author: EAGER, Judge.

text:
    Margaret M. HUTTIG and Charles M. Huttig, Jr., Trustees Under the Will of Charles M. Huttig, Deceased, Appellants, v. CITY OF RICHMOND HEIGHTS, Missouri, Lee M. Duggan, Mayor of the City of Richmond Heights, Missouri, and Nelson L. Clark, Lester Watson and Clyde C. Espenschied, Councilmen of the City of Richmond Heights, Missouri, Respondents, and Dr. Stanley Hampton, Zola Carp and Murray Steinberg, Trustees of Lake Forest Subdivision, Respondents.
    No. 49485.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 9, 1963.

      Rassieur, Long & Yawitz, Elliott P. Koe-nig, and Allen A. Yoder, St. Louis, for (plaintiffs) appellants.
    Louis A. Robertson, St. Louis, for respondents.
    Murray Steinberg, St. Louis, for inter-venors-respondents.
   EAGER, Judge.

This is a declaratory judgment suit in which plaintiffs, as owners of a tract in Richmond Heights, sought tO' have the Court declare the City’s general zoning ordinance No. 1685 invalid as to their tract because it was allegedly unreasonable, arbitrary and confiscatory as so applied: The trial court decided for the defendants; the individual defendants are city officials. The three last named respondents who intervened and later became defendants, are Trustees of an adjoining residential subdivision. Plaintiffs have raised various constitutional questions; these contentions, in all probability, do not involve constructions of our own or of the Federal Constitution, but merely require applications of the constitutional provisions in question to the zoning ordinance under the particular facts. Wrigley Properties, Inc. v. City of Ladue, Mo., 369 S.W.2d 397. However, we do have jurisdiction because of the amount in dispute, as shown by substantial evidence.

Plaintiffs are the owners of the strip of land in question which lies along the south side of Clayton Road in Richmond Heights; it is presently zoned for Class “A,” single family residences, and plaintiffs have sought a “G” commercial zoning; its east end is approximately 200 feet from the southwest corner (rounded) of the intersection of Clayton Road with Hanley Road. This tract is 532.33 feet long on its Clayton Road frontage, 414.64 feet long in the rear, and 130.06 feet deep; its easterly line extends 177.75 feet at an acute angle from its longer frontage on Clayton to the east end of its shorter rear line. The tract is vacant except for trees and shrubs. There is a stone wall perhaps 3 or 4 feet high along its front property line. This tract abuts the rear of Lots 1, 2, 3, 4, 5 and 6 in Lake Forest, a residential subdivision, upon which lots four rather large residences have stood for a considerable time. From the east end of plaintiffs’ property a strip of land 20 feet wide extends along Clayton Road east to its intersection with Hanley Road; this was originally a part of Lot 1, Lake Forest; it was conveyed by the Trustees to Charles M. Huttig in 1939, and it is not involved in the present application for a rezoning. It lies between the remainder of Lot 1 and Clayton Road, and is wholly unoccupied.

The subdivision described as Lake Forest was platted and established by Lake Forest Development Corporation in 1929; sundry restrictions, conditions and reservations were imposed in a conveyance to Trustees on December 31, 1930. The subdivision extends approximately six blocks south of Clayton Road, and contains private roadways ; it is bounded by Hanley Road on the east and by the east line of Lavinia Terrace, another subdivision, on the west. The tract now in controversy was not included in the subdivision but was reserved conditionally as a park for the use of the lot owners. As such, it was conveyed to the Trustees of the subdivision (on December 31, 1930) with the duty imposed to maintain it, and with the right to assess the lot owners therefor, but with the further provision that the conveyance, as such, would not be effective until the owners of 117 lots (out of a total of 124) had accepted and agreed to the provisions ; also, with the further provision that the Trustees might abandon the park project and convey that property by quit-claim deed to the grantor or its successors or assigns. The requisite number of lot owners never accepted the conditions, and apparently none of the individual owners contributed to the maintenance of the park; in 1936 the Trustees conveyed this tract to Charles M. Huttig (recognized in this litigation as the successor or assign of the original grantor) upon condition that he maintain the park until December 31, 1955, when all rights of the original grantor and of the lot owners therein should cease, and title should vest in such grantee. On April 30, 1937, this was confirmed by a quit-claim deed to Hut-tig as the successor of the Lake Forest Development Corporation. Huttig took possession, paid the taxes and maintained the park until his death in 1952, after which his representatives (these plaintiffs) did so until the end of 1955. These plaintiffs have since claimed full ownership and no one disputes their title in the present case.

The City of Richmond Heights lies immediately west of and adjacent to the City of St. Louis; its population is about 17,500. It is bounded on the north by Clayton, on the south by Brentwood and Maplewood, and on the west by Ladue. .Its main east and west traffic arteries are Clayton Road and the Daniel Boorte Expressway. Its chief north and south arteries are Big Bend, Hanley Road and Brentwood. The northern boundary of Richmond Heights is the center of Clayton Road.

The intersection of Hanley Road (north and south) with Clayton Road (east and west) is rather intricate; a drive from Lake Forest comes in from the southwest and Hampton Drive from the southeast; Han-ley itself jogs to the west before proceeding further north. Bettendorf’s, a large supermarket, lies just across Clayton Road to the north, in the path of what would normally be Hanley Road, extended. Traffic from at least one parking lot driveway of Betten-dorf’s spills out into the intersection; traffic from another comes out a little further east along Clayton. North of Clayton Road another drive (Biltmore) comes into Hanley and Clayton from the northwest. As one witness said, the traffic signals at the intersection have “about seven” faces. Nevertheless, both Clayton and Richmond Heights permit left turns on light signal at the intersection and apparently more or less indiscriminately east and west of it.

To the east of Hanley on the south side of Clayton are single-family residences for some distance; beyond that are single residences mixed with duplexes; finally, there is a small commercial area as one ap-proachess Big Bend Boulevard; all these areas are in Richmond Heights. On the north side, in Clayton, lies Bettendorf’s with parking facilities for hundreds of cars; from that point on east there is an interspersing of large apartment buildings and residences to a point just west of Big Bend. The rear exposures of some of these apartments face Clayton Road.

To the west of the subject property (in Richmond Heights and along the south side of Clayton) and beginning immediately beside it there are, respectively: a restaurant (The Pancake House, built in 1934), a combination office building (Gulf Oil) and filling station, a vacant filling station, an occupied filling station, a Howard Johnson restaurant, a filling station, another office building and filling station (DX), a catering company, a restaurant, a florist shop, a drive-in restaurant, a filling station and another filling station. Some of these were built before 1941, some since. These uses extend to Brentwood Boulevard, where in and around the southwest comer (occupied by a filling station) is a very extensive shopping center called Westroads, which, with its parking lots for 2,500 cars, covers approximately a three-block area. This area was recently rezoned to a “G — 1” commercial use. A part of that land had previously been zoned as residential and three houses were moved away Another area of approximately 50 acres between plaintiffs’ tract and Brentwood Boulevard has also been zoned “G-l” and on this is located (somewhat back to the south of Clayton Road) a combination 48-lane bowling alley, restaurant and cocktail lounge. Around the corner of Clayton and Brentwood there is an intensive and large commercial development; the commercial zoning also runs to the south along Brentwood, as well as north and west from the intersection in the City of Clayton. Looking back now to the intersection of Clayton and Hanley, there is a continuous commercial development extending west all the way along the north side of Clayton Road (in Clayton) to Brent-wood Boulevard. In this line there is only one vacant lot, which, of course, is zoned commercial. These buildings include a rather substantial insurance office building, miscellaneous stores (with an occasional va^ caney), a bakery, a drugstore, small office buildings, a florist shop, gasoline stations, and west of Brentwood a bowling alley and stores. Many of these structures were there prior to 1941; others have been erected since.

The Pancake House (immediately west of plaintiffs’ property) and the two filling stations just west of it, were built prior to the 1941 general zoning ordinance and those tracts have long been zoned as “G” commercial; however, the commercial zoning along Qayton stops at plaintiffs’ west property line. The 265-foot strip immediately west of plaintiffs’ tract had also been owned by Lake Forest Development Corporation but was deeded to Audrey Realty Company in 1936; it (like plaintiffs’ present tract) had not been included in the Lake Forest subdivision.

Clayton Road carries much through traffic, to and from St. Louis. The traffic count on Clayton Road at Hanley in April 1960 was 20,600 cars for. 24 hours; at Brentwood Boulevard it was 22,200; on Hanley Road, south of Clayton, the count was 7,300; north of Clayton, it was 20,100. The speed limit in Clayton is 35 miles per hour; there are two traffic lanes and a parking lane on each half of Clayton Road; its total width is 56 feet. Parking meters have been installed on both sides of Clayton Road from Hanley Road west, with two-hour limits in Richmond Heights (south side) and with parking prohibited from 7:00 a. m. to 9:30 a. m. No parking is permitted for 900 feet east of Hanley on the south side of Clayton Road, and there are no parking meters on that side all the way to Big Bend.

As might be expected, the expert testimony concerning the “highest and best use” and zoning of plaintiffs’ property was conflicting. Considerable has been said as to the respective qualifications of these witnesses, but we shall not go into that. All were well qualified and substantially all had made studies of the property and the neighborhood. For plaintiffs, that testimony was, in substance, as follows: that the highest and best use of a given tract is the one which is productive of the most value to the owner, the neighborhood and the community; that such use for this property would consist of office and store buildings or of single occupancy type office buildings, which would require a commercial “G” zoning; that such opinion considers the character of the neighborhood, the adjoining uses, the traffic, the parking and the building codes, as well as other factors; that under the present zoning classification four residences (and only four), each with a 15,000 (or greater) square foot area could be constructed; that the setback from Clayton Road could only be 30 — 40 feet; that zoning- questions are “regional,” and that the nature of the property across Clayton Road must be considered, as well as the traffic, the parking meters and the business area immediately to the west; that traffic often backs up in front of this property from the Hanley Road intersection; that stores and offices would not be detrimental to the residences in Lake Forest or any others in the neighborhood, and that such use would not open up other property to commercial development; that Hanley Road and the vacant 20 x 200 foot strip east of this tract would act as good “buffers”; that the present zoning forces an uneconomic use, and is inconsistent with the uses of the neighboring properties; that for residence purposes lots on this tract would have to be sold individually, since in all probability, no “speculative” financing could be obtained because the desirability of the location for residences was questionable; that such sales would take a long time; that actually all of Clayton Road from Hanley to Brentwood is a sort of “Community Center”; that any added traffic congestion which might be caused by the commercial use of this tract would be entirely insignificant when compared to the existing traffic volume and congestion; that parking meters constitute and represent a commercial use; that only four of the homes in Lake Forest abut this tract (being south and east of it) and that the rear of the closest one is probably 125 feet distant, with trees and shrubs between; that the value of this tract had been investigated but that there were few comparable properties; that its value, as now zoned, is about $30,000; that it would be worth $165,-550 if zoned commercial, or $350 per front foot; that the residences to the rear of the commercial property on the north side of Clayton (separated by a service alley and with the rear of the lots of the first row of houses on the alley) have not suffered from the commercial development; that some extreme uses of plaintiffs’ tract could affect the adjoining homes; that the Richmond Heights zoning should be reappraised generally, recognizing the trend in Clayton for the past 20 years; that any new houses built on the south side of Clayton Road east of Hanley in the past few years (apparently very few) were built opposite residential property, not commercial; that there is probably an adequate amount of commercial zoning in Richmond Heights if it were all properly located, but that it is not.

The expert testimony for defendants was, in substance: that there would be a definite “market” for four residences erected on this tract, and that the nearby commercial area should have no “bearing” on this; that this land should be worth $53,200 for residential purposes, thus fixing the value of each lot at about $13,200; that the value of the tract as commercial property would be no higher than that as residential considering its depth, although the tract could be developed commercially; that it is difficult to sell residential properties abutting commercial property because people do not want them, and that any commercial development here would depreciate the residence values in Lake Forest; that the abutting houses there are worth from $60,000 to $80,000; that Clayton Road at that point is a “good residential street”; that this property is worth $100 a foot (or approximately $53,-200) zoned either for residences or commercial ; that the operation of the Pancake House now affects the houses on Lots 8 and 9 in Lake Forest; that the present zoning is reasonable and that the Lake Forest subdivision “needs to be protected”; that perhaps 25% to 30% of the property now commercially zoned in Richmond Heights is either vacant or is not being used as such, though much is now being used for residences; a large part of this is east and south of the present tract, along Big Bend and south of Dale Avenue; that commercial “strip zoning” is no longer considered good zoning, and that it creates traffic problems; that a commercial use of this property would aggravate the traffic problems by causing more left turns into and out of the property; that the traffic on Clayton Road has not decreased appreciably since the opening of the Daniel Boone Expressway; that there would be a tendency for the commercial development to creep on eastward if this tract were rezoned; and that (referring to this tract): “Perhaps the best use would be to leave it vacant,” one reason being to conserve Lake Forest and another, that “vacant land, from a tax base and from a service and income point of view, often is the best and highest use of a community”; and further, that the next best use would be residential; that a commercial development would require more municipal services; that this tract is located in an area bounded by streets, a railroad right of way and a parkway which boundaries make it an area suited for good residential zoning, except for the three commercial uses immediately west of plaintiffs’ tract; that parking meters do not affect the residential character of this property, though the witnesses could recall no similar situation elsewhere; that some commercial uses permitted in a “G” district would naturally be much more objectionable than others.

Two owners of abutting homes in Lake Forest testified; one, living on the northeast corner tract (parts of two lots), said that he had screened his lot with shrubs and trees along Clayton Road to avoid “some of the noises from traffic,” and that any of various suggested commercial developments on the Huttig tract (varying from a filling station or animal hospital or garage to a single purpose office building for professional people) would depreciate the value of his property. His tract abuts the plaintiffs’ tract only along the latter’s east end. Another home owner, whose property lay just southeast of the Pancake House and south of the west part of plaintiffs’ tract, told of the noise and lights from that establishment and also expressed the view that any of the suggested commercial uses of the Huttig tract would be detrimental to his property; also, that his house was about ISO feet from the existing restaurant, but that the restaurant was located there when he bought his place in 1956.

It was stipulated that the City Council denied the rezoning application for the reasons given by the Zoning Commission, namely: that such rezoning would violate the comprehensive zoning plan, increase traffic congestion, result in a detriment to adjacent residential property, and be injurious to the general welfare. No point is made that the application was not regularly made or that plaintiffs have not thus exhausted their administrative remedies.

The principles fixing the validity or invalidity of zoning ordinances have often been stated; it is the application of these principles to a given state of facts which creates the difficulty. The authority of the defendant city to zone arises solely from the enabling provisions of Ch. 89, RSMo 1959, V.A.M.S., and its predecessor statutes. City of Moline Acres v. Heidbreder, Mo., 367 S.W.2d 568; State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63; Downing v. City of Joplin, Mo., 312 S.W.2d 81. For convenience, we quote § 7412, RSMo 1939, since plaintiffs insist that the present zoning does not come within its purposes and intent. It is as follows: “For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of all incorporated cities, towns and villages is hereby empowered to regulate and restrict the height, number of stores, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.”

A zoning ordinance may be valid generally, yet invalid in its application to a specific tract. Flora Realty & Investment Co. v. City of Ladue, Banc, 362 Mo. 1025, 246 S.W.2d 771; Women’s Kansas City St. Andrew Society v. Kansas City (8 Cir.), 58 F.2d 593, 599. The applicable rules are well stated in Flora, supra, where the Court said in part, at loc. cit. 777 et seq.: “ ‘ * * * Unless it should appear that the conclusion of the city’s legislative body in the respect in issue here is clearly arbitrary and unreasonable, we cannot substitute our opinion for that of the city’s Board of Aldermen in zoning the property in question, and establishing the boundary lines. If the city’s action in zoning the property is reasonably doubtful or even fairly debatable we cannot do so.’ * * * It is well settled, however, that ‘The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.’ * * * ‘A zoning ordinance may be valid in its general aspects, and yet as to a particular state of facts involving a particular owner affected thereby may be as to such owner so clearly arbitrary and unreasonable as to be unenforceable.’ Women’s Kansas City St. Andrew Soc. v. Kansas City, Mo., supra [58 F.2d 599.] * * * ‘What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously.’ * * * The zoning ordinance in question having been enacted by the legislative body of the city pursuant to the police power is presumed to be valid. * * * The fact that loss will be sustained through depreciation, if the ordinance is valid, is not controlling. Every valid exercise of the police power is apt to affect the property of some one adversely.” And see, generally, to the same effect: Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616; City of Richmond Heights v. Richmond Heights Memorial Post Benevolent Ass’n, 358 Mo. 70, 213 S.W.2d 479; Landau v. Levin, 358 Mo. 77, 213 S.W.2d 483; Downing v. City of Joplin, Mo., 312 S.W.2d 81.

Counsel on both sides have cited and discussed many outstate cases; plaintiffs’ counsel, especially, cite numerous Illinois cases which they believe to be applicable, as do defendants’ counsel to a lesser extent. The Illinois courts seem to have been rather liberal in overturning zoning ordinances when considering their applicability to particular properties in the metropolitan districts. We are interested in these outside cases only to the extent that they may (and do in some instances) logically apply rules similar to ours to given and similar factual situations. Actually, the rules announced by the Illinois Courts are almost identical to ours.

The trial court here made no detailed findings of fact; it found certain formal matters, found generally “in favor of the defendants and against the plaintiffs,” found that plaintiffs’ evidence was insufficient to prove the ordinance unreasonable, and found that, to grant plaintiffs’ prayer would permit some uses which would be clearly undesirable for other property in the area. Although stated as findings, some of its statements as to the validity of the ordinance were actually conclusions of law. We necessarily make our own findings here and arrive at our own conclusions, allowing due deference to the views of the trial court on the credibility of witnesses. Section 510.310. In this case the matter of credibility, as such, occupies a very narrow field; the questions are rather those of judgment, and the logic (or lack of it) in expert opinions.

There can be little controversy here about many essential facts. Clayton Road to the west of this property is entirely commercial to a point beyond Brentwood Boulevard; Clayton Road across the street is entirely commercial for at least the same distance west, and for a block or more (Betten-dorf’s) to the east of Hanley Road. The trafile on Clayton Road (over 20,000 cars in a 24-hour period) is such as to make it one of the busiest arteries in the county. Parking meters have been placed in front of plaintiffs’ property for the benefit of Richmond Heights and, indirectly, for the benefit of the merchants across the street in Clayton; Richmond Heights has elected not to enforce no parking restrictions there except from 7:00 a. m. to 9:30 a. m. The value of plaintiffs’ property zoned for residences was variously stated to be from $30,000 to $53,200; as commercial property it was valued by plaintiffs’ witnesses at $165,550, although one of defendants’ witnesses stated, with little apparent logic and a doubtful explanation, that it was worth no more as commercial property than as residential. The depth of 130 feet, while perhaps not most desirable, was admittedly sufficient to permit a limited commercial development, with sufficient off-street parking to comply with the city ordinances; the size of any building or buildings would need to be adjusted accordingly. The residential area in Clayton (Davis Place) north of the commercial development on the north side of Clayton Road, has not been greatly affected by that commercial development; at least such was indicated by the actual sales; those houses are of a more modest type and cost than the ones along the north side of Lake Forest. The City of Richmond Heights has rezoned two large areas along the south side of Clayton Road (some of this being previously residential) as G-l or retail business, and it has also rezoned to commercial use properties in other locations which are probably too far away to have any direct bearing on our problem.

We find here, as part of our factual conclusions, that any added traffic congestion which would be caused by any ordinary commercial use of this tract would be wholly insignificant, when compared to the existing volume of traffic and congestion; we note also that the correction really needed at the intersection of Hanley Road and Clayton Road involves matters of highway engineering and reconstruction, and that it goes much deeper than a mere continuation of the residential zoning of this minor tract; thus the tract should not be penalized because of existing traffic conditions. Indeed, as indicated in Tews v. Woolhiser, 352 Ill. 212, 185 N.E. 827, congested traffic conditions “ * * * scarcely constitute an argument in support of the limitation of block A to residence use, since such conditions rather argue its unfitness for such use.” And in The Exchange National Bank of Chicago v. The County of Cook, 6 Ill.2d 419, 129 N.E.2d 1, the Court said, loe. cit. 4-5 . " * * * whether the daily flow of vehicles on Cicero Avenue is 29,000 or 50,000 the increase in traffic which will be caused by the operation of the proposed truck terminal on plaintiffs’ property would be so insignificant and minimal as to bear little relation to the public safety. On the other hand, if the residential classification is enforced, the damage to the plaintiffs is considerable and the effect is confiscatory.” See also Dalkoff v. City of Rock Island, 17 Ill.2d 342, 161 N.E.2d 292; In Re Northeast Corner of E. Center Street & Chicago Avenue, Ohio Com.Pl., 186 N.E.2d 515. It is a fair inference from the record that most of the volume of traffic at this location is through traffic, not originating in the neighborhood; and that such congestion as may be caused by local conditions arises largely by reason of permitted left turns.

We find that the value of this tract as residential property is not more than one-third of its value as commercial property. While this question is by no means decisive, Flora Realty & Investment Co. v. City of Ladue, Banc, 362 Mo. 1025, 246 S.W.2d 771; Wrigley Properties, Inc. v. City of Ladue, Mo., 369 S.W.2d 397, it is certainly an element to be considered, particularly in ascertaining the relationship of the zoning to the public welfare. The People ex rel. R. Larsen and Company, Inc. v. City of Chicago, 24 Ill.2d 15, 179 N.E.2d 676, 678. Also, considering the regional development as well as the immediately adjoining property to the west in Richmond Heights, we find that the nature of this tract is basically commercial. The facts have been fully developed and we need not repeat them. The ownership and control of the tract is not now in any way connected with Lake Forest. The lot owners there had an opportunity over the years to join in on a park proj ect and to help maintain it by their approval of assessments, hut they failed to do so. They are hardly entitled to a free park now, which is precisely what a continuation of the existing vacancy would amount to. We find also that under existing conditions this tract is not reasonably suitable for or adapted to the type of residential development for which it is zoned (15,000 square feet per residence), if indeed it is suitable for any residential development. The front of any residence here would be located only 30 to 40 feet from the edge of Clayton Road; there are parking meters in front of the entire tract; any residence erected on the west end would be separated only by a matter of feet from the existing Pancake House, with its lights, parking, and late closing hours. Defendants’ own experts testified, indirectly, that such a residence would be undesirable. We are convinced that there would be no real market for homes on this tract, especially with the lots valued at $13,200 each, according to defendants’ expert. It is obvious that only an unusual type of person would pay a proportionate price for a residence under these circumstances and at that location.

In Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642, the village had zoned as residential a strip at one end which bordered on a very busy highway; and this, notwithstanding the fact that on both sides of the tract there was almost continuous commercial development in the region generally. The Court of Appeals held the zoning invalid, and said in part, 177 N.E. at 430: “The inference is reasonable that the property fronting on Middle Neck road has been included in the residence district primarily for the purpose of providing a beautiful and dignified village frontage on the public thoroughfare. * *

“Certainly an ordinance is unreasonable which restricts property upon the boundary of the village to a use for which the property is not adapted, and thereby destroys the greater part of its value in order that the beauty of the village as a whole may be enhanced. In such case the owner of the property cannot be required to ask as a special privilege for a variation of the restriction. The restriction itself constitutes an invasion of his property rights.” To the effect that property may not be so zoned as to prevent any effective use, and that such a zoning is unreasonable and arbitrary, see, generally: McQuillan Municipal Corporations, 3rd Rev.Ed., Vol. 8, § 25.45, pp. 104, 105; Tews v. Woolhiser, 352 Ill. 212, 185 N.E. 827; Dalkoff v. City of Rock Island, 17 Ill.2d 342, 161 N.E.2d 292; The Exchange National Bank of Chicago v. County of Cook, 6 Ill.2d 419, 129 N.E.2d 1; Illinois National Bank & Trust Co. v. County of Winnebago, 19 Ill.2d 487, 167 N.E.2d 401; Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587, 117 A.L.R. 1110. In the last case cited, the Court said at 15 N.E.2d 592: “An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes, it is plain, beyond regulation, and must be recognized as a taking of the property. * * * During the nine years from 1928 to 1936, when concededly the property was unsuitable for any conforming use, the property was assessed at $18,000, and taxes amounting to $4,566 were levied upon it, in addition to assessments of several thousand dollars; yet, so far as appears, the district was no better suited for residence purposes at the time of the trial in 1936 than it was when the zoning ordinance was amended in 1928. In such case the ordinance is clearly more than a temporary and reasonable restriction placed upon the land to promote the general welfare. It is in substance a taking of the land prohibited by the Constitution of the United States and by the Constitution of the State.” So, in our case, by the continuous payment of taxes since 1936, and the continued effect of the zoning ordinance, this tract has certainly become “no better suited for residence purposes.” And the situation in this regard is most certainly not improving, but is deteriorating. The effect of a regulation which prevents all effective use is a confiscation. See cases just cited, and also: In Re Northeast Corner of E. Center Street & Chicago Avenue, Ohio Com.Pl., 186 N.E.2d 515; Krom v. The City of Elmhurst, 8 Ill.2d 104, 133 N.E.2d 1. And we note that this case does not involve a recent purchase of property with knowledge of the zoning, followed by an attempt to change the zoning; on the contrary, we have a situation where plaintiffs and their predecessors have owned the property for many years, have maintained it as a park or “buffer” zone, and have gradually seen the neighborhood undergo a vast change.

It is argued that any commercial use of this tract would require more city services, particularly fire and police; the evidence on this was vague and unimpressive; it is not even clear that there was any increase in the police force because of the building of the large shopping center at Clayton Road and Brentwood Boulevard. We feel that any possible increase in services necessitated here would be minimal and, of course, the city would collect more taxes on the developed property. This argument is of little weight in the over-all picture. Fire protection is furnished largely by cooperative arrangement with adjoining municipalities, and presumably the status of Richmond Heights would in nowise be altered.

While defendants properly assert that they are not bound by the zoning in Clayton, it is undoubtedly true that in its own zoning it must consider that matter, at least to some extent, from a regional standpoint. Some of the cases cited by defendants so state. Flora Realty & Investment Company v. Ladue, Banc, 362 Mo. 1025, 246 S.W.2d 771, 778 (citing Duffcon Concrete Products v. Borough of Cresskill, 1 N.J. 509, 64 A.2d 347, 9 A.L.R.2d 678); Wrigley Properties, Inc. v. City of Ladue, Mo., 369 S.W.2d 397 (by necessary inference). In Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767, at loc. cit. 771, the court said: “ * * * the considerations are not the comparative powers of neighboring villages, but conditions as they exist.” And, while defendants’ experts asserted that “strip zoning” along a busy commercial street is no longer considered to be good, city planning, both Richmond Heights and Clayton have gone too far in this respect to retrieve what was done years ago; the change in zoning theory is not, in itself, a sufficient reason for penalizing these plaintiffs. The argument is also made that, once this tract is rezoned the commercial area will “creep” eastward. This argument is not of any great validity. Not only does the city have that under its control (absent an arbitrary exercise) but here there would seem to be adequate “buffers” in the 20-foot strip running east from plaintiffs’ tract, and in the very nature of the intersection itself.

The basic question here really is this: considering all these circumstances and facts, is the extent of the public interest and welfare great enough to outweigh the demonstrated detriment to the individual interests, and in the final analysis is this question a debatable one? On the latter phase a mere difference in the opinions of experts does not make such a question legally debatable. Illinois National Bank & Trust Company v. County of Winnebago, 19 Ill.2d 487, 167 N.E.2d 401; Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767. As has been said many times, each such case stands on its own facts and circumstances. City of Richmond Heights v. Richmond Heights Memorial Post Benevolent Ass’n, 358 Mo. 70, 213 S.W.2d 479; Flora Realty & Investment Company v. City of Ladue, Banc, 362 Mo. 1025, 246 S.W.2d 771. We cannot escape the conclusion here that the refusal to rezone this property is based primarily upon a desire to benefit (or conversely to refrain from possible injury to) the subdivision of Lake Forest, and that it does not constitute a matter of substantial city-wide interest. The relationship of the owners in that subdivision to this tract has already been stated; they have done nothing to preserve the tract. They, alone, do not constitute the public, and their collective interests are not that “public interest” which must be weighed in any such zoning problem. Actually, the maintenance of the present zoning is primarily being defended for the collective benefit of private individuals. One expert witness for defendants more or less “let the cat out of the bag” when he testified: “Such a subdivision needs to be protected, preserved * * perhaps the best use would be to leave it vacant.” If the city wishes to condemn this property for park purposes, it should take steps to do so. Only 8 lots of the north tier in Lake Forest abut the strip (commercial and noncommercial) bordering Clayton Road; according to a plat exhibit there are only 5 houses on these lots and the ground of the westerly house abuts the “Pancake House” tract, but does not touch plaintiffs’. Thus only 4 residences would, upon a rezoning, be caused to abut commercial property for the first time, and, in our view, only those four could be affected. One of these owners spent several thousand dollars a few years ago in an effort to screen his property from the noise and traffic of Clayton Road by trees and shrubbery. It seems to us that the real detriment to those houses is Clayton Road itself. The nearest point of any such residence to plaintiffs’ tract is approximately 125 feet; shrubs and trees are scattered over the area. We find that the damage which these residences might suffer from any ordinary commercial use which is reasonably adapted to that neighborhood, would be small as compared to the very substantial damage and injury now imposed on plaintiffs. We do not find that residences beyond the north tier in Lake Forest would be affected, and indeed one of defendants’ experts so testified. We conclude thus the maintenance of the present residential zoning on plaintiffs’ tract bears no “substantial relationship to the public health, safety, morals, or general welfare,” (Flora, supra) and that it therefore encroaches upon the protection accorded to citizens and property owners under the State and Federal Constitutions. We further hold that the present zoning classification, on these facts and under these circumstances, is so unreasonable and arbitrary that it infringes the rights of plaintiffs under the due process clauses (14th Amendment U.S.Const. Art. 1, § 10, Mo. Const., V.A.M.S.) of both the State and Federal Constitutions. We further hold that, on the evidence in this record, the question is not fairly debatable.

Having so ruled, it is unnecessary to pass specifically upon the additional contentions that the classification is discriminatory, and that plaintiffs’ property is taken without compensation in violation of Art. 1, § 26, Mo.Const. We recognize that plaintiffs have had the burden of proving this classification to be unreasonable and invalid; in our opinion that burden has been sustained. Defendants- say that plaintiffs concede that the zoning ordinance was valid when enacted in 1941, and that they have not shown a sufficient change in circumstances since to render it invalid now. What we have already said indicates that our view is to the contrary. The facts are shown in much detail in the record, and the Court may itself take judicial notice of the enormity of the changes which have taken place since 1941 in this area of St. Louis County.

Counsel state that plaintiffs have not cited one Missouri case where “this court has held a residential district classification to be unreasonable and arbitrary as applied to a particular parcel.” That may be true, but the decision of each case rests upon its own particular facts and circumstances, and no appellate court has ruled on this case. Moreover, it is our duty to declare the law as we see it and not to vacillate because of the absence of a specific authority. The argument is entitled to much consideration, but it cannot be conclusive. There is a “first time” for nearly everything.

It is not our function (compare Sinclair Pipe Line Company v. Village of Richton Park, 19 Ill.2d 370, 167 N.E.2d 406, Nelson v. City of Rockford, 19 Ill.2d 410, 167 N.E.2d 219) to prescribe what commercial use shall be permitted on this property, especially since no specific plan or proposal has been filed. No very extensive commer cial development is possible because of the size of the tract and the requirement by ordinance of off-street parking. Nor would any uses except those suggested in the evidence (retail or office) seem particularly feasible in the neighborhood. We only hold that the present ordinance No. 1685 is void as applied to the tract in question and that the application of plaintiffs for a rezoning to commercial usage must be granted. Appropriate injunctions may enforce such an order.

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

All of the Judges concur.

        . All statutory citations will be to this revision unless otherwise stated.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Ronald FITZPATRICK, by His Father and Next Friend, J. B. Fitzpatrick, Appellant, v. Cecil F. FORD and Hazel H. Ford, Respondents.
    No. 49713.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.
    Opinion Modified on Court’s own Motion and Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 9, 1963.

      Edward L. Simmons, Plattsburg, Sevier & Turnage, Liberty, Walter A. Raymond and Raymond, West & Cochrane, Kansas City, for appellant.
    Price Shoemaker, St. Joseph, Alan F. Wherritt, Liberty, James H. Ottman, John C. Dods, Kansas City, for respondents; Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
   HOUSER, Commissioner.

Action for damages by two-year-old Ronald Fitzpatrick, suing through his father and next friend, for personal injuries sustained as a result of the collapse of the roof of a porch attached to a farm house owned by defendants Cecil and Hazel Ford. A trial jury awarded plaintiff damages in the sum of $120,000. Defendants’ motion for a new trial was sustained by the trial court “because of error in the giving of instruction No. 1.” Plaintiff appealed from the order granting a new trial. § 512.020, V.A.M.S.

Plaintiff-appellant contends there was no error in giving the ¡instruction; that this was no valid ground for granting a new trial. Defendants-respondents assert that the instruction was prejudicially erroneous as a matter of law; that plaintiff failed to make a case in the first instance; that in any event the verdict is excessive.

Stated in the light most favorable to the prevailing party, the plaintiff, these are the facts bearing on liability: On May 13, 1960, while Ronald was playing on the north porch, the roof of the porch suddenly collapsed and fell on him, inflicting serious injuries. This house, located on a 160-acre farm in Clinton County, was owned by defendants Ford, husband and wife, as an estate by the entireties. J. D. Fitzpatrick, his wife and two sons, including Ronald, lived on this farm for several years under different arrangements with the Fords in different years. The arrangement for the year 1960 was “a cash deal, rent the farm” for a cash rental of $1,200. The payment of this rental was “for the farm and for the part of the house” that the Fitzpatricks “used,” and did not cover “the part of the house that Mr. Ford used.” At no time from the beginning of their occupancy of the farm did the Fitzpatricks have the use of the entire house. It was always the understanding and agreement with Cecil Ford that the northwest bedroom and the furniture therein were “his room and furniture,” kept by him for his use as he saw fit. The bed, springs, mattress, rocking chair and two chests of drawers kept in the northwest bedroom were the personal property of Cecil Ford. “That was their [the Fords’] quarters.” When the Fitz-patricks first moved onto the'farm the room was reserved for the Fords’ 15-year-old nephew, who stayed in the room and lived with the Fitzpatricks at Cecil Ford’s request, for a year and a half while finishing his high school course. Cecil and Hazel Ford spent many weekends at the farm, and sometimes visited there during the week. They kept horses on the farm. They would hang their “farm clothes” in the closet across the hall from the northwest bedroom, which was a part of the portion of the premises reserved by the Fords. They kept clothes in a chest of drawers. They would change clothes in the northwest bedroom, and sleep in and use that room. Cecil Ford had a key to the house. The Fords would come and go, sometimes using the bedroom when the Fitzpatricks were not at home. It was not necessary for the Fords to ask the Fitzpatricks in advance for permission to come in and use the house. At no time was such permission sought. The Fitzpatricks used the northwest bedroom for their own or their family’s purposes only once during the four years they occupied the premises, and that use was “subject to Mr. Ford’s objection if he wants to use it.”

This sketch, from a plat in defendants’ brief, will assist in an understanding of the physical layout:

The main entrance to the house — the one ordinarily used by the Fords and the Fitz-patricks — was the door leading into the inner porch from the north porch. There was a door on the south side of the house, opening into the kitchen, but it was not the principal means of entrance. Access to the northwest bedroom through the main entrance was had by entering the door from the north porch and going onto the inner porch, thence into the kitchen, thence into the living room, thence into the children’s bedroom and thence into the small hall that led to the door opening into the northwest bedroom. The west porch was not used. There was a door leading from the west end of the hall to the west porch, but this was permanently closed and nailed shut at all times.

Before the Fitzpatricks moved onto the place the house, 50 or 60 years old, was “in very poor shape.” Cecil Ford agreed “to remodel the house all the way through, and everything, he’d keep it up.” He said “he would take care of the repairs and keep it suitable for [the Fitzpatricks] to live in.”' Cecil caused his brother Glenn, a roofing-contractor, to roof the porch, a “lean-to” porch, the roof of which was “just nailed up to the weatherboarding on the house.” It was supported on the north side by three A" x A" posts. The floor of the porch was made of cement. In the fall of 1959, prior to.the injury to Ronald on May 13, 1960, Fitzpatrick told Cecil Ford that Glenn Ford had said that the porch “needed some work done, * * * needed repairs.” After Glenn roofed the porch Cecil “fussed about the job he’d” done, saying that it still leaked between porch and house and it was “running down.” Cecil “got up there” and nailed a row of shingles across there leading down onto the porch, to stop the water leak. Before he nailed those shingles you could see rotten spots “up there along the side.” Afterwards, the shingles covered the rotten spots. Later on there was trouble with the roof on the main part of the house. It leaked. It was a flat roof. In the fall of 1959 Glenn Ford, acting under the supervision and control of Cecil and Hazel Ford, changed some rafters, made the flat roof into a slanting roof, and put new shingles on both north and south sides of the roof. Glenn Ford and one Herbert Cook stood a ladder up on the porch, threw the shingles onto the roof, then walked across the porch roof and carried them to the other part of the house. Ford weighed 190 pounds and the bundles of shingles weighed 75 or 80 pounds each. As the two men walked across the roof of the porch it “gave” or “sprang” in the middle. Cecil paid Glenn for this work and for the materials. On that occasion Glenn and Herbert installed a l"x4" brace board, about 5 feet long, slanting up from the house to the north porch roof, on the east side of the porch but put none on the west side of the porch. That board was put on to brace the porch roof. Fitzpatrick did not assist in any of these repairs, or do “one bit of work to that house.” Cecil Ford also caused storm windows and storm doors to be installed.

On the day of the collapse it was warm and clear and there was no wind. The whole porch roof came loose from the house, came down the wall, and fell on the plaintiff. The roof had been held up by “just a few spikes” nailed into the weatherboarding on the front of the house. The boards were old and dry-rotted. The spikes were “old square type nails, clinch type.” They left scraping marks on the front of the house, as the porch roof came down. The angling wooden brace had pulled loose from the porch, and was hanging on the side of the house.

Defendants’ evidence presented an entirely different set of facts; a direct conflict with respect to the contractual arrangement between the parties, retention of control over the northwest bedroom, agreement to repair and repairs actually made.

Cecil Ford testified that under the arrangement for the year 1960 Fitzpatrick got the whole of the farm, all of the house, and could do whatever he wanted to with it; that no reservations whatever were made. The Fords testified that the two families were all good friends who for years had had good times together, visiting back and forth in each others’ homes; that the Fitz-patricks had access to the key to the Ford home in Kansas City; that sometimes the Fords brought groceries to the farm and the two families cooked their meals together and ate at a common table “just like one big family.” The Fords sought to establish that Cecil did not own the furniture in the northwest bedroom, which they said was used by the Fitzpatrick family “like most any spare bedroom,” and that while in the summertime Cecil would sometimes sleep in the northwest bedroom, at other times he slept in the living room on the couch; that when it was cold one of the Fords would sleep with the little children (presumably in the children’s bedroom) and the other Ford would sleep in the living room on the couch; that when they stayed overnight the Fords would use the Fitzpatricks’ bedclothes, and that the Fords used the south door, not the north door, most of the time when entering the house. The sum and substance of Fords’ testimony was that there was no contractual reservation of any right on their part to use the northwest bedroom, the entire house being rented to the Fitzpat-ricks ; that on the occasions when they stayed there the Fords were there as close and intimate personal friends of the family, as social guests, not in any relationship of landlord and tenant by reservation of right.

An equally sharp issue was drawn on the question of agreement to repair, and repairs actually made. Cecil Ford flatly denied that he promised the Fitzpatricks that he would keep the house in repair; that Fitzpatrick had asked him to make repairs, or that Fitzpatrick said that Glenn Ford had said that the porch needed repair. On direct examination Cecil Ford specifically denied any knowledge of the roofing of the porch and, except for roofing the main part of the house and supplying storm doors and windows, denied any participation in repairs other than those jointly made with the Fitzpatricks, such as wallpapering and retarring the roof over one of the bedrooms. While on cross-examination he stated he “roofed the porch” in 1959 his brother Glenn claimed to have done this work for Fitzpatrick, stating that he never told Cecil about it and did not charge Cecil for the work. Defendants’ evidence tended to show that the brace was not put on the porch in 1959, but was there long before, and suggested that it was there to support a downspout.

Whether there was a defect in the porch, the nature of the defect, whether it was discoverable and the cause of the fall were disputed questions. Cecil and Glenn testified they saw nothing structurally wrong with the porch that fell; nothing to indicate that the porch was not in good condition. Cecil testified that Fitzpatrick told him that he had made a statement that there was nothing visibly wrong with the porch; that if there had been anything wrong he (Fitzpatrick) would have “got up there and fixed it,” and sought to establish that where the porch pulled away from the house the lumber was not discolored or rotten, but was sound.

• Plaintiff’s main verdict-directing Instruction No. 1, for the giving of which the trial court sustained respondents’ motion for a new trial, follows:

“The Court instructs the jury that if you find and believe from all the credible evidence that on May 13, 1960, defendants Cecil Ford and Hazel Ford were the owners of the farm located north of Plattsburg described in evidence and that on such farm was located a house and that a portion of such house was occupied by J. D. Fitzpatrick and his family, of which Ronald Fitzpatrick was a member, as a tenant of the defendants Cecil Ford and Hazel Ford, and that defendants Cecil Ford and Hazel Ford reserved a portion of such house, and that an entrance to such house used both by the J. D. Fitzpatrick family and defendants Cecil Ford and Hazel Ford was covered by a porch as described in evidence, and that such entrance covered by such porch was used in common as a common ingress and egress by the J. D. Fitzpatrick family and by defendants Cecil Ford and Hazel Ford for the respective portions of the house used by each, then you are instructed that it was the duty of the defendants Cecil Ford and Hazel Ford, as the owners and landlord, to use reasonable care and diligence to keep and maintain said porch in a reasonably safe and fit condition for such use by Ronald Fitzpatrick.
“Therefore, if you find that on the 13th day of May, 1960, Ronald Fitzpatrick was injured when the porch described in evidence collapsed and fell, striking Ronald Fitzpatrick, and if you find that when Ronald Fitzpatrick was injured, the porch was not in a reasonably safe and fit condition and that defendants either knew of such condition or by the exercise of ordinary care would have known of such condition for such length of time before Ronald Fitzpatrick was injured as to have given them a reasonable opportunity and time to have repaired it before Ronald Fitzpatrick was injured, and if you find that notwithstanding such fact, defendants failed to put said porch in a reasonably safe condition and that as a direct result of defendants said failure, Ronald Fitzpatrick was injured, then your verdict must be for the plaintiff.”

From plaintiff’s evidence, the verdict-directing instruction he offered, and his brief, it is apparent that plaintiff sought to recover under the “common use rule” that where a portion of the demised premises is reserved by the landlord for use in common by two or more tenants, or by himself and a tenant or tenants, a duty is imposed upon him to exercise ordinary care to keep that portion of the premises in a reasonably safe condition for the use intended and is liable for damages for personal injuries to the tenant or a member of the tenant’s family resulting from a failure to perform that duty. Peterson v. Brune, Mo.Sup., 273 S.W.2d 278, and three cases cited, 1. c. 280 [1] ; Sherman v. Bobrecker, Mo.Sup., 322 S.W.2d 898, 902; Roman v. King, 289 Mo. 641, 233 S.W. 161, 164, 25 A.L.R. 1263; Hunter v. Schuchart, Mo. App., 267 S.W. 411, 413; Karp v. Barton, 164 Mo.App. 389, 144 S.W. 1111; Miller v. Geeser, 193 Mo.App. 1, 180 S.W. 3, 8. The parties having treated this as a landlord and tenant relationship and the case having been tried on that theory below, we will treat it as such on this appeal.

The ultimate, basic question for the jury to resolve on the question of liability under the common use rule was whether the landlords Ford reserved control over the porch, Peterson v. Brune, supra, 273 S.W.2d, 1. c. 281, or included it in the demise of the house. The common use rule proceeds upon the theory that the portion of the premises subjected to common use (whether of several tenants, or of the landlord and a tenant or tenants) is not a part of the tenant’s leasehold estate; that “ * * * the landlord not having let it to any one of the tenants, he has, of course, reserved control thereof to himself.” Karp v. Barton, supra, 144 S.W., 1. c. 1112. That is to say, a landlord will be liable to his tenant or his tenant’s children “for injuries re-suiting from defects in the premises existing in passageways or other parts of the premises, the exclusive possession of which has not passed to any one tenant and the control of the use of which has been reserved by the landlord.” Lahtinen v. Continental Bldg. Co., en banc, 339 Mo. 438, 97 S.W.2d 102, 106.

A verdict-directing instruction must require the finding of all essential fact issues necessary to establish the legal proposition on which the right to the verdict is based. Gaffner v. Alexander, Mo.Sup., 331 S.W.2d 622, 627[3]. Instruction No. 1 fails to require a finding of the essential fact upon which liability turns under the common use rule, namely, reservation and control of the porch by the landlords Ford. The instruction is in two parts. The first paragraph tells the jury that it was the duty of the landlords to use reasonable care to maintain the porch in a reasonably safe and fit condition upon a finding that the Fords owned a farm and farmhouse, a portion of which (unspecified) Fitzpatrick and family occupied as a tenant; that the Fords reserved a portion (unspecified) of the house; and that an entrance covered by a porch was used in common as a common ingress and egress by the two families for the portions of the house used by each, respectively. The second paragraph hypothesizes nothing with respect to control. It tells the jury to find a verdict for plaintiff if the porch was not in a reasonably safe and fit condition; if the Fords had actual or constructive knowledge of the condition, and the porch fell as a result of the failure of the Fords to put the porch in a reasonably safe condition.

The direction of a verdict for plaintiff should have been predicated upon the requirement of a finding that the parties intended to reserve to the landlords Ford control over the porch (not merely to reserve an unspecified “portion of such house”), subject to a joint or common user by both families, and that the parties did not intend to include the porch in the demise. Defendants then would have been entitled to an instruction directing a verdict for them upon a finding of intention to demise all of the house, including the porch, except the northwest bedroom, and that that bedroom was reserved subject only to a privilege or right in the landlords to use the porch as a means of access thereto. Hassell v. Denning, 84 Cal.App. 479, 258 P. 426, 427, [3]. The cases cited by plaintiff all state the general common use rule, but the issue here is not the existence, but the applicability, of the rule. None of the cases cited by plaintiff controverts the proposition that an application of the common use rule requires a finding that the landlord retained control over the premises where the injury occurred. On the contrary, they recognize that retention of control is an essential element of liability. None of them holds that where the issue of control is in dispute plaintiff may omit from his verdict-directing instruction a requirement of a finding of reservation of control over that part of the premises where the injury occurs. In Peterson v. Brune, supra, 273 S.W.2d, 1. c. 281 [4], in the special situation where there was no real issue in the case as to retention of control by the landlord, the necessary finding of retention of control was held to have been satisfied by an instruction merely requiring the evidential finding of use in common. The opinion carefully notes, however, ^that “under other evidence, the hypothesis referred to [use in common] might be insufficient, * * 273 S.W.2d, 1. c. 282. The evidential finding of use in common was insufficient, without more, in the instant case, where the question of retention of control was one of the vital issues in controversy. It was error to give Instruction No. 1 without a sufficient hypothesis on the issue of control of the porch as a basis upon which the jury could fix liability upon defendants under the common use rule.

Instruction No. 1 is also erroneous for the reason that the first paragraph, which imposes a duty upon the defendants, is not related to the second paragraph, which is the verdict-directing portion of the instruction. The first paragraph hypothesizes facts the finding of which, according to the instruction, imposes upon the landlords Ford a duty to maintain the porch in a reasonably safe condition. The second paragraph proceeds to hypothesize other facts upon the finding of which the jury is directed to return a verdict for plaintiff. The two paragraphs, connected only by the word “Therefore” and their inclusion on the same sheet of paper, are not made interdependent, but are independent, and the verdict is not made to depend upon the finding of the facts in the first paragraph. As in O’Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, 62, “The first paragraph consists of a series of introductory conditional clauses, but contains no consequent clause to express the result, if the conditions be found true. It is rich in protases but contains no apodosis. It means nothing.” The parallel continues. The second paragraph is open to the construction that a verdict must be rendered for plaintiff if the porch was not in a reasonably safe condition, to the actual or constructive knowledge of the defendants, in time to repair, and failure to repair. The word “Therefore” as used in Instruction No. 1 does not incorporate the first paragraph into the second because the second paragraph is complete in itself and independent of the first paragraph; it ignores the relationship of the parties, the reservation of control over the porch and all other questions, except those indicated, and authorizes a verdict. Even if the first paragraph had properly' hypothesized the issue of control over the porch, which it did not, the jury would still have been confused and misdirected. Confused because left to speculate “whether the element of control was a necessary part of plaintiff’s case,” Tucker v. Taksel, Mo. App., 345 S.W.2d 385, 388 [4], and misdirected because the second paragraph, complete in meaning, omitted any reference to the element of control, so that the finding of a verdict was not made to depend upon the finding of one of the elements of the plaintiff’s case. Instruction No. 2 in Tucker v. Taksel, supra, a landlord and tenant case, stricken down for these same reasons, was strikingly similar to our Instruction No. 1.

Other complaints against Instruction No. 1 — that it failed to identify the “portion of such house” reserved; failed to submit facts (existence of a specific defect which ultimately led to the collapse of the porch, and whether the claimed defect was discoverable upon reasonable inspection by defendants) from which the jury could determine whether there was negligence; failure to submit the question whether the submitted facts constituted negligence — may be avoided by properly redrafting the instruction in the event of another trial.

Defendants oppose remand for a new trial on the ground that plaintiff did not make a submissible case. They claim plaintiff failed to establish by credible evidence that defendants did'not let the porch to J. B. Fitzpatrick and failed to introduce evidence of retention of control of the porch by defendants. Without restating the evidence pro and con on the question of submissibility, suffice it to say that the question under the facts in this case is a close one. We deem it unnecessary to decide the question of submissibility because in any event enough was developed at the first trial to indicate that on remand plaintiff may be able to make a submissible case on the theory adopted; that the interests of justice require remand for a new trial, and that it is our duty in this case to follow the rule that “Where the trial judge has ordered a new trial for error committed during the trial, and the question of the sufficiency of the evidence to make a submissible case is very close, the furtherance of justice requires a case should not be reversed without remanding unless the appellate court is convinced the facts are such a recovery cannot be had upon proper retrial. [Citing cases.]” Milliken v. Trianon Hotel Co., Mo.App., 364 S.W.2d 71, 75, [8].

Remand is in' order for another reason, namely, that plaintiff made a case for the jury on another theory. Plaintiff pleaded that defendants’ agents and employees - “attempted to repair said porch by nailing boards thereto and to the house, but .that said- repairs were inadequate and were performed in a careless and negligent manner so that after said repairs were made said porch fell down and collapsed * * * ” There was substantial evidence to support this allegation. The law is clear, that “* * * ¡f thg landlord does undertake to make repairs, either voluntarily or by covenant, he must exercise reasonable care in doing so and is liable to his tenant for injuries caused by his negligence or unskillfulness in making the repairs or in leaving the premises in an unsafe condition.” Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844, 847, quoted with approval in Stewart v. Zuellig, Mo.Sup., 336 S.W.2d 399, 402, [2].

We need not rule on the question of the excessiveness of the verdict for the reason that this question may not arise on the new trial.

The judgment is affirmed and the cause is remanded for a new trial.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Perhaps in the nature of a license, as intimated in Kilmer v. White, 254 N.Y. 64, 171 N.E. 908, 909, [1].

      . Roman v. King, 289 Mo. 641, 233 S.W. 161, 164, 25 A.L.R. 1263; Schneider v. Dubinsky Realty Co., 344 Mo. 654, 127 S.W.2d 691. 696; Peterson v. Brune, Mo.Sup., 273 S.W.2d 278, 281; Hunter v. Schuchart, Mo.App., 267 S.W. 411, 413; Karp v. Barton, 164 Mo.App. 389, 144 S.W. 1111, 1112; Miller v. Geeser, 193 Mo.App. 1, 180 S.W. 3, 8.


author: COIL, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Arthur W. HAMMEL et al., Defendants, Erwin F. Vetter, Appellant.
    No. 49590.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.
    Opinion Modified on Court’s own Motion and Rehearing Denied Dec. 9, 1963.
    Erwin F. Vetter, Clayton, for appellant.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent.
   COIL, Commissioner.

In this condemnation case Erwin F. Vet-ter has appealed from a judgment (designated final for appeal purposes) striking his amended answer and dismissing his amended counterclaim. Respondent, the State Highway Commission of Missouri, hereinafter sometimes called the commission, filed its petition on September 28, 1954, seeking to condemn several parcels of land located in St. Louis County “for new State Highway Route 40.” It was averred that one tract was owned by Emil Waibel and that Erwin F. Vetter had an interest in said land as the trustee in a deed of trust.

Former appeals by Waibel and Vetter, respectively, to this court from the trial court’s judgment dismissing Waibel’s counterclaim were dismissed as premature in State ex rel. State Highway Commission v. Hammel, Mo., 290 S.W.2d 113. Upon remand of that case the trial court sustained present appellant Vetter’s motion to be substituted for Emil Waibel. That motion averred that Waibel had died and that Vetter had become the owner of the fee in the tract of land involved. Thereafter Vetter filed an amended answer and an amended counterclaim.

We consider first that portion of the judgment dismissing the amended counterclaim.

Waibel’s counterclaim and Vetter’s original and amended counterclaims each sought a judgment requiring the commission to specifically perform an alleged contract which appellant averred he had entered into with the commission, wherein it was agreed that in consideration of the conveyance to it of the required right-of-way across the tract of land in question the commission would construct an overpass and adjacent service streets necessary for ingress and egress to and from said tract in accordance with a construction plan voluntarily prepared by the commission and furnished to appellant; that thereafter appellant fully performed by delivering to the commission a deed conveying to it the right-of-way required in accordance with the description thereof furnished by the commission, and said deed was accepted by the commission; that appellant had offered, and by an averment in the counterclaim again offered, to execute any other instruments which the commission deemed necessary to enable it to complete the highway construction in accordance with the plan agreed upon between the commission and appellant; that the commission “fraudulently, arrogantly and oppressively refused to construct said overpass and service streets in accordance with said plan and contract” but sought by its petition, filed September 28, 1954, to condemn the land to which it had theretofore received a deed and refused to provide ingress and egress to appellant’s land which was divided into two parts “by said depressed limited access highway.” Appellant alleged further that he had no adequate remedy at law in that the amount of damages he had sustained was unascertainable, and that “unless specific performance is granted herein he will be unable to secure ingress and egress to the north tract separated by said highway and will be unable to connect said north tract with the south tract over and upon plaintiffs’ right-of-way for which no damage would be adequate compensation.”

Appellant alleged further that the overpass and service streets which were agreed to be constructed were not state or federal highways as such, and that “their construction as an adjunct to such highways does not impinge upon the power of plaintiff to 'locate, relocate, design and maintain’ State or Federal Highways * * * or impinge upon plaintiffs’ constitutional authority to limit access to said Highway * * * in the manner prescribed by law.”

Appellate jurisdiction is in this court since title to real estate is involved, even where, as here, specific performance is sought by a vendor against a purchaser. State ex rel. State Highway Commission v. Hammel, supra, 290 S.W.2d 116[1].

In Handlan-Buck Co. v. State Highway Commission, Mo., 315 S.W.2d 219, appellant contended that it was the third-party beneficiary of a contract between the Highway Commission and the City of St. Louis under the provisions of which the commission agreed not to- vacate and close Poplar Street at Third. This court there pointed out that State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534, had held that the commission “had the authority to condemn or extinguish the right of an abutting owner to access to a state highway,” and that the constitutional provision authorizing the commission to do so “where the public interest and safety may require is a grant'of police power” and, consequently, the commission’s author-ity to construct a limited access highway over Third Street and to close Poplar Street was within- the state’s police power and that if the closing of Poplar was in the public interest and for the safety of the public, the commission’s authority to so act could not be limited, curtailed or destroyed by a contract it may have made with the City. The opinion quoted with approval this statement from 16 C.J.S. Constitutional Law § 179, pp. 913-915:

“Neither the state .legislature nor any inferior legislative body to which a portion of the police power has been granted can • alienate, surrender, or abridge the right to exercise such power by any grant; contract, or delegation whatsoever, although in some jurisdictions no provision of controlling law expressly forbids such action.”

It follows, therefore, that unless appellant’s counterclaim alleged facts which, if proved, would tend to show that the commission’s refusal to construct the overpass and service roads was not the result of a decision of the commission which the public interest and safety required but, on the contrary, constituted a manifest abuse of the commission’s broad discretionary authority, the counterclaim failed to state a claim upon which relief could be granted and, if so, was properly dismissed. An examination of the amended counterclaim shows that while it alleged that the commission “fraudulently, arrogantly and oppressively refused to construct said overpass and service streets in accordance with said plan and contract,” no facts are alleged, as opposed to the conclusionary words set forth above, the proof of which would tend to establish that the decision of the commission to breach its alleged contract with appellant and to proceed with a different plan which eliminated the proposed overpass and service roads although a part of the original plan, was not a proper exercise of the authority vested in the commission by Section 29 of Article IV of the 1945 Missouri Constitution V.A. M.S., and by the sections of Chapter 227, RSMo 1959 and V.A.M.S. State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534.

As noted heretofore, appellant also alleged that to require the commission to specifically perform its agreement to construct an overpass and designated service roads would not “impinge upon” the commission’s power and authority to locate, relocate, or abandon a highway, or “impinge upon” its authority and power to limit access to any highway. As noted,’ however, the commission -may limit or extinguish the easement of access through, the exercise of the power of eminent domain where the public interest or safety so require. State ex rel. State Highway Commission v. James, supra, 356 Mo. 1161, 205 S.W.2d 537 [7, 8]. It is apparent; therefore, that to require the commission to construct a certain overpass and service road's at a particular location, which so far as the fact allegations of the counterclaim»' show may have been eliminated from the plan first proposed in the public interest and' safety, would “impinge upon” the commission’s authority to limit access. See generally, State ex rel. State Highway Commission v. Elliott, Mo., 326 S.W.2d 745; Hamer v. State Highway Commission, Mo., 304 S.W.2d 869, 874 [7, 8]; Nairn v. Bean, 121 Tex. 355, 48 S.W.2d 584; Board of Commissioners of Harmon County v. Oklahoma State Highway Commission, 163 Okl. 207, 23 P.2d 681; Board of Commissioners of Canadian County v. Oklahoma State Highway Commission, 176 Okl. 207, 55 P.2d 106.

We hold that the trial court properly •dismissed appellant’s amended counterclaim. We do not reach respondent’s other contentions in support of the trial court’s judgment dismissing the counterclaim.

We now consider that part of the judgment which struck appellant’s amended an.swer.

As noted heretofore, appellant appealed irom the judgment of the trial court entered on June 5, 1962, which sustained the commission’s motion to strike appellant’s amended answer as well as the commission’s motion to dismiss appellant’s counterclaim. Appellant under his “Points and Authorities” does not state that the trial court erred in striking his amended answer, nor does he there make any contention with respect to the amended answer. In his statement of the case, under the heading “Record Below,” appellant says:

“There has been no hearing or trial on the issues made by the original unopposed answers filed by Appellant and the deceased Emil Waibel. The original Answer of Emil Waibel was dismissed without a hearing thereon and thereafter voluntarily reinstated by the Court (Supp. Tra. p. 21). The hearing on these pleadings awaits the disposition of this appeal.”

In the argument portion of his brief, under point III, in which appellant discusses the various numbered contentions in respondent’s motion to dismiss appellant’s counterclaim, the following paragraph is the only mention of the action of the court in striking appellant’s amended answer:

“Appellant obtained leave of court to file his Amended Answer (Tra. p. 19). This Amended Answer was filed to. clarify the issues as made by the pleadings after the Order of Substitution. Appellant has no explanation for the action of the Court in thereafter striking the Amended Answer. Appellant will insist on a hearing either upon the original Answer or the Amended Answer. Sec. 10 of Article I of the Constitution of 1945. Amendment V and Amendment XIV to the Constitution of the United States.”

We are unable to understand appellant’s position. He suggests apparently that he has been denied a hearing on his answers and thus has been denied due process and, nevertheless, he not only failed to include that contention under his “Points Relied On” or to therein specifically assign the striking of his amended answer as error or to brief any contention with respect thereto but, on the contrary, has affirmatively stated that a “hearing on these pleadings awaits the disposition of this appeal.”

The propriety of the trial court’s action in striking the amended answer would be a question before us on this appeal were it presented as such by appellant. It has not been presented and thus we decline to review any such question, despite the fact that respondent argues under a specific point in its brief that the trial court correctly struck appellant’s amended answer. This court, under the circumstances above set forth, is unwilling to search the record to determine the propriety of the trial court’s action in the absence of specified reasons as to whether and, if so, why the trial court erred in striking the amended answer.

Appéllant’s brief, after erroneously suggesting, as above noted, that any hearing on the matters set forth in his answers should await the disposition of this appeal (apparently erroneously treating this appeal as involving only the action of the trial court in dismissing the amended counterclaim), then contends, in effect, that the condemnation petition in this case was fatally defective in that it did not allege two facts necessary to confer jurisdiction upon the trial court to proceed. Appellant’s argument, as we understand, is that certain necessary jurisdictional allegations were absent from the commission’s petition because the allegations contained therein as to the kind and type of highway proposed were not true, but that the proposed highway was in fact a “different kind of highway” and, consequently, it was necessary for the commission to allege that all constitutional and statutory requirements pertaining to the commission’s authority to construct such a “different kind of highway” had been complied with before the trial court could have jurisdiction to act under the condemnation petition.

Respondent alleged in paragraph 2 of its petition: “Relator is empowered by law to condemn, in the name of the State of Missouri, land property and rights when necessary for the proper and economical construction and maintenance of state highways, and under such conditions to locate, relocate, establish, construct and maintain additional state highways, bridges and tunnels outside the corporate limits of cities having a population in excess of 150,000 either in congested traffic areas of the State, or where needed to facilitate and expedite the movement of through traffic. The hereinafter described highway is wholly outside the corporate limits of any city having a population in excess of 150,000. Relator has determined in compliance with law that said highway is in a congested traffic area of the State, and is needed to facilitate and expedite the movement of through traffic, and has ordered the location of, preparation of plans for, and construction of said highway, a part of which begins on or about the Eastern boundary of Carson Heights Subdivision, and runs Eastwardly intersecting Lucas-Hunt Road at Lillian Avenue, and continues Eastwardly to an intersection with the Western boundary of ALTA VISTA SUBDIVISION, all in St. Louis County, Missouri.”

Appellant says the highway proposed was an interstate highway required to be constructed in compliance with federal law and in pursuance to the authority granted in subparagraph (d) of paragraph (3), Section 30 of Article IV, Missouri Constitution of 1945; and that such was not alleged in the petition nor was it averred that the design of the highway had been approved by the United States Bureau of Public Roads. Sufficient answer to those contentions is to point out that while it is true that Section 30(3) (d), Article IV, does confer upon the commission the discretionary authority to locate, relocate, establish, acquire, construct and maintain highways in the state when necessary to comply with any federal law or requirement which is or shall become a condition to the receipt of federal funds, it is also true that the same section and paragraph of Article IV [30(3)], but in subparagraph (f), confers upon the commission the discretionary authority to acquire, establish, etc., “additional state highways, bridges and tunnels, outside the corporate limits of cities having a population in excess of 150,000, either in the congested traffic areas of the state or where needed to facilitate and expedite the movement of through traffic.” Thus, it is apparent that the petition alleged that the land in question was being condemned for a highway which the commission was specifically authorized to locate and construct. It is apparent, therefore, that appellant’s contentions above noted are without merit.

Appellant’s final point in his brief appears to be that to wholly deprive a landowner of his rights of access to his remaining land by reason of the construction of a limited access highway when such access could be provided by “service streets,” constitutes a taking of the remaining land “not for a public use.” We have heretofore noted that the commission, through proceedings in eminent domain, may, in the proper exercise of the police power vested in it, limit and extinguish access between a highway and abutting-property. State ex rel. State Highway Commission v. James, supra. Appellant is entitled to just compensation for the damages he has lawfully sustained as a result of the construction of the highway-in question; but such matters are not before us on this appeal.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lester KING, Appellant.
    No. 50017.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.
    Rehearing Denied Dec. 9, 1963.
    Edgar M. Eagan, Jefferson City, for appellant.

      Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

In 1955 in Phelps County the appellant Lester King was charged with robbery in the first degree. After a change of venue he was tried in November 1955 in the Circuit Court of Cole County, found guilty and sentenced to 15 years’ imprisonment. In February 1962, it was charged in the Circuit Court of Cole County, in a good and sufficient information, that on December 24, 1961, while serving the sentence of 15 years’ imprisonment in the penitentiary, Lester King, acting in concert with Rollie Latter (Lassiter), Jacob E. Weinrich and Thomas E. Rea, “did unlawfully and fe-loniously attempt to escape therefrom and go at large by then and there forcing one John Iven by threats of bodily harm to drive a truck through the Penitentiary yard and attempting to have, the said John Iven drive the truck through the Penitentiary gates and outside of the Penitentiary confines, but that the said Lester King failed in his attempt to escape from the Penitentiary, against the peace and dignity of the State.” RSMo 1959, Sec. 557.351, V.A.M. S. (Laws Mo.1959, H. B. No. 10; Laws Mo. 1961, p. 331) ; State v. Johnson, 93 Mo. 317, 6 S.W. 77. Again upon a change of venue to Montgomery County, King was tried on the charge of attempting to escape from the penitentiary, found guilty and sentenced to four years’ imprisonment and it is from this sentence and judgment that he appeals.

These, in brief, were the circumstances as the jury could reasonably find them: After breakfast on December 24, 1961, John Iven, a custodian-guard, together with an inmate “inside-driver,” drove a truck inside the main walls of the penitentiary for the purpose of securing bread and ice to be used in L Hall, a unit outside the prison walls for “honor inmates” about to be released. While the truck was parked at a loading dock, the inmate driver went inside the bakery on his errand leaving Iven alone in the truck. Immediately four prison inmates, King, Lassiter, Weinrich and Rea, approached and “two of them (King was one of these) stood on the side of me and they put ‘shiv(e)s,’ one on each side of my stomach.” They forced Iven into a toilet to “shake me down” in search of the truck key and a prison-guard whistle. After stripping him of his clothes and not finding the key, Iven said to King, “Well, for your benefit, the inside driver has got the keys.” King sent Weinrich for the inmate driver “and he shook him down and found the keys” and then they tied him to water pipes in the toilet. They told Iven to dress again, King “took his blade and put it on me” and after some experimenting and “different procedures” with the truck and being unable to'find a way out without being seen “King came around there and he put me under the wheel.” The four prison inmates placed themselves in various places on the truck, one got in the breadbox behind the driver’s seat, and Lassiter being the smallest got down on the floor board next to Iven with his “shiv” and on King’s orders they forced him to start forward toward or “through the gate” in the prison wall to the L Hall yard and then of course through an unlocked gate to the city street. Iven stopped the truck, Lassiter “had the blade on me, and he wanted to know what I was stopping for. I said ‘Well, I’ll have to tell the man I want through the gate.’ And as I told him that, why I just take the keys' out, kick the door open and jumped out, and as I went to the tunnel door the guard that was on there, he suspected something wrong, so he let me inside.” Iven “telephoned” the control tower and the four prison inmates were returned to cells and identified. This evidence and these circumstances, needless to say, supports the charge and the jury’s verdict. 19 Am.Jur. (Escape, Prison Breaking, and Rescue) Sec. 8, p. 364; State v. Slicker, (Mo.) 342 S.W. 2d 946; State v. Baker, 355 Mo. 1048, 199 S.W.2d 393.

In proof of King’s confinement in the penitentiary the state called Mr. Lamar, for 22 years the superintendent of identification and records. Mr. Lamar identified as one of the records of his office a certified copy of the 1955 sentence and judgment of the Circuit Court of Cole County in King’s robbery conviction. This witness also identified King as the person named in the document and as the person on trial for attempted escape. There was objection to this document and to this testimony, and while other and further documentary evidence may have been available this document and testimony were admissible and sufficient for the purpose offered, — to show King’s “commitment” (State v. Slicker, supra), or that ■“he was in lawful custody at the time” of his attempt to escape. State v. Whalen, 98 Mo. 222, 225, 11 S.W. 576, 577.

As a matter of fact all these are but preliminary matters necessarily considered by the court upon this appeal. In the trial of his case and here King’s principal claim is that his prior robbery conviction was void or unlawful and that therefore he could not be guilty of an escape. He attempted to raise and establish his claim in this manner: After this the escape case was pending in the Circuit Court of Montgomery County, King filed in that court a document which with his assent the court denominated a “Motion for Writ of Habeas Corpus.” In that document it was asserted that in violation of the state and federal constitutions he was “being illegally and unlawfully deprived from his liberty” by reason of the sentence and judgment of 15 years’ imprisonment and that he was entitled to present witnesses to prove his innocence of the robbery charge in Phelps County. He also alleged that while confined in the penitentiary he had “suffered crual and unusual punishments” (solitary confinement) and should for that reason be discharged from the original sentence and judgment.

But whether this unusual document be treated as a petition for habeas corpus (RSMo 1959, Sec. 532.010, V.A.M.S.) or as a motion to vacate the judgment (Sup.Ct.Rule 27.26, V.A.M.R.), the Circuit Court of Montgomery County did not, by the mere filing of the plea, obtain jurisdiction of either the proper persons (39 C.J.S. Habeas Corpus § 54, p. 597) or the subject matter in the first instance. In habeas corpus for an unlawful confinement in the penitentiary the venue is in Cole County. RSMo 1959, Sec. 532.030, V.A.M.S.; 39 C.J.S. Habeas Corpus § 71, p. 617; State ex rel. Gentry v. Westhues, 315 Mo. 672, 286 S.W. 396; State ex rel. Shartel v. Skinker, 324 Mo. 955, 25 S.W.2d 472. And initially a motion to vacate a judgment may only be filed “in the court which imposed such sentence.” Sup.Ct.Rule 27.26. As of course an escape presupposes a lawful custody, but a prisoner may not defy his custodian merely because his sentence is irregular or voidable. 30 C.J.S. Escape § 5 a c pp. 1143, 1144. It may be assumed that one charged with an attempt to escape may defend “by showing that he * * * was not ‘lawfully’ imprisoned at the time of the alleged escape.” Annotation 70 A.L.R.2d 1430, 1434; 30 C.J.S. Escape §§ 10, 15, pp. 1147, 1148. Nevertheless, for reasons which need not.be repeated here, “(n)ot necessarily inconsistent with the rule that escape is justifiable where the imprisonment is ‘unlawful’ are a number of cases holding that where the imprisonment is under color of law, the prisoner is not entitled to resort to self-help but must apply for his release through regular legal channels, even though he might be able to show such defects in the procedure by which he was arrested, tried, sentenced, committed or imprisoned as to justify or require his release on appeal or habeas corpus.” 70 A.L.R.2d 1. c. 1437. And an attempt to escape is not justifiable “because the conditions of imprisonment were intolerable or inhumane.” 70 A.L.R.2d 1. c. 1433. In this connection, necessarily, the testimony offered by King if admissible at all' could only be introduced and employed in an appropriately instituted proceeding in a court with •jurisdiction of the proceeding in the first instance.

There is no error “as to those matters upon the record” before the court (Sup.Ct. Rule 28.02) and for the reasons indicated the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.