author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Tead ODUM, Appellant.
    No. 48173.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.

      Hale W. Brown, Kirkwood, for appellant.
    Thomas F. Eagleton, Atty. Gen., Theodore C. Beckett, Sp. Asst. Atty. Gen., for respondent.
   STOCKARD, Commissioner.

Tead Odum was found guilty of homicide in the perpetration of arson, declared to be first degree murder, Section 559.010 RSMo 1959, V.A.M.S., and was sentenced to life imprisonment. He has appealed from the ensuing judgment but has filed no brief in this court. We look to the valid assignments of error in the motion for new trial. Supreme Court Rule 28.02, V.A.M.R.

Appellant first challenges the sufficiency of the evidence to support the verdict. Appellant, who was 93 or 94 years of age at the time of trial, lived in a trailer near De Soto, Missouri, about three-fourths of a mile from the home of Julius Friedmeyer and Charles Von Damme, the two persons for whose death he was charged with murder, each of whom was about eighty years of age. In the morning of July 22, 1959, about 5:45 o’clock, John White, age 16, was sleeping outdoors and was awakened by the barking of his dog. He saw that the nearby Friedmeyer house was on fire. After sounding the alarm he and his father ran to the house. His father attempted to enter a window to the bedroom but it was too high, and he then “knocked the screen out” of the screen door and opened the wooden door but could not enter the house because of the smoke and fire. This was the only door to the building and the screen door was latched from the inside. When the firemen arrived they “knocked down” the fire by use of water, and when they entered the building they found the bodies of Julius Friedmeyer and Charles Von Damme on the floor. One was inside the door by a window, and the other was in front of the doorway leading to the back room and bathroom. Dr. Martin J. Glaser, a post mortem surgeon who performed an autopsy on the body of each, testified that the cause of death was third degree burns and suffocation. He was not asked and did not testify whether or not the bodies indicated any other injuries. Located in one of the rooms of the Friedmeyer house, apparently the kitchen, was an oil heater or stove (the defendant said it was “to heat water with”) fed' by a ⅜-inch copper pipe extending from a 250-275 gallon tank located outside the building. The pipe entered the room through the floor, and when the firemen entered the building the copper pipe was severed about a foot from the stove and fuel oil (but one of the State’s witnesses said it “may have been water”) was “squirting out the full size of the pipe,” or was flowing from the pipe in “a pretty good stream.” One of the firemen "crimped” the pipe with a pair of pliers to stop the flow, and he said that when he did so he could not “see whether it was burning when it came out of there.” According to one of the firemen the copper pipe “looked like it had been cut with a crude instrument” because it was “heavily mashed.” This same fireman also stated'that “part of [the pipe] looked like it had’been cut with something sharp.” He did not look at the part of the pipe attached to the stove, but he did notice that “the stove had scooted a little bit.” There was fire “everywheres” and “all over” the house, and “around the fire there was a lot of rags and stuff burning.” No one saw appellant at or near the burning house immediately before or at anytime after the fire was discovered. State’s witness Hayden White testified that he passed the house about 11:30 o’clock on the night of July 21, and no lights were on in the house and he noticed nothing unusual.

On July 25, 1959, a member of the Highway Patrol questioned appellant. This patrolman testified that he asked appellant if he was responsible for the death of Julius Friedmeyer and that he replied that he was not. -The patrolman then stated that when “I confused him some and tangled him up in questioning him” he got mad and said, “It is not my job to hang myself. That is up to a jury.” Outside appellant’s trailer on a table the patrolman found a pair of appellant’s shoes which appellant admitted he was wearing the night of July 21. The patrolman first said that the shoes were “saturated” with fuel oil, hut that no laboratory test was made to determine what substance was on the shoes although they had been taken to Jefferson City where the Highway Patrol has a laboratory. Pie then said that there was not enough oil on the shoes to be scraped off or taken out of the leather as a sample. He determined the substance on the shoes to be fuel oil by the odor and the discoloration, but he admitted that he “wouldn’t be able to tell you whether there is much difference between the odor” of fuel oil and kerosene. Appellant told the patrolman, and later testified, that he had spilled kerosene on his shoes while filling his lamp used for lighting his trailer. Another highway patrolman testified that to him the shoes “had a strong odor of what appeared to be fuel oil or kerosene.” At some later time this second patrolman went to appellant’s trailer at appellant’s request to get some medicine for him, and while there the patrolman opened a drawer and found a “bankbook” which showed the record of an account by Julius E. Friedmeyer in the Citizens Bank of Festus. Appellant testified that Mr. Fried-meyer did not have “a very good education” and that he “helped him quite a bit with his business especially his hank balances.” In futher explanation appellant stated that “He [Mr. Friedmeyer] was always up in the air and thinking they was cheating him at the bank. Of course, the bank statement was a puzzle to him. Pie didn’t know heads or tails about it. I always did that, you know, that is how they found the bank book in there. * * * He probably left it there himself the last time I had anything to do with him about that.”

The coroner arrived at the scene of the fire around six o’clock in the morning, but when he arrived “the fire had been extinguished.” He found a “strong box” lying outside of the Friedmeyer house. The box was open, the key was in the lock, it had been burned, and it contained some burned scraps of paper.- He placed the box in a trunk in the yard. There is no explanation of how the box was burned if it was in the yard during the fire, or how it got in the yard if it had been burned while in the house.

The state presented considerable evidence concerning a trip made by Mr. Friedmeyer and appellant on the day before the fire. By reason of arrangements made by Mr. Friedmeyer, appellant and Adolph Hasse and his son met at the Friedmeyer home about six o’clock on the morning of July 21. The exact purpose of the trip that followed is not apparent, but appellant testified that Mr. Friedmeyer wanted him to go with him “to see if he could get trace of this deed of trust.” The record does not disclose by whom or to whom the deed of trust was made, what property it covered, or the interest of Mr. Friedmeyer or appellant, if any. This group of four drove to St. Clair, Missouri, to a real estate office. Mr. Hasse, Mr. Friedmeyer and appellant entered the office but Mr. Hasse did not remain with the others and did not hear what conversation took place. They then drove to Hills-boro to the office of Mr. Richard King where they remained about an hour. From there they drove to Cedar Tavern on Highway 30 where they ate lunch. Appellant testified that while at Cedar Tavern he observed a white man and two negro men watching them. Mr. Hasse testified that he did not see these men, and that if they were there he “didn’t notice them.” However, both appellant and Mr. Hasse testified that at Cedar Tavern two white men did ask for some information about a lake, and these two men testified and verified this occurrence. According to Mr. Hasse, he and the others then drove from Cedar Tavern to Union, Missouri, but appellant stated that the stop at Cedar Tavern for lunch was made after they had gone to Union. In either event, at Union they went to the office of a real estate broker and abstracter who testified that Mr. Friedmeyer, appellant, and a third man (presumably Mr. Has-se) came to his office shortly after one o’clock. He stated that there was no argument between Mr. Friedmeyer and appellant, but that Mr. Friedmeyer “got quite boisterous and loud in the office.” He further stated that “they had been to the Recorder’s office regarding the release of a deed of trust and the deputy recorder sent them to my office. I was well acquainted with the matter because he had been there before, and I got out the same files and showed him what had transpired. * * * The deed of trust that he inquired about had been released.”

Mr. Hasse testified that while on this trip appellant and Mr. Friedmeyer “did talk and argue,” and that “once or twice” between Grubville and De Soto Mr. Hasse heard Mr. Friedmeyer tell appellant that “he was going to foreclose on him” and that appellant replied, “No, you can’t do that.” However, when asked if Mr. Friedmeyer was trying to collect money from appellant, Mr. Hasse replied: “Whoever owed him. He mentioned the fact he had money out and would like to get it.” He also said that when “they got near De Soto they both calmed down,” or as he later said, “they quietened down.” Appellant denied that Mr. Friedmeyer said he was going to “foreclose on him” and stated that the “conversation we had” pertained to some wood he had cut on some land which Mr. Friedmeyer had conveyed to him.

The group of four returned to DeSoto where Mr. Friedmeyer purchased three watermelons. They then drove to the home of Mr. Friedmeyer, but appellant testified that on the way they stopped at his trailer where he obtained $400 and a receipt book. Mr. I-Iasse and his son remained while the group sat on the porch of the Friedmeyer house and ate a watermelon, and they then left about 5 :45 o’clock. Appellant testified that he and Mr. Friedmeyer sat and talked for several hours. He then offered to pay the $400 to Mr. Friedmeyer in part payment of a $600 note due that day, but Mr. Fried-meyer was unable to find the note. According to the testimony of appellant, while Mr. Friedmeyer was searching for the note, the white man and the two negroes whom he had seen at Cedar Tavern came in, and without saying anything attacked him. In the scuffle with the white man, who stabbed at appellant with-a knife, appellant received a cut in the groin. The man then hit appel-' lant in the head and knocked him down and' kicked him a “couple of times.” Appellant was “paralyzed” and “stiff, like a fellow knocked out that way.” The white man then went to the back room where the two negro men were with Mr. Friedmeyer, and appellant could hear them asking Mr. Fried-meyer where he kept his money. The white man remained only about ten minutes. Shortly thereafter appellant “got so he could crawl” and he crawled to the end of the house and eventually made his way to his trailer. A highway patrolman testified that appellant told him that he arrived at his trailer about eight o’clock in the morning. Harry Goff, a young boy, “more or less looked after” appellant and had “the habit” of dropping around every morning to check on him to see if he was all right. On the morning of July 22, when he stopped by he found appellant “all bloody,” and when he asked what happened appellant said he was “so weak, now I can’t even talk.” Goff called a doctor at appellant’s request. This doctor testified that he treated appellant for a cut in his groin about two inches in length and less than one-half inch deep apparently made by a sharp instrument.

Otis Copeland, a defense witness, testified that he lived six or seven miles from where appellant lived, and that on July 25, 1959, an automobile in which two negroes and a white man were riding stopped at his house. One of the negroes asked him how they could go to Highway 67 without going through Hillsboro, which incidentally is the county seat. According to Copeland this negro said “I don’t want to go through Hillsboro, I will pay you if you will tell me how to get over there without going through Hillsboro, we want to go around Hillsboro.” Copeland gave him the requested information and declined to receive any pay. The two negroes and the white man were between 40 and 50 years of age, and Copeland “smelt booze on them.”

Appellant éontends that there “was no competent evidence upon which the Court (sic) could find that the fire in question was of incendiary origin,” and that there is no competent evidence of probative value that he was the criminal agency causing the fire.

This is a circumstantial evidence case, and when the state relies upon such evidence to establish the guilt of the accused, “the facts and circumstances relied upon by the state must not only be consistent with each other and with the hypothesis of accused’s guilt, but must also be inconsistent with his innocence and point so clearly and satisfactorily to guilt to exclude every reasonable hypothesis of innocence.” State v. Paglino, Mo.Sup., 319 S.W.2d 613, 622.

The state’s evidence does not place appellant at the Friedmeyer house later than about six o’clock on the evening of July 21, approximately twelve hours before the fire. However, the state’s evidence does not affirmatively show that he left the house that evening. Appellant admitted he was there until shortly after ten o’clock. State’s witness Hayden 'White stated that at 11:30 o’clock that evening the house was dark, and that he noticed nothing unusual. Appellant lived about three-fourths of a mile away, and under these circumstances it may be inferred that appellant had the opportunity to set the Friedmeyer house on fire by remaining at the house or by returning to it if he left.

The only evidence from which a motive on the part of appellant to commit the crime could be inferred was that Mr. Friedmeyer threatened to “foreclose” on appellant. The state relies primarily on the testimony of Mr. Hasse. Appellant admitted he owed Mr. Friedmeyer $600, but there is no evidence whatever that this debt was secured by a deed of trust or mortgage. It does not appear that the deed of trust being investigated by Mr. Friedmeyer on July 21 was executed by appellant, and in any event it had been released. However, one of the highway patrolmen testified without objection that appellant told him that Mr. Friedmeyer had a chattel mortgage on his property in the amount of $1,000. While appellant was testifying he was not asked about this chattel mortgage and he did not verify or deny its existence. The inference of motive from the evidence is somewhat tenuous but is sufficiently supported.

It has repeatedly been held that in a circumstantial evidence case of arson or of murder through the perpetration of arson that proof of opportunity and motive is not enough. In addition, “There must be proof of circumstances from which the jury will be authorized to find the further fact that such fire was of incendiary origin * * * [and] that the accused was the incendiary.” State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 155; State v. Paglino, Mo.Sup., 319 S.W.2d 613, 621; State v. Meadows, 330 Mo. 1020, 1225, 51 S.W.2d 1033, 1036. This means that “there must be some evidence, ■direct or circumstantial, that the person charged intentionally started or set the property on fire.” State v. Paglino, Mo. Sup., 291 S.W.2d 850, 857. See also State v. Ruckman, 253 Mo. 487, 161 S.W. 705.

The usual, or perhaps the most frequently appearing circumstance to show that the fire which caused the death of the person charged to have been murdered was ■of incendiary origin is that some highly ■combustible material was employed. Here the state contends it was fuel oil, and the jury could so find, but the proof by the state of so simple a fact as the substance of the fluid spilling from the copper pipe is not without some question. This case does not present the usual situation where a highly combustible material was found at a place where it ordinarily would not have been •unless it was placed there by someone with .an incendiary intent. Here, the circumstance of incendiary origin is the fact that the copper pipe apparently was cut permitting the fuel oil to drain into the room. We need not determine whether or not the .above facts and circumstances would be .sufficient for a jury reasonably to infer that the fire in this case was of incendiary origin, because assuming the evidence to be sufficient, we are of the opinion that the evidence of facts and circumstances is insufficient for the jury reasonably to infer that the appellant was the incendiary, that is, for the jury to find that appellant intentionally cut the copper pipe and intentionally started or set the fire. We shall review the evidence as to this.

The evidence does not affirmatively place appellant at or near the Friedmeyer house closer than approximately eight hours before the fire was discovered. Yet, if the theory of the state is correct, the fire when started and fed by fuel oil would have burned quickly. The evidence was that the fire was throughout the interior of the house and that it burned quickly and furiously. Therefore, if the fire was of incendiary origin the person who set it did so shortly before six o’clock in the morning. There was but one door to the house. When the fire was discovered that door was closed and the screen door was locked from the inside. There is no contention that the lock was one which automatically locks when the screen door was closed. The inference from this circumstance is that the person responsible for the fire being started, whether intentionally or accidentally, either remained in the house or if he left he did so in some way other than through the door. The state suggests in its brief that appellant, although well over ninety years of age, may have set the fire and then left the house by a window. But other than the testimony of Mr. Hayden White that the window to the bedroom was too high for him to get in it, there is no evidence whatever concerning the size, number, type or location of the windows, or whether they were open, closed or screened, and if screened whether the screens were or were not locked. To infer that appellant set the fire and then left the house by a window is based on pure speculation and conjecture.

The state relies primarily on the fact that three days after the fire appellant’s shoes, which he admittedly was wearing on the night of July 21, were “saturated” with fuel oil. The patrolman who first so testified said that there was not sufficient fuel oil on the shoes so that a sample could be obtained. If this was true it is obvious that they were not “sáturated.” He then said that he identified the substance by its odor and by the discoloration, but he admitted that he could not • tell whether there is much difference between the odor of fuel oil-and kerosene. The other witness frankly said that the odor was that of fuel oil or kerosene. If the substance was fuel oil this circumstance is consistent with appellant’s presence at the Friedmeyer house when fuel oil was spilling on the-floor. However, if the substance was kerosene this circumstance is consistent with appellant’s explanation which, if true, ⅛ inconsistent with the state’s theory that the substance on his shoes was fuel oil obtained in the; Friedmeyer house when the copper pipe was cut. The state had the burden; £o establish what the substance was if it wantedi to. rely on this circumstance, but instead of doing so it established no more than it was either fuel oil or kerosene.

We see little significance to the fact that the bankbook was found in áppellant’s trailer. It could have been there for many reasons. Certainly its presence is not a circumstance warranting an inference that appellant intentionally set fire to the Fried-meyer house. A bankbook as such is a mere record; it has no value. The evidence does not show that the bankbook was ever in the “strong-box,” or that the “strong-box” belonged to either Mr. Friedmeyer or Mr. Von Damme, but this is probably a fair inference. In this connection, the “strongbox” was found outside the Friedmeyer house in a burned condition. This is a conflicting circumstance for which there is no explanation in the evidence.

We turn now to' appellant’s story. Admissions made by him may be used to establish a submissible circumstantial evidence case, but other than the fact that his story is somewhat bizzare-it does not contain any admissions constituting circumstances from which it reasonably may be inferred that he intentionally set .the fire. The jury could disbelieve his story, and obviously did so, but that fact or that this- court might not be inclined to believe such a story cannot supply ■ a missing 'essential element in the state’s circumstantial evidence case.

• In State v. Ruckman, the state’s evidence 'established that several hours prior to the time a fire wa-s discovered in a nearby pool hall the .defendant was in his hotel room, but it also established a motive on the part 'of defendant -for ar^on and circumstances from which it could be inferred that the fire was of incendiary origin. The state’s -evidence also was to the effect that “if” the defendant had.left his hotel room ancl walked with his shqes off he could.have gone down the stairs and out to the alley-through a certain room and back to his-room without being detected. This court held that “the state’s own evidence tends to show that the defendant did not cause the fire.” [25⅞5 Mo. 487, 161 S,W- 708] In the pending case the state’s evidence was that the screen door to the .only door to the houge was locked from the inside which necessarily indicates that whoever started the fire did not 'leave the house, or that if he did he left in some manner other than through the door. The -state argues, in effect, that if appellant started the fire he could have left the house by crawling out of .a window, but this requires the assumptions that a person -over ninety years of age could have crawled out of a window of unknown size, height and location, when there is no evidence whatever whether the window was open, locked or screened, or if screened whether the screen was locked. In this case, as in the Ruckman case, the state’s own, evidence, insofar as it goes, tends to show that appellant did not cause the fire. It is true that the finger of suspicion points toward appellant, but suspicion, even strong suspicion, is not by itself sufficient to support a finding of guilty. The facts of this case place it precisely within the. rule. stated in the Ruckman. case where it was said: “All the facts 'and circumstances shown by the state’s evidence could exist and yet the defendant be innocent of any crime. The evidence as a whole leaves too much room for doubt and mistake and does not possess sufficient proof of guilt to authorize the state to deprive defendant of his liberty.”

The judgment is reversed and the cause is remanded.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Tillman HARDY, Appellant, v. James H. J. McNARY, St. Louis County, Missouri, Francis H. Kennedy, Ralph L. Devereaux, Edward Walsh, Lynn Wulfing and Henry J. Deeken, Respondents.
    No. 48751.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.

      Tillman Hardy, pro se.
    William E. Galagher, County Counselor of St. Louis County, Clayton, Walter H. Smith, First Asst. County Counselor, Ball-win, Robert C. Finot, Asst. County Counselor, Clayton, for respondents James H. J. McNary and St. Louis County.
   STOCKARD, Commissioner.

The trial court dismissed plaintiff’s second amended petition and he has appealed. Jurisdiction is in this court because St. Louis County is a party to the action. St. Francois County v. Brookshire, Mo.Sup., 302 S.W.2d 1.

From the petition we find the following allegations of fact. Appellant is a resident, taxpayer and voter of St. Louis County. Francis H. Kennedy was elected assessor of St. Louis County on November 8, I960 for a four-year term commencing September 1, 1961. Ralph L. Devereaux and Edward Walsh, respectively, are collector and clerk of St. Louis County. Each of these officials refused to join in the petition as plaintiffs and have been made defendants. Lynn Wulfing and Henry J. Deeken were co-chairmen of the Citizens Committee for Charter Revision and have intervened in the action. At the general election held on November 8, 1960, Propositions A and B to amend the home rule charter of St. Louis County were submitted to the voters. Proposition A proposed to abolish the offices of assessor and collector, to change some of the duties of the county clerk, and to place all the powers and duties of the assessor, collector and county clerk respecting taxes under the direction of a,county department of revenue. Proposition B proposed to place all of the employees of the new department of revenue under the county merit system with the exception of the director of revenue. Both propositions were approved by the voters. On December 14, 1960 the St. Louis County Council enacted Ordinance No. 1976 which provided for a director of revenue to be appointed by the county supervisor, and which also provided for and specified the duties of an assessor and a collector to be appointed by the director of revenue under the merit system. The ordinance also provided that the county assessor and collector’s office should be abolished on March 1,1961, and it made provision for the effective dates of various provisions of the ordinance and of the amendments to the county charter.

Plaintiff then alleged that “the aforesaid purported amendments and the aforesaid ordinances passed pursuant to said amendments are unconstitutional, invalid and void,” and he set forth eight alleged reasons as follows:

(a) The title of the amendment as submitted to the electorate was ‘‘vague, indefinite, inaccurate, uncertain and misleading, in that Proposition A did not indicate from its title that the assessor and collector would not be officers but employees appointed by the director of revenue for indefinite terms under the merit system, did not indicate that the office of assessor and collector would be terminated on any certain date prior to the completion of the terms for which they were elected.”

(b) “The ballots presenting Propositions A and B at the same election at which the assessor was being elected presented a conflict in the propositions presented to the electorate which conflict was resolved by a larger number of votes being cast for the assessor than were cast for the propositions.”

(c and d) The amendments to the charter proposed by Proposition A and Ordinance 1976 “are in violation of the laws of the State of Missouri respecting the assessment levy, equalization and collection of taxes in the State of Missouri,” and “respecting the office of county collectors, assessors and county clerks.”

(e through h) The purported amendments are in violation of “Article 3, Section 40;” “Article 10, Section 1;” “Article 10, Section 3;” and “Article 6, Section 18” of the Constitution of Missouri.

In support of his request for a temporary injunction, plaintiff alleged that the county supervisor “has indicated his intention to appoint a director of revenue on January 1, 1961,” and that in doing so “there will then be two officers having concurrent jurisdiction of the assessments in St. Louis County, namely the director of revenue and the assessor of St. Louis County and two officers having concurrent jurisdiction of the collections, namely the director of revenue and the collector of St. Louis County * * until March 1, 1961 and that a temporary injunction is necessary to retain the status quo until the validity of these amendments and ordinances aforesaid can be determined.” Plaintiff then alleged that “the status, and validity of the assessments and collections under the purported amendment and the aforesaid ordinance will create confusion and controversy among the citizens- and taxpayers of St. Louis County,” and irreparable harm will result to the citizens- and taxpayers of St. Louis County “and in particular to this defendant” (sic) unless the county supervisor is restrained from making’ the appointment of a director of revenue.

In the concluding three paragraphs of his petition plaintiff alleged that “the aforesaid ordinances and amendments are invalid and as the owner of real and personal property he does not intend to recognize the assessment of the department of revenue nor does he intend to make payment to the collector employed by the director of revenue of any taxes assessed by said department;” the value of his property will be greatly reduced “by reason of the invalidity of the aforesaid amendments and ordinances;” the sums spent to set up the department of revenue “will constitute an illegal expenditure of county taxes;” and “the matters here involved are of great public interest to St. Louis County” and the court should take jurisdiction of the proceedings. In the prayer plaintiff asked that the court declare “the various rights and status of the parties arising under the Constitution and Laws of the State of Missouri and the charter and ordinances of St. Louis County, Missouri;” that the amendments to county charter submitted by Propositions A and B “are unconstitutional and void;” that defendants Kennedy and Devereaux are respectively the assessor and collector of St. Louis County; that defendant Walsh as county clerk “shall perform all of the duties assigned to county clerks respecting the taxes in St. Louis County or in the alternative that said election was void;” and that “the court issue its temporary restraining order enjoining the county supervisor from appointing the director of revenue.”

St. Louis County and James H. J. Mc-Nary, the county supervisor, filed a motion to dismiss the petition on the grounds, among others, that the court is without jurisdiction of the subject matter of the action ; there exists no justiciable controversy between plaintiff and defendants; plaintiff has no legal capacity to bring the action; plaintiff has no legally protectible interest in the outcome of the action; and the petition fails to state a cause of action. In-terveners Wulfing and Deeken filed a somewhat similar motion to dismiss. The trial court sustained both motions without assigning his reasons therefor, and this ap-' peal resulted.

Plaintiff-appellant’s single point in his brief is in its entirety as follows:

“The court erred in dismissing plaintiff’s second amended petition because all of the following four statements are true. If any be not true, the court did not err.
“A. The purpose of plaintiff’s petition was to void the Revenue Amendments as stated in his prayer.
“B. The suit was filed at a proper time.
“C. Declaratory Judgment was a proper remedy.
“D. Plaintiff was a proper party to the suit.”

Supreme Court Rule 83.05(a), V.A.M.R., requires that the brief of an appellant contain “The points relied on, which shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous.” This Rule contemplates and provides for an orderly and easily understood procedure whereby a party aggrieved by an appealable order or judgment may obtain appellate review of asserted errors. In ■ the absence of plain error affecting substantial- rights- within the. meaning . of Supreme Court Rule 79.04 the appellate court does not rule on issues not properly preserved for review. It is the general rule of universal application that an appellate court will indulge in the presumption that the trial court’s action from which the appeal is taken was correct, and that appellant has the burden of affirmatively establishing the alleged error upon an appeal. Morris v. Willis, Mo.Sup., 338 S.W.2d 777, 780; James v. James, Mo.Sup., 248 S.W.2d 623; Davidson v. Hennegin, Mo.Sup., 304 S.W.2d 836; 5 C.J.S. Appeal and Error .§ 1533, p. 1025. Respondent does not have the burden or duty on appeal to establish the correctness of the judgment. Lakin v. Postal Life and Casualty Co., Mo.Sup., 316 S.W.2d 542, 70 A.L.R.2d 564.

With these principles in mind we shall examine appellant’s point. He first asserts that the trial court erred -in dismissing his petition. Therefore, he does set forth briefly and concisely the alleged erroneous ruling which he seeks to have reviewed. He then states that the ruling was wrong because “four statements” which he sets out “are true” and he admits that “if any be not true, the court did not err.” Supreme Court Rule 83.05(e) provides that in stating why it is contended the trial court was wrong in any action or ruling sought to be reviewed, that “Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.” See Turner v. Calvert, Mo. Sup., 315 S.W.2d 118; Bringer v. Barr, Mo.App., 318 S.W.2d 524. Each of the four statements in the point is nothing more than an abstract statement of law. If we assume that each statement is true they do< not demonstrate that the action of the trial court was erroneous, and this court is not to search the record in an effort to find some reason why these abstract statements relate to the action of the trial court. To do so would impose upon it the duty of acting as counsel for appellant; conduct in conflict with -its traditional and judicial function. We would be justified in dismissing the appeal for failure to comply, with the above refered to Rule. See Supreme Court Rule 83.09 wherein it is provided that when an appellant fails to comply with certain Rules, including Rule 83.0S, the court shall “dismiss the appeal or affirm the judgment” except in certain circumstances which are not here present. Because of the nature of this action and the public interest therein, and in the exercise of our discretion in the matter, we elect not to dismiss the appeal but to demonstrate why the judgment of the trial court should be affirmed.

All the relief sought by the petition is bottomed upon the contention that the “said amendments [to the county charter] are unconstitutional, invalid and void.” The first allegation in support of this conclusion is that the title of the amendment as submitted to the electorate by Proposition A was “vague, indefinite, inaccurate, uncertain and misleading” because it did not indicate that the assessor and collector would not be officers but employees, and ■did not indicate that the office of assessor and collector would be terminated prior to the completion of the terms for which they were elected. The fact that the title did not “indicate” the two matters referred to would not necessarily make the amendment void unless there was some requirement in this respect, and as to what constitutional, statutory, or charter provisions, if any, plaintiff contends were violated by reason of this is left to the imagination and to conjecture. We note that a copy of the ballot containing the title was attached to and made a part of the petition. The language of the title therefore became a part of the petition for all purposes and is properly considered in passing on the sufficiency of the petition. Beets v. Tyler, 365 Mo. 895, 290 S.W.2d 76; M.F.A. Mut. Ins. Co. v. Hill, Mo.Sup., 320 S.W.2d 559. Whether the title was deficient in the respects asserted in the petition was a question of law. We need not set out the title in this opinion, but it is sufficient to say that -assuming plaintiff had the capacity to raise the question, upon examination we find that the title was sufficient to identify the amendment and show its character and purpose, and “It [is] not necessary to reproduce on the ballot the charter amendment in its entirety.” State on Information of Dalton ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656, 661.

Plaintiff next asserts that the ballots presenting Propositions A and B at the election at which the assessor was elected “presented a conflict * * * which was resolved by a larger number of votes being cast for the assessor than were cast for the propositions.” This is but a conclusion, and in any event why it is contended that such a procedure was wrong or would result in the invalidity of the amendments to the county charter is left solely to conjecture and speculation. This allegation is totally insufficient to present an issue as to the validity of the amendments to the charter.

The next two allegations are that the amendments “are in violation of the laws of Missouri” respecting the assessment, levy, equalization and collection of taxes, and respecting the office of county assessors, collectors and clerks. In what manner or in what respect the laws of Missouri are violated is left to conj ecture. The allegations are legal conclusions only. See Folger v. Lowery, Mo.App., 210 S.W.2d 1011. The remaining allegations are to the effect that certain provisions of the Constitution of Missouri, identified only by article and section number, are violated. No allegations of fact are set forth. These allegations also constitute only legal conclusions. Goodson v. City of Ferguson, Mo. Sup, 339 S.W.2d 841, 845.

“The conclusions of the pleader are not to be considered in determining whether plaintiffs have stated a cause of action, Ryan v. City of Warrensburg, 342 Mo. 761, 117 S.W.2d 303, because the averment of a legal conclusion is not a statement of an issuable fact and is to be treated as no statement at áll.” Goodson v. City of Ferguson, supra. This rule applies in this state to actions for declaratory judgment. “‘The petition or complaint [for declaratory judgment] must allege facts showing the need for a judicial determination of the controversy, * * *. A mere statement of the pleader’s conclusions without a statement of the facts on which they are based is insufficient.’ ” Transport Manufacturing & Equipment Company v. Toberman, Mo. Sup., 301 S.W.2d 801, 805. The result is that the petition contains no allegation of fact, properly made, which if true would require, justify or permit a ruling that the amendments to the charter of St. Louis County were invalid. Therefore, regardless of the truth of the four statements of appellant in the point in his brief, the petition was properly dismissed.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All concur.


author: EAGER, Judge.

text:
    STATE of Missouri ex rel. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Relator. v. Theodore McMILLIAN, Presiding Judge of the Circuit Court of St. Louis, Missouri, Respondent.
    No. 48557.
    Supreme Court of Missouri, In Banc.
    Nov. 13, 1961.

      Donald W. Bird, St. Louis, for relator-defendant St. Louis Public Service Co.
    ■ Stemmier & Stemmier, James A. Stemm-ier, St. Louis, for respondent, Hon. Theodore McMillian.
   EAGER, Judge.

This original proceeding in prohibition has been presented on the petition of relator and respondent’s return. It involves the propriety of an interrogatory. Alleen McMillen fjlptl ««.⅛ — a.o-jln-<^L.±bp ⅝_Louis Public Service Company alleging that she was injured by its_negligenge_pn_JMax 29, 1953, while attempting to leave a street car; -she further claimed permanent injuries. Defendant’s answer, filed on or about July 1, 1958, was a denial of everything except defendant’s corporate existence and business. In August I960 plaintiff submitted a list of eight interrogatories to be answered by defendant. We are concerned here only with No. 4. It was as follows: “State whether or not von have. taken-or caused to be taken .any photographs or moving pictures oFThe plaintiff between May ¿9, 1953 andThejJresent._dayL__H so, attach copies of all such photographs and moving pictures.” Defendant, relator herq, objected upon the grounds that the interrogatory was not within the scope of Section 510.020 RSMo 1949, V.A.M.S. as interpreted, that plaintiff was not entitled to the information sought, and that such material was a part of defendant’s work product and privileged. Following the hearing on the objections, the trial court indicated that it would overrule the objections to that part of the interrogatory requesting defendant to state whether or not it had “taken or caused to be taken photographs or moving pictures” of plaintiff, and that it would sustain the objections to the remainder of the interrogatory requiring that copies be attached to the answer. The trial court withheld its actual ruling for a time sufficient to permit the filing of the present petition for prohibition. The record before us does not indicate that any evidence was heard, and we may assume that there was none. The pleadings raise no fact issue. We issued our Preliminary Rule in prohibition.

Relator’s single point in its brief here ⅛ largely a reiteration and expansion of its obj ections made in the trial court, namely, that the information sought~js~*a~part of its work-product, that it is privileged, and that it is thus not within the scopcTot permissible discovery. In this, it does not clearly distinguish between the privilege against the actual production of photographs, and that involved in a question concerning their existence. Respondent says, very simply, that the writ should be quashed because such photographs would not be privileged and because relator did not offer any evidence below to show privilege. Two of our most recent cases involving photographs have concerned their actual production and inspection, not merely questions as to their existence. State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69; State ex rel. St. Louis County Transit Co. v. Walsh, Mo.App., 327 S.W.2d 713. In each of those cases the party seeking production relied on our statute, now Section 510.030 RSMo 1959, V.A.M.S. We' have a more limited issue here, but it will be necessary to consider and explore some of the broader holdings to arrive at an answer.

We need not discuss the question of relevancy; it is clear that photographs of plaintiff, and presumably of her activities, would have some material bearing on the issues concerning her alleged injuries and disability. Our consideration will be of the question of privilege. In Flynn, supra, a motion for production was filed; the defendant admittedly was in possession of four photographs taken by an employee of immediately after the injury to plaintiff who was* a member~oF~a' switching crew; the photographs showed the physical conditions existing at the time and also the plaintiff before he was moved. Defendant opposed any order of production, primarily because the photographs were privileged as a part "oí its preparation tor trialj~ or, in other words, as its work product. The statute specifically referred to papérij photographs, etc. “not privileged,” as indeed it does now. This court held that the photographs were privileged and not subject to production; that the privilege of “work product” prepared in anticipation of litigation or in preparation for trial extends to papers, reports, photographs, etc. prepared by a party’s agents or employees for subsequent transmission to the party’s attorney. The rule actually has its basis in the long-standing privilege of communication between attorney and client (§ 491.060). The court noted that photographs are treated as being in the same class as “maps, diagrams and drawings” (257 S.W.2d loc. cit. 74). It also held that the taking of such photographs was not shown to be a part of the ordinary business of defendant, and that defendant might have reasonably anticipated litigation at the time. The court said, in part, at 257 S.W.2d loc. cit. 75: “We hold that the photographs in question were privileged and not subject to discovery, because they were taken in preparation for the defense of reasonably anticipated litigation and as such they fall outside of the arena of discovery. The order of respondent requiring their production for inspection, copying and photographing by the adverse party contravenes the established public policy of this state with reference to the orderly prosecution and defense of legal claims. These photographs, like diagrams, maps and drawings prepared Ifer use in anticipated litigation and after the cause of action accrued, were the ’work product’ of relator in preparation of its defense and in anticipation of litigation and they are not subject to discovery_„and it matters not whether they are the work product of relator’s agent or attorney or whether they have as yet been delivered to the custody and control of~tEe”particu-~lar attorney who is in charge of the defense of the particular ease.” In that case the photographs might conceivably have been relevant on other issues than that of injuries. In our case the trial court evidently recognized that any photographs or movies taken of plaintiff would be privileged in so far as production was concerned.

Our present rules (56.01 and 57.01, V.A.M.R.), contain nothing which mitigates against the basic privilege recognized in Flynn; in fact, privilege is recognized in the same sentence of 57.01(b) which permits an examination as to “the existence * * * of * * * books, documents, or other tangible things * The last sentence of Rule 57.01(b) provides that the production of any writing prepared by an adverse party or his attorney or agent in anticipation of litigation or in preparation for trial, or of any writing reflecting an attorney’s mental impressions, opinions or legal theories, “shall not be required.” While the spirit and intent of this provision might weil'in-clude photographs, we feel that to._so. in-teroret the word “writingll-wowld-be-ar-per-version of the ordinary and common-sense meaning of the word.

We hold here that any existing-photographs or movies taken of plaintiff by defendant since the date of her alleged injury would clearly be piivile,ged„as_a..^Q.rk, product. That result is indicated under the ruling in Flynn. Such photographs would certainly not have been taken in the “ordinary course” of defendant’s business as a common carrier (Flynn, supra), and they could have been taken for only one possible purpose, namely, in anticipation of litigation or in preparation for trial. There is no question here concerning photographs of a place of injury, a situs, or an instrumentality; or photographs in existence before the cause of action arose. Any such photographs as are now inquired about could only concern the defense of plaintiff’s claims of injury and disability. We have no such situation as was presented in State ex rel. St. Louis County Transit Company v. Walsh, Mo.App., 327 S.W. 2d 713, 717, where a bus driver concededly took photographs of the place where plaintiff fell, immediately after her fall. There, at the driver’s deposition, counsel instructed him not to answer questions asking why he took the pictures; the court, in addition to indulging the presumption invoked against a party who suppresses evidence, noted that the question of privilege turned “upon the question of why Cox * * * took the pictures,” and that the driver was one who would ordinarily have nothing to do with investigations or the defense of claims. It further held that the pictures there might have been taken for other reasons than by way of defense of anticipated litigation as, for instance, to protect the driver’s job; and that no privilege had been established, particularly in view of defendant’s suppression of the reasons for the taking, and the resulting presumption. Much reliance was also placed upon the element of 'discretion in the issuance or refusal of the writ.

In State ex rel. Uregas Service Co., Inc. v. Adams, Banc, 364 Mo. 389, 262 S. W.2d 9, involving the explosion of a gas water heater, this court granted prohibition precluding answers to two questions asking whether defendant took any pictures of the heater, and, if so, how many and what photographer took them. It permitted interrogatories concerning an inspection of the heater and the taking of samples of the liquid gas, with names of the persons involved. The court there said, in part, 262 S.W.2d loc. cit. 12: “However, the situation is different as to questions 11 and 12. In State ex rel. Terminal R. Ass’n v. Flynn, [363] Mo. [1065], 257 S.W.2d 69, 75, we held that photographs were privileged and ‘outside the arena of discovery’, when taken preparatory to or in anticipation of litigation. We said, like diagrams, maps and drawings, they ‘were the “work product” of relator in preparation of its defense.’ Under that ruling, to which we adhere, plaintiff was not entitled to information as to whether relator took pictures and how many it took. It is argued that plaintiff was entitled to know who the photographer was because he might have observed conditions on the premises about which he could testify independently of what was shown in any pictures he took. The question does not indicate any such purpose, or any other purpose than to obtain the pictures; and the request for the photographer’s identity is combined in the same question with the improper request as to the number of pictures taken. Therefore, we do not think relator should be required to answer questions 11 and 12.” Thus the issue was ruled on the obvious purpose of plaintiff to obtain defendant’s pictures.

Where the sole purpose of an inquiry is to procure the production of material which, if it is in existence at all, is privileged, we see no legitimate purpose in permitting the inquiry and prolonging the controversy. We have held that such photographs as are inquired about here would be privileged. We further hold that the inquiry as to whether defendant had taken photographs or movies of plaintiff during a seven year period was not a permissible inquiry. This ruling is not intended' to foreclose inquiry into the existence of documents or photographs where it fairly appears that there may be some legitimate purpose in the inquiry, aside from the production of privileged material. Although respondent contends that the burden rests on relator here to show privilege, we think nevertheless that this record and the very nature of the inquiry made, meets that burden. There is no dispute about the facts or what is sought; after relator has thus met its initial burden, the respondent would have the burden of proceeding to demonstrate a lack of privilege or a legitimate purpose in the inquiry, if privilege exists. We need not indulge here in any presumption of right action in the trial court, for we have the same record which it had. See, generally, State ex rel. Cummings v. Witthaus, Banc, 358 Mo. 1088, 219 S.W.2d 383, 8 A.L.R.2d 1124.

As lending at least indirect support to our ruling, we note the following. No legitimate purpose of discovery is served by inquiries which merely pry .into an adversary’s preparation for trial; and the discovery procedure has not been formulated for the benefit of a litigant who is already in possession of all the facts. State ex rel. Laughlin v. Sartorius, 234 Mo.App. 798, 119 S.W.2d 471; and see State v. McDonald, 342 Mo. 998, 119 S.W.2d 286. The production of evidence which would be material only by way of impeachment has been refused. State ex rel. Missouri Pacific R. Co. v. Hall, Banc, 325 Mo. 102, 27 S.W.2d 1027; State ex rel. Thompson v. Harris, Banc, 355 Mo. 176, 195 S.W.2d 645, 166 A.L.R. 1425. While the two cases just cited were decided prior to the adoption of our present rules, the broadened provision of Rule 57.01(b) permitting inquiries which might be “reasonably calculated to lead to the discovery of admissible evidence” would have no pertinence here. Certainly plaintiff Mc-Millen knows all the material facts concerning her own injuries, any existing disability, and her activities; at least the primary, if not sole, function of any such photographs would be to impeach her testimony, when and if offered by defendant. We do not, however, approve the statement that the evidence sought upon discovery “must relate to the case of the party who seeks the inspection.” State ex rel. Laughlin v. Sartorius, 234 Mo.App. 798, 119 S.W.2d 471, 473.

We are dealing here with a rather limited class of photographs, — those sometimes called “surveillance” photographs. Our decision is confined to the specific issues presented here. There may be divergent views on the propriety of taking such photographs, but that is one problem which we need not solve. We recognize that there are Federal decisions which are contrary in principle to our ruling here. McCall, Adm. v. Overseas Tankship Corp. (D.C.N.Y.), 16 F.R.D. 467; Harris, Adm. v. Marine Transport Lines, Inc. (D.C.N.Y), 22 F.R.D. 484. We feel, however, that our ruling is more consonant with our prior decisions and also with the spirit of our present rules which differ somewhat from the Federal Rules; for instance, the last two sentences of our Rule 57.01(b) constitute an express protection of “work product,” not contained in Federal Rule 26 (b), 28 U.S.C.A.

Our files and record show that after the issuance and service of our Preliminary Rule an order was entered in the court below dismissing the case out of which these proceedings arose, for failure to prosecute. That order is void. Upon, receipt of our mandate the court will set. that order aside and reinstate the case. What action it may take thereafter with reference to a dismissal is a matter of its-own concern. Our Preliminary Rule, prohibiting respondent from entering an order overruling defendant’s objections to plaintiff’s Interrogatory No. 4, or any part thereof, is made absolute. It is so ordered.

All concur.


author: WESTHUES, Judge.

text:
    Harold E. JOHNSON, Respondent, v. E. A. DUENSING, George Duensing, Jr., S. C. Vaughan, J. R. Proctor, R. W. Meyer, and Charles Israel, Appellants, The Missouri River Sand and Gravel Company, a Corporation, Respondent, B. D. Trout, R. A. Johnson, Jr., and G. W. Winn, Appellants.
    No. 48647.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1961.
    L. O. Schaumburg, W. H. Martin, Schaumburg & Martin, Boonville, Mo., Edward T. Matheny, Jr., Caldwell, Eastin, Blackwell & Oliver, Kansas City, Mo., for appellants.
    William H. Becker, Columbia, Mo., for respondents.
   WESTHUES, Judge.

This suit was filed on November 19, 1956, by plaintiff Harold E. Johnson, as a minority stockholder of the defendant Missouri River Sand and Gravel Company, a Missouri corporation. An amended petition was filed on April 6, 19S7. The petition is in two counts: In count one, plaintiff prayed that a sale of 545 shares of treasury stock be set aside and that the shares be reoffered for sale by the corporation to the highest bidder, or that the shares be offered to the stockholders proportionately at their fair market value. Other relief sought was to have declared void the election of two directors of the corporation on the ground that they were illegally elected. In the second count, plaintiff asked for injunctive relief and for receivership of the corporation. The prayer for injunctive relief for receivership was abandoned during the trial and, as will be noted later in this opinion, the question of the legality of the election of two board members is now moot. The only question now before us is whether the sale of the 545 shares of treasury stock should be set aside.

The original defendants were the Missouri River Sand and Gravel Company, E. A. Duensing, George Duensing, Jr., S. C. Vaughan, J. R. Proctor, R. W. Meyer, and Charles Israel. During the time the suit was pending and before the trial, B. D. Trout, R. A. Johnson, Jr., and G. W. Winn were added as defendants. These defendants, in November, 1956, purchased 1,310 shares of stock which was a majority of all stock.

A trial was had in March, 1958, in the Circuit Court of Cooper County resulting in a decree granting plaintiff the relief sought. All of the named defendants, except the corporation, appealed.

The cause was heard on appeal in Division Two of this court where, in our opinion prepared by the I-Ionorable Samuel A. Dew, a Special Commissioner, the decree of the trial court was reversed in part and affirmed in part. The cause was then transferred to the court en banc where it was resubmitted. The court en banc transferred the case to the Kansas City Court of Appeals on the theory that this court did not have appellate jurisdiction. See 332 S.W.2d 950. The Court of Appeals adopted the opinion written by Judge Dew. See 340 S.W.2d 758. On application of the plaintiff, the cause was ordered transferred to this court. It was submitted on briefs at our September Session, 1961. It may be observed that this court en banc, in the opinion transferring the cause to the Court of Appeals, noted that the opinion adopted in Division Two, which the Court of Appeals also adopted, had failed of adoption by this court en banc. This court was then and is now of the opinion that the evidence justified the trial court in setting aside the sale of all of the treasury stock that had been sold.

We do not deem it necessary to make a detailed statement of the evidence, especially that which is not material to the issue before us. A lengthy statement of the evidence and of the history of the defendant corporation may be found in the opinion adopted by the Court of Appeals. We shall set forth only a brief history of the corporation and the evidence that in our opinion supports the trial court’s decree. The defendant company was originally incorporated under the laws of New Jersey. In 1930, it was incorporated under the laws of Missouri. Defendants E. A. Duensing, his brother George, and J. R. Proctor and others purchased the stock of the company in 1917. As the name of the company indicates, its business was pumping sand from the Missouri River. Sand was sold and delivered to customers over a wide area in central Missouri. In 1930, the company was incorporated with a capital stock of $40,000 divided into 2,000 shares at $20 par value. The company enjoyed a prosperous business. Over the years, dividends in an amount of about $120,000 had been paid. E. A. Duensing was the president of the company. His brother and J. R. Pr.octor were members of the board of directors during much of that time. The corporation did repurchase some of the outstanding stock which at the time of this lawsuit amounted to 545 shares. This is treasury stock and must be treated as such in this case. 18 C.J.S. Corporations §§ 211 and 212, pp. 645, 646.

During the years 1941 to 1954, a number of floods damaged the property to a great extent. There also were a number of years when the water of the Missouri River was very low and this, too, curtailed business. Plaintiff Harold E. Johnson operated a building-supply business and a ready-mix concrete business in Columbia, Missouri. In 1954 or 1955, he had secured a number of contracts for which he needed a large supply of sand. He had in the past purchased sand from the defendant company. It had not always been satisfactory. In 1955, he became interested in acquiring stock in the defendant company so that he could have a voice in the management to the end that he would be able to obtain a good and sufficient supply of sand. In 1955, Johnson wrote to a number of stockholders and by November he had acquired 436 shares at an average price of $36.78 per share. Before purchasing this stock, Johnson had examined the physical property of the defendant company and had made some inquiry as to the value of the stock. In June, 1955, the defendants E. A. Duensing and S. C. Vaughan, president and secretary of the defendant company, wrote Johnson and other stockholders of the general financial condition of the company. It was in the nature of a report to the stockholders. The letter concluded with the following paragraph: “During all these years of operation, there never was a time when any of this stock was for sale and most of the original stock which we sold is still owned by the original purchaser or is now in the hands of the heirs of the original owners, of which we are very proud indeed. Should you at anytime want to dispose of your stock, we hope you will follow the tradition which we have established when we sold this stock and let the Company have the first opportunity to purchase your stock or give us the refusal of it. We want our stock-holders to feel free at all times to write us for any information regarding the stock which you own.”

Mr. E. A. Duensing’s testimony at the trial was, in part, as follows :

“Q. Was there any gentlemen’s agreement between you with reference to the sale of this stock? A. Yes, there was.
“Q. What was the agreement? A. Well, if any of the stockholders were ready to sell their stock or wanted to sell it, the gentlemen’s agreement was it would be sold to the present stockholders.”

The flood of 1951 damaged the plant to such an extent that loans were secured in the amount of $47,500 to rebuild the plant and purchase new equipment. By 1955, the loans had been reduced materially. An auditor, after examining the books of the company in 1955, recommended that the treasury stock be sold to obtain working capital. A meeting of the board of directors was held on December 15, 1955. At this time, the board consisted of E. A. Duensing, George Duensing, Jr., J. R. Proctor, and S. C. Vaughan. These four men held 635 shares of stock. At this meeting, it was decided to sell the treasury stock. The stockholders were not notified nor given an opportunity to make a bid. The stock was disposed of by selling to J. R. Proctor 200 shares at $20 per share (payment was made by cancelling a note which Proctor held in the amount of $1,500 and the balance was paid in cash) ; 100 shares were sold to a friend of the Duens-ing brothers, Charles Israel, at $20 per share; and 245 shares were transferred and sold to R. W. Meyer at $20 per share. No cash was paid by Meyer. He was an insurance broker at Boonville. The company owed him $8,012.86 for insurance premiums. The company took credit for $4,900. Meyer testified that the balance of his bill was paid by the company in 1957. The result of these sales placed the controlling or majority stock in the hands of the four men on the board of directors and Meyer and Israel. These parties were then the owners of 1,280 shares of the 2,000 outstanding after the sale of treasury stock.

The annual meeting of the stockholders was held on January 18, 1956. At this meeting, it was announced that a board of four directors for 1956 would be elected. By cumulative vote, E. A. Duensing, George Duensing, Jr., J. R. Proctor, and plaintiff Harold E. Johnson were elected. S. C. Vaughan who had been a member of the board was not reelected. The minutes show “A motion duly made and seconded carried, it was voted to amend the ByLaws and elect two addition Directors.” Thereupon, S. C. Vaughan and defendant Meyer to whom some of the treasury stock had been sold were added. This was done over plaintiff’s protest. We may note here that evidently Meyer was in full accord with the Duensing-Proctor group as disclosed by his evidence given at the trial. Note his testimony:

“A. Yes, when I was notified of this meeting in Jefferson City at Mr. Fisher’s office, I was in a meeting with the other Directors and at that meeting I learned why the meeting was called.
“Q. You mean you had a meeting preceding the meeting, the regular Directors meeting? A. That is right.
“Q. And you all agreed about the position you would take with respect to Mr. Johnson’s claims? A. We agreed, yes.
“Q. Then you went into the Directors Meeting and none of you supported Mr. Johnson or took care of any of the actions he requested? A. That is right.”

Plaintiff Johnson tried unsuccessfully to have the board of directors rescind the action of selling the treasury stock. He offered to finance the repurchase and place the stock in the name of the corporation to be resold to the highest bidder. The .Duensing-Proctor group of stockholders adopted a resolution confirming the sale of the treasury stock. In his efforts to settle the question, plaintiff attempted in various ways to come to an agreement with the opposing group without success. The dispute was that plaintiff claimed the treasury stock was worth far more than $20 per share.

Let us now examine the evidence as to the value of the stock at the time the treasury stock was sold. An audit dated November 30, 1955, which was a short time before the 545 shares were sold, revealed a surplus of $45,736.80. The books at that time showed capital stock amounting to $40,000 which represented 2,000 shares at $20 par value. With $10,900 deducted as the value of the 545 shares of treasury stock, the audit showed $29,100 as the value of the 1,455 shares of stock outstanding. This audit was made and paid for by the corporation. The audit showed the book value of the stock was $90,543.92.

Garth Clinkscales, president of the National Bank of Boonville, testified for the defendants. The corporation had transacted business with this bank for many years. This witness placed the value of the stock at from $25 to $30 per share.

Plaintiff Harold E. Johnson testified that he made an investigation of the physical property of the company. He stated that he found the assets were worth more than the value shown by the books of the company. Note his evidence:

“A. I took and reviewed the assets of the company and I find that some of the assets were high and some were low and I come up with a figure of $20,000, and—
“Q. Above the book value? Yes.
“Q. All right. Take the buildings: how did you find the buildings of the corporation to have been handled? A. The buildings were depreciated and shown on the hooks as zero. I put those back at $5,000.00.
* * * * * *
“Mr. Becker: * * * Tell what else you found, Mr. Johnson?
“A. I found that the land was under-valued by $10,000 and I found that the boats were under valued by $15,-000.
“The Court: What?
“A. The boats and dredges.
“Mr. Becker: And was there anything else overvalued ?
“A. And the machinery was $10,000 overvalued.
⅝ ⅜ ⅝ ⅜ ‡ ⅜
“Q. What figure did you arrive as to the book value of the net assets before deducting capital stock liability? A. $94,836.80.”

In November, 1956, B. D. Trout with full knowledge of the threatened litigation purchased 1,310 shares of the defendant company’s stock, which included the 545 shares involved in this case, for a price of $25 per share. These 545 shares were, at Trout’s request, issued as follows: 217 shares to Trout; 164 shares to R. A. Johnson, Jr.; and 164 to Dr. G. W. Winn. All of the then officers of the company resigned. B. D. Trout, R. A. Johnson, Jr., G. W. Winn, and plaintiff Harold E. Johnson were elected as members of the board of directors. That action rendered moot the question of the legality of the two additional directors elected at the January, 1956, meeting of the stockholders.

The members of the old board of directors disputed the fact that the stock was worth more than $20 per share. Aside from that evidence, which consisted mostly of opinions, the record is barren of any substantial evidence to show that the stock was not worth substantially more than $20 per share. True, there were losses caused by floods and dry seasons which to some extent were unusual. However, the report of the audit included all of these conditions and the losses and expense incident thereto.

The trial court was in a much better position than an appellate court to weigh the evidence and to make true measurement of the various transactions and manipulations. Take, for example, the sale of the treasury stock: One of the purposes was, of course, to provide working capital. However, there is no escape from the fact, as we infer from the evidence, that the sale was made to three selected persons so the Duensing-Proctor group would have a majority of the stock. Meyer’s evidence referred to supra leaves no other inference to be drawn. In such circumstances, the trial court was justified in finding that the sale of the treasury stock by the directors “constituted a breach by the directors of their fiduciary duties.” By the opinion of the Court of Appeals, the judgment of the trial court, setting aside the sale of stock to Proctor, was affirmed, but the judgment as to setting aside the sale to Meyer and to Israel was reversed. It is urged that the sale to Meyer and Israel should not be set aside because they were not officers, directors, or even stockholders of the corporation before they purchased the stock in question. The evidence of Meyer referred to supra and the subsequent events justified a finding that the stock was sold to them with their full knowledge of the controversy then brewing and that they purchased the stock with the idea that they would aid the Duensing-Proctor group in controlling the corporation. They are not now entitled to special consideration. They purchased the stock for less than its value. They sold this stock at a profit. The decree of the trial court provided for reimbursement to B. D. Trout, R. A. Johnson, Jr., and G. W. Winn, the present holders of the stock, in the sum of $20 per share, the amount paid by Meyer and Israel. Appellants say that there was never any issue in this case involving manipulation of control by acquiring a majority of the stock. That fact, however, may be considered in determining whether the members of the board were guilty of bad faith, in selling'the treasury stock.

There is little dispute about the law applicable to the facts as outlined supra. In this case, the board of directors did not make any effort to sell the treasury stock at a price in excess of the par value. The evidence justified a finding that a substantially better price could easily have been obtained. The board being in the position of trustee for the stockholders was in duty bound to act in the best interest of the corporation and the stockholders. See 19 C.J.S. Corporations § 761, p. 103, and cases cited under Note 46. In Hyde Park Amusement Co. v. Mogler, 358 Mo. 336, 214 S.W.2d 541, 1. c. 543(1), this court said: “The officers and directors of a corporation occupy a fiduciary relation to the corporation and to the stockholders; their position is one of trust and they are bound to act with fidelity and subordinate their personal interest to the interest of the corporation should there be a conflict.”

Defendants, in their brief, state that “Assuming that rescission was proper, the trial court abused its discretion and powers, and invaded the prerogatives of the corporation’s directors, in ordering the subsequent resale of the stock, and in further prescribing the condition, time, terms and manner of such resale, and the disposition of the proceeds thereof.”

The trial court, in its judgment, made the following orders:

“(8) That the plaintiff have and recover of and from the corporation the sum of $2,758.00, and that execution issue therefor.
“(9) That defendants B. D. Trout, R. A. Johnson, Jr., and G. W. Winn be, and they are hereby ordered to surrender to the secretary of said corporation for cancellation Certificates Nos. 105 to 113, both inclusive, for cancellation. , ....
“(10) That the directors and officers of the corporation be, and they are hereby ordered to cause said 545 shares of stock to be sold in one lot by the corporation at its office at public auction sale to the highest bidder for cash on two weeks written notice to all shareholders of record and upon reasonable public newspaper advertisement for the use and benefit of the corporation; and that out of the proceeds of said sale, said corporation repay to B. D. Trout, R. A. Johnson, Jr., and G. W. Winn $20.00 for each share cancelled, and that the remainder of said proceeds be paid into the treasury of said corporation; that said resale be held within thirty (30) days after this judgment and decree becomes final unless the time be extended by order of this Court.”

Without commenting on the propriety of the orders as made at the time, which was immediately after the trial, we are of the opinion that due to the long delay on appeal the orders should be amended. That part of the order and judgment rescinding the sale and replacing the stock in the treasury of the corporation must be and is hereby affirmed. Likewise, the order must be affirmed which required reimbursing the present owners of the treasury stock to the extent of $20 per share. However, we do not believe that we are in a position as a court to direct in detail what should be done after the stock has been restored to the treasury of the corporation. We, therefore, leave it to the sound discretion of the board of directors to decide whether to leave the stock in the treasury as treasury stock or to sell the stock. If the board orders the stock to be sold, it shall be done in a manner the board deems best for the benefit of the corporation and the stockholders. However, the sale shall be so had as to obtain the best price. The manner of the sale is to be approved by the judge of the Circuit Court. The time limit for the sale shall be prescribed by, the court after consultation with the attorneys representing the parties herein. That part of the trial court’s judgment allowing plaintiff $2,758 for his expenses and attorney’s fees incurred in this action is hereby affirmed. This question was considered at length in the opinion of the Court of Appeals and we are satisfied with what was there said.

The judgment of the trial court is hereby modified to the extent above indicated and as modified the judgment of the trial court is hereby affirmed.

It is so ordered.

All concur.


text:
    STATE of Missouri, Respondent, v. Wesley MORELAND, Appellant.
    No. 48903.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.

      Wesley Moreland, pro se.
    Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, Asst. Atty. Gen., for respondent.
   STOCKARD, Commissioner.

On January 28, 1929, appellant pleaded guilty to the crime of rape and he was sentenced by the Circuit Court of Maries County to life imprisonment. On December 8, 1960, he filed a motion pursuant to Supreme Court Rule 27.26, V.A.M.R., to vacate the sentence and judgment, and he has now appealed from the judgment of that court overruling his motion.

Apparently the proceedings at the time of the arraignment, plea and sentence were not transcribed and made a part of the files and records of the case. In any event they are not a part of the transcript before this court. In the transcript there appears a certified copy of page 18 of the “Minute Book” of the Circuit Court of Maries County for January 28, 1929, wherein there is set out two minute entries as follows: “Information filed Plea of Guilty entered, Sentenced to Penitentiary for life,” and “Plea of Guilty entered, sentenced to life imprisonment, sentence passed suit withdrawn.” The significance of the last entry is not apparent. There is also in the transcript a certified Copy, the certificate being dated January 28, 1929, of the sentence and judgment which in its material parts is as follows: “Now, at this day comes the Prosecuting Attorney for the State, and also comes the Defendant herein, in person, in the custody of the Sheriff of this County, and ⅛ presesee ©4 ⅛⅛ Attorney and Counsel (sic) in open Court, whereupon the said Defendant is informed by the Court that he stands charged with the offense of Rape whereupon the Defendant, Wesley More-land enters a plea of guilty as charged in the Information, whereupon the Court fixes his punishment at life in the Penitentiary * * A second certified copy of the sentence and judgment appears in the transcript, the certificate being dated March 7, 1946, but in this copy the words, “and in the presence of his Attorney and Counsel,” do not appear either as a part of the judgment or as originally being there and subsequently marked out.

The circuit court overruled appellant’s motion without a hearing, and gave as its reasons that appellant “heretofore presented to the Circuit Court of Cole County, Missouri, his petition for habeas corpus on the grounds now presented in his instant petition, and further defendant heretofore presented his motion based upon the same grounds and praying for the same order to this court, and in both of said proceedings defendant’s petitions were denied,” and also because the present motion “is without merit.” The transcript contains a copy of a habeas corpus petition, return and judgment of the Circuit Court of Cole County, and a copy of a motion previously filed by appellant in the Circuit Court of Maries County which was overruled without a hearing and from which ruling no appeal was taken. These matters will be considered subsequently.

The pending motion was prepared pro se. It is lengthy and rambling, it contains numerous unsupported conclusions, and it is liberally sprinkled with pretentious legalisms and quotations from reported cases. For the purposes of this appeal we need consider only those allegations pertaining to the lack of and waiver of counsel at the time appellant entered his plea of guilty and was sentenced. The substance of those allegations is that (1) appellant had no counsel when he pleaded guilty, (2) the circuit court made no inquiry as to whether he had counsel or could obtain counsel to advise and assist him or whether he was “intelligently able to' knowingly waive such right,” and '(3) the prosecuting attorney and the circuit court knew that he “was an uneducated person having no experience with or knowledge of the law and having only the equivalent of a second grade elementary education.” By giving a liberal interpretation to the allegations in the motion, it may be said that appellant at least attempted to allege that when he pleaded guilty to a capital offense he was not represented by employed or appointed counsel, that because he had only the equivalent of a second grade education and no experience with or knowledge of law he did not and could not intelligently waive his constitutional right to counsel, and that the circuit court knew of these circumstances. We shall so treat the allegations of tire motion.

Motions filed pursuant to Supreme Court Rule 27.26 may be summarily disposed of by the circuit court when “the motion and the files and records of the case” show that the petitioner is entitled to no relief, or when the only issue presented is one of law. State v. Jarrett, Mo. Sup., 317 S.W.2d 368; State v. Kitchin, Mo.Sup., 300 S.W.2d 420. However, the converse is also true, and when the files and records of the case do not conclusively refute the grounds for relief set forth in the motion, and the allegations of fact in the motion, if true, would authorize some requested relief provided for by the Rule, “the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Supreme Court Rule 27.26.

Appellant attempts to establish a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States (whether or not the court was required to appoint counsel pursuant to what is now designated as Section 545.820 RSMo 1959, V.A.M.S., see Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398), and we are bound by the decisions of the United States Supreme Court as to what does and does not constitute a denial of due process of law guaranteed by the Fourteenth Amendment. The transcript contains only the motion filed by appellant (except certain other pleadings in other proceedings not now material) and the factual allegations therein, as we have determined them to be by a liberal interpretation, must for purposes of this appeal be accepted as true. Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557.

In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 65, 77 L.Ed. 158, it was held that “In a capital case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; * * *.” Appellant was charged with and pleaded guilty to a capital offense, but he does not specifically allege that he was unable to employ counsel. However, if because of limited education and experience he was incompetent to waive counsel, as he alleges, he would have been incompetent to determine whether he should or should not employ counsel, if otherwise able to do so. Following the Powell case the United States Supreme Court has indicated by numerous decisions the factors which may render a state criminal proceeding held without counsel “so apt to result in injustice as to violate the Fourteenth Amendment.” Cash v. Culver, supra [358 U.S. 633, 79 S.Ct. 435]. The result of these decisions, whether or not they involve a capital case, is summed up in Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 224, 100 L.Ed. 126, in this language: “[W]here a person convicted in a state court has not intelligently and understanding^ waived the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the Due Process Clause invalidates his conviction * See also Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Quicksall v. People of the State of Michigan, 339 U.S. 660, 70 S.Ct 910, 94 L.Ed. 1188; Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. The files and records of the case as shown in the transcript before us indicate that without the presence of counsel appellant entered a plea of guilty to a capital offense on the day the information was filed, and that on the same day he was sentenced to life imprisonment. The effect of appellant’s allegations in his motion is that he did not and could not understanding^ waive counsel because of his lack of experience and knowledge of law, and also because of his limited education. These alleged incapacities together with the circumstances shown by the files and records, if true, could justify a finding, depending upon the facts developed at a hearing on the merits of the motion, that appellant’s “rights could not have been fairly protected without counsel.” Commonwealth of Pennsylvania ex rel. Herman v. Claudy, supra. In such event, the minimum requirements of due process under the Fourteenth Amendment, as interpreted and applied by the United States Supreme Court, required the appointment of counsel to advise appellant when he had no employed counsel, whether requested or not and whether or not he entered a plea of guilty. Unless for some reason appellant was foreclosed as a matter of law from presenting evidence in support of his motion, a matter we shall subsequently discuss, the trial court could not properly rule on the motion without a hearing on its merits.

See for example, Commonwealth of Pennsylvania ex rel. Herman v. Claudy, supra; and Cash v. Culver, supra.

In its brief the state argues that appellant “has the burden of proof” and that “no evidence of any kind was presented to the court.” The present issue for determination is whether appellant is entitled to present evidence, not whether he failed to substantiate the allegations in his motion.

The state also asserts that "appellant waived his right to counsel by his own action when he entered his plea of guilty in open court,” and that the trial court had before it the pleadings of appellant in the habeas corpus proceeding in the Circuit Court of Cole County and also appellant’s first motion to vacate the sentence and judgment “which pleadings show that appellant intelligently waived his right to counsel,” and that “if appellant had desired counsel he or his relatives could have obtained an attorney of his own choice for him, but appellant chose not to obtain counsel.” The United States Supreme Court has held that a plea of guilty is not an absolute waiver of the right to counsel, Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367, particularly when the accused was not advised of or was without knowledge of his right to counsel. De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686. We do not agree that the pleadings referred to demonstrate as a matter of law that appellant “intelligently waived his right to counsel” or that he could have obtained counsel. In any event, the state relies principally upon admissions in the habeas corpus petition, and as subsequently demonstrated the records from the Circuit Court of Cole County were not properly before the court for its consideration.

The state next contends that the trial court properly denied the pending motion because “this is the second such motion filed by appellant.” The transcript shows that on October 21, 1959, appellant -filed a motion in the Circuit Court of Maries County pursuant to Supreme Court Rule 27.26. It too was lengthy and rambling, and it intermingled allegations of fact and argument. No hearing was had on the motion, but the trial court entered the following order: “On face of petitioner’s petition and considering the judgment remanding this same prisoner as shown by proceeding in Cole County had on 2-15-47, petition denied.” The state contends that the motion filed in 1959 “was based on the same facts and conclusions and asked the same relief as the motion involved in this appeal.” We need not determine if this is true. If so, then the trial court erred in ruling on the first motion without holding the hearing and determining the facts as required by Supreme Court Rule 27.26. It is true that in such event appellant should have appealed from that erroneous ruling, but Supreme Court Rule 27.26 does not in every situation preclude a court from entertaining a second motion by a prisoner for similar relief. It provides that the court “need not” do so. When the court erred in ruling on the first motion without holding a hearing to determine the facts, the Rule does not preclude the court from rectifying its previous error and giving proper consideration to a second motion. On the other hand, if the allegations in the first motion were not the same as in the pending motion, the Rule contemplates a ruling on the merits of the second motion and a hearing thereon when its allegations and the files and records of the case are such to warrant it.

In the order overruling the first motion, and also in the order overruling the pending motion, it is affirmatively shown that the trial court gave consideration to, and in fact based its ruling on, a judgment of the Circuit Court of Cole County in a habeas corpus proceeding filed by appellant. How the petition, return and judgment in that habeas corpus proceeding became a part of the “files and records of the case” in the Circuit Court of Maries County is not disclosed. The .transcript only shows that in connection with the first motion in Maries County that “thereafter, on December 21, 1959, certified copy of proceeding in Habeas Corpus had and judgment therein in the Circuit Court of Cole County, Missouri, under date of February 15, 1947, presented to Court and filed herein.” We know of no authority, and the state refers to none in its brief, whereby in ruling on either the first or second motion without a hearing, the Circuit Court of Maries County was authorized to take judicial notice of the proceedings in a habeas corpus action filed in and decided by the Circuit Court of Cole County. 31 C.J.S. Evidence § 50d, p. 627. If the record in the habeas corpus proceeding was considered by the Circuit Court of Maries County on the basis it constituted evidence, we rule without further elaboration that Supreme Court Rule 27.26 does not contemplate an ex parte hearing wherein only the state offers evidence without the knowledge of the prisoner and when he is afforded no opportunity to object to or refute that evidence. We find no authority whatever for the Circuit Court of Maries County to consider the records of the Circuit Court of Cole County when ruling on a motion filed pursuant to Supreme Court Rule 27.26 without holding a hearing thereon, and the error in doing so in ruling on the pending motion is not eliminated because the records of the proceeding in Cole County had improperly been made a part of the records of the Circuit Court of Maries County when the first motion was pending. When the court judicially noticed its records pertaining to the first motion, it should also have judicially noticed that the records of the habeas corpus proceeding were wrongfully there.

We do not purport to imply what the true facts are as to appellant’s allegations in his motion, or to infer what should be the “findings of fact and conclusions of law with respect thereto.” However, appellant is entitled to a hearing on his motion in which he is afforded the opportunity to establish the facts as alleged in his motion, and it was error for the trial court to overrule the motion without the hearing contemplated and required under the circumstances by Supreme Court Rule 27.26.

For the reasons above set forth the judgment is reversed and the cause remanded for further proceedings in accord with the views herein expressed.

BOHLING and BARRETT, CG, concur.

PER CURIAM.

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

All concur.