author: EAGER, Judge.

text:
    STATE of Missouri ex inf. Thomas J. STEPHENS, Jr., Prosecuting Attorney of Worth County, Missouri, Relator, v. Lester FLETCHALL, Judge of the Eastern District of the County Court, Worth County, Missouri, Respondent.
    No. 51578.
    Supreme Court of Missouri, In Banc.
    March 13, 1967.

      Thomas J. Stephens, Jr., Grant City, for relator.
    Robert Ross, Albany, for respondent.
   EAGER, Judge.

This action in quo warranto was instituted in this Court by Thomas J. Stephens, Jr., Prosecuting Attorney of Worth County, against two Judges of the County Court. We thereafter sustained Respondent Dunfee’s motion to dismiss as to him, and the proceedings have since been pursued against Lester Fletchall alone. Dunfee had resigned as of February 25, 1966. We shall confine our consideration to those allegations and that evidence which concern the Respondent Fletchall; he assumed the office on January 4, 1965.

The amended information is in two Counts; in the first, it is alleged that on March 22, 1965, a brother of Respondent, one Gordon Fletchall, met with the Court “seeking employment as a bulldozer operator” and that all three Judges “voted affirmatively” to hire him at $1.65 an hour. Further, that in similar manner on April 19, 1965, the Court hired one Kermit Thrasher, a first cousin of Respondent’s wife, as a laborer on the “bridge gang” at $1.00 an hour. It is then alleged that such acts of Respondent were in violation of Article 7, § 6 of the Missouri Constitution, V.A.M.S., that being the “nepotism” provision.

In the second count various acts of Respondent are alleged as constituting willful and malicious “oppression, partiality, misconduct or abuse of authority” in violation of § 558.110 and therefore a cause for forfeiture of office under § 106.220. We shall relate those charges as briefly as possible, omitting those which are not directed at this Respondent, and numbering them according to paragraph numbers appearing in the amended information.

8. That Judges Dunfee and Fletchall “ostracized” the third Judge, Berniel Gabbert, and conducted business at irregular times and places so as to prevent his participation specifying one allegedly irregular meeting at night, which will be referred to later.

9. That Respondent’s brother was ordered to build and did build a road on Respondent’s farm.

11. That prior to June 2, 1965, Respondent (and Dunfee) voted consistently against the keeping of minutes and accurate records and refused to do so, in violation of Article 6, § 7 of the Constitution, despite motions of Gabbert directed toward the keeping of such records.

12. That Respondent and Dunfee purchased and paid for metal road tubes when a better deal was available,

14-15. That Respondent and Dunfee refused to operate the county-owned bulldozers in roadbuilding work after the filing of this suit, and caused one or more roads to be built on contract at a substantially greater cost; also, that they awarded the contract to a second cousin of Respondent by marriage.

16. That Respondent and Dunfee held meetings more frequently than necessary in order to increase their compensation, contrary to the wishes of the other Judge.

Respondent filed answer. Essentially, he denied all the charges, and alleged certain affirmative matters which we shall consider in connection with the evidence. Respondent filed and the Informant answered certain requests for admissions which will be considered in the same manner. We appointed the Honorable Walter M. Din-widdie as our Special Commissioner. After holding a pre-trial conference, he heard the evidence and has filed here a transcript of the proceedings, together with his findings and conclusions of law. He has found the issues on both counts for the Respondent and recommends that both counts be dismissed. The parties have stipulated that the cause be submitted on the transcript and the report of the Special Commissioner, without briefs or oral argument. In considering the evidence, we shall refer to the findings of the Commissioner.

We first consider the nepotism charges. Article 7, § 6 of our Constitution is as follows: “Any public officer or employee in this state who by virtue of his office or employment names or appoints to public office or employment any relative within the fourth degree, by consanguinity or affinity, shall thereby forfeit his office or employment.”

There can be no question about the fact that Respondent was a public officer. The question is whether he has named or appointed anyone to public employment who is related to him within the prohibited degree. Both Gordon Fletchall and Kermit Thrasher were within that degree of relationship. Hence, did he name or appoint them or either of them to public employment ? It appears from the evidence, confirmed by the Commissioner’s findings, that Gordon Fletchall had worked for the county as a bulldozer operator for several years prior to 1965; he was paid solely by the hour. This work was seasonal, in a sense, in that the work stopped during the winter months, usually being resumed in March. The charge now is that he was employed on March 22, 1965, by the affirmative vote of all three members of the Court. Gordon testified that before he went back to work in 1965, he talked to Judge Gabbert only; the Respondent testified that he did not vote to hire his brother; there is no record in the transcript showing anything on the subject. Judge Gabbert testified on cross-examination that he “guessed” that Respondent had never voted officially to hire Gordon but that the business at that time was not conducted in any such formal manner. The Commissioner found that it did not appear from the evidence “when or how he was chosen” or that Respondent connived to have him employed, but that he was paid by the consent of all three Judges after he was recalled. We find that the Informant has failed to prove any violation by the Respondent on this charge; he has failed to show that any action of Respondent was instrumental in putting his brother to work. State ex rel. McKittrick v. Becker, Banc, 336 Mo. 815, 81 S.W.2d 948; State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100, 88 A.L.R. 1099. Moreover, we doubt seriously that the recall of a longtime hourly worker, after the usual winter layoff, would constitute an “employment” within the meaning of the constitutional provision. See, by way of analogy, ACF Industries v. Industrial Commission, Banc, Mo., 320 S.W.2d 484, 491.

Kermit Thrasher was called to work in April, 1965; Judge Gabbert testified that a laborer on the bridge crew had quit, leaving only the foreman, and that “one of us called him.” Thrasher had also done seasonal work for the county for years, and he testified that “somebody just called me up” and that he started work at about the usual time of the year. Again, no record is shown; Respondent denied that he had voted to employ Thrasher, and he was not contradicted. Later Thrasher was put on a different job with a raise of twenty-five cents an hour; the record of that date shows that Respondent voted against the raise. No impropriety has been established on this charge; the Commissioner agrees. We find for the Respondent on Count 1.

Respondent’s counsel objected throughout the hearing to the admission of oral testimony of actions by the Court or any of its members, asserting that this was wholly irrelevant because the Court could speak only through its records. All such evidence was received subject to objection, and the Commissioner later ruled it properly admitted. The principle asserted is true, but we may look beyond the records where improper and illegal acts are charged against an official of that very body, when such acts would not normally be shown by the records. We consider all the evidence, as the Commissioner did.

We next consider Count 2. Section 558.-110 is as follows: “Every person exercising or holding any office of public trust who shall be guilty of willful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity or under color of his office, shall, on conviction, be deemed guilty of a misdemeanor.”

Section 106.220 is as follows: “Any person elected or appointed to any county, city, town or township office in this state, except such officers as may be subject to removal by impeachment, who shall fail personally to devote his time to the performance of the duties of such office, or who shall be guilty of any willful or fraudulent violation or neglect of any official duty, or who shall knowingly or willfully fail or refuse to do or perform any official act or duty which by law it is his duty to do or perform with respect to the execution or enforcement of the criminal laws of the state, shall thereby forfeit his office, and may be removed therefrom in the manner provided in sections 106.230 to 106.290.”

8. We find no evidence to support the charge that Judge Gabbert was “ostracized” or that Respondent and Judge Dun-fee conducted the Court’s business at such irregular times and places as to exclude his participation. The Informant offered in evidence as exhibits copies of the record of 22 court sessions. These show that Judge Gabbert attended 21 of these meetings. A record of July 2, 1965, shows that Gabbert was paid at that time for attending 13 meetings, Dunfee for 13, and Fletchall for 14. One occasion has been specifically charged, a so-called meeting occurring on the evening of June 23, 1965, that being the day on which this suit was filed. It is charged that Gabbert was not “notified” of the meeting, at which “county business” was conducted. The evidence showed that on this evening Gabbert came to Respondent’s home and they talked; apparently he left, and Respondent went to Dunfee’s residence and talked further. All were rather perplexed and concerned, as might be imagined. It does not appear that Gabbert was excluded. Respondent and Dunfee told the bridge foreman and Gordon Fletchall to quit work until they could find out what was going on. The bridge work was already shut down for lack of lumber. Gordon never did return to work; the others did very shortly thereafter. There was no evidence that anyone was discharged. This charge has not been sustained.

9. Respondent had his brother “round off” a corner on a dirt road at the edge of Respondent’s place, using the bulldozer, so as to relocate it on better ground. The new construction was very short. Respondent got no benefit personally; in fact, this separated a small tract from the rest of his place. The road was shown to be a public road and a mail route. The action should not have been taken so informally, but it constituted no such misconduct as is contemplated by the statute.

11. The records of the meetings of the Court were incomplete; often they merely showed that the Court met, what members were present, and that the “Court transacted business at office.” Occasionally special items were listed, and the county bills appear to have been itemized and listed when allowed. We do not have the complete record for 1965, but on April 30, fifty-three bills were allowed as “per Warrant Register.” The records were signed by the Presiding Judge and the County Clerk. Judge Gabbert testified that he had asked that the Court “keep minutes” and records, but that “they just felt” that it was not necessary. Apparently this rather nebulous way of keeping the records was a carry over from previous years. It was concededly corrected on or about June 2, 1965. It is true that a County Court is required to keep “an accurate record of its proceedings,” Article 6, § 7, Constitution, but we find nothing in Respondent’s demonstrated actions to constitute willful and malicious oppression, misconduct or abuse of office, as charged. He may have been guilty of simple negligence or of a want of the requisite procedural knowledge, but that does not justify an ouster.

12. The county needed certain metal “road tubes.” It received two bids, said to be at the same price. Judge Gabbert testified that in February, 1965, the Court accepted one of the bids on which the salesman had stated that payment might be delayed until December; but further, that at some unspecified date Respondent and Dunfee approved payment in full prior to December, and in Gabbert’s absence. On the evidence before us we cannot rule that any such action was beyond the discretion of the Court, acting through a majority. There may have been a valid reason, arising entirely outside this evidence.

14-15. Apparently the County Court was allotted certain funds to be expended toward the building of CART roads, — a term not explained in our record. Seemingly, these are a type of minimum grade county roads, which may be built by the county direct or through contract. On certain of these, the question arose as to the method which should be used; Respondent and Dunfee voted to build the roads by contract; Gabbert voted against this. Bids were then received from two contractors, and two members of the Court voted to let the contracts, separately or in toto, in a manner not fully disclosed in this record. It is charged that the county was put to added expense in building the roads by contract, but nothing is shown in the evidence other than the exercise of a lawful discretion by a majority of the Court. The same is true of a charge that since the filing of this suit a majority of the Court has failed to operate the two bulldozers owned by the County, and has ceased all direct road building operations.

16. The charge of the holding of an excessive number of meetings is not sustained by the record. The Commissioner found that no evidence was offered on that charge and we find none.

As we have indicated, the burden of proof on all charges was on the Informant. State ex inf. Connett v. Madget, Banc, Mo., 297 S.W.2d 416. Since forfeitures are not favored, and the ouster of a public officer is a drastic remedy, the statutory provisions for removal are strictly construed. Madget, supra; State ex inf. Taylor v. Cumpton, 362 Mo. 199, 240 S.W.2d 877. The two offenses (out of eight) for which ouster was ordered in Madget consisted of willful and deliberate acts of oppression and coercion designed to benefit the respondents personally and financially, and to benefit financially the political supporter of one of them. That opinion, when read in its entirety, constitutes authority for a ruling that the evidence here under Count 2 of the amended information is not sufficient to justify ouster, and we so hold.

In so far as Count 1 is concerned, we find, as already indicated, that it has not been shown that Respondent was responsible for the employment of either of his relatives, or that he connived with one or more others in their employment. State ex rel. McKittrick v. Becker, Banc, 336 Mo. 815, 81 S.W.2d 948; State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100, 88 A.L.R. 1099.

Neither count of the amended information has been sustained and ouster is denied. The amended information is dismissed. Costs are hereby taxed against the Informant.

All concur.

      . All statutory references are to RSMo 1959, and Y.A.M.S.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Malcolm JACKSON, Appellant.
    No. 52156.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Donald Gunn, Jr., James F. Gunn, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, William A. R. Dalton, Special Asst. Atty. Gen., Springfield, for respondent.
   PRITCHARD, Commissioner.

Appellant was convicted of commission of the crime of murder in the first degree by the verdict of a jury. Judgment was entered and a sentence of life imprisonment was imposed in accordance with the verdict. Appellant does not here question the sufficiency of the evidence to sustain his conviction. The facts relevant to the points upon which appellant seeks reversal of the judgment will be stated in connection therewith.

Appellant’s Point I is: “The trial court abused its discretion when it overruled defendant’s Motion for a New Trial since bias and prejudice may be inferred from a juror’s concealment of information touching on his qualification as a juror.”

On voir dire examination of the jury panel counsel for the state asked: “Have any of you for any reason ever had to take the witness stand ? Possibly you might have been a victim of a crime, or maybe you have been called in by the State.” Venireman Spatny told that he was called in an industrial accident case before the Industrial Commission, but, because he was a witness, he had no feelings one way or the other (in this case) ; venireman Holmes had no particular feeling that would prevent her from sitting as a juror; venireman Moore had no unpleasantry attached to his experience of being arrested for hit and run, “thrown out of court” a “lot of years ago”; venireman Auberry stated he was able to give appellant a fair trial despite having been a witness for the state, and the victim, in a case of grand larceny; veniremen Gravatt and Brooks had testified in civil cases, had no feelings about it. Counsel for the state wound up his examination by asking: “Now, let me ask this: is there anyone who for any reason at all thinks they could not sit and give the defendant and the State a fair and impartial trial in this particular case? (No response.)”

Counsel for appellant asked venireman Mrs. Dorothy Schlatman (who sat as a juror during the entire trial) : “Mrs. Schlat-man, if they don't prove the charge as stated in the indictment, would you have any — would there be any reason why you couldn’t bring back a verdict of acquittal? A. No.”

On presentation of evidence in appellant’s motion for new trial, Mrs. Schlatman testified :

“Q Now, do you recall that day, December 6th, various questions being propounded to you by both counsel for the State of Missouri and myself?
A Yes, sir.
Q . If I recall correctly, you were on the first panel. Is that correct. A. Yes.
Q Do you remember Mr. MacDonald asking this question of that particular panel: ‘Possibly you may have been a victim of a crime or maybe you have been called in by the State.’ Do you remember that question being propounded?
A I don’t remember any specific question.
Q You don’t remember that particular question ?
A No, I don’t.
Q That doesn’t mean it wasn’t asked? A That is true.
Q Now, Mrs. Schlatman, I want you to recall back about nine or ten years ago. Were you the victim of a crime?
A Yes, sir.
Q When was that?
A It was about August or September 1955.
Q Mrs. Schlatman, let me warn you: this had better be absolutely borne out by the records of the police department and the circuit attorney’s office.
A Yes, sir.
Q That was about 1955 or so?
A Yes, sir.
Q Can you tell the Court what happened at that time ?
A Well, I was working at the K-Z Corporation. I was working on the midnight shift, so I had walked down to catch a bus sometime between eleven and twelve. I don’t remember the time of the bus, but on my way to the bus— shall I tell you the streets ?
Q Tell the whole thing.
A I was walking north on Twentieth Street and right at Wright Street there is a filling station and it faces North Florissant; the back of it is on Twentieth Street, because there is a wedge there. As I was even with the back of this filling station a man came around the corner of the filling station and started walking towards me. I didn’t pay too much attention to him, because he was just coming up the block. When he got even with me — I was carrying an envelope-style purse and my lunch. He just reached over when he was even with me and grabbed my purse and ran. When he did, he ran south on Twentieth Street. I turned around and I started to holler, ‘Stop thief!’ When he got across the street, on Wright Street, there was a lady — she told me later that she had gotten off the Natural Bridge bus and he grabbed her purse. She had it hooked over her arm, so he pulled her to the sidewalk and the strap broke. Then he kept running. I ran over immediately to see if she was hurt, but she wasn’t; she was skinned; her knee or something was skinned a little or her arm — I don’t remember. She wasn’t injured badly. She only lived a block from where this happened. We walked together to her house and called the police at the Fifth District. They came to her house. I don’t remember her name; I think it was something like Jablonski; it was a Polich name.
So then the police came and questioned us both and took me to work. Later that night they came to work and picked me up, because two hours later I started getting real nervous. I didn’t feel like I could finish the night.
Then about a month later the police came and took me down to the Fifth District Station and they had a fellow they put behind a screen or something and they asked me to view him to see if he was the man that had grabbed my purse. He didn’t fit the description at all for me, so I told them no. That was all there was ever to it.
Q. There was a police report made of that particular incident?
A Yes, sir.
MR. GUNN: I have no further questions at this time.
CROSS EXAMINATION
By Mr. MacDonald:
Q I believe you indicated that you don’t recall being asked this question as a juror?
A I don’t remember just that particular question. I know we were questioned a lot.
Q If you were questioned on this point —suppose you did recall now being questioned, just for supposition sake, did you recall anything at the time you were chosen as a juror regarding the set of facts or the incident which you just explained?
MR. GUNN: Just a minute. Your Hon- or, I am going to object to that. I want to make objection on the ground that anything that she says now is mere supposition regarding anything that happened during the course of the trial. The question now is whether or not this juror would have been chosen as a juror by both counsel if they had known of this incident. I am going to object to any question which would be based purely on supposition as to anything that she might have done or could have done or could not have done,,
THE COURT: I will overrule it.
A No, sir. I don’t remember; I don’t recall.
Q In other words, at any time when you were asked the question or the question was propounded to your fellow jurors on the panel, did you ever at any time recall this incident which you just told Mr. Gunn about?
A No, sir.
“MR. MacDONALD: I have no further questions.”

Without a doubt, and as stated by appellant, it is the duty of a juror on voir dire examination to fully, fairly and truthfully answer all questions directed to him so his qualifications may be determined and so that challenges may be intelligently exercised. He cites Beggs v. Universal C.I.T. Corporation, Mo., 387 S.W.2d 499. That case was one for actual and punitive damages for defendant’s alleged unlawful taking possession of and the towing of a truck (tractor) in a manner that caused it to be damaged.. It states the general rule as set forth, supra, by appellant, but goes on to say, loc. cit. 387 S.W.2d 503, “ ‘[A] juror’s intentional concealment of a material fact may require the granting of a new trial. Woodworth v. Kansas City Public Service Co., Mo., 274 S.W.2d 264. For bias and prejudice on the part of a juror may be inferred from his intentional concealment of such information. Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278. * * * In the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left to the sound discretion of the trial court. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795.’” (Italics here added.) The defendant in' Beggs was a finance company, and the voir dire question was whether venireman Holder had trouble with a finance company, to which he answered “No.” In truth, he had been adversely involved with five creditors who had judgments, two of them being finance companies. That fact, plus two other jurors failing to answer questions along the same line, caused this court-to hold that there was wilful and intentional withholding of information which should have been disclosed on voir dire examination, that the defendant sustained prejudice in that it did not have a trial before a fair and impartial jury of twelve persons, and the trial court abused its discretion in overruling the motion for new trial. In this case, there is no evidence that Mrs. Schlatman intentionally withheld her previous experience (9 years earlier) with a purse snatcher and with the police in connection with that incident. On the post-trial hearing she testified that she remembered various questions being asked her, but not any specific question: “I know we were questioned a lot.” She did not remember the purse snatching incident or ensuing incidents at the time she was questioned. In view of the nature of the state’s voir dire question, “Have any of you for any reason ever had to take the witness stand ?” and the answers to questions by other veniremen, it is clear that each, including Mrs. Schlatman, had in mind, with reference to the question, that it related to being a witness in a case being tried as the victim of a crime and being called in by the state. In the circumstance here presented, Mrs. Schlatman’s failure to remember the 1955 purse snatching crime, and its later investigation, is not intentional and it may not legitimately be so inferred. There was no wilful withholding of vital information by her to the prejudice of appellant. She stated, in answer to final questioning by counsel for the state, that she knew of no reason why she could not bring back a verdict of acquittal should the state not prove the charge as stated in the indictment. State v. Hermann, Mo., 283 S.W.2d 617 (which involved absolute disqualification of the venireman who had been convicted of a crime), is not in point with the facts here. Nor are other cases cited by appellant, Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711 (where person not drawn to serve on the jury impersonated the one who had been drawn and gave false answers to voir dire examination thereby practicing fraud upon the court and parties as a matter of law); Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795 (juror’s false answer when he was asked whether he or his family had been involved in a similar lawsuit); Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459 (prospective juror failed to reveal he had a claim against the defendant street car company in response to direct examination on that subject); and others of similar import, Brady v. Black and White Cab Company, Mo.App., 357 S.W.2d 720; Girratono v. Kansas City Public Service Company (cited in Beggs, supra); and Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 116 S.W.2d 27. “An unintentional failure to disclose information as to matters not connected with the case does not, of itself, show prejudice on the part of the juror.” Derr v. St. Louis Public Service Company, Mo.App., 399 S.W.2d 241, 244 [5, 6], and cases cited. There is no manifest prejudice on the part of Mrs. Schlat-man in failing to answer the voir dire question. The trial court did not abuse its discretion in refusing to grant a new trial on this point. It is overruled.

Point II of appellant is that the trial court committed reversible error in its remarks from the bench. It appears from the record that after the last panel of veniremen had been examined, but before the selection of the twelve jurors to hear the case had been made, the trial court made a statement to the jurors regarding the need for more jurors, which statement was not reported by the' official Court Reporter. Then the following occurred:

“MR. GUNN: Your Honor, in the Court’s statement to the panel just now, which I think were wellfounded, I would ask for a mistrial on the ground that there was one statement I think was highly prejudicial to the defendant and that was when the Court said you were talking about civil jurors or civil juries and that ‘God forbid’ they would be in a criminal case. I would say that was prejudicial to the defendant and ask a mistrial be declared.
THE COURT: Motion for mistrial will be denied.”

The foregoing is all that appears in the transcript of the record. We do not know the context in which the claimed prejudicial remark was made by the court. There is no way of knowing precisely to what it refers other than the fact that the court was talking to the panel about civil jurors or civil juries, as stated in the objection made by counsel for appellant. The request for mistrial was then denied, and as the matter was raised in the motion for new trial the trial court must have considered it. We cannot hold that there was prejudicial error committed against appellant upon this fragmentary record. The remark does not rise to the stature of the clearly coercive and prejudicial remarks urging the jury to reach a verdict as is found in State v. Keller, Mo., 344 S.W.2d 65, 68. We are in no better position than counsel for appellant who states in his brief that he “certainly does not completely understand the meaning of the trial judge’s ‘God forbid,’ ” but we cannot agree with counsel’s further statement, “and such lack of understanding on his part necessitates the more than possible conclusion that the remark was magnified and misconstrued by the jurors.” There is not enough here to reach any conclusion, and this situation is comparable to that where an assignment of error respecting argument is impossible of review where the argument is not included in the transcript of the record. State v. Smith, Mo., 395 S.W.2d 200, 204 [6],

Appellant claims prejudicial error in the trial court’s remarks made during the direct examination of Thedall Doss, a witness for the state, who testified that he saw defendant at a fish place after the time set for the commission of the murder:

“Q Did you have a fish sandwich there ?
A No.
Q What did you do there, if anything?
A Just walked on past on my way home.
Q Did you go home? Did you leave that place and go home?
A Yes.
Q Did you leave the house at all?
A Any more that night?
Q Yes.
MR. GUNN: I object to that as being irrelevant and immaterial.
THE COURT: I don’t know what the purpose is.
MR. GUNN: It has nothing to do with the issues in this case.
THE COURT: Well, it can’t hurt you then.” (Emphasis added.)

Appellant says the court’s remark was a misstatement of the law and that he was materially prejudiced. He says, “The statement by the trial judge implanted in the mind of the jury that any objection based on materiality and relevancy was groundless since such testimony would not injure the defendant anyway. Such is not the case; many times evidence not germane to the issues in a trial are very prejudicial.” Although it would obviously be better to rule on the objection without the remark, we do not perceive any prejudice, and appellant does not point to any harmful effect of the remark, the import of which was merely to overrule the objection. Furthermore, the allegation of error in the motion for new trial (Paragraph 10) is based upon the inadmissibility of the evidence as being “immaterial, irrelevant and having nothing to do with the issues of the case.” Nothing is there said about any prejudicial effect of the court’s remark and therefore that is not preserved for review. Point II is overruled.

Point III: Appellant says that the court erred in refusing to allow him to cross-examine and impeach witnesses Thedall Doss and Lynn Murphy as to prior inconsistent statements.

On direct examination Doss testified he knew appellant’s parents and denied that he ever told them or anybody in appellant’s house, or Mr. Gunn, that he couldn’t say that appellant was there at the party that night (the night of the shooting). On cross-examination, Doss testified that he had a conversation with Mr. and Mrs. Bracken in which he might have told them that Malcolm (appellant) didn’t do this (the homicide). He was then asked by Mr. Gunn if he recalled Mr. Gunn calling him last Saturday. At a conference outside the hearing of the jury, counsel stated, by way of offer of proof, that he had a conversation with the witness Saturday in which he told him that Malcolm Jackson didn’t have anything to do with the murder. The state objected on the grounds that the offer of proof called for a conclusion on the part of the witness and that it was hearsay, which objection was sustained. It is noted that Doss did not witness the homicide, but merely heard a shot which he first thought was the backfire of a car when he was to the rear of the building. At that time he thought appellant and one Scott were still at the party in the building. The offer of proof goes to the ultimate fact: Did appellant commit the homicide? The exclusion of the offer was proper. It called for Doss’ conclusion that appellant did not commit the murder, without any facts in evidence, or a foundation being laid, as a basis for such a conclusion. “Other questions disallowed [on cross-examination] are those which are argumentative or speculative, or those which make an assertion of facts not in evidence, or for which no foundation has been laid, or which call for a conclusion or opinion of a witness not competent to give opinion evidence * * * or questions calling for answers which invade the province of the jury or court.” [Our brackets.] 98 C.J.S. Witnesses § 411, p. 212. See also State v. Carroll, Mo., 188 S.W.2d 22, 24, a case involving opinions of witnesses as to the character of defendant. Here, there was not a prior statement inconsistent with that tendered in the offer of proof. Doss merely denied that he couldn’t say that appellant was at the scene. He did not say that appellant did the shooting, the converse of which was sought in the offer of proof. The same ruling must apply to the offer of proof as to witness Murphy, who did not testify that appellant was the one who committed the crime, but only that he saw appellant at the party, saw a flash come from a pistol in appellant’s hands, remembered the positions of the boys gathered closely at the time of the shooting, saw appellant leave, but that he never did tell anyone that he didn’t see appellant at the party that evening. Again, appellant sought to elicit a conclusion from Murphy that in a conversation with appellant’s father he said, “Did you ever tell him that Malcolm didn’t do this crime?” Point III is overruled.

Appellant says it was prejudicial error to permit the testimony of witness Troupe, a member of the Homicide Division of the Metropolitan Police Department, to be given in rebuttal. Nothing was elicited that rebutted anything, but on the other hand, other than identification of appellant as Malcolm Jackson, nothing damaging was testified to by witness Troupe. He testified that he did not obtain any statement from appellant regarding the shooting. We see no prejudice to appellant from the mere fact that Troupe was a member of the Homicide Division. There was nothing to object to, nothing to occasion striking the testimony, and Point IV is overruled.

Point V is that the court erred in not permitting appellant to introduce testimony of his parents, Mr. and Mrs. Bracken, to impeach a former witness (Thedall Doss). As above set forth, Doss testified that he did not tell appellant’s parents or anybody in his house that he couldn’t say that he (appellant) was there at the party that night. Appellant’s offer of proof was that the Brackens would testify that on two occasions they had a conversation with Thedall Doss and in both “they said that the defendant had nothing at all to do with this crime, and this is contrary to what they testified to in the case.” The matters offered, as stated by counsel to the court, do not impeach the only matter testified to by Doss: that he did not tell them that he couldn’t say that appellant was there at the house that night. It was not error to reject the offer. The offer was of new matter, about which Doss did not testify. Point V is overruled.

We find no error in the matters specified for review under Criminal Rule 28.02, V.A. M.R.

The judgment is affirmed.

BARRETT and STOCKARD, CG, concur.

PER CURIAM:

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

All of the Judges concur.


author: FINCH, Judge.

text:
    Joseph POLOVICH, Plaintiff-Respondent, v. Herbert W. SAYERS and Thirza M. Sayers and Herbert W. Sayers and Thirza M. Sayers, d/b/a Sayers Brook Orchard, Defendants-Appellants.
    No. 51442.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Heege & Heege, Clayton, for appellants.
    George R. Gerhard, Harold L. Satz, Theodore D. Ponfil, Satz & Ponfil, St. Louis, for respondent.
   FINCH, Judge.

Plaintiff obtained a judgment for $60,-000 for personal injuries and defendants appeal.

The appeal as presented to us involves only the question of whether plaintiff made a submissible case. In determining this issue, we consider the evidence in the light most favorable to plaintiff, including the benefit of favorable inferences reasonably to be drawn therefrom, as repeatedly announced in cases decided by this court. Brown v. Wooderson, Mo., 362 S.W.2d 525, 99 A.L.R.2d 894; See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15.

Defendant Herbert W. Sayers owned and operated a 1600-acre orchard near Potosí, Missouri. His wife, the defendant Thirza M. Sayers, acted as manager and at least when he was not personally present could give orders on behalf of her husband. On the day when plaintiff was hurt, Sayers was elsewhere on the orchard tract. With reference to events on the day in question, a portion of a deposition of Mr. Sayers, wherein he stated that his wife in her capacity as manager would have been the one on that occasion to have given directions, was introduced as an admission against interest.

Mr. Sayers contracted from time to time with Harry Strayer, an independent contractor, to do various construction and maintenance jobs on his orchard. On the date in question, Strayer was constructing a parking lot adjacent to a lake on the orchard property. The work was done on a cost plus basis and as a part of the agreement Strayer could use, as needed, any of the orchard equipment. Included was a 1949 Dodge truck which was used in connection with the orchard.

Plaintiff and one Kenny Gamble, both employees of Harry Strayer, were working on the new parking lot. On the day plaintiff was hurt, he picked up Gamble in the morning and took him to a quonset hut on the orchard property where the 1949 Dodge truck was stored. Plaintiff then went on over a hill and down to the lake where the parking lot was being constructed. Gamble followed with the Dodge truck. The terrain was hilly and in some places the roads in the orchard were on a grade of as much as 10 per cent. After Gamble passed the crest of the hill enroute from the quonset hut to the lake site, he applied the foot brake on the Dodge truck but the brake pedal went to the floor and the foot brake would not work. Gamble succeeded in stopping the truck with the emergency brake, and then, keeping the truck in low gear, eased the truck down the hill to the lake site.

Harry Strayer, the contractor, arrived at the lake shortly thereafter and Gamble talked to him and told him that the brakes on the Dodge truck were out. The evidence most favorable to plaintiff did not show that plaintiff heard this conversation or was made aware of the condition of the brakes on the truck.

At about 9:00 a.m., Harry Strayer talked to Mrs. Sayers at the quonset hut. As previously indicated, Mr. Sayers was elsewhere on the orchard tract and was not present at this conversation. An employee of the orchard, Clinton Ayers, was present and heard the conversation. Strayer reported to Mrs. Sayers that brake fluid, was needed for the truck. Admissions against interest offered from Mr. Sayers’ deposition disclosed that Mr. Ayers was his maintenance man. He made whatever repairs were needed on the truck at the orchard and it would have been his business to add brake fluid as needed in the truck. A statement of Mrs. Sayers from her deposition, offered in evidence as an admission, recited that they kept brake' fluid on the farm for any piece of equipment. When Mrs. Sayers was asked whether she informed Mr. Ayers about the fact that brake fluid was low, she gave this testimony:

“QUESTION: When you were informed that the brake fluid was low on this did you get hold of Mr. Ayers and tell him to fix them, fix the fluid in this 1949 Dodge truck?
“ANSWER: He was there.
“QUESTION: He was there?
“ANSWER: He heard it when I did.
“QUESTION: He was there with you and Mr. Strayer ?
“ANSWER: Yes.”

Mrs. Sayers did not ask or direct Strayer not to use the truck.

When plaintiff and Kenny Gamble fin-nished setting posts for the guardrail for the parking lot, Strayer told plaintiff to measure for lumber needed for a bumper guard. Meanwhile, Strayer and Gamble went to work on the boat dock. As plaintiff walked away to make the necessary measurements, Strayer and Gamble were walking in the other direction. Plaintiff heard brakes mentioned but did not hear any other details.

After plaintiff completed measurements for the bumper guard, he and Gamble got in the Dodge truck to go and get the material needed. This was at approximately 1:30 p.m. Plaintiff asked Kenny Gamble what he had heard mentioned about brakes, and Gamble told him that the brakes were all right except that he had to pump them a couple of times and that the emergency brake was fine. The evidence favorable to plaintiff does not disclose knowledge on the part of plaintiff of any information about the brakes other than that related to him at the time by Kenny Gamble.

Gamble drove the truck and as they crested the hill the truck was in low gear. As they started down from the crest Gamble applied the foot brake but it did not hold or slacken the speed of the truck at all. Plaintiff pulled the emergency brake but it had no effect. The truck speeded up and was freewheeling and as it crossed a cattle guard in the road it went out of control, side-swiped a culvert and ran into a tree. Plaintiff received very serious injuries.

The case was submitted against Mr. Sayers on the theory that he breached a duty to use due care in keeping the truck in repair and in failing to fix the brakes when he knew they were defective, and was submitted against Mrs. Sayers on the theory that as the managing agent for her husband she also owed plaintiff this duty of repair and was negligent in failing to repair the brakes which she knew were defective. Defendants’ brief asserts on behalf of both defendants the failure of plaintiff to make a submissible case on the grounds which we shall discuss.

Defendants first contend that the trial court erred in failing to sustain their motion for a directed verdict at the close of plaintiff’s case. That motion was waived by the action of the defendants in presenting evidence thereafter, and hence we have for review only the action of the court in overruling the motion for a directed verdict at the close of all the evidence. Snead v. Sentlinger, Mo., 327 S.W.2d 202.

We hold that the evidence was sufficient to make a submissible case against the defendants. The Dodge truck belonged to Sayers and he had possession of it except when it was used temporarily by Strayer on such occasions as the one here involved in which Gamble picked up the truck that morning to do some hauling in connection with construction of the parking lot. Maintenance and repair of the truck was the owner’s responsibility. As Gamble was driving the truck from where it was stored to the site of the parking lot, the foot brakes failed to work. This was related to Mrs. Sayers and the defendants’ maintenance man at 9:00 a.m. Under the facts, notice to Mrs. Sayers constituted notice to Mr. Sayers. Although the truck was not used again until approximately 1:30 p.m., Clinton Ayers, the maintenance man, did not add brake fluid to the brakes on the truck. The brakes failed again when Gamble started down the slope on the other side of the hill and the collision with a tree resulted.

This is not a situation where a bailor leases to bailee a vehicle which is in satisfactory condition at the time of delivery and bailor has no responsibility to maintain and repair the vehicle while it is leased. Here, bailor was responsible for repair and maintenance at all times. The brakes failed as Gamble drove the truck from the place where it was stored. Defendants were notified promptly of this deficiency. The defendants’ maintenance man was present and heard the report, but defendants did nothing in the four and one-half hours which elapsed before the truck was used again. Under those facts, the plaintiff made a submissible case.

The case of Hudson v. Moonier, 8th Cir., 102 F.2d 96, is in point. In that case the U. S. Court of Appeals, applying Missouri law, held that an employee of a road contractor could recover for personal injuries from a firm which leased trucks to the road contractor for use on a highway construction job. Under the lease agreement, lessor was to maintain the trucks in good working order. The horn was. missing from one of the trucks for a sufficient time for lessor’s mechanics to have replaced it. Plaintiff was struck and injured by the truck as it was driven by another employee of the road contractor. The accident occurred because the driver was unable to warn plaintiff when he was compelled to divert the truck off of the roadway and in the direction in which plaintiff was working. At page 99 the court said: “First, it is settled in Missouri that when a party undertakes (whether motivated by a contractual obligation or by any other reason) to furnish a construction, building or manufacturing contractor with the instrumentalities and appliances used in the performance of the contract, and such party retains control over them for the purpose of keeping them in repair, ‘he owes to the contractor and his employes the duty of care in respect to such matters over which he retains control, or undertakes to perform.’ Roddy v. Missouri Pac. Ry. Co., supra, [104 Mo. 234,] IS S.W. [1112] page 1115 and cases cited; Jewell v. Sturges, 245 Mo. 720, 151 S.W. 966; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122; Fassbinder v. Missouri Pac. R. Co., 126 Mo.App. 563, 104 S.W. 1154; Loehring v. Westlake Const. Co., 118 Mo.App. 163, 94 S.W. 747.” The court concluded that the lessor of the trucks owed employees of the road contractor a duty to exercise reasonable care to keep the trucks in repair and was liable for injuries resulting from a breach of that duty.

Defendants assert that Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954, is applicable and that under the ruling therein a third person such as plaintiff may not recover against bailor for negligence on account of a defect known to bailee. The Blankenship case is factually different and does not govern the result here. Blankenship was an employee of a contracting firm which had a contract to resurface a street with oil and rock. The contractor leased a street sweeping machine from defendant oil company. The contractor took possession and control of the sweeper on an “as is” basis and was to maintain and repair it. Defendant oil company assumed no responsibility for the sweeper after it was leased.

The sweeper had a chain and sprocket assembly which operated the broom which swept the street. This assembly was located between the platform where the operator stood and one of the rear wheels. It was not covered or protected in any way and had not been for at least two years when it had been leased by the contractor the first time. While Blankenship was riding on the platform as the operator, the sweeper lurched or hit something and Blankenship was thrown off balance and into the sprocket assembly, resulting in injuries for which he sued. Under those facts, the court held that the defendant oil company had only the duty to furnish bailee with a sweeper reasonably fit for its intended use. No breach of any duty or negligence of any kind by the oil company was shown. In addition, the court pointed out that this was not a hidden defect but that the unguarded condition of the sprocket was obvious and one which plaintiff could observe. It is of interest to note that the court in Blankenship approved of Hudson v. Moonier, supra, but simply held it was distinguishable on the facts.

Defendants made the further contention that use of the defective truck by Strayer, an independent contractor, with knowledge of its condition, was the proximate cause of the accident and injuries and that the negligence of the defendants, if any, was too remote to be the proximate cause. While defendants do not use the term, it appears that they are asserting that Strayer’s act in having the truck driven with knowledge of its defective brakes was an efficient, intervening cause. “Generally, an efficient, intervening cause is a new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate and immediate cause of the injury but it may not consist merely of an act of concurring or contributing negligence. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824[3].” King v. Ellis, Mo., 359 S.W.2d 685, 688.

Here it is not claimed that Gamble was negligent in the actual operation of the truck. The alleged intervening cause was the negligent act of Strayer in directing use of the truck when he knew it had defective brakes. In our judgment, this act of Strayér was contributing or concurring negligence but was not an efficient, intervening cause which would excuse defendants and cause their acts not to be the proximate cause of the accident. “One whose negligence combines and concurs with that of another, or even with an independent intervening cause, to produce injury to another, is liable. Christiansen v. St. Louis Public Service Co., 333 Mo. 408, 62 S.W.2d 828; Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 748, 286 S.W.2d 820. As stated in Dickerson, at loc. cit. 824: ‘If some injury is reasonably to be anticipated or is reasonably probable as a result of the defendant’s act of negligence, then the added act of a third person, though he also be negligent, does not break the chain of causation and defendant is liable; in such event the act of the third person is mere concurring negligence.’ ” Price v. Seidler, Mo., 408 S.W.2d 815, 821.

The act of Strayer in using the truck did not break the chain of causation between the defendants’ negligent conduct and the accident which occurred. Defendants’ conduct remained a substantial factor in causing plaintiff’s injury. Without it, the action of Strayer would not have caused the accident in question. It is to be noted that in Hudson v. Moonier, supra, the act of the road contractor in using the truck without a horn did not excuse the lessor for its negligence in failing to repair the truck. It was merely concurring negligence, and the failure to repair was the proximate cause of the accident. We hold that the negligence of defendants in breaching this duty to repair was the proximate cause of plaintiff’s injury.

Defendants also claim that the evidence conclusively established that defendants did not have time to repair the truck. We do not agree. Defendants’ repairman was present and heard firsthand the information about the need for brake fluid in the truck. An admission against interest read into the record from the deposition of Mrs. Sayers was to the effect that brake fluid for all equipment was kept on the farm. At the trial, she testified to the contrary and stated that they did not have brake fluid on the orchard that day, but this did not conclusively establish that fact. It would have been a question for the jury to determine. Furthermore, the evidence disclosed that the orchard was only 13 miles from Potosí and there was a four and one-half hour lapse of time between notification to the defendants and use of the truck on the trip on which the accident occurred. We rule this contention against defendants.

Finally, defendants assert that plaintiff knew that the brakes were defective and assumed the risk and was contributorily negligent as a matter of law. In this connection, defendants really argue sufficiency of the evidence because they talk of evidence to the effect that Strayer mentioned the condition of the brakes to Kenny Gamble and warned him to be careful when Gamble and plaintiff were seated in the cab of the truck just before starting on the trip on which the accident occurred. For purposes of submissibility, we must look to the evidence most favorable to plaintiff, and that evidence was that this did not occur in the presence of plaintiff and that plaintiff did not know of the defective brakes on the truck, and that the only information he had was that which he received when he asked Gamble what had been said about the brakes and Gamble reported to him that he needed to pump the brakes a couple of times and that the emergency brake was fine. That made a submissible case on the question of knowledge and the question of contributory negligence was an issue for the jury.

We have considered the other authorities cited by defendants in their brief filed herein but are not persuaded that on the facts involved they indicate any result other than the one we reach.

The judgment is affirmed.

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Gerald H. COOK, Appellant.
    No. 52291.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.

      Robert J. O’Hanlon, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, W. Scott Pollard, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   HENLEY, Judge.

Gerald H. Cook, the defendant, Frank P. Downey and Ronald L. Brower were charged by information substituted for an indictment with prior felony convictions and with having on June 13, 1965 forcibly raped Jenny Savisky, a female over the age of sixteen years. Section 559.260, RSMo 1959, V.A.M.S. Defendant, tried separately from his co-defendants, was convicted by a jury; the court assessed his punishment and sentenced him to imprisonment for fifteen years. Sections 556.280 and 559.260, RSMo 1959, V.A.M.S. Defendant appeals. He was represented at the trial and in this court by counsel of his own choice.

The sufficiency of the evidence to sustain the conviction is not questioned. Defendant relies for reversal on three points that the court erred in the exclusion of evidence.

On Sunday evening, June 13, 1965, at about 9 o’clock, Jenny Savisky, age 22, Ann Savisky, age 20, and their sister, Patricia Lanham, age 13, left their home to walk to Banjo and Nick’s, a neighborhood drive-in restaurant at the corner of Jefferson and St. Louis Streets, in the City of St. Louis, to get a soda. Jenny is totally blind; Ann is blind in one eye and partially blind in the other. While waiting in line at a drive-in window for their sodas they were engaged in conversation by four young men, the three named in the information and one Lester Greer. The three girls left the line without getting their sodas and walked to the corner of Jefferson and University, about a block away, where they lingered to talk. In a few minutes the four young men drove up in Downey’s automobile, stopped, got out, and resumed the conversation. Ann joined Lester Greer in the automobile while Jenny, defendant and Frank Downey sat on the steps of a building adjoining the sidewalk, Patricia walked across the street to the home of some friends. She (Patricia) later saw defendant and Ronald Brower forcibly walking her sister, Jenny, to and in an alley, about a half-block away; she became alarmed, ran home, and told her mother what she had seen.

Jenny Savisky testified that she was forced through a small opening into a “shed” or garage building adjoining the alley and there forcibly ravished by three of the young men; first, by Brower; next, by defendant, who held her arm behind her and threatened to break it; and next by Downey. About the time Downey finished with her, she heard her mother and sisters calling for her in the alley. Downey hid in the garage as she groped her way out of the building through the small opening by which she had entered, and into the alley.

Josephine Lanham, mother of Jenny, testified that when she and another daughter arrived at a parking lot near this alley she saw defendant and Brower leaving the alley walking across the parking lot; that she walked into the alley calling out, “Jenny! Jenny!”; that she found Jenny standing by a doorway “crying” and “hysterical,” with her clothing in a “sorry” state. She further testified that the police were called immediately, informed of what had happened, and given a description of the four young men and Downey’s automobile; that she and her daughters waited on a nearby corner for arrival of the police; that the police took them to their home, where Jenny’s soiled clothing was removed and given to the police. From there the police took her and Jenny first to the hospital and later to the police station where she found her daughter, Ann, and Brower, Downey and the defendant.

Defendant testified that he was with Brower, Greer and Downey in the latter’s automobile at Banjo and Nick’s on the evening in question and later was with these three young men and the three girls at the corner of Jefferson and University Streets. He further testified that he was sitting in Downey’s automobile with Ann Savisky and Lester Greer when he saw Jenny and Brower walk across the street arm in arm into an alley. He said he later saw Frank Downey follow them into the alley; that he and Greer got out of the automobile and walked to the alley, but did not enter it; that he then heard a woman calling, “Jenny,” and he and Greer returned to the automobile. He denied that he was in the “shed” with Jenny that evening and, of course, denied having sexual relations with her.

Defendant’s first point is that the court erred in denying his offer to prove by cross-examination of Jenny Savisky that “ * * * the sister Pat made a complaint about being raped just some days or perhaps weeks before this event, and that the mother had a long discussion with the girls.” Defendant stated to the court that his reason for this offer of proof was “ * * * that the question of consent is an issue, and it would show a motive for this witness to claim rape when she was caught by her mother.” From the reason stated for the offer we infer that defendant meant to imply that this evidence would show that Jenny had consented to his act of sexual intercourse with her. However, his testimony was that he did not have intercourse with her; not that he did have, with her consent. We understand from his argument of this point that he now contends that by denying this offer of proof the court excluded evidence that would show an improper motive of prosecutrix in making the charge of rape, a motive that would adversely affect her credibility. That is, as we understand his point, he contends the offered evidence would have shown, or from it the jury properly could have drawn the inference, that as a result of the mother’s “ * * * long discussion with the girls,” this twenty-two year old prosecutrix was in such fear of her mother’s reprisals, or in such state of mind, she concocted or fabricated the charge of rape.

An accused “ * * * may, introduce any competent evidence, direct or circumstantial, to show that the charge against him was concocted by the prosecutrix * * and “Facts or circumstances which tend to show the motive * * * of the prosecutrix in making the charge, or which tend to affect her credibility, are admissible; but * * * Immaterial or irrelevant evidence is inadmissible to prove motive * * 75 C.J.S. Rape § 47, pp. 520-521.

We note that defendant’s offer was that at some time after a complaint by Patricia that she had been raped, the mother had a discussion with the girls. Certainly, a complaint by Patricia that she had been raped on a prior unknown date would not be relevant to the issues. Counsel’s statement that as a result of that complaint “the mother had a long discussion with the girls,” without informing the court what facts he proposed to show by the witness (other than the fact that a “discussion” was had) from which the jury reasonably might infer improper motive affecting her credibility, would not, of course, permit the trial court to determine whether those undisclosed facts would be relevant to the issues. Consequently, the denial of this offer of proof cannot be reviewed. State v. Kozlickie, 241 Mo. 301, 145 S.W. 97, 98 [2], The bare 'fact that the mother and daughters had a discussion of the youngest daughter’s complaint of rape would not be relevant to any issue in this case.

Defendant’s next numbered point is that the court erred in sustaining an objection of the state to certain cross-examination of Patricia Lanham. We quote that part of the examination of this witness leading up to and including the question to which an objection was sustained.

“Q. Tell the Court and jury, will you, Pat, what Lester Greer and Ann did on the corner of University and Jefferson at that time?
“A. Kissing.
"Q. Embracing? Embracing?
“A. I don’t remember.
“Q. Were they kissing on the cheeks or on the head or on the neck or on the lips ?
“MR. FREDERICKS: Object to this; this is immaterial.
“THE COURT: I think it is immaterial and I sustain the objection.”

The court sustained the objection, stating that what prosecutrix’ sister and defendant’s friend did before the alleged rape in the presence of prosecutrix who could not see them was not a part of the res gestae and was immaterial.

As a part of this point defendant also contends that the court erred in sustaining the state’s objection to this question asked the witness Ann Savisky: “Did he [Lester Greer] hug and kiss you ?” Defendant offered to prove by Ann Savisky “that she maintains that Lester Greer hugged and kissed her, * * * that they * * * were affectionate towards each other [in Downey’s automobile parked on the street] all the time her sister was down the alley with * * * Ronald Brower.” Defendant contends this occurrence was a part of the res gestae and affected the credibility of the witness. The court sustained the objection and denied the offer of proof for the same reasons given for excluding essentially the same evidence sought from Patricia Lanham.

Evidence of this occurrence is not material to any issue in the case and did not go to the credibility of the witness, Ann; moreover, the information sought by the two questions to which objections were sustained was supplied in other portions of the testimony of both Patricia and Ann, and any possible error was thereby cured. State v. Wells, Mo., 305 S.W.2d 457, 458 [5] ; State v. Hadley, Mo., 249 S.W.2d 857, 861 [3],

Defendant’s last point is that the court erred in refusing to permit him to prove that Ann Savisky and Lester Greer, while in Downey’s automobile parked on the street, were struggling or scuffling over the possession of a piece of wire. His reason for this offer of proof was: “This all goes to her credibility.” He seems to say in his brief that his purpose was to impeach the witness by use of a prior inconsistent statement; however, there is no indication of that purpose in his offer of proof. The occurrence referred to is a purely collateral

matter wholly unrelated to any issue in the case. The limitation of cross-examination in this instance was within the discretion of the trial judge. State v. Rose, Mo., 249 S.W.2d 324, 329 [3, 4]; State v. Daniels, Mo., 347 S.W.2d 874, 877 [4]. No abuse of discretion appears, and the point is overruled.

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

The judgment is affirmed.

All concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent (Plaintiff), v. Robert Eugene McGLATHERY, Appellant (Defendant).
    No. 52173.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Robert G. Duncan, Lewis E. Pierce, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Frederick E. Steck, Sp. Asst. Atty. Gen., Sikeston, for respondent.
   WELBORN, Commissioner.

This is an appeal from a judgment imposing a ten-year sentence for burglary in the second degree. The judgment was entered upon a jury’s verdict of the guilt of the appellant and the trial judge assessed the punishment in accordance with the Habitual Criminal Act, § 556.280, RSMo 1959, V.A. M.S.

The building involved in the burglary housed the North Gate Super Market in the town of Odessa. The building was located in the north part of town, near Old Highway 40. At approximately 11:00 P.M., on June 16, 1965, Wyman Murphy, residing with his parents in a trailer located in a trailer park approximately two blocks west of the North Gate Super Market, noticed a car stop across from his trailer and under a street light. Murphy called to his mother in the trailer and she too saw the auto, described as a light-colored 1959 or 1960 Dodge. Mrs. Murphy saw a man get out on the right-hand side of the auto and walk northeast toward Old Highway 40 and in the direction of the market. Both Mrs. Murphy and Wyman saw a man emerge from the driver’s side of the vehicle, go> around to the front of the car, raise the hood, re-enter the car and then leave it, walking in the same direction as the first man.

The second man was described as taller than the first and wearing dark or black clothing. Wyman described his attire as follows: “It was black clothing; black shirt and black pair of pants, and I noticed one thing, where it must have been a short shirt, because when he bent over the hood of the car, you could see, approximately, 6 or 8 inches of white in between the shirt and his pants; it was a short shirt.”

Mrs. Murphy called her landlord about the automobile and then the town night watchman, Mr. Frazier Miller. Wyman went out and examined the auto, writing down its license number. He also examined it with Mr. Miller, when the latter appeared.

Miller called his night watchman relief, “Pete” Warren, and the two of them examined the vehicle. Miller remained in its vicinity while Warren went on his regular rounds until about 2:00 A.M., when Miller went home. In the meantime, Warren had also taken the license number of the vehicle and checked it with the State Highway Patrol, who identified the appellant as the owner of the vehicle. Warren continued to check the car at fifteen or twenty-minute intervals. As he was driving toward the highway, at about 2:30, he heard a burglar alarm, which he recognized as coming from the market.

Warren drove toward where he had seen the Dodge parked. It was not where he had seen it previously, but about a half block away from his car he did see the Dodge, which “took out * * * at a high rate of speed,” with its lights off.

Warren pursued the vehicle for about one half-mile and then called the Highway Patrol, giving them a description of the car and its license number. At 2:40, Trooper Dallam received a radio call, describing the vehicle and its departure from Odessa. The Trooper went to the junction of Truman Road and Route 78 in Jackson County. At 2:57, the auto appeared and the Trooper stopped it. The driver identified himself as the appellant and produced his driver’s license. The Trooper stated that appellant had on “a short Tee Shirt type, which was tight fitting and short sleeved and short waist; the shirt just did come to his waist.” He described the shirt as black or dark blue and a lighter color in front. The Trooper also described that appellant was wearing what appeared to be good shoes, but they were muddy. Appellant told the Trooper that he had not been in Odessa.

After calling the Patrol, Warren went to the market and found that the plywood outer wall covering of a shed-like structure, referred to as a “bottle house,” adjacent to the building proper had been loosened and partially removed and that within the shed a hole had been knocked through a concrete block wall into the store.

Warren notified the owner of the store and the Lafayette County sheriff, who came to the scene, the latter accompanied by Sergeant Closson of the Highway Patrol. Warren, the sheriff and Sergeant Closson observed numerous footprints in the rear of the market. They covered the footprints with boards to preserve them until daylight. The sheriff then went to Jackson County and placed appellant and the two other persons in the car when it was stopped by Trooper Dallam under arrest for investigation of the market burglary.

Appellant was taken to the Lafayette County jail. The sheriff removed his shoes and he and Sergeant Closson took them to the market at Odessa and compared the shoes with the footprints which they had found there. The shoes were placed in the prints and were found “identical in comparison.” In addition, the brand name “Nunn-Bush” appeared on the heels of the shoes and such markings were found in the prints at the scene, along with the design which appeared on the heels of the shoes. The footprints were described as going toward and coming from the rear of the market in the direction of where the Dodge had been parked.

Nothing was taken from the store. No burglar tools were found in appellant’s auto when it was stopped. Neither of the Mur-phys could identify appellant as one of the two persons whom they saw leave the Dodge auto.

Appellant’s first contention on this appeal is that the evidence, above summarized, is insufficient to support a verdict of his guilt of the offense charged.

The evidence was, of course, wholly circumstantial. General guides for the testing of the sufficiency of circumstantial evidence have frequently been repeated. Considering the evidence and permissible inferences therefrom in the light most favorable to the state (State v. Watson, Mo.Sup., 350 S.W.2d 763, 766[1]), “the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence.” State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282 [2], “* * * [C] ircumstantial evidence merely showing that the defendant had an opportunity to commit the theft charged and creating a suspicion of guilt without more is insufficient to make a sub-missible case.” State v. Walker, Mo.Sup., 365 S.W.2d 597, 601 [6]. See also: State v. Tracy, 284 Mo. 619, 225 S.W. 1009, 1010-1011 [1]; State v. Freyer, 330 Mo. 62, 48 S.W.2d 894, 899[8]; State v. Brown, Mo.Sup., 291 S.W.2d 615, 619-620 [8, 9]; State v. Watson, Mo.Sup., 350 S.W.2d 763, 768; State v. Boothe, Mo.Sup., 364 S.W.2d 569, 571[1-3].

Application of the rules is, of course, a case to case matter, with prior cases, based on necessarily different facts, of minor authoritative impact. Therefore, while we have considered the cases cited by appellant in support of his contention here, none presents a factual situation identical to that of this case, which must rest basically upon its particular facts.

Here, the evidence clearly established the offense of burglary in the second degree and the question is the sufficiency of the evidence to connect defendant with the offense. We must disagree with defendant’s contention that the evidence was insufficient to establish his presence in Odessa at the time of the offense. The similarity between the description of the attire of the person whom Wyman Murphy saw leave the defendant’s auto near the trailer park and of the attire of defendant when the vehicle was stopped by the patrolman would permit the wholly reasonable conclusion that defendant was the person whom Murphy saw leaving the car. The fact that defendant was driving the vehicle, when, some twenty minutes after it had departed from Odessa under suspicious circumstances after having been parked for more than two hours, it was stopped by the highway patrolman would justify the inference that defendant departed in the vehicle in which he had arrived.

Defendant makes much of the fact that the Murphys saw only two persons leave the vehicle and that “Pete” Warren also saw only two persons in the auto during his brief pursuit after the burglar alarm sounded, but that there were three occupants when Trooper Dallam stopped the car. However, defendant’s argument ignores the damaging testimony of Murphy regarding the appearance of the person whom he saw leaving the auto, which fitted the description of defendant as he appeared when stopped by the patrolman.

This evidence, of course, is not sufficient to connect defendant with the nexus of the offense. State v. Rogers, Mo.Sup., 380 S.W.2d 398, 400. At best, it would, as defendant suggests, only show opportunity to commit the offense, not in itself sufficient to support a conviction.

There is the additional circumstance of the hasty departure of defendant’s automobile, practically simultaneously with the sounding of the burglar alarm which undoubtedly signalled the entrance of intruders into the super market. However, that fact would not be adequate to warrant a finding of guilt absent some further connection between the occupants of the auto and the criminal act. Certainly, the circumstances of the departure of the defendant’s automobile are far less incriminating than the drastic action of the suspected bank burglars in State v. Tracy, 284 Mo. 619, 225 S.W. 1009, where the circumstances of a suspicious departure were found insufficient to warrant a conviction.

Of course, if there is further evidence connecting defendant with the nexus of the offense, the circumstances above referred to do assume some added significance. If such further evidence is to be found, it must be in the footprint evidence.

The probative worth for identification of the accused of evidence of the correspondence between footprints at the scene of the crime and shoes worn by the accused is generally recognized. State v. Johnson, 316 Mo. 104, 289 S.W. 789. See Annotations: “Footprints as evidence,” 31 A.L.R. 204, 35 A.L.R.2d 856. Here the testimony of the sheriff and the patrol sergeant regarding the correspondence between the footprints outside the super market and the shoes worn by defendant at the time of his arrest would support the conclusion that the footprints were those of defendant. The shoes and footprints corresponded not only as to size, but as to markings on the heels of defendant’s shoes. The further fact that defendant’s shoes were muddy at the time of his arrest also supports the conclusion that the footprints were made by defendant, there being testimony that the area in the rear of the market was muddy.

The evidence here differs greatly from the footprint evidence held without probative value in Heidelbaugh v. State, 79 Neb. 499, 113 N.W. 145. In that case the footprint evidence, a witness’s statement of opinion that footprints were those of the accused, was based upon the opinion of the witness that the footprints were made by a size 7 or 8 shoe and the further opinion of the witness that the accused’s shoes were about that size. Actual comparison of the defendant’s shoe with the footprint produced a wholly uncertain conclusion. Finally, a large patch on the defendant’s shoe was nowhere evident in the tracks found. Likewise, in State v. Freyer, 330 Mo. 62, 48 S.W.2d 894, the footprint evidence consisted of the testimony of a witness “that he observed the tracks and later looked at the appellant’s feet while the two were standing talking to each other, and that to him the feet and tracks seemed similar in size, and the appellant’s shoes appeared to have rubber heels.” The court’s conclusion, “This was valueless as evidence,” is certainly not surprising. 48 S.W .2d 899[6].

Here, however, the evidence was based upon actual comparison of the footprints with defendant’s shoes. The size and markings corresponded and the jury could conclude that defendant’s shoes, while worn by defendant, made the footprints.

Defendant's ? suggestions that better evidence of the comparison of the shoes and prints might have been preserved does not deprive the evidence presented of probative value. Nor does the admitted fact that Nunn-Bush shoes are widely sold. See State v. Johnson, supra, where the heel marking “Goodyear Wingfoot” was common on shoes in the community. That fact did not deprive the marking in the identifying print of probative value. 289 S.W. 790-791.

Appellant also urges that the state failed to place the footprints at the scene of the breakin. Although the evidence does not locate the footprints at the exact point where the plywood outer wall was broken, it does locate them at the rear of the building, where the “bottle house” was located. That, together with the other facts and circumstances in evidence, was sufficient to relate the footprints to the breakin.

In our opinion, the evidence did present a submissible case.

Appellant’s second assignment of error is predicated upon the court’s failure to give the defendant’s proffered instruction upon the burden of proof. The court did give a correct instruction on the burden of proof. Therefore, the denial of the instruction offered by appellant was not error. State v. Biddlecome, Mo.App., 250 S.W. 917, 918[2]; State v. Crow, 346 Mo. 306, 141 S.W.2d 66, 72 [8-10]; State v. Chick, 282 Mo. 51, 221 S.W. 10, 16[13]; State v. Chamineak, Mo.Sup., 343 S.W.2d 153, 164 [23].

We find the matters of record specified in Criminal Rule 28.02, V.A.M.R., free from error.

The judgment is affirmed.

HOUSER and HIGGINS, CG, concur.

PER CURIAM:

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

All of the Judges concur.


author: LAURANCE M. HYDE, Special Commissioner.

text:
    Clarence H. TWIEHAUS and Viola Twiehaus, Respondents, v. WRIGHT CITY, Missouri, Appellant.
    No. 52209.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      McQuie & Deiter, Montgomery City, for appellant.
    Ziercher, Tzinberg, Human & Michen-felder, Clayton, for respondents.
   LAURANCE M. HYDE, Special Commissioner.

Action, in three counts, the first two for $8308.17 claimed to be the balance due on a contract for construction of water and sewer lines between plaintiffs and the city; with a third count-seeking recovery on the theory of inverse condemnation for the value of the lines. The City’s answer alleged the contract was invalid being in violation of Sec. 26(a), Art. VI of the Constitution and Secs. 88.670 and 432.070. (Statutory references are to RSMo and V. A.M.S.) The answer also denied any condemnation or appropriation of the water and sewer lines constructed by plaintiffs and contained a counterclaim seeking to recover $4876.35 paid by the City to plaintiffs on the contract.

The court entered judgment for plaintiffs for $8308.17, making the following finding: “Court finds the contract entered into between plaintiffs and defendant on October 13, 1955 to be valid and binding on the parties; and the Court further finds that defendant has assumed ownership of said sewer and water lines and appropriated them to its use.” The City has appealed. We have jurisdiction because a construction of the Constitution is involved, since the trial court decided the contract involved was not prohibited by the Constitution but was valid and binding on the parties and this affects both plaintiffs’ claim and defendant’s counterclaim. Sec. 3, Art. V, Const.

Plaintiffs in their brief do not contest the City’s claim that their contract violated Sec. 26(a), Art. VI of the Constitution by requiring payments to be made, in years following the year it was made, out of income and revenue of future years which it obviously. did. Instead plaintiffs claim that under the doctrine of equitable estoppel the City could not assert its invalidity because of its representations, acts and conduct and is bound by it. This contract, made October 13, 1955, to be effective from the date of annexation of the addition, provided that plaintiffs would build such lines “as will be needed for the proper development of said addition.” It further provided that the City would reimburse plaintiffs for the construction cost after annexation of the addition by annual payments from “all revenue taxes on real estate and personal property, sewer sinking fund tax, park tax and all license fees, collected from the residents of said Twiehaus addition.” Plaintiffs rely on State on inf. McKittrick ex rel. City of California v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 615, 106 A.L.R. 1169, stating: “[T]he doctrine of estoppel * * * applies, not only to natural persons and private corporations, but to municipalities as well, and that even though such municipalities are acting in a ‘governmental capacity’.” However, none of the cases cited in support of this statement involved estoppel to assert a constitutional prohibition to a contract provision. Most of the cases cited involved, as did the Missouri Utilities case, the right of public utilities to continue operations or to operate in a way long permitted. Nevertheless in the Missouri Utilities case (96 S.W.2d 1. c. 618) we held the city was not estopped from refusing a franchise and ousting the company from use of its streets by inaction prior to building its own plant.

More in point are cases holding invalid contracts prohibited by statutory or constitutional provisions, such as Fulton v. City of Lockwood, Mo.Sup., 269 S.W.2d 1 (1954); Grand River Township of DeKalb County v. Cooke Sales and Service, Inc., Mo.Sup., 267 S.W.2d 322 (1954); Bride v. City of Slater, Mo.Sup., 263 S.W.2d 22 (1953); Donovan v. Kansas City, Mo.Sup.Banc, 352 Mo. 430, 175 S.W.2d 874, 179 S.W.2d 108 (1943); Likes v. City of Rolla, 184 Mo.App. 296, 167 S.W. 645 (1914); Grauf v. City of Salem, Mo.App., 283 S.W.2d 14. Equitable estoppel was urged in the Donovan case, in which the city had received and used articles furnished without a valid contract, making about as strong a case for equitable estoppel as could be imagined. The opinion of the Court en Banc (175 S.W.2d 1. c. 881) held: “Equitable estoppel is impotent to purge transactions of the fatal infirmity of being in violation of law.” In that case we also said contracts not conforming to statutory requirements “are ultra vires the municipality in the primary sense of that term.” Certainly that is true of this contract violating an express constitutional provision. This contract was void ab initio and we hold there can be no equitable estoppel in this case.

Plaintiffs’ claim of inverse condemnation is based on their contention that the City assumed ownership of the water and sewer lines and appropriated them to its use. The City says these lines were private lines constructed by plaintiffs to only the properties within the addition they were establishing; that plaintiffs voluntarily sought and received permission to connect these lines to the City’s public systems, solely for the convenience and benefit of the property within their addition; and that the City has never made any use of the lines other than for service to the residents of the addition and has never done any act to appropriate them for public purposes.

Plaintiffs bought a tract of land, platted and developed it for the purpose of selling lots for profit. They requested and on April 14, 1955, received permission to connect the water lines they were constructing to the water system of the City. Construction of the water lines commenced in 1955 and completed in 1957. They received permission to connect their proposed sewer lines on June 9, 1955, after submission of plans to the State Board of Health and some construction was done on them in 1955; also completed in 1957. At a special election, December 6, 1955, plaintiffs’ addition was annexed to the City with other land. Plans for the water and sewer lines, were submitted to the City but no request for approval was shown. There was no-formal action accepting or assuming control of the water and sewer lines by the City but the City several times has repaired water line breaks and thawed out frozen water lines. There has been no maintenance done by anyone else. Permission for connecting the water lines to the City’s system was sought and given six months before the illegal contract was made. This seems to indicate an original intent to dedicate to public use. Plaintiff Clarence Twie-haus expressed the view that he sold both systems to the City by the October 1955 contract.

The basis of inverse condemnation is that under our constitutional provision (now Sec. 26, Art. I, 1945 Const.) “private property cannot be disturbed nor can the proprietary rights of the owner therein be divested until damages are ascertained and paid to the owner or paid into court for the owner.” Beetschen v. Shell Pipe Line Corp., Mo.App., 248 S.W.2d 66, 70. If property is taken or damaged without agreement or legal proceedings, one of several remedies of the owner is that “he may waive the tort and sue for the compensatory damages to which he would have been entitled if condemnation proceedings had been instituted prior to the entry”, 248 S.W.2d 1. c. 70; see also Page v. Metropolitan St. Louis Sewer District, Mo.Sup., 377 S.W.2d 348, 354; 27 Am.Jur.2d 408, Sec. 478; 30 C.J.S. Eminent Domain, § 399, p. 477; Nichols on Eminent Domain, Secs. 25.41 [2], 28.3 [1]. Considering first the water lines it appears that after receiving permission to connect with the City’s system, they were completed pursuant to an invalid contract. The City made these payments to plaintiffs during seven succeeding years. This was an ultra vires agreement the City had no power to make and plaintiffs can claim no rights under it. There was only a single connection with the City’s water system made at the northeast corner of the addition and the City furnished water through it to the residents of the addition. As noted, the City has done some sporadic maintenance work on the water lines in the addition but we cannot say such infrequent gratuitous acts amounted to an appropriation. No positive act of appropriation of these lines is shown. Instead the City only stopped paying to plaintiffs its taxes collected in the addition, required by the illegal contract. The water lines were there and the City served the residents of the addition through them. This was no more an appropriation than serving residents through the lines they would construct into their houses from the line in the street. Homes and buildings were built with expectation of using such facilities. Therefore it appears that these water lines should be considered as much dedicated to public use by plaintiffs as were the streets they constructed. We must hold there was no taking of the water lines by the City for which they can be held liable to plaintiffs for their value.

The situation as to the sewers is different. State Board of Health approval was required before the City permitted connection. During the construction of the sewers, the City had a man on the site every day to inspect the installation and install the saddles which connected the main sewer lines with house service lines. The State Board of Health required a light hole in the sewer system and this was installed by the City. Also the City filled the streets where backfill had settled, adding more dirt and gravel. All of this is evidence of intent on the part of the City to be the owner of the sewer lines. Furthermore, in 1962, a City bond issue was authorized to change and add to the sewer system of the City. As originally built, the sewer system of plaintiffs’ addition drained east through property known as the Archdiocesan property, over which an easement had been obtained, with an outlet under Highway 40 which was south of the addition. In the reconstruction of the City’s sewer system this outlet through the Archdiocesan property was dug up and destroyed by the City and the outlet under Highway 40 was abandoned. A new line was built by the City through the Archdiocesan property and on to the west along the south side of the addition, with a new connection for the system of the addition installed by the City. This not only reversed the flow of the addition’s outlet from the east to the west, but the new line also became the outlet for other areas of the City, which according to the plans would be expanded in the future. This destruction and rebuilding of part of the system built by plaintiffs strongly indicates assumption of proprietorship by the City. Furthermore, appropriating the outlet of the sewer system of the addition for use of other areas of the City would amount to imposing an additional burden on the whole system of the addition which is an important factor on the issue of appropriation. See 26 Am.Jur.2d 823-827, Eminent Domain, Secs. 157-158; see also Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647, 649.

This is similar to the situation in Gunn v. City of Versailles, Mo.App., 330 S.W.2d 257, 261, on which plaintiffs rely. There a subdivision was dedicated by the plaintiffs as a part of that City with the approval of the City. Plaintiffs built a sewer for the subdivision along a city street and connected it to an existing city sewer. Thereafter the city built an extension sewer and “hooked on” to plaintiffs’ sewer without their permission claiming plaintiffs had dedicated the sewer to public use. The court said: “Defendant City in this case is not merely doing a consequential damage to plaintiffs’ property but has rather appropriated and taken it over for use by and integration into the city’s sewer system. * * * Such action, without payment of just compensation to plaintiffs therefor, would amount to a taking of private property for public use without just compensation, which is prohibited by Section 26, Art. I, Constitution of Missouri 1945, V.A.M.S., and by the Fifth Amendment to the Constitution of the United States. Furthermore, such taking without compensation would be in contravention of due process of law as guaranteed by the Fifth Amendment to the Federal Constitution and by Section 10, Art. I of our State Constitution.”

In the Gunn case the court reversed the judgment in favor of the City and remanded the cause with directions “to enter its mandatory injunction in favor of plaintiffs and against defendant, directing that defendant, within thirty days thereafter, either (1) Institute proceedings under the Missouri statutes to ‘take and appropriate’ plaintiffs’ sewer line or (2) Remove the connection heretofore made by it on the south end of plaintiffs’ sewer line.” (330 S.W.2d 1. c. 263.) In this case, the City can be given no such option because it has destroyed the outlet to plaintiffs’ sewer system and constructed a new outlet line not only for plaintiffs’ system but for other territory with provision for future expansion of its use. Our view is that this considered with the other acts of the City during the construction of the sewer system amounted to an appropriation of the sewer system of plaintiffs’ addition for which they are entitled to compensation.

The counterclaim of the City seeks recovery of the amount paid plaintiffs on the illegal contract. Since we hold the City is liable to plaintiffs for the value of the sewers constructed by them, and taken by the City, as sought in the third count of their petition, the City is entitled to credit on any judgment against it for the amount it has paid plaintiffs. The evidence indicates that the value of this sewer system may be greater than the amount so paid. However, if this value is found to be less than the amount paid to plaintiffs, the City should have judgment for the difference.

Judgment reversed and cause remanded for further proceedings in accordance with the views herein expressed.

PER CURIAM:

The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.