text:
    Daniel W. WITT et al., Plaintiffs-Appellants, and St. Louis County, Missouri, et al., Intervenors-Plaintiffs, v. CITY OF WEBSTER GROVES, Defendants-Respondents.
    No. 50306.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.

      Smith, Spalding & Crowe, Clayton, for appellants.
    H. Jackson Daniel, St. Louis, Attorney for Respondent, City of Webster Groves.
   HIGGINS, Commissioner.

Appellants, Daniel W. Witt, et al., brought a class action against respondents, City of Webster Groves and its officers, seeking injunction and declaratory judgment by which to invalidate an annexation accomplished by respondent, City of Webster Groves. St. Louis County and its Supervisor intervened as plaintiffs by separate petition praying for a declaration of the legal status of respondents’ annexation ordinance and election. At the conclusion of plaintiffs’ and intervenors’ cases, the trial court sustained respondents’ motion for judgment denying the relief sought hy appellants and intervenors. Appellants and intervenors filed motions for new trial which were overruled.

Appellants, Witt, et al., duly perfected their appeal. Intervenors have not appealed, and the appeal of appellants, Witt, et al., does not make respondents of the inter-venors.

Appellants contend that jurisdiction of their appeal is in this court, alleging that St. Louis County is a party to the record within the meaning of Section 3, Article V, Missouri Constitution, V.A.M.S. State ex rel. Tadlock v. Mooneyham, 296 Mo. 421, 247 S.W. 163, 165 [3].

A somewhat similar question of jurisdiction was before the Kansas City Court of Appeals in an 1887 case, Johnson County v. Bryson et al., 27 Mo.App. 341. In that case one Keene contracted with Johnson County and claimed a sum due for his work, which claim he assigned in writing to in-terpleader Bryson. Prior thereto Keene had contracted for some material with in-terpleader Guihen who objected to furnishing the material unless he was secured, and Guihen contended that Keene verbally assigned as much of his claim against the county as the material would amount to when furnished. When both Bryson and Guihen presented claims, Johnson County brought a hill in the circuit court stating the balance due on account of the work and asked that Bryson and Guihen be required to interplead for the same. The finding was against Guihen, and he sued out his writ of error.

The court, concerning jurisdiction, said, 1. c. 350: “It is contended that this court [the Kansas City Court of Appeals] has no jurisdiction of this cause, as Johnson county is a party thereto. We do not consider the county as a real party to this contest. She filed a hill asking that these in-terpleaders litigate * * *. They did so. One of them recovered and the other appeals to this court. We do not consider the case as under the inhibition of section 12, article 6; of the constitution of the state * * *.”

The St. Louis Court of Appeals ruled consistently in Allen v. Cowan, 30 Mo.App. 1, 2, where the court said: “This action is brought against the county of Phelps and the clerk of the circuit court of said county. The parties defendant entered an appearance, and, on a demurrer to the petition, filed by each defendant, * * * the court rendered a decree * * * from which both defendants prosecute this writ of error. The county is a substantial party to this action; its rights are necessarily concluded by the judgment; it joins in the prosecution of this writ of error. We hence have no jurisdiction of the cause (Const, art. 6, sec. 12; amendment of 1883, sec. 5), and must, therefore, transfer it to the Supreme Court * *

In the instant case St. Louis County showed an interest in this litigation by intervening below, and it may be interested in the eventual outcome. We have held that where the county is not in fact a party to the suit, jurisdiction is not in this •court. State ex rel. Town of Olivette v. American Tel. & Tel. Co., Mo., 273 S.W.2d 286, 288 [2-6], Our question here is more limited, however, in that we must determine whether St. Louis County, a party below, is still, after its election not to appeal, a party to this suit and to this record to give jurisdiction to this court

Here, St. Louis County was neither sued nor did it bring suit. It chose to inject itself into the case by intervention. Its separate petition was against respondents only. It was denied and its separate motion for new trial was overruled.

We have held, in connection with constitutional issues relied upon for jurisdiction in this court, that such questions must be kept alive throughout the case and presented as live questions to this court. Brooks v. Menaugh, 320 Mo. 183, 6 S.W.2d 902, 903, and cases there cited. See also Feste v. Newman, Mo., 368 S.W.2d 713, 715 [3,4]. In Cooper County Bank v. Bank of Bunceton, 310 Mo. 519, 276 S.W. 622, the constitutional question which placed the appeal in the Supreme Court in the first instance was later withdrawn in the brief. The court said, 1. c. 624 [5] : “ * * * The contention of unconstitutionality having been abandoned after appeal, the question is no longer in the case, and the only reason for us to retain jurisdiction disappears.”

We apply the reasoning of the above cases to the instant case and hold that when St. Louis County did not appeal, it accepted the denial of its petition, and abandoned the issues of the case. St. Louis County thus removed itself from the case and is no longer a party to the record for the purposes of this appeal. The only ground for our jurisdiction has disappeared, and jurisdiction, therefore, is not in this court on the ground that a county is a party.

Appellants, Witt, et ah, urge also that we have jurisdiction because of constitutional questions alleged to be present within the meaning of Section 3, Article V, Missouri Constitution.

From the transcript it is determined that appellants’ motion for new trial makes no reference to any constitutional question. A constitutional question must be raised not only at the first opportunity, but must also be preserved throughout in order to present it for appellate review. When the alleged constitutional question was not presented to the trial court in the motion for new trial, it passed out of the case. State ex rel. Kirks v. Allen, Mo., 250 S.W.2d 348, 349-350 [1,2]; State ex rel. Williamson v. County Court of Barry County, Mo., 363 S.W.2d 691, 694 [5-8]. There is, therefore no constitutional question on this appeal, and we have no jurisdiction on that ground.

Upon neither of the grounds suggested can we assume jurisdiction of this case, and it must be transferred to the appropriate court of appeals.

The cause is transferred to the St. Louis Court of Appeals.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: HYDE, Presiding Judge.

license: Public Domain

text:
    Robert ANDERSON, Plaintiff-Appellant, v. Robert DUCKWORTH and Henry Ward Wood, d/b/a Duckworth and Wood Livestock Haulers, Defendants-Respondents.
    No. 50614.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.

      Bond & Dominique, John O. Bond, P. Pierre Dominique, Jefferson City, for plaintiff-appellant.
    Routh & Turley, Dewey Routh, Rolla, for defendants-respondents.
   HYDE, Presiding Judge.

Action for $25,000.00 for personal injuries; verdict and judgment for defendants from which plaintiff has appealed. Plaintiff assigns as error permitting prejudicial argument by defendants’ counsel and giving two instructions at request of defendants

Plaintiff was injured in a collision between the Rambler automobile he was driving and defendants’ tractor-trailer. The collision occurred in Illinois on U. S. Highways 54 and 36, running together east and west, straight, level and 22 feet wide, about 1:00 P.M., about two miles west of the town of New Berlin. The weather was clear, the highway was dry, and visibility was good. Defendant Duckworth, hereinafter referred to as defendant, was driving the tractor-trailer west followed by a bread truck and another truck driven by his partner, Henry W. Wood. Plaintiff was driving east and estimated his speed at 55 to 60 miles per hour. The speed limit for cars was 65 miles per hour. Defendant was driving west but intended to turn to the south on a road to a nearby grain elevator, which ran to the southwest at an angle from the highway estimated at 45 to 50 degrees. Defendant said this was a cross road, running also to the north. Defendant said he was traveling 50 miles per hour, the speed limit for trucks, when he saw plaintiff a quarter of a mile away. He slowed to about 15 miles per hour approaching the side road and turned left across the eastbound lane of the highway to go into it. Defendant estimated plaintiff was 400 feet away when he started to turn but could not estimate plaintiff’s speed. Plaintiff’s estimate was that he was 300 feet away. Defendant said his signal lights were working and that he turned them on when he went to make this turn. Defendants’ tractor-trailer was 50 feet long, weighed 23,000 pounds empty and was 11 feet 5 inches high. Plaintiff’s car struck the back part of the trailer after making skid marks 129 feet long. Defendant said, when he heard plaintiff’s car brakes squealing, plaintiff’s car was about 150 feet from him. Plaintiff estimated his car was going about 20 to 25 miles per hour when it struck the trailer. The south shoulder was only about two feet wide and there was a drainage canal there. Plaintiff had been driving more than five hours without a stop. A photograph showing the damage to plaintiff’s car was in evidence.

Plaintiff’s contentions as to the instructions, which submitted excessive speed of plaintiff as contributory negligence, are that there was no evidence to support the submission of this issue and that they failed to hypothesize sufficient facts. This latter contention is without merit. Instruction D-A hypothesized the approach of the vehicles involved, defendant’s action in making the left turn, plaintiff’s collision with the rear part of the trailer and “that in approaching the trailer-truck as it was crossing the eastbound lane of said highway, plaintiff Anderson was operating his said automobile at a speed that was excessive and dangerous under the circumstances then and there existing, if so, and that in so operating said automobile Anderson was negligent” and that said negligence “directly contributed to cause” the collision and injury to plaintiff. Excessive speed, negligence, causation and injury have been held to be a proper basis for such a verdict-directing instruction. Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 977; Shepard v. Harris, Mo.Sup., 329 S.W.2d 1, 7; Brooks v. Mock, Mo.Sup., 330 S.W.2d 759, 765. Instruction D-B referred to the other instructions for acts of negligence of both parties and informed the jury if they found “that both Anderson and Duckworth were guilty of negligence, and that such joint negligence directly caused the collision, then your verdict must be for the defendants, Duckworth and Wood.”

The serious question is whether there was any evidence that plaintiff was driving at excessive speed. Plaintiff cites Pitts v. Garner, Mo.Sup., 321 S.W.2d 509, 516, in which we considered speed of 50 to 55 miles per hour at night on a well maintained concrete interstate highway by a car in good mechanical condition, there being no posted limit as to safe operating speed shown and the speed not exceeding any statutory speed limit. However, that was not a case tried with a jury as here, review therein being on the whole record under Rule 73.01(d), V.A.M.R. and our conclusion was “that it has not been satisfactorily demonstrated that Vernon was negligent by reason of excessive speed.” We said: “The question for decision here is not, as in the usual automobile collision case, whether plaintiff made a submissible case, or whether a submission of negligence in an instruction is supported by the evidence, * * *. The issue of liability in this case is not to be confused with the issue of submissibility.” In this case the issue is submissibility.

This case is similar to Russell v. Kotsch, Mo.Sup., 336 S.W.2d 405, 1. c. 409, likewise a left turn case, where we said: “In the case before us plaintiff testified that he was going from 50 to 58 m. p. h. However, although going up a slight grade, there is evidence that plaintiff’s car laid down skid marks for 111 feet and was still going with such force at the time of the collision that it knocked defendant’s car for a distance of approximately 60 feet.” In this case, plaintiff estimated his speed at 55 to 60 miles per hour, laid down skid marks of 129 feet on a level highway and still was going 20 to 25 miles per hour when his car struck the trailer. In the Russell case (336 S.W.2d 1. c. 409) we held: “The evidence was sufficient to reasonably warrant a jury finding of excessive speed.” Excessive speed is not required to be'shown by direct testimony but may be proved by circumstances. Lyon v. Southard, Mo.Sup., 323 S.W.2d 785; Steele v. Goosen, Mo.Sup., 329 S.W.2d 703; see also Kitchen v. Wilson, Mo.Sup., 335 S.W.2d 38, 45; Brooks v. Mock, Mo.Sup., 330 S.W.2d 759, 766; Ritchie v. Burton, Mo.App., 292 S.W.2d 599, 604; Wood v. Claussen, Mo.App., 207 S.W.2d 802, 808. Plaintiff was approaching a cross road and nearing a town.' The jury was not required to accept plaintiff’s estimate of his speed in view of the physical facts. Our conclusion is that the submission of excessive speed was supported by substantial evidence.

Plaintiff’s assignment of permitting prejudicial argument is based on the following statements and ruling:

“MR. DECKER: * * * Now, ladies and gentlemen, if you find and believe from the evidence that Mr. Anderson was guilty of negligence which contributed to cause this accident, then he is not entitled to recover. Now, you’re sworn to try the — try this lawsuit on the facts and on the evidence, or on the — on the law that the Judge gives you, and the Judge tells you that this, is not a case of who was most at fault or not most at fault. If he was one degree negligent—
“MR. BOND: I object to that.
“MR. DECKER: — and—
“MR. BOND: That is not the law.. That’s an improper statement.
“THE COURT: Well, he didn’t finish.' He said ‘and’.
“MR. DECKER: All right. If he was' one degree negligent in the respects as set. forth in these instructions, and if that operated to contribute to cause this accident, then you are obligated, under the. law of the State of Illinois, to return a. verdict for the defendant.
“MR. BOND: I object to the remark that ‘if he was one degree negligent and it contributed he cannot recover,’ because this is an outright misstatement of the law and the jury should be so advised.
“THE COURT: Well, the instruction which was read to the jury and which they’ll take with them covers that thing. They can read that. That’s what they’re guided by and not by the arguments of the counsel.
“MR. DECKER: The issue in this lawsuit is not whether Mr. Duckworth was negligent or not negligent as far as our defense is concerned. Our defense is that this accident could have been avoided had it not been for the negligent operation of Mr. Anderson’s car. * * * ”

No further action by the court was requested and defendant’s counsel went on to explain his defense of contributory negligence without reference to degrees of negligence. Plaintiff cites Waldrip v. American Buslines, Inc., Mo.Sup., 327 S. W.2d 211, 217; Danner v. Weinreich, Mo. Sup., 323 S.W.2d 746, 751; Howard v. Scarritt Estate Company, 267 Mo. 398, 402, 184 S.W. 1144; Murray v. DeLuxe Motor Stages of Illinois, Mo.App., 133 S.W.2d 1074, 1078. All of these are cases holding instructions given by the court to be erroneous because stating that negligence however slight or contributing in any degree was sufficient for the defense of contributory negligence. However, the court gave no such instruction in this case and when objection was made to defendant’s counsel’s statement, which was incorrect, the court did not approve the statement but told the jury they were not to be guided by it but by the court’s instructions.

Plaintiff says “nowhere in the instructions was there any guide to aid the jury.” The portions of Instructions D-A and D-B, here-inabove set out, show that a finding of negligence of plaintiff was required without any reference to degrees. Furthermore these instructions required a finding that negligence of plaintiff “directly contributed to cause” the collision. Moreover, at plaintiff’s request the court gave Instruction P-4 stating “that the burden of proof is upon the defendants to establish contributory negligence on the part of the plaintiff, as set forth in Instruction No. D-A and D-B, by a preponderance, that is to say, by the greater weight of the credible evidence in the case.” This was more favorable than plaintiff was entitled to have because under the law of Illinois, applicable in this case, plaintiff had the burden of proving his freedom from contributory negligence. Bean v. Ross Manufacturing Co., Mo.Sup. Banc, 344 S.W.2d 18, 26; O’Leary v. Illinois Terminal Railroad Co., Mo.Sup. Banc, 299 S.W.2d 873, 877; Redick v. M. B. Thomas Auto Sales, Inc., 364 Mo. 1174, 273 S.W.2d 228, 232-23S; Hanson v. Trust Co. of Chicago, 380 Ill. 194, 43 N.E.2d 931, 933; Genck v. McGeath, 9 Ill.App.2d 145, 132 N,E.2d 437, 441. We, therefore, hold there.was no prejudicial error in the ruling of the court concerning the argument of defendant’s counsel.

The judgment is affirmed.

All concur.


author: WELBORN, Commissioner.

text:
    Eugene NOELKER and Cecelia Noelker, Respondents, v. August A. WEHMEYER and Mabel Wehmeyer, Appellants.
    No. 50513.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.

      Robert Hoelscher, Warrenton, Leo A. Politte, Washington, for respondents.
    A. H. Juergensmeyer, Warrenton, Theodore P. Hukriede, Washington, for appellants.
   WELBORN, Commissioner.

This as an appeal from a judgment of the Warren County Circuit Court in an action begun by respondents by filing a petition for ejectment. The counterclaim filed by appellants sought a decree canceling the deed on which respondents’ title was based, alleging that it had been procured from the appellants by fraud and ordering the recon-veyance of the property to the appellants. The trial court entered an interlocutory decree in which it found that the deed from appellants to the respondents had not been procured by fraud, but that it was intended as an equitable mortgage to secure an indebtedness of the appellants to the respondents. The decree ordered that, upon the-payment, on or before April 27, 1963, of the indebtedness and the reimbursement of respondents by the appellants in the amount of $4,765.02 spent by the respondents for improvements on the premises, the respondents should reconvey the property to the appellants. The interlocutory decree further provided that, in default of such payment, judgment would be entered in favor of the respondents on their petition and against the appellants on the appellants’ counterclaim. Payment was not made as called for by the interlocutory decree and, on October 28, 1963, the trial court entered a final judgment in favor of the respondents on their petition in ejectment and against the appellants on the appellants’ counterclaim. Appellants have appealed from such judgment.

In their brief on this appeal, appellants-’ jurisdictional statement is as follows:

“The petition of Respondents sought ejectment of the Appellants from real estate located in Warren County, Missouri. The answer of the Appellants alleged that the deed by which Respondents claimed title to the real estate was obtained by fraud from appellants and asked that it be set aside and the title be adjudged in the Appellants, subject to indebtedness of Appellants.”

Presumably by this statement the appellants invoke the jurisdiction of the court on the ground that the case involves the title to real estate within the meaning of Section 3 of Article V, Constitution of Missouri, 1945, V.A.M.S.

However, in their brief, appellants state further:

“The trial Court found, as set out in the Interlocutory Decree that the Warranty Deed was not executed as a result of fraud and that it was to be considered as an equitable mortgage. The Appellants accept the findings of the trial Court on those questions.
“It is the contention of the Appellants that the trial Court was in error in its finding that they would have to pay Respondents $4,765.02 with interest at 6% from February 27th, 1962 in addition to the amount of the cancelled note in order to secure a conveyance of the real estate to them.”

By their points and authorities, appellants argue only that the respondents were not entitled to be reimbursed for improvements because they were not bona fide purchasers of the real estate and even if they are entitled to reimbursement, the evidence showed that the improvements enhanced the value of the land by only $1,500 and that they should be required to pay only that amount in addition to their admitted indebtedness instead of $4,765.02 as ordered by the court.

In view of the position of the appellants, we do not consider that title to real estate is involved in this appeal in such manner as to confer jurisdiction thereof on this court. The appellants have acceded to the trial court’s determination of the question of their title asserted in their counterclaim. Therefore, title to real estate is not involved within the meaning of the constitutional provision conferring jurisdiction upon this court. Jones v. Hogan, 211 Mo. 45, 109 .S.W. 641. There is no “live issue” presented here involving title to real estate. See Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900(2-5); Feste v. Newman, Mo.Sup., 368 S.W.2d 713, 715(5). The only question raised on this appeal is the amount of reimbursement to which respondents would be entitled if the appellants should obtain reconveyance of the property. The dispute involves only the matter of pecuniary liability in an amount of not in excess of $15,000. We, therefore, have no jurisdiction of the appeal and it should be transferred to the appropriate court of appeals.

The cause is transferred to the St. Louis Court of Appeals.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Walter Marvin BAILEY, Appellant.
    No. 50634.
    Supreme Court of Missouri, Division No. 1.
    Oct. 12, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 9, 1964.

      Thomas F.. Eagleton, Atty. Gen., Jefferson City, George D. Chopin, Special Asst. Atty. Gen., St. Louis, for respondent.
    Charles M. Shaw, Clayton, for appellant.
   HOLMAN, Judge.

Walter Marvin Bailey was charged with and found guilty of the offense of burglary in the second degree and the jury fixed his punishment “at imprisonment in the custody of the State Department of Corrections for four years.” See Sections 560.070 and 560.095(2), RSMo 1959, V.A.M.S. He has appealed from the ensuing judgment and sentence

The building here involved was a filling station building located on St. Charles Rock Road in Bridgeton, St. Louis County, Missouri. The events hereinafter described began at about one o’clock a. m. on July 6, 1962. There was testimony to the effect that the filling station building contained various items of personal property and merchandise, including about 500 cartons of cigarettes as well as a number of cases of oil. George Eble, Jr. was on duty when the filling station was closed at ten p. m. on July 5 and testified that he locked all of the doors when he left the premises.

Officer Earl Ahrens of the Bridgeton police force testified that he was driving west on St. Charles Rock Road in a patrol car at about one a. m. when his suspicions were aroused by an Oldsmobile car parked just west of the Western Zephyr Service Station; that he decided to check the car and radioed for assistance; that Officers Lewis and Stringer arrived very shortly thereafter; that they inspected the car, and then noticed a hole in the wall on the west side of the service station building; that he then looked in the front door and saw the door to the men’s room move; that after calling to the persons in the building to come out he fired two shots through the front door; that at that time a man, later identified as defendant, came through the hole in the wall of the building and was placed under arrest; that a little later,, after another warning shot was fired, a second man, later identified as Clarence Barthelemy, also came out through the hole in the wall of the building; that a radio check was made of the license on the Oldsmobile car and it was found to belong to Barthelemy. This officer further testified that he entered the building through the hole that had been used by the defendant and Barthelemy and found in the station a crowbar, a pair of bolt cutters, and a nail' puller (these tools were identified and admitted in evidence) ; that one entering the building through the hole in the wall is in a room from which there is no means of access into the front part of the filling station; that he found that another hole had been made in an inner wall which would permit entrance into the remainder of the building.

Sergeant Lewis and Officer Stringer of the Bridgeton police force gave testimony similar to that of Officer Ahrens and corroborated the fact that both defendant and Barthelemy were in the building when they arrived and came out of the hole in the manner hereinbefore described.

The only evidence offered by defendant was his own testimony. He stated that on the evening of July 5 he was at the Londoff Bowling Lanes when his friend Barthelemy came by and asked him to take a ride, stating that he knew where we could “go out and make some easy money”; that Barthelemy drove his car to the filling station in question; that when they arrived Barthelemy tore a wooden board out of the side of the building and said “ T think we can get in.’ I said, ‘No, I’m not going in.’ He said ‘How about staying up there and being a lookout for me, if anybody comes just holler.’ I said, ‘All right.’ So then I thought a minute, decided, ‘well, I have never been in any trouble, I don’t want to get in any now.’ I told him I was leaving. When I left, I was walking out the driveway, the police officer drove up from Bridge-ton. Q. Now where were you when the police officers drove up? A. Up by the gas pumps.”

With further reference to his defense of voluntary abandonment, hereinafter discussed, defendant testified as follows: “Q. Let me ask you this: do I understand that you admit that you started out to do wrong, to commit a crime? A. Yes, sir. Q. When was it that you decided not to? A. When he was tearing up the side of the building. Q. And what did you do then when he started tearing it up? A. I told him I wasn’t going in. Q. Then what did you start to do ? A. Well, first he asked me if I’d watch for him and I said ‘yes’ at first. Then I told him ‘no, I’m leaving,’ after he started making a lot of noise with this board and stuff. * * * Q. And you told me before when I asked you, you said you were a lookout and then you said after he was inside the hole that you then decided, you got scared and decided not to be a lookout any more, is that correct? A. Yes.” Defendant testified that he never entered the building.

The first point briefed is that the court erred in giving Instruction No. 3 which reads, in part, as follows:

“All persons are equally guilty who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly is the act of all and of each one so acting. However, the mere presence of one at or near the scene of a crime does not render him liable as a participator therein. If one is only a spectator, innocent of any unlawful act or criminal intent, and does not aid, abet, assist, advise or encourage another or others in the commission of a crime, that person is not liable as a principal, or otherwise, and should be acquitted. * * * In this regard you are instructed that to find the defendant guilty of burglary in the second degree it is not necessary for the defendant actually to have broken into any part of the building * * * but, if you find and believe from the evidence beyond a reasonable doubt that the defendant was then and there present, and did anything toward the completion of the common design to commit the burglary alleged, if you so find, by watching on the outside of the said building or otherwise, then you ought to find him guilty.”

He specifically complains of the concluding portion thereof which we have italicized. It is defendant’s first contention that there was no evidence that he was acting as a lookout on the outside of the building. That contention is without merit. We have heretofore quoted defendant’s testimony in which he stated that he continued acting-as a lookout until after Barthelemy had entered the building.

There is also no merit in the contention that the italicized portion of the instruction is a comment on the evidence and assumes the fact that defendant was watching on the outside of the building. The portion ■of the instruction in question hypothesizes .a fact, supported by the evidence, which the jury was required to find. We rule this point against defendant.

Complaint is also made of the fact that the italicized portion of the instruction ■contains the words “or otherwise.” Defendant states that the use of those words .authorized a verdict of guilty without requiring a finding of specific hypothesized facts supported by the evidence. We have •concluded that this contention is not before us for consideration. Supreme Court Rule 27.20, V.A.M.R. requires that a motion for new trial “must set forth in detail and with particularity, in separate numbered ■paragraphs, the specific grounds or causes therefor.” In his motion for new trial defendant complained that Instruction No. .3 was erroneous because it “impresses upon -the jury that the defendant was on the outside of the building watching. There was no evidence, from either the State or the •defendant, that the defendant was on the outside acting as a lookout and to so in■struct the jury was to inject matters into the case which were not brought before the jury by the evidence of either the plaintiff or the defendant.” It is apparent that the motion does not mention any failure of the instruction to hypothesize facts and does not refer to the words “or otherwise.” The instant contention was not brought to the attention of the trial court in the motion for new trial and will not be considered upon appeal. State v. Palmer, Mo.Sup., 306 S.W.2d 441 [10],

The final point briefed by defendant is that the court erred in failing to give an instruction concerning the defense of voluntary abandonment or repentance. In regard to that defense it has been said that “[wjhere the perpetration of a felony has been entered on, one who had aided and encouraged its commission may nevertheless, before its completion, withdraw all his aid and encouragement and escape criminal liability for the completed felony; but his withdrawal must be evidenced by acts or words showing to his confederates that he disapproves or opposes the contemplated crime. Moreover, it is essential that he withdraw in due time, that the one seeking to avoid liability do everything practicable to detach himself from the criminal enter-prize and to prevent the consummation of the crime * * *.” (Italics ours.) 22 C. J.S. Criminal Law § 89 (1961). In 15 Am. Jur. Criminal Law § 333 (1958), it is stated that “[tjhere is in every design or plan to commit a crime a place of repentance or locus penitentiae whereby the one planning to commit it may abandon the idea and thus avoid criminal liability. This is true where one of the persons who has entered into a conspiracy, necessarily involving an overt act, abandons the plan before the act is done. * * * It is obvious, however, that where the crime is consummated, there is no field for an application of the doctrine.” See also State v. Webb, 216 Mo. 378, 115 S.W. 998, 20 L.R.A.,N.S., 1142; Pollack v. State, 215 Wis. 200, 253 N.W. 560, 254 N.W. 471, and People v. King, 30 Cal.App. 2d 185, 85 P.2d 928 [31],

The only evidence tending to support the defense of voluntary abandonment is the testimony of defendant. However, it appears from defendant’s unequivocal testimony that he did not decide to discontinue acting as a lookout until after Bar-thelemy had already entered the building. It is obvious that at that time the crime of burglary had been consummated and it was too late for defendant to withdraw and escape the consequences of his conduct. In that situation the evidence would not have supported an instruction on voluntary abandonment and the court did not err in failing to give one.

An examination of the record as required by S.C. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


author: STOCKARD, Commissioner.

text:
    In re ESTATE of R. Hadley PATTERSON, Deceased. Willie Lee GOLDING, Appellant, v. Jack A. POWELL, Administrator Ad Litem, Respondent.
    No. 50585.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.
    Wear & Wear, William A. Wear, Springfield, for appellant.
    Wayne T. Walker, Springfield, Daniel, Clampett, Ellis, Rittershouse & Dalton, B. H. Clampett, Springfield, for respondent.
   STOCKARD, Commissioner.

This is an appeal by Willie Lee Golding from the judgment of the trial court denying her claim that she was the owner of a bank account and of an account in each of two savings and loan associations. The sum of the three accounts exceeds $17,000.

R. Hadley Patterson was the sole owner of the three accounts. He was in a rest home and physically incapable of taking care of his business affairs. Willie Lee Golding, appellant herein, looked after all his business interests, paid his bills by using his money, and took care of him generally. About three months prior to the death of Hadley, he and appellant executed and signed printed deposit agreements purporting to transfer each account from the sole ownership of Hadley to a joint ownership, with right of survival, of Hadley and appellant. All the money in each joint account came from the accounts previously owned alone by Hadley, or from money that belonged to him.

After the death of Hadley, appellant claimed that she was the sole owner of the three accounts. The trial court ruled in her favor, relying primarily on Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817. On appeal to this court that judgment was reversed. In re Patterson’s Estate, Mo., 348 S.W.2d 6. This court held that at the time the three agreements for joint accounts were executed and the accounts opened, appellant’s relationship to Hadley was that of trust and confidence, that the transfer of the accounts as the result of acts by appellant from the sole ownership of Hadley to a joint ownership was in the nature of a gift to appellant, and that pursuant to the rule announced in In re Kaimann’s Estate, 360 Mo. S44, 229 S.W.2d 527, the gift was "presumptively void” and appellant had the burden to rebut this presumption by showing the absolute fairness and validity of the gift, which included the intent on the part •of Hadley to make a gift, and that the transaction was entirely free from the taint of undue influence. The cause was remanded so that appellant could be afforded the opportunity to develop the facts. The parties stipulated that all the evidence at the first trial, subject to the objections made, should be considered on the second trial together with the additional evidence offered on retrial.

In the memorandum of the trial court it was stated that on the previous appeal we held that “the execution of the joint signature cards to the money in controversy amounted to a gift to Mrs. Golding, and that there is a legal presumption that such gift is invalid as being prompted by undue influence when received by one who occupies such a position of trust and confidence.” (Emphasis added). The trial court then held that “the additional evidence does not overcome this presumption and therefore the judgment must be for the defendant.” It was further stated in the memorandum that “the evidence clearly showed that the execution of the joint signature card ‘was undoubtedly done under a mistaken apprehension of the legal effect thereof,’ * * * (and] the question could and should have been decided on the basis of mutual mistake rather than a presumption of invalidity, * * We think this interpretation of our previous ruling is too restricted. As previously noted, we held that there was a presumption of invalidity, but we did not hold that the presumption was limited to undue influence. On the contrary, we held that because of the presumption the burden was on the appellant to show the absolute fairness of the transaction, the validity of the gift (which would include the issue of intent), and that it was free from the taint of undue influence. However, on this appeal we are concerned with whether the trial court reached the correct result in view of all the evidence, regardless of the reason given. This determination requires a detailed statement of the evidence.

Hadley was the son of Roscoe Patterson and Ada Patterson. He was a semi-invalid as a boy and never progressed beyond a few months in high school. As an adult he was not able to work. In 1944, when about thirty-seven years of age, he had an attack of some kind, perhaps meningitis, and thereafter was not able to walk without assistance. When his father was living, Hadley was dependent upon him, and after his father’s death in 1953 he was dependent upon his mother. When his mother became an invalid, his first cousin (on his father’s side), Kirby Patterson, took over the responsibility of looking after him and his mother, and he handled their property and financial affairs. At the time of the death of Hadley’s father there were two savings and loan accounts, each carried as joint accounts in the name of Roscoe C. Patterson and Ada Patterson. Thereafter, they were changed, at the suggestion of Kirby, to joint accounts in the name of Ada Patterson and R. Hadley Patterson. In 1956 a joint bank account at the Union National Bank was opened in the name of Ada Patterson and R. Hadley Patterson. In October 1957, Kirby accepted employment with the Department of Justice in Washington, D. C., and appellant, also a first cousin of Hadley (on his mother’s side), took over the responsibility of looking after him. Mrs. Patterson died in the early part of November, 1957, and shortly thereafter, at the request of appellant, Kirby delivered to appellant the passbooks to the three accounts, all being in the name of Hadley and his mother but the sole property of Hadley because his mother was then deceased.

On December 10, 1957, the account in the Union National Bank and the account in Guaranty Federal Savings and Loan Association were changed to what purported to be joint accounts in the name of Hadley and appellant. In each case appellant presented to the bank or savings and loan association a regular printed form, each being signed by Hadley and by appellant, purporting to be an agreement that the accounts be held by Hadley and appellant as joint tenants with right of survivorship. What was said by appellant in arranging for the joint account at the Union National Bank is not disclosed in the record. However, the teller at the 'savings and loan association testified that appellant came to the office and “explained that R. Hadley Patterson was unable to come to make the withdrawals that he needed for medical expenses, and that she would like to take care of it for him.” Appellant asked the teller “how our record would need to be — how we could arrange it, so that she could take care of this for him,” and the teller told her “the account would have to be transferred, and have her name on it before we could make any withdrawals to her.” The teller further testified that the appellant “took this book back and obtained the signaure of R. Hadley Patterson, and that authorized us to journal this account to the present account, in the name of R. Had-ley Patterson and Mrs. Harold F. Golding.” On the “joint ownership signature card” the teller typed the following: “Patterson is [in?] rest home, and Mrs. Golding taking care of his business.”

The account in the Safety Federal Savings and Loan Association was changed to a joint account in the name of Hadley and appellant on January 28, 1958. The assistant-treasurer testified that when appellant came to the office the first time- “she said she would like to take care of some business for Mr. Patterson, that he was unable to come to the office.” Appellant had the passbook with her, and the assistant-treasurer “told her that in order for her to handle it, her name would have to be on the account,” and she made out the “necessary papers” for Hadley to sign to “re-issue the account” and gave them to appellant who returned them a few days later signed by appellant and Hadley. Appellant gave no instructions on how she wanted the account “re-issued,” but left the matter entirely up to the assistant-treasurer who made no contact with Hadley.

On February 1, 1958, Hadley executed a will after discussing the matter “at some length” on two occasions with his attorney. Appellant was present during the first discussion but she made no effort to tell him what he should or should not do. By the provisions of the will his property was divided into fifteen parts, and appellant was one of the named beneficiaries. However, without the three accounts above mentioned his total assets consisted of his “walker,” a television set and four or five items of personal property not subject to being divided into fifteen parts. It appears, however, that at some subsequent time Hadley voided this will, and at one place on the cover it was marked “void as of 1/24/58,” which date was prior to its execution.

Following the death of Hadley, appellant was appointed administratrix of his estate, and as such she listed the balance of each of the three accounts in the inventory as an asset of the estate. In addition, she caused the account in the Union National Bank to be transferred to herself as administratrix of the estate of Hadley. In July 1958 she showed the passbooks to the attorney for the estate who then learned for the first time that the accounts were listed as jointly owned by Hadley and appellant, and it was following this that appellant filed her petition to determine the ownership of the accounts and alleged that they had been included in the inventory “through mistake.” She testified that she listed them in the inventory because the attorney for the estate told her "to list everything that I had there pertaining to Hadley, and that’s what I did. I listed everything.”

At the rehearing appellant’s husband testified that when Hadley was at a rest home prior to the transfer of the accounts to include appellant as a joint owner, he was present during conversations between Had-ley and appellant. He stated that “there has been different times when Hadley has talked to Mrs. Golding and myself that he wanted these accounts in her and his name. One reason was in case any checks had to be signed, why, that she would be able to sign them, and also, at other times we were talking, he wanted her to have what he had left because of the fact he has said many different times that she was the only one that has really helped him,” but he said that he never heard Hadley tell appellant that he was giving her the money in the accounts. He also testified that appellant took care of Hadley, took him riding, bought clothing for him, and “went over and took care of them [Hadley and his mother] for a month when they were in the Seville Hotel.” However, he admitted that she was paid for her services in caring for Hadley and his mother.

Appellant also testified at the rehearing. After explaining why she listed the accounts in the inventory, as above set out, she said that after Hadley’s mother died she saw him “just about every day,” and that she performed services for him in taking him out in the car, to a drive-in to eat and to shows, and that she “even washed his clothes, sometimes, not always, but I tried to keep him looking nice.” After Hadley’s death, appellant wrote a letter to Kirby and in it she said, “I am going to ask for wages which everyone says I justly deserve. You know and I know it was quite a task, but someone had to do it and you know I didn’t leave anything undone. I would appreciate it if you would write back telling how you feel about this, and if I don’t have a just claim.”

Appellant makes but a single point on this appeal, that is, that the trial court erred in holding that the additional evidence introduced by appellant did not overcome the presumption that the gift “was invalid as being prompted by undue influence.” She relies on cases which she contends hold that in the absence of any evidence the presumption rules the issue, but when substantial evidence to rebut the presumption is presented it then “will lose all force and vanish when the facts appear in the evidence.” Cited are Bridle Trail Association v. O’Shanick, Mo.App., 290 S. W.2d 401; Stack v. General Baking Company, 283 Mo. 396, 223 S.W. 89; Mackowik v. Kansas City, St. Joseph and Council Bluffs Railroad Company, 196 Mo. 550, 94 S.W. 256; State v. Martin, 364 Mo. 258, 260 S.W.2d 536. The correct statement of the rule is set forth in Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, as follows: “The presumption and fact, or inference, go hand in hand and really are the same thing. Hence, the presumption, with- its underlying facts or inferences, once being in the case, never does or can disappear but raises an issue for the jury,” or for the trier of fact when not a jury tried case. See also Cuthbert v. Heidsieck, Mo., 364 S.W.2d 583, a suit to set aside a gift on the basis of undue influence, where it was stated: “We have said that a gift or a transfer of assets to one in a fiduciary relationship with the donor or grantor, * * * is presumed to be by reason of undue influence exercised upon the donor or grantor in those instances where the evidence permits of the inference that the beneficiary of said gift or transfer was active in causing or assisting in causing the execution thereof. * * *; that when supported by probative evidence said presumption makes a prima facie case which does not disappear upon the introduction of rebutting testimony * * *, and that such proof casts the burden of going forward with the evidence on the donee or grantee to show that the gift was fair and equitable * * See also Nelson v. Hammett, Mo., 189 S.W. 2d 238, 243. We necessarily conclude that in view of the presumption of invalidity of the gift from Hadley to appellant, the burden was on appellant to go. forward with the evidence to establish the validity of the gift. When such evidence was presented, the issue of validity became a mixed question of law and fact, with the fact issues to be determined from all the evidence by the trier of fact, which in this case was the court.

The trial court stated in its memorandum that it determined that the evidence did not overcome the presumption that the gift was invalid "as being prompted by undue influence,” but it further added that there was not the slightest evidence of any actual fraud, deception, or undue influence on appellant’s part. We are in complete agreement with this latter statement. We need not determine whether the conclusion of the trial court that the presumption was not overcome was warranted in view of its findings concerning the absence of evidence as to fraud, deception and undue influence. The trial court also indicated in its memorandum that it found as a fact that the execution of the agreements purporting to establish joint accounts "was undoubtedly done under a mistaken apprehension of the legal effect thereof.” Not only do we agree with this finding of the court, who was in a favorable position to judge the credibility and evaluate-the testimony of the witnesses, but from an independent evaluation of the evidence we conclude that there was no intention on the part of either Hadley or appellant that by the execution of the agreements and the changing of the accounts there was to have been a present gift to appellant of joint ownership with right of survivorship in the accounts. See generally 10 Am.Jur.2d Banks § 387, and the cases there cited to the effect that when one changes an account from his name to his name and another simply for convenience and without the intention to pass an interest in the account to the other person, such other person acquires no interest in the account and, of course, has no right to sur-vivorship. Under the circumstances' the burden was on appellant to produce evidence that such intention did exist on the part of Hadley to make a gift to appellant of joint ownership with right of survivor-ship in the accounts, that is, as said in the opinion on the first appeal, appellant had the burden “to rebut this [presumption of invalidity] by showing the * * * validity [including intent] of the gift,” and we conclude that she has not done so. We shall now set forth our reasons for this conclusion.

The evidence clearly shows that at no time until several months after the death of Hadley did appellant consider or believe that she acquired title to or an interest in the accounts. If so, she would not have listed each account as an asset of the estate, and she would not have had the bank account transferred to her as administra-trix of Hadley’s estate. In addition, as to the two accounts with the savings and loan associations, the only conclusion to be drawn is that appellant arranged for the joint accounts as a means whereby she could withdraw funds belonging to Hadley to pay his bills and expenses. It might be said that appellant’s additional evidence upon retrial indicates that Hadley may have intended a gift of an interest in the accounts in return for the services to Hadley and his mother. However, appellant was paid for her services to Hadley’s mother, and the transfer of the accounts was made very shortly after her death and before any substantial services had or could have been rendered to Hadley alone. If there had been an agreement or understanding between Hadley and appellant that a gift was then being made for the rendering of future services, appellant would have known of such agreement, and in knowing of it she would have been aware of her ownership of or interest in the accounts and she would not have listed them as assets of the estate. In addition, she would have considered herself paid for the services rendered and she would not have written Kirby that she intended to file a claim against Hadley’s estate “for wages.” Also, if there had been an agreement that the accounts were to he transferred to her for payment of past and future services, which agreement appellant would have known about, then appellant also would have known that the accounts would not have been assets of the estate and there would have been no purpose in making a claim for wages against an estate in which there practically were no assets. We think that appellant’s actions and conduct subsequent to Hadley’s death compel the conclusion that there was no agreement between Had-ley and appellant that at the time of the transfer of the accounts appellant was to receive a present ownership therein. While it is admitted that appellant did not have legal training, we cannot assume that one who considered herself sufficiently competent in business matters to handle the business affairs of another would not understand the effect of such a transfer of the ownership of the accounts if the transfer had been made or brought about by such an agreement between her and Had-ley. One further matter has some bearing on the intent of Hadley. After he signed the joint ownership agreements he executed a will after lengthy discussions with counsel concerning his property and in which he did not disclose that the accounts had been changed to joint ownership with appellant. The terms of the will were inconsistent with an intent on his part at the time of the transfer of the three accounts to create a joint ownership with appellant with right of survivorship. It is true that he later voided the will, but his later action does not affect the inference that at the time of execution thereof he apparently then believed he retained the right of disposition of the accounts by will.

When we consider all the evidence in this case, and take into consideration that the trial court by reason of personal observation of the witnesses was in a better position than we to evaluate the credibility of the witnesses, we conclude that the trial court correctly found that by the execution of the agreement Hadley and appellant were mistaken as to the legal effect thereof, and that neither Hadley nor appellant intended that a joint ownership of the accounts be created with right of survivor. Instead, the transfer was made solely for convenience in handling his business affairs.

The judgment is affirmed.

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.


author: HOUSER, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Gertrude R. KENDRICK et al., on Exceptions of Olive M. Gutweiler, Respondent.
    No. 50704.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.

      Robert L. Hyder, Melvin Englehart, Jefferson City, for appellant.
    Richard A. Hetlage, Robert O. Hetlage, St. Louis, for respondent.
   HOUSER, Commissioner.

State Highway Commission, in the course of the construction of Mark Twain Expressway in St. Louis County, brought proceedings in the circuit court of that county to condemn a tract of 11 acres, part of a larger tract of 56 acres owned by Olive M. Gutweiler. The 56-acre tract lay immediately west of Lambert-St. Louis Municipal Airport. The north boundary line of the 56-acre tract abutted the south line of Natural Bridge Road. The 11-acre tract lay at the rear or south side of the 56-acre tract. The 11-acre tract did not connect with any public street or highway. It was landlocked and had no means of ingress or egress except through that portion of the 56-acre tract lying north of the 11 acres. The petition in condemnation was filed April 2. Commissioners, appointed June 13, filed their report October 25, awarding defendant $17,500 damages. The highway commission deposited $17,500 in the registry of the court November 26. All of this occurred in 1956. The parties accepted November 26, 1956 as the valuation date. Both condemnor and the landowner filed exceptions to the report of the commissioners. The case was tried to the court, sitting without a jury. The court filed its findings of fact and conclusions of law, j assessed defendant’s damages at $27,924. and entered judgment for defendant for $10,424 (the difference between the court’s assessment and the amount previously deposited in the registry of the court), plus 6% interest on $10,424 from November 26, 1956.

The commission gave notice of appeal “from the Order entered in this action on the 13th day of March, 1964,” which was the order overruling its motion for new trial. A motion for a new trial is not an appealable order. The appeal should have been taken from the judgment of December 19, 1963 and not from the order overruling the motion for new trial. Supreme Court Rule 82.04, V.A.M.R. Instead of dismissing the appeal, however, we will consider that the commission intended and in good faith attempted to appeal from a final judgment and that the notice of appeal inadvertently designated the order overruling the motion for new trial instead of the judgment of the court, as the order from which the appeal was intended to be taken, and it will be so treated. Triller v. Hellwege, Mo. Sup., 374 S.W.2d 104.

We have appellate jurisdiction because the record affirmatively shows that the amount in dispute is more than $15,000 in excess of the $10,500 or $11,000 to which the commission’s evidence indicates that the landowner is entitled. Constitution, Art. V, § 3, V.A.M.S., State ex rel. Chariton River Drainage District v. Montgomery, Mo.Sup., 275 S.W.2d 283.

Prior to these highway condemnation proceedings and in the year 1953 the City of St. Louis, desiring to acquire land to be used as a part of Lambert-St. Louis Municipal Airport, brought proceedings to condemn 45 acres of Olive M. Gutweiler’s 56-acre tract, — the north 45 acres abutting on and lying nearest Natural Bridge Road. This 45-acre tract, however, had not been taken and appropriated by the city prior to the time of the taking of the 11-acre tract. The proprietary rights of Olive M. Gutweiler in the 45-acre tract could not under the Constitution of Missouri, 1945, Art. I, § 26, have been divested until the award of the commissioners had been paid to her, or paid into court for her. While the commissioners’ report in the city condemnation proceedings had been filed in 1954 the amount of the commissioners’ award ($101,500) had not been paid into court on November 26, 1956, and was not paid into court until December 3, 1956, — seven days after the commissioners’ award was paid into court in the highway condemnation proceedings. See City of St. Louis v. Kisling, Mo.Sup., 318 S.W.2d 221. Therefore, on the valuation date, November 26, 1956, Olive M. Gut-weiler was the owner of and enjoyed the full proprietary rights in the entire 56-acre tract.

In presenting its evidence of land value the commission’s expert witnesses appraised the 11-acre tract separately and apart from the whole tract of 56 acres. They did not do a valuation of the entire 56-acre tract before the taking and compare it with the value of the land remaining after the taking, but appraised the 11 acres as a separate tract, “as a separate piece” with no access to any road. They did not .consider damages to the remaining 45 acres, or that the value of the 11-acre tract may have been affected by the fact that defendant owned 45 acres north of the 11-acre tract. They did not think the ownership of the 45 acres abutting Natural Bridge Road on.the north and abutting the 11-acre tract on the south increased the value of the latter, because of the cost factor of building a road or access from Natural Bridge Road to the 11-acre tract, which they testified would exceed any increase in value of the 11-acre tract arising out of the fact that it would have access to the road. The commission’s expert witnesses considered that the highest and best use of the 11-acre tract was for park purposes and that its reasonable market value on the valuation date was $10,500 or $11,000.

Defendant’s expert witness Feinberg valued the 11-acre tract as a part of the 56-acre tract taken in its entirety, stating that the highest and best use of the 11-acre tract on the valuation date was for commercial purposes, and assigning to the 11-acre tract a reasonable market value of $6,500 an acre, or $71,000 to $71,500. Defendant’s expert witness Smith likewise appraised the'11-acre tract as a part of the whole tract, considering the value of the entire 56-acre tract before the taking of the 11-acre tract and the value of the remaining land after the taking. He estimated the value of the 56 acres on the valuation date at $280,000; the value of the 45 acres left after the taking at $225,000, and thus fixed the value of the 11-acre tract at $55,000.

For its first point the commission urges that the trial court committed reversible error and we are urged to remand the cause for a new trial because it is said that the only evidence considered by the trial court was that given by the witnesses for the defendant and that the trial court refused to consider the evidence of value presented by the commission. This contention is based upon Finding of Fact No. 7 in which the court concluded that “the proper evidence to consider is only that evidence given by witnesses who appraised said property on behalf of defendant Gutweiler.” From this the commission draws the conclusion that the court “refused to consider” the testimony of its witnesses; cites cases for the general proposition that all evidence of value which an ordinarily prudent person would take into account in determining fair market value should be considered by the court, and urges that as a result of the court’s failure to consider its evidence the commission’s rights were prejudiced in several different ways.

. The trial court did not arbitrarily or erroneously ignore, fail or refuse to consider the commission’s expert testimony. On the contrary the record expressly shows that the court did consider it. Finding of Fact No. 6 follows: “That Relator’s witnesses assigned a fair market value as of the date of taking the [11] acre tract of $10,500.00 and $11,000.00, but valued same as an isolated tract without access and not as a part of the whole [56] acre tract owned by defendant Olive M. Gutweiler as said appraisers for the State Highway Commission testified that the other property owned by Gutweiler had heretofore been condemned by the City of St. Louis * * The court declared the rule of damages to be the difference in the fair market value of defendant’s whole tract immediately before and immediately after the appropriation of the 11 acres and stated as its reason for relying upon the defendant’s expert witnesses in determining value, rather than the commission’s experts, that on the valuation date the city had not yet taken the 45-acre tract; that the city’s condemnation proceedings against the 45-acre tract “could have been abandoned by the City of St. Louis at any time up to the payment into court”; that therefore the rule of damages above stated (the rule to which the testimony of defendant’s witnesses was geared) should be adhered to and the land taken should not be valued as the commission’s witnesses valued it, that is, as an isolated 11-acre tract. Clearly the court considered but for stated reasons rejected the value testimony given by the commission’s witnesses. Under the evidence the court not only had a right but also the duty so to do. Property taken for public use is to be valued at its highest and best use. Where the part taken from a larger tract of land is of greater value as a part of the whole tract than as a separate parcel, the part taken “must be valued as a portion of the tract of which it is a part and not as if it stood alone. * * * [T]he value of part of a tract is dependent upon its relationship to the remainder of the tract. Ordinarily this relationship gives it a greater value than the value inherent in it as a separate tract.” Nichols on Eminent Domain, 3rd Ed., Vol. 4, § 14.231, pp. 544-545.

The fair market value of the 11 acres as an isolated, landlocked tract would obviously be less than its value as a part of the whole 56-acre tract with its more than 1,000 feet of frontage on the busy thoroughfare Natural Bridge Road. Testimony giving a depressed or deflated value to the 11-acre tract based upon the assumption that the taking of the abutting and contiguous 45-acre tract was either a fait accompli or in reasonable prospect, under which the commission’s witnesses must have been laboring, would be without weight or value in determining the value of the 11-acre tract as it existed on November 26, 1956.

The commission argues that the court completely ignored the two methods of appraising damages in condemnation proceedings where only a part of a tract is taken. This argument is contradicted by Finding of Fact No. 10, which recites: “That the only issue presented to the Court under the evidence was the amount of damages sustained by defendant Gutweiler by reason of the appropriation of the [11] acres, and the Court finds that the just compensation to which the defendant is entitled is the difference in the fair market value of the decedent’s whole tract immediately before and immediately after the appropriation of the [11] acres.” This is a proper rule for ascertaining the damages where part of a tract of land is condemned. Kamo Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W.2d 858, and authorities cited on page 861; Mo. Digest, Eminent Domain, The same result may be reached in another way, by awarding the landowner the market value of the land actually taken, plus the consequential damage, if any, to the remainder of the land of which that taken formed a part, caused by the taking, City of St. Louis v. Vasquez, Mo. Sup., 341 S.W.2d 839, and cases cited, 1. c. 846 [11], less the special benefits, if any, accruing in consequence of the making of the improvement. State ex rel. State Highway Commission v. Craighead, Mo.App., 65 S.W.2d 145, 148. Although the commission concedes that there was no evidence of consequential damage to the 45 acres remaining after the taking of the 11 acres, it apparently complains that the court did not consider the second method, supra, of arriving at damages or just compensation, and takes the position that under the second method the land taken may be valued as a separate isolated tract without considering its relation to the remainder of the land. The court having adopted one proper method of arriving at damages, supported by evidence, there was no error in not following another method, not supported by evidence.

The commission’s untenable position apparently stems from the mistaken idea that the pendency of the proceedings filed by the city to condemn the 45-acre tract placed the 11-acre tract in the category of an isolated tract, to be valued as such as of November 26, 1956. The commission’s cross-examination of defendant’s witnesses so indicates. Statements in the commission’s brief so indicate, for it states therein that a prudent prospective purchaser of the 11-acre tract would have seen that there was no access to it except by constructing a roadway over the 45-acre tract to Natural Bridge Road, and would consider the “unlikely possibility” of purchasing a roadway across the 45-acre tract “while it was being condemned by the City of St. Louis for airport extension.” The commission refuses to acknowledge the significance of the fact that at the valuation date, November 26, 1956, the 11-acre tract was a part of the whole 56-acre tract, all of which was owned by Olive M. Gutweiler; that the taking and appropriation of the 45-acre tract had not occurred at the valuation date and would never have occurred, if the proceedings had been abandoned by the city; and that the 11-acre tract was to be valued as of that date as a part of the whole and not as a separated, isolated tract, and not in contemplation of the possible appropriation and taking of the 45-acre tract by the city.

The commission’s second point is that defendant failed to sustain the burden of proof; that the judgment in the sum of $27,924 is not supported by the greater weight of the competent and substantial evidence. The commission points out claimed weak points, supposed lack of qualifications and alleged discrepancies in the testimony of defendant’s witnesses Feinberg and Smith. The commission would have us find Feinberg’s testimony not of such character and quality as to induce a conviction of truth that the property had a market value of $6,500 per acre, and rule that Smith was not qualified to express an opinion as to market value because of unfamiliarity with the land. Without burdening this opinion with the minutiae of the commission’s criticisms or a detailed recital of the testimony of Feinberg and Smith, suffice it to say that having examined the qualifications of both these witnesses to testify as experts and having tested the suificiency of their testimony of value in the light of the attacks made, we find sufficient evidence of their qualifications to testify as expert witnesses in-this case on the question of the reasonable market value of the 11-acre tract and of the 56-acre tract, before and after the taking;. that their opinions of the value of the IRacre tract, ranging from $55,000 to $71,-.500, .are based upon proper and valid criteria and standards, and that their opinion evidence constitutes ample support for the trial court’s assessment of damages in the sum of $27,924. In this regard we have given due regard for the opportunity of the trial, court, who had these witnesses under personal observation, to judge of their credibility and reliability as witnesses, Supreme Court Rule 73.01(d), and we have reviewed this evidence with the further admonition of that rule in mind, that the appellate court is not to set aside the judgment in a, case tried upon the facts without a jury unless the judgment is clearly erroneous. This judgment is not erroneous but is proper i-n all respects. It follows that we find no justification for the commission’s request that we declare that the trial court abused its discretion in failing to strike the testimony. of the witness Smith, an action urged not by way of any properly raised point but in the argument portion of the brief, an assignment of error notably absent in the commission’s motion for new trial.

The commission’s third point is that “The court erred in refusing to admit in evidence the plaintiff’s Exhibits 6 and 7.” These exhibits were certified copies of deeds to tracts of real estate offered to show by the amount of the revenue stamps attached thereto the amount of the consideration paid for the properties, as part of the basis for the opinions of value testified to by the commission’s expert witnesses. They were objected to on the ground that they were not the best evidence of value. The court at first sustained the objection on the ground that revenue stamps alone do not prove purchase price, but then the commission made an offer of proof, and offered to produce Missouri cases on the point. The court took a temporary recess and after examining some authorities declared that it would reserve its ruling, not being able to come to a conclusion on the offer of proof on a cursory review of the cases. The court did not rule on the offer later during the trial or refer to the question in its declarations of. law filed at the time judgment was rendered. The commission did not offer the evidence again or request a ruling on the matter prior to closing its case, or make such a request in its motion for new trial. (Point 3 of its motion for new trial assigned “error in refusing to admit in evidence Plaintiff’s Exhibits 6 and 7,” but this did not constitute a request for a ruling on this point.)

One reason why the trial court may not be convicted of error on this point is the generally prevailing rule that “where evidence offered and objected to has been excluded conditionally or temporarily, it becomes incumbent upon the party who sought to introduce such evidence to renew his effort in that respect at a later, appropriate stage of the trial by offering the evidence again or at least by resuming a line of interrogation directed toward getting such evidence into the record; and if he fails to so actively renew his effort to introduce the evidence he ordinarily will be precluded from contending on appeal that it was erroneously excluded or that there was error in the court’s conditional or temporary ruling.” Anno: Evidence — Renewal of Objection, 88 A,L.R.2d 12, § 19, [a], p. 124, see pp. 136, 137 for digest of the Missouri cases of State v. Goddard, 162 Mo. 198, 62 S.W. 697; Wills v. Sullivan, 211 Mo.App. 318, 242 S.W. 180; Housden v. Berns, 241 Mo. App. 1163, 273 S.W.2d 794, supporting this rule.

The commission’s last point is error “in the finding that defendant is entitled to interest at 6% per annum from November 26, 1956 until November 26,1963.” The contention is that not until August 29, 1959 was there any authority in this state for the allowance of interest on the excess of a judgment over and above the commissioners’ award; that § 523.045 affects substantive rights and cannot be construed retrospectively in the absence of clearly expressed legislative intent, which is not to be found in the act; and that no court had authority to add interest to a judgment in excess of the commissioners’ award prior to the enactment of § 523.045; that the interest should have been figured from August 29, 1959 in the amount of $2,642.31 and that it was error to figure it from November 26, 1956 in the amount of $4,378.08.

We are of the opinion that § 523.045 did not afford plaintiff some new substantive rights but is merely procedural. It has long been the rule that the landowner is entitled to interest for delay in the payment of compensation. St. Louis Housing Authority v. Magafas, Mo.Sup., 324 S.W.2d 697[2]. The interest is to be included in the judgment by the court when the case is tried to the court without a jury. Magafas supra. When the case is tried to a jury the interest is to be computed by the jury and included in its verdict. State ex rel. State Highway Commission v. Green, Mo.Sup., 305 S.W.2d 688, 693; City of St. Louis v. Vasquez, Mo.Sup., 341 S.W.2d 839 [17]. In other words, the substantive right to an allowance of interest under the circumstances of this case existed prior to the enactment of § 523.045. In this respect the case differs from the case cited by the commission, Center School Dist. No. 58 of Jackson Co. v. Kenton, 345 S.W.2d 120, 126, 127, which dealt with the right to interest upon abandonment of condemnation proceedings, a substantive right which did not exist prior to the enactment of § 523.045.

The question was before the Springfield Court of Appeals in State ex rel. State Highway Commission v. Ellis, decided September 17,1964, 382 S.W.2d 225[1, 2]. That court reached the same conclusion we have reached, namely, that § 523.045 is declaratory of the substantive law as it existed prior to the enactment of the' statute; that it is procedural merely; that to apply it in this situation doe's not involve a retroactive application of a substantive statute; that such an allowance of interest is proper notwithstanding the computation reaches back to a time before the enactment of the statute.

Section 523.045 is fully applicable and the court properly figured interest from the valuation date.

The judgment is affirmed.

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.

      . Round numbers instead of precise fractional acreages will be used.

      . Round numbers instead of precise fractional acreages will be used.

      . The effective date of § 523.045, V.A.M.S., which regulates interest on condemnation awards. (Laws 1959, S.B. 248.)


text:
    STATE of Missouri, Respondent, v. Jesse Franklin COLLINS, Appellant.
    No. 50268.
    Supreme Court of Missouri, Division No. 1.
    Oct. 12, 1964.
    Rehearing Denied Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Pendleton Goodall, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent
    William H. Webster, Richard J. Sheehan, St. Louis, for appellant.
   HYDE, Presiding Judge.

Defendant, charged under the habitual criminal statute (Sec. 556.280), was convicted of illegal sale of a narcotic drug and sentenced to 15 years’ imprisonment. Secs. 195.020 and 195.200. Statutory references are to RSMo and V.A.M.S. except as noted. Defendant was represented at the trial by retained counsel of his own choice who filed his motion for new trial, and on this appeal by able appointed counsel.

Defendant makes no contention that the evidence was insufficient to make a submissible case and it was obviously sufficient. Defendant’s claims of error are (1) denying his motion to quash the information substituted for the indictment; (2) sentencing under the habitual criminal statute because of failure to prove and failure to find imprisonment under a prior conviction; (3) improperly limiting cross-examination of state’s principal witness to the sale; (4) giving Instruction No. 2; (5) permitting testimony of additional criminality of defendant; and (7) failing to instruct on defense of entrapment. Defendant also says (as Assignment 6) we should consider a subsequent murder conviction of the State’s principal witness on a plea of guilty. We dispose of this latter contention by saying we cannot consider matters not in the record, occurring after the trial and entirely unrelated to the case against defendant. The case cited by defendant, City of St. Louis v. Vetter, Mo. App., 293 S.W.2d 140, as authority for this contention involved convictions for traffic violations of ordinances that both parties stipulated had been repealed before the date of the offenses charged. Of course, the convictions in that case were invalid but in this case the facts defendant seeks to have us consider would not show his conviction to be invalid but go only to the credibility of a witness and would only be cumulative of other evidence on that issue.

Assignment 1 is based on substitution by the state, for the indictment, of an information alleging defendant’s two prior convictions of the offense of illegal possession and sale of a narcotic drug, in 1951, and sentences thereon served concurrently. Defendant argues that the substituted information should be quashed saying Sec. 545.300 authorized substitution when an indictment is held to be insufficient and there was no such ruling herein. Defendant concedes that we have decided this contrary to his contention in State v. Green, Mo.Sup., Div. 2, 305 S.W.2d 863, 868. Defendant says this ruling was based on. our Rule 24.02 but claims it is in conflict with State ex rel. Downs v. Kimberlin, Banc, 364 Mo. 215, 260 S.W.2d 552, 555, decided six months after Rule 24.02 became effective. However, the Downs case involved a case in which an indictment was quashed as insufficient and the issue of substitution of an information for other reasons was not involved. Defendant considers Rule 24.02 to be broader than the statute. We do not agree but if it is Rule 24.02 governs since it was adopted under our rule-making authority established by Sec. 5, Art. V, of our Constitution. State ex rel. Bone v. Adams, Mo.Sup., Banc, 365 Mo. 1015, 291 S.W.2d 74, 77. Sec. 477.010, cited by defendant, does not affect the rule-making authority established by Sec. 5, Art. V, Constitution, but was a part of the 1943 Legislative Code, Laws 1943, p. 353, prior to the adoption of the 1945 Constitution. The substituted information only alleged facts making the habitual criminal statute applicable in determining the punishment and this did not charge an offense different from the original indictment, as defendant erroneously claims. State v. Ninemires, Mo.Sup., 306 S.W.2d 527, 530; State v. Miller, Mo.Sup., 202 S.W.2d 887, 890. Only the same single illegal sale was charged in the substituted information. We hold there was no error in overruling the motion to quash.

Consideration of alleged trial errors 3, 4, 5 and 7 requires the following statement of facts. On the morning of January 7, 1963, Fannie Louise Hall, working with the St. Louis Police Department, made a telephone call from her residence and told defendant she wanted to buy heroin but defendant said he did not have anything. Police officers Schomburg and Schmidt were with her when she called but then left. About 1:00 P.M. she called defendant again telling him she was sick and needed heroin. Defendant told her to call back later. The officers returned to her home and she made two more calls to defendant. When she made the last call about 3:00 P.M., defendant said he would come there in a cab and bring heroin to her. He did so and was paid by Mrs. Hall for the package he delivered with money furnished to her by the officers, who watched the delivery from inside the house, and who testified to seeing the delivery made and immediately receiving from her the package delivered to her by defendant. The package, containing four capsules, was then taken by the officers to a police chemist, who made an analysis of them. He testified that the capsules contained a narcotic known as heroin.

Defendant claims (Assignment 3) improper limitation of his cross-examination of Mrs. Hall for the purpose of impeaching her credibility by erroneously approving the physician-patient privilege and the privilege against self-incrimination. By cross-examination, it was shown that Mrs. Hall had been a narcotics addict (the state showed on direct examination that she had been convicted of addiction and stealing by deceit) ; that she got out of the Malcolm Bliss Hospital (a mental hospital) on Tuesday before the trial and had been there eight or nine days; and that she had a drug cure in 1959 but could use drugs occasionally. She was not required to answer whether she did take occasional drugs because the court considered it might incriminate her. Although Sec. 195.020 and 195.200 did make drug addiction a criminal offense, as defendant points out, we held that provision unconstitutional in State v. Bridges, Mo.Sup., 360 S.W.2d 648. However, defendant’s counsel was permitted to recall Mrs. Hall and obtain testimony from her that on the previous day, she had used a narcotic drug known as amphetamine; that at that time she had taken it by mouth but most of the time previously she injected it in a vein and was using about two injections a day. She also said she drank some whiskey the night before and had a small amount of gin that morning. Defendant cites State v. Brotherton, Mo.Sup., 266 S.W.2d 712, 714, in which we said: “ When a witness is cross-examined he may, in addition to the questions hereinbe-fore referred to (concerning commission of a crime), be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character.’ ” We further said therein: “The better doctrine would seem to be that while such questions may be asked the witness on cross-examination it is a matter largely within the discretion of the court before whom the case is to be tried.” The cross-examination was proper but in view of the reopening of the matter of use of drugs and the further testimony defendant was permitted to bring out on this issue, we find no abuse of discretion by the court as to cross-examination concerning use of drugs by this witness. We have the same view concerning defendant’s further complaints relating to Mrs. Hall’s discussion of her testimony with police officers and her relationship with Eugene Hill, with whom she was living, and other collateral matters.

Concerning the reference to Mrs. Hall being in the Malcolm Bliss Hospital, the State’s objection to defendant’s counsel’s question concerning it actually was overruled as shown by the following proceedings after the physician-patient privilege was discussed:

“MR. FRIEDMAN: No, Your Hon- or, the question was the day, is that the day. As I understand the question, Mr. White, ‘Is that the day you got out of Malcolm Bliss Hospital?’
“THE COURT: That has nothing to do with confidential relationship.
“MR. FRIEDMAN: I submit any reference to any hospital or any doctor to any treatment is inadmissible.
“THE COURT: No,—
“MR. WHITE: I haven’t referred to anything touching the privilege between a patient and the doctor.
“THE COURT: I will overrule your objection. Mr. White is on solid ground here. He’s asking whether or not she was in the hospital. He asked her when she left the hospital, that is the substance of his question and I think that is a proper question.
“MR. FRIEDMAN: It assumes evidence she was in the hospital.
“THE COURT: She knows whether she was there or not and he can certainly ask her. The objection is overruled.
“MR. FRIEDMAN: One further point. The question is premature.
“THE COURT: I’m only ruling on this thing.
“MR. FRIEDMAN: I’m requesting if any such reference to any patient treatment or hospitalization is made, that you apprise the patient, Your Honor, of her privilege, that’s all I request.
“THE COURT: All right, when that time comes the Court will act accordingly.”

Defendant’s counsel then went on to another matter; nothing thereafter appears concerning a doctor and patient relationship.

In this connection, we consider also defendant’s Assignment 5, based on permitting testimony about a bribe offered to or solicited by Mrs. Hall. Defendant’s counsel brought this out on cross-examination. Mrs. Hall said defendant’s sister (the person referred to later denied such relationship) offered her three hundred dollars not to testify against him. Defendant said this in response to a question about being offered money by the police but there was no objection or motion to strike. Instead defendant’s counsel cross-examined extensively at various times attempting to obtain admissions from Mrs. Hall that she made an offer to the woman she called defendant’s sister, that she would not testify if paid that amount; and the woman referred to who was called as a witness by defendant testified to that version of the conversation. Mrs. Hall denied this and stuck to her original version of the incident. We find no error in any rulings by the court on this examination. Defendant also contends under this assignment that the jury heard some statement of the prosecutor concerning proof of his prior record but the transcript shows this was out of the hearing of the jury. We find no merit in Assignment 5.

Assignments 4 and 7 concerning instructions are considered together. As to Instruction No. 2 (presumption of innocence, burden of proof beyond a reasonable doubt, also including credibility of witnesses) defendant says it should have specifically instructed on the. unreliability of testimony given by drug addicts. Defendant also says the court should have instructed on the defense of entrapment. In the first place, defendant’s motion for new trial alleged no such error and, in fact, made no specific claim of any error concerning instructions. Furthermore, defendant’s counsel upon being asked by the court if he had any instructions to offer said he had none. The matters complained of are not matters on which the court is required to instruct under Rule 26.02 and previous statutes, Sec. 546.070(4); Sec. 4070(4) RS 1939. See State v. Chaney, Mo.Sup., 349 S.W.2d 238, and authorities cited and discussed therein. Moreover, the facts are very different from those in State v. Taylor, Mo.Sup., 375 S.W.2d 58, on which defendant relies as the basis of the defense of entrapment. Therefore, no error appears in the court’s action on instructions.

This leaves the issue of the propriety of sentencing under the habitual criminal statute (Assignment 2). The court found a prior conviction in the United States District Court for the Eastern District of Missouri, Eastern Division, (narcotic sale) shown by a properly certified copy of the judgment. See Sec. 490.130; also § 1738, 28 U.S.C.A. This was, as the court found, an offense which if committed in this state would be punishable by imprisonment in the penitentiary, as appears from the certified copy of the January 1951 judgment. The middle name of defendant does not appear in that judgment but the state had evidence of admissions by defendant to police officers that he had been convicted of such offense in January 1951 in the United States District Court, which was sufficient to identify him. We consider that the court had ample evidence for its finding of this former conviction. See Annotation 11 A.L.R.2d 880-886 and Missouri cases cited. However, defendant’s admissions did not include imprisonment under this sentence and the court made no finding ■ that defendant was imprisoned therefor, or fined, placed on probation or paroled, and, thus the finding was insufficient to authorize sentencing by the court. See Sec. 556.280(2). There was in evidence a certificate of the Records Control Supervisor of the Federal Detention Headquarters, New York, N. Y., that defendant was there under sentence of the U. S. District Court, Eastern Division of Missouri, for narcotics possession and sale from January 25, 1951 to August 9, 1954. This might be sufficient under Sea 490.220, but see State v. Young, Mo.Sup., 366 S.W.2d 386, 388-390; see also State v. Ash, Mo.Sup., 296 S.W.2d 41, 44, and cases cited; nevertheless the State could have made more complete proof and in the absence of the finding by the court required by Sec. 556.280, we cannot affirm the judgment.

We have examined the record as required by our Rules 28.02 and 28.08 and find it sufficient with respect to the sufficiency of the information and verdict, but because of the court’s failure to make the required findings to show the habitual criminal statute applicable, it will be necessary to follow the same procedure stated and applied in State v. Hill, Mo.Sup., 371 S.W.2d 278, 282, 283; and at the new hearing defendant’s-claim (not made at the trial) of inadmissibility of his admissions concerning prior conviction, under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, may be determined. Therefore, the sentence herein is declared void, the judgment is reversed and the cause remanded with directions to the court to cause the defendant to-be brought before it to hold a hearing on the issue of the applicability of the habitual criminal statute to defendant and if proved that, after being sentenced on his former conviction, he was either placed on probation, paroled, fined or imprisoned therefor, to pronounce sentence and judgment against defendant taking all proper procedural steps required therefor by law and the rules-of this court but in the alternative if the habitual criminal statute be found inapplicable to the defendant to grant him a new trial on all issues.

All concur.