author: HOUSER, Commissioner.

text:
    James HUNT, Appellant, v. LACLEDE GAS COMPANY, a Corporation, Respondent.
    No. 51279.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Motion for Rehearing or for Transfer to Court En Bane Denied Sept. 12, 1966.

      James P. Hayes, Hayes & Hayes, St. Louis, William L. Mason, Jr., Galena, for appellant.
    M. E. Stokes, F. Douglas O’Leary, Mo-ser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   HOUSER, Commissioner.

A trial jury awarded James Hunt $60,-000 in his action against Laclede Gas Company for damages for personal injuries sustained when an explosion of gas enveloped him in fire while sealing a joint inside a newly installed S-foot sewer pipe. Laclede’s post-trial motion for judgment in accordance with its motions for a directed verdict was sustained. Plaintiff has appealed, claiming that he made a case for the jury on both theories submitted —Laclede’s failure to control its gas mains and pipes and its failure to warn plaintiff of the accumulation of gas.

Plaintiff was an employee of Bangert Brothers, a road construction firm which had a contract with State Highway Commission to widen Olive Street Road in St. Louis County. The work involved cutting a trench 8 to 10 feet wide and 10 to 16 feet deep and laying a 60-inch in diameter concrete sewer pipe designed to carry surface water. The trench was cut by Bangert employees, operating a Bangert-owned trenching machine known as a back hoe. Sections of concrete pipe 7½ feet in length would be lowered by machinery into the trench and the Bangert sewer crew, including plaintiff, would fit together the ends of the sections and seal the joints from the inside with a nonflammable compound known as Sewertite. As sections were installed they would be covered with sand, gravel and dirt by back-filling machinery. This was a continuing operation, progressing from west to east. A 2-inch gas main owned, operated and maintained by Laclede, buried 2 or 3 feet below the surface of the ground, ran roughly parallel to the pavement on the north side of the 7700 block of Olive Street Road, an east-west trafficway. The south edge of the trench was cut 2 or 3 feet north of the gas main. Six ¾-inch steel service lines ran from the 2-inch gas main to the premises of gas users located on the north side of the road. These service lines crossed the line of progress of the trench. The location of the underground gas mains, including service lines, water mains and underground electrical conduits, was shown on utility sheets supplied by the highway department, which were included in the plan of the project. Stakes and 2-foot stabs bearing the word GAS painted in red were driven into the ground to indicate the location of the service lines. Moving or changing the gas lines to accommodate construction was Laclede’s function; Bangert had nothing to do with their relocation. On the date of the accident and for some time prior thereto employees of Laclede were working on this Olive Street job. Laclede’s employees would go ahead of Bangert’s crew up and down the road and “open” or dig out the gas lines, plug or cut off the gas being supplied to a particular address and change or relocate the lines, all as needed in connection with the cutting of the trench and the installation of the water pipeline. After the sewer pipe was installed Laclede would reconnect the service line. Laclede does this when gas lines are in the path of construction and obstruct the work. The gas in a service line having a curb cock can be cut off by the simple mechanical procedure of closing the cock with a key. If there was no curb cock Laclede would take the cap off the tap hole and put a pin in the tap hole.

On the day in question Bangert’s workmen commenced at the east end of the lot at number 7733 Olive Street Road and worked east in front of two residences located at 7721 and 7719. At the latter address Bangert employees encountered a tree stump, an obstruction that had to be dug out. Laclede employees were near the excavation and in the vicinity of the stump about 30 minutes before the explosion occurred. The whole operation of attempting to remove the stump, however, was done by Bangert employees; Laclede personnel were not present. There is no evidence that Laclede employees were informed or consulted with reference to the removal of the stump. There is no evidence that Bangert requested Laclede to shut off the flow of gas in the main west of the stump. Bangert employees, while digging around and prying on the stump, severed a Laclede gas pipe which was either a 2-inch main or a service line. A hissing noise (escaping gas) was heard, Bangert’s assistant superintendent, Mr. Rauh, was present. When the pipe was severed Mr. Rauh went looking for Laclede personnel to report the break in the gas pipe. The break was reported to Laclede’s office by telephone. A leak crew was immediately dispatched to the scene by mobile radio. A second leak crew in the general vicinity heard the broadcast and responded to the call. There is nothing to indicate how long after the break occurred the leak crews arrived at the scene. Mr. Rauh told the Laclede people that the gas line was broken and went with them to point out the break. Plaintiff was working alone inside the 5-foot sewer pipe at the bottom of the trench, 20 feet or more from the stump, at the time the gas line was severed. He was applying sealing compound to the last joint, 7 or 8 feet from the open end of the pipe. In his position he was not visible to persons on ground level. Neither plaintiff’s superior, Mr. Rauh, nor any employee of La-clede knew that plaintiff was working there. There was a solid bank of earth between plaintiff and the stump. Several feet of unexcavated earth separated the east end of the trench from the site of the stump farther east. Plaintiff did not know that the gas line had been severed. No one warned him to leave the area. Although Mr. Rauh testified that he heard no order to clear the area and no warning to get people away from the broken pipe where the gas was escaping, it is conceded on this appeal that after Laclede’s leak crew arrived at the scene and saw the situation and heard the gas escaping from the broken main, one of the men in charge of Laclede’s crew said to Bangert’s foreman that he had better get their folks, or people, or the men, “out of here,”' “out of the vicinity or area.” Plaintiff,, who was working 7 or 8 feet inside the pipe,, smelled gas. Just as he smelled gas he heard a noise he described as sounding-like “Whoo”; described by another as-“a small rumble.” The whole pipe “from one end to the other” was completely filled, with fire “just like sitting in a furnace.” Plaintiff was severely burned. The explosion occurred 5 to 7 minutes after the-Laclede crews arrived on the scene. Plaintiff had not previously smelled gas on the-job.

There were no manual valves in the-area by which the flow of gas in the-main could have been stopped prior to the removal of the stump. It is not difficult to install such a valve. Such a valve, if in existence, could have been readily closed. Closing the valve in a main line would have effected an “outage” or interruption of service to all customers between the valve and the end of the line. To stop the flow of gas on a temporary basis, in case of a clean break in the main, a “climax plug” is inserted in the open end. The insertion of a climax plug is a time-consuming operation. There was no time to stop the flow of gas with a climax plug after the main was broken. Methods of effecting a permanent stoppage include placing a valve in the line, or a stopper tee. Where there is a rough break or a flattening or twisting of the pipe a cut is made back where the pipe is round. It takes 1½ hours to insert a stopper tee.

Plaintiff’s petition charged that Laclede negligently and carelessly permitted and allowed gas to escape from its main “by reason of the dangerous and defective condition” of its gas main. Plaintiff’s verdict-directing Instruction No. 1 submitted breach of a duty on Laclede to exercise a high degree of care to prevent the escape of gas from its mains by negligently failing “to control” its gas mains and pipes. The submission was general. It did not specify in what manner Laclede failed to “control” its gas mains and pipes. Plaintiff does not contend that La-clede improperly constructed or maintained its underground mains and pipes, or that they had deteriorated and become rusty or otherwise incapable of containing the gas because of structural defects; or that Laclede was negligent in failing to turn off the gas or to repair after the main was broken. It is conceded that Laclede could not have done the latter; there was not sufficient time. Plaintiff in his brief and oral argument relies solely upon Laclede’s failure to take preventive steps before the gas main was broken, not upon failure to take curative action thereafter. Plaintiff claims on this appeal that Laclede should have turned off the gas at some point west of the stump before Bangert’s employees commenced to remove the stump; specifically, that Laclede should have controlled its gas “by shutting off the gas to and in such mains and pipes before such stump was * * * removed * * *, and thus and thereby have prevented the escape of gas from said main and pipes when they were broken in the course of such removal, but defendant negligently failed to use or provide such means and thereby prevent such escape.” This raises the question whether there was a duty, under all of the circumstances in evidence, to shut off all gas flowing through the main before Bangert’s men commenced to remove the stump, so as to make the area completely safe. We do not think so. There is no evidence that the removal of the stump, if done with care, necessarily would result in breakage of the main. Bangert’s employees were informed as to the existence and location of the gas main and pipes. Utility sheets were available to them. The lines were staked out. Markers were shown by plaintiff’s evidence to have been near the stump, indicating the location of the lines. Laclede had the right to assume that Bangert would remove the stump in a nonnegligent manner, and had no duty to anticipate that Bangert’s employees would remove the stump in a careless and negligent manner. This principle, referred to in Highfill v. Brown, Mo.Sup., 340 S.W.2d 656 [9], was recently applied in the cognate factual situation presented in Bakovich v. Peoples Gas Light and Coke Co., 45 Ill.App.2d 182, 195 N.E.2d 260, wherein the court said, l. c. 264, 265: “No one is bound to anticipate the negligence of another. * * * [Defendant] was not bound to anticipate the negligence of the shovel operator.” It was not the duty or function of Laclede to attempt to control the method and manner by which Bangert undertook to remove this obstruction. Bangert’s employees were not under Laclede’s control. “It would be difficult for the various utilities engaged in public projects to supervise the work of one another.” Bakovich, supra, 195 N.E.2d, l. c. 263 [2], It was the act of Bangert’s employees — the manner in which they dug around and pried on the stump — that caused the breakage of the main and pipes. If the method employed to remove the stump constituted negligence it was not the duty of Laclede to protect plaintiff in advance from the prospective negligence of his employer, Bangert. As stated in Bakovich, supra, 195 N.E.2d, l. c. 263: “Defendant owed plaintiff no duty to protect him from the negligence of his employer.” Laclede had not been requested by Bangert to reroute the gas main or to shut off the service line. It would be unreasonable under these circumstances to impose upon Laclede the duty to volunteer to shut off service to all the customers on the main by cutting off the gas at some point west of the stump, on the unlikely possibility that the main might be broken in removing the stump. Shutting off the gas would have resulted in an outage by which all customers on the main east of that point would have been deprived of gas service. The rights of the public are to be weighed against the likelihood of the dangbr. The lack of wisdom involved in adopting such a principle is well illustrated by the following quotation from Alesi v. City of New York, 9 A.D.2d 236, 192 N.Y.S.2d 929, 933, aff. 12 N.Y.2d 703, 233 N.Y.S.2d 481, 185 N.E.2d 916: “Since the cables themselves were adequately safeguarded in the physical sense, was there then an additional duty on the part of any of defendants to take further steps, assuming that they had become aware of construction jobs in the vicinity of the cables? It has been urged by plaintiff that as soon as Edison learned that workmen were nearby it should have de-energized or rerouted its cables to render the area completely safe. A duty to take precautions which are completely disproportionate to the dangers presented cannot reasonably be imposed. To de-energize all the cables on East 38th Street simultaneously would have deprived large areas of the city of electrical power. There would have been no light, no transportation, no refrigeration, no elevator service, and all would be affected — public and private services alike. If this had to be done for each excavation in the city streets adjacent to an Edison electrical installation, the city would virtually become paralyzed, for thousands of such excavations are made every year. There was no duty under such circumstances to de-energize the cables. (Nicholas v. New York State Electrical & Gas Corp., 283 App.Div. 291, 127 N.Y.S.2d 490, affirmed 308 N.Y. 930, 127 N.E.2d 84).”

We conclude that Laclede had no duty to shut off the gas before the stump was removed. Laclede’s failure to then shut off the gas, according to plaintiff, was the “failure to control” referred to in Instruction No. 1. It was error to submit the case to the jury on this theory.

This leaves for decision the question of Laclede’s alleged failure to warn plaintiff of the accumulation of gas and to leave the area. Plaintiff contends that Laclede’s employees, having arrived at the scene seven minutes prior to the explosion, were cognizant of the dangerous situation, heard the gas escaping, were alerted to the immediate danger of explosion, and had a duty in the exercise of the high degree of care imposed upon gas distributors to warn persons in the vicinity to immediately vacate the area; that a warning could have been given in time and if given would have been effective to prevent plaintiff’s injury, but that Laclede failed to warn plaintiff.

Was there a duty on Laclede to bring personal notice to plaintiff that the gas pipe had been severed and to warn him individually to leave the area? The following factors enter into the determination : Laclede took no part in the stump removal operation during which the gas pipe was broken and had no control over or right to control the acts and conduct of Bangert’s employees. The gas pipe was broken by the act or negligence of plaintiff’s fellow employees who were working for Bángert, and not by Laclede. Bangert’s supervisory personnel were present when the break occurred. They knew that the gas pipe was broken and that gas was escaping. They notified Laclede of the occurrence of the break. It is common knowledge that natural gas is inflammable and explosive. A member of Laclede’s leak crew, summoned to the scene, promptly cautioned plaintiff’s superior, a Bangert foreman, that he had better get his men out of the vicinity. Plaintiff was not visible to persons standing on ground level. Laclede did not know that plaintiff was in the sewer pipe, although Laclede may he presumed to have known Bangert’s modus operandi, having done work in connection with the project for some months previously. No notice or warning was given plaintiff of the existence of the danger, either by Bangert or Laclede.

We are of the opinion that plaintiff did not make a submissible case on failure to warn. It is our conclusion that where work is being done in a public street by employees of an independent contractor and an underground gas line owned and controlled by a gas distributing company is ruptured as a result of which natural gas in dangerous quantities is released there is a duty on the gas company to warn the employees of the independent contractor of the danger, but that this duty is satisfied where the supervisory personnel of the independent contractor have personal knowledge of the break in the line and of the escape of the gas and are timely warned by responsible employees of the gas company to clear their employees out of the area.

There is a well-established rule that “Warning to the superiors in employment of a person is warning to that person, the employment relation permitting a reasonable assumption that such notice will be communicated in the ordinary course to all employees on the work.” Shearman and Redfield on Negligence, supra, Vol. 1, p. 66, § 26. This rule is based upon the principle that an employer has an affirmative duty to warn and instruct his employees concerning the dangers of their work. 35 Am.Jur. Master and Servant § 145; Shearman and Redfield on Negligence, Rev.ed. (1941), § 213; 56 C.J.S. Master and Servant § 287; Levesque v. Fraser Paper Limited, 159 Me. 131, 189 A.2d 375, 379. Since each employee of an independent contractor is under the immediate direction and supervision of his own employer, it has been generally held in cases where the owner of land employs an independent contractor to perform work on the premises and there is a hazardous condition existing in the employment area, that notice to the independent contractor of the dangerous condition is notice to each of his employees and if notice of the condition is given to the independent contractor “the employer of the contractor has performed his duty so far as it applies to the employees of the contractor.” Schwarz v. General Electric Realty Corp., 163 Ohio St. 354, 126 N.E.2d 906, 910. This is based upon the duty of the independent contractor to transmit such notice or warning to his individual employees. The employer of the independent contractor can reasonably expect that the latter will adopt necessary safety measures for his employees after having been warned of the danger, on the theory that “The risk reasonably to be perceived defines the duty to be obeyed.” Storm v. New York Telephone Co., 270 N.Y. 103, 200 N.E. 659, 661. Accordingly, in such cases, the independent contractor is liable for negligently failing to notify and warn his employee and the employer of the independent contractor is absolved of liability to the employee injured by exposure to the danger. In Storm, supra, a lineman was killed by the falling of a defective telephone pole. Notice of its unsafe condition had been given his employer, who was replacing defective poles for the telephone company. It was held that liability on the part of the telephone company could not be predicated on its failure to give notice to the lineman personally, the court saying, “To require the defendant to bring notice home to every employee * * * who might possibly be involved on this job on penalty of otherwise failing in duty would result in imposing a standard of duty exceeding reasonable bounds * * * Any duty on the part of defendants to warn * * * would ordinarily be discharged when defendant notified all supervisory officials of the decedent.” This rule was applied in Gulf Oil Corporation v. Bivins, 5 Cir., 276 F.2d 753, an action by an employee of an independent contractor hired by Gulf’s lessee to rework an oil well for injuries sustained in a gas explosion while working on the well. Gulf and the lessee warned the chief of plaintiff’s crew of the danger but the warning was not communicated to plaintiff. Quoting from Storm, supra, the court of appeals held that the owner or occupier of property has a duty to warn employees of an independent contractor who has undertaken to do work on the property, of dangers that are hidden on or inhere in that property, and that this duty is discharged if those in charge of the work for the independent contractor are given warning or have knowledge of the danger. In Schwarz, supra, plaintiff was an employee of a construction contractor unloading structural steel on defendant’s premises beneath high tension wires. Defendant was not in control of the work area and did not participate in the work. Defendant gave notice to the contractor of the potential danger of its crane touching electric wires. The warning was not brought to plaintiff’s attention. Plaintiff was injured when the crane touched the wires. Recovery was denied under the rule that under these circumstances notice to the independent contractor of the hazards within the employment area is notice to his employees, and that if notice is given to the former the employer of the independent contractor has performed his duty to the latter. The court cited, among other cases, Grace v. Henry Disston & Sons, 369 Pa. 265, 85 A.2d 118 and Valles v. Peoples-Pittsburgh Trust Co., 339 Pa. 33, 13 A.2d 19. For other applications of the rule see Hotel Operating Co. v. Saunders’ Adm’r, 283 Ky. 345, 141 S.W.2d 260; Whitlow v. Seaboard Air Line Railroad Co., 4 Cir., 222 F.2d 57; Florida Power & Light Co. v. Robinson, Fla.Sup., 68 So.2d 406; American Mut. Liability Ins. Co. of Boston v. Chain Belt Co., 224 Wis. 155, 271 N.W. 828, and Levesque v. Fraser Paper Limited (1963) 159 Me. 131, 189 A.2d 375.

Logically the rule is as fully applicable to situations arising in connection with work done by an independent contractor on a public works project as to those involving work performed on private premises. It has been so applied. In Bakovich v. Peoples Gas Light and Coke Co., 45 Ill.App.2d 182, 195 N.E.2d 260, Bakovich, an employee of the Corbett Company, a contractor excavating for an expressway, was injured when another employee of Corbett, while operating a power shovel, broke into a gas main of defendant company. Corbett’s superintendent, familiar with the defendant’s underground system, knew of the existence and location of a certain 6-inch main. He did not tell Corbett’s foreman Curry or the shovel operator Hallberg of the existence of the main. Plaintiff was parked nearby in a truck. The shovel broke the main, an explosion and fire occurred, and plaintiff was hospitalized. The court said, 195 N.E.2d, l.c. 263 [2] : “It was the duty of Corbett to warn Curry and Hallberg of the existence of these mains and to protect plaintiff from injury. No such duty devolved upon defendant. * * * The purpose of warning is to apprise a party of the existence of a danger of which he is not aware and thus to enable him to protect himself against it. The Corbett Company and its superintendent knew the location of defendant’s mains. There is no duty to warn against risks which are known and obvious.” In Alesi v. City of New York, 9 A.D.2d 236, 192 N.Y.S.2d 929, affirmed 12 N.Y.2d 703, 185 N.E.2d 916, Alesi, an employee of a subway company (Empire) engaged in constructing new conduits in mid-Manhattan to hold telephone cables was working in a ditch on the sidewall of which were exposed 16 concrete ducts encasing defendant Consolidated Edison’s cables carrying 11,000 volts of electricity Alesi was killed when his pneumatic jackhammer pierced the concrete wall and penetrated to the high-tension electric cables inside. Empire’s engineers, fellow employees of Alesi, were inforniéd of the danger. It was charged that Edison failed to give warning of the dangerous condition. The court said, 192 N.Y.S.2d, l.c. 934: “Nor can liability be predicated upon the failure of defendants to give warning of the alleged dangerous condition to plaintiff’s intestate. The testimony is clear that the engineers and foreman of Empire [deceased’s employer] were fully aware of the presence of dangerous high-tension cables in the adjoining duct bank. Hence, the imparting of such information to Empire would have given them no more than what they already knew.”

Bangert’s assistant superintendent and foreman had full knowledge of the break in the main and that gas was escaping. To them the danger to persons in the area was obvious and apparent. Because of the commonly known propensities of natural gas to burn and ignite, knowledge by Bangert of the escape of the gas was knowledge of the danger existing in the area in which it was being discharged. Bangert’s men notified Laclede of the break in the main and that gas was escaping. There was no duty on Laclede to turn around and notify Bangert of these facts, of which Bangert as Laclede’s informant already had knowledge. There is no duty to warn one of a condition of which he is already informed. The duty to warn Bang-ert’s employees personally and individually devolved upon Bangert. Plaintiff, who was working under the surface of the ground, out of sight and sound, and oblivious of what had happened, was entitled to assume that his superiors in the Bangert organization would inform him of dangers of which they were aware, arising in the course of his employment. Laclede had the right reasonably to assume that Bangert’s foreman would take the necessary precautions for the protection of its employees, and inform and warn any of them who might be in danger. There was no duty on Laclede to conduct a search for all employees of Bangert who might be working in concealed places unknown to Laclede, and bring personal notice to each such individual employee. If this standard of care were required not only would Laclede be obliged to place employees at every job site in the city where any possibility of disruption of its mains and pipes might exist, but also would be required at its peril, when a disruption occurred, to seek out and warn every employee of every independent contractor, regardless of his superior’s knowledge of the danger and regardless of his location —even if underground, out of sight, or his presence was not readily or reasonably discernible. The law does not exact an impractical, unreasonable and unduly burdensome degree of care. Alesi, supra, wherein the court said, 192 N.Y.S.2d, l. c. 935: “In view of the hundreds or even thousands of excavations which were in some stage of progress throughout the city at that time, there was no obligation on the part of defendants to station persons on the sites solely to give warning to workmen. * * * To require the constant attendance of inspectors at the site of each excavation when the supervisors were already aware of the conditions would be unreasonable. ‘ * * * The law ought not to, and does not, exact an unreasonable amount of care from anyone.’ (Schmeer v. Gas Light Co. of Syracuse, 147 N.Y. 529, at page 541, 42 N.E. 202, at page 205, 30 L.R.A. 653). See also Dolan v. City of New York, 5 A.D.2d 300, 171 N.Y.S.2d 724.”

The trial court properly set aside the verdict and entered judgment for Laclede in accordance with its motion for a directed verdict. The judgment is affirmed.

HIGGINS, C., concurs.

WELBORN, C., not sitting.

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: HYDE, Judge.

license: Public Domain

text:
    John E. MARTIN, Margaret Struckel and Thomas E. Roche, Appellants, v. Gloria M. O’CONNOR, as Executrix of the Purported Last Will and Testament of James M. Roche and Frances E. O’Connor, Respondents.
    No. 51634.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 12, 1966.
    Lawrence C. Sumner, Schneider, Sumner, Hanlon & Boyle, Clayton, for appellants.
    James B. Herd and Deeba, DeStefano, Sauter & Herd, St. Louis, for respondents.
   HYDE, Judge.

Action to contest will of James M. Roche, deceased, on grounds of lack of mental capacity and undue influence. The jury found the Will valid and contestants have appealed from the judgment entered. We have jurisdiction because the Will disposed of real estate. Switzer v. Switzer, Mo.Sup., 373 S.W.2d 930.

Proponents have filed a motion to dismiss for failure to comply with the rules. Contestants’ failure to comply with most of the requirements of Rule 83.05, V.A.M.R. deserves dismissal but it is the policy of this court to decide cases on the merits when reasonably possible. Therefore, we overrule the motion to dismiss Gthis appeal.

Contestants’ brief raises only procedural errors so a brief statement of facts will be sufficient. Contestants’ Points IV and V, that the verdict and judgment “was against the greater weight of the credible evidence” and “was against the evidence as to undue influence,” raise nothing for appellate review. See cases cited West’s Missouri Digest, Appeal and Error,. «=>1003; see also Roberts v. Emerson Electric Mfg. Co., Mo.Sup., 338 S.W.2d 62, 68. In the Roberts case, we pointed out: “It is only when there is complete absence of probative facts to support a verdict that we interfere.” As shown by our statement of facts, there was substantial evidence to support the verdict and judgment establishing the Will.

Contestants are the niece and two nephews of testator; proponents are a niece of testator and her mother, a sister-in-law of testator. Testator died at the age of 72 on October 23, 1963; his wife died November 10, 1961. Testator had been a Missouri Pacific Railroad clerk and had retired. He bought a duplex in 1955 and at his invitation the O’Connor family moved into the building paying him rent for their half. Steve O’Connor was the brother of testator’s wife. Mrs. O’Con-nor and her daughter Gloria helped testator take care of his apartment after his wife died until a housekeeper was employed in January 1962.

Testator had made a will August 25, 1962, leaving his property to contestant John Martin, his nephew, and Steve O’Connor, one-half each, providing in the event Steve O’Connor died before testator, contestant Thomas Roche would take his half. There was no provision for contestant Margaret Struckel in that will. John Martin took testator to O’Fallon, Missouri, where this will was drawn by an attorney who represented the company Martin worked for; and who had also represented Martin. This attorney testified at the trial and said testator “appeared to be of sound mind” at that time and that he “had no difficulty understanding his wishes, insofar as what he wanted in his will.”

Steve O’Connor died in November 1962 and testator made the will herein involved December 5, 1962. Proponents’ evidence was that soon after the death of Steve O’Connor, testator told Gloria he wanted to change his will and asked her to get a lawyer for him. She had worked as a secretary at St. Louis University so she asked a law professor there to get an attorney for testator. The attorney thus contacted came to see testator, who talked to him out of the presence of Gloria and her mother. When he had the will ready, they went with him to the attorney’s office but stayed outside the room where testator discussed it with the attorney who prepared it and his partners who. witnessed it. These witnesses testified that testator was of sound mind as did testator’s housekeeper, who was called as a witness by contestants, and a doctor who treated him in June 1962 and January 1963. Contestants had evidence to the contrary by a doctor who treated him in June 1962 and May 1963 and by two doctors whose views were based on hypothetical questions. On June 24, 1963, the Probate Court of the City of St. Louis made a finding that testator “is incompetent by reason of senility” on petition of John Martin who was appointed guardian. Testator had been admitted to the Missouri Pacific Hospital prior to that time but was discharged on July 14th. We hold that proponents had substantial evidence to show mental capacity of testator.

As to undue influence, an issue on which contestants had the burden of proof (57 Am.Jur. 278, Wills, Sec. 386; 94 C.J.S. Wills § 237, p. 1085; McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145), there was testimony that testator was “hard headed” and that even his wife could not make him do anything to which he was opposed. Proponents’ evidence which the jury evidently believed explained that Gloria O’Connor arranged for a lawyer, she did not know, to contact testator at his request; and that testator directed the lawyer concerning the provisions of the will without any participation by Gloria or her mother. Although close friendly relations existed between testator and the O’Connors, the only activity shown concerning his financial affairs was that at his request Gloria prepared checks for him to pay his bills in accordance with his instructions to her. “Defendants did not have the burden of disproving undue influence. They were entitled to a determination of the sufficiency of plaintiff’s evidence whether they adduced evidence or not as the credibility of plaintiff’s witnesses and the weight of their testimony was for the trier of the facts.” Early v. Koelbel, Mo.Sup., 273 S.W.2d 312, 317. Contestants’ evidence was circumstantial and amounted to little more than suspicion, speculation and conjecture from opportunity to exercise undue influence.

Contestants allege error (Point I) in permitting witness Sauter to testify “decedent was competent to sign that will,” relying on Fields v. Luck, Mo.Sup., 44 S.W.2d 18, 21, and Gilmore v. Atwell, Mo.Sup., 283 S.W.2d 636, 639, and cases therein cited. In those cases improper questions were asked calling for the opinion of the witness on a question of law. In this case, proper questions were asked but the answer was not responsive and was an improper answer to the questions asked, as shown by the record, as follows: “Q I ask you then, sir, if you have an opinion, based solely upon your observation of the deceased, Mr. Roche, during the execution of this document, that is, Proponents’ Exhibit No. 1, concerning the soundness of Mr. Roche’s mind at the time of the execution of that document?

“Mr. Sumner: Your Honor, please, I object to that on the grounds it is irrelevant and immaterial, and I object to the form of the question as invading the province of the jury. '
“The Court: Overruled.
“A Yes, I do have an opinion. Q (By Mr. Herd) Will you state what that opinion is? A I have the opinion that he was competent to sign that will.
“Mr. Herd: I have no further questions.”

However, there was no motion to strike and contestants may not now complain.. Other witnesses asked the same questions did answer properly that in their opinion testator was of sound mind and such testimony is authorized. See cases cited West’s Missouri Digest, Evidence, ⅜=501 (3); 20 Am.Jur. 713, Evidence, Secs. 852-853; 32 C.J.S. Evidence, Sec. 546(32), p. 182. We hold there was no prejudicial error of the court in connection with the testimony of this witness.

Contestants next complain (Point II) of Instructions 3, 5, 8 and 9 saying: “These instructions all call for the Jury to determine that the decedent was of ‘sound and disposing mind’ and led them to believe that once having found that decedent was of sound and disposing mind he automatically contained and possessed the testamentary capacity to make a valid will. * * * The question of decedent’s disposing memory was also a factor to be found by the Jury.” Contestants cite Turner v. Anderson, 236 Mo. 523, 139 S.W. 180; Bensberg v. Washington University, 251 Mo. 641, 158 S.W. 330, and Sturm v. Routh, Mo.Sup., 373 S.W.2d 922, 928. We note that Instruction 4 did require a verdict for contestants if the jury found testator “was not of sound and disposing mind and memory.” Furthermore, Instruction 5 in defining “sound and disposing mind” included the requirements “mind enough to understand the ordinary affairs of life, the kind and extent of his property, who are the natural objects of his bounty, and that he is giving his property to the persons mentioned in his Will.” These are essential elements stated as "required for “mind and memory” in the cases cited; and if contestants desired a more detailed statement, they should have offered an instruction doing so. We hold there was no prejudicial error in giving these instructions.

Contestants’ Point III claims error in the verdict forms submitted saying they required “finding by the Jury in favor of the proponents or else in favor of the contestants” instead of “of the validity or invalidity of the paper writing submitted to them as the Will of the testator.” We find no merit in this claim and note that the verdict of the jury was as follows : “We, the undersigned jurors in the above-entitled cause, find the issues in favor of the Defendants-Proponents and find that the instrument in writing offered in evidence dated the 5th day of December, 1962, purporting to be the Last Will and Testament of James M. Roche, deceased, is the Last Will and Testament of James M. Roche, deceased.”

Contestants’ final Point VI is that it was improper to try this case by a jury because Sec. 473.083, RSMo V.A.M. S., provides in Sec. 1: “ * * * an issue shall be made of whether the writing produced is the will of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court.” They say the record does not show a request for a jury by either party so “an application of this statute requires that the jury verdict was of no effect, and therefore should be held for naught.” However, since all parties went ahead with a trial by a jury without objection, a trial by the court was waived.

The judgment is affirmed.

All concur.


author: HIGGINS, Commissioner.

text:
    Edwin A. WALKER, Appellant, v. The KANSAS CITY STAR COMPANY, a corporation, and Associated Press, Respondents.
    No. 51705.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Motion for Rehearng and to Transfer to Court En Banc Denied Sept. 12, 1966.

      James W. Jeans, Jeans & Boudoures, St. Louis, Clyde J. Watts, Oklahoma City, Okl., for appellant.
    David R. Hardy, Charles L. Bacon, John T. Martin, Robert B. Olsen, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City of counsel, for respondent.
    J. D. James, David R. Odegard, Houts, James, McCanse & Larison, Kansas City, for defendant-respondent Associated Press.
   HIGGINS, Commissioner.

Edwin A. Walker sued The Kansas City Star and Associated Press for $500,000 actual and $500,000 punitive damages. The trial court sustained defendants’ motions to dismiss.

Plaintiff’s petition charged that “defendants caused to be published and did publish” in the October 1,1962, edition of the Kansas City Star and the October 1 and 2, 1962, editions of the Kansas City Times, the following articles (from the transcript) :

“TROOPS INTO RIOTING AT OLE MISS.
NATIONAL GUARDSMEN ARRIVE AT CAMPUS TO QUELL VIOLENCE IN WHICH FRENCH NEWSMAN IS SLAIN. — OUTBREAK OCCURS DESPITE THE PRESIDENT’S PLEA FOR PEACE.
MANY SHOTS FIRED. — OFFICERS BEAT OFF STUDENT CHARGES.— ONE LED BY GENERAL WALKER. —SEVERAL HURT IN WILD DISORDER.
Bulletin.
Washington (AP) — Army Headquarters received word from Mississippi early today that about 200 persons have joined the rioting mob and that the situation on the University of Mississippi campus at Oxford was ‘very bad.’ Automatic weapons fire was being aimed at the registration building.
(By The Star’s Leased Wire Services.) Oxford, Miss. — A reporter was killed and at least nine other persons injured — four by shotgun blasts — in rioting on the University of Mississippi campus last night after James Meredith, Negro, arrived to enroll.
National guardsmen have arrived at the Ole Miss campus to quell the rioting.
Two battalions of military police left Memphis, Tenn. by truck convoy early today for Oxford.
At the same time, the Army announced that 1,100 combat troops from Ft. Ben-ning, Ga., had been ordered to go directly to Oxford.
Dead was Paul Guihard, a correspondent for Agence French Presse and The London Daily Sketch.
He was first reported to have died of a heart attack in the rioting, but later accounts were that his body was found beside a women’s dormitory with a gunshot wound in the back.
REPORTER IS SHOT.
Shotgun blasts from the mob wounded three marshals and an Associated Press reporter, Bill Crider. Crider suffered a slight wound in the back. ■
One of the marshals was in serious condition from a shotgun blast which struck him in the neck.
Four other marshals and one student were injured by clubs, stones and broken bottles as the riot continued.
Five highway patrolmen also were reported injured.
Some adults mixed with the students, protesting the admittance of the Negro to the all white university.
Who fired the shots was not known, but the marshals said they had done no shooting. They used tear gas against the mob, but it kept milling around the campus, with no sign of going home.
The rioting erupted after massive federal forces overpowered state resistance and moved Meredith on campus. Students and other youths rioted in waves.
The rampaging mob of white youths charged a line of federal marshals twice, despite Gov. Ross Barnett’s indirect admission that he was giving up physical resistance in Mississippi’s battle to keep the 29-year-old Negro out of Ole Miss.
The 64-year-old governor, who swore he would go to jail rather than see Meredith in Ole Miss, said in Jackson that Mississippi was ‘completely’ surronded’ (sic) and ‘physically overpowered.’
“The federal marshals blasted back at the rioting youths with tear gas — stopping two charges and breaking up a rampage of vandalism.
WALKER IS LEADER
Former Maj. Gen. Edwin Walker led one of the charges.
Flying bottles, stones and bricks left scores bleeding and hurt.
A marshal clubbed a white student entering the dormitory where Meredith was housed. Students hooted: ‘One Nigger, one dormitory.’ Many of the students packed their clothes and left rather than stay in the dormitory with the Negro.
Even as the youths stormed the marshals the first time, President Kennedy addressed himself to the Ole Miss students in a nation-wide broadcast.
‘Your honor and the honor of the university are at stake,’ the President said.
It wasn’t known whether he was aware of the rioting as he spoke.
USE A BULLDOZER.
The rioting students got themselves mechanized for the third outburst — going after the marshals in front of the administration building with a bulldozer.
Albert Taylor, A. U. S. marshal from Chula Vista, Calif., told how the bulldozer attack was repelled.
He said he and other marshals first saw the machine when it was about 300 feet from the administration building.
CLING TO VEHICLE.
‘There must have been a mob behind it,’ Taylor said. ‘We gassed them but two or three held on and kept driving. We got a canister right in the seat with them, but one still held on. But we got him and he’s under arrest.’
A fire truck trailed the bulldozer. When the truck stalled, after circling the building several times, marshals pulled four persons from the vehicle and — according to one report — began roughing up the four.
“As the rioting increased, the President and his brother, Robert F. Kennedy, attorney general, kept a vigil at the White House, receiving direct telephone reports from official sources in Oxford.
The second wave of rioting, led by General Walker, took the form of a direct charge on the marshals holding guard posts shoulder to shoulder outside the administration building.
IN ARKANSAS CASE.
Walker, an outspoken advocate of Mississippi resistance to federal court desegregation orders, commanded the 101st airborne in the Little Rock desegregation in 1957. Now retired, he says he was ‘on the wrong side’ then.
The students rushed the marshals with bricks and soft drink bottles flying. Some of them wore gas masks. But the marshals turned them back with their gas launchers.
The first outburst of violence, instead of taking the form of a charge, appeared more like sporadic outbursts of vandalism.
The mob of students — most of them returning only yesterday from an off-campus football game — grew steadily as the word spread in late afternoon that marshals had ringed the administration building.
By early last night — when Meredith arrived, the President spoke, and the governor issued his statement — an estimated 2,500 students were standing around, some jeering, some joking, some just watching. Then they got rowdy.
CAMERA IS BROKEN.
They jumped a news photographer and smashed his camera. They threw stones and soft drink bottles and flipped lighted cigarettes — all in the direction of the marshals.
They attacked a car with out-of-state license plates, smashed the windows and sent a man and women fleeing.
“Then they turned on one of the army trucks standing by — part of the marshals’ convoy — and took a cap off the auxiliary gasoline tank and threw a piece of flaming newspaper at the rising fumes. Their attempt to set the truck afire didn’t work, but it triggered the marshals to action.
The officers donned gas masks and started firing tear gas pellets — first at the students they thought were the leaders, then at everybody in sight.
Tear gas fogged up much of the campus, sending students running away with handkerchiefs over their faces. And the rowdy students scattered.”
(The following appears under large photograph of General Walker, and others:)
“CHARGES OF INCITING A REBELLION today resulted in the arrest of Edwin A. Walker, retired army general. Here he gestures as he walks on the campus at the University of Mississippi under guard of United States marshals. As he gestured, Walker remarked: T guess I am in custody.’ — (Wire Photo)”
(The following appears under another photograph, of a uniformed group of Army personnel, on the same page:)
“ON THE OTHER SIDE AT LITTLE ROCK. — This photogrph (sic) was made in 1957 when Maj. Gen. Edwin A. Walker commanded troops in the school integration crisis at Little Rock. Seated at the left, he joined troops in a prayer meeting at their bivouac as this photograph was taken. — (Wire Photo)”
“NEGRO ENROLLS: WALKER ARRESTED. U. S. MARSHALS ESCORT JAMES MEREDITH ACROSS LITTERED CAMPUS AND PASS CONFEDERATE FLAGS AT HALF MAST TO LYCEUM TO REGISTER FOR CLASSES. 4,600 TROOPS ON DUTY.
COMMANDING GENERAL SAYS ‘THE AREA IS SECURE’ AFTER 11 HOURS OF RIOTING — EPITHETS AT THE NEW STUDENT.
CHARGED IN REBELLION.
FORMER GENERAL, WHO LED TROOPS AT LITTLE ROCK IN 1957, FACES A SERIES OF U. S. CHARGES IN OXFORD, MISS. DISTURBANCE. LED AN ATTACK. HE ALSO WAS ON THE SCENE IN THE TOWN TODAY SHORTLY BEFORE NEW OUTBREAK.
(By the Star’s Leased Wire Services.)
Edwin A. Walker, former major general, was arrested today at Oxford, Mississippi, and charged with inciting an insurrection, Robert F. Kennedy, attorney general, announced in Washington.
Walker, who commanded the troops ordered by former President Eisenhower into Little Rock in the 1957 integration crisis there, appeared as the leader of rioters on the Ole Miss campus last night. He was quoted as telling students, ‘If you can’t win, go home. Don’t stay at the university. But let’s not quit. We can win.’
The attorney general announced these charges had been filed against the former general:
Conspiracy to incite a rebellion or insurrection.
Conspiracy to hinder federal officers in the performance of their duties.
Assaulting a federal officer.
Justice department officials said the conspiracy to incide (sic) rebellion charges carries a maximum penalty of 20 years in prison and a fine of $20,000.
Execution of such a conspiracy, as distinguished from the act of conspiring, involves a maximum penalty of 10 years and a fine of $10,000, they said.
The penalty for conspiring to hinder a federal officer would be up to five years in prison and $6,000, and for assaulting a federal officer, three years and $5,000.
The Justice department said Walker was arrested about noon today (Kansas City time) on the outskirts of Oxford and that arraignment on the charges would occur as soon as possible before Omar Craig, U. S. Commissioner.
Walker had appeared on the street near the courthouse square a short time before he was arrested and shortly before a mob fired shots which drew a quick charge by federalized Mississippi guardsmen.”
“Walker wore a dark blue suit and a 10-gallon hat. He spoke quietly to some of those in the crowd nearest the troops and then backed off as military eyes watched him closely.
Reports from the campus last night told of Walker taking over command of the rioters after most of the students at Ole Miss withdrew, and leading one charge. The Chicago Daily News Service said he directed use of a campus fire truck in an advance against federal marshals. After that failed, rioters used a bulldozer in an unsuccessful effort to break through the federal lines on the campus.
OVER TO BARNETT.
Walker last week offered his services to Governor Ross Barnett, claiming he was on the wrong side in the 1957 crisis in Arkansas and this time wanted to be on the right side.
He called for 10,000 volunteers from every state to converge on Oxford. Later he toned that down.
His actions at Oxford caused him to be described today in the U. S. Senate as possibly a ‘sick man who ought to be committed.’
Sen. Wayne Morse (D.-Ore.) told the Senate that if Walker led students in rioting against federal authority he should be charged with ‘inciting an insurrection.’
CONDUCT REPREHENSIBLE.
‘As an ex-Army officer.’ Morse said, ‘Walker’s conduct is all the more reprehensible.’
‘Maybe he is a sick man. If he is, he hought (sic) to be committed — he ought not to be at large.’
Sen. Stephen Young (D.O.) told the Senate this is a time for cool heads, and not for ‘the rantings of violent segregationists or psychopaths such as ex-Gen. Edwin A. Walker.’
Young said if Walker made the statements attributed to him, ‘I am glad he is an ex-general and a private citizen instead of in command of any youth in this county (sic).’
‘I hold him in utmost contempt for his appearance on the campus of this great university, “Ole Miss,” and for attempting to lead a charge of some 1,000 unruly rioters against United States Marshals,’ said Young.”
“AN EARLIER UPROAR.
Walker left the army after an uproar over the indoctrination of troops under his command in Germany. At the time, it was charged he was using John Birch society material in the indoctrination effort.
Reiman Morin, Associated Press correspondent who covered the Little Rock crisis and who now is in Oxford, today compared the Walker of 1957 and 1962.
‘After the Little Rock riots, Walker said that he found his duty there distasteful,’ Morin wrote from Oxford. ‘However, at the time, he was the crisp and professional soldier who gave no sign of his feeling. He set up his command post at the corner of Central High school, center of the riots.
“The contrast is most marked by the size of the operations here. In Little Rock it was largely quiet if you were three or four blocks from the school.
■In Oxford today, there is little quiet anywhere. On the contrary, there is a brooding sense of disaster.
Little Rock was a Skirmish. Oxford is a war.
The riots just five years ago in Little Rock were ugly and dangerous. In Oxford, the ugliness and danger is magnified on a gigantic scale.”
LEADER OF CHARGE.
The controversial Texan led a charge of students against U. S. Marshals at the University of Mississippi Sunday night.”

The petition also charged that “the aforesaid published matter was libelous in that it tended to expose plaintiff to hatred, contempt and ridicule and to deprive the plaintiff of the benefit of public confidence and social associations”; that it “was read by employees of the news gathering services and The Kansas City Star Company and the general public”; that it “was caused to be published and was published by the defendants in bad faith and defendants’ conduct was willful, wanton and malicious”; and that “plaintiff suffered actual damages by reason of the aforesaid published matter.”

The motions to dismiss claimed that the petition failed to state a cause of action alleging: (1) the articles do not constitute libel per se and the petition does not state a claim for libel per quod; (2) the articles are not alleged to be false or defamatory; and (3) the articles are privileged communications “both constitutionally and otherwise.”

In respect to the first ground of dismissal, appellant tacitly concedes that he has not stated a claim for libel per quod and limits his contention to supporting his petition as a claim for libel per se, a position well taken. Publication of a statement imputing or charging one with commission of a crime, whether directly or indirectly, is libelous and defamatory per se. Childers v. Nesselroad, 357 Mo. 1218, 212 S.W.2d 727, 729 [4]; Starnes v. St. Joseph Ry., Light, Heat & Power Co., 331 Mo. 44, 52 S.W.2d 852, 854 [3]; Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 599-600 [8-10]; Riss v. Anderson, 8 Cir., 304 F.2d 188; McKim v. Moore, 291 Mo. 697, 237 S.W. 773, 774 [1]; Bundy v. Hart, 46 Mo. 460. In applying this rule and in considering whether a publication is libelous per se, words to be considered actionable should be unequivocally so, Walsh v. Pulitzer Pub. Co., 250 Mo. 142, 157 S.W. 326, 328 [1], and should be construed in their most innocent sense, Atterbury v. Brink’s Express Co., Mo.App., 90 S.W.2d 807, 809 [5]. The Associated Press cautions also that language alleged to be libelous is not actionable per se unless it charges or necessarily imputes commission of a crime, Stowers v. Western Bentley Mercantile Co., Mo.App., 140 S.W.2d 714, 715 [3], holding “he is a dirty crook and a deadbeat” not to be actionable per se. A. P. also cites other examples holding alleged libelous language not to be actionable per se: Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6, 9, “(Plaintiff had) wantonly taken the life of an innocent child in direct violation of law”; Krup v. Corley, 95 Mo.App. 640, 69 S.W. 609, 612, “(Plaintiff) forged my name to one of his rent receipts”; Bundy v. Hart, supra, 46 Mo. l. c. 461, “He had to leave Indiana for burning a barn”; McManus v. Jackson, 28 Mo. 56, 57, “He swore a lie”; Birch v. Benton, 26 Mo. 153, 155, “I wonder when the damned scoundrel whipped his wife last? * * * he knocked out three of her teeth”; Palmer v. Hunter, 8 Mo. 512, “(Plaintiff) swore a point blank lie to clear William Sally of stealing honey”; Church v. Bridgman, 6 Mo. 190, “(Plaintiff) was in the habit of handling and passing counterfeit money”; Dyer v. Morris, 4 Mo. 214, 215, “(She) has gone down the river with two whores * * * to the goose-horn at St. Louis.” These examples are either distinguishable from the language of the articles under consideration by the language itself or, as noted in McKim v. Moore, supra, 237 S.W. l. c. 774, were earlier decisions “where it is evident men were freer in the use of the vernacular and less mindful of the character and effect of their remarks.” Certainly those instances are in contrast to the holding in 1953 that “you are not going to talk here you damned communist,” was actionable per se. Lightfoot v. Jennings, supra, 254 S.W.2d l. c. 599 [6].

Against this background it is apparent from the articles that crimes were imputed to plaintiff. They state that the National Guard, United States marshals, military police and army combat troops were sent to Oxford, Mississippi, to quell a rioting mob formed there despite President Kennedy’s plea for peace. The mob was said to have formed in protest to the enrollment of James Meredith in the University of Mississippi and that many shots were fired killing a newsman and wounding three marshals and an Associated Press reporter ; four other marshals and five highway patrolmen were reported injured by clubs, stones, and broken bottles. Tear gas was reported used against the mob as the federal marshals stopped two charges made against them. Plaintiff, identified by defendants as “former Maj. Gen. Edwin Walker,” was said to have “led one of the charges,” and a headline proclaimed, “Walker is leader.” This was amplified by defendants saying, “The second wave of rioting, led by General Walker, took the form of a direct charge on the marshals holding guard posts shoulder to shoulder outside the administration building.” It was also stated that “Walker * * * appeared as the leader of rioters on the Ole Miss campus * * *. He was quoted as telling students, ‘If you can’t win, go home. Don’t stay at the university, But let’s not quit. We can win.’ * * * Reports * * * told of Walker taking over command of the rioters after most of the students * * * withdrew, and leading one charge.” He was said to have “called for 10,000 volunteers from every state to converge on Oxford.” An Associated Press reporter reported in the articles that as compared to Little Rock, “in Oxford, the ugliness and danger is magnified on a gigantic scale.” The articles themselves indicate that the actions imputed to General Walker would, if true and proved, constitute crimes in that it was reported also that Attorney General Kennedy announced the filing of charges against General Walker of “Conspiracy to incite a rebellion or insurrection conspiracy to hinder federal officers in the performance of their duties,” and “assaulting a federal officer.” These matters are crimes under federal law, 18 U.S.C.A. § 2384, 18 U.S.C.A. § 372, 18 U.S.C.A. § 111, and it has been held in another jurisdiction that a similar report of Walker’s actions at Oxford was libelous per se because statements that he was in command of charges by rioting students imputed to him the crime of insurrection against the United States. Associated Press v. Walker, Tex. Civ.App., 393 S.W.2d 671, 680 [8], 681 [9], affirming judgment for General Walker for $500,000 damages. In addition, the death of the newsman and the injuries to the officers during the course of the riots could have exposed the rioters to charges of murder and assault, and General Walker was said to have been not only a participant in, but also to have been in command of the charges and rioting.

The Associated Press argues that the petition fails to charge defendants with imputing crimes of seditious conspiracy, conspiracy to hinder federal officers, and of assaulting federal officers because “an essential element of those crimes is that the Federal officers must have been at the time engaged in lawful discharge of * * their office, and nowhere * * * does this fact appear. This essential ingredient cannot be simply presumed.” This argument is refuted by the report of charges said to have been filed by the attorney general, i. e., “conspiracy to hinder federal officers in the performance of their duties,” and common knowledge would tell the reader that the National Guard, United States marshals, military police, and army combat troops were not present in Oxford, Mississippi, by accident or coincidence, but rather were “ordered to go directly to Oxford,” as reported in connection with the army combat troops from Ft. Benning, Georgia.

The second ground for dismissal was that the publications complained of are not alleged to be false or defamatory.

It has been said that “[t]he essential facts [of libel] are the falsity of the charge, and its publication and libelous nature,” McDonald v. R. L. Polk & Co., 346 Mo. 615, 142 S.W.2d 635, 638 [1]. See also Holliday v. Great Atlantic & Pacific Tea Co., 8 Cir., 256 F.2d 297, 302 [9], and Fritschle v. Kettle River Co., 346 Mo. 196, 139 S.W.2d 948, 950 [4], in which suits were dismissed for failure to set out any words claimed to have been used to defame and for failure to allege that the statement made was false. Many of the cases show that plaintiffs in libel suits follow the general rule and usually aver that the complained-of statements were false. Such an allegation is not necessary, however, to all cases of libel because the requirement varies with the nature of the case. In some cases, such as Fritschle v. Kettle River Co., supra, dealing with whether plaintiff owed a certain sum of money as stated by defendant, there is no cause of action unless the statement is alleged to be false. On the other hand, there are cases in which falsity need not be alleged, e. g., where the words are alleged to be a libel; where the words are actionable per se; and where the publication charges an indictable offense. 53 C.J.S. Libel and Slander § 167, pp. 263, 264. All of those situations apply here because the petition alleges the publication to be libelous per se and it has been demonstrated previously that the publication imputes criminal offenses to plaintiff. This is consistent with the requirements for submission of a libel suit because if this case had gone to trial the jury would have been instructed to find for plaintiff if it believed that defendants published the statement complained of, that the statement defamed and damaged plaintiff, and that it was read by the public. MAI 23.06. The issue of truth in a defamation suit is an affirmative defense to be pleaded by defendants, § 509.-090 V.A.M.S., and the risk of nonpersuasion on the issue must be assumed by them. MAI 28.09. These provisions are, of course, supported by the cases. In Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332, 349, the words complained of were, as in the present case, libelous per se and, even though their publication was alleged to have been false, it was stated by the court: “The falsity of all defamatory words is presumed in the plaintiff’s favor, and he need give no evidence to show them false. The burden is on defendant to rebut this presumption by giving evidence in support of the plea of justification. Newell on Libel and Slander (2d Ed.) p. 651; Odgers on Libel and Slander, 170. * * * In this record there is no plea of the truth of the charge, and there was no admission of the truth thereof in the testimony of plaintiff, so that this contention of defendant affords no reason for sustaining the demurrer to the evidence.” See also Rail v. National Newspaper Ass’n, 198 Mo.App. 463, 192 S.W. 129, 135 [10]. Equally significant is the holding in Sotham v. Drovers Telegram Co., 239 Mo. 606, 144 S.W. 428, 432 [12]: “Instruction numbered 1 defines libel in accordance with the statute and the decisions of this court. The error complained of is that the instruction ignored the issue of the truth of the publication as made by the answer; also that the instruction was given on the theory that the article was libelous per se. The latter complaint need not be considered. This instruction sets forth the alleged libel and is followed by the statutory definition of libel. The court then directs the jury that, if they believe and find from the evidence that the article published falls within the definition previously given, then the article is libelous under the statute. In thus instructing the jury the court was following not only the law as approved by this court but the general law upon the subject. Julian v. Kansas City Star Co., 209 Mo. 35, 107 S.W. 496; McCloskey v. [Pulitzer] Publishing Co., 152 Mo. 339, 53 S.W. 1087; Odgers on Libel and Slander (4th Ed.) 105. In Odgers, supra, the rule is laid down that: ‘The proper course is for the judge to define what a libel is in point of law and leave it to the jury whether the publication in question falls within that definition.’

“The statutory definition of libel does not make the falsity of the publication a part of the definition. The Constitution and statute provide that the truth of the libel may be given in evidence, but it may thus be given only when pleaded as an affirmative defense. Its falsity is presumed and need not be proved as a part of plaintiff’s case.”

Thus, under these authorities, even though containing allegations of falsity, it is obvious that plaintiff need not plead falsity in a case of libel per se where he is not required to prove falsity.

Respondents cite Fowler v. Donnelly, 225 Or. 287, 358 P.2d 485, 85 A.L.R.2d 452, on the proposition that an averment of falsity is necessary to state a cause of action in libel which that court so held relying upon, among other authorities, Fritschle v. Kettle River Co., supra. This applies “[i]n the absence of special circumstances,” Fowler v. Donnelly, supra, l. c. 487 [3], and the obvious distinction from the present case is that the words alleged to be libelous and defamatory in those cases were not the “special circumstances” of libel per se nor of an imputation of crime, and therefore needed an averment of falsity in order to state a cause of action for their publication. Both cases, together with Holliday v. Great Atlantic & Pacific Tea Co., supra, appear in the Annotation: Necessity and sufficiency of plaintiff’s allegations as to falsity in defamation action, 85 A.L.R.2d 460, and the distinction made here is stated in section 3: “The rule has been enunciated * * * that there is no necessity of an allegation of falsity in respect to written or printed matter that is libelous per se * * * since in cases of libel or slander per se the law raises a presumption of untruth.” See also 33 Am.Jur., Libel and Slander, § 242, p. 222. The distinction applies also to Bottomly v. Bottomly, 80 Md. 159, 30 A. 706, Weekes v. Westchester Newspapers, Inc., Sup., 115 N.Y.S.2d 418, Rose v. Borenstein, City Ct., 119 N.Y.S.2d 288, McGraw v. Thomason, 265 Ala. 635, 93 So.2d 741, Harper v. Huston, 120 Kan. 194, 243 P. 305, Snavely v. Booth, 6 W. W. Harr., 36 Del. 378, 176 A. 649, Old Dearborn Dist. Co. v. Seagram Distillers Corp., 288 Ill.App. 79, 5 N.E.2d 610, Thomson v. Kansas City Star Co., Mo., 387 S.W. 2d 493, Rice v. Albee, 164 Mass. 88, 41 N.E. 122, cited by respondents, because they did not deal with words which were libelous per se or imputed crime to the plaintiff. It is interesting to note also that the Oregon case recognizes that truth as a defense must be alleged by defendant and the burden of establishing it borne by him.

Respondent Associated Press says also that plaintiff’s petition fails to advise defendants of the charges with which they are confronted, especially as to which parts of the article are true. Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75, 79 [3]. The charge, of course, is that defendants have libeled plaintiff by a publication charged to be libelous, and “[t]he office of pleadings is to present, define and isolate the controverted issues so as to advise the trial court and the parties of the issues to be tried and to expedite the trial of a cause on the merits,” Johnson v. Flex-O-Lite Mfg. Corp., supra. Certainly defendants indicate they are advised as to the charges when they file motions to dismiss plaintiff’s petition stating that the complained-of publication does not constitute libel per se or per quod, that it contains no allegation of falsity or defamation, and that it is privileged. If A. P. is arguing that no issue .of truth is presented by plaintiff, the argument is without merit because, as previously demonstrated, truth is an affirmative defense, and the defendants should be in position to know if their article is true in all its parts in order to take advantage of the defense of truth which they may raise. Rule 55.22 V.A.M.R.

The second part of the second ground of dismissal is that the petition is defective for failure to allege that the publication complained of was defamatory. Respondents say that defamation is an essential element to be pleaded by plaintiff.

Section 559.410 V.A.M.S. defines libel as “the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse * * It has already been stated and held in connection with the first ground of dismissal that defendants’ publication was libelous and defamatory per se because it imputed commission of crimes to plaintiff. See particularly Starnes v. St. Joseph Ry., Light, Heat & Power Co., supra, and Lightfoot v. Jennings, supra, and, if any further reference to defamation be needed, it is found in plaintiff’s use of the statutory language in his allegation “that the (article) was libelous in that it tended to expose plaintiff to hatred, contempt and ridicule and to deprive (him) of the benefit of public confidence and social associations.” Certainly this allegation is sufficient to advise defendants that plaintiff claims to have been defamed by their publication. Johnson v. Flex-O-Lite Mfg. Corp., supra. When defendants’ article imputes crime to plaintiff, as it has been held to do here, the court can presume the element of defamation and that the words will tend to degrade and disgrace the plaintiff, 53 C.J.S. Libel and Slander § 13, p. 59, Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, 53 [4], and the petition thus meets the requirement of Diener v. Star-Chronicle Pub. Co., supra, 135 S.W. l. c. 11, that “there must be defamation in a libelous sense before there can be a libel.”

In respect to the third ground of the motion to dismiss, that the publications complained of were privileged, there is authority which states, “While at common law defendant in a libel suit might make his defense of privilege under the general issue, it was not available on demurrer,” Cook v. Globe Printing Co., supra, 127 S.W. l. c. 349, and this because qualified privilege is also an affirmative defense with the burden of convincing the court of its applicability resting on the defendant. MAI 28.08; Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100, 107 [7], 26 L.R.A.,N.S., 1080; Warren v. Pulitzer Pub. Co., 336 Mo. 184, 78 S.W. 2d 404, 415 [12]. If the defendant pleads the defense of qualified privilege and meets the burden of convincing the court of its applicability, “[t]he plaintiff may overcome the privilege pleaded either by proof that the publication was inspired by actual malice, or that the facts published and commented upon were false; ” resolution of that issue is for the jury, Warren v. Pulitzer Pub. Co., supra, l. c. 415 [13], Hellesen v. Knaus Truck Lines, Mo., 370 S.W.2d 341, 345 [10], and General Walker has entitled himself to offer proof on malice in the event the trial court would find qualified privilege applicable by alleging that the articles complained of were “published in bad faith and defendants’ conduct was willful, wanton and malicious.”

Two situations have been noted in which a trial court could dismiss a libel petition on the ground of privilege: One, “unless plaintiff’s petition showed on its face that the occasions for the communications were absolutely privileged,” and two, “unless plaintiff’s petition affirmatively averred that the occasions for the communications were not abused * * *, we could not, on the ground urged, hold that plaintiff had failed to state claims upon which relief could be granted.” Coots v. Payton, supra, 280 S.W.2d l. c. 52 [7]. However, as previously demonstrated, a plaintiff whose petition gave rise to the applicability of the defense of qualified privilege would still be in court if he alleged further, as plaintiff does here, that the publication was inspired by actual malice and made in bad faith. Thus, even if it be assumed that plaintiff’s actions and status while at Oxford, Mississippi, make his libel suit based on reports of the situation there of the type of one “brought by a public official against critics of his official conduct,” N. Y. Times Co. v. Sullivan, 376 U.S. 254, 264, 84 S.Ct. 710, 717, 11 L.Ed.2d 686, Garrison v. State of Louisiana, 379 U.S. 64, 76, 85 S.Ct. 209, 13 L.Ed.2d 125; or one involving “matters of public concern, public men, and candidates for office,” Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 282, 20 L.R.A.,N.S., 361; or by a former county official in respect to his conduct when in an official capacity, Rosenblatt v. Baer, 1966, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597; or by an officer of a labor union, Linn v. United Plant Guard Workers of America, 1966, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582; or by a police detective, Pape v. Time, Inc., 7 Cir., 354 F.2d 558; or by a noted biochemist when speaking on a political cause, Pauling v. News Syndicate Co., 2 Cir., 335 F.2d 659, 662, Pauling v. National Review, Inc., Sup., 269 N.Y.S.2d 11; or by a member of a public official’s law firm, Gilberg v. Gaffi, 21 A.D.2d 517, 251 N.Y.S.2d 823; or by a political news commentator, Pearson v. Fairbanks Pub. Co., Alaska, 413 P.2d 711; or by one who projected himself “into the arena of public controversy and into the very ‘vortex of the discussion of a question of pressing public concern,’ ” Pauling v. Globe Democrat Pub. Co., 8 Cir., 1966, 362 F.2d 188; Walker v. Courier-Journal and Louisville Times Co., D.C.Ky., 246 F. Supp. 231, 233 [2]; or by a judge in respect to his qualifications, Salinger v. Cowles, 195 Iowa 873, 191 N.W. 167, 173-174 [11]; or by a “leader” in political matters, Peck v. Coos Bay Times Pub. Co., 122 Or. 408, 259 P. 307, 311 [13, 14]; or by a lawyer in connection with an arrest report, Langworthy v. Pulitzer Pub. Co., Mo., 368 S.W. 2d 385, 390 [12]; and although A. P. says that “plaintiff has pleaded no facts sufficient to remove (the publications) from their privileged status,” and the Star says that “plaintiff does not allege the degree of malice said to be necessary by Times,” it is quite obvious that plaintiff’s charge that the complained-of matter was “published by the defendants in bad faith and defendants’ conduct was willful, wanton and malicious” is sufficient to conform his pleading to the rule of New York Times Co. v. Sullivan, supra, 376 U.S. l. c. 279, 84 S.Ct. l. c. 726, “that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Certainly, plaintiff’s pleading is “simple, concise and direct” as required by Section 509.040, V.A.M.S., in leveling a charge of wanton and willful malice at defendants, and until plaintiff is permitted a trial on the merits where he can offer whatever evidence he may have to support his charge it cannot be said that he has failed to make a case of actual malice. Despite respondents’ urgings, this court is not prepared to indulge, as did the district judge in Walker v. Courier-Journal and Louisville Times Co., supra, 246 F. Supp. l. c. 235 [8], in an inference from “the geographical scope and number of Plaintiff’s suits and the virtual universality of the publication of the stories complained of,” that “[t]hese facts clearly negative the possible attribution of ‘actual malice’ to any single publisher.” Respondents say also that Diener v. Star-Chronicle, supra, and Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A., N.S., 216, are authority for dismissing General Walker’s petition. However, they simply held on their facts that the publication complained of was not libelous per se but was “fair and with an honest purpose.” ¡More interesting is a statement of the rule now attributed to New York Times Co. v. Sullivan, supra, that “[e]very one has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose, however severe in their terms, unless they are written intemperately and maliciously.” Diener v. Star-Chronicle Pub. Co., supra, 132 S.W. l. c. 1149. Plaintiff brings himself within this statement also with his charge of wanton and willful malice. Nor does Clark v. McBaine, 299 Mo. 77, 252 S.W. 428, aid respondents because there the complainant sought reinstatement of his professorship at Missouri University, a matter of public interest in which plaintiff himself initiated a discussion in the press on his qualifications in order to show himself worthy of reinstatement. He could not thereafter complain of the exercise of the privilege of counterdiscussion of his qualifications.

So it is as against a mere motion to dismiss, that plaintiff’s petition states a cause of action, and the judgment of dismissal is reversed and the cause remanded.

Houser, C., concurs.

Welborn, C, not sitting.

PER CURIAM.

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

All concur.


text:
    FIRST NATIONAL BANK OF KANSAS CITY, Plaintiff-Respondent, v. Amanda C. WALDRON et al., Defendants-Respondents, Martha B. Allen et al., Defendants-Appellants.
    No. 51691.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.

      Marvin C. Hayward, Clayton R. Smalley, Kansas City, for defendants-appellants, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
    Martin J. Purcell, Morrison, Hecker, Co-zad & Morrison, Kansas City, for defendants-respondents.
   HENRY J. WESTHUES, Special Commissioner.

The First National Bank of Kansas City, Missouri, filed this lawsuit in the Circuit Court of Jackson County, Missouri, for a declaratory judgment asking the court to construe a clause in a deed creating a trust estate. The trust deed was executed by Martha E. Bacon on June 6, 1928. By this deed, property was conveyed to a trustee for the benefit of the children of Mrs. Bacon and their descendants. The children were Amanda C. Waldron, Elizabeth M. Ruddy, Alice M. Black, and Langston M. Bacon.

At the time the petition was filed, two of the children, Amanda and Elizabeth, were living, and Alice and Langston were not. Alice died on February 8, 1964, and Langston died on January 4,1957. Amanda, Elizabeth, and Alice had children living who were born in lawful wedlock. Lang-ston had adopted two children. They were Martha B. Allen, born January 27, 1928, and adopted by Langston on December 31, 1928; and William B. Bacon who was born on April 1, 1931, and adopted by Langston on December 21, 1931.

All of the parties interested were represented by counsel. The minor children were represented by a Guardian Ad Litem. The plaintiff First National Bank is a successor trustee and has no interest in the outcome of the case except as to its obligations as a trustee.

The deed creating the trust estate, in so far as material here, provided that the income of the estate should be paid to the four children during their lifetime and, in' case of the death of any child, such child’s share should be paid to the children of such deceased child.

The question to be determined is whether the adopted children of Langston (deceased) are entitled to the share of their parent Langston. The trial court ruled that by the language of the deed adopted children were excluded. The adopted children Martha B. Allen and William B. Bacon appealed from the judgment entered. This court has jurisdiction by reason of the amount in dispute.

In the trust deed, Martha E. Bacon was described as the party of the first part; the trustee, as party of the second part; and the beneficiaries, as the parties of the third part. The paragraph in the deed which is the subject matter of this lawsuit reads as follows:

“To Have and to Hold unto the said party of the second part, and his successors and assigns, in trust for the parties of the third part, and their children, born in lawful wedlock, and their descendants, for the following purposes.” (Emphasis ours.)

Appellants say in their brief that “The Court Erred in Holding That Appellants Martha B. Allen and William B. Bacon, As Adopted Children of Langston M. Bacon, Are Not His ‘Children Born in Lawful Wedlock’ Within the Meaning of That Phrase As Used in the Trust Instrument.”

Respondents say in their brief that the trial court did not err in holding that “In my view, the intent of Settlor is expressed in clear and unmistakable language. The words ‘and their children born in lawful wedlock’ relate to children born in lawful wedlock to parties of the third part. To hold otherwise would require a court of equity to rewrite the trust instrument and insert language it simply does not contain.”

It is our view that the trial court was correct in holding that the words “and their children, born in lawful wedlock” had reference to children born of the parties of the third part. (Emphasis ours.) In this particular case, it held that the defendants Martha B. Allen and William B. Bacon, being adopted, were not children of Lang-ston born in lawful wedlock. It is conceded, and rightly so, that Mrs. Bacon had the right to give her property to whom she pleased, even to exclude her own children. The primary objective is to ascertain the intention of the author of the trust estate. If the meaning or intention is plain and unambiguous, such intention must govern, providing it is not contrary to law.

We find no ambiguity as contended by the appellants. In their brief, appellants say, “On the point in issue, that language is hopelessly ambiguous. Instead, the Court is confronted with the necessity of appraising and applying this State’s fundamental policy with regard to a legal and social institution of central importance — the institution of adoption.” It is true that public policy, as evidenced by state statutes and court decisions for many years, has been to grant adopted children the same legal property rights as natural children. Note the statute adopted by the Legislature in 1917. See Laws, 1917, page 194, and Sec. 453.090, V.A.M.S., enacted in 1947; and St. Louis Union Trust Co. v. Hill et al., 336 Mo. 17, 76 S.W.2d 685; Wailes v. Curators of Central College et al., 363 Mo. 932, 254 S.W.2d 645, 37 A.L.R.2d 326; and Shepherd et al. v. Murphy et al., 332 Mo. 1176, 61 S.W.2d 746. It may be noted that the adjudicated cases hold that an adopted child becomes the child of its adopting parents for every purpose as fully as though born to the adopting parents.

Appellants say that Mrs. Bacon executed the trust instrument prior to the time her son Langston adopted the two children; that she did not have in mind that any of her children might adopt any child; and therefore she did not intend by the words “and their children, born in lawful wedlock” to exclude appellants. The statute, prior to the amendment of 1947, provided that “neither said adopted child nor said parents by adoption shall be capable of inheriting from or taking through each other property expressly limited to heirs of the body of such child or parent by adoption.”

Now the question is, did Mrs. Bacon by her trust deed expressly limit the beneficiaries of the trust to the heirs of the body by using the words “and their children, born in lawful wedlock”? Appellants say that the only persons excluded were illegitimate children. We ask, if Mrs. Bacon did not have adopted children in mind, why should she have had in mind illegitimate children ? All of her children were married when the deed was executed. We cannot agree with appellants. The clear meaning of the wording “their children, born in lawful wedlock” excluded adopted children and is more restrictive than the words “heirs of the body.” We call attention to the fact that the words “their children, born in lawful wedlock” appear a number of times in the trust instrument indicating a fixed purpose to limit the beneficiaries of her estate to blood kin. There is also a provision in the deed to the effect that the present or future husbands of the three daughters and the present or future wife of Langston should in no way have any voice or interest in the trust property. We think this clause also indicates a fixed purpose to limit beneficiaries of her estate to blood relatives.

In the case of First National Bank of Kansas City et al. v. Sullivan et al., 394 S.W.2d 273, this Court ruled that a bequest to the heirs of the body of a daughter, per stirpes and not per capita, and their assigns forever, excluded adopted children of the daughter. It was pointed out in that case that the will there was executed while the statute of 1917 was in force. So, in this case, the trust instrument was executed while that statute was in force. The words “their children, born in lawful wedlock” mean their children born in lawful wedlock, not the children of someone else. (Emphasis supplied.) In Blaker et al. v. Blaker et al., 131 Kan. 833, 293 P. 517, a clause in a will reading “such trust fund shall belong absolutely to the issue, born in lawful wedlock, of the body of my said son” was held to exclude adopted children. One of the cases cited by appellants, In re Coe’s Estate, 42 N.J. 485, 201 A.2d 571, held that a bequest to “lawful children” of a named person included adopted children. We have no quarrel with that holding. In the case of In re Heard’s Estate, 49 Cal.2d 514, 319 P.2d 637, the court held that the words “lawful issue” included adopted children. St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685, is cited by appellants and in their argument, they state that the case is in point. The clause there considered was “and upon the death of any child, his or her share shall be distributed free from trust, to his or her heirs-at-law.” This court rightly held that adopted children were included.

We have considered the statute governing adoption as it was in force when the trust instrument was executed. Appellants rely to a great extent thereon. In our opinion, however, the statute has not, even as it now stands (Sec. 453.090), changed the law to the effect that a person may by deed, will or any other manner give his property to whom he pleases; further, in case an instrument contains plain and unambiguous language, courts give effect thereto. Courts have no authority to do otherwise on the ground that the provisions of an instrument are not in harmony with the trend of the times. In the case of In re Trusteeship Agreement with Nash, 265 Minn. 412, 122 N.W.2d 104, l. c. 106 (1, 2), the Supreme Court of Minnesota had this to say in a case considering adoption: “Notwithstanding the statement of policy contained in that statute, the intention of a testator or settlor continues to govern the disposition of his estate if it can be discovered.”

It is our opinion that Mrs. Bacon, by her trust deed, limited the beneficiaries of the trust to her blood kin. We rule that the trial court correctly decided the case and the judgment of that court is hereby affirmed.

PER CURIAM.

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

All of the Judges concur.