author: HIGGINS, Commissioner.

text:
    Clara Belle KRATZER, Appellant, v. Mrs. Ralph W. KING, Respondent.
    No. 51450.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.
    Motion to Transfer to Court En Banc or for Rehearing Denied April 11, 1966.

      Edward L. Simmons, Kansas City, for appellant.
    William B. Waters, Robert E. Coleberd, Liberty, Hale, Coleberd, Kincaid & Waters, Liberty, of counsel, for respondent.
   HIGGINS, Commissioner.

Action for $22,500 damages for personal injuries. Verdict and judgment were for defendant.

This case arose from an automobile collision which occurred August 23, 1961, in the uncontrolled intersection of East and Clinton Streets in Lathrop, Missouri. East Street is a north and south street 26 feet wide, sloping downhill northwardly prior to, at, and beyond the intersection; Clinton Street is an east and west street 34 feet wide, sloping uphill westwardly prior to, at, and beyond the intersection. Both streets are made of asphalt, and they were dry. Appellant was driving a 1959 Ford pickup truck north on East Street; respondent was driving a 1954 Ford automobile west on Clinton. The vehicles collided in the northeast quarter of the intersection, the front of respondent’s car striking the middle of the right-hand side of appellant’s truck. A state highway patrolman found debris at the east edge of the intersection in the, middle of respondent’s side of Clinton Street. There were skid marks which began just east of the debris and continued on west to respondent’s car where it came to rest in collision with a dirt bank on the west side of the intersection. The pickup truck was turned over and appellant was thrown from it to her injury.

Appellant lived north of the intersection and was familiar with it and the house and large trees on the east side of East Street south of the intersection. Prior to the collision she was traveling approximately 20 miles per hour and she neither slowed nor slackened speed. She first saw respondent when “she was ready to hit me.” She didn’t recall whether she looked for traffic prior to that time, nor did she -recall whether respondent was in the intersection when she first saw her. Appellant did not apply her brakes or sound her horn.

Respondent turned left onto Clinton Street from Highway 33 which runs north and south 100 yards east of East Street. She accelerated to approximately 20 miles per hour and then reduced speed to about 10 miles per hour as she went up the grade to the intersection. When asked “how far east of the intersection does that grade get ?” respondent answered, “Not quite half way.” When her front wheels were in the intersection she first saw appellant 7 to 10 feet away, and she did not know how far appellant was into the intersection. She had her foot on the brake as she neared the intersection and applied the brake hard pri- or to the collision.

Appellant charges that the court erred in giving Instruction No. 10 on contributory negligence for failure to keep a careful lookout because “there was no evidence to show that even had she kept a careful lookout that she could have avoided the collision.”

Instruction No. 10 is a proper submission of plaintiff’s failure to keep a careful lookout as contributory negligence because it is MAI No. 28.01; and the only question is whether there is substantial evidence to support a reasonable inference that the plaintiff, charged with contributory negligence, had the means and ability to avoid the collision. Zalle v. Underwood, Mo., 372 S.W.2d 98, 102[1-3]; Miller v. St. Louis Public Service Co., Mo., 389 S. W.2d 769, 771-772[3, 4].

Our statement recites testimony from appellant from which the jury reasonably could have found that appellant did not look for traffic when approaching and entering the intersection and that she saw respondent only after reaching the northeast quarter of the intersection and just prior to impact. Exhibit D looks northeast from a point in East Street south of the intersection and shows two of the large trees and the house on the east side of the street. It also pictures a car parked on the south side of Clinton Street with its front end even with the corner of the house some -two car lengths east of the east edge of East Street. It shows also that appellant could have seen traffic on Clinton Street for a distance of four or more car lengths (at least 60 feet) east of the east side of East Street, and it and Exhibit C show that the grade of Clinton Street was not such as to hide any cars from her view. Exhibit 4 pictured East Street looking north with the camera 250 to 300 feet south of the intersection and it, together with Exhibit D, showed that even from that distance one could see east on Clinton Street a distance of at least three car lengths east of the east edge of East Street. Respondent’s speed on the upgrade approach was 10 miles per hour and her estimate of the length of the grade could be taken to mean that it ran east of the intersection for half the block between East Street and Highway 33, or a distance of 150 feet. When respondent entered the last 60 feet of her approach she was traveling 15 feet per second (10 m. p. h.) and it would take her four seconds to reach the east edge of East Street. Appellant was traveling at 30 feet per second (20 m. p. h.) and, at the beginning of the 4-second time period, would have been 120 feet south of the south edge of Clinton Street, a distance well within that in which she could see traffic on Clinton Street for at least the 60 feet mentioned. Under such circumstances, the question of appellant’s contributory negligence was for the jury because a jury reasonably could find that had appellant looked and applied her brakes she could have stopped her truck within that 120 feet plus the 17' width of the south half of Clinton Street, or slackened her speed sufficiently to let respondent pass from appellant’s right through the intersection without collision; likewise, the jury "reasonably could infer that a warning at that time would have alerted respondent and that she could have stopped or slowed sufficiently to permit appellant to pass ahead. See Elliott v. Wescoat, Mo., 336 S.W.2d 649, 652; Eaves v. Wampler, Mo.App., 390 S.W.2d 922, 930[17, 18]; Loyd v. Moore, Mo.App., 390 S.W.2d 951, 956[9]. Hildreth v. Key, Mo.App., 341 S.W.2d 601, 607[10].

Appellant’s case was submitted on the charge that defendant failed to yield the right of way using the form of MAI 17.01, and on the definition of “right of way” contained in MAI 14.02: “When two vehicles do not reach an intersection at approximately the same time, the vehicle which enters the intersection first has the right of way * * The court also gave Instruction No. 11 defining “right of way” as in MAI 14.03: “When two vehicles reach an intersection at approximately the same time, the vehicle on the right has the right of way * * *.” Both of these definitions are “intended for use where there is a collision at intersecting highways and there are no traffic controls at the intersection.” See Notes on Use following MAI 14.02 and 14.03.

Appellant charges error, however, in giving said Instruction No. 11 “for the reason that there was no evidence * * * that both vehicles entered the intersection at approximately the same time.” Appellant argues that the evidence of collision in the northeast corner of the intersection, the damage to the right-hand side of her vehicle, and the debris at the east edge of East Street showed “it would clearly be impossible * * * for the two vehicles to have entered the intersection at the same time.”

The evidence does not render “impossible” a finding that the vehicles entered the intersection at the same time, and there is evidence to justify the instruction. According to respondent, she first saw appellant when both were in the intersection. When respondent’s front wheels were in the intersection she saw appellant 7 to 10 feet away to her left, and appellant did not know whether respondent’s car was in the intersection when she first saw it. Appellant was going twice as fast as respondent and would have covered twice as much distance as respondent in the same time, a circumstance which would put appellant further into the intersection at collision, even though they may have entered the intersection at “approximately” the same time.

Appellant charges that the giving of Instruction 9, which told the jury not to consider the cost of any medical treatment given to her, was error, stating it “is clearly outside the issue, because nowhere was there any evidence of any medical expenses or treatment of any sort offered or received.”

Appellant’s transcript on appeal is abbreviated and it does not include the medical evidence. It is, therefore, insufficient for a development of this point. Brand v. Brand, Mo., 245 S.W.2d 94, 96[4],

Appellant’s Point IV of Points Relied On is: “The court erred in failing to allow the highway patrolman to testify as to what plaintiff had stated to the highway patrolman that she had looked into the intersection and had attempted to avoid the collision but was unable to do so and that such failure * * * was prejudicial * * * in that this was a prior statement consistent with her position on direct examination that she had maintained a proper lookout. Said statement was contained in plaintiff’s Exhibit No. 1 (Highway Patrol Accident Report) and was offered * * * after the cross-examination of plaintiff when she was confronted with the statement on her deposition that she did not remember looking to the right or left prior to entering the intersection.

“* * * such refusal was improper as the evidence showed that Mrs. Kratzer gave this statement at the doctor’s office as soon as she regained consciousness and was therefore admissible.”

This assignment preserves nothing for review because there is no citation of authority to support the contention and it is not carried forward and developed in any manner in the argument. Holt v. Queen City Loan & Inv., Inc., Mo., 377 S. W.2d 393, 400[13]; 3 Mo.Dig. Appeal & Error, Even so, the evidence showed that any conversation between the patrolman and appellant took place in a doctor’s office in the absence of respondent and nearly an hoar after the accident. Under such circumstances, any statement in appellant’s own interest would be clearly self-serving, hearsay and inadmissible.

Appellant’s final point is Point V of Points Relied On: “The Court erred in failing to permit the highway patrolman to testify that when the two cars collided they left debris at the point of collision.”

This point is also stated without authority and its development in argument is limited to a restatement. We note, however, that matters labeled Point IV in the argument portion of appellant’s brief appear related to this point. Appellant there says that this is a subject of expert testimony; that because no objection was made to the qualifications of the patrolman, he should have been permitted to give such testimony as an expert, and the omission was prejudicial because the opinion was vital to the issue of who had the right of way.

In Hamre v. Conger, 357 Mo. 497, 209 S. W.2d 242, 249[10], we held it improper to permit a highway patrolman who investigated the accident to state, over objection, his opinion that the point of impact was the point where debris fell from colliding vehicles, because such is not a proper subject for expert or opinion evidence. We have adhered to that view since, Chester v. Shockley, Mo., 304 S.W.2d 831, 834[1], and the court did not err in refusing such testimony here.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jack Noble TANDY, Appellant.
    No. 51477.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 11, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
   STORCKMAN, Judge.

This is an appeal from a conviction of molesting a minor. Section 563.160, RSMo 1959, V.A.M.S. At a hearing out of the presence of the jury, the court found the defendant had been previously convicted of a felony and the punishment was assessed pursuant to the Habitual Criminal Act. Section 556.280. The defendant’s motion for a new trial was overruled and the court sentenced him to five years’ imprisonment. The prosecuting attorney filed a petition charging the defendant with being a sexual psychopath within the meaning and purview of §§ 202.700 to 202.770, but the report of the physicians appointed to examine the defendant did not substantiate the charge and the petition was overruled. Since none of the assignments of error relate to this charge, it need not be noticed further.

The defendant, age 63, did not testify or offer any evidence in his behalf. The state’s evidence tends to prove that on August 14,1964, in the afternoon, the prosecu-trix, a girl, age 9, to whom we shall refer as Christine, with her sister, age 6, and her brother, age 4, were playing on the sidewalk in front of their home when an automobile stopped at the curb. The man who was driving was not then known to the children but was later identified as the defendant. He opened the door on the curb side and the brother went over to the car. Christine called to him to come back and when he refused to do so she and her sister went after him. The defendant asked them to get in the automobile and said he would take them around the corner and get them some candy. Christine replied that her mother did not allow her to go with strangers, but the defendant pulled the girls into the car. The brother tried to get in the car but the defendant said he just wanted the girls. The sister sat in the middle of the front seat and Christine on the right or outside. Both girls were wearing shorts with a shirt and an undergarment.

Christine testified that the defendant “started playing around with us between the legs” while they were seated in the car; that he “reached up underneath” the legs of their shorts and under her panties; that when he did so the defendant “put his hand where you go to the bathroom” that, at the defendant’s suggestion, the sister stood up to see some trinkets he had in the car and he put his hand under the sister’s shorts a second time. The defendant offered Christine a silver dollar; she was scared and broke away and ran into the house followed by her sister and brother. Christine further testified that while she was in the automobile she noticed that the defendant’s breath smelled bad and added: “My grandpa, he drinks all the time, and I know the smell”; also the defendant was “kind of fumbling around”. Neither of the girls were injured nor were their clothes torn or damaged.

When Christine ran into the house and told her mother what happened, the mother went out front in time to see the rear of defendant’s car as it was driven away. A brother of the mother came by and accompanied by the girls toured the neighborhood but could not find the defendant’s automobile. A short time after they got back, the defendant came by again and stopped on the opposite side of the street. Christine pointed out the car and when it moved on, the brother followed, caught up with the car, got the license number and talked to the defendant who said he did not know anything about the charge and that somebody was mistaken. The defendant appeared to have been drinking. The police took the defendant into custody later that night. The next day Christine picked him out from a line-up of four men at the police station. She identified him again at the trial. To the extent necessary, additional evidence will be discussed in connection with the points raised.

The defendant’s first contention is that the trial court erred in failing to indicate prior to the expiration of the time allowed for filing the motion for new trial what sentence the court intended to impose. The ground stated in the motion for new trial was that: “The Court erred in failing to indicate what sentence would be imposed by the Court.” After the motion for new trial was overruled, the court announced that the punishment was fixed at five years’ imprisonment. The court then granted al-locution and the defendant having nothing to say and not showing legal cause why sentence should not be imposed, the court proceeded with the formal sentencing.

In support of this contention, the defendant relies on State v. Grant, Mo., 380 S.W. 2d 799, and State v. Rizor, 353 Mo. 368, 182 S.W.2d 525. In the Rizor case, the punishment was fixed by a jury and in response to a claim that the punishment was excessive this court on appeal held that relief on the ground of excessiveness was generally sought in the motion for new trial. Both Grant and Rizor were considered at length in the recent case of State v. Watson, Mo., 400 S.W.2d 129 (decided February 14, 1966), a case under the Habitual Criminal Act wherein the trial court did not indicate the sentence to be imposed prior to the expiration of the time for filing the motion for new trial; the defendant on appeal contended that he was thereby deprived of the opportunity to question the validity or the excessiveness of the sentence in his motion for new trial. The Watson opinion states that: “The Grant case holds that it was proper to indicate to the parties at that time what the punishment would be, but it does not hold it would be prejudicial error to fail to do so before the motion for new trial was filed.” The Watson case held the sentence was not excessive, that prejudicial error was not shown and affirmed the judgment.

In the case at bar there is no claim that the sentence was excessive or that prejudice resulted because of failure to indicate sooner the sentence intended. The court did indicate the intended sentence prior to allocution and the defendant at that time had an opportunity to state any objections he had. On November 20, 1957, the defendant entered a plea of guilty to a charge of molesting a minor and was sentenced to a three-year term of imprisonment. This is the prior conviction on which the Habitual Criminal Act was invoked. Our examination of the record discloses no showing of prejudice. The claim of error is denied.

Next the defendant contends that the amended information was insufficient and did not adequately notify the defendant of the charge against him. The amended information charges that the defendant “on the 14th day of August, 1964, * * *, did then and there unlawfully and feloniously molest and annoy a minor child, to-wit: Christine * * * of the age of Nine (9) years by then and there touching said minor in a lewd and lascivious manner and by taking indecent and improper liberties with said minor; * * Section 563.160 sets out five kinds or categories of acts or conduct which shall constitute annoying or molesting a minor. The information is based on two of these kinds of prohibited behavior. One of these specified in the statute is any person who shall “by language, sign or touching such minor, suggest or refer to any immoral, lewd, lascivious or indecent act”; the other is taking “indecent or improper liberties with such minor”. To sustain this contention, the defendant cites the cases of Dameron v. State, 8 Mo. 494, State v. Jackson, Mo., 369 S.W.2d 199, State v. Maher, 232 Mo.App. 998, 124 S.W.2d 679, and State v. Daegele, Mo., 302 S.W.2d 20. These decisions have been considered, but they are not controlling or persuasive of the point in question.

The defendant in a criminal case has a right to demand the nature and cause of the accusation, and the indictment or information must be sufficiently definite to enable him to prepare his defense and to constitute a bar to further prosecution for the same offense. Art. 1, § 18(a), Constitution of Missouri 1945, V.A.M.S. As a general rule, however, it is sufficient to frame the indictment or information in the language of the statute. In this case the information begins with the statement of the ultimate fact that the defendant did unlawfully and feloniously molest and annoy a minor child. The specifications that follow are that he did so by touching said minor in a lewd and lascivious manner and by taking indecent and improper liberties with her. These allegations follow the language of the statute and are sufficient to satisfy constitutional requirements. State v. Kornegger, 363 Mo. 968, 255 S.W. 2d 765, 767 [1-5]; State v. King, Mo., 303 S.W.2d 930, 935 [7]; State v. Randall, Mo., 248 S.W.2d 860, 863 [4]. The assignment of error is denied.

During the state’s case the prosecuting attorney called the younger sister, then age 7, and without having her sworn asked her name and age. The prosecuting attorney then informed defense counsel that he might inquire or have her sworn. Defendant’s counsel inquired if the prosecuting attorney was through and being informed in the affirmative he thanked the sister and she was excused. No objection was made at the time to this procedure but the defendant contends that he was prejudiced by being placed in a very “compromising position” by what he apparently considers to be an insincere show of fairness by the state. He relies upon State v. Cox, Mo., 263 S.W. 215, in which the prosecuting attorney in a statutory rape case stationed in the courtroom a woman with whom the defendant had had improper sexual relations and dramatically called upon her during cross-examination of the defendant to give incompetent testimony to contradict an answer of the defendant by which the state was bound. The situation in the Cox case is quite unlike that in the case at bar.

The apparent purpose of calling and interrogating the younger sister was to demonstrate that she was an incompetent witness under § 491.060(2) which provides that a child under ten years of age who appears incapable of receiving just impressions of the facts respecting which she is to be examined or of relating them truly is incompetent to testify. The trial court has a duty in each case to determine whether a child under ten is competent before permitting the child to testify. State v. Groves, Mo., 295 S.W.2d 169, 172 [3]; Benjamin v. Benjamin, Mo.App., 370 S.W. 2d 639, 642 [7]; State v. Cox, Mo., 352 S.W.2d 665, 672 [18] ; 58 Am.Jur., Witnesses § 134, p. 101. See also Beil v. Gaertner, 355 Mo. 617, 197 S.W.2d 611, 616 [6]. Therefore, there was nothing inherently wrong in producing the younger sister before the court, but the better practice especially in a criminal case is for the examination on voir dire to determine the competency of the child to be made out of the jury’s presence. State v. Groves, Mo., 295 S.W.2d 169, 171, 173; State v. Tillett, Mo., 233 S.W.2d 690, 693 [11] ; State v. Turner, Mo., 274 S.W. 35, 36; Pollard v. Decker, Mo.App., 354 S.W.2d 308, 314 [3], In this case there is no ruling of the trial court to review since no objection was made at the time. Moreover, prejudice has not been demonstrated and none is suggested by our examination of the record. The sister had been mentioned prominently in previous testimony and producing her to forestall comment by either side for failure to offer her as a witness cannot be said in these circumstances to be prejudicially erroneous.

The defendant next claims that the court erred in giving instruction No. 5, the verdict-directing instruction, because it did not require a finding that the acts were done intentionally. State v. Harris, Mo., 313 S.W.2d 664, cited by the defendant, involved a charge of receiving stolen property with intent to defraud and is not applicable here. State v. Mathews, Mo., 328 S.W.2d 642, involved the sufficiency of the evidence in a molestation case and does not support the claim that a specific finding of intent is necessary in an instruction.

A specific finding of intention is unnecessary in a molestation case where the verdict-directing instruction requires a finding that the defendant did unlawfully and feloniously molest and annoy the minor child by touching the child in a lewd and lascivious manner and by taking indecent and improper liberties with such minor child. State v. King, Mo., 303 S.W.2d 930, 935-936 [8]; State v. Frazer, 363 Mo. 77, 248 S.W.2d 645, 646 [1]. The instruction was not erroneous on the ground alleged.

Next the defendant charges that instruction No. 5 was erroneous in that it gave the jury a roving commission to find what were indecent and improper liberties. State v. Jackson, Mo., 369 S.W.2d 199, tested the sufficiency of an indictment which chargéd an attempt “to feloniously and burglariously break into” a dwelling with the intent to molest a minor “by taking improper liberties with said minor”, and the failure of the court to instruct the jury as to the meaning of “improper liberties” as used in the main instruction. 369 S.W. 2d 200. In reversing and remanding the judgment, the court distinguished cases which used the term “indecent and improper liberties” and additional terms. See 369 S.W.2d 203-204. The instruction did not constitute a roving commission in view of the additional adjectives and identifying terms used in -instruction No. 5 as noted above.

The defendant’s final contention is that he was prejudiced by -the state calling as a witness the judge of the magistrate court and having him identify records of the preliminary hearing. The witness testified that the records of the preliminary hearing which he had with him consisted of a copy of the criminal transcript and the notes which the judge took at the time of the hearing; he testified further that magistrate courts do not have reporters. On cross-examination defendant’s counsel established that the notes were not a complete record in that they were not a verbatim report of the evidence and that defendant’s counsel was present representing the defendant at the preliminary hearing. The witness was then excused without any objection having been made. Although the records were identified, they were not offered in evidence by either party. The defendant cites cases concerning the circumstances under which evidence and records of a preliminary hearing are admissible. We do not regard these cases as determinative of the contention.

The defendant’s counsel during cross-examination of the prosecuting witness brought up the subject of her testimony at the preliminary hearing and in several instances sought to compare her testimony given at the trial with that previously given. There is nothing to indicate that the prosecutor was not acting in good faith in identifying the records so that they might be equally available to the state and the defendant and offered if the need arose. The record is devoid of any showing of prejudice by reason of the appearance of the magistrate and his identification of the records. The defendant is in no position to complain since he made no objection at the time and actively participated by cross-examining the witness to establish the precise nature of the records.

We have considered all questions presented by the defendant and find them to be without merit. We have also examined the parts of the record and entries designated in S.Ct.Rules 28.02 and 28.08, V.A. M.R., and find them to be in proper form and free from error.

Accordingly the judgment is affirmed.

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    Mrs. A. J. (Nell) GARDNER, Respondent, v. James H. BERNARD, Executor of the Estate of Paul H. Gardner, Appellant. Kay GARDNER, Respondent, v. James H. BERNARD, Executor of the Estate of Paul H. Gardner, Appellant. Albert F. GARDNER, Respondent, v. James H. BERNARD, Executor of the Estate of Paul H. Gardner, Appellant. Kay GARDNER as Next Friend of Kathryn C. Gardner, Respondent, v. James H. BERNARD, Executor of the Estate of Paul H. Gardner, Appellant. Kay GARDNER as Next Friend for Timothy F. Gardner, Respondent, v. James H. BERNARD, Executor of the Estate of Paul H. Gardner, Appellant.
    Nos. 51316—51320.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Rehearing Denied April 11, 1966.

      Albert Thomson, Kansas City, Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel, for respondents.
    Warren E. Slagle, Slagle & Bernard, Kansas City, for appellant.
   EAGER, Presiding Judge.

This appeal involves five different suits, consolidated here for briefing and argument. Each case has its own transcript, but it was stipulated that the evidence in the Kathryn Gardner case would constitute a part of all records. Each suit seeks to enforce an “irrevocable trust account” against the estate of Paul H. Gardner, alleged to have been originally established at $3,000 in 1945, and invested in real estate mortgages. Defendant, in each case, denied the creation of any trust, and pleaded certain other defenses which are not preserved here. The essential issue is trust or no trust and, if any, what is due to any or all of the parties. The trial court, without any accounting as such, found for all plaintiffs and rendered a money judgment for each of three in the amount of $15,599.-64, and for two in the amount of $15,386.-00 each. Appeals were duly taken in all cases.

We shall attempt to clarify the confused and confusing details but do not anticipate a complete success in the endeavor. Paul H. Gardner died in 1963, a resident of Kansas City, Missouri. He had been married three times, the last in 1958, and twice divorced. His last wife, Lucille, and a previous wife, Betty, survived him. He had no children. The only blood relatives who survived Mr. Gardner were Albert F. Gardner of Los Angeles, a nephew, and his two children, Timothy and Kathy, who were 20 and 17, respectively, at the time of the death. Albert’s wife was Kay Gardner; the widow of a brother, A. J. Gardner, also survived; she lived in Nebraska and she was usually referred to as Nell Gardner. Albert Gardner had lived in Los Angeles since 1937; beginning in 1939, Paul Gardner visited A1 (generally so referred to) and his family every summer at their home, and in later years his last wife always came with him; these visits included 1962. The relationship between Mr. Gardner and Al’s family was obviously rather close.

According to the testimony of A1 Gardner (not admitted in his own case), his uncle Paul showed him an account book, identified as Exhibit 5, during the summer of 1945; this, A1 said, was a “record of all his business transactions.” A1 further testified: that during 1945 Paul told him and his wife that “he was setting up trusts taking advantage of the $3,000 gift exclusion under the income tax law and that these were to be set aside for our future use”; that thereafter each year “until 1958” Paul, being proud of the growth of income shown in the book, took occasion to “show how these accounts had grown each year”; that Plaintiffs Exhibit 4 (also Exhibit 6, a duplicate) a page from the book, which was entitled “Mortgage Account— Kathy Gardner, Grand niece— * ■* * Invested 1st Mortgages,” was referred to by Paul as reflecting “the growth of this trust fund * * * into 1956”; also, that Paul stated that interest checks after 1956 were being “siphoned off into separate accounts * * * to be used for the beneficiaries”; that Paul told him that the accounts were being limited to $9,800 in order to get away from the payment of income taxes on amounts over $600, but told him and his wife that the monies accruing each year “were to be put into similar accounts * * * for the various beneficiaries.” More specifically, Al testified that in the summer of 1946 Paul told him: that he “had established trusts in the name of Tim, Kathy, myself, my wife and my mother (Nell) in the amount of $3,000 each” in order to take advantage of gift tax rulings; that “these trusts were to accumulate for * * * each * * *, they were to be irrevocable trusts for our future use”; that “the gift was $3,000.00 which was to be allowed to accumulate to a total of approximately $10,000”; that the income was then to be funneled off into similar arrangements; also that he, Al, was aware that the principal was invested in mortgages which were being handled by a firm in Kansas City and that he had met one of the men handling the mortgages.

Kay Gardner, Al’s wife, testified in less detail: that she knew Paul Gardner before she and Al were married in 1935; that he visited them every summer and had become “a part of our family”; that she had seen the account book, Plaintiff’s Exhibit 5; that Paul had a desk in their home for the conduct of his business; that Paul said, in referring to the book, that “those were our trust funds” and that when the funds had reached “under $10,000 * * * the interest * * * would be placed for us to add additional funds * * * ”; that Paul said that the trusts were for Al, herself, Tim, Kathy and Nell. Other testimony will be referred to in connection with certain exhibits.

The account book, Plaintiffs Exhibit 5, %/as not offered in evidence; certain pages were offered and received. There was no specific evidence as to the times or manner of its preparation but parts of it were shown to be in Paul’s handwriting and, as already stated, it was shown to have been in his personal possession over a period of 17 years. It was also shown by exhibits received in evidence that at least as early as 1956 the firm of Reed and Tucker of Kansas City was handling the collection (and perhaps the purchase) of real estate notes and mortgages for Paul; that in June, 1960, the John J. Van Evera Company took over that function. Certain sheets from the records of each firm were received, over objection, listing various mortgages and the collections thereon for the years 1956-1962, inclusive; these sheets listed also checks issued from Paul’s account to Al Gardner, Kay, Tim, Kathy, and Mrs. A. J. (Nell) in 1956 ($587.40 each), and thereafter four for 1957 and 1958 (omitting Nell) for $588 each, five in 1959, 1960 and 1961 (to all) for $588, with four only for 1962. The only evidence on the subject was that these checks were issued on instructions from Paul. Cancelled checks issued by these agencies were offered and received, in the amount of $588 per year to Al, Kay, Kathy, Tim and Nell from 1956— 1961, inclusive (1956 was for $587.40) with 1962 checks to Kathy, Al and Tim, and 1963 checks issued (but with signatures torn off) to Kathy, Al and Tim. These checks were offered and received separately in the cases of the respective drawee-plaintiffs; generally, they conformed to the listings on the ledger sheets. The checks and ledger sheets were procured from the original records and files of the respective agencies; Mr. Reed, Mr. Tucker and Mr. Van Evera were all dead, as was Mr. Gardner. The President of the Van Evera Company specifically identified its ledger sheets and checks as parts of its regular business records. The records and checks of Reed and Tucker were found by Mrs. Reed, Executrix of Mr. Reed, among the business records and files of the firm and she turned them over upon request to Mr. Bernard, Executor of Paul Gardner, who had also been the attorney for Mrs. Reed as Executrix. There was evidence that the endorsements on the checks to Kathy, Tim, Al, Kay and Nell, beginning with 1959, were all in Paul’s handwriting. All of the earlier checks were endorsed by the respective payees and returned to Paul.

Three cheeks of Al Gardner in 1956, 1957 and 1958, payable to P. H. Gardner, were introduced; these were in the respective amounts of $2,352.00, $2,352.00, and $2,349.70; all were endorsed and deposited by Paul. Al testified that Paul told him that, beginning with 1956, it would be necessary to create new accounts “to escape paying income tax,” and that these checks were given in exchange for checks delivered by Paul to him in the same amounts. Each of these checks of Al’s bore a notation “Int. on Trusts Tim, Kathy Kay & Al.” There was no evidence of any disposition by Paul of those monies, nor were there further conversations after 1958.

The President of the Van Evera Company, which took over the handling of the mortgages in June, 1960, testified that the notes and mortgages of Mr. Gardner handled by that company were not in any way segregated and that he said nothing to her about any trusts. She identified the checks issued to relatives at his specific directions. These mortgages were obviously the same ones or substitutes for those handled by the previous agency, Reed and Tucker. The checks issued to these plaintiffs bore no relation to the collection on any particular notes or group of notes, but came out of the general account.

Three exhibits, each entitled “Mortgage Account,” bore the names of Kathy, Timothy and Albert Gardner. Exhibits 6, 34, 38. These were obviously in Paul’s handwriting but there was no evidence showing the time or times of preparation, except perhaps for Al’s generalizations about seeing the accounts in the book from time to time. Each of these sheets shows an entry of “12/31/45 Prin. 3,000,” and additional entry of “12/31/47 Prin 3000,” and sundry interest entries which apparently represent 6% interest compounded semi annually; each of the principal balances terminated with the sum of $9,800 on 12-31-55, completed by an addition of $154.94 to principal. Thereafter interest of $588 was shown in each year as credited and withdrawn, leaving the last balance (still) $9,800 in 1962. Another Exhibit, No. 7, was entitled “Total Mortgage Accounts — Al & family — including Nell,” but the notation below that was: “Gift & Int. Acct.” The first entry was “1945 15000 (5) 3000 gifts”; an interest entry appears for 1946 at 6% compounded semi annually; for 1947 appears “15969.15 (5) 3000 gifts + Int”; from 1948-1960, inclusive, interest entries appear, with Payments also appearing from 1955-1960, inclusive, in equivalent amounts (with one minor exception), generally $2,940. At that point the balance carried was $49,000. In “Jan. 61” under “Paid” appears the figure $19,600 to “Kay & Mrs. A. J.” with a final terminal balance thereafter and in 1962 of $28,400. The meaning of this exhibit is not too clear.

Purported copies of income tax returns of Paul from 1956 to 1962, inclusive, were received, together with certain work sheets, as was also the testimony of an accountant who had reviewed these papers. All had been found in Paul’s records and files and were produced, on subpoena, by his Executor. The net result of this evidence was that Paul had shown on his work sheets for those years substantial amounts of the total interest received as “applied to others” and had made no return of those amounts. These sums included $588 per year for each of such years as supposedly applied to each of the following, — Al, Kathy, Kay, Tim and Nell, except that Kay and Nell were omitted in 1962. This accountant had also checked the records of the two agencies who had handled Paul’s notes and mortgages. No record was found of any information returns filed by Paul as Trustee for any of the parties involved.

In a letter to Nell (Mrs. A. J. Gardner) of March 19, 1958, Paul stated, in part: “Im busy trying to get away for Calif, this coming Friday. Some years ago I set up some trusts to cut down inheritance taxes in the event of my death. You were included among them, and since they have now reached a certain amount, annual interest checks must be drawn to avoid Income Tax which applies only on income of $600 or more per year. So will you please deposit this check to your account and send me your personal check for the same amount.”

A “Financial Statement” being a page from Paul’s account book, was offered and received in the Kay, Al and Tim Gardner cases, as Exhibit 32. Under date of “Jan 1, 1963,” it listed various assets and among the liabilities listed appeared the following: “Al & Kay 9800, Tim $9800, Kathy $9800.” In Paul’s will, executed on June 29, 1961, there appeared the following in Article III: “Over a period of many years I have been investing the funds of certain of my friends and relatives in real estate first mortgages, and it is my desire that any funds of theirs which I still have at the date of my death, be returned to them as promptly as possible. As of the date of this instrument I have funds of the following persons in the following amounts:

⅝ * * ⅜ ⅝ ⅛
Albert F. and Kay Gardner 9,800.00
Timothy Gardner 9,800.00
Kathy Gardner 9,800.00”

After certain bequests, the residue of his estate was left in a trust concurrently and separately established, the terms of which do not appear. We conclude that Plaintiffs’ Exhibit 22, a letter from Novus Reed to Paul, dated December 20, 1955, and certain notations on the backs of files supposedly kept by Reed or Reed and Tucker, were hearsay and inadmissible. In so far as they might be material, no authorization of Gardner was shown to make them admissible as against his interest. We further conclude that the exhibits found by the defendant Executor in the files and records of Paul Gardner were admissible; some of these were parts of the book identified by A1 Gardner as a record continuously in Paul’s possession; the copies of income tax returns were obviously the best evidence available to the plaintiffs, for only the defendant could procure the originals. The longhand work sheets appear to have been corroboratory of the returns. The exhibits constituting ledger sheets and checks of Reed and Tucker and of the Van Evera Company were fairly admissible as business records under all the circumstances. Reed and Tucker were both deceased, and the identification of the records was obviously the best available under the circumstances. There has been no suggestion of any impropriety in connection with any of the records. All are to be considered merely for what they may be worth.

The inventory of Paul’s estate listed property appraised at approximately $359,000. We note: that Paul, from 1945 to 1955, apparently added the supposed interest to principal on his respective “mortgage accounts” until each reached a total of $9,800; from 1956 to 1958, inclusive, he issued checks for “interest” but had the beneficiaries endorse and return them, thus showing an interest accrual but also an equivalent payment or withdrawal (described both ways in different documents) for each year. The greatest balance carried on any such individual account at any time was $9,800. From 1959 on, such checks as were issued were endorsed by Paul himself with no accounting, except that he continued to show “interest” accruals in his three “mortgage” accounts to and including 1962, but with corresponding withdrawals or payments. None of the withdrawals or payments shown from 1955 on appear to have reached the beneficiaries, nor was any other disposition shown. We can only assume that Paul retained and used that money as a part of his general funds and did not actually include it in any trust or trusts.

The theory of the petitions and of plaintiffs at the trial was that Paul had established five trusts of $3,000 each by his oral declarations and that he had corroborated his acts and declarations by exhibiting his accounts showing the investment of such funds as trustee; in Respondents’ brief here it is stated (p. 41) that deceased declared himself “trustee for $3000 of first mortgages,” and again (p. 55) that he desired to set up trusts “composed of an undivided interest in those notes and mortgages.” It was not specifically shown that Gardner owned any notes or mortgages in 1945. The theories, as well as the evidence, are somewhat confusing. However, “[i]f the facts alleged in equity justify the court in declaring a trust on any theory, the petition must be considered sufficient.” Swon v. Huddleston, Mo., 282 S.W.2d 18, 55 A.L.R.2d 205. Concerning the exhibits, we note that acts and entries of a trustor done or made subsequent to the supposed creation of a trust may be considered as indications of his intent. Harding v. St. Louis Union Trust Co., 276 Mo. 136, 207 S.W. 68; St. Louis Uniformed Firemen’s Credit Union v. Haley, Mo.App., 190 S.W.2d 636.

There is no doubt that one may establish an oral, voluntary trust in personal property, and that he may constitute himself as the trustee. However, the intent must be clearly expressed by words or conduct or both, enforceable duties must be thus imposed, the trust must be presently created, and the object of the trust must be property in existence, ascertained or ascertainable; the declaration need not be in any particular form. Scott on Trusts, 2nd Ed., Vol. 1, §§ 17,23,24, 26; Bogert, Trusts & Trustees, 2nd Ed., §§ 45, 46, 50, 111; Restatement of the Law, Second, Trusts, §§ 2, 17, 23, 24; Bingen v. First Trust Co. of St. Paul (CA 8), 103 F.2d 260; Eldridge v. Logan, Mo.App., 217 S.W.2d 588; Rollestone v. National Bank of Commerce in St. Louis, 299 Mo. 57, 252 S.W. 394; Watson v. Payne, 143 Mo.App. 721, 128 S.W. 238; Harris Banking Co. v. Miller, 190 Mo. 640, 89 S.W. 629, 1 L.R.A.,N.S., 790; Korompilos v. Tompras, Mo.App., 251 S.W. 80; St. Louis Uniformed Firemen’s Credit Union v. Haley, Mo.App., 190 S.W.2d 636. If a trust is presently created, the enjoyment may be postponed. See the authorities just cited. In true legal theory, the terms of the trust should be stated, but in many of the adjudicated cases the terms are actually developed wholly or in part by the subsequent acts and conduct of the trustor. There must be a trust res, or corpus, but it has been held that an undivided interest in money or homogenous property will suffice. Rollestone, supra; United States Trust Co. of New York v. Commissioner of Internal Revenue, 296 U.S. 481, 56 S.Ct. 329, 80 L.Ed. 340. Scott, supra, § 76. Thus, we all know that enormous amounts of money are held in investment trusts and pension trusts where each beneficiary merely owns an undivided equitable- interest in the total assets — money and property. Any trust may be revocable or irrevocable, according to the intent expressed by the trustor in his words or by his conduct.

We have determined that certain trusts were established by Mr. Gardner, as we shall indicate later. His statements to his nephew in 1945 and 1946 were sufficient to constitute a present declaration and creation of the trusts, for all practical purposes, although he did not pinpoint the exact time of their creation. The declarations were substantially contemporaneous with the act of creation; the amount of each trust was designated, the trust beneficiaries were named. While A1 Gardner testified that the trusts were stated to be “irrevocable,” we have determined from Mr. Gardner’s acts and conduct that it was his intention that they should be revocable. The circumstances may evidence the intent to make such a trust revocable. Restatement of Trusts, Second, § 330. The trusts, as thus established, were of $3,000 each, subject to such additions as the trustor might make in the future by way of principal or interest; they were not, and could not have been trusts of an undivided interest in notes and mortgages for it was not shown that he then owned any. The investment of the money in such securities, along with his general funds, did not change the essential nature of the trust. We shall discuss later the sufficiency of the evidence to create a trust for Albert Gardner, but in the meantime discuss all jointly.

In reaching these conclusions we have considered: that these five plaintiffs were natural objects of Mr. Gardner’s bounty, and that three of them were his only blood relatives; that, while such is not conclusive, he frequently referred to these relationships as trusts, although he was not entirely consistent in his record keeping; that he received and deposited Al’s checks showing notations of interest on “Trusts”; that he specifically referred to the trusts in his letter to Nell; that he frequently showed the accounts, with their accumulations, to Al and his wife; that, so far as the record shows, he did not pay any income tax on the supposed income from these accounts (although, contrariwise, he made no information returns); that his own records specifically showed the allocation to Al, Kathy and Tim in separate “mortgage” accounts of $3,000 in 1945 and the additions of principal sums later, namely, $3,000 in 1947 and $154.94 in 1955; that his record of “Total Mortgage Accounts” included “Al & family, including Nell,” and listed sums of five times the individual accounts; and that he recognized in his will, though somewhat inconsistently, the existence of three funds of $9,800 each, as being in his possession but which did not belong to him.

The statement in Respondents’ brief that the interest rate of 6% “was fixed by the terms of the trust” shows a certain lack of appreciation of the basic nature of a trust; ordinarily, trust income is merely the net amount which the corpus of the trust actually earns. In this matter Paul adopted an unusual method of allocating income; he did allow 6%, compounded semi annually, to each trust with no consideration of commissions or other expense; however, that was his own method of allowance of income and his estate is bound by it; he, as trustee, did not “owe” any such sums, but he could increase the trust as he saw fit. In this manner, according to his own records, he allowed the separate trusts to increase to a total of $9,800 each as of the end of 1955. After that date he added nothing, either as interest or principal, nor did he set up any new accounts or trusts with the income as (according to Al) he told the beneficiaries he would do. In this respect his actions “spoke louder than his words.” And the termination of each trust as a matter of record at $9,800 is one indication, and perhaps the strongest indication, that it had been and was his intent to create revocable trusts and to retain control over the amounts, the accruals and the cutoff date. After 1955 Paul showed in his records the withdrawal or payment of all interest accumulations; we could only speculate as to his intentions in continuing to show the accrual of interest, and we shall not speculate. The fact remains that he never paid any beneficiary anything, and he never showed, on his record, any balance in any trust of more than $9,800. He did not exhibit any of the accounts to his nephew after 1958. If he could revoke the trusts he could limit the corpus to any desired amount (above $3,000) and he did so, at $9,800; and likewise he could cut off all further accruals and he did that. We conclude that no trust exceeded $9,800 at any time and that no beneficiary is entitled to any interest on that amount or to any accruals whatever beyond that amount. The retention of a right on the part of the trustor to retain and use all or part of the income does not, in and of itself, invalidate a trust. In re Soulard’s Estate, 141 Mo. 642, 43 S.W. 617; Harris Banking Co. v. Miller, 190 Mo. 640, 89 S.W. 629; and such a right is merely an incident of the total right to revoke a revocable trust.

We next consider whether any such trust has been established for the benefit of Al Gardner, for his own testimony was excluded in that case, upon objection. The records and exhibits are available to him, however, and one of the individual “mort.gage” accounts was kept in his name. His wife, Kay, testified: that Paul Gardner showed her the account book, that the books and accounts lay “there on the desk,” and that he told them that “those were our trust funds”; that he referred specifically to the time when the “trust funds” would reach an amount “under $10,000” and discussed the procedure to be followed then; that he said that “these funds” would grow and benefit “those named in our family”; that he also said that the trusts were for Al, Tim, Kathy, Kay and Mrs. Nell Gardner. We conclude that such evidence, along with the various exhibits, was sufficient to establish a trust in favor of Albert Gardner to the extent already noted.

There is some indication that prior to Mr. Gardner’s death he treated the trusts for Kay and Nell in a somewhat different manner than he did the others. These indications were, as already stated: that in his sheet of “Total Mortgage Accounts” he showed, as of January, 1961, $19,600 as “Paid” to “Kay and Mrs. A. J.” and thereafter carried a total balance of $28,400 in lieu of the previous balance of $49,000. Of course, no such payment was made (incidentally, his arithmetic was wrong, and the balance should have been $29,400). In his financial statement of January, 1963, and in his will he showed, respectively, “liabilities” and funds due others of $9,800 to Al and Kay and $9,800 each to Kathy and Tim. He continued, however, to issue checks to Kay and Nell through 1961, although retaining the money. The meaning of this conduct on his part was ambiguous, and we do not find that these records are sufficient to indicate an intent to revoke those trusts. We hold that trusts for these two beneficiaries existed at his death to the extent stated.

We have not lost sight of the oft declared rule that the evidence to establish a trust must be cogent, clear and convincing, and that ordinarily it should dispel all doubt. Northrip v. Burge, 255 Mo. 641, 164 S.W. 584; Van Studdiford v. Randolph, Mo.App., 49 S.W.2d 250; Harding v. St. Louis Union Trust Co., 276 Mo. 136, 207 S.W. 68. But an oral trust is rarely, if ever, declared in words of technical and legally definitive meaning; the rule means essentially that, after considering all the evidence, oral and documentary, the court must be completely and fully convinced that a trust was created. We are so convinced here, and it is not essential that “any particular form be followed, or that the words ‘trust’ or ‘trustee’ or their equivalent be used.” St. Louis Uniformed Firemen’s Credit Union v. Haley, Mo.App., 190 S.W.2d at loc. cit. 639. The sufficiency of the evidence here compares favorably with that held to be sufficient in Rollestone v. National Bank of Commerce in St. Louis, 299 Mo. 57, 252 S.W. 394.

Here, as in any case tried to the court, we make our own findings. Civil Rule 73.01(c). We do not agree with some of the findings of the trial court. We have already indicated what the findings and conclusions should be but, to be perhaps tediously specific, we find: that in 1945 Paul H. Gardner created and established revocable trusts for the benefit, separately, of each of these five plaintiffs; that the original principal amount of each of said trusts was $3,000; that by accumulations and voluntary additions thereto each of such trusts was increased to a principal amount of $9,800 as of the end of 1955; that no further sums accrued thereon or thereto, and that the total sum to which each of the plaintiffs is entitled is $9,800. We conclude that each of the five plaintiffs in these actions is entitled to recover $9,-800 of and from the defendant.

The judgment and decree of the trial court is reversed, with directions to enter a new judgment in accordance with the views stated in this opinion.

All of the Judges concur.


author: HENLEY, Judge.

text:
    Bob C. MATHISON et al., Petitioners-Appellants, v. PUBLIC WATER SUPPLY DISTRICT NO. 2 OF JACKSON COUNTY, Missouri, Defendant-Respondent.
    No. 51819.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 11, 1966.

      Preston H. Longino, Kansas City, Blaine E. Strader, Richard T. Cole, Raytown, for appellants.
    Charles V. Garnett, Richard A. Erickson, Walter A. Raymond, Kansas City, for respondent.
   HENLEY, Judge.

This is a proceeding under § 247.170, RSMo 1959, by residents of the City of Raytown as owners of real estate located within the territory of defendant, Public Water Supply District Number Two of Jackson County, to detach and exclude from the District all that part of its territory lying within the corporate limits of the city. A motion to dismiss filed by defendant was sustained and the action dismissed. Plaintiffs appeal from that judgment.

Section 247.170 provides that “Whenever any city owning a waterworks or water supply system extends its corporate limits to include any part of the area in a public water supply district, and the city and the board of directors of the district are unable to agree upon a service, lease or sale agreement, or are unable to proceed under section 247.160, then upon the expiration of ninety days after the effective date of the extension of the city limits, that part of the area of the district included within the corporate limits of the city may be detached and excluded from the district in the following manner]].]” The “manner” provided describes these steps (excluding minor details) to be taken: (1) A petition “to detach and exclude” shall be filed in the circuit court of the county in which the district was organized; (2) “The court, being satisfied as to the sufficiency of the petition, shall * * * call a special election * * *” submitting to the qualified electors of the district the “proposal to detach and exclude the part of the district lying within the corporate limits of the city * * * ”; (3) Notice of the election shall be given and published; (4) If the proposal is approved by a majority of the voters, “The court * * * shall * * * enter a decree detaching and excluding the area in question * * * from the * * * district.”

Section 247.170 further provides that the decree mentioned in step (4) above shall not become final until the city shall show to the court that it has assumed and agreed to pay: (1) the court costs and costs of calling and holding the special election, and, (2) either in lump sum or in installments a certain porportion of all liquidated general obligations and of all unpaid revenue bonds and interest of the district.

Plaintiffs took the first step on July 26, 1965, by filing their petition alleging, inter alia, that: (1) the City of Raytown owns a water supply system; (2) all of the area of the defendant is now within the corporate limits of the city and has been for more than 90 days before filing the petition; (3) the city and the board of directiors of defendant are unable to agree upon a sale agreement of the assets of defendant, and are unable to proceed under § 247.160 because defendant refuses to proceed under that section; and, (4) the city has consented to the holding of the election. Plaintiffs prayed that the court call a special election in accordance with the statutes and if the proposal receives a favorable vote, that it decree that the area described be detached and excluded from the district. Defendant’s motion to dismiss attacked the jurisdiction of the court over the subject matter of the action. Attached to and made a part of this motion was a copy of Ordinance No. 120 of the City of Raytown adopted July 6,1965, a copy of a contract between the City of Raytown and Raytown Water Company, a corporation, and an affidavit of the president of defendant who was also a resident of the city.

Ordinance No. 120 authorized the city: (1) to purchase that part of the water distribution system of Raytown Water Company (hereinafter referred to as Water Company) lying south of 79th Street in the city and pay the purchase price from surplus in the city’s general fund; and, (2) to operate and maintain a water supply system and supply water to its inhabitants as authorized by § 91.010. The contract between the Water Company and the City provided for the sale and purchase of the above-described distribution system for $62,-500, subject to the approval of the Public Service Commission of Missouri. The affidavit of the president of defendant discloses the following facts.

The purchase price of this water distribution system was paid by the city in one lump sum in July, 1965, out of surplus in the city’s general fund. No part of the purchase price was paid by the issuance of general obligation or revenue bonds. The proposition of whether the city should acquire the water distribution system and issue bonds in payment therefor has not been submitted to the electors of the city. Also in July, 1965, the Public Service Commission entered an order stating, in substance, that it “had no objection” to the sale by Water Company to the city. Both the Water Company and the Water District were formed and organized before the incorporation of the City of Raytown. Ray-town Water Company is a privately owned corporation organized in 1925. It serves what is generally described as the northern portion of the city. The Water District was incorporated by decree of the circuit court of Jackson County in 1935, under what is now Chapter 247, RSMo 1959. It serves what is generally described as the southern portion of the city. The City of Raytown was incorporated as a fourth class city in July, 1950. The city’s original boundaries included only a part of the territory of the Water District. By successive actions of the city in 1959, 1960 and 1961, additional territory of the Water District was annexed so that now all of its territory is within the corporate limits of the city. Before enactment of Ordinance No. 120 the city did not own or operate a water supply system, the inhabitants of the city being served exclusively by either the Water Company or the Water District. That portion of the system of the Water Company purchased by the city lies south of 79th Street and will supply water to approximately 300 of approximately 9000 city water users. This system is not physically connected with the balance of the Water Company’s system, and will get its supply of water from the City of Kansas City through one of the latter’s mains at the intersection of 81st Street Terrace and Blue Ridge Road. It is readily apparent from this description of the distribution system purchased by the city that it will serve the same area as that which the Water Company was denied a right to serve by order of the Public Service Commission as a result of the opinion and mandate of this court in the case of State ex rel. Public Water Supply District No. 2 of Jackson County, etc., v. Burton, et al., Mo.Sup., 379 S.W.2d 593.

The defendant alleges in its motion to dismiss that “the City does not own a waterworks or water supply system within the meaning of paragraph 1, of section 247.170” because Ordinance No. 120, and the acts of the city pursuant to the ordinance, are void for these reasons: (1) that the city could not acquire any right to serve water to those inhabitants of the city residing in the area south of 79th Street, because the Water District has the exclusive right and obligation to serve that area; (2) that the city was required by law to call a special election and submit the proposition of acquiring this waterworks system to its electors before its purchase; (3) that the purchase price for the waterworks system legally may be paid only by the issuance of revenue bonds approved by electors of the city and that payment of the purchase price from the city’s general fund constitutes an unlawful appropriation from that fund; (4) that the ordinance is a local or special law violating Article III, § 40, subparagraph (30), Constitution of Missouri, V.A.M.S., in that it makes provision for distributing water only to those inhabitants of the city residing south of 79th Street rather than to all inhabitants; (5) that the city, being in privity with the Water Company, is bound by the order of the Public Service Commission and that that order is res judicata of any claim of right of either the Water Company or the city to serve this area; (6) that the contract between the Water Company and the city is an arbitrary and unlawful attempt by the city to aid the Water Company in circumventing the order of the Public Service Commission and the mandate of this court; (7) that the City of Raytown was not a “city owning a waterworks or water supply system” at any time before it extended its corporate limits to include the several parts of the area of the Water District. In sustaining this motion to dismiss, the trial court did not specify any particular ground or grounds on which it based its order and judgment.

The defendant contends that tax revenue on hand in the city’s general fund may not be used to purchase a water distribution system; that the city is required to borrow money for such purpose, i. e., that the only revenue the city may use for this purpose is that produced by indebtedness evidenced by issuance of revenue bonds approved by its electors. Plaintiffs contend that revenue on hand in the year 1965 was properly available and used to pay the full purchase price. The issues presented for review relate to the disbursement of revenue and its preservation, and involve construction of the revenue laws of this state; hence, jurisdiction is vested in this court. Article V, § 3, Constitution of Missouri; State ex rel. Attorney General v. Adkins, 221 Mo. 112, 119 S.W. 1091; State ex rel. Pullum v. Consolidated School District No. 5 of Stoddard County, Mo., 233 S.W.2d 703 [1]; State ex rel. Ginger v. Palmer, Mo.App., 194 S.W.2d 736, 739 [1, 2] transferred to Supreme Court, 198 S.W.2d 10.

The first point briefed by both parties is essentially the same as that on which our jurisdiction is based, and to this point the parties devote the larger portion of their briefs. The defendant contends that Ordinance No. 120 is void; therefore, the City of Raytown is not “a city owning a waterworks” within the meaning of § 247.170. If the ordinance is void it follows as a matter of course that the city does not own a waterworks or water supply system, and if it does not own such works or system plaintiffs are in no position to maintain this action. The heart of defendant’s theory is that the city may not acquire a waterworks by paying cash in one lump sum out of unencumbered surplus in its general fund, but that it must incur an indebtedness for this purpose. Parenthetically we note, this theory of compulsion to “buy now — pay later” is not foreign to the economic practices of twentieth century America. But this parenthetical observation may be beside the point. The point is: may a city purchase a utility such as this by paying cash from its unencumbered, and otherwise unappropriated, surplus funds, or is it mandatory that it fund the purchase by debt.

Defendant insists that the city must submit to the electorate and secure its approval before it can own and operate a water system no matter what the source of the funds with which it is purchased; that, in any event, the exclusive method of procedure is to submit to its electorate at an election the proposition of acquiring the system and issuing revenue bonds in payment therefore as provided in § 91.120. In support of its argument defendant relies heavily on State ex rel. City of Blue Springs v. McWilliams, 335 Mo. 816, 74 S.W.2d 363.

In the Blue Springs case, supra, the city sought to borrow money by the issuance of revenue bonds to pay for the construction of a waterworks plant without first procuring the assent of the city’s inhabitants to issue the bonds. The sole question presented in that case was whether the city could issue the bonds without first procuring the assent of the voters. The sole question determined is expressed in these words (1. c. 367): “Having failed to comply with the requirement * * * that assent be first procured * * * of the city’s inhabitants at an election held for the purpose of determining whether or not such bonds should be issued, it follows that relator is without authority to issue the bonds.” The question of whether or not a city may acquire a waterworks by paying for it from unencumbered surplus funds on hand was not presented or decided in that case. Nor is that narrow question presented or decided in any of the cases cited in the briefs of either plaintiffs or defendant. Nor do any of the cases cited by the parties present or decide the question raised by defendant’s contention that the city must submit to its electorate and secure its approval before the city can own and operate a water system no matter what the source of the funds with which it is purchased.

Section 91.010 empowers cities, towns and villages to erect or to acquire waterworks, power plants, and other utilities, by purchase and to operate and maintain the same for the purpose of supplying water, power, etc., to its inhabitants. Other sections of Chapter 91 empower fourth (and other) class cities to incure indebtedness for the purpose of purchasing an existing waterworks (§ 91.120) or for the purpose of constructing a waterworks where none exists in the city (§ 91.170), and prescribe the method of procedure by which they may become indebted for those purposes. But to say such cities may incur indebtedness for those purposes is not to say they shall not purchase by paying for the water system from tax revenue. The grant of power to acquire a water system carries with it, by necessary implication, the authority to use money on hand as the means of payment. In a suit to enjoin the erection of a power plant, the sale of certain bonds to the federal government, and the receipt of a federal grant, this court, en banc, in Arkansas-Missouri Power Corporation v. City of Kennett, 348 Mo. 1108, 156 S.W.2d 913, 916[2], said: “It is not contended that the city was without the right to build a power plant of its own. Had there been no connection whatever between the city and PWA and had the city planned to build this electric system with money derived from taxation or with the proceeds of a lawful bond issue * * * its right so to do would be unquestioned.” (emphasis supplied) “ * * * ordinarily general funds may be appropriated by the council to any municipal object.” 15 McQuillin, Municipal Corporations, (third edition) § 39.45, pp. 134-135.

We hold that the city properly may acquire a waterworks or water supply system by purchase by the use of unencumbered, and otherwise unappropriated, surplus funds on hand in its general fund, and that by so doing, in this instance, the City of Raytown is the owner of a waterworks or water supply system within the meaning of § 247.170.

“As a general rule, the purchase- of an existing plant * * * need not be submitted to a vote.” 12 McQuillin, Municipal Corporations, (third edition) § 35.28, pp. 642-643. We hold that the city may own and operate a water system without first securing approval of its electorate.

Defendant also contends that the City of Raytown is not “a city owning a waterworks” within the meaning of § 247.-170 and, therefore, plaintiffs may not maintain this action,' because the city’s extension of its corporate limits to include the area of the Water District was before it acquired a water system. In other words, defendant says the city must first own a water system and thereafter annex part of defendant’s area. Lifting § 247.170 out of chapter 247 and holding it up for examination alone might permit construction of its meaning to be that which defendant contends. But construing this section in relation to the balance of that chapter leads to the inescapable conclusion that the legislature intended that when a city annexed part or all of a Water District the area annexed might, by the prescribed procedure, be detached and excluded from the District so long as the city owned a water system when the action is instituted, without regard to whether the system was acquired before or after annexation. The contention is without merit.

In Points II and III of its brief defendant takes the position that the city does not have and may not acquire any right to supply water to its inhabitants south of 79th Street, because: (1) defendant has the exclusive right and duty to serve that area, and, (2) the city is in privity with and has no more right in that area than the Water Company which was denied the right to serve this area by order of the Public Service Commission pursuant to the opinion of this court in the Burton case, supra. Defendant says it has the exclusive right to serve this area because “there cannot be two municipal agencies exercising the same power, jurisdiction and privileges over the same area at the same time; and, because the Water District has been created for a single special purpose, the legislature intended to withdraw the powers of the City (general power) from that special field.” We do not agree that for these or any other reasons the Water District has exclusive right to serve the area in question. There may be reason why two municipal agencies should not exercise equal authority to distribute water in the same area, but, if so, it is our opinion that the legislature intended that as between a Water District organized under Chapter 247 and a city owning a waterworks, the city should have the exclusive right.

As authority for its position, defendant cites Wellston Fire Protection District of St. Louis County v. State Bank and Trust Co. of Wellston, Mo.App., 282 S.W.2d 171, and other cases. We have read and studied those cases; they do not support defendant’s position; on the contrary, their basic reasoning supports plaintiffs. The Wellston case, supra, involved a dispute between the Fire District and the City of Wellston, a part of the Fire District, as to which had the authority to regulate the construction of buildings in the city with respect to fire prevention. The St. Louis Court of Appeals recognized that to permit both the city and the Fire District to exercise equal authority at the same time, in the same area, in the same field, could result in intolerable confusion, and held that the legislature did not intend that result in enacting Chapter 321 authorizing the establishment of Fire Protection Districts. In analyzing Chapter 321 to determine the intent of the legislature the court noted specifically that such a district may include within its boundaries an entire city. The court said that notwithstanding the fact that the lawmakers had knowledge that the city had power to promulgate regulations for fire prevention yet it authorized the district, having the same powers, to include the city within its boundaries. The court concluded that since the legislature was cognizant of the fact that the city then had authority to regulate for fire prevention in the same area it was empowering the Fire District to exercise like authority and that since this could result in intolerable confusion, the legislature intended to and did withdraw such authority from the city.

Section 247.010 states that the purpose of Sections 247.010 to 247.220, applicable to county public water supply districts, is to “ * * * make possible * * * convinces in the use of water * * * to many inhabitants of our state now denied such privileges * * Section 247.030 provides that the territory of the district shall be contiguous and may include “ * * cities that do not have a waterworks system.” (emphasis supplied) Section 247.-160 provides that whenever all or any part of a district is or has been included by annexation within the corporate limits of a city the district shall have the power to contract with the municipality for operating the system within the. annexed area or to lease or sell any or all its assets within the annexed area to the city. Section 247.-170 provides for detaching and excluding from the district an area annexed by the city whenever “ * * * the city and * * the district are unable to agree upon a service, lease or sale agreement, or are unable to proceed under section 247.160” for any other reason, (emphasis supplied)

It is apparent from our analysis of those sections of Chapter 247 applicable to county water supply districts that the legislature intended that such districts, at the time of their organization and thereafter, serve only those areas not otherwise served’ with water. Otherwise the legislature would not have by implication in § 247.030 ex-, eluded from the initial territory of the district those cities having a water supply system; nor would the legislature have provided a method (§ 247.170) whereby the city could, as it grew, acquire the assets of a district lying within an area annexed by the city, without the consent or agreement of the district. It is obvious that the legislature did not intend that both the city and the district distribute water in the same area at the same time, otherwise it would have defeated the purpose expressed in § 247.010. It is just as obvious that the legislature intended that initially and ultimately the one of the two to be excluded from supplying water within the corporate limits of a city owning a water system is the district. For the reasons stated, we hold that, as against the city, the defendant does not have the exclusive right to serve the area of the district lying within the corporate limits of the city.

We do not find merit in the contention of defendant that the city does not have and may not acquire any right to supply water to this area because the city is in privity with the Water Company and is privy to the order of the Public Service Commission entered before the city acquired this system. The order of the Public Service Commission, and the Burton case, supra, on which that order was based, directed that Raytown Water Company cease and desist supplying water in the area south of 79th Street merely because the certificate of authority granted the Water Company by the Commission in 1925 did not authorize the Water Company to provide service in that area; that its “territory” described in the certificate did not include that area. “Privity” as used in the doctrine res judicata means mutual- or successive relationships to the same rights or property constituting the subject matter of the litigation; and to make one “privy” to an action he must have acquired his interest in the subject matter of the action subsequent to the commencement of the suit or rendition of judgment. 50 C.J.S. Judgments § 788, p. 324; Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 445-46, 10 L.R.A., N.S., 140; National Lead Co. v. Nulsen, 8 Cir., 131 F.2d 51, 56 [7]. The right or property constituting the subject matter of the Burton case, supra, and the order of the Public Service Commission was the right vel non of the Water Company to supply water to the area south of 79th Street under its certificate of authority from the Public Service Commission. The city purchased only the assets of the Water Company in the disputed area; it did not purchase the certificate of authority of the Water Company; and, it is not claiming the right to serve the area under or by virtue of any authority or right of the Water Company to serve the area. Indeed it could not so claim, because the Water Company had no right to serve the area. The only authority and right under which the city may, and does, claim is that granted by § 91.010.

For the reasons stated, we hold that the city is not in privity with the Water Company and is not privy to the order of the Public Service Commission.

We notice too that what is now § 247.170 was a part of what is now Chapter 247 when defendant was organized under that chapter; consequently, whatever rights defendant acquired by its organization are subject to the rights granted a city by § 247.170.

One of the grounds for dismissal urged in defendant’s motion is that Ordinance No. 120 is void because it is a local or special law in that it makes provision for supplying' water only to those inhabitants of the city residing south of 79th Street, rather than to all inhabitants; that therefore it violates Article III, § 40 Subparagraph (30), Constitution of Missouri. Plaintiffs discuss this point in their Point IV; defendant ignores the point in its brief.

Ordinance No. 120 has a two-fold purpose: (1) to authorize the city “ * * * to engage in the water supply business” and provide “ * * * water to inhabitants within its corporate limits”; and, (2) to purchase and pay for that portion of the water supply system of Raytown Water Company located south of 79th Street. Article III, § 40, subsection (30), provides that the general assembly shall not pass any local or special law where a general law can be made applicable. We have held that this constitutional provision applies to municipal as well as state legislation. McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815, 816 [2]; Laclede Power & Light Co. v. City of St. Louis, 353 Mo. 67, 182 S.W.2d 70, 72 [1], We must first determine whether or not this ordinance is a local or special law. If the answer is “no”, our inquiry ends and we must hold the ordinance constitutional. If the answer is “yes”, we must determine whether a general law could have been made applicable. City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1, 9 [12].

The definition and tests frequently employed' to distinguish special or local from general legislation has been stated thus: “ ‘A statute which relates to persons or things as a class, is a general law, while a statute which relates to particular persons or things of a class is special * * ” “ * * * ‘The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes, that makes it special, but what it excludes.’ ” * * * “If in fact the act is by its terms or ‘in its practical operation, it can only apply to particular persons or things of a class, then it will be a special or local law, however carefully its character may be concealed by form of words.’” Reals v. Courson, 349 Ma 1193, 164 S.W.2d 306, 307-308 [1-5]; Laclede Power & Light Co. v. City of St. Louis, supra, 182 S.W.2d l. c. 72 [2-4].

This ordinance cannot be said to be a local or special law unless it be so characterized because it provides, in part, for the purchase of a relatively small water distribution system, a system that will, in the beginning at least, serve only a small portion of its inhabitants. We consider it reasonable to assume that this is only a beginning of the city’s entry into the field of supplying water to its inhabitants. It is true that this is a small “beginning”, but if, in the judgment of its elected officials, it is in the interest of its inhabitants that the city enter the water supply business, it must begin somewhere, at some time, in some manner. And our assumption that this is only a “beginning” is buttressed by the fact that the city also seeks to acquire through this action instituted by plaintiffs, the whole of the system of defendant. Obviously this is only the first step toward engaging “in the water supply business [for the purpose of providing] water to inhabitants within its corporate limits”, and the second or next logical step toward that end is to acquire the system of defendant.

We do not consider that because this ordinance, in addition to its other stated purpose, provides for the acquisition of a water supply system that will serve initially only a very small portion of its inhabitants, it may be classified as a local or special law. The first purpose mentioned in the ordinance is to authorize the city to engage in the water supply business and provide water to inhabitants within its corporate limits. Applying the above tests, it is apparent that the ordinance does not relate to particular persons of. a class, to particular inhabitants of the city; although, in practical operation, the small system purchased may not in the beginning serve all persons, it is apparent that the primary purpose of the ordinance relates to all inhabitants of the city and excludes none. Therefore, we hold that the ordinance is not a local or special law within the meaning of the constitutional prohibition against such legislation.

Plaintiffs contend in Point I of their brief that defendant is not a citizen, resident or taxpayer of the city and has no standing to attack the ordinance. We chose to discuss and dispose of points attacking plaintiffs’ right to maintain the action, considering those points of greater import than plaintiffs’ point attacking defendant’s standing. Having disposed of those points in plaintiffs’ favor it is unnecessary that we discuss plaintiffs’ Point I.

The judgment is reversed and the cause remanded with directions that the court proceed with the action in accordance with the views herein expressed.

All concur.

      . All references to statutes are to Revised Statutes of Missouri, 1959, and V.A.M.S.

      . A city of the fourth class.

      . Section 247.170 provides that the petition shall be signed by not less than twenty-five owners of real estate situated within the District. A statement in plaintiffs’ brief, not denied, is that plaintiffs are 650 owners of real estate situated within the District.

      . City of Springfield v. Monday, 353 Mo. 981, 185 S.W.2d 788; Missouri Service Company v. City of Stanberry, 341 Mo. 500, 108 S.W.2d 25.

      . State ex rel. City of Blue Springs v. McWilliams, 335 Mo. 816, 74 S.W.2d 363; City of Springfield v. Monday, 353 Mo. 981, 185 S.W.2d 788; City of Lebanon v. Schneider, 349 Mo. 712, 163 S.W.2d 588; Dodds v. Kansas City, 347 Mo. 1193, 152 S.W.2d 128; Grossman v. Public Water Supply District No. 1 of Clay County, 339 Mo. 344, 96 S.W.2d 701; l. c. 706, et seq.; Kansas City v. Fishman, 362 Mo. 352, 241 S.W.2d 377; Missouri Service Company v. City of Stanberry, 341 Mo. 500, 108 S.W.2d 25; Sager v. City of Stanberry, 336 Mo. 213, 78 S.W. 2d 431.