author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Robert Lee SELLE, Appellant.
    No. 49386.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      John C. Pohlman, William H. Costello, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Ike Skelton, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

Defendant, Robert Selle, was indicted for making an assault with malice aforethought upon one Theresa Rooney and beating her with his fists with force likely to produce death or great bodily harm, with felonious intent to ravish and rape her. Section 559.-180. (All statutory references are to RSMo 1959, V.A.M.S., and all references to rules are to our Rules of Criminal Procedure, V.A.M.R.) Upon trial he was found guilty and his punishment was fixed at imprisonment in the penitentiary for a term of three years. From the ensuing judgment and sentence, he appeals.

About 11:30 P.M. on Saturday, May 20, 1961, Theresa Rooney, then nineteen years of age, came home after “a date.” She usually slept in the same upstairs bedroom with her mother; but, to avoid disturbing her mother who had been ill, on this occasion Theresa partially undressed, slipped on a robe, and lay down on a couch in the living room with a comforter over her. Early in the morning, she was awakened when someone started to pull the cover off her. Still “half asleep,” she first thought that it probably was her mother; and, glancing at the clock on the mantel, she turned on her stomach. When the cover started coming off again, she realized that it was not her mother and that someone was crouching on the floor. Turning on her side and starting to raise up, she saw a man “leaning over the couch about a foot and a half from me.” As she looked at him, “he raised up real quick and he hit me; and I started to screaming and the more I screamed, the more he hit.” In an effort to protect her face and head, she “flopped back” on her stomach and put her hands over her head.

Aroused by the screaming, her parents quickly came downstairs, but by the time they reached her the intruder was gone. Theresa was bleeding from a laceration on her lower lip; and the blows which had been rained upon her resulted in swelling and discoloration around the left eye — “a real good shiner,” bruises on her face which were still noticeable eight weeks later, bruises on her left wrist and forearm with “hemorrhage under the skin into the muscle,” and “lumps and sore places all over the back of (the) neck and head.” Theresa’s father discovered that both the outside door to the basement garage and the kitchen door at the top of the basement stairs were open after the assault, although both had been closed the previous evening.

The assault occurred about 4:45 A.M., only some thirteen minutes before sunrise as we may note judicially. State v. Powell, Mo., 306 S.W.2d 531, 533(2), 66 A.L.R.2d 1141; Haley v. Edwards, Mo., 276 S.W.2d 153, 161(12). There were several windows in the living room, the blinds either “had been taken down to be washed or they were all the way up,” and Theresa said that “it was light” in the room. When investigating officers arrived, Theresa gave them a description of her assailant; and, from “yearbooks” brought by the of-fleers that same day, she “picked out” defendant’s picture. In “the lineup” at the police station on the following day, i. e., on Monday, May 22, and at the trial, she positively identified defendant. In the course of the assault, the clasp on Theresa’s wrist watch was opened — “it was out like this (indicating).” When arrested on the evening following the assault, defendant had “small round wounds” on his forearms.

When officers went to defendant’s home about 8:00 P.M. on Sunday, May 21, they found defendant, his wife, and two men identified as Frank Harmon and Ronald Heibert. They arrested Heibert, for whom they had a warrant on another offense, and took him to jail. About forty-five minutes later, they returned to defendant’s home and took him into custody. When questioned by the officers, defendant first stated that his wife had been at home with him “the entire night” of the assault. However, his subsequent story to the officers and upon trial (then supported by his father-in-law and his wife) was that she, being pregnant and ill, had stayed at the home of her parents that night, but that, when she had become “more ill” during the night, her father had brought her home between 4:30 and 5:30 A.M. so that defendant could take her to a doctor. Defendant further said that, on the evening of Saturday, May 20, he had played the drums in an orchestra at the Tropical Bar in Kansas City; that he got off work at 1:00 A.M., waited around to get paid, and left the bar about 1:30 A.M. with Ronald Heibert, who had been living with him about one week; and that, as he and Heibert walked out of the bar, his landlord, Frank Harmon, who was waiting for him, “asked if I (defendant) had the rent money” and “I said ‘yeah.’ ” On the way home in his 1949 Plymouth, defendant stopped for brake fluid. When he got home, defendant “worked a little bit on my television — it quit working that afternoon.” Heibert “put hot dogs on the stove and I (defendant) cooked some mush and we ate.” Then, “I played my guitar a little while before we went to bed.” Defendant was awakened by his wife when her father brought her home early in the morning. He denied that he had ever been in the Rooney home. He was eighteen years of age at the date of the assault and nineteen at the time of trial in November 1961. Neither Heibert nor Harmon testified.

Turning to defendant’s complaints (although not in the order of their presentation in his brief), we consider first the refusal to quash the indictment because (so it is alleged) only one witness testified before the grand jury and that witness did not testify to a material fact. The transcript shows no more than that at least one witness appeared before the grand jury. What he testified, we do not know. It is true that a grand jury must hear evidence before returning an indictment. State v. Faulkner, 185 Mo. 673, 84 S.W. 967, 973; State v. Grady, 84 Mo. 220. But the grand jury is the judge of the sufficiency of the evidence before it. State ex rel. Clagett v. James, Mo., 327 S.W.2d 278, 284; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 82; State v. Bragg, Mo.App., 220 S.W. 25, 28 (8, 9); State v. Randolph, 139 Mo.App. 314, 123 S.W. 61, 62(1). The motion to quash properly was overruled.

Error is assigned in that Circuit Judge James S. Rooney “was without jurisdiction” to preside at the arraignment or “to pass on (defendant's) application for change of venue.” The assault occurred in the home of Judge Rooney and the victim was his daughter. The indictment was returned on May 24, 1961. On June 9, 1961, defendant filed application for change of venue on account of the bias and prejudice of the inhabitants of Clay County. On June 12, 1961, the cause was transferred to the Circuit Court of Carroll County pursuant to written stipulation signed by the prosecuting attorney, defendant and his attorney. The only authority cited to this point in defendant’s brief is Section 545.660 [see Rule 30.12], which provides that a circuit judge shall be disqualified “to hear and try” any criminal case in which the judge is in any wise interested or prejudiced. (All emphasis herein is ours.) Neither the cited statute nor the superseding rule disqualified Judge Rooney from receiving the indictment. State v. Millsap, 310 Mo. 500, 276 S.W. 625, 628(3); State v. Goddard, 162 Mo. 198, 62 S.W. 697, 708 (22). Of course, a trial judge should retire and proceed in accordance with Rules 30.13 and 30.14 whenever prejudice is suggested either by affidavit pursuant to Rule 30.12 or by his own conscience [State v. Huett, 340 Mo. 934, 104 S.W.2d 252, 258(5)], and we entertain no doubt but that Judge Rooney would have disqualified himself if the defendant had not voluntarily entered into the written stipulation to transfer the case to another circuit. As the record stands, we can find no violation of or prejudice to defendant’s rights under the above-stated assignment.

Another complaint is that “five” reputable citizens testified under oath in the Circuit Court room of Carroll County that they saw Judge Rooney * * * in the jury room with the door closed with members of the jury present and saw conversation in the hallway between members of the Rooney family and members of the jury.” This point was raised in the motion for new trial, on which the transcript indicates that evidence was heard. But, if so, such evidence was not included in the transcript, and nothing therein supports the quoted statement. Neither assignments in motions for new trial nor points in appellate briefs prove themselves [State v. Taylor, Mo., 327 S.W.2d 880, 884(4); State v. Gaddy, Mo., 261 S.W.2d 65, 68(11, 13); State v. Lay, Mo., 61 S.W.2d 738, 739 (6)], and certainly we should not and do not, on the unconfirmed assertion of counsel, impugn the integrity of those against whom this charge is leveled. Nothing is presented for review under this point. State v. Daniels, Mo., 347 S.W.2d 874, 880 (10).

In connection with defendant’s earnest contention that the state failed to make a submissible case, we observe preliminarily that an assault with the fists may be a force likely to produce death or great bodily harm. State v. Gillespie, Mo., 336 S.W.2d 677, 680; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660, 661. However, pointing out that malicious assault with intent to rape was charged, defendant argues that there was “no proof of any overt act” and no evidence from which an intent to rape might have been inferred. True, an essential element of an offense under Section 559.180 is a specific intent to do one or more of the things there named, in this instance (as the indictment charged) the specific intent to rape [State v. Martin, 342 Mo. 1089, 119 S.W.2d 298, 301; State v. Arvin, Mo., 123 S.W.2d 182(1); State v. Hardy, 359 Mo. 1169, 225 S.W.2d 693, 696; 6 Am. Jur.2d Assault and Battery, § 20, p. 24], i. e., an intent to gratify the passions upon the person “ ‘at all events and notwithstanding any resistance on her part.’ ” State v. Fleming, Mo., 177 S.W. 299, 302. But the assault is complete “(i)f the intent, with the present means of carrying it into effect, exists, and preparations therefor have been made” [State v. Shroyer, 104 Mo. 441, 16 S.W. 286, 287; State v. Pinkard, 318 Mo. 751, 300 S.W. 748, 751(4); State v. Knoch, Mo., 14 S.W.2d 424(1)], even though there has been no actual violence to the person. State v. Shroyer, supra. And the fact that, by reason of resistance or discovery, the defendant abandons his purpose does not change the character of the assault or purge him of the offense. State v. Hewitt, Mo., 259 S.W. 773, 778(2); State v. Merricks, Mo., 18 S.W.2d 23, 25(4); 1 Wharton’s Criminal Law and Procedure, § 326, loe. cit. 669.

Intent frequently is not susceptible of direct proof, and it may be inferred from facts and circumstances which legitimately so permit. State v. Chevlin, Mo., 284 S.W.2d 563, 566(4); State v. Pinkard, supra, 300 S.W. loc. cit. 751; 22 C.J.S. Criminal Law § 33, p. 118; Underhill’s Criminal Evidence (4th Ed.), § 596, loc. cit. 1168. In determining the sufficiency of the evidence to support a conviction, it is our duty to view the evidence in the light most favorable to the state, to accept all substantial evidence and all legitimate inferences fairly deducible therefrom which tend to support the verdict, and to reject contrary and contradictory evidence.' See cases collected in 9A West’s Missouri Digest under Criminal Law, ^1144(13). It is within the province of the jury to interpret and weigh the evidence; and, where different inferences are reasonably deducible therefrom, it is for the triers of the facts to determine which inference shall be drawn and we may not cast aside their inference for another of our own choice. State v. Brewer, Mo., 325 S.W.2d 16, 20(10); State v. Berkowitz, 325 Mo. 519, 29 S.W.2d 150, 153(5); Brown v. United States, 8 Cir., 237 F.2d 281, 283(2); 1 Wharton’s Criminal Law and Procedure, § 324, loc. cit. 666.

We turn again to the evidence. Although Theresa had “paid no attention” to defendant at the time, he had, on the Tuesday prior to the night of assault, accompanied his pregnant wife on a prenatal visit to the office of the doctor where Theresa was employed. Admittedly, defendant had never been in the Rooney home prior to the night of assault. There was a considerable sum of money in a purse on the studio couch “around the corner from the kitchen” (Theresa and her mother were to have left on Sunday, May 21, on a trip to Europe), but there was no evidence that anything of value had been taken or disturbed. So, it would seem that the triers of the facts reasonably might have rejected any inference that, in committing the unlawful act of entry into the Rooney home, the intruder had been motivated by an intent to steal. Certainly, his act in pulling the comforter off Theresa could not well have been regarded as manifesting no more than an intent to steal that particular item of relatively trivial value. When Theresa was aroused, the intruder beat her in such brutal and unmerciful fashion that she soon might have been rendered completely helpless but for the alacrity with which her family responded to her outcry.' What was the intruder’s purpose? “Certainly not to say his pater noster.” State v. Smith, 80 Mo. 516, 519. By the instructions, the jurors were offered an opportunity to find defendant guilty of lesser assaults but the .tendered alternatives wer.e rejected in favor of the one upon which defendant was convicted. We conclude that they had the right to draw the inference which they did, and that the state made a submissible case.

This brings us to the complaint that the trial court erred in overruling defendant’s motion for a mistrial and in refusing to discharge the jury when, on cross-examination of Mrs. Maxine Martin, the second of defendant’s two character witnesses, the assistant prosecuting attorney asked: “If you had heard that Robert Selle was directly connected by grand jury indictment m five separate distinct sex crimes, would you still think his reputation is good?” In our effort to appraise the situation created and •the prejudice injected by the quoted question (to which we hereinafter refer as the sex crimes question), we briefly examine the backdrop against which this question was posed. After Mrs. Kella Brown, the first character witness, had testified on direct examination to defendant’s good reputation for morality and peace, she was subjected to' vigorous cross-examination in the course of which the following questions, among others, were propounded: “Q. If you had' heard that Robert Selle was associated with known criminals, would you still think his reputation was good?” “Q. If you had heard he was associated and associating with criminals, and harboring criminals in his house * * * If you had heard that, would you think his reputation is good?” “Q. If you had heard that he had been connected with a known sex pervert, would you think his reputation is good?” To the objections (both insufficient and ineffective) to the first two of these qustions, the court respectively responded, “He can examine as to what she knows” and “The court has to assume he is in good faith.” There was no objection to the third question. On redirect examination witness Brown said that she “never did hear that (defendant) had anything to do with anything of that type of life.”

Mrs. Maxine Martin, the second character witness, likewise testified on direct examination to defendant’s good reputation for morality and peace and, on cross-examination, likewise was asked (before the sex crimes question) : “Q. If you had heard that Robert Selle was harboring a wanted man in his house, would you still think his reputation is good?” In this setting, the sex crimes question was put to witness Martin, prompting defendant’s counsel to move immediately for a mistrial. An extended colloquy ensued outside the presence of the jury. “For the purpose of proving the good faith of the State in asking the (sex crimes) question * * * and in further asking the question relative to the marking (sic) of a criminal,” the assistant prosecuting attorney offered to prove “that there were returned by the grand jury of Clay County, Missouri, five indictments against Frank Harmon, who was charged with committing sodomy on five different, separate occasions upon Robert Selle” and also “that Ronald Heibert was, on May 21, 1961, charged with the commission of a crime, and that on that date he was in the home of this defendant, and that he has since been found guilty of a crime.” The subsequent discussion suggested, but left (for us) unanswered, questions (1) as to whether defendant was, as his motion for new trial characterized him, “the victim in said cases” and, as his counsel here assert, “the complainant in the above indictments,” and (2) as to whether the sodomitical acts, whatever defendant’s role therein may have been, were committed while he was under the age of seventeen years and a ward of the Juvenile Court of Clay County, as his counsel have stated repeatedly. In this connection, see the caveat in State v. Richardson, Mo., 364 S.W.2d 552, 555. When the trial was resumed before the jury, the court’s ruling was: “The motion for a mistrial is overruled. *• * * Ladies and gentlemen of the jury, the court has sustained the obj ection to the last question, and you shall disregard any import of that question as it stands now.”

The well-established general rule is that proof of the commission of separate and distinct crimes by the defendant is not admissible, unless such proof has a legitimate tendency to establish defendant’s guilt of the charge for which he is on trial. State v. Summers, Mo., 362 S.W.2d 537, 542(10); State v. Atkinson, Mo., 293 S.W.2d 941, 942(1); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923 (1). But while the soundness of the practice has been questioned [3 Wigmore on Evidence (3rd Ed.), § 988, pp. 617-624; Bishop, Impeachment and Rehabilitation of Witness by Character Evidence in Missouri, 20 Mo.L.Rev. 142-186, 273-306], cross-examination of a character witness may include inquiries in good faith as to whether he has heard rumors or reports of specific acts of misconduct (not remote or ancient) which would reflect upon defendant’s character. State v. Livers, Mo., 340 S.W.2d 21, 26(6); State v. Cox, Mo., 333 S.W.2d 46, 49(2); State v. Cooper, Mo., 271 S.W. 471, 473-474(2-4). However, it should be kept in mind that such cross-examination is permitted to test the knowledge of the witness, the trustworthiness and accuracy of such knowledge, the basis for his judgment, his candor, and his credibility [State v. Slade, Mo., 338 S.W.2d 802, 807(11); State v. Havens, Mo., 177 S.W.2d 625, 629; State v. Carson, Mo.App., 239 S.W.2d 532, 536 (5)], but not “to prove by rumor or common report” that defendant has been guilty of other specific crimes. State v. Wellman, 253 Mo. 302, 161 S.W. 795, 799(5). See also State v. Mahan, Mo., 267 S.W. 866, 868(3); State v. Hulbert, Mo., 228 S.W. 499, 501(3).

In an effort to guard against misuse or abuse, whether by inadvertence or by design, of the accorded right of cross-examination of character witnesses, we have warned (as others also have) that, in such cross-examination, it is improper to propound hypothetical questions which assume supposed facts and call for an opinion predicated thereupon. State v. Carroll, Mo., 188 S.W.2d 22, 24(4); State v. Clark, 353 Mo. 470, 182 S.W.2d 619, 624(10); State v. Seay, 282 Mo. 672, 222 S.W. 427; Little v. United States, 8 Cir., 93 F.2d 401, 408(10), certiorari denied 303 U.S. 644, 58 S.Ct. 643, 82 L.Ed. 1105, rehearing denied 303 U.S. 668, 58 S.Ct. 756, 82 L.Ed. 1124; Pittman v. United States, 8 Cir., 42 F.2d 793, 795—797(8, 10); 58 Am.Jur., Witnesses, § 661, p. 364; annotation 47 A.L.R.2d 1258, 1306— 1312. “(C)ross-examination should not be permitted to be used to covertly convey to the minds of jurors suspicion and prejudice as to a defendant by a recital as facts of supposed matters not appearing in the evidence and wholly outside of the case.” Pittman v. United States, supra, 42 F.2d loc. cit. 797. In other words, prosecuting officials should not be permitted in this fashion to convey to the jury by innuendo and insinuation purported information which they are forbidden to impart directly. Cf. State v. Barker, Mo., 249 S.W. 75, 78; State v. Shipley, 174 Mo. 512, 74 S.W. 612, 613; State v. Jones, 306 Mo. 437, 268 S.W. 83, 87. The sex crimes question in the instant case was patently improper and grossly unfair. See particularly State v. Seay, supra.

The inquiry remains as to whether the asking of the sex crimes question (although there was no answer and the jurors were told to “disregard any import of that question as it stands now”) introduced prejudicial error into the trial. In considering that subject, we have in mind that the intent to commit a sex offense was an essential element of the crime charged, and that the jury necessarily had to find this element by inference. The plain and purposeful implication of the sex crimes question was that defendant had been “directly connected by grand jury indictment in five separate distinct sex crimes”; and, unless the jurors were endowed with extraordinarily keen perspicacity, the question would, at first blush, have carried the connotation that defendant himself had been indicted for five separate sex crimes. In any event, the question must have wafted into the jury box the shadowy stench that defendant was a repeated sex offender; and, coming from the prosecuting official, who is regarded by the average man as knowledgeable about such things, the assumption of the purported facts recited in the question no doubt became something more than a mere insinuation thereof.

A prosecuting attorney is a quasi-judicial officer [State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590, 593 (1)] entrusted and charged not only with the important responsibility to prosecute vigorously and fearlessly in behalf of the state but also with the no less positive obligation to see that every defendant so prosecuted nevertheless is accorded a fair trial. State v. Allen, 363 Mo. 467, 251 S.W.2d 659, 662(4). Thus it plainly becomes his duty to refrain from conduct calculated to engender prejudice or excite passion against a defendant [State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 526-527(1, 2)] and to “avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds.” State v. Horton, 247 Mo. 657, 153 S.W. 1051, 1054.

This court frequently has been impelled to the conclusion that the asking of improper questions or the making of improper statements has injected poison and prejudice that could not be neutralized by the sustention of defendant’s objections. In most of such cases, the transgressions have been persistent and repeated. E. g., State v. Spencer, Mo., 307 S.W.2d 440; State v. Allen, supra; State v. Tiedt, supra; State v. Lasson, 292 Mo. 155, 238 S.W. 101, 103-104(5); State v. Burns, 286 Mo. 665, 228 S.W. 766, 768; State v. Stetson, Mo., 222 S.W. 425; State v. Seay, supra; State v. Webb, 254 Mo. 414, 162 S.W. 622, 628(7). However, in some instances, a single incident or offense has introduced prejudicial error and has required reversal. E.g., State v. Shipley, supra, 74 S.W. loc. cit. 613; State v. Teeter, 239 Mo. 475, 144 S.W. 445, 447-448(5); State v. Taylor, 330 Mo. 1036, 51 S.W.2d 1003, 1007. See also State v. Burchett, Mo., 302 S.W.2d 9.

In the case at bar, the cross-examiner propounded to defendant’s character witnesses a series of hypothetical questions, each of which improperly assumed supposed facts and called for an opinion predicated thereupon. But, with respect to the improper questions prior to the sex crimes question, the objections by defendant’s counsel were not adequate and timely [State v. Slaten, Mo., 252 S.W.2d 330, 333-334(3-5)] and no error was, or properly could have been, assigned in the motion for new trial [Rule 27.20; State v. Morris, Mo., 248 S.W.2d 847, 852], so we are limited to the sex crimes question as to which there was an adequate and timely motion for a mistrial and a particularized assignment of error in the motion for new trial. However, we are of the considered opinion that the sex crimes question, climaxing as it did a series of patently improper but obviously less prejudicial questions, injected poison that was not neutralized by the relatively mild comment that “the court has sustained the objection to the last question, and you shall disregard any import of that question as it stands now.” “It is practically impossible for a man sitting in judgment to exclude from the final make-up of his mind facts which have lodged there, even if the court gravely tells him that such facts should not have been disclosed, and tells him, further, not to consider them. The court does not tell him that such statements are not true. The objections by counsel for defendant probably convince him that they are true.” State v. Lovan, 245 Mo. 516, 538, 151 S.W. 141, 147. So we think that, in the case at bar, the situation was not ameliorated by the fact that no answer was permitted or given, for it was the assumption of the supposed facts in the question that poisoned and polluted. State v. Spencer, supra, 307 S.W.2d loc. cit. 445; State v. Burns, supra, 228 S.W. loc. cit. 768.

Resolution of an issue as to whether prejudicial error has been injected into a case should not depend solely upon the number of transgressions or offenses. For, “(p)rejudice, as it affects the defendant’s legal rights, is not a matter of degree. If the defendant was prejudiced to any extent by the improper evidence (or by the improper questions or statements of counsel), it was undue and we cannot say that the defendant had a fair and impartial trial according to the law and the evidence.” State v. Burchett, supra, 302 S W.2d loc. cit. 15(2). “It makes no difference how regular the proceedings at the trial are, if prejudice finds its way into the verdict, that verdict cannot stand.” State v. Webb, supra, 162 S.W. loc. cit. 628; State v. Tiedt, supra, 206 S.W.2d loc. cit. 527. See also State v. Allen, supra, 251 S.W.2d loc. cit. 662(5).

Where, as here, the charged offense is one of unspeakable bestiality which naturally arouses and inflames the emotions, it becomes all the more important and essential that the prosecuting officials exercise appropriate restraint. State v. Tiedt, supra, 206 S.W.2d loc. cit. 529; State v. Seay, supra, 222 S.W. loc. cit. 429. “To say that (defendant) is guilty, and therefore it makes no difference how he was tried, begs the question, and is but an argument favoring the return to primitive justice, which first hangs and then investigates. If the latter method had met the demands of civilization (even though it be charged, and this case and these disjointed times partly prove that civilizaton is but skin-deep) it is probable that it would not have been abandoned for the present system, which among its necessary elements requires a judiciary sworn to follow the law and the Constitution.” State v. Guerringer, 265 Mo. 408, 419-420, 178 S.W. 65, 68; State v. Dixon, Mo., 253 S.W. 746, 749; State v. Taylor, supra, 51 S.W.2d loc. cit. 1007.

There are other assignments of error (as to instruction 4 and the form of verdict) which appear to be not without merit. But, in view of the conclusion already reached, we need not discuss them, since upon retrial these (now alleged) errors and deficiencies may be easily avoided.

For the prejudicial error hereinbefore noted, the judgment is reversed and the cause is remanded for a new trial.

All concur.


source: Caselaw Access Project

author: BOHLING, Commissioner.

license: Public Domain

text:
    Kathleen THOMPSON, a minor, by Patrick Thompson, her next Friend and Guardian, Appellant, v. C. F. VATTEROTT NORTHWEST INVESTMENT COMPANY, a Corporation, Respondent.
    No. 49459.
    Supreme Court of Missouri, Division No. 2.
    May 13, 1963.
    Caruthers & Montrey, Rexford H. Ca-ruthers, John P. Montrey, St. Louis, for plaintiff-appellant.
    Evans & Dixon, Ralph C. Kleinschmidt, St. Louis, for respondent.
   BOHLING, Commissioner.

Kathleen Thompson, a minor, by her next friend Patrick Thompson, appeals from a judgment, entered upon a unanimous verdict, in favor of C. F. Vatterott Northwest Investment Company, a corporation, in her action for $27,500 damages for personal injuries sustained in a fall on the parking area maintained by said defendant at St. Ann’s Shopping Center, 10513 St. Charles Rock Road in St. Louis County. Plaintiff contends the court erred in giving instruction No. 4, frequently referred to as a “mere fact” instruction, at the request of defendant. Defendant says the instruction was not erroneous; and also that plaintiff failed to make a submissible case against defendant.

The asphalt parking area, with four lanes marked for parking, and a sidewalk in front of the store buildings of the St. Ann’s Shopping Center, lie, lengthwise in that order, north of and parallel to the St. Charles Rock Road. The Shopping Center has eight or nine store buildings, facing south along the sidewalk, the sidewalk being about seven inches above the surface of the parking lot. The Ashby Pharmacy, Inc., a corporation, known as the Rexall Drug Store, occupies one of the buildings. The Rexall Drug Store is the only store in the Shopping Center that opens on Sunday.

On Sunday, October 30, I960, Mr. Thompson, plaintiff’s father, parked his automobile, headed west, in front of the drug store and six or seven feet south of and parallel with the sidewalk. Plaintiff, just about twelve years old, was on the front seat with him. He told her to purchase a Sunday paper in the drug store. Plaintiff went in a straight line from the automobile into the drug store and purchased the paper. She returned over the same path at a fast walk, hurrying but not running, holding the newspaper up against herself, and, as she was ready to get into the automobile, she slipped on some grease, fell and fractured her right leg at the ankle. Mr. Thompson helped plaintiff, who was crying, up and into the automobile, took her home, examined her leg, thought it was broken, and then took her to a hospital. The doctor x-rayed her leg and it was in a cast from October 30 to January 10, 1961.

Plaintiff testified her right foot “slipped on some grease” and she fell. After her fall, her shoe and her sock were full of brownish black grease. She had seen the grease before she went into the drug store. Mr. Thompson testified there was a grease spot about the size of a small wash tub where plaintiff fell; that plaintiff had grease on her shoes and socks and a little grease on her dress, “just gummy grease, drippings from cars,” very heavy and black.

The controverted factual issues under plaintiff’s submission were whether defendant knew or in the exercise of ordinary care should have known of the unsafe condition on defendant’s parking area created by the deposit of the grease or oil thereon mentioned in the evidence in time to have removed said deposit prior to plaintiff’s fall; and under defendant’s submission the factual issue was whether plaintiff was contribu-torily negligent.

Defendant’s questioned “mere fact” instruction (No. 4), the only issue presented by plaintiff, reads:

“The Court instructs the jury that the mere fact of itself that plaintiff was injured and has brought suit claiming defendant was negligent is no evidence whatever that the defendant was in fact negligent. Negligence is not in law presumed, but must be established by proof as explained in other instructions. Neither are you permitted to base a verdict entirely and exclusively on mere surmise, guesswork and speculation; and if upon the whole evidence in the case, fairly considered, you are not able to make a finding that defendant was negligent without resorting to surmise, guesswork and speculation outside of and beyond the scope of the evidence, and the reasonable inferences deducible therefrom, then it is your duty to, and you must, return a verdict for the defendant.”

Plaintiff relies upon Rittershouse v. City of Springfield, Mo., 319 S.W.2d 518, 520 [1, 2], as the sole precedent for establishing reversible error. In that case plaintiff sustained a chipped fracture of the navicular bone of the foot while stepping off a curb at an intersection crosswalk. There was a 11/2 to 21/2 inch raised place in the asphalt extending and curving across the crosswalk 21/2 to 3/2 inches from the curved curb. This injury was one that was likely caused “ ‘by bending the foot too far down/ ” “ ‘by the toe being pulled down’ — the foot would ‘have to go down, and in/ ” The defendant’s instruction “that the mere fact that the plaintiff, Mrs. Bertie E. Rittershouse, was injured by a fall upon defendant’s street is no evidence of itself that defendant was negligent in keeping its streets in a reasonably safe condition * * * ” was held prejudicially erroneous “because we believe the instruction entirely excluded from the jury’s consideration, in determining the issue of the City’s negligence, the fact that plaintiff was ‘injured by a fall’ upon City’s street.” Plaintiff stresses the paragraph in Rittershouse at 1. c. 520 and 521 of 319 S.W. 2d. The observations therein appear to have been made arguendo, unnecessary to a decision based on the facts established by that record, and are considered not controlling.

In Wise v. St. Louis Public Service Co., Banc, Mo., 357 S.W.2d 902, 905 [4], a res ipsa loquitur case, we reversed a plaintiff’s judgment because the court had refused defendant’s burden of proof instruction which carried the following “mere fact” direction: “You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence * * The instruction was said not to be a misstatement of the law when considered in its entirety, but we held it should not be given upon a retrial, stating “We have decided, in the interest of the proper administration of justice, to eliminate such instructions from our practice.” We also stated that said holding “shall not affect cases tried prior to” the date of the publication of the opinion.

Goldblatt v. St. Louis Public Service Co., Mo., 351 S.W.2d 773, tried as a res ipsa loquitur case, affirmed a defendant’s judgment and held a “mere fact” instruction reading, in pertinent part, “You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence * * * ” to not constitute reversible error.

From the fact that the Goldblatt case recognized, in discussing cases involving like instructions, the holding in the Ritters-house case and the further fact that the Wise case considered and eliminated instructions on this issue approved in the Goldblatt and other cases, plaintiff contends the Rittershouse case controls this appeal.

The ruling in the Wise case, which operates prospectively only, was handed down subsequent to the trial of this case. The instruction involved is a cautionary instruction, the giving or refusal of which has. been held largely within the discretion of trial courts. Gladden v. Missouri Public Service Co., Mo., 277 S.W.2d 510, 517 [5]; Le Grand v. U-Drive-It Co., Mo., 247 S.W.2d 706, 712. In Rittershouse the trial court had sustained plaintiff’s motion for new trial for, among other reasons, the giving of defendant’s “mere fact” instruction; but in the case under review the trial court overruled plaintiff’s attack against the instruction. See cases last cited. Ritters-house is also distinguishable from this case on the language employed and the facts involved.

The factual situation submitted in the Rittershouse instruction was “the mere fact that the plaintiff * * * was injured by a fall upon defendant’s street” was no evidence that defendant was negligent. Ini addition, as we read the Rittershouse opinion, the chipped fracture of plaintiff’s navic-ular bone, a fracture likely caused “by the toe being pulled down,” had some bearing on how plaintiff came to fall; that is, plaintiff’s fall being caused by her toe catching on and being pulled down by the raised asphalt. The medical testimony has been omitted from the record before us by agreement of counsel “at the request of plaintiff.” The instruction under review makes no reference to plaintiff’s fall as did the Rittershouse instruction; or, for instance, “the mere fact of itself that plaintiff slipped” (Dill v. Dallas County Farmers’ Exchange, Mo., 267 S.W.2d 677 [1]).

In cases previously disapproving the instruction we have considered the mere fact clause embraced a fact the jury could find constituted a causative link leading to the ultimate result for which damages were being sought. Nicholson v. Franciscus, 328 Mo. 96, 40 S.W.2d 623, 625. The Ritters-house instruction emphasized a fact in the chain of circumstances from which plaintiff’s injury resulted. The instruction now before us relates to the ultimate result, the injury, and not a part of the causation bringing about that result.

This defendant’s “mere fact” instruction follows verbatim an approved instruction in Grote v. Reed, Mo., 345 S.W.2d 96, 99; and is substantially similar to instructions approved in Le Grand v. U-Drive-It Co., Mo., 247 S.W.2d 706, 711 [8]; Paige v. Missouri Pac. Rd. Co., Mo., 323 S.W.2d 753, 759 [9]; Smith v. Middlekauff, Mo., 359 S.W.2d 755, 757 [2]. See also the instructions approved in Goldblatt v. St. Louis Public Service Co., Mo., 351 S.W.2d 773, and Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158, 161(1).

This instruction, limited to “the mere fact of itself that plaintiff was injured,” as we read the Smith, Paige and Le Grand cases, supra, forms no basis for a conclusion by the jury that the character and nature of plaintiff’s injuries could not be considered in determining the submitted issues. This subject is reviewed in Grote v. Reed, supra, a material portion of which is quoted in Smith v. Middlekauff, supra, a case tried prior but ruled here subsequent to Wise v. St. Louis Public Service Co., supra.

Inasmuch as defendant’s instruction No. 4 was not erroneous as a matter of law; and it has not been demonstrated upon this record that the instruction deprived plaintiff of a fair trial; and the trial court, in overruling plaintiff’s motion for new trial, was of opinion the instruction was not prejudicial to plaintiff, and the situation is not subject to the prospective policy announced in Wise v. St. Louis Public Service Co., supra, this judgment should be affirmed.

It is so ordered.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Commissioner.

text:
    Edward STRUMBERG, (Plaintiff) Appellant-Respondent, v. MERCANTILE TRUST COMPANY, a Corporation, Executor of the Estate of William R. Trogdon, Deceased, and Mercantile Trust Company, a Corporation, Testamentary Trustee for Philip Dwight Trogdon, (Defendants) Respondents-Appellants.
    No. 49138.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.

      Buckley & Campbell, Robert Lee Campbell, St. Louis, for plaintiff-appellant.
    Thompson Mitchell Douglas & Neill, James M. Douglas, William G. Guerri, Richard P. Conerly, St. Louis, Kerth, Thies & Schreiber, Dalton W. Schreiber, Clayton, for respondents, Mercantile Trust Co., Executor of Estate of William R. Trogdon, Deceased, and Mercantile Trust Co., Testamentary Trustee for Philip Dwight Trog-don.
   HOLMAN, Commissioner.

Plaintiff, Edward Strumberg, and William R. Trogdon entered into a partnership agreement in January 1945 to establish and operate a business to be known as the Adept Tool and Manufacturing Company, to be located in East St. Louis, Illinois. The agreement contained a provision which reads as follows: “Each party hereto, under the terms of this agreement, shall own an undivided one-half (½) interest in said business, and should either party hereto die while this agreement shall be in force, the remaining party shall within sixty days thereafter purchase the interest of the deceased partner from his heirs, administrators or assigns at a sum not to exceed the book value of his interest at the time of his death, and this agreement shall be binding upon his heirs, administrators, executors and assigns of both parties hereto.” Mr. Trogdon died testate April 20, 1960, while residing in St. Louis County, Missouri. He was survived by his wife Virginia, and a 15-year-old son Philip. Mercantile Trust Company was appointed executor of his estate and testamentary trustee for his son. Mercantile was made a party herein, both as executor and trustee. Virginia Trogdon was made a party as an individual and also as guardian for Philip.

In an effort to comply with the foregoing provision of the contract plaintiff caused an audit to be made to determine the book value of the assets of the partnership and defendants’ one-half interest was so valued at $15,058.22. On June 14, 1960, plaintiff’s attorney mailed a copy of the audit and a cashier’s check for $15,058.22 to Mercantile and advised that such was submitted in compliance with the contract provision heretofore quoted, and requested that Mercantile “proceed to take all steps necessary to transfer the full ownership of Mr. Trogdon’s interest in and to the partnership property, both real and personal, to Mr. Strumberg.”

When Mercantile failed to take any action plaintiff filed this suit in two counts. In the first count plaintiff sought to enforce his alleged contractual right to purchase the Trogdon interest, as heretofore set out. In the second count he relied upon an alleged subsequent oral modification of said purchase agreement (hereinafter more fully detailed) under which he was entitled to the Trogdon interest without the payment of any money, and a decree was sought ordering defendants to convey the decedent’s one-half interest to plaintiff and to return to him the sum theretofore tendered. A trial before the court resulted in a judgment for plaintiff on the first count and for defendants on the second count. Mercantile has appealed from the judgment on Count I, and plaintiff has appealed from the judgment on Count II.

We have appellate jurisdiction because the amount in dispute exceeds $15,000. This for the reason that plaintiff has appealed from - the judgment on Count II which adjudged that plaintiff was not entitled to the Trogdon interest without payment, and denied plaintiff’s prayer for a return of the $15,058.22 he had tendered to Mercantile.

We will first consider the appeal relating to Count I. As stated in Mercantile’s brief, “the sole question we raise on this appeal is the effect of the failure of plaintiff to comply with the provisions of Sections 473.360 and 473.367, RSMo 1959, in that no written notice of the institution of this action in the circuit court was filed by plaintiff in the Probate Court of the County of St. Louis.” The statutory provisions relied upon by Mercantile read as follows:

“473.360. 1. Except as provided in sections 473.367 and 473.370, all claims against the estate of a deceased person * * * which are not filed in the probate court within nine months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the executor or administrator, the heirs, devisees and legatees of the decedent. * * *

“2. Unless written notice of actions instituted or revived under sections 473.363 or 473.367 is filed in the probate court within nine months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court or from any distributee or other person receiving such assets. * * *

“473.367. Any action commenced against an executor or administrator, after death of the decedent, is considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator, and the filing of a written notice in the probate court of the institution of such action.”

(Unless otherwise indicated, all statutory references are to RSMo 1959, V.A.M.S.)

The point here presented is raised for the first time on this appeal. We will nevertheless consider it, as it is now settled in this state that the defense of failure to comply with the nonclaim statutes need not be pleaded, cannot be waived, and, if they are applicable, compliance with said statutes is deemed mandatory and, in effect, jurisdictional. Clarke v. Organ, Mo.Sup., 329 S.W.2d 670; Smith v. Maynard, Mo.Sup., 339 S.W.2d 737; State ex rel. Whitaker v. Hall, Mo.Sup., 358 S.W.2d 845.

This suit was filed on September 3, 1960, which was within the nine-month period. The transcript does not disclose whether or not a written notice of the institution of this action was filed in the probate court, but we consider plaintiff’s brief as a tacit admission that such was not filed. It would therefore appear that the ultimate question for our decision is whether the relief plaintiff seeks is a “claim * * * against the estate,” as that phrase is used in §§ 473.360 and 473.367. The situation in this case is very unusual, and no case has been cited (nor have we found any) in which the facts are similar.

We have concluded that plaintiff has not asserted a “claim” within the meaning of the nonclaim statutes. As defined in § 472.010(4), “ ‘Claims’ include liabilities of the decedent which survive whether arising in contract or in tort or otherwise, funeral expenses, the expense of a tombstone and costs and expenses of administration.” The word “liability,” as used in connection with probate matters usually, if not always, refers to a debt or a pecuniary obligation. It has long been held that a suit to recover specific trust assets in the possession of the administrator is not a claim which would be barred by failure to comply with the non-claim statutes because such assets are said not to be a part of the estate. Bramell v. Adams, 146 Mo. 70, 47 S.W. 931. The situation in the case at bar is somewhat analogous to that which exists in the trust cases. This is not a proceeding for a money judgment against the estate. Plaintiff is not seeking to enforce a personal liability of decedent or to establish a demand which existed against him. And he does not pray for a judgment to be classified and paid out of the assets of the estate.

It should be noted that the contract did not give plaintiff an option to purchase the interest of the deceased partner. Each partner bound himself to purchase the interest of the partner first dying. The amount to be paid, “a sum not to exceed the book value,” was somewhat indefinite, but that is not important here as plaintiff tendered the book value, which was the most that could have been required. The book value may have been more or less than the market value but, in either event, the surviving partner was contractually obligated to purchase the interest at its book value. The property was in the possession of and being used by the plaintiff. We think it is reasonable to say that, in a sense, the surviving partner became the equitable owner of the interest upon the death of the other partner, subject however, to the condition that the required amount would be paid or tendered within 60 days. At any rate, it appears clear that the executor was under a duty not to treat the partnership interest in the same manner as other assets, but was required to keep such segregated and apart from the general assets of the estate while awaiting plaintiff’s compliance with his ■contractual obligation to purchase it.

Instead of being a creditor of the estate, plaintiff, upon the death of Mr. Trogdon, immediately became a debtor thereof, i. e., to the extent of the book value of the Trog-don partnership interest. The precise amount of that indebtedness is a matter concerning which the parties might not agree. Plaintiff tendered what he deemed to be the amount of the book value. Mercantile ■did not accept it. This action is in the nature of a declaratory judgment suit to determine the amount plaintiff owed the estate. In other words, plaintiff is not trying to recover some amount from the estate, but is seeking a determination of the amount he owes the estate. While it is true that plaintiff, upon payment of the proper amount, receives an interest which, in a limited sense, was an asset of the estate, it is apparent that such transfer is merely the performance of an ante mortem contract ■of the decedent.

For the reasons stated, we rule that the relief sought by plaintiff in the first count of his petition did not constitute a “claim .against the estate” within the meaning of that phrase as used in the nonclaim statutes.

In Count II plaintiff alleged alternatively that in March 1949, he and Trogdon, in order to implement the provision of the partnership agreement heretofore set out, consulted with insurance representatives and thereafter agreed as follows: “Plaintiff and William Trogdon each would cause his life to be insured in the amount of $20,000.00 with the Paul Revere Life Insurance Company, and all premiums due and to become due would be paid by the partnership and be charged to the partners equally. The policy of insurance on each partner’s life would be payable as a death claim to the beneficiary then or thereafter designated in the policy by said partner. * * * At the death of a partner, the proceeds of the policy on his life would be paid to the beneficiary designated by him, even though such proceeds should exceed the value of his partnership business, and the surviving partner (1) should be the sole owner of the partnership business and all assets employed therein, both real and personal, tangible and intangible, including the right to use the firm name; (2) should thereupon be the sole owner of the policy on his own life; (3) should assume full liability for and save the estate of the decedent harmless against all partnership debts and obligations; and (4) should pay to the executor or administrator of the deceased partner’s estate the excess, if any, of the value of the partnership interest of the deceased over the value as of the date of death of the deceased partner of the proceeds of said life insurance policy on the life of the deceased partner.”

On March 4, 1949, a life insurance policy in the face amount of $20,000 was issued to each of the partners by the Paul Revere Life Insurance Company. All premiums on the two policies were paid from partnership funds. After the death of Mr. Trogdon, $20,000 was paid by the insurance company to Mercantile, as testamentary trustee for Philip Trogdon, the beneficiary designated in the policy. Since the amount of the insurance exceeded the book value of decedent’s interest in the partnership, plaintiff contends he was entitled to a decree that he was the owner of that interest without the payment of any money to the executor and hence the court should have ordered that Mercantile return the amount he had tendered to it.

Plaintiff offered evidence tending to prove the foregoing allegations. This evidence was admitted over the objections of defendants that it violated the Statute of Frauds and was an effort to vary the terms of a written contract by parol evidence.

O. O. Gillworth testified that he was the agent who sold the policies to the partners. He stated that the partners agreed that upon the death of one the insurance proceeds would be paid to the beneficiary of the policy, and that the survivor would take over the business entirely and the $20,000 would be full payment for the partnership interest, except that if the book value was more than that amount the survivor would pay the amount by which the value exceeded $20,000. This witness, who was 75 years of age at trial time, had no writing or notes concerning the transaction but testified from his memory as to what was said twelve years before.

Plaintiff read from the deposition of Virginia Trogdon (as admissions) the following: “Q. Did you ever hear any discussions concerning the use of insurance funds to make payments for the share of a deceased partner? A. I heard some discussion like that. Q. When did you hear the discussion? A. Just when I don’t know. * * * Q. Do you ever recall your husband mentioning the purchase of insurance, or the fact there was any insurance with which to pay for the share of a deceased partner? A. I recall conversations like that, but who with and what the substance was I don’t know. I didn’t pay any attention to it. Q. Do you ever recall him making the statement to anyone that there was an insurance policy in existence for that purpose? A. Not lately. Q. Do you recall at any time hearing him make that statement? A. Yes, I think so.”

At the trial Mrs. Trogdon testified as follows: “Q. Have you ever heard Mr. Trog-don discussing with anyone any insurance for the purpose of purchasing the interest of the deceased partner ? A. The conversation I heard was in regard to that. They were talking about doing it. Whether they actually did it or not I do not know. Q. But you did hear discussions between them talking about buying and selling — talking about buying insurance for the purpose o-f purchasing the interest of the deceased partner ? A. Well, they didn’t go that far. They talked about buying partnership insurance at some time or another, but whether they did or not I do not know.”

In its findings of fact the trial court found as follows: “* * * [T]hat there was no valid and enforceable agreement between the partners that the proceeds of said insurance policies were to apply toward the purchase price of the interest of the deceased partner, William Trogdon; * *

The burden was upon plaintiff to prove the alleged oral contract by convincing evidence. On this appeal we review the case de novo, and in so doing, weigh the evidence and reach our own conclusions as to the facts, giving due regard, however, to the more favorable position of the trial court to judge the credibility of the witnesses.

Since we have concluded as a fact that there was no agreement between the partners to the effect that the proceeds of the insurance policy, although paid to the beneficiary, would apply toward the .purchase price of the interest of the deceased partner, we need not determine questions briefed concerning the admissibility of the foregoing testimony.

The strongest factor which has caused us to find the fact issue against the plaintiff is the conduct of plaintiff during the period from April 20, 1960 (the date of his partner’s death) until August 2, 1960. During that time the following occurred:

(1) On May 25, 1960, plaintiff’s attorney wrote Mercantile a letter in which the contract purchase provision was set out, and it was then stated that “the purpose of this letter is to advise you that my client, Edward Strumberg, desires to and will comply with the obligation contained in the above-quoted portion of the contract to purchase the interest of William Trogdon at a sum not to exceed the book value of the interest of William Trogdon at the time of his death. . At the present time the accountant for my client is computing the book value of this interest at the time of the death of William Trogdon. Before the expiration of the sixty-day period tender will be made to you of the amount necessary to effect said purchase.”

(2) On June 14, I960, plaintiff’s attorney again wrote Mercantile and stated that “we have had the firm of Rogers, Laughlin and Tragesser, Certified Public Accounts, East St. Louis, Illinois, make an examination of the books and records of the Adept Tool & Machine Company to ascertain the book value of William Trogdon’s interest in said partnership on April 19, 1960. This examination disclosed that the said value is $15,058.22. We enclose herewith the original of said examination, together with the exhibits referred to therein, with this letter. As required by the said Partnership Agreement, my client, Edward Strumberg, forwards herewith the sum of $15,058.22 in the form of a cashier’s check from the First National Bank, East St. Louis, Illinois. Please proceed to take all steps necessary to transfer the full ownership of Mr. Trog-don’s interest in and to the partnership property, both real and personal, to Mr. Strumberg.”

(3) On June 22, 1960, the attorney representing plaintiff wrote another letter to Mercantile in which he reviewed at length the previous correspondence, and further stated: “We know it is not necessary to impress upon you the need for speed in the handling of this matter. To enable Mr. Strumberg adequately to operate the business which is now legally and morally his, it is important that these matters be settled as promptly as possible.”

(4) On August 2, 1960, another letter was written to Mercantile by plaintiff’s attorney in which the events that had transpired were again reviewed, and, for the first time, mention was made of the alleged agreement concerning the insurance in a postscript to that letter, which reads as follows: “P.S. A policy issued by the Paul Revere Life Insurance Company upon the life of William R. Trogdon in the amount of $20,000, payable to his wife, was in fact purchased by Mr. Trogdon so that the proceeds therefrom would constitute payment in full to Mr. Trogdon’s estate and heirs for Mr. Trogdon’s interest in the partnership should he die before Mr. Strumberg. If we are forced to file suit, we shall include a count to impress the proceeds of this policy with a trust for the payment of the considera*tion for the acquisition by Mr. Strumberg of Mr. Trogdon’s interest.”

As indicated, we are strongly impressed by the fact that plaintiff corresponded with Mercantile for several months, and unconditionally tendered the amount of the book value of decedent’s interest without ever mentioning the alleged insurance agreement. If there had been such an agreement between the partners plaintiff would, of course, have known of it, and, in that situation, it is inconceivable to us that he would have unconditionally tendered the sum of $15,058.22 to Mercantile in payment of the book value of the decedent’s interest without making any effort to establish an agreement which would have entitled him to the property without any payment. If Mercantile had accepted the tender it is reasonable to conclude that the alleged insurance agreement would never have been mentioned. While plaintiff presented evidence which tended to support his contention, it was not as convincing as the inferences adverse to-plaintiff which must be recognized as a result of plaintiff’s failure to assert the contention prior to August 2, 1960.

We have also considered the fact that plaintiff was not called as a witness in-the case. While we are mindful of the fact that if objection had been made his testimony would likely have been excluded under the provisions of § 491.010 (the so-called “Dead Man’s Statute”), we are nevertheless of the view that he should have offered to testify. As we have recently said, “[T]he statute does not render a witness incompetent for all purposes and' therefore, in any event, if the testimony of plaintiffs would have been favorable to their cause, they should have been offered as witnesses and defendants could then have objected or not as they saw fit.” Spaeth v. Larkin, Mo.Sup., 325 S.W.2d 767, 772.

For the reasons heretofore stated, the judgment should be affirmed as to each count.

It is so ordered.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: DALTON, Presiding Judge.

text:
    STATE ex rel. Anna Belle FAVAZZA, d/b/a Opera Cocktail Lounge, Respondent, v. Hollis M. KETCHUM, Supervisor of Liquor Control, State of Missouri, Appellant.
    No. 49527.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      Thomas F. Eagleton, Atty. Gen., Albert J. Stephan, Jr., Asst. Atty. Gen., Jefferson City, for appellant.
    Burton M. Greenberg, St. Louis, London Greenberg, St. Louis, of counsel, for respondent.
   DALTON, Presiding Judge.

This is an appeal by the Supervisor of Liquor Control of Missouri from a decision of the Circuit Court of the City of St. Louis, Honorable James F. Nangle, Judge, reversing an order of the Supervisor of Liquor Control suspending for thirty days the license of Anna Belle Favazza to sell intoxicating liquor by the drink. The court found (“from all the files and records in the action”) that the decision of the Supervisor was not supported by competent and substantial evidence on the whole record. See Article V, Section 22, Constitution of Missouri 1945, Section 311.700 RSMo 1959, V.A.M.S.

Respondent had been issued a license by the Supervisor of Liquor Control, effective July 1, 1961 and expiring June 30, 1962, authorizing her to sell at “retail liquor by the drink” on the premises described. as “All of first floor of building know as 5646-48 Pershing Ave., St. Louis, Missouri,” known as the “Opera Cocktail Lounge.”

On October 5, 1961 said licensee was notified that a hearing would be held at the Supervisor’s office in Jefferson City on October 25, 1961, to inquire into certain charges made against her, as in said notice set out, and she was directed to be present at said hearing and show cause why her said License No. 1330 should not be revoked or suspended. Section 311.680 RS Mo 1959. The notice charged violations of Regulation 15, subsection (k) of the Regulations of the Supervisor of Liquor Control, I960, which subsection, as set out in the notice, was as follows:

“(k) No licensee shall employ or allow the loitering upon or about the licensed premises of any police character, felon, gangster, racketeer, pickpocket, swindler, confidence man, female impersonator, prostitute, narcotic addict, vagrant, delinquent minor or other degenerate or dissolute person.” See Section 311.660(6) and (10).

The dates on which the alleged violations occurred were stated as follows: July 29, July 31, August 3, August 9, August 16, August 21, August 22, all in the year 1961. The specific manner of violation of the regulations was not stated.

The licensee appeared in person and by her attorney, Dewey Godfrey, and a hearing was held at Jefferson City on October 25, 1961.

A certified copy of licensee’s License No. 1330 and a copy of Regulation 15 (k), as set out supra, and Regulation 15(a) were offered and received in evidence, Regulation 15(a) of said Rules and Regulations being as follows:

“(a) Licensees are at all times responsible for the conduct of their business and are at all times directly responsible for the conduct or act of any employee on the premises which is in violation of the Intoxicating Liquor Laws or the Non-intoxicating Beer Laws or the Regulations of the Supervisor of Liquor Control.”

At the hearing it appeared that the essence of the several charges against licensee was that she had permitted an alleged felon and police character, to wit, one Vincent Marchesi, to loiter upon and about the licensed premises. By stipulation and agreement of the parties, the records of the St. Louis Police Department with reference to Vincent Marchesi were read in evidence by witness Joseph Soehngen, as follows:

“The records in the St. Louis Police Department show that he has a bertillon number and in this reading the first two figures of the number are blurred out. The last three are 875, however, the blurred out numbers in this particular reading are not blurred out in the files of the Police Department at St. Louis, and they are available. In the identification section, which is the fingerprint section, the records disclose that on the 4th of December, 1930, he was arrested as a result of an investigation of violation of the Federal Drug Laws and on 11-7-31 he was convicted of a violation of the Harrison Drug Act and sentenced to 2 years and 6 months in Leavenworth Federal Penitentiary. The identification section records further show several arrests. One on May 1, 1954, investigation. Another 2-9-56, suspect of homicide and 2-25-58 suspect of violating the liquor laws. * * *

“The record section of the police department that keeps a file on only arrests in the St. Louis Police Department has the following record. April 26, 1930, suspect violation of the Bone Dry Law, released. May 31, 1930, suspect of assault to kill. He was forwarded to headquarters for disposition and subsequently released. December 4, 1930, the same as in the identification section, a violation of the Harrison Drug Act and 2½ years in the Leavenworth Penitentiary. 3-6-31 violation of Volstead Act, forwarded to headquarters. June 25, ’31, suspect of affray and released. March 1, ’33, investigation, released. April 12, ’33 investigation, released. July 6, ’33, investigation, released. April 27, ’34, investigation, released. October 29, ’35, investigation, released. August 12, ’43, suspect of gambling and released. December 26, keeping a common gambling house, warrants refused. August 18, 1952 keeping lottery tickets and assessed the fine of $200.00 and costs. May 2, 1954 suspect of robbery, released. February 9, 1956, suspect homicide, released. June 27, ’59, suspect violation of the liquor laws and released.' And an arrest was made * * * on August 22, 1961, that didn’t show in the records at the time these were checked. That last arrest being suspect violation of the liquor laws.”.

Other evidence offered by the Supervisor on behalf of the Department of Liquor Control tended to show that Gene Kil-loren, a police officer of the City of St. Louis who was so employed in July and August 1961 as a member of the “Gambling, Liquor and Morality Section,” was familiar with licensee’s place of business known as the “Opera Cocktail Lounge”; that on July 29, 1961 about 6:15 p. m. he was at said place conducting himself as a patron; that he saw Vincent Marchesi on the premises outside the bar and drinking as a customer or patron; that witness again visited the “Opera Cocktail Lounge” on July 31, 1961 and saw Marchesi there at 1:35 p. m. and noted that he was directing people to the food or buffet luncheon, asking them if they had enough, telling them where to get the plates and telling them where they could sit; that on August 3, 1961 he also visited the cocktail lounge and again on August 9, 1961 at about 3 p. m., when he saw Marchesi there; that, when witness first entered the lounge Marchesi was drinking with the rest of the patrons, sitting about the middle of the bar; and that witness saw a gentleman come into the establishment and ask the bartender if he would cash a check for him; that the bartender, who was known as “Sam,” said, “You will have to ask the boss”; that “Sam” handed the check to Vincent Marchesi and Mr. Marchesi looked at it a while, a second or two, turned it over and said to “Sam,” “Go ahead and cash it” and “Sam” did so. On the same date witness observed Mr. Marchesi go with a man into an annex room of the tavern, where liquor is sold by the package, and witness saw the man purchase some beer from Marchesi and he saw Marchesi open the cash register and ring up the sale on the cash register; and that the man left the premises with the beer. On August 16, 1961 witness again visited the said lounge and observed Vincent Marchesi at that time. Marchesi was then behind the bar but he later joined the customers outside the bar.

On cross-examination the witness testified that, on July 31, 1961, a buffet luncheon was laid out on two tables that had been pushed together, right north of the bowling machine; that Marchesi was not behind the bar on this occasion; and that on August 16, when he visited the lounge at 3 p. m., Marchesi was just standing behind the bar and a bartender was also present behind the bar. He did not see Marchesi handle any drinks or do anything of that nature at that time. Witness was present in the lounge on July 31, 1961 for some thirty minutes; that each of the several visits by witness to the lounge would average about twenty minutes, with a minimum of twenty minutes and a maximum of thirty minutes, and that on each occasion he saw Mr. Marchesi there. He also visited the lounge on July 30 but did not see Mar-chesi.

Joseph Soehngen, a member of the. St. Louis Police Department and so employed in July and August 1961, testified that he had had an occasion to enter the “Opera Cocktail Lounge” on August 3, 1961 about 4:45 p. m. He remained there “Possibly 40 minutes.” If the licensee was present he did not see her, but he did see and recognize Vincent Marchesi, who was on the premises when he arrived and when he left, and Marchesi was mingling with the patrons. Witness knew that Marchesi had a police record and that he had been convicted.

Licensee Anna Belle Favazza testified in her own behalf to the effect that she resided at 5912 Pershing Avenue; that her occupation was tavern owner; that her tavern was located at 5946 — 48 Pershing and the name of the place was “Opera Cocktail Lounge”; that she had owned it for nine years; that she knew Vincent Marchesi, and had known him for sixteen years; and that she knew that he came to her establishment.

She further testified:

“Q And for what purpose does he come to the Opera Lounge?
"A When I am there he is supposed to be there. He is a friend of mine.
“Q Then he comes to visit you? A Yes.
“Q And you have never authorized him nor told him nor allowed him to take any part in the operation of running of your business ?
“A No, sir.”

The witness further testified to the effect that Marchesi was not supposed to be there when she was not there, and that the only instance when he would be there without her, was when he was waiting for her to arrive. She said: “Sometimes I meet him there in the afternoon, we have lunch or I have to go down [town] for business.”

On cross-examination she stated that she was aware of the fact that Mr. Mar-chesi had served some time on a conviction “but that was thirty years ago.”

The Supervisor of Liquor Control, on the basis of the foregoing testimony, made findings of fact to the effect that on July 29, July 31, August 3, August 9 and August 16, all in the year 1961, licensee “did allow the loitering of a felon upon her licensed premises.” On November 3, 1961, subsequent to the hearing on October 25, 1961, the Supervisor issued his order suspending respondent’s license for thirty days, effective November 20, 1961. Thereafter, on November 16, 1961 respondent licensee filed a petition for judicial review in the Circuit Court of the City of St. Louis, whereupon on the same day, and without notice to appellant, the court stayed the order of appellant Supervisor until to and including December 14, 1961. Thereafter, on February 1, 1962, the court heard the cause on review and, on April 5, 1962, reversed the order of suspension on the ground that it was “not supported by competent substantial evidence on the whole record,” and the cause was thereafter duly appealed by the Supervisor to this court.

This court has jurisdiction of the appeal, since appellant is a state officer. Article V, Section 3, Constitution of Missouri 1945; Pinzino v. Supervisor of Liquor Control, Mo.Sup., 334 S.W.2d 20, 22(1).

Appellant here assigns error on the circuit court’s action in holding that the decision of appellant was not supported by competent and substantial evidence on the whole record. The cause has been duly briefed by the parties and argued on appeal.

It is not the province of this court, nor was it the province of the circuit court to determine this case on its merits. That is the function and duty of the Supervisor of Liquor Control. Our duty is to review the case for the purpose of determining whether upon the whole record the findings of fact and suspension of respondent’s license is supported by competent and substantial evidence. Wood v. Wagner Elec. Corp., 355 Mo. 670, 197 S.W.2d 647, 649; Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Lewis v. Lowe & Campbell Athletic Goods Co., Mo.Sup., 247 S.W.2d 800.

On this appeal we must consider the evidence in a light most favorable to the Supervisor’s findings. Harper v. Home Imp. Co., Mo.Sup., 235 S.W.2d 558, 559. Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the Supervisor of Liquor Control, but said courts are authorized to and may decide whether the Supervisor reasonably could have made the findings reached and the result stated upon a consideration of all of the evidence before him. Neither the trial court nor the appellate court may set aside the Supervisor’s findings unless his findings and decision are clearly contrary to the overwhelming weight of the evidence.

It is appearent from respondent’s brief that counsel for respondent is not familiar with the above rules governing the review of findings of an administrative agency, since in her brief respondent complains of appellant’s brief on the theory that appellant’s statement tends to ignore and mini-mise all evidence favorable to respondent, and counsel further undertakes to state the facts and quote the evidence upon which it is contended that the circuit court below based its judgment in reversing the Supervisor’s order. In view of the conclusion we have reached, we shall discuss respondent’s contentions on this appeal.

In support of the trial court’s judgment reversing the order of the Supervisor the respondent insists that the transcript shows an absence of competent and substantial evidence to support the appellant’s findings ; that the word “loiter” must mean to linger or tarry at a place without any reason or proper motive for being there, citing People on Complaint of Bailey v. Dennis, City Ct., 208 N.Y.S.2d 522, 542; and that Marchesi’s action in conducting himself as a patron, drinking on the outside of the bar, directing people to food and asking them if they had enough, telling them where to get plates and telling them where they could sit was not evidence of loitering, since reasonable activity is repugnant to loitering. Respondent further says that such activities as the evidence shows did not constitute anything unreasonable or improper; that the customer purchasing beer from Marchesi and the customer cashing the check were “unknown parties”; and that Marchesi’s act in selling beer and ringing up a sale on the cash register did not constitute loitering. It is also contended that the evidence concerning Marchesi’s mingling with the patrons on August 3 was not substantial evidence that respondent permitted loitering by Marchesi. Respondent further says there was no evidence as to when Marchesi arrived at respondent’s tavern on any of the dates mentioned, nor was there any evidence as to the time of his departure. We agree that the Supervisor’s evidence fails to show when Marchesi arrived at the tavern on the dates mentioned, or when he left, but we are not advised as to how or why such failure aids respondent’s defense.

Respondent’s final argument is based on the ground that “some consideration should be given” to the question of whether Mar-chesi’s record falls within the provisions of Regulation 15, subsection (k), since he was convicted of a violation of the Harrison Drug Act in 1931 and the date of the conviction is so remote as not to reasonably bear on his present character, particularly in view of a statute of this state providing that any person who shall receive his final discharge from parole shall be restored to all rights and privileges of citizenship is valid and controlling. Respondent cites Page v. Payne, 293 Mo. 600, 240 S.W. 156, 162; State v. Dalton, Mo.Sup., 23 S.W.2d 1; Fisher v. Gunn, Mo.Sup., 270 S.W.2d 869; State ex rel. Oliver v. Hunt, Mo.Sup., 247 S.W.2d 969 and Collins v. Leahy, Mo.App., 102 S.W.2d 801. None of the cases cited are in anywise controlling as to whether or not Marchesi was a felon within the meaning of Regulation 15 (k), or whether or not he was loitering upon the respondent’s premises.

No question has been raised with reference to the rules and regulations promulgated by the Supervisor of Liquor Control nor as to the procedure followed in the handling of charges against licensees. See Sections 311.660 and 311.700 RSMo 1959. All the evidence heard was offered in support of or in defense of each and all of the charges made by the Supervisor of Liquor Control against respondent. No effort was made to limit the evidence in any manner with reference to any of several charges.

“ ‘Substantial evidence’ is evidence which, if true, has probative force upon the issues, i. e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced.” Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 821 [5,6].

The evidence was sufficient to support a finding that Vincent Marchesi was a “felon” within the meaning of that term as used in Regulation 15, subsection (k) of the Regulations of the Supervisor of Liquor Control. See Black’s Law Dictionary, 3rd Edition, p. 763 and 36A C.J.S., Felon, p. 253. The fact that Marchesi had been convicted of a felony is not questioned. The evidence concerning Marchesi’s police record was admitted by stipulation and agreement of appellant and respondent. Only the weight and value of the evidence was for the trier of the fact, in this case, the Supervisor of Liquor Control. While the felony conviction was remote as to time, the records of the police department do not support a finding that Marchesi’s manner of life had materially changed so as to show him to be a law-abiding citizen, particularly the evidence of his subsequent conviction, on August 18, 1952, for keeping lottery tickets. This court has held that the lapse of time after a felony conviction does not exclude its use in the case of prosecutions under the Habitual Criminal Act. State v. Nolan, Mo.Sup., 316 S.W.2d 630, 633 [6]; State v. Humphries, 350 Mo. 983, 169 S.W.2d 350, 351. Respondent’s own testimony shows that she knew that Marchesi had been convicted of a felony.

The evidence was also sufficient to support a finding that respondent permitted Marchesi, a felon, to loiter about her premises, known as the “Opera Cocktail Lounge.” The word “loiter” is defined by Black’s Law Dictionary, 3rd Edition, p. 1130, as meaning “to stand around or move slowly about; to spend time idly; to saunter; to delay; to linger; to lag behind.” And see 54 C.J.S., Loiter, p. 793, where a substantially similar definition appears. The word “loitering” is defined as “a term having a well-recognized meaning in ordinary use, the collective acts constituting which are familiar to all persons.” 54 C.J. S., Loitering, p. 794. And see Jacobs v. Transcontinental & Western Air, Inc., 358 Mo. 674, 679, 216 S.W.2d 523, 526 [5], 6 A.L.R.2d 1002. Respondent's own testimony tends to show that Marchesi frequented her place of business with her full knowledge and consent. She testified: “When I am there he is supposed to be there. He is a friend of mine.” She further testified that he came to visit her and, at times, he would be there waiting for her to arrive. She further said that when she was not at her place of business Marchesi was not supposed to be there; and that she had never authorized him, or told him, or allowed him to take any part in the operation 'of running her business. Other testimony in the record tends to show that at least Marchesi had been around the place a sufficient time to be familiar with the operation of. respondent’s place of business and to actively participate therein. The testimony concerning the frequency with which Marchesi was shown to have been in respondent’s place of business, visiting with customers, directing them to seats, handling the operation of the business and even appearing behind the bar was certainly sufficient evidence to sustain a finding that Marchesi was loitering about the place of business with the licensee’s consent. If respondent’s testimony was accepted, Marchesi had no authority to conduct business and was there only to wait for or visit with her. In any event there was plenty of evidence in the record to support a finding that licensee had permitted a felon to loiter about the “Opera Cocktail Lounge.”

The judgment of the trial court is reversed and the cause is remanded with directions to set aside the order and judgment entered by the court on April 5, 1962, and to affirm the finding and order of the Supervisor of Liquor Control,

All concur.