10]; 13 L.Ed.2d 142. See generally 6 C.J.S. Arrest § 6d(l), p. 596.

The defendant seeks to isolate and separately invalidate component parts of the transaction, but the reasonableness of the arrest must be determined on all the related circumstances. United States v. Clark, 19 F.Supp. 972, 974[4]. Chapter 195 of the Missouri statutes, V.A.M.S. is a comprehensive regulation of harmful drugs, including narcotics, barbiturates and stimulants of which amphetamine is one. The police officers including Detective Miller had information that amphetamine could be obtained at the Fairfax address and went there to interrogate Russell Yates who was reported to have sold some of the drug to Cleveland Owens. It is common knowledge that drug addicts use hypodermic needles to inject prohibited drugs into their bodies. When the defendant answered the door, his appearance was that he was about to give himself a “shot” in the left arm when interrupted by Owens’ knock. This situation was clearly apparent to Officer Miller when he called out “Police” and the defendant fled back into the house. The fact that the defendant attempted to run away may be considered in determining whether he was engaged in a lawful undertaking. State v. Harris, Mo.App., 325 S.W.2d 352, 358[14 — 16]. The defendant’s further effort to conceal the syringe and needle behind him and finally dropping them to the floor are additional incriminating circumstances

The defendant contends he was lawfully on the premises although he was not a resident there and had a “standing to invoke the privacy of the premises by a Motion to Suppress the use as evidence of property seized in the search of the premises.” This overlooks the fact that the syringe, needle and armband were in plain view and were not discovered by a search of the premises. We conclude that Officer Miller had reasonable grounds to believe that the defendant was engaged in the commission of an offense in that he was unlawfully in possession of amphetamine. The arrest and the seizure of the syringe, its contents, the hypodermic needle, and the armband was lawful and the trial court did not err in overruling the motion to suppress and admitting the articles in evidence. State v. Owens, Mo., 391 S.W.2d 248 (No. 50,686, decided June 14, 1965).

Next the defendant contends that the state failed to prove that he had possession of a stimulant drug within the meaning of the law “to the extent of having active control over and management of the drug, Amphetamine, and not a passing or fleeting control.” In argument the defendant states that the state’s evidence merely indicated “that the needle and syringe with its contents were in the Appellant’s right hand for the -purpose only of injecting the contents into his person.” In support of his contention, the defendant cites State v. Lane, 221 Mo.App. 148, 297 S.W. 708, State v. Huff, 317 Mo. 299, 296 S.W. 121, State v. Nelson, Mo.App., 21 S.W.2d 190, and 48 C.J.S. Intoxicating Liquors § 222, page 353. These cases and text all deal with intoxicating liquor in situations where the possession was constructive or where the evidence showed or tended to show that the liquor belonged to another and the defendant had possession of the bottle only long enough to take a drink. They are not controlling in this situation.

The statute in question here is directed against the “possession, sale, distribution, or transfer” of any of the prohibited drugs including amphetamine. Section 195.240, RS Mo 1959, V.A.M.S. In Webster’s Third New International Dictionary, possession is defined as “the act or condition of having in or taking into one’s control or holding at one’s disposal”. The defendant in the instant case had the entire possession. It was actual possession and not constructive possession. The drug in his hand was under his control and was subject to his disposal in that the evidence tends to show that he was about to inject the drug into his body. We have no doubt that the sort of possession shown by the evidence was intended to be included in and prohibited by the statute. State v. Owens, Mo., 391 S.W.2d 248, (No. 50,686, decided June 14, 1965). The court did not err in failing to enter judgment of acquittal on this ground.

The defendant’s final contention is that the state failed to prove that the defendant had in his possession a drug, amphetamine, which “has an exciting effect on the central nervous system of a human or animal”. He cites only the statute* § 195.240. Mr. John Klosterman, a chemist for the police department, testified that his chemical analysis revealed the presence of amphetamine in a water solution, but that he made no analysis to determine the quantity or concentration of the drug and, therefore, could not testify to the stimulating effect of the solution. The essence of the defendant’s contention as revealed in his written argument is that the state must establish the presence of the drug in sufficient concentration to stimulate the nervous system in order to support the conviction.

With certain exceptions not material here, § 195.240 renders unlawful the possession “of any drug which is designated by the division of health to be a barbiturate or stimulant”. Section 195.220 defines “Stimulant” to mean “amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal.” Section 195.230 requires the division of health to prepare and file with the secretary of state “a list of all drugs falling within the purview of the terms barbiturate or stimulant.” A list so prepared and filed was introduced in evidence by the state. The exhibit designated amphetamine as a stimulant drug. Thus, the list of the division of health as well as § 195.220 specifically designates amphetamine as a stimulant, the possession of which is rendered unlawful by § 195.240.

The term “which have an exciting effect on the central nervous system of a human or animal” modifies and is descriptive of the essential nature of the prohibited derivatives of amphetamine. It is not the legislative intent that this phrase prescribe the quantity or amount of amphetamine or its derivatives that must be possessed before the possession becomes unlawful. The statute does not specify any permissible quantity or amount. We conclude that the possession of any amount, even a modicum, of amphetamine is within the prohibition of the.statute. This can be the only reasonable interpretation in view of evil which the general assembly seeks to abate. See State v. Lunfrunk, Mo.App., 279 S.W. 733, 736 [9]; Mickens v. People, 148 Colo. 237, 365 P.2d 679, 681 [3] ; Peachie v. State, 203 Md. 239, 100 A.2d 1, 2[1]; Blaylock v. State, 171 Tex.Cr.R. 665, 352 S.W.2d 727, 728; Anno.: 91 A.L.R.2d 810, 829, § 7. The state was not required to prove that the quantity of amphetamine in the solution was sufficient to have an exciting effect on the central nervous system of a human or an animal.

We have examined parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08, V.A.M.R., and find them to be proper in form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Elma A. SCOTT, Respondent, v. Gordon O. NORMAN, Appellant.
    No. 50723.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.
    Motion for Rehearing or to Transfer to Court En Bane Denied. July 12, 1965.

      Jack Z. Krigel, Kansas City, for respondent.
    Clem W. Fairchild, James F. Stigall, Kansas City, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant.
   WELBORN, Commissioner.

This is an action for damages for personal injuries sustained by the plaintiff while employed by defendant as a housekeeper when she fell through the ceiling of defendant’s garage to the floor below. Damages were sought in the amount of $75,000.00. The jury returned a $20,000 verdict in favor of plaintiff. Defendant’s after-trial motions for judgment notwithstanding the verdict and, in the alternative, for a new trial were overruled. However, the trial court did order a new trial on the issue of damages only. The defendant, as he had a right to do (Page v. Hamilton, Mo.Sup., 329 S.W.2d 758, 762(3), Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695(5), 34 A.L.R.2d 972), has appealed from this order. The amount in dispute is within the jurisdictional limit of this court.

The accident in question occurred on May 13, 1961 at defendant’s residence in Leawood, Kansas. Defendant, a widower, had, in January, 1961, employed plaintiff as housekeeper, cook and domestic servant in his home. Plaintiff had been in the home thereafter continuously until the date of her fall. Defendant’s one-story ranch type residence had an attached garage above which there was an attic used for storage. Access to the attic was by way of a finished stairway, entry to which was through a door in the garage. The garage ceiling was of plasterboard attached to the underside of 2 x 6" or 2 x 8" joists. There was no floor or other covering over the joists. Persons entering the attic were obliged to proceed along the 2-inch edges of the joists, which were on 24-inch centers.

When plaintiff was shown through the premises by the defendant prior to her employment, the defendant showed plaintiff the storage space in the attic. According to plaintiff, defendant cautioned her to be careful should she have occasion to enter that area. Plaintiff had, she stated, been in the attic some twelve times prior to the occasion on which she fell. Her other visits had been without incident.

On the morning of May 13, 1961, plaintiff went to the attic to obtain a book for use in assisting the defendant’s 10-year old daughter with her school work. According to the plaintiff, she stepped out on the joists to a box where the book was located, stooped over and picked up the book. She then lost her balance, slipped from the joists and fell through the plasterboard to the concrete floor of the garage ten feet below. She suffered injuries, the nature and extent of which need not be detailed.

The basis of liability for the plaintiff’s action was the failure of defendant to provide plaintiff with a reasonably safe place to work. No question is here raised as to whether or not plaintiff was authorized to enter the attic or as to whether or not on the occasion of her fall she .did enter the attic in the course of her employment.

On this appeal, appellant urges first that his motion for judgment should have been sustained on the grounds that no negligence on his part was shown and that any injury which plaintiff suffered was the result of the risk of her employment which she assumed.

The defendant’s liability is to be determined according to the law of the State of Kansas. We are cited no Kansas cases dealing with the standard of care to be exercised by an employer toward his household employees. However, “the general common-law principles governing the liability of a master for injury to his servant have been applied in the cases involving domestic servants, and accordingly it has been held that the master is required to exercise reasonable care to furnish the servant with a reasonably safe place in which to work * * *. On the other hand, it has been recognized that in the absence of a statute providing otherwise, a domestic servant assumes the risk of dangers which are normally incident to the employment * * Annotation 49 A.L.R.2d 317, 319-323.

In our opinion, plaintiff’s evidence made a submissible case on defendant’s failure to provide plaintiff a reasonably safe place to work. Defendant’s warning to plaintiff when she was employed shows that defendant was aware of the dangers to be encountered upon entering the attic. In a portion of defendant’s deposition which plaintiff introduced in evidence, the defendant stated he felt that a person using the attic could maintain his balance by holding to the rafters under the roof. However, he acknowledged that his unusual height of & 6" made it possible for him to do so and that a person of lesser height might not have been able to use the rafters at all places in the attic. Although the plaintiff’s height is not shown, the jury-having an opportunity to see her might well have concluded that a person of her height would have been unable to use the rafters to maintain her balance. Under all of the evidence, we think it was for the jury to determine whether or not the defendant had fulfilled his duty to provide plaintiff with a reasonably safe place to work.

The question remains whether or not plaintiff as a matter of law is entitled to recover in this case by reason of the doctrine of assumption of risk. In Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765, 773, the court stated: “The assumption of the usual risks of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent man could appreciate and understand, the workman who persists in the employment assumes the risk of it.”

The plaintiff contends that, if the defendant was negligent, and we have concluded that the jury might have so found, the doctrine of assumption of risk cannot be applied to defeat the plaintiff’s recovery for injury attributable to such negligence.

With all due respect for the courts of our sister state, we must state that we do not find the law of the State of Kansas entirely clear in this respect. We add that the situation in Kansas is in no manner unique. Uncertainty and ambiguity are among the most frequently mentioned attributes of the doctrine of assumption of risk in practically all jurisdictions.

In Missouri, the courts at an early stage in the development of the law of master and servant (Devlin v. The Wabash, St. L. P. Ry. Co. (1885), 87 Mo. 545) adopted what has come to be known as the “Missouri Doctrine.” Under this doctrine, in an action by a servant for injury based upon negligence of the master, the showing of negligence on the latter’s part precludes his reliance upon the servant’s assumption of the risk. Negligence, causation and injury being proved, liability upon the part of the master may be avoided only on the grounds of contributory negligence of the servant. For some time this doctrine was regarded as peculiar to Missouri and North Carolina. However, in recent years at least two other jurisdictions have accepted it. See Siragusa v. Swedish Hospital, 60 Wash.2d 310, 373 P.2d 767, 38 Wash.Law Review 349; Ritter v. Beals, 225 Or. 504, 358 P.2d 1080. Attention is also called to Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208. This case, although not a master-servant case, discusses the relationship between the doctrine of assumption of risk and contributory negligence.

In the case of Lee v. Missouri Pacific R.Co., 195 Mo. 400, 92 S.W. 614, the court en banc examined the Kansas law regarding assumption of risk. In discussing the applicable law of Kansas, the court stated (92 S.W. 619) : “We have gone through the Kansas cases cited by appellant, and also those cited by respondent, to discover what difference, if any, there is in the law of that state and our law in reference to the liability of the master to the servant in such case, and we discover no material difference. The Kansas court has not, in the cases that we have seen, emphasized the distinction between contributory negligence and assumption of risk as we have done, but in the main it has declared the law as we have declared it.” The Kansas case primarily relied upon was Emporia v. Kowalski, 66 Kan. 64, 71 P. 232.

The author of a note in 28 L.R.A. (N.S.) 1215, on the subject, “May servant assume the risk of dangers created by the master’s negligence” takes issue with the Missouri court’s conclusion with respect to the Kansas law. The writer of the note states: “The so-called Missouri doctrine has never acquired the slightest foothold in * * Kansas * A year following the Missouri court’s decision in the Lee case, the Kansas Supreme Court, in Kansas City, M. & O. Ry. Co. v. Loosley, 76 Kan. 103, 115, 90 P. 990, 995, stated: “In Missouri and perhaps in some other jurisdictions an attempt has been made to engraft the rules of contributory negligence upon assumption of risk after the master’s neglect or refusal, upon complaint, to remedy conditions negligently suffered to exist, and the authorities to that effect are invoked here. Such a rule is arbitrary with the court adopting it, and for the reasons stated is unsound.”

Examination of the Kansas cases does reveal the use of language in some of them quite similar to that employed in the decisions of the courts of this state. In Kowal-ski, cited in the Lee case, supra, the court stated (71 P. 234) : “It is contended that the defendant assumed the risk of injury from the falling of the pole, and therefore he cannot recover. While it is true the em-ployé assumes the ordinary risks incident to his employment, the risks thus assumed by him are those only which occur after the due performance by the master of those duties which the law imposes upon him.” Compare this with the language employed in Goodwin v. Missouri Pacific R.Co., 335 Mo. 398, 72 S.W.2d 988 and Hines v. Continental Baking Co., Mo.Sup., 334 S.W.2d 140.

The plaintiff in support of her contention that under Kansas law an assumed risk does not include negligence for which the master is responsible cites Griffin v. Fredonia Brick Company, 84 Kan. 347, 114 P. 217 and Missouri, K. & T. Ry. Co. v. Green, 75 Kan. 504, 89 P. 1042. The court in the latter case did state (75 Kan. 513, 89 P. p. 1045): “In cases not covered by the statute assumed risk does not include negligence for which the master is responsible.” Citing Emporia v. Kowalski, supra. However, the actual question presented in Green was whether or not an employee assumed the risk of negligence of a fellow employee and the court held that a statute precluded application of the doctrine of assumed risk in the case. Griffin involved the death of an employee in a shale pit resulting from rock overhanging the track on which the cars in which the defendant rode traveled. The court did refer to assumptions of risk of dangers “which arise after the master has used due diligence to make the place where work is performed reasonably safe.” 84 Kan. 349, 114 P. 217. However, there was no basis for application of the doctrine of assumed risk in that case because there was no showing that the employee was in any way aware of the dangerous condition which produced his death.

Although the language employed in the above cases and others might lend support to the proposition urged by the plaintiff, the actual decisions do not because under the facts of the cases the doctrine of assumption of risk was not applicable.

In Kowalski, cited by the Missouri court as evidencing that the law of Kansas and Missouri was the same, the factor causing the injury was one of which the employee had no knowledge or reason to know. Concerning the defect of the pole which fell injuring plaintiff, the court stated: “(T)he defect in the pole was not patent nor observable, and was not known and could not have been observed by him in the exercise of ordinary care in the performance of his duties.” 66 Kan. 71, 71 P. p. 234. Furthermore, in addition to the statement quoted in the Lee case, the Kansas court stated: “If, however, the place is dangerous, or the tools and appliances furnished are unfit for the use for which they are intended, and these facts are within the knowledge of the employee, or are so plainly observable that, in the exercise of reasonable care, he should have discovered the danger therefrom, and he continues in the service without objection or without promise of repair, he is properly held to assume the risk.” 66 Kan. 67-68, 71 P. p. 233.

Our review of Kansas authorities, including Rush v. Mo. Pac. R. Co., 36 Kan. 129, 12 P. 582; Atchison T. & S. F. R. Co. v. Schroeder, 47 Kan. 315, 27 P. 965; Southern Kansas R. Co. v. Drake, 53 Kan. 1, 35 P. 825; Morbach v. Home Mining Co., 53 Kan. 731, 37 P. 122; Walker v. Scott, 67 Kan. 814, 64 P. 615; Schwarzschild & Sulzberger v. Drysdale, 69 Kan. 119, 76 P. 441; Kansas City, M. & O. Ry. Co. v. Loosley, supra; Barnett v. United Kansas Portland Cement Co., 91 Kan. 719, 139 P. 484; Ernst v. Chicago G. W. R. Co., 105 Kan. 706, 185 P. 1053; McMullen v. A. T. & S. F. R. Co., 107 Kan. 274, 191 P. 306; Hollingsworth v. Berry, 111 Kan. 730, 207 P. 841; Lively v. Chicago, R. I. & P. R. Co., 115 Kan. 784, 225 P. 103; Luebken v. City of Hanover, 129 Kan. 443, 283 P. 501, leads us to conclude that the Kansas courts have followed the rule generally followed in other jurisdictions, which has been stated as follows: “A servant who, either before or after he commences the performance of the contract of employment, has ascertained, or ought, in the exercise of proper care, to have ascertained, that the ordinary hazards of his environment have been augmented by abnormal conditions produced by the negligence of his master or of his master’s representative, and has accepted or continued in the employment without making any objection and without receiving any promise that the abnormal conditions will be remedied, is deemed, as a matter of law, to have assumed the risk thus superadded, and to have waived any right which he might otherwise have had to claim an indemnity for injuries resulting from the existence of that risk.” 3 Labatt, Master and Servant, 2d, Section 1182, pages 3171— 3176.

In Kansas, as elsewhere, the advent of workmen’s compensation has obscured to a considerable degree the prominence once attached to the doctrine of assumption of risk. However, examination of more recent Kansas cases such as Fishburn v. International Harvester Co., 157 Kan. 43, 138 P.2d 471; Cruzan v. Grace, 165 Kan. 638, 198 P.2d 154; Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227, 63 A.L.R.2d 175; Taylor v. Hostetler, 186 Kan. 788, 352 P.2d 1042; Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765, and Concannon v. Taylor, 190 Kan. 687, 378 P.2d 82, some of which continue to employ language similar to that in Kowalski, does not persuade us that the law in Kansas is otherwise than as above stated. We have been cited to and find no Kansas decision directly holding that under the law of that state an employee does not assume the risk arising from negligence on the part of his employer. We therefore conclude that the doctrine of assumption of risk is. applicable in this case.

In determining in this particular case whether or not plaintiff is precluded from recovery by virtue of such doctrine, the evidence is to be viewed in a light most favorable to the plaintiff. However, admissions by her are binding and conclusive upon her if uncontradicted or unexplained. Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765, 771(10).

In this case the photographic evidence and the plaintiff’s testimony clearly reveal that the condition of the attic was open and obvious. The plaintiff acknowledged that she was aware that if she stepped on the plasterboard she would fall through it. She acknowledged without explanation that on her deposition she had stated: “I was well aware that this plasterboard would not hold 180 pounds, which was the weight I had.” The plaintiff had been in the attic some twelve times previous to the time when she fell.

Plaintiff must, in order to be barred by assumption of risk, not only have knowledge of the defect but also must have a full understanding of the risk created by the defect. Shufelberger v. Worden, 189 Kan. 379, 369 P.2d 382, 385; Atchison T. & S. F. R. Co. v. Bancord, 66 Kan. 81, 71 P. 253; King v. King, 79 Kan. 584, 100 P. 503. Here the danger, i. e., the uncovered joists, was open and obvious. The risk involved in going upon them was that a person would slip therefrom and fall through the thin plasterboard ceiling. The plaintiff’s statements that she was not “fully aware” of the risks until after her fall are inconsistent with her admission that she knew that the plasterboard would not hold her weight. This unexplained admission is binding upon the plaintiff and her statements, likewise unexplained, at the trial that she did not “fully understand” the risk were insufficient to give rise to an issue for determination by a jury.

Plaintiff argues that the risk involved was an unreasonable one and, therefore, was not assumed by her. The doctrine of assumption of risk does not depend upon the reasonableness or unreasonableness of the risk involved. Its basis is the employee’s knowledge and appreciation of the danger and of the risk attendant thereto and his continuation in the employment despite his knowledge. Shufelberger v. Worden, 189 Kan. 379, 369 P.2d 382, cited by plaintiff in this regard, was not a case in which the doctrine was applied.

This case does not present, as plaintiff contends, a situation of greater knowledge on the part of the employer. Although defendant had been familiar with the attic for a longer period of time than plaintiff, plaintiff’s familiarity was of sufficient duration to apprise her of its condition and of the risks attendant thereto.

Plaintiff also contends that she was acting with reasonable prudence in executing an order to assist defendant’s daughter with her school studies and that she will not, therefore, be charged with assumption of the risk. Plaintiff testified that the trip to the attic was undertaken on her own initiative. She was not ordered by defendant or even by defendant’s daughter to go there. The principle which plaintiff would apply is not applicable in this case.

In our opinion, the dangers inherent in the condition of the attic and the risks attendant to such condition were obvious and known to the plaintiff. Although the plaintiff did state that she had complained to the defendant’s 10-year old daughter about the condition of the attic, there was no evidence that the defendant had promised the plaintiff to change the conditions there. In our opinion, under the Kansas law, plaintiff must be held as a matter of law to have assumed the risk and, therefore, is not entitled to recover.

The order of the trial court awarding new trial on the issue of damages is set aside and the cause remanded to the trial court with directions to enter judgment for defendant in accordance with his motion therefor.

HOUSER and HIGGINS, CG, concur.

PER CURIAM.

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

All of the Judges concur.