author: DALTON, Judge.

text:
    STATE of Missouri ex rel. Kathleen M. WARD, Relator, v. The Honorable Tom J. STUBBS, Judge of the Circuit Court of Jackson County, Division 5, at Kansas City, Missouri, Respondent.
    No. 50077.
    Supreme Court of Missouri. En Banc.
    Jan. 13, 1961.

      Harold Waxman, Jerome B. Stone, Kansas City, for relator.
    Ben W. Swofford, Laurence R. Smith, Phillip L. Waisblum, Kansas City, Swof-ford, Smith & Waisblum, Kansas City, of counsel, for respondent.
   DALTON, Judge.

This is an original proceeding in prohibition brought in this Court at the relation of Kathleen M. Ward, Relator, seeking a Writ of Prohibition against the Honorable Tom J. Stubbs, Circuit Judge, Division 5 of the Circuit Court of Jackson County, Missouri, to prevent him from proceeding with the trial of a divorce case pending against her (Case No. 593,911), after her cross-petition for divorce filed in said cause had been stricken from the files on the ground that the issues raised in her cross-petition had theretofore been adjudicated against her by virtue of a dismissal of her prior action for separate maintenance, which she had theretofore filed against her said husband, Charles T. Ward (Case No. 549,422), the dismissal of which had been made pursuant to Rule 14 of the Rules of the Circuit Court of Jackson County, Missouri.

Relator contends that the issues raised by her cross-petition for divorce have not been finally and conclusively adjudicated against her by reason of the dismissal of her prior suit for separate maintenance and particularly, that the dismissal of said action under Rule 14 of the Rules of the Circuit Court of Jackson County could not be res adjudicata of the issues raised by her cross-petition concerning the conduct of her said husband since the institution of her said suit for separate maintenance and the dismissal thereof.

Relator further insists that she cannot secure a complete hearing on the merits of her husband’s suit for divorce without a hearing of the facts stated in her answer to plaintiff’s petition for divorce and in her cross-petition for divorce against him; that the striking of her cross-petition for divorce under the facts and circumstances of this case restricts her from asserting a complete and proper defense to her husband’s suit; and that forcing her to trial on the issues raised by her husband’s action and her answer thereto, as the pleadings now appear, denies her due process of law under the Fifth Amendment to the Constitution of the United States and also under Section 1 of Article 14 of said Constitution, as well as Sections 10 and 14 of Article I of the Constitution of the State of Missourri, 1945, V.A.M.S.

Relator’s separate suit for maintenance against her husband (Case No. 549,422) was filed in the Circuit Court of Jackson County on January 26, 1951. The petition charged indignities to plaintiff (relator herein), to wit: “that defendant is possessed of a high and ungovernable temper, and on many occasions creates such violent and .prolonged disturbances as to interfere with and destroy the rest and sleep of the entire family; that without just cause or reason defendant is constantly critical of plaintiff and the minor children of plaintiff and defendant, and even preventing the study periods of said minor children; that defendant constantly uses vile and profane language toward this plaintiff and the said minor children; that defendant has constantly struck, beaten, and kicked this plaintiff and the said minor children; that defendant maliciously uses alcoholic beverages, becoming extraordinarily vicious and oppressive, all for the express purpose of distressing and harassing this plaintiff; that defendant is parsimonious toward this plaintiff, making it necessary for her to obtain money from her brother in order to provide adequate clothing and the necessities of life for the minor children of plaintiff and defendant, and plaintiff and the said minor children are periodically, and at this time substantially, destitute and without proper maintenance and support and that defendant refuses to provide properly the necessities of life for plaintiff and said children; that defendant has shown no affection toward plaintiff as his wife.”

A stipulation was thereafter entered into by and between relator and her said husband whereby the said Charles T. Ward agreed to pay to plaintiff $200 per month as and for “temporary maintenance.” On March 2, 1951,-the stipulation was made a part of the record in said cause (Case No. 549,422, Book 179-A, p. 281 of the records of the Circuit Court of Jackson County) and Charles T. Ward paid all or part of said $200 per month to relator as separate maintenance up until the latter part of 1958. No further orders or proceedings were had in said cause.

On June 25, 1956, the Presiding Judge of the Circuit Court of Jackson County dismissed plaintiff’s petition for separate maintenance (Case No. 549,422) pursuant to Rule 14 of the Rules of the Circuit Court of Jackson County. At the time of said dismissal relator herein had moved to the State of California, where she then resided. The provisions of the mentioned rule and the facts and circumstances attending the dismissal will be reviewed in ruling the issue of res adjudicata.

On the 1st day of October, 1956, Charles T. Ward, as plaintiff, filed a suit for divorce against relator in the Circuit Court of Jackson County (Case No. 592,911) wherein he alleged the marriage to relator on the 15th of October, 1929, and their separation after living together “approximately 20 years.” The petition charged the following indignities : “Defendant continually nagged, criticized and quareled [sic] with plaintiff without cause; that in 1948, she left plaintiff and went to California, and after repeated attempts at reconciliation at the instance of plaintiff, the defendant refused to allow plaintiff to see her anymore; that defendant filed against plaintiff repeated suits for divorce and separate maintenance in the Circuit Court of Jackson County, Missouri, which cases were never brought to trial, but after payment of attorney fees in each of said cases, and paying to defendant temporary support, she dismissed all of said cases.

“Also, the defendant has continually harassed plaintiff in order to compel him to pay her more money, sending numerous telegrams to him and to his employer charging that he had abandoned his child, and she made complaint before the District Attorney in Santa Anna, California, charging plaintiff with having abandoned the minor child, and she had proceedings filed and warrant issued and served upon plaintiff in the District Court of Wyandotte County, Kansas, upon which plaintiff was taken into custody and required to appear before said court on or about the 15th day of July, 1956, at which time the defendant made no appearance, and said action was dismissed by the court without prejudice; that the conduct of the defendant has caused plaintiff great pain and anguish, and has injured him in his employment, and all of the actions of the defendant as above set out were unfounded and maliciously done.

“Plaintiff has endeavored to make reconciliation with defendant and desired to go to California to visit her and their son in September,' 1956, but that defendant refused to allow him to come; that defendant has informed plaintiff that she is through with him and has no affection for him, and that she will never live with him again.”

The record presented here further shows that on April 2, 1949, relator had filed a suit for divorce against her husband Charles T. Ward on the ground of indignities; and that, subsequently, on April 20, 1954, the cause was dismissed “without prejudice.” The record also shows that on May 29, 1956, relator instituted a proceeding against her husband in the Superior Court of Orange County, California, under the Uniform Reciprocal Support Act to obtain support for their minor child; that the cause was thereafter transferred to the District Court of Wyandotte County, Kansas, in which court Charles T. Ward appeared “by compulsion of a warrant”; and that, thereafter, on June 28, 1957, the proceeding was dismissed in said district court for want of prosecution.

No service of process was had upon relator in Case No. 593,911 (her husband’s suit for divorce against her) and the case remained pending with no service from October 1, 1956, until relator returned to Kansas City shortly prior to September 27, 1962, on which date she voluntarily entered her appearance in said Case No. 593,911 and filed her answer and cross-petition for divorce, wherein she admitted her marriage to defendant on or about October 15, 1929, and her separation from defendant on or about the 1st day of January, 1950; admitted plaintiff’s residence in the State of Missouri for more than one whole year, next before the filing of plaintiff’s petition; stated that she was a nonresident of the State of Missouri; denied the indignities charged against her; and alleged that the three children born of the marriage had reached their majority.

Relator’s cross-petition for divorce against plaintiff in Case No. 593,911 alleged general indignities as follows: :

“(a) That plaintiff is possessed of a high, violent and ungovernable temper and a quarrelsome disposition and would constantly nag and quarrel with defendant giving her no peace of mind or rest.
“(b) That plaintiff cursed, abused and. used crude, vulgar, vile, and rude language, toward her.
“(c) That plaintiff has associated with and been intimate with other women.
“(d) That plaintiff is possessed of a mean and jealous disposition.”

Thereafter, on November 5, 1962, plaintiff Charles T. Ward filed a motion to strike defendant’s cross-petition for divorce on the ground that the issues sought to be raised in said cross-petition for divorce were res adjudicata, because the separate maintenance action (Case No. 549,422) previously filed by relator against him on January 26, 1951, had been dismissed by the Presiding Judge of the Circuit Court of Jackson County on June 25, 1956, for want of prosecution and because of the nonappearance of the parties on a peremptory call of old cases pursuant to Rule 14 of the Rules of the Circuit Court of Jackson County.

On January 8, 1963, and prior to any ruling on plaintiff’s motion to strike, plaintiff filed a supplemental motion to strike said cross-petition for divorce and alleged the publication in The Daily Record of notice from June 12, 1956, to June 25, 1956, that pursuant to Rule 14 of the Rules of said court, “Case No. 549,422, Kathleen M. Ward, vs. Charles T. Ward, separate maintenance, Marion Waltner, attorney,” would be called in the assignment division of said court on Monday, June 25, 1956, at 9:30 a. m., and that, if counsel had not arranged for disposition of same prior to that time, counsel must be present. No appearance was made at said time and place and relator’s action for separate maintenance was dismissed, as stated.

Thereafter, on the 22nd day of January, 1963, the Presiding Judge of the Circuit Court of Jackson County sustained the plaintiff’s motion to strike relator’s cross-petition for divorce and said cross-petition was stricken and the cause ordered set for trial on April 1, 1963 in Division 5 of said circuit court before the Honorable Tom J. Stubbs, respondent herein. Respondent thereafter gave notice and informed relator to bring her witnesses and be ready for trial on said date.

Relator, thereafter on January 30, 1963, hied a motion for a new trial attacking the court’s order striking her cross-petition for divorce. The motion was overruled and an appeal was taken to this Court, where, on motion filed by Charles T. Ward, the said appeal was dismissed as premature and because taken from an unappealable order in said cause. Thereafter, on the 29th day of March, 1963, relator filed her petition in this Court for a Writ of Prohibition, as stated. A stop order was issued, directed to respondent; and on April 9, 1963, this Court issued its Preliminary Rule in Prohibition. Resporident’s return to this Court’s preliminary rule was duly made and, thereafter, oñ the 17th 'of May, 1963, relator filed' her reply to" respondent’s return.

As stated, relator’s position here is that in viéw of the state of the record in the casé of Charles T. Ward, plaintiff, vs. Kathleen M. Ward, defendant, Case No. 593,911; she is restricted from asserting a complete and proper defense to the petition for divorce filed by her husband; that she is prevented from pursuing her cross-petition for divorce filed in said divorce proceeding; and that she has been deprived thereby of the right to introduce evidence to show that her husband is not the innocent or injured party or that she is the injured or innocent party and entitled to a divorce. She further contends that the dismissal of her prior petition for separate maintenance by the Circuit Court of Jackson County on June 25, 1956, pursuant to Rule 14 of the Rules of the Circuit Court of Jackson County, was not res adjudicata as to the issues raised in her said petition for separate maintenance; and that, particularly, it was not res adjudicata as to the new issues, facts and events occurring subsequent in time to the filing of her petition for separate maintenance, nor was it res ad-judicata as to the new allegations of fact and the new grounds for divorce stated in her cross-petition for divorce to the effect that plaintiff has associated with and been intimate with other women. Relator further contends that to proceed to trial in accordance with the order and notice served upon her by respondent, after her cross-petition for divorce has been stricken, she will be deprived of her right to due process of law under the mentioned constitutional provisions and also under Section 452.020 RSMo 1959 and Supreme Court Rule 88.02, V.A.M.R. as amended March 6, 1962.

Under points and authorities relator first contends that respondent exceeded his jurisdiction and authority in directing that her husband’s action for divorce proceed to trial on April 1, 1963, after her cross-petition for divorce had been erroneously stricken from the files. She insists that she is entitled to the issuance of the Writ of Prohibition against respondent because if respondent proceeds under the circumstances of this cáse 'to hear her husband’s divorce case without hearing her cross-petition for divorce against him, her legal rights will be invaded and due process denied and that she will have no adequate remedy by appeal. She argues that she will be “deprived of her right to a complete defense and to her right to urge facts constituting her the innocent party and injured party entitling her to the decree of divorce”; and that “by striking relator’s cross-petition for divorce and causing the suit to be heard on plaintiff’s petition alone on'the issues therein raised, she not only is prevented from asserting a complete and adequate defense to the petition for divorce filed by Charles T. Ward but the trial would be only a partial trial as to the merits of the parties respectively to a divorce based solely on the issues raised in plaintiff’s petition and would be a division of the hearing of the merits on the action filed by Charles T. Ward and an appeal taken by her from the record showing only the issues on plaintiff’s petition would not afford Relator a complete and adequate remedy by such appeal.”

We need not rule the issue of no adequate remedy by appeal, since respondent now, in effect, concedes that relator’s position is correct, when he states: “Respondent does not deem it necessary to here .argue whether or not the remedy by appeal is an adequate one for Relator. By granting the preliminary rule in prohibition this Court has assumed the legal position that the remedy by appeal is inadequate to fully protect Relator’s rights. By assuming jurisdiction of this controversy in this prohibition proceeding all rights of Relator with reference to the action of the Court below in striking her Cross-Petition and ordering her to trial can be (and presumably will be) fully adjudicated.”

Relator next contends that the dismissal of the separate maintenance action by the Circuit Court of Jackson County, Missouri, pursuant to Rule 14 of the Rules of said circuit court, was a dismissal “without prejudice”, although the order of the court dismissing the same did not so recite. Relator’says that the court made no order assigning said separate maintenance action to a division of the circuit court for trial; and that no actual notice was served upon .her or her attorney of record that said maintenance action would be called for trial, or other disposition made, on the date stated in the published notice. She insists that the only notice given was the notice which appeared in The Daily Record from June 12, 1956, to June 25, 1956, as follows: “Pursuant to Rule 14, the following cases (1951 vintage) will be called in the Assignment Division on Monday, June 25, 1956, at 9:30 A.M. Counsel who have not arranged for disposition of the same with the Presiding Judge or Carl Luckow, the Equity Assignment Clerk, prior to that time MUST BE PRESENT, * * * 549,922 Kathleen M. Ward v. Charles T. Ward, Sep. Maintenance; Marion Waltner *

It is admitted that this notice was published on the court’s own motion pursuant to Rule 14 of the Rules of the Circuit Court of Jackson County, Missouri, as then in force, and that the pertinent portion of said Rule provided: “The Presiding Judge may, whenever deemed advisable by the Court en banc upon not less than ten days notice, call orally the whole or any portion of the general docket and upon such call any case which has not been listed for trial when notice calling for such listing has been published may, in the discretion of the Presiding Judge, be listed for trial, continued, or dismissed.” (Italics ours.)

Relator states that the published notice merely indicated that the case would be called pursuant to Rule 14 with the admonition that counsel who had not arranged for prior disposition of the case or cases listed prior to the time and date of the call must be present. Relator concedes that her counsel did not appear and that she was not personally advised that the notice had been published. She concedes that, upon her nonappearance and that of her counsel, the Presiding Judge (of the assignment division) on June 25, 1956, elected to dismiss said action pursuant to said rule and entered an order reciting that Case No. 549,922, Kathleen M. Ward vs. Charles T. Ward was dismissed for want of prosecution.

Relator insists that the notice as published in The Daily Record was not a specific setting of the case for trial; that it cannot he interpreted as an order of the court directing the cause to he set for trial, when it had never been assigned by order of the court to a division for trial; and that the dismissal of said separate maintenance action pursuant to Rule 14 cannot be interpreted as a dismissal “with prejudice” which would foreclose her on the issues now raised in her cross-petition for divorce. On this record, relator’s argument with reference to the sufficiency of the notice cannot he sustained; nor was the failure to assign the case for trial material here, particularly, in view of the fact that the record shows that this case had been pending since January 26, 1951, with no action taken, other than by the entry based upon the mentioned stipulation of the parties. The stipulation with reference to “temporary maintenance”, although incorporated in the records of the court, was not an order dealing with the merits of the pending case, since relator might well be entitled to “temporary maintenance” regardless of the merits of her action for separate maintenance.

As to the sufficiency of the notice, as given, this Court in the case of Bindley v. Metropolitan Life Ins. Co., Mo.Sup., 335 S.W.2d 64, 69 [2-4] said: “This court knows that ‘The Daily Record’ is a medium generally used by the circuit courts of Jackson County for transmitting notice and by lawyers for obtaining notice of orders made in connection with the cases pending in said courts. It is hardly conceivable that the Bar of Kansas City did not know, from its daily reading of The Daily Record, that in 1956, the circuit court was engaged in clearing its dockets of ‘old cases’; and it would seem that general.knowledge of that fact alone would charge plaintiff (actually, her counsel) with the duty, in the exercise of reasonable care, carefully to read each listing in its entirety to ascertain whether her case, which had lain dormant since 1948, was or soon would be listed for disposition. In the motion here presented, counsel for plaintiff admits that he read in The Daily Record a portion of the notice setting this case for trial on May 21, 1956, and seeks to avoid any prejudicial effect of his failure to read all of it, because, at the top thereof, it referred to a series of cases filed in 1950 and when he had scanned the notice to the point where, in numerical order, this case should have appeared, he cast the notice aside. When we bear in mind, first, the foregoing facts and, second, the duty of a party to keep abreast of all proceedings in his case from and after service of original process until final judgment, Cohen v. Ennis, Mo., 318 S.W.2d 310, 316, we think the trial court could well have found that the notice here challenged was sufficient to apprise plaintiff of the setting of her case for trial on May 21, 1956.”

We must and do hold that the published notice was sufficient to sustain a dismissal with prejudice.

On June 25, 1956, at the time of the mentioned dismissal of relator’s petition for separate maintenance, Sec. 510.150 RSMo 1949 was in full force and effect and it, in part, expressly provided that: “ * * * [a] dismissal with prejudice operates as an adjudication upon the merits. * * * any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.” Supreme Court Rule 67.03, adopted July 1, 1959, effective April 1, 1960, is substantially to the same effect. In this case the Court failed to provide that the dismissal was without prejudice and it was, therefore, a dismissal with prejudice and, with that fact in view, we must determine the effect of this dismissal on relator’s subequent cross-petition for divorce, and also whether such dismissal sustains the action of the court on January 22, 1963, in striking relator’s cross-petition on the ground that the issues stated therein had been fully adjudicated by reason of the dismissal of her prior suit on June 25, 1956.

We think it wholly immaterial whether or not the publication and the calling of the docket had been “deemed advisable by the Court en banc”, as mentioned in Rule 14, since the assignment division of the said circuit court possessed the necessary jurisdiction to dismiss plaintiff’s petition after notice was given, and particularly so, in view of the inherent jurisdiction of the court.

In Bindley v. Metropolitan Life Insurance Co., supra, 335 S.W.2d 64, 69 [1], this Court said: “The inherent right and power of a court, of its own motion and independently of statute or court rule, to dismiss an action for failure to prosecute is universally recognized, 27 C.J.S. Dismissal & Nonsuit § 65(1), pp. 430-432; and it has long been so recognized in Missouri. Guhman v. Grothe, 346 Mo. 427, 142 S.W.2d 1, 2; City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W.2d 65, 68 [2]; Crispin v. St. Louis Public Service Co., 361 Mo. 866, 237 S.W.2d 153, 155.” And also see Salle for Use and Benefit of Mandel v. Holland Furnace Company, Mo.Sup., 337 S.W.2d 87, 90 [5] and Doughty v. Terminal Railroad Ass’n of St. Louis, Mo.Sup., 291 S.W.2d 119, 121.

We must and do hold that said dismissal was res adjudicata of the issues and facts properly pleaded by relator in her petition for separate maintenance, when filed, and also of such facts as could have been alleged prior to the date of dismissal, ■since if, on that date, she had elected to go to trial she could have amended her petition and have brought it to date, alleging all subsequent appropriate grounds, facts .and circumstances, which had occurred after the filing date of her petition for separate maintenance and prior to the entry of the judgment of dismissal under Rule 14 for failure to prosecute. A former adjudication on the same cause of action between the same parties is conclusive in subsequent proceedings as to every issue of fact which was or might have been litigated in the first proceeding under what is called estoppel by judgment. Abeles v. Wurdack, Mo.Sup., 285 S.W.2d 544, 546 [1-3]; Reis v. La Presto, Mo.Sup., 324 S.W.2d 648, 652 [2-5] ; Ackley v. Ackley, Mo.App., 257 S.W.2d 404, 407 [5]; Prough v. Prough, Mo.App., 308 S.W.2d 294, 295 [2] and Brady v. Brady, Mo.App., 71 S.W.2d 42, 47 [6-8].

Relator, however, contends that in the cross-petition for divorce, filed by her on October 1, 1962, in the divorce action filed by Charles T. Ward against her, she alleged new, additional and continuing grounds for divorce which occurred subsequent in time to the dismissal on June 25, 1956, of her separate maintenance action by the circuit court pursuant to said Rule 14 of the Rules of the Circuit Court of Jackson County, Missouri.

Relator insists that in her said cross-petition for divorce, she alleged in paragraph 1(c) additional grounds for divorce not heretofore alleged in said prior separate maintenance action, to wit: that Charles T. Ward had associated and been intimate with other women. Also, in paragraph 5 of said cross-petition, for divorce, she alleged that she is unable to work and support herself and that she is without means to meet her living expenses. Although not specifically stated, she says that she sought to charge that Charles T. Ward failed to perform his obligation to support and maintain her. Relator further contends that each adulterous act of her husband and the fact of his failure to support and maintain relator were new, and continuing and additional grounds for divorce, which she insists that she was entitled to allege and prove in her said cross-petition for divorce since they arose subsequent to the dismissal of her petition for separate maintenance. With this contention we must agree since relator was free to allege and prove any cause of action for divorce based upon facts arising subsequent to the prior judgment with reference to separate maintenance. Fisher v. Cox, Mo.Sup., 312 S.W.2d 775, 781 [3]; Abeles v. Wurdack, supra, 285 S.W.2d 544, 547 [3]; 50 C.J.S. Judgments § 650, p. 92.

We have heretofore reviewed the specific allegations of indignities set out in relator’s cross-petition for divorce, which cross-petition was filed October 1, 1962, and it will be noted that no time is stated as to when any of these alleged indignities occurred. It further appears from relator’s cross-petition that the separation of the parties occurred on or about January 1, 1950, and that her husband has filed an affidavit alleging that “he and the defendant, his wife, have not lived together, nor cohabited from December 28, 1950, until the present date.” The affidavit is dated November 3, 1962. We have held that the allegations of relator’s petition for separate maintenance and the indignities or other grounds existing in support of her suit for separate maintenance, and facts occurring prior to June 25, 1956, are res adjudicata as between her and her husband. We have also noted relator’s contention that she in her cross-petition for divorce has alleged new and additional grounds for divorce based on facts and circumstances occurring subsequent to the dismissal of her action for separate maintenance; however, since no time had been fixed in her cross-petition for divorce as to the date when any of the alleged indignities or other grounds for divorce had occurred, the facts may not be determined from the allegations of the cross-petition for divorce.

Plaintiff, Charles T. Ward filed no motion to make the cross-petition for divorce more definite and certain and the court made no finding that the indignities charged by her in her cross-petition occurred prior to June 25, 1956, nor was permission asked or given for relator to file an amended cross-petition for divorce at the time her cross-petition for divorce was stricken and the cause ordered set for trial. We think the court erred in striking her cross-petition under the mentioned circumstances and also in notifying her to appear for trial on April 1, 1963, and to bring her witnesses.

We think the applicable law has been well stated and ruled in the case of Burke v. City of St. Louis, Missouri, Mo.Sup., 349 S.W.2d 930, 933 [6], wherein a suit for damages had been filed against the city but the pleader had failed to allege that the city was acting in a proprietary function in maintaining the building and the trial court, on the city’s motion, had stricken the petition with prejudice. This Court reversed the judgment of dismissal and remanded the cause and stated: “Plaintiff’s petition should not have been dismissed with prejudice upon the motion filed by the city. The record before us discloses no motion to make plaintiff’s petition more definite and certain or to strike any portion thereof (§§ 509.310, 509.320; Civil Rules 55.34, 55.35). It also does not appear that at any time plaintiff either asked or was given an opportunity to amend his petition (§ 509.-490; Civil Rule 55.53). In these circumstances, we conclude that the judgment should be reversed and the cause remanded that plaintiff be afforded an opportunity to amend his petition if he so desires and for such further proceedings as may be proper.”

In view of the conclusions we have reached, it will not be necessary to rule relator’s assignment based upon Section 452.020 RSMo 1959 and Supreme Court Rule 88.02, as amended March 6, 1962, as authorizing her cross-petition for divorce.

Our preliminary rule in prohibition should be made absolute until such time as relator has had an opportunity to file an amended cross-petition for divorce.

All concur.


source: Caselaw Access Project

author: HYDE, Judge. PER CURIAM:

license: Public Domain

text:
    George FARROW and Emma Farrow, Plaintiffs-Respondents, v. Agnes Armstrong TRICKEY and Clyde Trickey, Defendants-Appellants.
    No. 49745.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied and Opinion Modified on Court’s Own Motion Jan. 13, 1964.
    Buerkle & Lowes, by Albert C. Lowes, Jackson, for appellants.
    Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondents. ■ ■
   HYDE, Judge.

Action to determine title; petition in three counts as follows: I. For recovery of possession, damages for trespass and monthly value of rents and profits; II. For actual and punitive damages for removal of plaintiffs’ crops and gravel; III. To determine title in plaintiffs. Defendants’ answer denied plaintiffs’ claims and contained •a counterclaim for actual and punitive damages for trespass and removal of gravel by plaintiffs and sought determination of title in defendants. The court found for plaintiffs on their petition and on defendants’ counterclaim, with findings of facts and conclusions of law, and entered a decree adjudging title in plaintiffs in fee to the disputed land with judgment for them for one dollar on Counts I and II. Defendants have appealed.

The land involved is a narrow strip along the west bank of Indian Creek, between the creek and State Route V. Plaintiffs’ land is west of the creek and defendants’ land is east of it. All of this land was owned by Albert Armstrong (father of defendant Agnes Armstrong Trickey) who died in 1924. Mrs. Trickey and her brother Guy Armstrong divided the land, after their mother’s death, by deeds to each other in 1933, conveying the land east of the creek to Mrs. Trickey and the land west of the creek to Guy Armstrong, who conveyed his part to plaintiffs in 1938. These deeds described the western boundary of defendants’ land and the eastern boundary of plaintiffs’ land as “the middle of the main channel” of Indian Creek. Indian Creek had been straightened many years before these deeds were made and defendants now claim to the course of the old channel, which they say was west of the present channel; and in places even west of the Highway. Plaintiffs claim the present channel is their boundary.

This controversy arose in 1960 when defendants built a north-and-south fence on the west side of Indian Creek between the Route V road and the creek. It appears there had been some contention about the matter for a year or two before and when the right of way for Route V on the west side of the creek was widened in 1959 deeds were taken from both plaintiffs and defendants. Ownership of the land on the east side of the creek had been in the Armstrong family since 1856. Mrs. Trickey’s father who owned it in 1895 bought the land now owned by plaintiffs in that year. The description of the land conveyed to him in this 1895 deed was the same as the description in the deed from Mrs. Trickey to her brother in 1933 and in the deed from him to plaintiffs in 1938, showing the east boundary thereof as “the middle of the main channel” of Indian Creek, north of its junction with Allen’s Fork. Likewise, Guy Armstrong’s deed to.Mrs. Trickey in 1933 described the west boundary of the land conveyed thereby as “the middle of the main channel” of Indian Creek to the point where Allen’s Fork emptied into it. This same description was used by defendants in 1958 to create an estate in entirety in them.

Mrs. Trickey thought the creek was straightened by her father about 1905 but a defendants’ witness, who said his uncle did the work, stated that it was straightened before 1900 and the court so found in its findings of fa.cts. All of the parties said they did not claim anything except the land their deeds described but differed as to their interpretations of the boundary descriptions. Plaintiffs continuously farmed the land west of the Highway and had exercised some acts of ownership on the land between the road and the creek by frequently selling gravel from that side of the creek. At least twice recently the parties had split the proceeds of the sale of gravel from the creek and defendants had sold gravel only from the east side of the creek. There were no fences along either side of the creek, east of the road, until defendants started to build the one on the west bank. Mr. Trickey said he did this because he had begun to keep cattle along the creek. (Defendants lived in St. Louis for some time after plaintiffs bought their land but later moved to their farm.) Mrs. Trickey when asked if they ever claimed any land west of the creek said: “We didn’t exactly claim it. We knew we were paying taxes on it.” Plaintiffs also claimed to paying taxes on that land but no tax receipts were produced by either party.

Apparently the creek has been in the same location it is now through and along the land involved ever since it was straightened by Mrs. Trickey’s father 55 to 60 years before this fence controversy arose. In any event, its location is the same as it was when the land was divided between Mrs. Trickey and her brother, when he conveyed the land east of the creek to her and she conveyed the land west of the creek to him; and likewise when he conveyed to plaintiffs. “A deed should be construed with reference to the actual state of the land at the time of its execution. The court should as nearly as possible assume the position of the parties to the deed, and consider the circumstances of the transaction between them, and then read and interpret the words used in the light of these circumstances.” 6 Thompson on Real Property, 1962 Replacement, 447, Sec. 3022; see also 11 C.J.S. Boundaries § 31, p. 578; 26 C.J.S. Deeds § 83, p. 817. In Weniger v. Ripley, 134 Or. 265, 293 P. 425, the court applied the presumption that the grantor intended to convey, and the grantee intended to take, “the premises as they openly appeared at the time when the deed * * * was executed.” Our view is that this rule must be applied here and is decisive. In the Oregon case, the boundary between two tracts conveyed by a common owner in separate deeds to two different parties was “the middle of the main channel” of a river. About ten acres of the land were between two channels, each claimed to have been the main channel at some time. The court determined from the evidence that the south channel was the main channel when the deeds were made and held the description of the land conveyed was to be construed accordingly.

Applying these principles, we must construe the deeds of 1933 and 1938 as conveying these premises with the boundary between them, the middle of the main channel of Indian Creek, as it openly appeared at the time these deeds were made. Therefore, the location of the creek, in 1895, when Albert Armstrong bought the western part of the land, is immaterial; and the court found in favor of the right party, particularly since defendants never had possession of any land west of the creek and apparently never made any claim to it or showed any interest in possession of it until they wanted a fence there so they could keep cattle along the creek.

Defendants complain that the trial court did not make specific findings on each factual situation involved in their counterclaim in accordance with Rule 73.01(b), V.A.M.R. However, because of the view we take, we consider the findings of facts made were sufficient.

The judgment is affirmed.

All concur.

On Motion for Rehearing or to Transfer to the Court en Banc

PER CURIAM:

Defendants point out that plaintiffs’ deed from Guy Armstrong, as did their deed to him, recited after the boundary description : “and being the same real estate described in a warranty deed dated September 24, 1895, and recorded in Book 30 at page 86 of the land records of Cape Gir-ardeau County”; this reference being to the deed by which Guy Armstrong’s father obtained title before he straightened the creek. Defendants argue (citing 26 C.J.S. Deeds § 83, p. 820) that this is an expression in the deed which positively forbids construing the description of “the middle of the main channel” of Indian Creek as meaning the main channel as it openly appeared at the time the deeds of 1933 and 1938 were made; and that it requires the construction to be that the main channel, as it was located at the time of the 1895 deed, was meant. Our view is that such an indefinite general reference to the 1895 deed does not have that effect and the motion for rehearing or in the alternative to transfer to the Court en Banc is overruled.


author: STOCKARD, Commissioner.

text:
    Lee Dell YERINGTON, Appellant, v. Richard R. RISS, Sr., Respondent.
    No. 50059.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Clyde J. Linde, Linde, Thomson, Van-Dyke, Fairchild & Langworthy, Kansas City, for appellant.
    Lathrop, Righter, Gordon & Parker, Richard S. Righter, William M. Stapleton, Joseph E. Stevens, Jr., Kansas City, for respondent.
   STOCKARD, Commissioner.

In this suit for fraud plaintiff sought $150,000 actual and $500,000 punitive damages. At the end of the plaintiff's evidence the trial court directed a verdict for defendant and plaintiff has appealed. We shall set forth the evidence in considerable detail.

In 1946 plaintiff purchased an army surplus B-7 bulldozer and went into the construction business. In 1952 he entered into a partnership arrangement with Mr. Emmett J. Breen, president of the Farmers Exchange Bank at Parkville, Missouri, and plaintiff borrowed money from that bank and from Mr. Breen with which to operate. In the early part of 1953 the business was incorporated under the name of Yerington Construction Company. (We shall hereafter refer to this corporation as “Yering-ton Company.”) Of the 840 shares of common stock issued, 419 shares were issued to plaintiff, one share was issued to his wife, and 420 shares were issued to Mr. Breen.

Early in 1954 Mr. Breen indicated to plaintiff that he did not wish to continue to advance working capital to Yerington Company, and at Mr. Breen’s suggestion plaintiff met defendant in Mr. Breen’s office. As a result plaintiff entered into an arrangement with defendant to move some dirt on a project at Parkville. After the work was under way defendant stated that he would like to go into the construction business, that he had some dirt moving equipment of his own, that money was no object, that he Rad just bought thirteen million dollars of tractors and trailers (apparently for a trucking business), that he had five million dollars lying around, and that “we wouldn’t "have to borrow money” but he had “the money to operate on.” According to plaintiff he and defendant came to an oral agreement the early or middle part of April. The terms of this agreement are not clear, hut plaintiff testified that he told defendant that “we would have to have it on a fifty-fifty proposition,” and that defendant agreed. In addition, according to plaintiff, defendant was to advance operating capital and money to buy equipment which was to be returned to him out of the earnings -of the company. Plaintiff’ testified -.that all the money that would have been necessary for defendant to advance was thirty or forty thousand dollars, and that he expected defendant to loan the money without taking a note from the company. Under this oral agreement, according to plaintiff, defendant was to “match my equipment” with his equipment, and defendant’s equipment was to be added to the assets of Yerington Company, but nothing was said about this equipment being sold to the company. Defendant also agreed to make the bid and performance bonds.

About two weeks after this oral agreement was reached, plaintiff figured a bid on a construction job at Olathe, Kansas, which amounted to more than $300,000.00, and which was much larger than plaintiff had been able to bid on before. Defendant furnished the bid bond and Yerington Company was awarded the contract which was executed as of April 27, 1954. Plaintiff testified that defendant also furnished the performance bond, but it appears from a copy of the contract that the performance bond was furnished by The Travelers Indemnity Company. On the day that plaintiff started to work for defendant he was told that he could use some of defendant’s equipment, and after the oral agreement was entered into defendant told him “it is all one big family, go ahead and use” his equipment, and plaintiff did so on various jobs, including the Olathe job.

Defendant “was in on ordering all the equipment,” and on behalf of Yerington Company he ordered a Bucyrus B-170 scraper at the cost of $16,000, but plaintiff signed the order, and other equipment at the cost of $58,000. Prior to this, Yering-ton Company had “turned in” some equipment to Victor L. Phillips Company and to Service Equipment Company and had credits of $13,000 and of $10,000. These two credits were used as part payment on this new equipment.

Plaintiff stated that pursuant to the agreement with defendant, Miss Kay McAuliffe was to be the bookkeeper 'of Yerington Company, and that he had no agreement to go into business with her or with any person other than defendant. However, on May 21, 1954 plaintiff and Miss McAuliffe executed an agreement (dated May 20, 1954) the terms of which we shall set out in considerable detail. “In order to induce” Miss McAuliffe to enter into the agreement plaintiff warranted and represented certain matters and conditions pertaining to the corporate structure of Yerington Company and its financial condition. It was then provided that plaintiff "agrees to sell to [Miss McAuliffe] and [she] agrees to purchase from [plaintiff] five hundred sixty (560) shares of common stock of the Yerington Company * * * for the sum of Fifty-four Thousand ($54,000) dollars * * and that “at the time of the closing” plaintiff should (1) endorse in blank the certificates representing the 560 shares, (2) deliver to Miss McAuliffe the “minute book, stock certificate and transfer book, corporate seal, together with all books of account, agreements, documents and all other instruments of, or relating to the said Yer-ington Company,” (3) deliver to Miss Mc-Auliffe the “written resignation of each and every director and officer of said Yerington Company (other than [plaintiff]) which shall be expressed to be effective immediately,” and (4) deliver to Miss McAuliffe “the call and waiver of notice of a special meeting of the Board of Directors to be held * * * at the time and place of the closing * * *.” It was also provided that at the meeting of the Board of Directors “all of the directors shall be present in person, and at such meeting, shall, in due course, * * * accept the said resignations in rotation, and, upon the acceptance of each resignation of the Directors, other than [plaintiff], the remaining members of the Board of Directors of said Yerington Construction Company shall elect, in the place of the director whose resignation has been accepted, such person, as may be nominated by [Miss Mc-Auliffe].” It was then provided that “the closing hereunder shall take place at the office of the Yerington Construction Company, or at such other place as the parties hereto may agree, on May 21, 1954 at 10:00 A.M.,” and also that “at the consummation of the transfer of the aforesaid stock” plaintiff should “loan to the Yerington Construction Company, fifty four thousand ($54,000) Dollars to be evidenced by Corporate Note executed by the Yerington Construction Company for said amount payable in three annual installments, * * * said note to bear interest at the rate of five (5%) per cent per annum on the unpaid balance.”

A special meeting of the board of directors of Yerington Company was held at 10:00 o’clock a. m. on May 21, 1954, and plaintiff presided as chairman. All the di-p rectors were present which, in addition to plaintiff, consisted of plaintiff’s wife and Mr. Breen.' Five stock certificates representing 420 shares of common stock in Yer-ington Company then issued in the name of E. J. Breen, and one certificate representing one share in the name of plaintiff’s wife, were endorsed transferring said stock to plaintiff. This resulted in all the outstanding stock being in the name of plaintiff or indorsed to him. The minutes of the special meeting above referred to, which plaintiff and his wife approved and signed as chairman and secretary respectively, recite that plaintiff advised the board “that he sold 560 shares of the 840 shares * * *■ which he personally held and that it was his-desire that Emmett J. Breen and Isabel! Yerington [plaintiff’s wife] resign as officers and Directors of this Corporation.”' The minutes then show that Mr. Breen resigned as director, and that the remaining two members, plaintiff and his wife, elected Miss Kay McAuliffe as director to fill the unexpired term. Plaintiff’s wife then resigned as director and the remaining two, plaintiff and Miss McAuliffe, elected David H. Bresler as director for the unexpired' term. Following this Mr. Bresler was elected vice president and Miss McAuliffe was. elected secretary and treasurer.

' Plaintiff testified that when this meeting of the directors started defendant stated; with, no prior notice to plaintiff, that he would not go along on “a fifty-fifty proposition” but that he was “going to have two-thirds of the stock” because he had made the bond at Olathe, he was going to be responsible for the new equipment, he was .going “to put the money out” for operating •expenses, and his “risk is just too great.” Plaintiff testified that this demand occurred .after the Olathe contract had been obtained .and the new equipment had been purchased, .and that if he had not acceded to defend.ant’s demands “it would have ruined” Yer-ington Company. Plaintiff admitted that .at the meeting the various acts referred to in the minutes did in fact occur, but he .said that the minutes had been prepared in advance and that while he read them he -did not understand them or know exactly what was being done.

At this meeting 560 shares of common stock of Yerington Company were issued to Kay McAuliffe which left 280 shares issued to plaintiff. No stock was issued in ■the name of defendant.

A second special meeting of the board of -directors of Yerington Company was held .at 3:00 o’clock in the afternoon of the same day in the office of Mr. Bresler, and all the then directors were present. These •minutes, also signed and approved by each •member of the board, which included plaintiff, recite that plaintiff “discussed in detail, plans for the future operations for the ^corporation and suggested that the company was in need of certain equipment that he was in position to purchase from the Transport Manufacture and Equipment Company [hereafter referred to as TM & E] and •presented for consideration of the board a •list of the equipment and machinery which he said could be purchased for $102,000.00 ■which amount the Seller agreed to accept in three annual payments of $34,000.00 each.” TM & E was referred to by plaintiff in his testimony as “a company of Mr. Riss’s,” but was not otherwise identified. In an agreement, subsequently referred to, ■dated October 1, 1955 it is referred to as .an Illinois corporation, and the agreement was signed on its behalf by defendant, but his capacity is not stated. The above minutes for the meeting of the board of directors also recite that plaintiff “further stated that the corporation was in need of loans to liquidate various corporate debts and that he was willing to loan the corporation $54,000.00, said loan to be evidenced by an unsecured corporate note, payable in three annual payments of $18,000.00 each, said note to bear interest at the rate of 5% per annum.” Two resolutions were then adopted authorizing the company to borrow the sum of $54,000 from plaintiff and to execute a note payable in three annual installments of $18,000 each, and to enter into an agreement with TM & E to purchase the equipment and machinery listed in a bill of sale dated May 21, 1954, and presented to the meeting. An additional resolution was also adopted' wherein the officers of Yerington Company were “authorized, empowered and directed to borrow the sum of $101,563.00 from the Merchant’s Bank of Kansas City, Missouri at the rate of 4i/£% interest, for a period of three years, and to execute as security for said loan a chattel mortgage on the personal property of the company, *

Plaintiff testified that it was at this second meeting of the directors that he signed the agreement between him and Kay McAuliffe, although it was at the first meeting that the various acts called for in the agreement pertaining to the transfer of stock and the changes in the directors were carried out. Plaintiff also testified that it was at this second meeting that a check in the amount of $54,000 was handed to him by Miss McAuliffe (apparently in payment of the stock issued to her) which he indorsed and handed back to her (apparently constituting the loan of that amount by plaintiff to Yerington Construction Company) and that she then handed him a promissory note executed by Yering-ton Construction Company in the amount of $54,000 which was dated May 21, 1954, and signed by plaintiff as president and Miss McAuliffe as secretary-treasurer.

On May 21, 1954 plaintiff and Miss Mc-Auliffe executed on behalf of Yerington Company an unsecured promissory note in the amount of $102,000 to TM & E. The same persons also executed a promissory note to the Merchants Bank of Kansas City in the amount of $101,563 secured by a chattel mortgage on property of Yering-ton Company. Plaintiff tesified that the $101,563 obtained from the Merchants Bank “went to pay some of the bills/’ and on May 24 he signed checks as president drawn on the account of Yerington Company as follows: $26,314.02 payable to Mr. Breen for a debt owed to him; $10,000 payable to Farmers Exchange Bank; $45,877.75 payable to Service Equipment Company for a scoop; and $1,446.92 payable to the C. B. & Q. Railroad.

The note for $102,000 payable to TM & E and the note for $54,000 payable to plaintiff contain the notation on each that on September 27, 1954 they were paid by the issue to TM & E. of 1020 shares of preferred stock and to plaintiff of 540 shares of preferred stock. The Articles of Incorporation of Yerington Company show an amendment thereto on September 23, 1954 authorizing the issue of 2,000 shares of preferred stock at $100 par value in addition to the 1,000 shares of common stock previously authorized.

' The minutes of a special meeting of the stockholders of Yerington Company, held April 27, 1955, recite that the stockholders present were Kay McAuliffe as holder of 60 shares and defendant as the holder of 500 shares “held by proxy from Kay Mc-Auliffe,” and that “a letter was received from [plaintiff] stating that he would not attend the stockholders meeting for the reason that it was improperly called and was therefore illegal.” The meeting was called “for the purpose of electing directors, and particularly to fill the vacancy * * * created by the death of David H. Bresler.” The directors elected were Kay McAuliffe, defendant and Emmett J. Breen. Attached to these minutes was a balance sheet revealing the financial condition of Yering-ton Company as of March 31, 1955, which showed an overdraft at the bank in the amount of $6,900.17 and deficits in earnings for the years of 1954 and 1955 of $91,847.62 and $79,932.63 respectively. A meeting of the directors of the corporation was held immediately following the stockholder’s meeting, and the minutes thereof show that defendant was elected president, Howard Charles Breen was elected assistant to the president, Gordon Arnet was elected vice president, and Kay Mc-Auliffe was elected secretary-treasurer. The minutes also recite that a discussion was had concerning the “present financial condition of the corporation,” and that it was pointed out that there were “many unpaid bills, and additional financing would be necessary.” The secretary-treasurer was then authorized to borrow “a sum of money not to exceed $25,000.00 upon such terms as may seem advisable.”

In addition to the $101,563 obtained from the Merchants Bank, Yering-ton Company borrowed from that bank $16,000 on June 23, 1954; $25,000 on May 13, 1955 (this apparently was the loan authorized at the meeting of the board of directors held on April 27, 1955) ; $70,521 on May 23, 1955; and $10,000 on June 2, 1955. Yerington Company also borrowed from the University Bank $16,000 on June 23, 1954; $50,000 on August 10, 1954; $75,000 on December 2, 1954; and $75,000 on May 16, 1955. These loans were arranged for by defendant. At the time of trial none of these notes were outstanding to the banks. However, on October 21, 1955, Yerington Company and TM & E entered into an agreement in which it was recited that TM & E was the holder of three promissory notes obtained from the Merchants Bank and the University Bank totaling $170,521 upon none of which had Yerington Company made any payments, and that in consideration of the cancellation by the holder of the notes of the entire indebtedness represented by those promissory notes Yer-ington Company sold, transferred and conveyed to TM & E all the property listed in an exhibit, which included all of the assets of Yerington Company. In addition, Yerington Company assigned TM & E all its right, duties to perform, and interest, including all sums unpaid for work performed with respect to two subcontracts, and in consideration therefor. TM & E agreed to perform the work called for in the two sub-contracts and “to indemnify and hold Yerington [Company] harmless from any and all claims which may hereafter arise out of the performance of work under such sub-contracts” by TM & E, and it “particularly” agreed to indemnify and hold Yerington Company harmless from any claims by the surety with respect to its contract bond applying to one of the sub-contracts. This agreement was signed by defendant on behalf of both Yerington Company and TM & E.

“The elements and essentials of an action for fraud are not in dispute. The rule is stated in 37 C.J.S. Fraud, § 3, p. 215 as follows: ‘Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker’s knowledge of its falsity or ignorance of its truth. (5) His iñtent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer’s ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon.’ ”' Lowther v. Hays, Mo., 225 S.W.2d 708, 713. In addition, a ninth element, as set out on page 216 of 37 C.J.S. supra, is the hearer’s “consequent and proximate injury.” Fraud is never presumed but must be established by evidence, Hardwicke v. Hamilton, 121 Mo. 465, 26 S.W.2d 342, and the burden of proof rests upon the one who asserts it. Lowther v. Hays, supra, 225 S.W.2d at p. 713. Proof of each element of fraud is essential to a submissible case, Meriwether v. Lumbard, Mo.App., 246 S.W.2d 363, and “Facts and circumstances which lead only to a suspicion of fraud or facts and circumstances as consistent with honesty and good faith as with fraud are insufficient to make out a case for the jury.” Powers v. Shore, Mo., 248 S.W.2d 1, 6; Schnuck v. Kriegshauser, Mo., 371 S.W.2d 242, 248. With these rules in mind we shall look to plaintiff’s contentions.

In plaintiff’s point in his brief he asserts only that the court erred in directing a verdict in favor of defendant and “in holding that plaintiff’s evidence did not make a submissible case of concealment of existing facts and misrepresentations of the entire situation.” We find no attempt there made to demonstrate what evidence established or authorized a finding of the various essential elements of fraud, particularly the false representation. From our understanding of plaintiff’s argument, his contentions may be divided into three general groups. A. He first asserts that the evidence establishes that defendant and Kay McAuliffe “had a secret agreement between themselves whereby plaintiff would find himself in business not with [defendant] as contemplated, but with bookkeeper Kay McAuliffe who suddenly came into control of [plaintiff’s] company.” B. He next asserts that “In his talks with [defendant], plaintiff never agreed” (1) to sell stock of Yerington Company to Kay McAuliffe and accept $54,000 for two thirds of his shares of stock, nor to accept therefor the personal check of Miss McAuliffe and to indorse it back in exchange for an unsecured note of Yerington Company; or (2) “to buy the Riss machinery;” or (3) that “his company would borrow money from any bank;” or (4) “to go into business with Kay McAuliffe.” C. He then asserts that defendant “concealed” the- facts that (1) instead of defendant contributing machinery enough to match the value of machinery already put in by plaintiff, defendant was actually to sell his machinery to Yerington Company for $102,000; (2) that he had a secret agreement with Kay McAuliffe whereby she, and not defendant, was to get two thirds of Yerington Company stock; and (3) that instead of the working capital being put up by defendant it would be borrowed from the bank “and secured by a chattel mortgage on Yering-ton’s equipment.”

Accepting plaintiff’s evidence .as true, which we do for the purposes of this appeal, and giving him the benefit of every reasonable inference to be drawn therefrom, the evidence establishes or authorizes a finding that in April 1954 plaintiff and defendant entered into an oral agreement that they would go into the construction business together, that defendant would add to the assets of Yerington Company machinery and equipment equal to that plaintiff had in the company, that Yerington Company would be operated by plaintiff, that defendant would advance operating capital and provide bid and performance bonds, and that defendant would receive one half of the common stock of Yerington Company. The evidence also authorizes a finding that plaintiff and defendant took certain steps to carry out that oral agreement, such as ordering new equipment and using defendant’s machinery and equipment on Yerington Company jobs. Also, defendant supplied the bid bond for the bid on the Olathe contract. Thereafter, however, defendant refused to perform his oral agreement and demanded that he receive two thirds of the stock of Yerington Company, and as a result of defendant’s refusal to perform the oral agreement, an entirely new arrangement was necessarily entered into and put into effect, as shown by the written agreement between plaintiff and Kay McAuliffe and the minutes of the two meetings of the board of directors held on May 21, 1954, whereby among other things, plaintiff sold two thirds of the common stock of Yering-ton Company to Kay McAuliffe for $54,000 which sum plaintiff then loaned to Yering-ton Company and received therefor an unsecured note, and whereby Yerington Company purchased certain machinery and equipment from TM & E for $102,000 and gave an unsecured note in payment therefor. The determinative question of this case is whether these facts and circumstances give rise to a cause of action for fraud in favor of plaintiff.

The general rule is that fraud must relate to a present or pre-existing fact, and cannot ordinarily be predicated on representations or statements which involve mere matters of futurity or things to be done or performed in the future. Bayer v. American Mut. Cas. Co., Mo., 359 S.W.2d 748; Bryan v. Louisville & N. R. Co.,. 292 Mo. 535, 238 S.W. 484, 23 A.L.R. 537; Younger v. Hoge, 211 Mo. 444, 111 S.W. 20, 18 L.R.A.,N.S., 94; Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275; 23 Am.Jur. Fraud and Deceit § 35; Annotations, 51 A.L.R. 46 and 125 A.L.R. 879. Plaintiff relies primarily on Metropolitan Paving Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815, which held that “It is-true that a promise to do a certain thing,, with a present intention not to do it, is not actionable” as fraud, but added that “[a]' false statement of a present purpose may be a misstatement of a fact” and that “Concealment of an existing fact may amount to' actionable fraud, the same as an actionable-misrepresentation of a fact.” In that case,, the defendant induced the plaintiff to assign to it a contract as a part of an agreement to purchase certain municipal bonds-when it concealed from the plaintiff that by reason of arrangements then in existence it was in fact purchasing the bonds-for the other party to the contract and not for itself. We are not able to see how this-case aids plaintiff. We find no evidence from which it reasonably can be inferred' that defendant concealed, and thereby misrepresented, a present or pre-existing fact.. Plaintiff was not induced to transfer the-stock to defendant who had previously and secretly agreed to transfer it to Kay McAuliffe. Plaintiff transferred the stock directly to Kay McAuliffe pursuant to a written agreement he had entered into with her, and there is nothing to indicate that he did not know and understand exactly what he was doing. Defendant did not conceal from plaintiff the fact, and therefore misrepresent, that his machinery and equipment would be sold to Yerington Company. It may be true that he breached his oral agreement that he would transfer machinery and equipment to Yerington Company upon the terms previously outlined, but after the breach of the agreement, plaintiff entered into a written agreement whereby he agreed that Yer-ington Company would purchase the machinery and equipment from TM & E and give a note in payment therefor, and plaintiff as president of Yerington Company signed that note. Again, there is nothing to indicate that he did not know and understand exactly what he was doing.

We have set out the evidence in this ■case to a much greater extent than we otherwise would have done to show the basis for our conclusion that the evidence authorizes a finding of no more than that defendant failed to carry out an oral agreement, and that as a result thereof plaintiff entered into other arrangements. This may have resulted in plaintiff having a cause of action for a breach of the oral agreement, but it •did not result in a cause of action for fraud.

The “rule in this state is 'that fraud cannot be predicated upon a mere promise even though accompanied by a present intention not to perform it on the ground that even under such circumstances the promise is not a misrepresentation of an existing fact.’ ” Reed v. Cooke, supra, 55 S.W.2d at p. 278. In announcing this rule, this court en banc rejected a proposed opinion prepared in division to the effect that fraud •could be predicated upon a promise made with the then intent not to perform it, and in doing so and in announcing the above rule it cited and quoted from Metropolitan Paving Co. v. Brown-Crummer Inv. Co., supra, the principal case relied on by plaintiff. We doubt that there was substantial •evidence in this case from which it could be inferred that at the time defendant entered into the oral agreement he then had the intention of not performing it, and that may be the reason that plaintiff does not urge that the rule announced in Reed v. Cooke, supra, be re-examined. See 23 Am.Jur. Fraud and Deceit § 106, and the cases cited in the annotations at 51 A.L.R. 46 and 125 A.L.R. 879, where the rule is discussed.

Upon careful study of all the evidence in this case, and by applying thereto the rules above set forth, we necessarily conclude that the trial court properly directed a verdict for defendant.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: COIL, Commissioner.

text:
    Vickey Lou YOUNG, by her Next Friend, Orrin Gee, Respondent, v. MISSOURI PUBLIC SERVICE CO., Appellant.
    No. 50016.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.

      Poague, Brock & Wall, Barkley M. Brock, Julius F. Wall, Clinton, for appellant.
    William J. Cason, Harold L. Caskey, Clinton, Paul Cisel, Windsor, for respondent.
   COIL, Commissioner.

Vickey Lou Young, an infant, through a next friend, claimed $25,000 as damages from Missouri Public Service Company for the alleged wrongful death of her father. A jury awarded her $20,000 and defendant appealed from the ensuing judgment. We shall refer to the parties--as they were designated in the court below.

Defendant contends that plaintiff failed to make a submissible case, that the trial court erred in giving instructions and in permitting allegedly improper jury argument by plaintiff’s counsel, and that the judgment is excessive.

Plaintiff submitted her case under the res ipsa loquitur doctrine. In determining whether she made a submissible case we state and consider the evidence from a standpoint most favorable to her.

Defendant owned, maintained and controlled a series of 35-foot high creosoted poles located on the west side of the main street of Green Ridge in Pettis County. At the top of each of such poles, including, of course, the particular pole in question, was a crossarm eight feet in length. Six to eight inches from each end of that crossarm was an insulator and attached and running from pole to pole was an uninsulated wire; the two wires (one at each end of the crossarm) were known as the “primary” line or lines. That line carried 7200 volts of electricity. Four or five feet below the primary line was a single wire carrying voltage for the operation of a street-lighting system in Green Ridge. That wire was energized only after dark. Three feet below the street-light circuit wire were three wires known as the “secondary” system. Two of those wires each carried 110 volts and the middle wire carried no current and was known as a “neutral.” About three feet below the three wires forming the secondary system was a telephone wire which ran from a telephone pole on the east side of the street across the street to a bracket or “stob” on the side of the light pole and thence into a house directly west of that pole. There was a No. 6 soft-drawn copper wire which ran from the top of the light pole down its side to the ground at its base. The neutral in the secondary system was tied to that copper wire. Both of those wires would conduct electricity, as would the creosoted pole.

About 10 o’clock in the morning on October 26, 1956, Billy Young, plaintiff’s decedent, and James Riggs, both employees of a telephone company, went to Green Ridge for the purpose of tightening some telephone wires. The day was clear, dry, and warm. Riggs and Young disconnected the telephone wire at the pole on the east side of the street intending to put back that same line and tighten it. Apparently, as Riggs was beginning to reconnect the wire to the pole on the east side, the wire broke at a place about two feet from where it was connected to the light pole on the west side of the street. The wire in question was 14-gauge iron which bent easily and had little spring to it. Young, in order to remedy the situation, obtained a coil of wire and some tools from their truck and put the wire coil on the ground, either at the base of the telephone pole on the east or at the base of the light pole on the west side of the street (the evidence is not clear as to which, and it is unimportant). Riggs, who had remained on the telephone pole on the east side of the street, was, in the meantime, still working on the tightening of other lines and consequently did not continue to watch Young but he, Riggs, did hear the wire “paying out on the spool down there.” Shortly thereafter Riggs heard Young “holler ‘Jim’ ” and there was a loud noise which came from the pole on which Young was working and which was identified as a noise which was made by the arcing of electricity from a 7200-volt line. Riggs looked toward Young, saw him apparently trying to push away from the pole, whereupon Young’s metal climbing spurs “kicked out” and he slid down the pole to the ground with his safety belt still intact around the pole. The safety belt was leather with some metal rivets in it. Riggs ran to Young, calling for help as he went.

Defendant had a crew working some distance south, 1% blocks or more away, and the foreman and members of that crew also rushed to the pole. Young was removed from the base of the pole. Tied to his safety belt was a piece of the old telephone wire four or five feet long. The coil of wire which Young had removed from the truck and which was on the ground and from which Riggs had heard wire uncoiling was never found although a search for it was made, but not until about an hour after the ambulance had removed Young’s body. The topmost spur mark made by Young’s metal climbers was 18 feet above the ground and thus 17 feet below the 7200-volt line. When Riggs saw him, Young’s head was about 10 feet below the primary line. There were no burn marks on the primary line, the streetlight line, or on any of the wires forming the secondary, and there would have been burn marks on those wires if another wire had come in contact with any of them. Likewise, there were no burn marks on the short piece of wire which was attached to the decedent’s belt. Young had a severe burn on his left hand and left thumb and what-appeared to be burns on his back about midway between his shoulders and waist and what appeared to be a burn on his left hip.

There was evidence that there were trees under the lines in question, some of the limbs of which were as high as the primary wires. The evidence showed further that one of defendant’s work crews was at the time of the casualty engaged in installing street lights in Green Ridge. They were working a short distance (about 11/*> blocks) south of the pole in question. The crew was hanging new lights across a street and they had to string wire. The foreman was hooking up the neutral to the streetlight circuit. They were working within four feet of the primary wires. One of the workmen nearest the pole in question heard a loud noise — a high voltage flash which came from a 7200-volt line. There was no other 7200-volt line in the entire area.

The res ipsa loquitur doctrine in Missouri applies when “(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Clark v. Linwood Hotel, 365 Mo. 982, 291 S.W.2d 102, 104-105; and McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641.” Layton v. Palmer, Mo., 309 S.W.2d 561, 564 [2], 66 A.L.R.2d 1242, and see Glasco Electric Co. v. Union Electric Light & Power Co., 332 Mo. 1079, 61 S.W.2d 955, 957[1, 2].

It was established that Billy Young was electrocuted. Defendant concedes that the electricity which killed him came from the 7200-volt primary wires at the top of the pole on which Young was located at the time, as is shown by this language in defendant’s brief, “The facts were such in this case that it was conclusive that Young received the 7200 current in some manner and it was eight feet above him.” No citation of authority is necessary to support the proposition that a jury reasonably could have found that electricity escaping on a dry, clear day from primary wires carrying 7200 volts, down a pole or through a wire or wires, and into the body of a telephone repairman on the pole who had not come in contact in any manner with the primary wires or any of the others, was an occurrence which does not ordinarily happen if those in charge use commensurate care.

Certainly the instrumentalities involved were under the management and control of the defendant. The “management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time the negligence was committed.” McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 560 [2], 92 A.L.R. 641. Defendant admits it had control of the primary lines, but suggests that it did not have exclusive control of the pole because Young was working thereon. But defendant concedes in its brief that the telephone company for whom Young worked had been given permission to use the pole and for its men to climb the pole. It seems obvious, therefore, that even if the pole, as such, was part of the instrumentality involved, rather than only the electric wires on the pole, the defendant demonstrated that it had the right to control its own pole by the very fact that it gave permission to the telephone company to use that pole. There was no evidence that the presence of the decedent interfered with or affected defendant’s exclusive right to manage and control the instrumentalities involved.

There is no contention that defendant did not possess superior knowledge or a superior means of obtaining information as to the cause of the occurrence than did plaintiff.

It seems clear, then, that the facts of the present case, stated favorably to plaintiff, bring it surely within the applicable principles of res ipsa loquitur and that plaintiff made a submissible case.

Defendant argues, however, that only by piling inference upon inference may it be said that there is a submissible case; that decedent could not have been injured except by his own negligence and that there was no “connection between defendant and the immediate cause of the injury.” We think defendant has failed to give recognition to the fact that a “jury may believe all of the testimony of any witness or none of it or may accept it in part and reject it in part, just as the jury finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in a case.” Kickham v. Carter, Mo., 314 S.W.2d 902, 905 [1], It is true that defendant’s evidence was to the effect that, irrespective of how and whether 7200 volts of electricity got into the creosoted pole or the ground wire or both, such could not have harmed Young because his body would not have been part of a ground and the electricity would have followed the copper ground wire or the pole or both, unless Young contacted the primary wires; that the only way Young could have been electrocuted by electricity coming from the 7200-volt primary line was by coming directly in contact with those wires or by some appliance or wire in his possession coming in contact with those wires, in either of which events the electricity would pass through his body and almost certainly kill him. The jury did not need to believe that evidence. On the contrary, the jury reasonably could have found, and apparently did, that deceased was electrocuted by electricity which arced from the 7200-volt primary line on the pole in question; that decedent Young and no part of his equipment, including any wire in his possession or on his person, contacted the primary wires or any other wires on the pole; and, if so, the jury was justified in finding from those facts that the electricity which caused Young’s death had to have been transmitted from the primary line to the pole or the ground wire and then to decedent, else he would not have been killed. Such a conclusion was supported by the evidence and it could have been reached without indulging in any presumption.

The jury apparently having so found, it follows, as is conceded by defendant in its brief, “that if there was electricity in the pole or the ground wire and it electrocuted Young, then plaintiff did not have to prove' how it got into the pole or the ground wire.”' We have pointed out above that plaintiff was electrocuted by electricity which had to be in the pole or the ground wire (provided decedent did not come in contact with the primary line and the jury found he didn’t), else he would not have been electrocuted by current from the 7200-volt primary wires. We agree with defendant that under those circumstances plaintiff did not need to prove how the electricity got into the pole or the ground wire. Plaintiff did adduce some evidence which showed some possibilities: one, that green tree limbs act as conductors of electricity; that there was a breeze that day; that limbs could have touched the primary wires and conducted the electricity down to the neutral which, in turn, could have conducted it to the ground wire on the pole in question; another, that the defendant's crew in working on the electric light system in close proximity to the high voltage line, in some manner dropped a copper wire over the primary line through which the electric current was conducted to the neutral and into the copper ground wire on the pole to which the neutral was connected. And, of course, as defendant suggests, the creosoted pole was itself a conductor and was within inches of the primary line.

The cases cited by defendant state well-established principles of law with respect to the application of the res ipsa loquitur doctrine. All of those have been considered and applied in reaching the conclusion that plaintiff made a submissible case. The only case defendant has cited which is factually similar to the present one is Phillips v. Union Electric Co., Mo.App., 350 S.W.2d 432. This portion of the court’s language, holding that plaintiff there did not make a submissible case, clearly distinguishes that case from this one: “ * * * the evidence is undisputed that the deceased died of electrocution and that the only electricity that was in use at the time that would kill him was that carried by the appellant’s lines going northwardly from the alley pole and coming within a foot of the cornice of the building, yet at the same time the respondent’s own evidence, given by his own expert witness, is that this source of electricity could not have caused the death absent either or both of two conditions. These are the touch of the appellant’s lines against the scaffolding or cornice, or the insertion of some conducting material between the appellant’s lines and the scaffolding or cornice. However, neither of these conditions was shown in the evidence to exist at the time of this accident nor is there even one iota of testimony as to them from which their existence can reasonably be inferred.” 350 S.W.2d 436.

Defendant contends that for various stated reasons the trial court erred in giving plaintiff’s instruction 1. Some of those reasons are a repetition of arguments heretofore made to sustain defendant’s contention that there was no submissible case and we need not mention them further. Additionally, defendant says that the instruction did not require a finding that defendant was in exclusive control of the pole. The instruction required that defendant “had exclusive control over the said 7,200 volt electric current and the wires and insulators to the wires over which it was being carried” and that deceased as an employee of the named telephone company “by reason of such employment was required to be and work on the pole mentioned in evidence.” We have heretofore referred to the admission in defendant’s brief that the telephone men were given the right to climb the pole. Defendant’s right to control the pole was not controverted ; and even if the pole was part of the instrumentality (which we doubt), the omission from the instruction of a specific finding as to control of the pole was not in any respect detrimental to the defendant. The vital instrumentality, the control of which the instruction hypothesized, was the 7200-volt electric current and the wires and insulators over which it was being carried.

Defendant objects to the instruction because it used the words, defendant “permitted and caused the 7,200 volt electric current aforementioned to leave and escape the wires over which it was supposed to travel, * * We are not sure we follow the argument but, as we understand, it is that inasmuch as there was no evidence that defendant did any affirmative thing to cause the electricity to leave and inasmuch as the word “permitted” preceded the word “caused,” the meaning and effect of the word “caused” was lessened so that the jury could find defendant liable by finding only that it permitted the current to escape. The language used in the instruction, “permitted and caused the 7200 volt electric current aforementioned to leave and escape the wires over which it was supposed to travel,” appears to us to have been wholly adequate and unobjectionable.

Defendant next contends that the court erred in refusing to give its instruction No. DD which would have told the jury that it was not permitted to base a verdict entirely and exclusively on surmise, guesswork and speculation, etc. This court has often suggested that such an instruction is not recommended in a circumstantial evidence case, McCormack v. St. Louis Public Service Co., Mo., 337 S.W.2d 918, 919, 920, and the instruction was cautionary in nature so that defendant was not entitled to it as a matter of right, and its refusal was a proper exercise of the trial court’s discretion, Hughes v. Terminal R. Ass’n of St. Louis, Mo., 265 S.W.2d 273, 281 [8,9].

Defendant complains of three rulings of the trial court during the argument of plaintiff’s counsel. Two of those are involved in the following portion of the record during which plaintiff’s counsel was making an argument directed to the extent which the given instructions required the plaintiff to go to prove exactly what happened.

“[Plaintiff’s counsel]: * * * Why, how can -she. How could anyone — any person, going down the street and leaning against a light pole and getting electrocuted. The light company says, ‘Well, the electricity can’t go down the pole and kill you and you can’t show what happened.’ That isn’t the law. The law is that if you are transporting high voltage electricity, that it is silent and can go along — that nobody can watch it and see what happens to it— that if it escapes, then, regardless of how it happened, you are liable; and they are liable, here, because you know—
“[Defendant’s counsel]: Object to that improper statement to this jury and ask that the jury be discharged.
“[Plaintiff’s counsel] : —for the charged wire; they are liable for this wire; somehow this electricity escaped down that—
“THE COURT: The motion to discharge the jury is denied.
“[Defendant’s counsel]: I ask that the jury be instructed to disregard that argument.
“[Plaintiff’s counsel] : I’ll say it a little different way, it will be right.
“If you find where — under the Instructions — that in any way, whatever it is, they permitted and caused this electricity to escape into Billy Young’s body, then, they are liable. If you find in any manner, and we don’t have to show you how. The Court has said that if they allowed the electricity to get into Billy’s body, then—
“[Defendant’s counsel]: I think that is a misquotation: ‘Caused and permitted’ and the term ‘allowed,’ now, that is not the law.
“THE COURT: I’m sure they will have the Instructions and they will read them.
“[Plaintiff’s counsel]: As far as the wires, they allowed and permitted—
“[Defendant’s counsel]: May I make an objection because the Instruction says ‘If the defendant caused and permitted,’ and Mr. Cason is changing that to ‘permitted,’ and part of the time, ‘allowed,’ and there is a lot of difference, ‘caused and permitted’ or ‘allowed.’
“THE COURT: I’m sure the jury will read the Instructions.
“[Plaintiff’s counsel] : I think I have a right to say what I am saying.
“If they permitted or caused, in any manner — and I don’t have to find out how— the Court has told you that you are to bring in a verdict for the young lady.
“The inference arises: If the electricity gets out. I say to you that I think you should find under the evidence that it did get out, then, the Court says — there is an inference that you might find that they were negligent. High tension electricity doesn’t ordinarily get out unless somebody is negligent. You have got to use care in using it, that is what the Court said to you.”

It is apparent from the foregoing that defendant has preserved nothing for our review, for the record demonstrates that in both the cited instances defendant’s counsel was apparently satisfied with the manner in which each incident terminated and did not seek any further relief.

The third incident is shown by this portion of the record:

“[Plaintiff’s counsel]: * * * This is the only day in Court that young lady has ; there isn’t any more. I know this case has been one day to you people and one day out of your life, but it is a big day in her life. She doesn’t know it, sitting over there, but it is this day, where she gets some money — from Mr. Brock, sympathy. We are not asking for sympathy, gentlemen; she has already got all the sympathy that will do her any good. She needs some money that will do some—
“[Defendant’s counsel]: I object; improper, she needed — the remarks: ‘She needs some money,’ and I ask the jury be discharged.
“THE COURT: The Motion to discharge the jury will be denied.
“[Plaintiff’s counsel]: I feel, she is entitled to it — for money — to take the place of the father that she had.”

As pointed out by plaintiff, counsel’s statement was not finished prior to the motion to discharge the jury. But in any event, we think the argument was a proper one. As we understand, counsel told the jury that the infant plaintiff did not need sympathy but needed money to, in a measure, make available material things her father otherwise would have provided.

Defendant contends finally that the judgment is excessive. The assignment in that respect in the motion for new trial was that the “verdict is excessive and is solely the result of the bias passion and prejudice of the jury and is not supported by any relevant evidence of probative value.” To urge that a verdict is so excessive as to indicate passion and prejudice and misconduct on the part of the jury is quite different from averring that the verdict is excessive; and one does not include the other. Taylor v. St. Louis Public Service Co., Mo., 303 S.W.2d 608, 612 [7-9]. Considering the new trial assignment as one charging that the verdict is excessive, we think there is no merit in defendant’s contention.

Plaintiff’s decedent was just under 19 years of age, a healthy, vigorous young man, at the time of his death. Plaintiff was born after his death. The evidence was that he made $1.13 an hour, or an average monthly income of about $225. He left a widow who did not file the suit within six months. Defendant’s position is that if the $2700 annual income were divided equally among the father, mother, and child, each would have received about $800 per year net, and that, consequently, the total the infant plaintiff would have received by the time of her majority would have been less than $20,000. The fallacies in such an argument are apparent, but one decisive reason why the contention is unsound is that it is most probable that plaintiff’s decedent’s annual income would have exceeded $2700 per year during many of the years of plaintiff’s infancy. No jury could predict with certainty what the probabilities were in that respect nor precisely fix plaintiff’s pecuniary loss, but the jury’s $20,000 award was amply justified.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by COIL; G, is adopted as the opinion of the court.

All concur.


author: STORCKMAN, Judge.

text:
    In the Matter of Earl H. C. LURKINS, Respondent.
    No. 49599.
    Supreme Court of Missouri. En Banc.
    Jan. 13, 1964.
    - Walter M. Clark, St. Louis, special counsel for informants.
    Earl H. C. Lurkins pro se.
   STORCKMAN, Judge.

This is a disciplinary proceeding filed in this court by the Twenty-Second Judicial Circuit Bar Committee, as informants, against Earl H. C. Lurkins, a duly licensed attorney at law, who maintains an office in the City of St. Louis, and who will sometimes be referred to as the respondent. The respondent filed an answer and the Honorable John Hall Dalton was appointed as special commissioner to take evidence on the issues joined and to report the evidence taken together with his findings of fact and conclusions of law. The commissioner filed his report and recommended that the respondent be suspended from the practice of law for a period of five years. Thereafter the matter was briefed and argued orally by the parties. The respondent has appeared pro se throughout the proceedings in spite of repeated recommendations by the informants and the commissioner that he employ counsel to advise and represent him.

On July 27, 1961, the respondent was convicted by a jury in the United States District Court for the Eastern District of Missouri, Eastern Division, of willfully and knowingly failing to make an income tax return to the District Director of Internal Revenue or any other proper officer of the United States for the calendar years 1954 and 1955 in violation of Title 26, U.S. Code, § 7203. Thereafter, on October 24, 1961, he was fined $10,000 on each of the two counts. The respondent was represented by counsel at all stages of the trial in federal court. He did not appeal his conviction and, within the time allowed by the court, paid the total fines of $20,000.

The respondent was admitted to the Bar in 1923. For a number of years he practiced with various lawyers and thereafter opened and maintained his own law office. His practice consisted largely of probate, corporate, and office matters. He also engaged in business activities among which was a partnership in a bowling alley which was not profitable according to the respondent’s testimony. About 1942 he began investing in the common stock of corporations and this venture was quite successful. He invested in “peace stocks” during World War II and his investments increased substantially after the war was ended. He continued to invest successfully thereafter and advised others with respect to investments. In 1949 the respondent suffered a stroke which for a time affected his physical and mental condition.

The respondent concedes that he did not file income tax returns for the years 1946 on through 1955. He testified that he paid something on account of taxes each year; however, during his income tax trial, as a condition imposed on him by the trial judge, he paid all of his delinquent income taxes. For the years covered by the criminal information, he paid as additional taxes $4,000 for 1954 and $17,978.80 for 1955.

At the hearing before the commissioner, the respondent contended that his offense did not involve moral turpitude and presented somewhat the same issue in his oral argument and brief in this court. He cites five cases from other jurisdictions on this question. They are: In re Hallinan, 43 Cal.2d 243, 272 P.2d 768, Baker v. Miller, 236 Ind. 20, 138 N.E.2d 145, 59 A.L.R.2d 1393, People ex rel. Dunbar v. Fischer, 132 Colo. 131, 287 P.2d 973, United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, and In re Disbarment of Rothrock, 16 Cal.2d 449, 106 P.2d 907, 131 A.L.R. 226. Not all of these cases support the claim which the respondent makes. But regardless of what other jurisdictions may hold, it is now well settled in this state that willfully and knowingly failing to make a federal income tax return is an offense involving moral turpitude within the purview of state statutes and the rules of this court authorizing suspension of an attorney from the practice upon conviction of a criminal offense involving moral turpitude. 26 U.S.C.A. § 7203; S.Ct. Rule 4.47, V.A.M.R.; § 484.240, RSMo 1959, V.A. M.S.; In re Burrus, 364 Mo. 22, 258 S.W.2d 625, 627 [1] ; In re Moon, Mo., 310 S.W.2d 935, 938 [3]. There is nothing in the cases of Neibling v. Terry, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249, In re McNeese, 346 Mo. 425, 142 S.W.2d 33, or State ex rel. Shackelford v. McElhinney, 241 Mo. 592, 145 S.W. 1139, cited by the respondent which is persuasive of a contrary ruling.

The respondent also cites Louisiana State Bar Ass’n v. Connolly, 206 La. 883, 20 So.2d 168, on the proposition that, where a disbarment proceeding was based on a certified copy of a federal court judgment convicting an attorney of income tax evasion, the judgment of conviction was not conclusive and the attorney was entitled to introduce evidence of circumstances surrounding the conviction. Regardless of what the rule may be elsewhere, this court will not permit the respondent in a disciplinary action such as this to re-try a final judgment of conviction rendered against him in a criminal prosecution. In re McLendon, Mo., 337 S.W.2d 56, 61 [3]. Although it is not a defense, evidence as to the conduct of the respondent-attorney and other matters in mitigation or aggravation may be taken into consideration in determining the nature and extent of disciplinary action. In re Landon, Mo., 319 S.W.2d 553, 558 [2]; In re Moon, Mo., 310 S.W.2d 935, 938 [2].

The respondent testified and offered three other witnesses in his behalf. The commissioner and counsel for the informants were quite tolerant and indulgent, and properly so, in permitting the respondent to testify to matters that had no possible relevancy to the issues on trial and in permitting the other witnesses to testify in like fashion. This court has likewise considered the entire transcript and all exhibits. Much of the respondent’s evidence is contradictory and all together it is insufficient to mitigate the criminal acts of which he was convicted. In general he undertakes to excuse his derelictions by claiming that he was sick and did not have accurate records of his business ventures and, therefore, could not figure his taxes correctly. Admittedly, he failed to file returns for three years before he had his stroke, and it further appears that he handled an estate in probate court including the making of settlement in 1954 and performed other acts which tend to discount his alleged inability to make the minimum disclosures to the Internal Revenue Department which would have prevented his prosecution and conviction of unlawfully and willfully failing to file returns. He claims to have talked to several persons including Collectors of Internal Revenue during this time and asserts that he was encouraged to believe that he should not make returns as long as he did not have accurate figures. One of the persons was available as a witness and denied any such discussion. It is incredible that any of the persons would have given him such advice or that a person of his demonstrated legal and business acumen would rely upon such advice from anyone.

The respondent talked to the Honorable Fred J. Hofifmeister, Chairman of the Informant Bar Committee, and thereafter wrote to the Honorable Morton D. Fisher, a Judge of the Tax Court of the United States, stating in effect that the Missouri Bar, after hearing the respondent’s side, had decided to do nothing and that the Tax Court should do likewise. Judge Hofifmeister testified that he did not tell the respondent that the Committee would not take action against him but, on the contrary, had instructed counsel to institute this proceeding following the respondent’s conviction. In short, it appears from the record that the respondent blames everyone but himself for his misfortunes. He criticizes the federal judge who presided at his trial, his own attorney, and others with whom he has dealt. The respondent testified that the federal judge who presided at his criminal trial had him examined as to his mental condition for about a week in connection with his trial and that the court decided that he was mentally capable. One of the respondent’s witnesses testified that he had always found the respondent honest and reputable but the respondent was possessed of a “contemptuous attitude in any matter that lent itself to disagreement.”

The respondent was entitled to defend himself vigorously in this action and in any proper manner, but the evidence shows a tendency on the respondent’s part to vilify others and blame them for the misfortunes that he alone is responsible for. His persistent refusal to recognize any responsibility for his patently wrongful acts indicates a lack of appreciation of the standards of rectitude and ethical conduct prescribed for members of the Bar. By his words and actions he has tended to aggravate rather than to mitigate the charge of professional misconduct. We sympathize with him because of the stroke suffered in 1949, but that fact cannot excuse the wrongful and unlawful acts which began before and continued after his illness.

It is ordered that the respondent Earl H. C. Lurkins be suspended indefinitely from the practice of law with leave to apply for reinstatement after an expiration of a period of five years from the date of the rendition of this opinion upon a showing that he is a person of good moral character and fully qualified to be licensed as a member of the Bar of Missouri.

All concur.