author: HOUSER, Commissioner.

text:
    Harry G. KINEALY and Lucile A. Kinealy, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Respondent.
    No. 49656.
    Supreme Court of Missouri Division No. 1.
    June 4, 1963.

      Marvin Klamen, Clayton, for plaintiffs-appellants, Klamen & Grand, Clayton, of counsel.
    John Mohler, Donald K. King, Philip L. Wettengel, St. Louis, for respondent, Southwestern Bell Telephone Co.
   HOUSER, Commissioner.

Plaintiffs Harry and Lucile Kinealy, husband and wife, sued Southwestern Bell Telephone Company for loss of and damages to their land, claimed to have been caused by the cutting of ditches for underground telephone cables. Plaintiffs asserted ownership of two parcels of contiguous lands, Lots A and B, located on the south side of State Highway 21, where the highway crosses the Meramec River in St. Louis County. Lot A, the western boundary of which is the river and the northern boundary of which is the bridge right of way, is a pie-shaped wedge 1200 feet long and approximately 60 feet wide at the north end and 30 feet wide at the south end. Adjoining Lot A on the east is Lot B, a 14-acre tract. Butler Hill Road runs perpendicular to the highway (roughly parallel with the river) as an easement along the common boundaries of Lots A and B. This road, an asphalt pavement 22 feet wide, was built on a 40-foot right of way.

The first four counts of the petition charged that in February, 1956 the company cut a ditch and laid a cable on the west or river side of the road, allegedly on plaintiffs’ Lot A, as a result of which a portion of Lot A slipped, slid, fell into and was washed away by the river. These counts were based upon loss of lateral support, nuisance, trespass and negligence. Plaintiffs prayed for $25,000 damages in Counts I and II; $75,000 actual and $200,-000 punitive damages in Count III, and $25,000 actual and $250,000 punitive damages in Count IV.

Counts V, VI, VII and VIII, based upon loss of lateral support, nuisance, trespass and negligence, respectively, related to the action of the company in July, 1957 when it cut a second ditch and laid a cable on the east side of the road, allegedly on plaintiff’s Lot B, as a result of which a portion of .Lot B was alleged to have slipped, etc. into and was washed away by the river. Plaintiffs prayed for $20,000 damages in Counts V and VI; $60,000 actual and $100,000 punitive damages in Count VII, and $20,000 actual and $100,000 punitive damages in Count VIII.

Counts IX and X related to the erection of a telephone pole on plaintiffs’ land. In Count IX plaintiffs prayed for $10,000 actual damages, and in Count X the prayer was for $30,000 actual and $45,000 punitive damages.

The total amount prayed for in all counts was $1,005,000. Counts I to VIII, inclusive, terminated in a directed verdict for defendant. Plaintiffs voluntarily dismissed Count IX. The case went to the jury on Count X. A verdict for plaintiffs for $1 was returned, and judgment was .rendered accordingly. Plaintiffs appealed from the orders of the circuit court overruling plaintiffs’ motions to set aside the judgment and for a new trial. Appellants’ intent being manifest, we treat this as an appeal from the judgment sustaining defendant’s motion to direct a verdict on Counts I through VIII, and from the judgment on Count X. In the oral argument plaintiffs’ counsel conceded that the issues of lateral support, nuisance and negligence have been abandoned. This leaves for review the question of the propriety of the action of the court in directing a verdict for the company on the issue of trespass; a question of the admission of evidence; the propriety of an instruction, and the failure to grant a new trial on the issue of damages only on Count X, for inadequacy of the verdict.

The first question on the issue of trespass is that of causation. Did plaintiffs make a submissible cause on the question whether the ditching operations of the company constituted the proximate cause of the land slides? The question of proximate cause is usually one for the jury, and may be shown by circumstantial evidence. Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 161. Was there sufficient circumstantial evidence to submit this case to the jury, considering the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to plaintiff?

Lot A was “made land.” It had been built up or filled in with brick prior to 1951. A record high water level was recorded in 1950 in the areas of Lots A and B. As the water receded on that occasion there was no discernible or extensive damage to Lot A. After plaintiffs assumed control of Lots A and B in 1955 they improved Lot A by filling in with more brick, rock and dirt, to build up the river bank and level the lot for use as a private park. For public use of Lot A they charged admissions. In February, 1956 the company, using a crawler-type trencher, trucks and equipment, ditched along the river side of Butler Hill Road and buried a telephone cable. The ditch, 18 inches wide and approximately 3 feet deep, was cut between 2 and 3 feet west of west edge of the asphalt pavement of Butler Hill Road. When the company employees left the job they left a mound of loose, un-tamped dirt 6 or 8 inches high on top of the ditch. No testimony was introduced, on the question whether the company packed or tamped the dirt as they replaced it in the ditch, under the loose and untamped mound left on top. There was no high water until thirteen months .later, in March, 1957, when a flood occurred on the Meramec River, inundating this ditch. A couple of days later, when the water was receding, portions of Lot A fell, slid into and were washed away by the river. The loss of the land occurred within one hour’s time. A crack 2 or 3 inches wide appeared at the side of Butler Hill Road, running a distance alongside the road, on the river side, parallel to and immediately adjacent to the road and the telephone cable. It looked like the earth had opened up. Perpendicular cracks then began to appear at the north end of Lot A, commencing at the water’s edge and ending at the crack alongside the road. 'Then these perpendicular cracks began to appear, one by one, going toward the south end of Lot A. A piece of land, from water’s edge to the crack near the road, would drop or settle a foot or so, remain there for an instant, then break off in irregular pieces, slide, and wash away into the river, carrying with it trees, earth and fill. A sheer hank 15 to 20 feet high from normal water level to the level of the road on Lots A and B was left exposed. When the land washed away the telephone cable was éxposed at places along the line where the crack first appeared near the road, leaving the cable in mid-air a foot from the bank. The 1957 washout did not extend to the road. On July 2, 1957 a record high flood occurred, but there was no observable damage in the nature of a fallout or washout in this immediate area as a result of this flood. Shortly after July, 1957, the company cut another ditch and installed another cable, this time on the east side of the road, again leaving a six-inch mound of earth, apparently untamped, on top of the ditch. Eight months later, in March, 1958, another flood occurred, and as the water receded more land washed away, breaking into and washing away parts of the Butler Hill Road, again exposing the telephone cable about 4 feet below the road level.

Plaintiffs’ expert geologist defined land slides; discussed the tendency of a mass of soil to move in a lateral direction away from the slope; sheer strength; the effect of weather conditions on sheer strength; the “resisting moment”; the “plane of failure” ; the effect on sliding of shortening the plane of failure; the factor of safety in balance; the effect of .removal of material on failure; the tendency of impervious soil to concentrate itself approximately one foot below the surface along a river bank. He testified that a ditch 2 or more feet deep would breach this impervious layer and allow water to enter the plane of failure; that if the layer were impervious water would be prevented from seeping down and along a plane of failure; that fill in the form of brick tends to stabilize the slope and resist the tendency to slide; that tree roots also would tend to deter failure, and that a mechanical ditcher would sever the roots, thus encouraging motion along a plane of failure. He knew nothing, however, about the trees or roots present in this case. He testified that a ditch 2 or 3 feet deep in a depth of 17 to 20 feet would be a relatively large percentage of the plane of failure; that if the ditch were not tamped, water would be introduced into the plane of failure; that this water would lubricate the mass, reduce sheer strength, and increase the tendency of a bank to slide; but that if the ditch were properly tamped it would tend to shed water. The expert said it was necessary to consider the strength or nature of the soil and the stresses involved in determining the cause of land slides. This is done by actual inspection and taking of samples. Without a test of this soil it cannot be said how much resistance was present prior to the slide. A test of the material in the adjoining area which did not slide will not suffice, since soil along a river bank is highly variable. In this case, not having been able to take soil samples of the earth because it was washed away, the expert was unable to scientifically reconstruct the ground as it was before the landfall. When a hypothetical question was asked he could not, with reasonable professional certainty, state that the ditching had any effect whatsoever in causing the landfall, but stated that it was possible; that there was a strong possibility that the ditching was a contributing factor; but that he could not say definitely that it was a contributing cause. Asked whether it was a mere possibility or a probability that the ditching contributed to the failure he stated “it’s extremely likely this may have had an effect which would cause failure.” Contrarily he testified that cases are extremely rare in which such a small ditch would be a contributing factor in a slide or landfall. He stated there are several causes for landslides : laterally moving ground water flowing to the river through the bank; excessive fill on top of a bank; hydraulically placed fill; and an undercutting of the toe of the slope of a bank. He stated further that the removal of soil at the toe of a bank creates a greater possibility of bank failure than the removal of the same amount of soil ditched from the top of a bank.

The burden was on plaintiffs to prove by substantial evidence that the ditch-ings caused or contributed to cause the landfalls. Plaintiffs failed to do so. The jurors, laymen inexperienced in technical matters of this kind, were not given sufficient facts or circumstantial evidence to support an inference, without the assistance of expert opinion, that the cutting of the ditchings caused, probably caused or contributed to cause the landfalls. See Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924 [16, 17]. Plaintiffs’ expert geologist testified in generalities as to the scientific factors which enter into a situation such as this, but recognizing the insufficiency of the data at hand he refused to give a professional opinion that the ditchings caused, or probably caused, the landfalls. Accordingly, the jury could not have brought in a verdict for plaintiff without engaging in guesswork. There was no evidence as to the nature, strength and character of the soil which gave way; no proof that the ditching operations actually severed tree roots which were contributing to the stability of the mass of ground, nor any substantial evidence that there were trees growing alongside the road adjacent to the ditch; no showing that the ditches cut an impervious layer of subsoil, or whether the company tamped and packed the dirt as it was replaced in the ditch after laying the cable, thus tending to shed water, or whether the dirt was thrown back into the ditch loosely without tamping, which would permit water to enter the plane of failure and lubricate the mass; or whether water in fact entered through the ditch and under the mass which slid into the river. The expert could not and would not venture an opinion with professional certainty that the ditching had any effect whatsoever in causing the landslides. Looking only at his testimony in the light most favorable to plaintiffs and ignoring for the moment the inconsistency in his statements, the best that can be said is that the expert testified that while it was possible or likely that the ditching wa9 a factor contributing to the landfalls, he could not say definitely. There was no reasonable certainty in his mind. An assurance that the ditchings possibly were a factor is not of itself sufficient to make a submissible case. Kimmie v. Terminal R. R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, 565. The expert’s one statement that it was “extremely likely” that the ditchings may have had a causal effect on the failure, taken by itself, brings his testimony to the borderline of probability, but we construe his testimony, considered as a whole, as an opinion that the ditchings constituted nothing more than a possible cause —an assurance that such a result was scientifically possible, if certain assumptions existed as facts. The mere scientific possibility, unsupported by proof of existing facts, was not substantial evidence that the slides resulted from the ditching. See 32 C.J.S. Evidence § 569, p. .400.

Other possible causes for the landslides for which the company would not be liable, several of which appeared to have been as likely as the one assigned, were not excluded as causative factors. Where the evidence does not exclude all other causes and where no laymen could know or have any reasonable basis for an inference as to cause, opinions of experts that a certain occurrence or condition might or could produce a certain result is no more than an assurance that such a result is scientifically possible, and does not alone constitute substantial evidence that such occurrence or condition did cause it. Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312, 316, and cases cited. That the circumstantial evidence is consistent with the theory that the cutting of the ditches caused the landfalls is not sufficient. The circumstances in evidence must prove this as a reasonable probability, and the jury may not be permitted to reach this conclusion by “theorizing upon assumed factual premises outside of and beyond the scope of the evidence.” Brawley v. Esterly, Mo.Sup., 267 S.W.2d 655, 659, cited with approval in Lindsay v. Wille, Mo.Sup., 348 S.W.2d 1, 4, 5 [5]. In order to make a submissible case the expert would have to “go further and testify at least that, taking into consideration all the attending data, it is his professional opinion that the result in question most probably came from the cause assigned.” Freedom Oil Works v. Beaver County, 298 Pa. 174, 148 A. 67, 69, 68 A.L.R. 600.

The instant case differs from cases cited by plaintiffs, in each of which there was ample evidence from which the jury could infer that the defendant’s acts caused the damage. In Curtis v. Fruin-Colnon Contracting Co., supra, defendant dug a 4-foot ditch on plaintiff’s land 2 feet from plaintiff’s building at one point and 7 feet at another. The ditch had no outlet. It was left open to catch .rain all summer. The soil was sandy and porous. Considerable rain collected in the ditch and seeped from the ditch into the ground. Following heavy rains there was a loud popping and cracking. The foundation adjacent to the ditch cracked and the water from the ditch drained into the basement. The side of the building adjacent to the ditch then settled. No water entered the basements of two other buildings with the same back yard but farther away from the ditch. After the ditch was filled no water ever got into the basement of the damaged building. In Knoche v. Pratt, 194 Mo.App. 300, 187 S.W. 578, defendant excavated an 11-foot ditch on the lot line between his lot and plaintiff’s, 4 feet from the west wall of plaintiff’s building, and several feet below the level of the footings of plaintiff’s building. Defendant then went on plaintiff’s land and excavated another 2 feet, in order to be able to cement the outside of the foundation wall he proposed to build. This removed 2 of the 4 feet of earth between plaintiff’s foundation and the property line, as a result of which the rest of the dirt caved away from plaintiff’s foundation and the west wall of her building fell.

Looking at the evidence in the case here for review in the light most favorable to plaintiffs, it was not sufficiently substantial and certain to justify the submission of the case to the jury. A finding that the ditching caused the losses could not have been made without surmise, speculation and conjecture. There was no error in directing a verdict for the company as to Counts I through VIII, on the basis of failure to prove causation.

Appellants claim, however, that at least they were entitled to go to the jury on Count III, the trespass count, for “the mere technical trespass” by reason of the “ditching, destroying of the tree roots, killing the grass, erecting the ‘cable’ signs, by dumping the dirt and mounding it,” etc. The difficulty with this contention is that plaintiff did not prove, but merely assumes, that these events took place upon plaintiffs’ private property. The proof is that these ditching operations occurred 2 feet or so from a 22-foot blacktop on a 40-foot right of way. The answers to the interrogatories do not admit that a technical trespass was committed, deny entry upon plaintiffs’ property and state that the entry was upon the public right of way between the traveled portion of the highway and the right of way line, except for the surveying and engineering work done in August, 1955 in preparation of an engineering working plan (for which plaintiff made no complaint in the petition) and the trespass involved in placing one pole one foot over on plaintiff’s land (the subject of Count X).

Appellants strenuously urge error in directing a verdict upon Counts I through VIII “inasmuch as the evidence conclusively showed defendant to have entered upon plaintiffs’ land without right or authority.” This is based upon the alleged failure of the company to obtain the assent of the county court to the use of the right of way of the road in which to lay the cables, under § 229.100, and a special use permit from the county highway engineer and surveyor, under § 229.300, and the company’s alleged failure to comply with § 392.080, V.A.M.S.

We. consider it immaterial to the outcome of this lawsuit whether the company performed these ditching operations with or without the necessary permission and assent of the authorities. It makes no difference whether the company was an unlicensed trespasser or acted in full compliance with all regulatory laws, for the reason that plaintiffs failed to establish by substantial evidence that the company’s actions caused the losses and damages sustained by plaintiffs. The company’s liability does not depend upon whether it was licensed or unlicensed. It has no liability in either event, in view of plaintiffs’ failure to prove the necessary element of causation. Certainly there is no causal relation between the lack of a permit and the landfalls. If the company had obtained a permit and all necessary authorizations from the authorities, it would not thereby have prevented the landfalls. Southwestern Bell Tel. Co. v. Rawlings Mfg. Co., Mo.App., 359 S.W.2d 393, 399 [5].

If appellants are taking the position that the company’s application for a permit to cut these ditches would have been refused, or that the county highway engineer would have required the company to string its cable on poles, appellants still failed to make a case for the jury, because there was no evidence to support a reasonable conclusion that such an application would have been denied or so limited, or that the landfalls would not have occurred if the ditches had not been cut.

These rulings make it unnecessary to consider the error claimed to have been committed in admitting evidence tending to show that plaintiffs did not have title to Lot A.

Plaintiffs contend that Instruction No. 6 improperly states the requirements for the allowance of punitive damages. Plaintiffs cannot complain of the giving of Instruction No. 6 because it is an exact converse of plaintiffs’ Instruction No. 5. Tinsley v. Massman Const. Co., Mo.Sup., 270 S.W.2d 835, 841 [8]; Hollister v. A. S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606, 609 [10] ; Evans v. Atchison, T. & S. F. R. Co., 345 Mo. 147, 131 S.W.2d 604.

Finally, plaintiffs urge that the verdict for $1 is grossly and shockingly inadequate, “in view of all the facts and circumstances,” citing Brown v. Moore, Mo. Sup., 248 S.W.2d 553, a suit for personal injuries and damage to an automobile. Plaintiff Harry Kinealy testified that the location where the pole was placed was worth $5 a month in rental value, but admitted that he had not called the telephone company to complain about the location of the pole. His testimony that the pole was 10 feet over on his property was contradicted by engineering testimony that it was only one foot over the line. Evidently the jury considered that Kinealy was impeached; that the slight encroachment in that location constituted nothing more than a technical trespass; that punishment was not called for, and that $1 was adequate damages. Under all the evidence we are not convinced otherwise.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOLLINGSWORTH, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jerry SPRAGGINS, Appellant.
    No. 49201.
    Supreme Court of Missouri, Division No. 1.
    June 4, 1963.

      Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

By an information filed in the Circuit Court of the City of St. Louis, defendant was charged with the crime of robbery in the first degree, as defined in § 560.120 RSMo 1959, V.A.M.S., (to which revision all statutory references herein are made unless otherwise indicated). The information also alleged the prior conviction of defendant of the felony of escaping from imprisonment upon a criminal charge, before conviction, for which he had been sentenced to and served a term of six months imprisonment in the St. Louis City Workhouse. Trial to a jury, at which defendant was represented by court-appointed counsel, resulted in a verdict finding defendant guilty of robbery in the first degree as charged in the information. After hearing evidence outside the presence and hearing of the jury, the trial judge found that defendant had also been convicted of and imprisoned for the felony of escaping from imprisonment prior to conviction as alleged in the information. Defendant’s motion for new trial was thereafter overruled and he was by the court sentenced to custody of the Department of Corrections of the State of Missouri to be imprisoned in the manner provided by law for a term of seven years. Defendant, by his court-appointed counsel, perfected his appeal to this court, but no brief has been filed in his behalf. We, therefore, review all of the sufficiently alleged assignments of error set forth in his motion for new trial, as required by S.Ct. Rule 27.20, and the portions of the record required by S.Ct. Rule 28.02, 4 RSMo 1959, pp. 4923 and 4925; 1 V.A.M.R., pp. 207 and 235.

The first assignment is that the trial court erred in denying defendant’s oral motions for acquittal made at the close of the state’s case and at the close of all of the evidence in the case. By offering and adducing evidence in his own behalf, defendant waived any claim of error as to his motion for acquittal offered at the close of the evidence adduced in behalf of the state. State v. Reece, Mo., 324 S.W.2d 656, 658; State v. Brookshire, Mo., 353 S.W.2d 681, 687. The motion for new trial asserts as grounds in support of the oral motion for acquittal made at the dose of all of the evidence (as well as the motion for acquittal made at the close of the state’s case in chief) that the evidence in behalf of the state was so contradictory and inconclusive as to defendant’s being one of the two persons who committed the robbery herein alleged as to be of no probative value. A statement of the evidence follows.

On and prior to December 23, 1960, Fresno Cleaners, Incorporated, operated one of its several cleaning shops at 3500 Cass Avenue in St. Louis. Mrs. Lena Tims was and for several years had been in charge of it. A girl friend of hers, Patricia Ann Robertson, fifteen years of age at trial time (August, 1961), frequented the place as a visitor of Mrs. Tims. About three p. m., on December 23, 1960, two negro men entered the shop. Both men held their hands in their pockets as if they had weapons. One of them handed Mrs. Tims a piece of paper on which was printed the words: “Be quiet, this is a stickup, get me all the money and won’t get hurt.” That man (later identified by Mrs. Tims and Patricia Ann as the defendant) went to the end of the counter, took Patricia Ann by the back of the neck and led her to the rear of the shop. Mrs. Tims was frightened. At the command of the other man, Mrs. Tims opened the register and he took money from it. The man who led Patricia Ann, who was also frightened, to the back of the shop took money from a cigar box in a rear window sill of the shop. The total amount of money taken by the two men amounted to $26.00. These men then placed Mrs. Tims and Patricia Ann in a bathroom, took some clothing from a rack and left the premises. Mrs. Tims called the police. Thereafter, Mrs. Tims and Patricia Ann viewed defendant, in June, 1961, at the Ninth District Police Station. He was in a police lineup consisting of, as Mrs. Tims said, three men, or as Patricia Ann said, two men. Each of them then and there pointed out defendant as the man who handed Mrs. Tims the note; and, at trial, they again pointed defendant out as the same man, each saying that she was absolutely sure defendant was one of the two holdup men who committed the robbery.

On cross-examination, Mrs. Tims said defendant was brown skinned, wore a light top coat and she thought was wearing a dark hat and dark shoes. He had a gold front tooth and “a sort of a dark mark on his cheek.” The other man was dark, very dark. Upon request of counsel for defendant, she pointed out a dark spot on the right side of defendant’s face. She had priorly told the police she was not sure as to which side of his face the dark spot was on. On December 31, 1960, a police detective brought a package of pictures (12 to 15 of them) to the shop. Mrs. Tims looked at all of them, picked out the picture of defendant as the man who had handed her the note and had led Patricia Ann by the back of the neck to the rear of the shop. She had seen defendant prior to the robbery but did not know him. She later learned at the police station that his name was Jerry Spraggins.

On redirect examination, Mrs. Tims testified that she now knows there are two Spraggins boys, defendant Jerry and his twin brother, Perry. Defendant is the taller of the two. Perry has a scar on his eye. She could tell them apart. She also saw Perry at the police lineup and told the officer at that time that Perry was not the one who held her up. At the trial, she was shown photographs of defendant and his twin brother, Perry, and correctly identified one of the pictures as a picture of defendant and one as a picture of Perry.

On recross-examination, Mrs. Tims further testified she had worked for Fresno Cleaners at 3500 Cass and prior thereto at its shop across the street for a total of about ten years. When the robbery occurred, she did not know defendant and Perry were brothers. She knew that the one who robbed her, defendant, was the one she had seen before. After learning that he had a twin brother and seeing that brother, she knew that the latter was not one of the two men who committed the robbery.

Patricia Ann Robertson further testified : She was sitting by the counter reading a paper at the time of the robbery. She did not see the men enter. The first she knew of the robbery was when one of the men (whom she later identified as defendant at the police lineup and at trial) took her by the back of the neck and led her into the back of the shop. He there took money from a cigar box on the window sill. She described this man (defendant) to the police as being tall, dark and having a dark spot on his jaw and then wearing a dark coat. Following the robbery, she had told the police she did not know the man’s name but she had seen him before.

Police Detective Jerome Weingart assisted in the investigation of the robbery. On December 31, 1960, he exhibited 15 or 20 photographs to Mrs. Tims. She selected from among them a photograph of the man who she said robbed her. That photograph was a picture of defendant. An order was put out for his arrest and he was arrested in June, 1961.

Police Officer Bouchie testified in behalf of the state: On the day of the robbery, he was directed to go to Fresno Cleaners, 3500 Cass. Mrs. Tims told him of the robbery made by two colored males, about 20 years old, about five, nine, weight about 140 pounds; one had dark skin, one was medium brown, one was wearing a light hat and a light coat; one a dark hat and a dark coat. He put the descriptions given him “out over the air”; it was his business only to make a preliminary report and department detectives took over from there for the detailed reports.

Defendant did not testify. The evidence adduced in his behalf consisted of the testimony of Mr. Charles B. Baron, defendant’s court-appointed counsel. He testified: On the morning of July 14, 1961, he went to the office of the Fresno Cleaners at 3500 Cass Avenue. Mrs. Lena Tims and Patricia Ann Robertson were present. He identified himself to both of them and stated that he was an attorney and represented Jerry Spraggins and would be defending him at the trial.. Mrs. Tims told him that she had identified Jerry Spraggins in the police lineup and from pictures as the man she said was one of the two who robbed her shop on December 23rd. He asked her to describe . Jerry Spraggins and she described him “by a gold tooth and by a scar which she said was on the cheek — whether a mark, a dark spot or a scar, she was not positive which, but an obvious spot on the left side of Jerry Spraggins’ face.” She said that Jerry Spraggins handed her a note, that she thought it was a laundry ticket, it was handed to her folded up, it was white and' she thought it was a laundry ticket for ' clothes which had been left at her shop by either Marilyn Spraggins, whom she identified as Jerry Spraggins’ mother, or by a Mrs. Pitchford, whom she identified as his grandmother. She also stated that the man she identified as Jerry Spraggins went to the ' end of the counter and she turned and open-' ed the note; that Jerry Spraggins then took ’ Patricia Ann to the back of the store, at' which time the other man who was in the store went with her to the cash register. She said she did not get as good a look at defendant as she did at the other man, because the other man was with her through- ‘ out the robbery and stood with her at the cash register at that time.

“This court passes upon the credibility of testimony in criminal cases only insofar as it is necessary to determine whether or not the testimony constitutes evidence sufficient to permit reasonable minds to believe the defendant guilty beyond a reasonable doubt, reserving the power to grant relief only when the denial of it would shock the sense of justice. State v. Dupepe, Mo.Sup., 241 S.W.2d 4, 7. Where the evidence is substantial, the effect of conflicts or inconsistencies or mere improbabilities are questions for the jury in the first instance. State v. Hadley, Mo.Sup., 249 S.W.2d 857, 861. Thereafter, it is the province of the trial court to determine whether the verdict is against the greater weight of the evidence, and its finding in

that respect will not be set aside unless an abuse of its discretion clearly appears. State v. Whitman, Mo.Sup., 248 S.W. 937, 938. The Supreme Court will not weigh the evidence where there is substantial evidence to support the finding of the jury and the judgment of the trial court. State v. Emrich, Mo.Sup., 250 S.W.2d 718, 725.” State v. Nash, Mo., 272 S.W.2d 179, 183.

The evidence in this case is sufficient to support the verdict. Defendant was positively thrice identified by Mrs. Tims and twice so identified by Patricia Ann. Both were in a position during the course of the robbery to observe his features and both then and there recognized him as a man whom they had priorly seen. Discrepancies in their testimony as to his dress at the time of the robbery, the precise location and descriptions of certain markings on his face and the like are not so self-destructive as to render the evidence adduced in behalf of the state insufficient as a matter of law to support the verdict rendered. See State v. Dupepe, Mo., 241 S.W.2d 4, 6-7, wherein contentions similar to the contentions here made in connection with a fact situation ‘ fairly analogous to that here presented were held insufficient to set aside a verdict finding defendant in that case guilty of robbery.

The second assignment of error is that the court erred “in overruling defendant’s general and specific objections that the instructions given by the Court [which], by their form, distorted the burden of proof, substantially lessening the burden upon the State. In closing argument, the State seized upon a portion of the objectionable language of the instructions and repeatedly emphasized that ‘a mere possibility’ of innocence was not sufficient ground for finding the defendant not guilty. This constant reference to a test other than the legal test that defendant’s guilt must be proved beyond a reasonable doubt substituted a lesser standard for the one on which defendant must be tried, namely, that his guilt be proved beyond a reasonable doubt. * * * The words ‘a mere possibility of innocence’ were not used merely to explain reasonable doubt but became, instead, a new and different standard.” The record shows that at the close of all of the evidence, the trial court advised counsel for defendant that, among other instructions, the court proposed to give Instruction No. 2, in words following:

“The Court instructs you that the law presumes the Defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes the Defendant’s guilt beyond a reasonable doubt; and the burden of proving Defendant’s guilt rests with the State. If, however, this presumption has been overcome by the evidence and the guilt of the Defendant established beyond a reasonable doubt, your duty is to convict. But if, upon consideration of all the evidence, you have a reasonable doubt of the Defendant’s guilt, you should find the Defendant not guilty. A reasonable doubt should be a substantial doubt as to the Defendant’s guilt, and not a mere possibility of Defendant’s innocence.”

Counsel for defendant thereupon objected to the giving of Instruction No. 2 on grounds that “the second to last and last sentences of the presumption of innocence instruction be reversed to reflect that the burden is on the State to prove its case beyond a reasonable doubt so that when reversed if the Jury from the instructions believes that the Defendant, that it has a reasonable doubt of the Defendant’s guilt that it find him not guilty.” Suffice to say that Instruction No. 2, both in substance and in arrangement, has been so many times approved by this court that discussion of the charge here leveled against it is unnecessary. State v. Berry, Mo., 237 S.W.2d 91, 93; State v. Velanti, Mo., 331 S.W.2d 542, 545. The contention is overruled.

The third assignment of error is that the court erred “in reserving the right to itself to decide if defendant’s Exhibits A and B would go to the jury for its consideration during its deliberations and then did not send these Exhibits to the jury. Said Exhibits A and B are St. Louis Metropolitan Police Department photographs of the defendant (Exhibit B) and his identical twin brother, Perry Spraggins (Exhibit A).” The assignment is quite evidently made under a misapprehension as to what the record shows. Exhibits A and B therein referred to are photographs taken by the St. Louis Metropolitan Police Department of (A) Perry Spraggins and (B) defendant. At request of counsel for the defendant, they were so identified at the trial by Police Detective Weingart. Thereafter the following occurred:

“MR. BARON: May I have those pictures? At this time I would like to have the pictures, Exhibits A and B shown to the Jury.
“MR. ROCHE: No objection.
“THE COURT: All right.
“(Thereupon, Defendant’s Exhibits A and B were passed among the Jury.”

The assignment is without merit.

The fourth assignment is that the court erred “in failing to declare a mistrial or in the alternative, in failing to instruct or caution the jury with respect to the categorical statements made by the State in closing argument that defendant, Jerry Spraggins, is the man who committed this crime. Said statement, made on two occasions, invaded the province of the jury on the ultimate issue which it had to decide, to the extreme prejudice of defendant. * * * No objection was made by defendant to said statements at the time they were made, but said statements were so clearly improper and prejudicial to defendant as to require the intervention of the Court on its own motion.” Again counsel for defendant apparently labors under a misapprehension as to what the record shows. The extracts from the argument, as set forth in the record by agreement of counsel and approved by the court, show that counsel for the state, in opening argument, made a detailed statement of the evidence and contended that such evidence showed defendant’s guilt beyond all doubt; that thereafter counsel for defendant argued the cause, but what he said to the jury is not shown. Thereafter, in closing argument, counsel for the state, to the extent here material, said: “Now counsel [for defendant] indicated to you that I wanted you to convict for a conviction, but if I left that impression, I am sorry. I don’t want you to convict just anybody, that would be lawlessness at its worst. I ask you to convict because there was a crime committed and this is the man that did it. I don’t want you to convict just anybody, I want you to convict this man, he is the man that committed this robbery. * * * I ask you to review the evidence in your own minds, when you go downstairs, which is your duty. And remember my burden was to prove this case beyond a reasonable doubt, and I submit to you I have proven it beyond all doubt.” The assignment is without merit.

The fifth assignment is that the court erred “in failing to sustain the specific objections of the defendant to the instructions given by the Court. Said objections should have been sustained on the specific grounds set forth in making said objections.” The record shows that the so-called “specific” objections to the four instructions given by the court were: “At this time, the Defendant objects generally to Instructions Nos. 1, 2, 3 and 4 and for failure to correctly state the law applicable to the facts in this case, and the Defendant objects specifically to each instruction for the same grounds. The Defendant further objects generally to all of said instructions for the reason that taken together said instructions do not fairly and adequately reflect the burden upon the State in proving its case beyond a reasonable doubt, and that said instructions taken together give a total impression that is not consistent with the applicable, to the Defendant’s constitutional and statutory right not to testify against himself and do not reflect that the Defendant need produce no evidence, and for the reason among others stated at the time of requesting that the Instruction 2 be modified by the Court, that said instructions could not properly leave the impression that the State must prove its case beyond a reasonable doubt.” The foregoing assignment (except possibly as to the objection leveled against Instruction 2, which we have hereinabove considered), even when supplemented by reference to the record, wholly fails to comply with S.Ct. Rule 27.20 requiring that the motion for new trial “must set forth in detail and with particularity, * * *, the specific grounds or causes therefor.” Such an assignment as here made preserves nothing for review. State v. Brewer, Mo., 338 S.W.2d 863, 868; State v. Williams, Mo., 343 S.W.2d 58, 62; State v. Richardson, Mo., 343 S.W.2d 51, 54; Vol. 9A Mo.Dig., Criminal Law, 1064 (7).

Assignment No. 6 reads: “The verdict was against the evidence on the grounds hereinbefore stated in this motion and on a consideration of the record as a whole.” Assignment No. 7 reads: “The verdict was against the evidence and the weight of the evidence.” Assignment No. 8 reads: “The verdict was against the law and the evidence on the grounds hereinbe-fore stated and on consideration of the record as a whole.” Each of these assignments, for the reasons stated as to assignment No. 5, also fails to comply with S.Ct. Rule 27.20 and presents nothing for review. See cases cited in 9A Mo.Dig., Crim.Law, ^ 1064(1), 1064(5), 1064(6) and 1064(7).

The final assignment (No. 9) reads: “Defendant is entitled to a new trial on the basis of newly discovered evidence relating directly to defendant’s innocence with respect to the alleged crime.” Nowhere in the record do we find any statement or proof or offer of proof as to any newly discovered evidence. The mere allegation set forth in the motion does not prove itself. Moreover, the assignment is insufficient to preserve anything for review under S.Ct. Rule 27.20, supra.

The record shows that the information follows in substance the wording of the statute, § 560.120 defining robbery in the first degree and is in due form. State v. Moore, Mo., 347 S.W.2d 195. Defendant and his counsel were personally present at all trial and all pretrial and aftertrial proceedings. The verdict is in due form, responsive to the issues and the punishment assessed is within the limits fixed by statute, §§ 560.135, 556.280. Defendant was granted due allocution and the sentence and judgment are in due and legal form.

The judgment is affirmed.

All concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. James Audie RAMSEY, Appellant.
    No. 49826.
    Supreme Court of Missouri. Division No. 2.
    June 4, 1963.

      Warren H. Kawin, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
   EAGER, Presiding Judge.

Defendant was charged in the City of St. Louis with attempted burglary, second degree. The case was tried to the court, upon the waiver of a jury entered in open court, and assented to by the trial judge pursuant to Art. 1, § 22(a), Mo. Constitution 1945, V.A.M.S. Such a waiver in a felony case was first permitted by the provisions of that Constitution. The trial court found defendant guilty and assessed his punishment at two years’ confinement. Defendant was represented at the trial and is represented here by appointed counsel. Motion for new trial was filed and overruled and this appeal taken, after leave granted to appeal as a poor person.

Since the only substantive question to be considered is that of the sufficiency of the evidence, we relate that in some detail. There is little or no controversy concerning the facts developed. The St. Louis police received a call at about 2:00 a. m. on July 3, 1962, that there was a prowler at a store at the corner of Glasgow and Hebert. Three different cars answered the call but Sergeant Robert Scheetz arrived first. He had driven south on Glasgow and as he approached the designated corner he saw a car (a light colored Lincoln) parked at the east curb of Glasgow, just north of Hebert and alongside a confectionery store on the northeast corner. A man was just in the process of entering the driver’s seat, and another man was standing nearby on the corner. The sergeant headed his patrol car into the curb, blocking the exit of the parked car, and got out. He then saw another man, who proved to be this defendant, sitting on the passenger’s side of the front seat. Defendant was identified at the trial as that man and no question is raised here concerning the identification. The man on the corner ran east, but was later apprehended by other officers. The sergeant ordered the two men out of the car, placed them under arrest, questioned them briefly, and searched the car. He found on the floor back of the front seat a padlock, a tire tool and a pinch bar. If it be of any significance, the padlock was found on the floor behind the passenger’s side of the front seat. The tire tool appeared to have some green paint on it at its pointed end. All three men were taken to the police station later. A few minutes before the police received this call, an officer passing by had seen two men standing on that corner in front of the confectionery.

While still at the scene the police got in touch with the operator of the confectionery store, one Howard Schenk; they had him come there and bring the key to the padlock which he had left on the store’s front door. Schenk testified that when he left the store at about 10:00 p. m. on July 2, he had locked the door securely, with the ordinary lock made in the door (such as a "Yale” lock) and also with a padlock inserted into a hasp secured to the doorframe. When examined by the police and Schenk, the molding and framework of the door were “pulled away,” the molding was “chewed up,” and there were ‘‘jimmy marks”; the hasp was open and bent and the padlock was gone. The door was still closed and the other lock was in place. Mr. Schenk gave his padlock key to the sergeant who tried it in the padlock found on the floor of the car and discovered that it readily opened that lock. Both key and lock were retained as possible exhibits and both were offered in evidence, along with the tools. Mr. Schenk also identified the padlock.

Sergeant Scheetz took paint and wood samples from the door and frame where the damage had been done; he delivered those, along with the tools and the shirt and trousers which defendant had been wearing, to the police laboratory. The chemist from the laboratory testified that near the end of the tire tool there were two layers of paint, dark green over gray, which were similar in color to the two top layers of paint on the samples furnished from the door. He found nothing of significance on the trousers or shirt of defendant. The car was registered in the name of a woman who was not further identified. The defendant produced no evidence.

The only question briefed on appeal is the alleged insufficiency of the evidence to support a finding of guilty. This is stated in seven different points but, in full substance, the points are as follows: that upon this evidence the finding necessarily rested upon mere surmise, suspicion, and inference upon inference; that the evidence did not meet the degree of proof required of circumstantial evidence (which will be mentioned later); that no intent was shown, no act of participation by defendant was shown, and that there was no evidence of aiding or encouraging. As a follow-up on these points, counsel also suggest that, the evidence having been fully developed, the defendant should be discharged without remand of the case.

We do not quarrel with the rules of law urged; the only real point here is the sufficiency of the evidence under those rules. Counsel argue that: defendant was not shown to be the driver or a “lookout”; that he did not flee the scene; that no paint was found on his clothes; that he was not shown to have been previously associated with the other two men; that his mere presence was not enough to convict him; and that no intent was shown.

We do not deem any showing of intent, as such, to be necessary here. There is no question whatever that the crime of attempted burglary had been committed by some one or more persons, with all the necessary elements present. An act of that nature proves, in itself, the intent of those involved. The only question remaining, so far as defendant is concerned, is whether the evidence permits a fair inference of his participation or of his aiding, abetting or encouraging the crime, for any of which he would properly be found guilty. State v. Corbin, Mo., 186 S.W.2d 469; State v. Kowertz, 317 Mo. 426, 297 S.W. 358; State v. Butler, Mo., 310 S.W.2d 952; State v. Whitaker, Mo., 275 S.W.2d 316; State v. Massey, 358 Mo. 1108, 219 S.W.2d 326; Mays v. United States (C.A. 8), 261 F.2d 662; State v. Bresse, 326 Mo. 885, 33 S.W. 2d 919; State v. Stidham, Mo., 305 S.W.2d 7, 15.

Defendant relies rather strongly on the accepted rule regarding circumstantial evidence, namely, that where this is relied upon the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence. State v. Odum, Mo,, 351 S.W. 2d 10, 14; State v. Murphy, Banc, 356 Mo. 110, 201 S.W.2d 280. It may be conceded that evidence raising a mere suspicion of guilt, or showing an opportunity to commit a crime, is insufficient. State v. Murphy, supra; State v. Ashe, Mo., 350 S.W.2d 768. In various cases evidence of mere “presence” has been held insufficient to support a conviction. State v. Odbur, 317 Mo. 372, 295 S.W. 734; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919. And, of course, evidence which merely raises a suspicion or gives rise to conjecture, has often been held insufficient. Murphy, supra; Odum, supra.

“ ‘ “The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting. * * * ” ’ ” State v. Corbin, Mo., 186 S.W.2d 469, 471. And one’s “presence” may have substantially different meanings and raise wholly different inferences under differing circumstances. Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction. State v. Butler, Mo., 310 S.W. 2d 952, 957. Also, evidence sufficient to justify the jury in finding that defendant did in any way aid, abet or encourage another in the commission of a crime is sufficient to support a conviction. State v. Present, Mo., 344 S.W.2d 9, 10; State v. Corbin, supra; State v. Butler, Mo., 310 S.W.2d 952, 957; State v. Stidham, Mo., 305 S.W.2d 7, 15; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, 921; State v. Muchnick, Mo.App., 334 S.W.2d 386, 388. In many instances no physical act of participation is necessary. State v. Stidham, supra; State v. Whitaker, Mo., 275 S.W.2d 316; State v. Bresse, supra; State v. Butler, supra. The term “aid and abet” is well defined in Mays v. United States (C.A. 8), 261 F.2d 662, at loe. cit. 664, where the court said: “ ‘ * * * In order to aid and abet another to commit a crime it is necessary that a defendant “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” L. Hand, J., in United States v. Peoni, 2 Cir., 100 F.2d 401, 402.’ And, at page 620 of 336 U.S., at page 770 of 69 S.Ct., the Supreme Court states: ‘ * Aiding and abetting has a broader application. It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy. * * * > >>

In none of the cases cited by defendant are the facts substantially like ours. In State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, it was merely shown that defendant and another man had stopped defendant’s truck on a country road in the vicinity of the yard from which a gas engine was later found stolen, that there were tracks around the truck, that a path was found in the grass leading up to the yard, and also tracks around the place where the engine had been located. There was no real examination of any of the tracks, nor was defendant shown to have been present at the time of the actual theft. In State v. Odbur, 317 Mo. 372, 295 S.W. 734, the defendant Shade was shown to have been present at three successive fights between the other defendant and the deceased; however, the evidence was fully developed and it tended to negative any participation, aiding or abetting by Shade in any of the fights. The court was there concerned more with the construction of direct evidence than with circumstantial evidence. In State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, also cited by defendant, the evidence was held sufficient for submission; the charge was stealing a car. The evidence showed that the car had been stolen by a stranger who came to the scene with defendant, that defendant then followed the stranger away in his own car, and that they were later seen together. Of this evidence the court said, loe. cit. 921: “Suffice it to say that it is sufficient to support the inference that the stranger and defendant conspired together to steal an automobile, and the stranger stole one, and that defendant was present as an accessory aiding and abetting him.”

In State v. Present, Mo., 344 S.W.2d 9, 10, the State’s evidence showed the presence of defendant when his associate and helper stole some brass journal bearings from a railroad station and put them in defendant’s truck. There the defendant testified, disclaimed all connection with the theft, and contended that he attempted to discourage his associate from his actions. However, the truck belonged to defendant and he started back to St. Louis in it with his helper. The discussion in the opinion concerned the instructions, but all concerned seem to have assumed that the evidence was sufficient to make a submissible case. See also State v. Mitts, Mo., 347 S.W.2d 677, where two men entered a double-parked car with stolen luggage and defendant drove the car away. This was held to constitute sufficient evidence for a conviction of defendant on a charge of stealing the luggage, with no further showing of knowledge, intent or action. In State v. Stidham, Mo., 305 S.W.2d 7, loe. cit. 15, the court said: “ * * * ‘no particular acts are necessary; nor is it necessary that any physical part in the commission of the crime be taken; mere encouragement is enough.’ * * * McMannus v. Lee, 43 Mo. 206, 208, states: ‘The law is well laid down that any person who is present at the commission of a trespass, encouraging or exciting the same by words, gestures, looks, or signs, or who in any way or by any means countenances or approves the same, is in law deemed to be an aider and abettor, and liable as a principal * * *.’ ”

Every case must naturally stand upon its own facts. Here defendant was found sitting in a car, at 2:00 o’clock in the morning, beside a confectionery store where a burglary had just been attempted, the attempt having been interrupted or having otherwise failed. The store had been closed and locked since 10:00 p. m. The padlock from the door (positively identified) was found immediately behind defendant on the floor of the car, and tools appropriate to such a crime were close by in the car, one showing evidence of recent use. Another man was just entering the car, a third man ran from the corner. It is perhaps significant that the police sergeant did not testify that he saw the entering man place the padlock and tools in the car. Here there were physical facts showing the commission of a crime, and we conclude that, under all the circumstances, a finding of defendant’s guilt did not rest upon mere suspicion, conjecture, surmise or inference upon inference. So far as concerns the rules governing circumstantial evidence, we hold that this evidence and these circumstances were consistent with defendant’s guilt, that they were inconsistent with his innocence, and that they excluded every reasonable hypothesis of his innocence. These circumstances raised a fair and reasonable inference of concerted action which involved defendant either as an actual participant or as an aider and abettor in the crime; and this inference, in our opinion, was sufficient “ ‘ * * * to permit reasonable minds to believe the defendant guilty beyond a reasonable doubt,’ * * * ” and thus to make a submissible fact issue. State v. Spraggins, Mo., 368 S.W.2d 407. The weight of the evidence is to be determined by the jury or by the trial court sitting as a jury. We merely find on appeal, as we have found, that there was substantial evidence to support the finding and conviction.

At the conclusion of the evidence and after announcing its finding informally, the trial court entered an order in which it stated: the charge against defendant; the presumption of innocence and the burden of the State to prove the defendant’s guilt beyond a reasonable doubt; that “the evidence and circumstances herein are sufficient to show the attempted breaking into the building”; and its finding that the defendant was guilty of attempted burglary in the second degree. Therein the court also assessed the punishment. Our Criminal Rule 26.01(c) V.A.M.R. requires that in a felony case tried without a jury “the court shall be required to prepare an opinion or give declarations of law to the extent necessary to indicate the court’s theory of the law applicable thereto.” This provision of the rule is consonant with the suggestions made in State v. Hardy, 359 Mo. 1169, 225 S.W.2d 693, loe. cit. 698. The statement of the court in its present order was hardly sufficient to indicate its theory of the applicable law. There was no real dispute that there had been an “attempted breaking into the building” and the question was whether or not defendant was criminally connected with it. The rule contemplates that, under such circumstances, some declaration should be made stating the applicable rule or rules of law, as here for instance, declaring the applicable rules of guilt for participation in the offense or for aiding, abetting or encouraging it. However, the point has not been raised in the rather full and competent brief filed here by counsel, and we deem it waived under Rule 28.02. The general finding of the court constitutes its verdict; these matters are not integral parts of the verdict itself.

We find no error in those parts of the record which we examine under Rule 28.02. Finding no reversible error, the judgment is affirmed.

All of the Judges concur.


author: STORCKMAN, Judge. WESTHUES, Chief Justice

text:
    STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Clifford Charles PAUL et al., On Exceptions of Roy J. Fuliington, Lena Fullington, and Shell Oil Company, Inc., Respondents.
    No. 49805.
    Supreme Court of Missouri, En Banc.
    June 4, 1963.

      Robert L. Hyder, Ralph H. Duggins, Wil-kie Cunnyngham, Jefferson City, for appellant.
    C. Kenneth Thies, Kerth, Thies & Schrei-ber, Clayton, for respondents.
   STORCKMAN, Judge.

This is an action to condemn for highway purposes certain land belonging to the defendants Roy J. Fullington and Lena Fullington. Commissioners appointed by the court awarded the defendants $69,000 to which award the plaintiff 'excepted. The plaintiff paid the full amount of the award into court on February 29, 1960, and took possession of the land. On May 2, 1960, the defendants withdrew from the registry of the court the sum of $30,000 leaving $39,000 on deposit. On June 20, 1961, the trial of the plaintiff’s 'exceptions was concluded and the result was a verdict for the defendants in the sum of $30,000; judgment was rendered accordingly. The amount of the verdict and judgment was the exact amount withdrawn by the defendants from the registry of the court.

Neither party filed a motion for new trial nor made any complaint as to the amount of the verdict and judgment. The only issue remaining in the case is whether the plaintiff is entitled to interest on the sum of $39,000 which was not withdrawn by the defendants and which remained in the registry of the court from the time it was deposited by the plaintiff until the plaintiff became entitled to its return at the conclusion of the litigation involving plaintiff’s exceptions. Two additional orders bearing on this issue were made after the original judgment was entered.

On July 12, 1961, at the instance of the plaintiff, a nunc pro tunc order and judgment was entered which held that the defendants were liable to the plaintiff for interest at the rate of six percent on the fund of $39,000 during the time it remained in the registry of the court. On July 18, 1961, the defendants filed their motion to vacate the nunc pro tunc judgment insofar as it allowed the plaintiff to recover interest on the sum of $39,000. On August 1, 1961, the court sustained the defendants motion to vacate on the ground, among others, that the interest statute, § 523.045, RSMo 1959, V.A.M.S., was unconstitutional and entered a new judgment in favor of the defendants for $30,000 in accordance with the verdict and in favor of the plaintiff for the excess amount of $39,000 but without the allowance of interest.

The plaintiff appealed to the St. Louis Court of Appeals from the judgment, order, and findings of the trial court made August 1, 1961. The St. Louis Court of Appeals, by its opinion reported in 360 S.W.2d 395, properly ordered the appeal transferred to this court on jurisdictional grounds. Where, as here, the judgment of the trial court purports to decide the constitutionality of a state statute, and the question is preserved for review, appellate jurisdiction is in the supreme court. Art. V, § 3, Constitution of Missouri 1945, V.A.M.S.; State ex rel. Jenkins v. Bradley, Mo., 358 S.W.2d 38; State v. Errington, Mo., 355 S.W.2d 952; Marshall v. Kansas City, Mo., 355 S.W.2d 877; Kansas City v. Hammer, Mo., 347 S.W.2d 865; Callahan v. Connecticut General Life Insurance Co., Mo.App., 201 S.W.2d 406.

Among other contentions, the defendants assert that § 523.045 does not impose an obligation on the condemnee to pay interest on a deposit left in the registry of the court because the deposit in court of the commissioners’ award is not a payment to the defendants within the meaning of the interest statute and cannot lawfully render the condemnee liable to pay interest until he withdraws an amount which is thereafter adjudged to be in excess of that to which he is entitled as damages for the taking of his land. It is a cardinal rule of statutory construction that where a statute is fairly susceptible of a construction in harmony with the Constitution it must be given that construction by the courts and, unless the statute is clearly repugnant to •the organic law, its constitutionality must be upheld. City of Joplin v. Industrial Commission of Missouri, Mo., 329 S.W.2d 687, 692 [6]; Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 167 [8]; State on inf. Dalton v. Metropolitan St. Louis Sewer Dist., 365 Mo. 1, 275 S.W.2d 225, 234 [23]; State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876, 882-883 [5]; State ex rel. Barrett v. May, 290 Mo. 302, 235 S.W. 124, 126 [3].

Courts will not ordinarily pass on constitutional questions where the case presented may be properly decided without doing so. McIntosh v. Connecticut General Life Ins. Co., Mo., 366 S.W.2d 409, 412 [2]; City of St. Joseph v. Roller, Mo., 363 S.W.2d 609, 612 [6]; Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484, 497 [23]. We have concluded that § 523.045 is fairly susceptible to the construction that it does not impose on the condemnee an obligation to pay interest on the fund left on deposit in the registry of the court.

The Constitution of Missouri 1945, Art. I, § 26, provides: “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law; and until the same shall he paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” Italics added. The requirement of paying the award to the owner or into court for the owner before the condemnor takes possession is carried over into the statutes. Sections 523.040 and 523.050, 1959, V.A.M.S.

The condemnor is not required to take possession of the land before obtaining a final adjudication of the owner’s damages. If it chooses not to take possession, the condemnor still has ten days to elect to abandon the condemnation after final assessment of damages has been made, either by subsequent commissioners or by a jury. State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025, 1028 [2], The legal obligation of the condemnor to deposit in court the amount of the commissioners’ award as a condition precedent to taking possession of the land is clear; it is independent of the statutory provisions for interest which were enacted in 1959.

Section 523.045, the statute we are called on to construe, provides for the payment of interest in several situations. The portion with which we are particularly concerned provides that: “ * * * if the amount of the award shall be superseded by a subsequent verdict or amount smaller than the award paid, then judgment shall be entered against said persons named to repay to con-demnor the amount by which the award paid exceeds the amount of the verdict, with six per cent interest on such excess payment from the date of the payment of the award.” Italics added.

The generally accepted definition of interest is “the compensation allowed by law, or fixed by the parties, for the use or forbearance of money, or as damages for its detention.” 47 C.J.S. Interest § 1, p. 8. “The theory on which interest is allowed on any fund is that it is held in such a way that it may be put to work and earn it, that is to say, that the relation of debtor and creditor exists between the owner and user of the fund rather than that of fiduciary or trustee.” 47 C.J.S. Interest § 3, p. 13.

“It has very generally been said that, where a fund in litigation, or the amount of a disputed claim, is deposited in court, or is subject to its order, particularly where the one depositing the fund is a mere stakeholder, interest is not recoverable thereon during the time it remains so deposited, * * 47 C.J.S. Interest § 54, p. 66. A somewhat similar statement is found in 47 C.J.S. Interest § 25, p. 38, relating to funds in litigation or in custody of law.

The award on deposit in the registry of the court has the attributes of a fund in litigation which cannot be distributed without an order of the court. In condemnation cases the approved method is to assess in one sum the damages to a particular lot or tract of land and to require the owner of the fee, lessees, trustees, mortgagees, and other claimants to apply to the circuit court for the apportionment of the damages among them according to their various interests. State ex rel. State Highway Commission v. Conrad, Mo., 310 S.W.2d 871, 877 [7]. The condemnor is not concerned with the rights of rival claimants to the award because the fund deposited in court is substituted for the property taken in condemnation. St. Louis Housing Authority v. Evans, Mo., 285 S.W. 2d 550, 553-554 [10]; State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, 69 A.L.R. 1256. In the instant case Shell Oil Company and a trustee had interests in the fund deposited and it was two months before the court made its order authorizing the withdrawal of $30,000. A considerable amount of time may be required to dispose of adverse claims in condemnation cases especially where some of the con-demnees are served by publication and may not have actual knowledge of the proceedings. Then, too, where exceptions are filed, the issue as to the amount of damages ultimately to be distributed remains unsettled. We must assume that matters such as these were within the knowledge of the drafters of the interest statute and the members of the general assembly and that it is not the intent of the enactment to impose an unreasonable and unjust requirement.

The justification for requiring the deposit in court and the need of the owner being in. default before interest can be charged is well stated in the early case of St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co. 160 Mo. 396, 61 S.W. 300, 305: “No statute allows interest under circumstances like those presented here. The land-of defendant was seized in invitum. The law required the money to be put up for its protection while its land was put in possession of plaintiff. Extraordinary power was conferred on plaintiff, and, while it has been compelled to lie out of the use of its money pending the settlement of the amount it should pay, it is simply the price which the statute requires, and no default is traceable to defendant.”

No Missouri case has been found dealing with interest on deposited funds, but the Federal Court for the Western District of Missouri said this in the early case of Bowman v. Wilson, 12 F. 864: “Interest is allowed upon the ground that the debtor is in default and has the use of claimant’s money.It is never allowed where, by the order of a court of competent jurisdiction, or by the interposition of the law, or the act of the’ creditor, payment of a debt has been prevented. During the continuance of such prevention the interest does not run. If a fund is in the custody of the law — in the possession of a court — and cannot be paid out without the order of such court, it does not ordinarily bear interest.”

The language employed in § 523.-€45 is consistent with an intention not to obligate the condemnee to pay interest on the refund to which the condemnor becomes entitled when the condemnee has not withdrawn the award and it has remained in the registry of the court. The portion of the statute in question provides that interest on the excess shall run from “the date of the payment of the award.” If this means the ■date of the deposit in court (as the trial court evidently construed it), then there would be serious doubt as to the constitutionality of the provision because, as we have seen, the date of deposit may have no relation to the time when withdrawal by the condemnees is authorized or can be made with assurance that there will be no liability to refund with interest.

For the purpose of taking possession of the land, the condemnor has paid the owner when he has deposited the amount of the award “into court for the owner” (Art. I, § 26), but the owner has not been paid for other purposes until he has actually received the money. See 29 C.J.S. Eminent Domain § 191, p. 1088. Where the con-demnee has not withdrawn the award, a judgment with its attribute of execution is not necessary to return the fund, or a part of it, to the condemnor. Where the money is in the registry of the court, all that is needed is a court order for the clerk to release and deliver the proper amount to the condemnor in accordance with the verdict of the jury. The words, “judgment”, “payment”, and “repay”, as used in the statute, indicate a debt and the relation of debtor and creditor. This fits in with the situation where the landowner has actually received the amount of the commissioners’ award, but it is at variance with the legal situation existing where the award remains in the registry of the court subject to its being distributed in accordance with the verdict of the jury. Section 523.045 did not purport to create any new legal relation such as debtor-creditor, but only to provide for the payment of interest where the debtor-creditor relation exists. Under the statute the date of depositing the award in court is not the date of payment to the condemnee for the purpose of starting the running of interest. The date for interest purposes is when the condemnee withdraws a portion of the fund that he is thereafter required to repay to the condemnor.

If we were to hold, as the plaintiff urges, that § 523.045 obligates the defendants to pay interest whether or not they withdrew the fund from the registry of the court, serious questions would be presented as to the constitutionality of the Act. The distinction which the plaintiff fails to recognize is that the condemnor is required by law to pay the money into court as “the price” of divesting the owner immediately of his proprietary rights. On the other hand, there is nothing in the Constitution or the statutes which requires the condemnee to accept the fund on deposit either before or after final judgment. If the condemnee leaves the fund on deposit, he has done nothing to hinder or delay the condemnor in collecting his refund when he becomes entitled to it; he is not in default.

The construction we have given the interest statute harmonizes it with well-established principles of law and does no violence to the language employed. In view of our holding that the statute does not impose liability for interest in these circumstances, no case is presented for deciding the constitutionality of the statute. Also there is no need to pass on other contentions made by the defendants.

The plaintiff further contends that, apart from statutes such as § 523.045, courts have held that where the condemnor has paid in excess of the amount of damages finally determined he is entitled to interest on the excess. Three cases cited from other state jurisdictions involved a refund of money which the condemnee had withdrawn from the registry of the court. They are of no help to the plaintiff on the facts of this case. Two Missiouri cases cited by plaintiff hold interest is not allowable without statutory authority. See St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co., Company, 160 Mo. 396, 61 S.W. 300, and State ex rel. Highway Commission v. Green, Mo., 305 S.W.2d 688, 693 [5]. We are not persuaded that we should depart from these holdings.

The plaintiff further asserts that, if the defendants believed the award of the commission was excessive and did not want to be held liable for interest, they should have released and restored the excess to the plaintiff by a tender under § 514.250 or by other appropriate action. The constitutional provision that the compensation “shall be paid to the owner, or into court for the owner,” establishes a fund in court to which the owner may resort for payment when the amount due has been finally determined. This sort of security is not important in the case of the State Highway Commission which is and will remain solvent; however, Chapter 523 also applies to “railroad, street railway, telephone, telegraph or any electrical corporation” which have been known to have financial difficulties. The plaintiff furnishes no authority to support its assumption that the defendants could release the deposit, or any part of it, without surrendering or seriously impairing their right to litigate the issue of damages. The con-demnor and the condemnees may be poles apart in their views on the amount of damages, but each is entitled to litigate the question and to accept the jury’s verdict whether it is more or less than the amount which they believed to be recoverable.

Section 514.250 lends nothing to the plaintiff’s contention in this regard. This section does not require a tender in the usual sense but only that the money be deposited in court which is exactly where the fund was. Furthermore, it has been held that § 514.250 does not, as the plaintiff implies, require that notice of the deposit be served on the other party. See Atkins v. Ost, 112 Mo.App. 256, 86 S.W. 903. The earlier case of Crawford v. Armstrong, 58 Mo.App. 214, also points out that the statute makes no provision for any notice other than that arising from the deposit of the money “of which the clerk shall and usually does make a minute upon his records.” 58 Mo.App. loe. cit. 217. The plaintiff here is in no position to claim that it was entitled to notice that the defendants had withdrawn only a portion of the deposit. In the circumstance the defendants were not obliged to retender the deposit. If any overtures were to be made, the obligation to do so was equally, or more so, upon the plaintiff. It appears that the plaintiff was contending that the value of the land was only $13,000 and it is the one that filed the exceptions which prolonged the litigation.

We have considered all of appellant’s contentions and find them to be without merit. Although the court erred in holding the statute unconstitutional, it reached the correct result. For the reasons assigned in this opinion, the judgment is affirmed.

EAGER, LEEDY, and HOLLINGS-WORTH, JJ., concur.

DALTON and HYDE, JJ., concur im result.

WESTHUES, C. J., dissents in separate opinion filed.

WESTHUES, Chief Justice

(dissenting).

I cannot concur in the result reached in the able opinion of STORCKMAN, J.

The amount paid into the registry of the court by the condemnor for the benefit of the condemnee is treated in the opinion as a fund in litigation. The fund is not in fact in litigation. The condemnee, and only the condemnee, has the only control over the fund. He may withdraw it and do with it as he pleases. If he spends it or loses it in a poor investment, he has not thereby breached any obligation to the condemnor or anyone else. Payment by the condemnor of the fund into court is treated in the condemnation statute as a payment to the con-demnee.

The statute, Sec. 523.045 RSMo 1959, V.A.M.S., now before us for construction, does not say that the condemnee shall pay interest in case he has withdrawn the money, but provides in mandatory language that in the event the verdict is for less than the award, “then judgment shall be entered against said persons named to repay to con-demnor the amount by which the award paid exceeds the amount of the verdict, with six per cent interest on such excess payment from the date of the payment of the award.”

In my opinion, the court has placed a strained construction on the statute and has interpolated a provision not contained therein to reach a more equitable result for the benefit of the property owner. To attain such a result, application should be made to the legislature for relief. I have no doubt that the legislature would amend the statute if the matter were called to its attention.

I, therefore, respectfully dissent.


author: BARRETT, Commissioner.

text:
    Charlene GREENE, (Plaintiff) Appellant, v. Walter GREENE, (Defendant) Respondent.
    No. 49460.
    Supreme Court of Missouri, Division No. 2.
    June 4, 1963.

      Roscoe B. Turner, St. Louis, for respondent.
    Frank Mashak, St. Louis, for appellant.
   BARRETT, Commissioner.

On October 5, 1960, Charlene Greene was granted a divorce from Walter Greene. In addition, in the divorce decree and judgment, she was awarded the custody of Karen Jeanene, age 1, $10 a week for Karen’s support, and $10 a week alimony. Five months later, March 14, 1961, Walter filed a motion “to modify divorce decree” in which he alleged that there had been an agreement with respect to permanent alimony and that he was without sufficient funds to pay $10 weekly alimony in addition to $10 weekly child support. Subsequently there was a notice from Walter’s counsel that the motion would be “called up” in Division 15 on April 21,1961. On that date defendant filed his “Memorandum for Clerk.” This memorandum recites that the motion to modify divorce decree was filed, that Walter appeared in person and by attorney but that Charlene “although having been duly notified failed to appear in person or by attorney. Heard and submitted.” Thereafter, May 1, 1961, the court filed its memorandum which recites that on “evidence previously adduced defendant’s motion to modify the decree of divorce as to alimony is sustained.” Accordingly, on that date, a judgment modifying the divorce decree was entered. The modified judgment reduced the alimony payments from $10 a week to $5 a week. In accordance with this decree, on February 16, 1962, the court quashed . Charlene’s execution in so far as it .attempted' to collect alimony in excess of $5 a week. Thereupon she filed an alternative motion to (1) set aside the ■order partially quashing the execution, or '(2) to grant her a new trial. This motion was overruled on March 26, 1962, and Charlene has appealed.

Even though the judgment was final (Mahan v. Mahan, 239 Mo.App. 317, 192 S.W.2d 626), the circuit court did not lose all jurisdiction of the original divorce decree, at least as to the allowance of alimony. V.A.M.S. § 452.070. However, a motion to modify a divorce decree as to alimony is an independent proceeding and an order or judgment entered upon the motion is a final appealable order. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323; North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 .A.L.R. 1061. One of the essential prerequisites to the modification of a divorce decree is notice to the party adversely af.-fected, a modification without notice is of course a violation of due process. Ex parte Jack v. Jack, 295 Mo. 128, 243 S.W. 314. Whether in a particular case there was proper notice is normally a fact question, and if the question of violation of due process is not timely asserted and kept alive, or is a mere question of fact as in a habeas corpus proceeding, jurisdiction of the appeal is in the appropriate court of appeal. Baker v. Baker (Mo.App.), 274 S.W.2d 322, 325; Ex parte Fernbaugh v. Clark, 236 Mo.App. 1200, 1208, 163 S.W.2d 999, 1003, 173 S.W.2d 646. In this case, at the earliest opportunity, and as soon as it became a matter of consequence to Charlene —upon the partial quashing of her execution — she moved to vacate the order o.r for a new trial asserting that the modification was “invalid, null and void, by reason of the fact that the Court did not have juris-diction over the person of plaintiff because mo legal notice was given her of said hearing and an opportunity for her to defend the same was a denial of due process and in violation of her constitutional rights under * * * the Missouri Constitution, 1945, Article I, Sec. 10 [V.A.M.S.], and she lhas been thereby deprived of her property without due process of law in taking from her the legal right of obtaining $5.00 per week alimony from defendant as decreed by the Court in the original decree of divorce awarding her the sum of $10.00 per week alimony and $10.00 per week child support, and therefore said alleged modification reducing alimony from $10.00 to $5.00 per week is null and void and of no legal effect, all of which is shown on the face of the record in this case.” Thus, even though the determination of whether there was proper notice of the motion to modify is a simple fact question, a constitutional problem is involved in the appellate jurisdictional sense and jurisdiction of the appeal is appropriately in this court. State ex rel. Shoemaker v. Hall.(Mo.), 257 S.W. 1047.

At the bottom of Walter’s motion to modify the decree and on his notice to take up the motion, there is this notation signed by his counsel: “A true copy of the foregoing motion mailed, postpaid to Charlene Greene, Defendant, 807 Clara, Apt. 34 and to Mr. Frank Mashak, Attorney for Plaintiff, 4114 'Olive Street, St. Louis 8, Missouri, this 14th day of February, 1961.” Walter’s “Memorandum for Clerk” recites that his motion to modify was “called” and was “Heard and submitted.” But there is no recital in the memorandum that there was a statement, testimony or other proof as to the service and notice of the motion or of the fact that it would be called for hearing. Likewise there is no recital or finding in the “judgment (Modification of Decree)” as to what, if any, evidence was heard, the judgment entered on May 1, 1961, .recites that “The court having heard and duly considered the defendant’s motion to modify decree, heretofore filed and submitted herein, and being sufficiently advised of and concerning the premises, doth order that said motion be and the same is hereby sustained, * * Subsequently, December 13, 1961, Walter verified a “motion to quash” another execution and in that motion alleged that “Plaintiff was properly served with a Motion to Modify the alimony and plaintiff knew are (s. i. c.) should have known that on May 1, 1961, this Court modified said decree of divorce to provide that defendant pay the sum of Five Dollars per week alimony.” But there was no personal service of the motion on Charlene or some member of her family over the age of 15 (Sup.Ct.Rule 43.01(b) (1, 3) [V.A.M.R.]) and it is not conceded that the notice was personally delivered or received by either Charlene or her counsel (Annotations 42 A.L.R.2d 1115; 62 A. L.R.2d 544, and related subjects 78 A.L.R. 370; 163 A.L.R. 504); they did not appear when the motion was heard (Baker v. Baker, supra) and there is no affirmative' showing that they in fact received the motion or the notice that it would be called for hearing. In addition, there is no proof that Mr. Mashak was the attorney for Charlene if and when the notices were mailed to him. Burgess v. Burgess, 239 Mo.App. 390, 395, 190 S.W.2d 282, 284. The burden was upon the respondent Walter Greene to “prove proper notice” Dodds v. Dodds (Mo. App.), 328 S.W.2d 724 before there could be a valid modification of the original divorce decree. The fact of proper notice to Charlene was not established upon the hearing of the motion, and it does not affirmatively appear upon this record and necessarily, therefore, the judgment is reversed and the cause remanded. Burgess v. Burgess, supra; Dodds v. Dodds, supra; Williamson v. Williamson (Mo.App.), 331 S.W.2d 140.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

STORCKMAN and LEEDY, JJ., concur.

EAGER, P. J., concurs in result.


text:
    The STATE of Missouri at the Relation of William H. DANIELS and Kathryn Daniels, Respondents, v. Walter A. KASTEN, as Mayor of the City of Jackson, Missouri, et al., Appellants.
    No. 49585.
    Supreme Court of Missouri, Division No. 1.
    June 4, 1963.

      Buerkle & Lowes, Jackson, by Albert C. Lowes, Jackson & Thomasson, Cape Girar-deau, by Donald P. Thomasson, of counsel, for appellants.
    Finch, Finch & Knehans, James A. Finch, Jr., Cape Girardeau, for respondents.
   HOLLINGSWORTH, Judge.

Respondents (plaintiffs) are the owners of Lot 10 in the City of Jackson, a city of the fourth class in Cape Girardeau County, Missouri. Appellants (defendants) are, respectively, the mayor, members of the board of aldermen, city clerk and building inspector of said city. Following trial of the issues joined in this cause, which we hereinafter outline, the court rendered judgment making peremptory its priorly issued alternative writ of mandamus ordering appellants to issue to respondents a building permit for the construction of an addition to an existing building on said lot or to show cause why they should not so do. Appellants appealed to this court from the final judgment so rendered on grounds that jurisdiction of said appeal was vested in this court because it involved “the validity of ordinances of a city of the fourth class and one of said ordinances was held invalid by the trial court under Supreme Court, en banc, decision in Hays v. City of Poplar Bluff (1915), 263 Mo. 516, 173 S.W. 676, L.R.A.1915D, 595, which held an ordinance invalid for constitutional reasons under which is now Article III, Sec. 40, which prohibits the passing of any local or special law. The holding of Ordinance of (sic) 1570 invalid under the above decision raised a constitutional question and jurisdiction is in the Supreme Court.”

Respondents have not questioned our jurisdiction, but if it appears that jurisdiction is not here vested under the provisions of Article V, § 3, of the Constitution of Missouri, V.A.M.S., it is our duty, of our own motion, to transfer the appeal to the proper court of appeals. Section 477.080 RSMo 1959, V.A.M.S.

Briefly stated, the admitted facts material to the question of our jurisdiction show that respondents sought a permit to construct an addition to an existing building owned by them and situate on Lot 10, which addition, among other purposes, was to be used by respondents for the slaughter of animals for food. The appellants refused to issue the permit on grounds to the extent here material: (1) that the permit sought by respondents was violative of the provisions of Paragraph 2 of the city’s ordinance No. 1570, which requires as a condition precedent to the issuance of a building permit in the defined residential district in which Lot No. 10 is situate that the written consent of a three-fourths majority of all property owners in said district be first obtained and submitted to the board of aldermen, with which condition respondents failed and refused to comply; and (2) that city’s ordinance No. 79 made it a misdemeanor for any person to establish or maintain a regular slaughter house within the corporate limits of the city.

In their petition for mandamus, respondents alleged, as to issues material to determination of our jurisdiction, that the provisions of Par. 2 of ordinance No. 1570 constituted an unlawful delegation of the powers granted by law to the city and was void; and that ordinance No. 79, for the same reason, was beyond the power of the city to enact and was void. Following issuance by the trial court of its alternative writ of mandamus, appellants filed answer in which they alleged, as to said issues, that Par. 2 of ordinance No. 1570 was a valid utilization of the inherent police power of the city to regulate the reasonable location of business houses in residential areas; and that ordinance No. 79 was a valid exercise of both the inherent and statutory police power of the city. Respondents’ reply reaffirmed the contentions set forth in their petition.

Upon trial of these issues the trial court found that Par. 2 of ordinance No. 1570 was invalid under the holding of this court in the case of Hays v. City of Poplar Bluff, 263 Mo. 516, 173 S.W. 676, L.R.A.1915D, 595; and that ordinance No. 79 was invalid under the holding of the St. Louis Court of Appeals in the case of State ex rel. Jack Frost Abattoirs, Inc. v. Steinbach, 274 S.W. 2d 588. Judgment was accordingly rendered making the writ peremptory and ordering issuance of the permit sought by respondents.

Appellants’ motion for new trial asserted, as to these issues, that the court erred in holding Par. 2 of ordinance No. 1570 invalid for reasons:

“(a) That it was within the legislative powers delegated to the city by statute or charter.
“(b) It does not violate the fundamental principal inherent in our constitutional system, in that when a municipality seeks to regulate the rights of property, it must do so by rule applicable to all and cannot make the enjoyment of the same depend upon the arbitrary will or caprice of the municipal legislature.
“(c) That the requirements of Ordinance 1570, requiring ¾ consent of the property owners does not amount to a delegation of legislative power of the city to property owners in the area.”

The motion for new trial also asserted that the trial court further erred in holding ordinance No. 79 invalid because, appellants contended, the city did have statutory and inherent power to regulate, prohibit, suppress and abate slaughter houses.

At no place in the pleadings or judgment of the court is the constitutionality or unconstitutionality of either of these ordinances mentioned or ruled. Respondents’ brief on appeal makes no charge of unconstitutionality of either ordinance or any portion thereof. Appellants’ brief on appeal asserts only that the court erred in holding ordinance No. 1570 invalid, saying “that it does not violate the fundamental principle inherent in our constitutional system in that when a municipality seeks to regulate the rights of property, it must do so by rule applicable to all and cannot make the enjoyment of the same depend upon the arbitrary will or caprice of the municipal legislature.”

Further discussion of the grounds asserted by appellants as vesting jurisdiction of the issues presented on this appeal is unnecessary. No contention was pleaded or asserted nor did the court rule the issues above discussed upon ground of their constitutionality or unconstitutionality. No question involving construction of the constitution of either the United States or the State of Missouri is presented. This court is, therefore, without jurisdiction of this appeal under Article V, § 3, of the Constitution of Missouri defining the constitutional limits of our jurisdiction. See Phillips Pipe Line Company v. Brandstetter, 363 Mo. 904, 254 S.W.2d 636; State ex rel. Barnett v. Sappington, Mo., 260 S.W.2d 669, 670-672; Cohen v. Ennis, Mo., 308 S.W.2d 669, 672; Community Fire Protection District of St. Louis County v. Board of Education of Pattonville Consolidated School District R-3, Mo., 312 S.W.2d 75, 76-77. The case cited by appellants, Hays v. City of Poplar Bluff, 263 Mo. 516, 173 S.W. 676, L.R.A.1915D, 595, in no wise supports appellants’ contention that the decision therein rendered vests jurisdiction of this appeal in this court.

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

All concur.