author: COIL, Commissioner.

text:
    Adelia BUSCHMEYER, Pearl Tilly and Anna Tilly, Respondents, v. Ben EIKERMANN, Emilie Eikermann, Esther Eikermann, Howard Eikermann and Geneva Kochur, Appellants.
    No. 50070.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.

      Raymond C. Lewis, Jr., Smith & Lewis, •Columbia, Randolph E. Puchta, Hermann, for appellants Ben Eikermann and Emilie Eikermann.
    Bond & Dominique, John O. Bond, P. Pierre Dominique, Jefferson City, for respondents.
   COIL, Commissioner.

Respondents brought an action to determine title to real estate (involving the construction of a will), for partition and for an accounting for rents and profits which allegedly had accrued to those in possession. Certain of the defendants answered and alternatively counterclaimed for recovery for permanent improvements made and taxes paid under a belief of ownership of the fee simple title. We have jurisdiction because title to real estate is involved. Article V, Section 3, Missouri Constitution, V.A.M.S.

The first issue is the construction of the will of Frederick Eikermann:

“1. I direct the payment of all my just debts and funeral expenses.
“2. I give and bequeath to each of my children the sum of One Dollar ($1.00), namely; Ben Eikermann, Frank Eiker-mann, Perle Tilly, nee Eikermann, Anna Tilly, nee Eikermann, Adelia Eikermann, Charles Eikermann and Fred Eikermann, Jr.
“3. All of the residue of my property of whatever kind it may consist, I give, devise and bequeath unto my beloved wife, Minnie Eikermann, the same shall be her property as long as she remain a single person and shall also have the income of the same and use such income as she may see fit. In the event that my wife should remarry, then it is my will to give, devise and bequeath unto my said wife that part of this residue as is provided by law and the remainder to be divided equally share and share alike among my seven children hereinbefore named.”

The final paragraph (4) provided for the appointment of an executor. Testator died January 18, 1937.

The question is whether by paragraph 3 testator devised a determinable life estate in or. a.determinable fee simple title to the Eikermann farm of 257 acres located in Gasconade County.

Minnie Eikermann, the widow, deeded the farm to her son Ben, a defendant-appellant, on November 10, 1956, reserving to herself a life estate therein. She did not remarry and died November 23, 1961. Thus it is that Ben Eikermann and the other appellants contend that by the terms of the will 'Minnie Eikermann received a determinable fee simple and plaintiffs, the daughters of testator, contend that Minnie received a ' determinable life estate. The question, as are most questions concerning the construction of wills, is troublesome. It is our view, however, that the most recently adjudicated cases in this state construing the phrase or phrases essentially like the phrase “as long as she remains a single person” require the conclusion that, as the trial court held, Minnie Eikermann received a determinable life. estate by the third paragraph of her husband's will.

It is agreed, that the will is for construction as a matter of law; there was no evidence as to the testator’s intention except as it may be determined from the language he used in his will.' Oft stated, and obviously, any will is properly construed if the intention of the testator is found and determined. McMillan v. Barnard Free Skin & Cancer Hospital, 304 Mo. 635, 264 S.W. 410, 413 [1]; Housman v. Lewellen, 362 Mo. 759, 244 S.W.2d 21, 23 [2], That-intention is to be determined “from the four corners of the instrument.” Boxley v. Easter, Mo., 319 S.W.2d 628, 632 [4].

Appellants invite our attention to the fact that Sections 442.460 and 474.480 (all section citations herein refer to sections of RSMo 1959 and V.A.M.S.) provide respectively that it is unnecessary to create or convey an estate in fee simple that the terms “ ‘heirs,’ or other words of inheritance” or “heirs and assigns” be used,-pro-: vided there is nothing in the will showing •expressly an intent to pass an estate less than a fee; for"example, an expression which shows that testator intended to convey only a life estate. Appellants remind us further that there is a presumption against partial intestacy, Shaw v. Wertz, Mo., 369 S.W.2d 215, 218, 219, and that testator in the present will did not provide •for a distribution or gift over in the event Minnie died without having remarried.

. It is fair to say that appellants essentially rely upon two Missouri cases to sustain their contention that the testator intended to devise a determinable fee simple estate, Wise v. Crandall, Mo., 215 S.W. 245, and Gaven v. Allen, 100 Mo. 293, 13 S.W. 501.

The court in the Wise case needed to construe the following clause contained in the will which was described as “an instrument remarkable for its obscurity.”

“First. I will that all my debts be paid after all my just debts are paid I hereby will and bequeath all my property both real and personal to my wife Lydia Crandall to have and to hold as her own during her natural life, and in the event of the death of my wife Lydia Crandall I will that all my property' both real and personal shall go to my daughter Ernistine Crandall to have and to hold as long as she may remain single and unmarried, but in case she should marry before the death of myself or the death of the said Lydia Crandall then she may have two hundred dollars more than any of my bodily heirs who shall share as follows: I will that my son Caleb G. Crandall, Josephine Crandall, now Josephine Wise, Ris-toria G. Crandall and the bodily heirs of Mary A. Wise shall share equally in my estate both real and personal after that Charlena- G. Crandall shall have received fifty dollars, but if the said Ernistine Crandall should remain single and unmarried then she may hold all my estate as her own, otherwise she may receive two hundred dollars more than any other heir •who is mentioned in this will.” 215 S.W-246. •

In construing the foregoing clause, the court said: “It will be seen that no condition is attached to the fee devised to Ern-istine upon the death of her mother unless it be included in the words ‘to have and to hold as long as she may remain single and unmarried.’ * * * The words quoted alone express with technical certainty the intent to devise and bequeath all testator’s estate, both real and personal, upon condition that she should remain unmarried, until by her death the fee should pass to her heirs. With hesitation we have, for the purpose of giving some meaning to words which, in their literal sense, apply only to vested estates, adopted them as expressive of the true intention of the testator. If she should marry before the death of her father and mother the estate would vest in the heirs named in the will as devisees in the proportions therein stated. If the condition subsequent contained in the words we have quoted is lawful and therefore valid, and she should marry after the death of her father and mother, the estate would revert to the heirs of the testator in the proportion fixed by the statute of descents and distributions.” 215 S.W. 247.

We call attention to the fact that although the will’s language in the Wise case contained the phrase, just as does the will in the present case, “as long as she may remain single and unmarried,” the provision in the Wise case, unlike the will in the present case, ended with these words: “but if the said Ernistine Crandall should remain single and unmarried then she may hold all my estate as her own, otherwise she may receive two hundred dollars more than any other heir who is mentioned in this will.” (Our italics.) 215 S.W. 246.

In Gaven v. Allen, supra, the testator devised to his widow two houses, a farm, his interest in certain other land, and certain personal property. His will then provided: “And my will is, and I desire, that if my said wife, Ellen Gaven, should happen to get married at any time after my death, the above-mentioned property, or any money or property hereafter mentioned, shall be divided, share and share alike, between all or any of my children then living; and, as to the rest, residue, or remainder of my property, whatsoever or wheresoever the same may be, and not hereinbefore given and disposed of, after payment of my just debts, funeral expenses, and the expense of providing this, my will, I give and bequeath unto my said wife, Ellen Gaven.” 13 S.W. 502.

The court, in construing the above-quoted language, said: “The intention of the testator is too plain to admit of any question. The plaintiff acquired the property now in question under and by virtue of the residuary clause, and she holds it subject to the qualification that she remains unmarried. She has a fee which may continue forever. Still, it will cease, and the property pass to the children, upon her marriage. In short, she has a base or qualified fee, and no more.” 13 S.W. 502.

The will in the Gaven case did not contain the clause “so long as she remains single,” but, after devising to his wife all his estate, right and title, testator said if his wife “should happen to get married at any time after my death.”

Nevertheless, despite the noted differences, we agree with appellants that the two cases above cited give support to their view that the will in the present case devised a determinable fee simple rather than a determinable life estate.

Respondents rely upon two later cases, Tillerson v. Taylor, 282 Mo. 204, 220 S.W. 950, and Winget v. Gay, 325 Mo. 368, 28 S.W.2d 999. In the Tillerson case, the pertinent portions of the will were:

“I order and direct as soon after my decease as practicable to pay off and discharge all the debts, dues and liabilities that may exist against me at the time of my decease. I give and bequeath unto my esteemed wife, Edna Montgomery, all my property, both real and personal, that remains after my debts are paid, to have and to hold the same and enjoy during her widowhood or so long as she remains my widow.
“If she remarries or in the event of her remarrying again, I desire that all the property should he divided equally between my brothers and sisters and my wife and her brothers and sisters all sharing alike and equal with my wife. * * * ” 220 S.W. 950.

In discussing the meaning of the above-quoted language, the court said: “It is doubtless true, since the enactment of that statute, that the words, 'heirs and assigns,’ or other words of limitation, are not required in a devise of land to carry the fee to the devisee. Roth v. Rauschenbusch, 173 Mo. 582, 73 S.W. 664, 61 L.R.A. 455. Yet the statute imports that a devise which otherwise would pass the fee will have the effect of passing only an estate for life if expressions are contained in the will which show the testator intended to give no greater estate than one for life, or if there is a devise over of the property after the death of the first taker. Armor v. Frey, 226 Mo. 646, 669, 670, 126 S.W. [483] 495. In the will of Joseph Montgomery expressions were used which show the intention of the testator was to vest the title to the lands in his widow only during her widowhood. The expressions 'to have and to hold the same and enjoy during her widowhood’ and ‘so long as she remains my widow’ occur in the clause wherein the gift to her is made as a definition of the quantity of the estate given. Such a devise always has been held to pass only an estate for life and apter words for that purpose could not be chosen. 2 Black, Commen. 121; Williams, Real Property (17th Internat. Ed.) p. 142; 2 Minor’s Institutes, c. 8, par. 2g. Moreover, the estate given was intended to last only ‘so long as she remains my widow’; only so long as Edna Montgomery remained the widow of the testator. That expression, and also the one ‘during her widowhood,’ were apt words to make the life estate one of limitation, which would terminate instantly upon the remarriage of the widow, without entry or other assertion of title by the remaindermen. 1 Washburn, Real Property (6th Ed.) § 165, p. 79.” 220 S.W. 951.

The clause in the Tillerson case, “to hold the same and enjoy during her widowhood,” seems to us to clearly indicate an intention to devise only a life estate. We note, however, that the court thought “so long as she remains my widow” were also apt words to pass only a life estate. The court stressed the fact that the expressions, “during her widowhood” and “so long as she remains my widow,” occurred “in the clause wherein the gift to her is made as a definition of the quantity of the estate given.” (Italics present writer’s.) 220 S.W. 951.

In Winget v. Gay, supra, the will, after making specific bequests of one dollar to each of testator’s brothers and sisters, contained this language: “I give and devise all the residue of my estate to Sarah R. Arthur, as long as she remains single, and if she marry it is my will that she share equally with the other heirs.” 28 S.W.2d 999.

The above-quoted clause is essentially like the clause in the present will. Eliminating from consideration the additional words in the present will, that the widow “shall also have the income of the same and use such income as she may see fit,” the clause in the present will is in effect, I give, devise, and bequeath unto my beloved wife all the residue of my property, the same shall be her property as long as she remains a single person, and in the event she should remarry, she shall receive a child’s share of this residue.

The court in discussing the meaning of the language of the will in the Winget case said :

“ ‘As long as she remains single’ are words of limitation and not of condition; they mark the period which is to determine the estate. An estate so limited may last for life and is therefore a life estate, although it terminates upon the marriage of the donee. * * *
“If an estate be given to a woman ‘dum sola fuerit,’ or ‘durante viduitate,’ the-grantees have an estate for life determinable upon the happening of these events. This is ancient law. And the cases make no distinction as to the duration of the estate whether the devisee be a widow or an unmarried woman. In both instances the object of the devise is the support of the devisees until marriage and the estates devised are at most life estates.
“The provision under consideration passed to Sarah R. Arthur a life estate with a limitation over, ‘if she marry.’ The persons who were to take upon her marriage were the testator’s heirs. She did not marry, but notwithstanding, the remain-dermen, who were also the testator’s heirs, took under the will and not as heirs. The rule is well established that, where a testator gives to a woman a life interest if she so long remains unmarried, and then directs that, in the event of her marriage, the property shall go over to another, although, according to the strict language, the gift over is expressed only to take effect in the event of the marriage of the life tenant, the gift over is held to take effect, even though the tenant for life does not marry. For a review of the authorities, both English and American, see Maddox v. Yoe, supra. [121 Md. 288, 88 A. 225].” (Bracketed insert ours.) 28 S.W.2d 1000.

In the more recent case of Riesmeyer v. St. Louis Union Trust Co., Mo., 180 S.W.2d 60, this court construed a paragraph of a will which bequeathed stock in trust for testator’s wife “so long as she should remain single. ” The parties to that litigation agreed that the bequest created a life estate so that the question whether it did was not adjudicated as a controverted issue. This court did say, however, that a construction that the language created a life estate “has the support of judicial authority. Winget v. Gay, 325 Mo. 368, 28 S.W.2d 999, Tillerson v. Taylor, 282 Mo. 204, 220 S.W. 950.” 180 S.W.2d 62.

Appellants rely heavily upon the fact that in the present will there was no provision for what distribution should be made or, as appellants express it, “no gift over” in the event of the death of the.widow without having remarried. Appellants say such is indicative of the fact that the estate devised was intended to terminate only upon remarriage and not upon the death of the widow unmarried. Thus, say appellants, it is clear enough that Minnie Eikermann took a determinable fee. Were we determining as a matter of law the present testator’s intention from the language he used, without reference to the prior decisions in Tillerson and Winget, supra, we should attach much importance to the fact that testator made a gift over only in the event of his widow’s remarriage and not in the event of her death unmarried, as indicating that testator intended to convey a determinable fee. Indeed, myriad cases from other jurisdictions have so viewed such provisions. The fact is, however, that the Winget case seems to settle the present question so far as Missouri is concerned. That case held that the words “as long as she remains single” constitute words of limitation and not of condition; and in neither the Winget nor the Tillerson case was there a gift over in the event of the death of the widow unmarried.

Appellants further suggest the presumption against partial intestacy as another compelling reason for finding that it was testator’s intention to devise a determinable fee. But the Winget case holds that the gift over in the event of remarriage takes effect in the event the life tenant dies without having remarried and, if so, there is no partial intestacy.

Appellants also contend that inasmuch as testator devised to his wife a fee simple estate in a portion of the residue of his property in the event of her remarriage, it should not be said that he intended the estate he conveyed in the event she did not remarry was an estate less than a fee. While the widow may have received a “lesser estate,” when the will is construed to have devised a determinable life estate, than she would have received in the event of her remarriage in the sense that a life éstate is- “less than a -.fee,” it is also true, as respondents point out, that a life estate with full enjoyment and use of the income from a farm of 257 acres is probably' of more Value and, in that sense; “a greater estate” than the widow would have received in the event of'her remarriage. . •

Appellants have cited a number of well reasoned cases from other jurisdictions which have construed language similar to or practically the same as that contained in the present will, as having devised a determinable fee. Illustrative of a long list of such cases are: Taylor v. Farrow, Ky., 239 S.W.2d 73; Dickson v. Alexandria Hospital, Inc. (4 Cir.), 177 F.2d 876; Pumroy v. Jenkins, 151 Kan. 466, 99 P.2d 752; In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230. And see Washington U.L.Q., 1951, p. 595, comment: “‘To My Wife So Long As She May Remain My Widow ’ —Determinable Fee or Life Estate?”

While we recognise that because of the almost infinite variety of expressions employed in different wills, we should not be bound by a prior case construing .a will containing language different in any essential respect from that contained in the will being presently considered, we are convinced'that Winget v. Gay, supra, is controlling here. That is because the language there is essentially the same as that contained in this will, and because the opinion in that case, written 'in 1930, stated the rule applicable to the language used in present testator’s 'will written in 1936, and probated in 1937.

As noted, appellant Ben Eikermann alternatively claimed and sought by counterclaim to recover for taxes paid and permanent improvements made on the Eikermann farm in the event it w.as determined that he did not own the fee simple title thereto. Ben’s mother and father (testator) lived in the home place until the father’s death in 1937 and thereafter his mother continued to live there until her death on November 23, 1961, except for the times when, due to her health, she was kept at Ben’s home. Ben’s brother;Charles lived.with his mother .at; the home place until Charles died in 1955.. After their father’s death the two sons, Ben arid Charles, each rented a part (probably one half each) of the land devised in Frederick’s will, under a rental agreement with their mother whereby each furnished, all his seed, machinery, and labor, and each, paid the mother one third of the crops realized. After Charles’s death in 1955, Ben and his son Howard rented the entire farm under the same arrangement. The' mother deeded the ’ farm to Ben on November 10, 1956, reserving to herself a life estate therein.

The reasonable market value of the land at that time was about $19,000. Ben testified at the time the -deed was given his agreement with his mother was that she was to retain a- life estate, that he was to take care of her for- the rest of her life, pay her funeral expenses, “and- pay all her expenses.” Ben and his son Howard continued to farm under the one-third crop agreement until the tim,e of Ben’s mother’s death in December 1961. Ben paid the taxes on the farm, beginning in 1956 (the year in which he received the deed) to and including the taxes for the year 1962, amounting to a total of $1,214.82. .

Ben adduced evidence that he made permanent improvements on the farm beginning in the ye.ar 1956. He established some’ permanent pasture (of which theré was none in 1956) so that by trial time there were 32 or 33 acres of such pasture. He expended between $500 and $600 iri making that improvement. His evidence showed further that beginning in 1957 or 1958 he drained and cleared certain of the bottomland, some of which was grown up in brush and trees and much of which did not properly drain. This project included digging a ditch several feet deep, three fourths of a mile long, and digging lateral ditches. Such, drainage added 40 or 45 acres which could be cultivated and which previously had been swamp, and provided proper drainage for many more acres. The testimony was that a Mr. Graves who had been hired to do some of this work was paid $568.36 for the ditching and draining by Ben and that “the government” paid Mr. Graves an additional $429.64. The evidence showed further that Ben had rebuilt all the fences which were on or around the farm and, in addition, had installed some new fences; and in so doing had used about 700 white oak fence posts and about 170 railroad ties and that he had purchased and installed a large quantity of new wire. In addition, he had cut trees and sprouts and removed stumps by the use of dynamite.

Other than the expenditures heretofore noted, there were no figures given as to the cost of these improvements. For example, even though Mr. Eikermann testified that he and his son worked an average of three months every year from 1956 or 1957 until 1961 on the drainage improvement, no estimate of the value of their labor expended thereon was made and no figures were stated as to the value of their labor involved in the establishment of the permanent pasture or in the replacement or building of fences.

Appellants offered to prove that solely by reason of the improvements made the reasonable market value of the .farm had increased from $19,000 in 1956 to $27,000 or $28,000 at the time of trial. The court sustained obj ections to the proffers not only with respect to the total by which the value of the farm had been increased but also with respect to how much each improvement had enhanced the value of the farm. The offers in those respects were that the draining and clearing had enhanced the value by $6,000, the fencing by $2,500, permanent pastures by $1,000, and the clearing of the 6-acre tract was an improvement of the reasonable value of $100.

Plaintiffs contended below and contend here that the taxes paid by Ben Eiker-mann were not paid by him in good faith in the belief that he was the owner of the fee and that whether they were is of no consequence because the taxes were the obligation of his mother as the life tenant and thus must have been paid by Ben under the arrangement between him and his mother ; that the improvements likewise were not made in good faith and that, in any event, Mr. Eikermann was not entitled to recover in excess of his actual expenditures in making the claimed improvements.

There is no dispute that plaintiffs were entitled to a credit of $354 which was received by Ben as his share of the proceeds on the crops on the farm between the date of his mother’s death and the time of trial.

The evidence showed that the plaintiffs were the sisters of defendant Ben Eiker-mann; that two of the sisters, Anna Tilly and Pearl Tilly, had made no claim of ownership until the institution of this action and that all three plaintiffs had heard reports that Ben Eikermann claimed ownership of the farm. The evidence showed further that plaintiff Adelia Buschmeyer had brought a partition suit in 1955 (as to the land presently involved) which was dismissed without prejudice in September 1956; that Ben Eikermann was a party to that suit, was represented by an attorney, and filed a pleading. There was evidence to the effect that Ben had been advised by his lawyer that plaintiff (Adelia) had an interest in the land and that Ben had, in effect, offered $2,500 for that interest. Defendant Ben Eikermann’s evidence showed that after the dismissal of the 1955 partition suit, he obtained a written opinion dated October 1, 1956, from an attorney (the opinion was in evidence) to the effect that Frederick’s will devised a fee simple determinable to Minnie Eikermann and that, consequently, she lawfully could convey to him (Ben Eikermann) a fee simple title which could be divested or defeated only by her remarriage. Ben denied that his attorney in the partition suit told him that his mother had only a life estate or that his sisters would share in the land or that Mrs. Busch-meyer wanted $5,000 for her share or that he said he would sell his share for $5,000.

The trial court, after correctly construing the will as devising a determinable life estate to the widow, Minnie Eikermann, ordered the partition of the land devised by the will (it was admitted that the land could not he satisfactorily partitioned in kind) and the parties agree that their respective interests are correctly set forth in the decree.

We first consider the allowance of the $1,214.82 credit for taxes paid. It is the obligation of a life tenant to pay the taxes for the duration of that tenancy in the absence of a clear provision to the contrary in the instrument creating a life estate. Burnett v. Quell, Mo.App., 202 S.W.2d 97, 98 [1]; Dufley v. McCaskey, 345 Mo. 550, 134 S.W.2d 62, 64 [2], 126 A.L.R. 853. Mrs. Eikermann, Ben’s mother, was the life tenant under the provisions of testator’s will, but more important on this aspect of the case, she was a life tenant also by reason of the reservation in the deed from her to Ben executed in accordance with an agreement between them. The amounts Ben paid, except $191.15 for 1962 taxes, were for taxes which accrued while his mother was the life tenant. It is undoubtedly true that Ben entered into the agreement with his mother by the terms of which she was to convey title to Ben subject to her life estate, Ben was to care for his mother for the remainder of her life, pay her funeral expenses, and “pay all her expenses,” in the honest belief that Mrs. Eikermann had received a determinable fee simple under the will of her husband and, therefore, lawfully could convey a fee simple title to him subject to being defeated only by her remarriage. It is undoubtedly true also that Ben paid the taxes from 1956 through 1961 under the belief and expectation that he would have the fee simple title to the farm upon the death of his mother.

We are of the view, however, that under all the foregoing circumstances shown by the evidence, the most reasonable conclusion is that Ben paid the taxes (1956-1961) because that was his obligation under his agreement with his mother, albeit, under the erroneous belief that she held a determinable fee at the time of her deed to him. It appears, therefore, that Ben’s claim, if any, for the amount he paid for taxes, except 1962 taxes, is against his mother’s estate. At least, that conclusion seems compelled in the absence of any evidence in the record that the life tenant was unable to have paid the taxes (1956-1961) and would not have paid those taxes in the event she had had no agreement with Ben to do so. It follows that the credit to appellants for the amount paid for taxes should have been in the sum of $191.15.

The trial court disposed of the other issues by holding that Ben Eikermann, in addition to paying taxes in the sum of $1,214.82, had paid $1,068.36 for improvements, had received $354 from crops since his mother’s death, and that, consequently, appellants were entitled to a credit of $1,-929.18 to be recovered from the proceeds on partition.

It is apparent, of course, that the trial court held, as a basis for its conclusions above stated that Ben Eikermann had made the improvements in good faith in the belief that he was the owner of the fee simple title, and honestly had made such improvements for the purpose of improving the property and not for the purposes of either encumbering the estates of his cotenants or hindering the partition. Our independent review of the record convinces us that the trial court correctly so found.

The parties are in disagreement as to the proper measure of damages for recovery for permanent improvements made by one tenant in common without the consent of the other tenants in common but made in good faith and under the circumstances heretofore noted.

It is appellants’ contention that the proper measure is the amount by which the value of the real estate was enhanced solely by reason of the permanent improvements. It is respondents’ contention that the proper rule is that the cotenant may recover for the actual cost of any improvement made if and only to the extent that such improvement enhanced the value of the property.

We are here dealing with improvements made by one cotenant without the consent of the other cotenants hut made by the improver in good faith. Appellants sought in a counterclaim to recover for such improvements by the enforcement of an equitable right and, alternatively, to recover for such improvements under the terms of Section 524.160 and C.R. 89.16 (the “betterment” statute or rule). Appellants contend that under either theory of recovery the measure of damages is the same, but while we shall refer to both types of cases, we confine any conclusion herein to the factual situation stated above, i. e., recovery for improvements made by one tenant in common from another tenant in common.

The cases relied upon by appellants support their position. In Burford v. Aldridge, 165 Mo. 419, 63 S.W. 109, 112, the court found that as to a partition of the farm there involved between one Aldridge and the Burford heirs, Aldridge had made permanent valuable improvements before he had notice of plaintiffs’ claim and that the part of the farm allotted to him should contain those improvements if such could properly be done, and if a sale of the farm was necessary, the improver “would be entitled, in addition to three-fourths of the net proceeds, to the amount, if any, the court may find that the price realized was enhanced by such improvements so made; but unless the court finds that the price was so enhanced, and the amount thereof, such improvements will not be considered.”

Armor v. Frey, 253 Mo. 447, 161 S.W. 829, 838, held that the rule as to the measure of damages in partition among cotenants for improvements made by one “honestly for the purpose of improving the property, and not for the purpose of embarrassing his cotenants, or incumbering their estate, or hindering partition” was as follows: “* * * an allowance for whatever amount it- may be found that the value of land has been increased by the improvements placed there * * *.”

Sires v. Clark, 132 Mo.App. 537, 112 S.W. 526, a case often cited to support the rule appellants say is the correct one, was not one in which one cotenant sought a credit from his cotenants on partition but rather a suit to recover the value of improvements made by one who thought himself to be the owner but who had been ousted from the real estate. The court said, “The ordinary advance in the value of the land is no part of the measure; nor is the cost of the improvements the measure, as they may have cost too much, or may not have been judicious. The measure is the addition in value the improvements have made to the land over and above what the value would have been had they not been made.” 112 S.W. 527. The instruction, however, upon which plaintiff conditioned his right to recover and which was approved by the court, hypothesized that if the jury believed he had made the improvements in good faith, etc., he should recover “the difference in the value of eight-tenths of said lands with said improvements and without said improvements, not however to exceed the reasonable value of the cost of said improvements * 112 S.W. 527.

Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81, was a suit in which one had occupied property, had made improvements in good faith and sought to recover for such improvements, and the court, at page 86, stated on the authority of Sires v. Clark, supra, that “the measure of compensation allowable for improvements made in good faith by an occupying claimant upon land — that is, the amount by which the value of the land is enhanced by the improvements.”

In Anderson v. Sutton, 308 Mo. 406, 275 S.W. 32, a case wherein Anderson was ejected from real estate and sought to recover for improvements which he had placed thereon, the court, at 275 S.W. 35, 36, held that an instruction was properly refused which, in effect, told the jury that the improver could not recover for improve-merits more than it had cost'to make them because it would be "just to make the landowner pay what the improvements were reasonably worth at the time he takes them over * * * the value of the improvements ought to be assessed at what they are reasonably worth to the land at the time the landowner takes them over.”

Krahenbuhl v. Clay, 346 Mo. 111, 139 S.W.2d 970, 129 A.L.R. 1344, did not involve the question of recovery for improvements among tenants in common but rather the recovery of compensation for improvements made by a purchaser of land at a tax sale which was subsequently set aside. The court, at page 978 of 139 S.W.2d, said that the “true measure of defendants’ recovery is not the cost of making the improvements or their particular value to defendants, but the value of the improvements as measured by the enhancement in the value of the land to the true owner thereof.”

Respondents in support of their contention cite and rely upon Goforth v. Ellis, Mo., 300 S.W.2d 379, and Beckham v. Eggleston, Mo.App., 341 S.W.2d 337. In the Goforth case this court said: “The right to compensation for improvements, made without the consent of cotenants, is not a legal right hut may be enforced in equity for payment out of proceeds of partition, when they are made in good faith and are of a necessary and substantial nature, materially enhancing the value of the common property, where the circumstances show that it would be equitable to do so. 14 Am.Jur. 115-119, Sec. 49; 40 Am.Jur. 32-38, Secs. 39-45; 68 C.J.S., Partition, § 139, p. 221; 86 C.J.S., Tenancy in Common, § 68, p. 450; Annotations 1 A.L.R. 1189, 122 A.L.R. 234. The evidence indicates these charges were reasonable and we hold the circumstances of this case are such as to make it equitable to require plaintiff to pay half of the cost of these improvements. See also O’Donnell v. Mathews, 221 Mo.App. 657, 284 S.W. 204; Armor v. Frey, 253 Mo. 447, 161 S.W. 829; Lester v. Tyler, Mo.Sup., 69 S.W.2d 633, 638; Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 617; Henry v. Steward, 363 Mo. 213, 250 S.W.2d 527, 529.” 300 S.W.2d 384.

And in the Beckham case the court said: “The rule is that the right to compensation for improvements, made without the consent of cotenants, is not a legal right, but may be enforced in equity for payment out of proceeds of partition, when they are made in good faith and are of a necessary and substantial nature, materially enhancing the value of the common property, when the circumstances show that it would be equitable to do so.” 341 S.W.2d 341 [6-7], The court there allowed the cotenant to recover the total expenditures made on the common property holding that the circumstances showed that the allowance of such expenditures would be equitable.

Thus, both the Goforth and Beckham cases, supra, made it clear that the right of a cotenant to recover for improvements made under circumstances like the present is an equitable right and there is language in both those cases indicating that the amount of the recovery should depend upon the facts and circumstances in each case and whether, under all the circumstances, it would be equitable to require one cotenant to pay an amount to another for improvements the other made. In both those cases the court allowed (in Goforth) only one half the cost of the improvements and (in Beckham) the court allowed recovery of the total expenditures made for improvements. In both cases, however, the court cited cases and texts, some of which state the rule contended for by appellants. For example, in Goforth v. Ellis, supra, Armor v. Frey is cited in support of the proposition that it would be equitable to require the plaintiff to pay half the cost of the improvements. As we have heretofore noted, Armor v. Frey stated the rule contended for by appellants.

Furthermore, in the Beckham case, supra, 341 S.W.2d 339, the appellants’ contention, here pertinent, was that the trial court erred in charging against the proceeds of the partition the sum of $5,804.14 “for im'provement expenses”; and in the Goforth case, supra,'the question was whether the court had correctly allowed the amount of certain expenditures for improvements made by one of the parties. The point is, apparently in neither case (Goforth or Beckham) relied on by respondents was there a contention, as here, that the proper measure of damages for recovery for permanent improvements is the amount by which the value of the real estate was increased solely by reason of the permanent improvements made.

Both parties rely on various statements made in American Jurisprudence and Corpus Juris Secundum, and statements therein do support both contentions. See 27 Am.Jur., Improvements, § 22, pp. 276-278 ; 40 Am.Jur., Partition, § 39, pp. 32, 33, § 45, pp. 37, 38, § 48, pp. 40, 41; 68 C.J.S. Partition § 139a, pp. 221-223, § 139c(3), pp. 226, 227.

In 68 C.J.S. Partition § 139a, supra, it is stated:

“As a general rule, where a cotenant places improvements on the common property, equity will take this fact into consideration on partition and will in some way compensate him for such improvements, provided they are made in good faith and are of a necessary and substantial nature, materially enhancing the value of the common property.”

It seems to us that the question is always (where cotenants are concerned) what is just and equitable under the particular circumstances of a certain case? Sometimes it would appear equitable that a cotenant be limited to recovery of the cost of the improvements, limited always to a maximum recovery of the amount by which the value of the property was enhanced solely by reason of the improvements made. Under the circumstances of the present case, however, it appears to us that it would be equitable to permit the cotenant to receive credit for the amount by which the value of the land was increased solely by reason of the improvements he made. . Appellants suggest that this court may fix that amount and enter a judgment therefor. We are not in a position to so do, however, because appellants made only offers of proof (not in the form of the presentation of actual testimony by proffered witnesses), and objections were sustained to the offers made. And furthermore, respondents in the event their objections to the offers of proof had been overruled, probably would have offered evidence as to the amount, if any, the value of the farm had been increased solely by reason of the improvements made. Thus, the case must be remanded for the purpose of hearing such evidence on that issue as the parties may choose to present.

As noted, count 2 of plaintiffs’ petition sought partition of the farm devised by testator, Frederick Eikermann, located in Gasconade County. Count 3 sought partition among plaintiffs and one of the defendants of land located in Osage County as to which plaintiffs claimed as tenants in common as a result of a deed and a will other than and unconnected with the will and deed under which plaintiffs claimed to be tenants in common in count 2. The trial court dismissed count 3 and plaintiffs have appealed from that part of the court’s judgment.

Plaintiffs contend the trial court erred in dismissing count 3 because, they say, under the provisions of Section 528.040 and Civil Rule 96.04 the Circuit Court of Gasconade County had jurisdiction to partition the land located in Osage County. Civil Rule 96.04 provides in pertinent part: “Such petition shall be filed in the circuit court of the county in which such lands, tenements or hereditaments lie; but if the same shall lie in two or more counties, whether in detached parcels or otherwise, said petition shall be filed in the circuit court of the county in which any portion of such premises are situated, and a majority of the parties entitled thereto reside; * (Our italics.) We do not find that this contention has been ruled heretofore, but we are of the view that the trial court correctly-dismissed count 3.

The words “such petition” and “said petition” in Civil Rule 96.04 refer to the partition suits provided for in Civil Rules 96.01 and 96.02. An examination and consideration of those rules convince us that the provisions of Civil Rule 96.04 permitting a partition suit to be brought in any county “in which any portion of such premises are situated, and a majority of the parties entitled thereto reside,” do not authorize the joinder of separate and distinct partition actions in one petition where, as here (and we limit our construction of the rule to the present fact situation), all the land involved in one action is located in one county and all the land involved in the separate action is located in a different county, and where, as here, the parties affected by the two partitions do not claim under the same document or documents in both actions, and where, as here, all the parties to the two actions are not the same. Thus, in this case, where plaintiffs in their first action set forth in counts 1 and 2 claimed to be tenants in common with several of the defendants as to land located in Gasconade County by reason of the provisions of the will of Frederick Eikermann and sought partition of that land, they may not properly join a separate action (although set forth as a count of the same petition), seeking partition of land.located in Osage County' as to which plaintiffs claimed to be tenants in common (with only one of the defendants) under a will and deed different from the documents upder which they claimed as tenants in common as to the Gasconade County land.

Esther Eikermann, a defendant below, who did not appeal, filed a motion to dismiss the appeal as to her which was taken with the case. We have examined and considered the motion and the suggestions in opposition, arid without extending further this too- long opinion, we are of the opinion that the motion to dismiss should be and therefore it is overruled.

The judgment, in so far as it construes Frederick Eikermann’s will, adjudges the interests of the parties in the Gasconade County land, orders partition thereof by public sale, orders the dismissal of count 3 of plaintiffs’ petition, and adjudges that defendants take nothing under counts 1 and 2 of their counterclaim, is affirmed. The judgment, in so far as it allows Ben Eikermann a credit in the net sum of $1,929.18 to be paid from the proceeds of the partition sale, is reversed and the case is remanded for further proceedings relating to the issue as to the amount of the credit which should be allowed Ben Eiker-mann to be paid from the proceeds of the partition sale, in accordance with the views herein expressed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    Gladys LOTT, (Plaintiff) Appellant, v. Norman M. KJAR, Administrator of the Estate of Milton C. Kjar, (Defendant) Respondent.
    No. 50074.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.

      Wyne & Delworth and William Hi Wyne, Jr., Clayton, for appellant.
    F. X. ■ Cleary, Paul S, Brown, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St.' Louis, for respondent.
   WELBORN, Commissioner.

This is a head-on automobile collision case in which the drivers of the two' vehicles involved were killed. There Were no-other passengers in the vehicles-and no witnesses to the collision. The widow of the driver of 'one auto sued the administrator of the estate of the driver of the other for $25,000 under the wrongful death statute (Section' 537.080, RSMo 1959, V.A. M.S.) and for $3,600 damages for loss of the auto driven by her husband. The jury’s verdict was for the defendant. After her motion for new trial had been overruled, plaintiff appealed to this'court. In view of the amount sued for, we have' jurisdiction of the appeal. '

The issue presented to the jury was which driver was operating his automobile in the wrong direction at the time of the collision. 'The collision occurred at approximately 3:00 A.M., October 15, 1960. The automobiles involved were a 1959 Oldsmobile “white over gold” sedan, driven by plaintiff’s husband, Clyde Lott, and a 1959 Ford sedan, driven by defendant’s decedent and brother, Milton C. Kjar. The collision occurred in the westbound traffic lanes of U. S. Highway 40 in the vicinity of the junction and intersection of U. S. Route 40, Alternate U. S. 40 and U. S. Route 61, near Wentzville. At the'point of the collision, U. S. Route 40 is a 4-lane highway, running generally east and west. There are two 24-foot paved roadways, one for westbound and one for eastbound traffic, which are separated by a median area.At the time- of the collision, the pavement was dry.

The plaintiff’s case was submitted on the sole assignment of negligence on the part of Kjar in. operating his Ford eastbound in the westbound traffic lane at the time of the collision. Defendant submitted - the converse of plaintiff’s verdict-directing instruction and also the affirmative of the issue that'Lott was driving the wrong way at the time of the.collision.

The plaintiff’s evidence to prove her theory was the testimony of Trooper James B. Kelems of the Missouri Highway Patrol, who investigated the accident. He arrived at the scene some 25 minutes after the accident occurred and before the vct hides had been moved. He described the position of the vehicles as at an angle across both lanes of the paved portion of the westbound highway. Their front ends were together, the Oldsmobile pointed generally in a southwesterly direction and the Ford generally in a northeasterly direction. Kjar had been thrown from his car, but the location of his body was not shown. Lott had been removed from his vehicle by persons who reached the scene before the-Trooper. Both died at the scene without making any statement.

Trooper Kelems testified that debris was scattered over the highway west of the location of the cars for a distance of 34 to 37 feet. There was some debris to the east, but the major portion was to the west. No skid marks were found. However, the Trooper did describe what he called “tire marks” and scratches which ran straight through the debris from the west to the Ford, a distance of 34 feet. He stated, on cross-examination, that the “tire marks” were made by the rear wheels. Except for photographs, taken the following day and showing damage to the vehicles, there was no further evidence offered by plaintiff relating to the collision itself.

The plaintiff testified that she last saw her husband when he drove her in the Olds-, mobile to.her work at Lambert-St. Louis. Airport at 9:00 P.M. on October • 14 and that he left there in the car, planning to return to pick up the plaintiff at around 5:00 or 5 :30 the following morning when she finished work. Mrs. Lott testified that she did not know what her husband had planned to do between 9:00 P.M. and S :00 A.M. Lambert-St. Louis Field is east of the scene of the accident.

The defendant’s evidence showed that Milton Kjar, an electrician, aged 26, single, worked in St. Louis where he had a room at his brother’s home. Kjar’s mother lived on a farm north of Wright City, which is on Route 40, west of the scene of the collision. The defendant’s evidence showed that Milton usually spent the week-end with his mother on the farm. He left his brother’s house after changing clothes on his return from work Friday evening at around 7:30 P.M. He paid his union dues at the union office in St. Louis the same evening, but his whereabouts otherwise prior to the collision do not appear.

The defendant produced a witness, Robert S. Bierer, who was working at a service station about 3 miles west of the scene of the collision at the time of its occurrence. The service station is on the north side of Route 40. Bierer testified that, at around 3:00 A.M., on October 15, a colored man (Lott was a Negro) drove an Oldsmobile into the service station, purchased gasoline and asked the way to St. Louis. According to Bierer, he told the driver that he had “just come from that direction and that he would have to turn around and go back.” The driver drove east through the service station property and entered the westbound lane of Route 40 and proceeded to drive east for as far as Bierer could follow him, a distance of some 14 mile. About 15 minutes later, someone came to the service station and called the highway patrol and reported an accident. Approximately an hour later, Bierer saw an automobile which he described as “the same model and light-colored top” towed into Swantner’s garage which was across the highway from the service station. Both the Lott and'Kjar cars were removed from the scene of the collision to the Swantner garage.

. On this appeal, the plaintiff’s first assignment of error relates to the court’s exclusion of testimony proposed to be given by Trooper Kelems to show that, in the collision, the Ford automobile had pushed the Oldsmobile back a distance of some 30 feet. The complete offer of proof was as follows:

"I would offer to prove by this witness, if permitted to testify, that having had the experience in reconstructing accidents, having had the training that he has, that based upon the physical facts that he found at the scene of the accident, number one, the two vehicles still together with the front ends in a generally — the Oldsmobile facing in a generally southwesterly direction and the Ford facing in a generally northeast-wardly direction and based upon the fact that there were marks, both tire marks and scratch marks from metal of the car leading directly in a straight line toward the west, a distance of thirty-four feet, based upon the fact that there was debris scattered all over the highway, including glass, mud and various metal parts of the car, that if this witness were permitted to testify, based also upon the damage to the automobiles, that he would state that the automobile was traveling in a west-wardly direction and that the Ford was traveling in an eastwardly direction and that the Ford upon contact, pushed the Oldsmobile backward toward the east, a distance of approximately thirty-four feet.”

In her brief, plaintiff-appellant states:

“Appellant submits that Trooper Kelems was qualified as an expert witness. It is not contended that he should have been permitted to testify to the ultimate fact of which way ei- ■ ther car was traveling but should have been permitted to testify to the fact that the Ford pushed the Oldsmobile backward thirty-four feet.”

Of course, this position is inconsistent with a claim of error on the part of the trial court. By acknowledging that the Trooper should not have been permitted to testify to the ultimate fact of which way the cars were traveling, the plaintiff acknowledges that the offer of proof contained inadmissible matter. In such event, there can be no error in refusal of the offer. “If several facts are included in the offer, some admissible and others inadmissible, then the whole (if properly objected to) is inadmissible; in other words, it is for the proponent to sever the good and the bad parts.” 1 Wigmore on Evidence (3rd ed.), Section 17, page 320. Eller v. Crowell, Mo.Sup., 238 S.W.2d 310, 313(3). Furthermore, testimony that the “Ford pushed the Oldsmobile backwards toward the east” would constitute an expression of opinion as to the direction in which the cars were traveling prior to the collision just as much as would a direct expression of an opinion directly on the subject. A direct opinion of this witness, based on the facts in evidence which he had for consideration, and considering the training and experience upon which he would have relied in expressing such opinion, would properly have been excluded. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242; Duncan v. Pinkston, Mo.Sup., 340 S.W.2d 753.

The plaintiff urges error in the submission of evidence on behalf of defendant to show that Milton Kjar usually spent his week-ends at the farm of his mother near Wright City, that he left his brother’s house Friday evening and that he paid his union dues in St. Louis that evening. The contention is that this evidence was too remote and violated the “rule against piling an inference on an inference.” The existence of the rule invoked by appellant is doubtful. 1 Wigmore on Evidence (3rd ed.), Section 41, page 435; Braun v. Roux Distributing Co., Inc., Mo.Sup., 312 S.W. 2d 758. Essentially, the question is whether or not the evidence offered is “too remote or uncertain or lacking sufficient probative force to establish or prove the ultimate fact at issue.” Van Brock v. First National Bank in St. Louis, 349 Mo. 425, 161 S.W.2d 258, 261.

As Wigmore states (1 Wigmore on Evidence (3rd ed.), Section 28, pages 408-409):

“ * * * (T)he question with which the law of Evidence in the strict sense has to do (that is, the rules regulating the production of evidence by opposing parties) is one of Admissibility, not of Demonstration or Proof * * *,— whether a particular fact is fit to be considered, and not whether it suffices for a demonstration.
“For example, the existence of a habit of doing a particular act under certain circumstances points forward to a doing of the act under those circumstances on a particular occasion. This is not a demonstration that the act was done, for the influence of the habit may have been counteracted by other considerations; there is not an invariable sequence. The jury may ultimately decide that the habit, with all the other circumstances, is not adequate to prove the doing; though the judge may at the outset have ruled that the course of conduct was at best sufficiently regular to have some value as an indication. The latter question is one of Admissibility, and under our system is a preliminary one for the judge only. The former question is one of completeness of proof; it is the final one, and is for the jury.”

In view of the absence of any direct evidence as to the direction of travel by either party to the collision, we are of the opinion that the evidence to which appellant objects did have probative value on the issue of the direction of Milton Kjar’s travel and afforded a reasonable basis for resolving the disputed factual issue in this case.

Plaintiff includes under the same objection the testimony of the filling station attendant, Bierer. However, in her motion for new trial, her objection relative to Bierer’s testimony is to “statements and conversation of unknown persons.” In her brief, she objects to the entire testimony of Bierer, with only passing reference to conversations. A claim of error here is limited to that advanced in the motion for new trial and we do not consider the different ground of objection urged on this appeal.

Plaintiff’s next objection is to the “admission of testimony that the speedometer of the Oldsmobile registered 80 miles per hour for the reason that there was no evidence that the speedometer in fact indicated the speed at or immediately preceding the collision, and was therefore irrelevant, immaterial, incompetent and permitted presumption of a condition to run backwards.” Norman Kjar testified that he examined the Oldsmobile at the Swantner garage on Saturday morning and that the speedometer of the vehicle indicated a speed of 80 miles per hour. A photograph of the speedometer so indicating was introduced in evidence. In our opinion, the fact that the speedometer had stopped at this speed would be some evidence of the rate of travel of the Lott car at the time of the accident. Albrecht v. Safeway Stores, Inc., 159 Or. 331, 80 P.2d 62; Hoffman v. Atlantic Greyhound Lines, D.C., 25 F.Supp. 739; Hastings v. Serleto, 61 Cal.App.2d 672, 143 P.2d 956. Evidence that the vehicle was traveling at a high rate of speed would be relevant and material as tending to explain the location of the car following the collision with relation to the claimed direction of travel prior thereto. The speedometer recording was a matter for the jury to consider with the other evidence relative to the condition of the vehicle following the collision. In this connection, we note that plaintiff’s objection is not based upon the fact that the observation of the speedometer was made the following morning rather than at the scene of the collision. An objection on such basis might have involved additional considerations.

Plaintiff’s next assignment of error relates to rulings of the court in overruling her objection to testimony relative to the age, occupation and marital status of Milton Kjar. The evidence objected to showed that he was 26, an electrician and unmarried. Appellant objects to the relevancy and materiality of such evidence and asserts that its only purpose was to elicit sympathy from the jury on behalf of the defendant and against the plaintiff. Just how any of the information elicited could have the effect which appellant attributes to it does not appear. In the circumstances of this case, these matters would have some bearing on the explanation of Milton’s presence at the scene of the collision and the direction of his travel and could not have been merely an appeal for sympathy. Smith v. Wabash R. Co., Mo.Sup., 338 S.W.2d 16, 18-19(3, 4). Likewise, we perceive no prejudice from testimony that defendant Norman Kjar was married.

As for the same objection with respect to the mother’s testimony concerning the length of her residence on the farm north of Wright City, and Milton’s age and employment, plaintiff does not point out how this testimony could have had any appeal on the basis of sympathy. She objects specifically to Mrs. Kjar’s testimony that the last time she saw Milton was when he left the farm to return to St. Louis the Sunday prior to the accident. At the trial, plaintiff’s counsel noted that Mrs. Kjar was on the verge of tears when she gave such testimony. However, the testimony did bear on the defendant’s position that Milton was on his way to Wright City at the time of the accident. We find no error in its admission.

Plaintiff’s final assignment of error relates to the giving by the trial court of Instruction No. 4, offered by the defendant. That instruction read as follows :

“The Court instructs you that if you find and believe from the evidence that on October IS,' 1960, Milton G. Kjar was operating his automobile west-wardly in the westbound lane of United States Highway 40 en route to his home in Wright City, Missouri, and if you further believe and find that Clyde Lott was operating his automobile east-wardly in the west-bound portion of the highway, then you are instructed that your verdict must be in favor of the defendant.”

Plaintiff objects to this instruction on the grounds that it “is not supported by the evidence; submits a finding for defendant through the process of building an inference on an inference; fails to hypothesize facts upon which a finding can be based as to the direction of travel of either automobile; permits a recovery for defendant if the jury believes at any time on October IS, 1960, Milton Kjar was operating his 'automobile westwardly in the westbound lane of U. S. 40 to his home in Wright City;” that, taken with Instruction No. 3, offered by the defendant and given by the court, it amounted to a second instruction on the same theory, and “gives undue prominence to defendant.”

As for the contention that the giving of the instruction was not supported by the evidence, we are of the opinion that the defendant’s evidence, together with inferences favorable to defendant’s position which might be drawn from plaintiff’s evidence, did warrant submission of the affirmative issue of Lott’s being the driver operating in the wrong direction at the time of the collision. We will not again detail such evidence. However, as set out above, we feel that it does support the giving of Instruction No. 4. What we have said previously about the admissibility of the evidence of defendant disposes of the complaint of “piling an inference on an inference.” Plaintiff does not inform us just what facts she would have the instruction hypothesize insofar as direction of travel is concerned. Just as with plaintiff’s verdict-directing instruction, the direction of travel, by and of itself, was the ultimate ' fact at issue. Its determination did not require the hypothesizing of other eviden-tiary facts from which such ultimate fact could be reached.

. Unquestionably, Instruction No. 4 would have been in better form had it specifically been limited to the time and place of the accident in question. However, in this case, we think it quite obvious that jurors of ordinary intelligence would not have had any doubt that the instruction did so apply. The whole lawsuit was pointed to that particular occurrence. Any reasonable application of the instruction would necessarily, under the facts of this case, hav.e limited it to the time of the collision. McVey v. St. Louis Public Service Co., Mo.Sup., 336 S.W.2d 524, 527(4).

As for the charge of repetitiousness, “mere repetition in instructions is ordinarily within the discretion of the trial court and, except in unusual cases or where so considered by the trial court, such repetitions do not constitute prejudicial error.” Thayer v. Sommer, Mo.Sup., 356 S.W.2d 72, 78(8); Hanff v. St. Louis Public Service Co., Mo.Sup., 355 S.W.2d 922, 927 (7, 8). We find nothing unusual in this case such as would make repetitious instructions based on defendant’s theory that defendant’s deceased was not driving the wrong way at the time of the accident prejudicial. We do not agree, as appellant contends, that such instructions “gave undue prominence to defendant.”

We find no error in any of the respects charged. Therefore, the judgment should be affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges concur, including STORCKMAN, J., sitting for DALTON, J-


author: HOUSER, Commissioner.

text:
    Loran CARTER, Appellant, v. Douglas A. RIES, Respondent.
    No. 49732.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.

      ■ Forrest Boecker, St. Louis, for appellant.
    Norris H. Allen, William B. Anderson, Anderson, Gilbert, Wolfort, Allen & Bier-man, St. Louis, for respondent.
   HOUSER, Commissioner.

Action for $50,000 damages for personal injuries sustained by Loran Carter at the premises of Wagner Electric Corporation when an electric warehouse truck operated by plaintiff’s fellow employee Thebeau ran into a ladder on which plaintiff was working, throwing him to the floor. Defendant was the company physician. Thebeau, who suffered a broken ankle, was treated by defendant, and after several weeks was authorized by defendant to return to work. In this action plaintiff claimed that he was injured as a direct result of defendant’s negligence in authorizing Thebeau’s return to work before Thebeau had fully recovered from the injury and while he was still unable to operate the brake pedal of the vehicle. A trial jury returned a verdict for defendant, and plaintiff appealed.

Plaintiff’s petition alleged the breach of a duty owed by defendant to plaintiff as a doctor of medicine, in the following language: “It was defendant’s duty, as a doctor of medicine to exercise ordinary care at all times to exercise the knowledge and skill usual in that profession in said city in the examination and treatment of patients. It was defendant’s duty as medical officer of Wagner Electric Company to exercise ordinary care at all times to examine and treat as a doctor of medicine, employees of said company who were injured in their employment, and to determine from the standpoint of the examining and treating doctor, the fitness to return to employment of employes of said company injured in their employment, having in mind their own safety and that of their fellow employes.” After alleging that defendant examined and treated Thebeau for injury to his ankle and that defendant authorized and directed Thebeau to return to work, plaintiff alleged that plaintiff was injured due to the fact that Thebeau was suffering from the effects of the broken ankle and had not recovered the full use. and strength of the ankle; that plaintiff’s injury was the direct and proximate result of defendant’s carelessness and negligence “in failing to exercise ordinary care to determine Thebeau’s condition with respect to his ability to perform work to which he was assigned, before directing and authorizing him to return to work as aforesaid.” Plaintiff’s verdict-directing instruction submitted negligence in that defendant, after examining and treating Thebeau for broken ankle bones, being under the duty to determine the physical ability of employees to perform the duties of their employment, negligently gave Thebeau a report to go back to work which work defendant knew or in the exercise of ordinary care could have known would be driving a truck, Thebeau’s regular occupation, and thereby caused and permitted Thebeau to undertake employment which defendant knew or could have known Thebeau could not safely perform because of inability to operate the brake pedal due to pain and weakness in his ankle.

On this appeal plaintiff raises four procedural points, all based on claimed errors in instructions given at defendant’s request. We do not reach these procedural questions because, considering the facts in the light most favorable to plaintiff, he did not make a submissible case.

Thebeau, before his injury, operated an electric warehouse “pool” truck, his duties requiring considerable “getting on and off the truck.” After defendant removed the cast from Thebeau’s ankle sometime in August following the injury earlier in the year defendant said to Thebeau that he thought exercise would help his foot, and expressed the opinion to Thebeau that being on a truck and working the brake pedal would help his foot. A safety and hospital “memo,” signed by defendant, dated August 31, 1959, directed to the personnel director, reached, the safety supervisor. It stated the history of the injury, gave the diagnosis trimalleolar fracture and dislocation of right ankle, and released The-beau “for light work that requires no extensive walking or standing.” It was the function of the placement department to determine the meaning of the term “light work,” and the decision as to what work Thebeau should he assigned to do was made by the personnel department, not by defendant. The safety supervisor asked Thebeau if he could drive a truck and The-heau answered that he did not know. The-heau did not tell his foreman what the defendant told Thebeau, but his foreman and the safety supervisor talked about the type of work Thebeau should do. The safety supervisor made a notation on the memo “Heitman [Thebeau’s foreman] to arrange light work.” The personnel department decided, in accordance with union rules “and supervision,” to place Thebeau-at work on a fork lift truck which is similar to the truck he formerly operated. In operating such a truck the driver is not required to get on and off the machine as often as in the case of the regular truck operation. Normally in the operation of the fork lift truck an operator uses his right foot on the brake pedal. Upon assuming the new duties Thebau did not use his right foot to operate the brake pedal because it was “too sore” — he could not do it. Instead, he favored his right foot by crossing over and using his left foot to activate the brake pedal. Thebeau could not handle the truck, and so stated in a conversation with plaintiff. Plaintiff himself, observing Thebeau’s operation of the truck, considered Thebeau unsafe. Nevertheless The-heau continued to operate the truck in this manner on the working days between August 31 and September 8. On the latter date Thebeau, while pulling in to put his electric truck “on charge,” saw that he was going to hit the ladder on which plaintiff was working, and got excited. He hit the brake with his left toe instead of using his right foot. It bent over and his foot slipped off, as a result of which the truck struck the ladder. He tried to but could not stop the truck by the use of his right foot because it hurt him “too had.”

Defendant denied that he knew what kind of work Thebeau had been doing prior to his injury or that he told Thebeau to go hack to work on a truck or that he told Thebeau that operating a brake pedal would be good for his foot. For the purpose of this decision, however, we disregard defendant’s testimony and assume the truth of Thebeau’s testimony in this respect.

Considering the evidence in the light most favorable to him plaintiff failed to make a submissible case. There is a failure of proof in two vital respects.

Under plaintiff’s theory of the case the burden was on plaintiff to prove that defendant did not exercise the knowledge, skill and learning of an industrial doctor in determining, the fitness of Thebeau to return to work and that defendant knew or could have known that Thebeau was not physically fit to return to work on a truck requiring him to operate a footbrake pedal because of pain and weakness in his ankle. Defendant cannot be held liable for the consequences of all mistakes in diagnosing and determining whether an injured employee may safely return to work. The mere fact that he may have been wrong in his conclusion in this case is not sufficient to convict him of negligence. Brown v. Scullin Steel Co., 364 Mo. 225, 260 S.W.2d 513, 518 [3]. Whether Thebeau, with safety to himself and others, could undertake duties involving such physical exercise, considering the condition of his ankle and the extent of his recovery, was a matter of medical judgment. The standards by which defendant’s determination is to be judged are the same by which a defendant in a medical malpractice case is to be judged, Brown v. Scullin Steel Co., supra, 260 S.W.2d, 1. c. 518 [2], namely, by the requirement that he use and exercise that degree of care and skill used and exercised by the ordinarily skillful, careful and prudent physician acting under the same or similar circumstances. Williams v. Chamberlain, Mo.Sup., 316 S.W.2d 505, 510. As in the majority of cases, id., 316 S.W.2d, 1. c. 511, so under the facts in this case, a submissible case may only be made by expert medical testimony, in order that the jury may know and not guess whether defendant’s judgment did or did not conform to the required standards. There is a total absence of expert testimony that defendant did not exercise the required degree of care and skill, and that defendant’s opinion that Thebeau could be released for truck driving, with safety to himself and others, considering the condition of his ankle and the extent of his recovery, was contrary to recognized medical theory and practice. As stated in the case of Brown v. Scullin Steel Company, the rule of Bailey v. St. Louis-San Francisco Ry. Co., Mo.App., 296 S.W. 477, 479 [2], that “the law will not hold a physician guilty of negligence as long as he uses his best judgment, even though his judgment may prove erroneous in a given case, unless it be shown that the course pursued was clearly against the coursé recognized as correct by the profession generally” is applicable where the alleged negligence is the giving of an opinion that an employee can engage in certain work. In the absence of evidence from which the jury could have found that defendant’s opinion was contrary to recognized medical theory and practice, there was a failure of proof. Brown v. Scullin Steel Co., supra.

In the second place, plaintiff failed to sustain the burden of proving that defendant caused Thebeau to undertake the employment in question.' It is elementary that “plaintiff’s burden embraces not only proof of negligence but proof also that the negligent act or acts caused the injury.” Williams v. Chamberlain, supra, 316 S.W.2d, 1. c. 511 [4], There is no evidence that defendant’s opinion that Thebeau could go back to work on the truck and that exercising his foot by using the brake pedal would be beneficial was ever communicated to the company employees responsible for choosing a job for Thebeau on his return to work, or that defendant’s act or advice caused >r resulted in his assignment to the truck driving job. Appellant mistakenly argues that on reporting for work Thebeau reported to his foreman and the safety supervisor what defendant had recommended about truck driving, but the transcript shows the contrary: that Thebeau did not tell his superiors what defendant had said in this respect. Defendant, who was merely a company physician, was not in a position to control, and did not have control over, the placement of Thebeau in a particular job upon return to work. He did not in fact make the decision that sent Thebeau back to work on the truck. Under plaintiff’s own evidence Thebeau’s assignment to the truck driving job was made as the direct result of an independent decision and judgment made by the safety supervisor and foreman Heitman, based upon a discussion between those two and Thebeau and a memo signed by defendant releasing The-beau for “light work” without extensive walking or standing. When Thebeau was questioned by the safety supervisor and foreman he told them he did not know whether he could drive a truck or not. He did not communicate to them the fact that in the opinion of the defendant he could assume the truck driving job and that defendant considered that the exercise in operating the brake pedal, would be good for his ankle. It is obvious that Thebeau did not rely upon defendant’s “superior knowledge” and suggestion, or “follow orders” of the defendant, as appellant suggests. While it is true that defendant released Thebeau for “light work,” there was no evidence from which the jury could find that, and there was no submission to the jury of the question whether, a release for “light work” is the equivalent of or synonymous with a release for work of driving a fork lift truck eight hours a day. Causation between the medical opinion and the placement of The-beau at work on the truck was not established. The mere fact that this industrial doctor made a determination in his mind that the employee was physically able to safely return to a truck driving job and that the judgment at which he arrived may have been erroneous, is insufficient as a basis upon which to hold him liable for the consequences where there is a failure of proof of proximate causation between the expression of the medical opinion and the assignment of the employee to the job which proved to be beyond his capacity and unsafe. In the absence of proof that the defendant doctor caused the recuperating employee to undertake the unsafe employment, plaintiff did not make a submissible case.

The judgment was for the right party, and is affirmed.

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.


author: DALTON, Judge.

text:
    STATE of Missouri, Respondent, v. Virgil A. POELKER, Appellant.
    No. 49661.
    Supreme Court of Missouri, En Banc.
    May 11, 1964.
    Morris A. Shenker, Hyman G. Stein, Bernard J. Mellman, Charles A. Seigel, St. Louis, for appellant.

      Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Judge.

On September IS, 1961, an indictment was filed in the Circuit Court of St. Louis County, wherein it was charged that: “Virgil A. Poelker, a resident of the County of St. Louis * * * on or about the 15th day of April, A.D. nineteen hundred and sixty one at said County of St. Louis, * * * did wilfully and unlawfully, with intent to evade income tax, make and file with the Director of Revenue of the State of Missouri, a false income tax return for the period from January 1, 1960 to December 31, 1960 inclusive, the said Virgil A. Poelker having made a false return by ‘reporting his gross taxable income at * * * $15,000, when in truth and fact, * * * his gross taxable income was * * * $18,000, * * *.’ ”

On trial to a jury, defendant was found guilty of the offense charged in the indictment and the court in its discretion, as provided by Section 143.330(4) RSMo 1959, V.A.M.S., fixed defendant’s punishment at a fine of $1,000. Defendant has appealed from the judgment entered against him.

The offense of which defendant was found guilty and sentenced is a misdemeanor, but inasmuch as the defendant on this appeal claims that his constitutional rights have been infringed and due process violated, the jurisdiction of this appeal is in this Court. State v. Civella, Mo.Sup., 368 S.W.2d 444. Jurisdiction exists whether we find it necessary to rule the mentioned issues or not.

During the tax year 1960 the defendant was a Circuit Judge in St. Louis County and resided at 12152 Olive Street Road, Creve Coeur, which is in St. Louis County. He testified at the trial that he filled out and executed the 1960 income tax return but he did not state where it was prepared and signed. His wife testified that the 1960 income tax return was in her husland’s handwriting. She stated that she assembled the papers for the return, but was out of town when it was prepared. Her name on the return was signed by her husband.

In view of the issues presented on this appeal and the conclusions we have reached it will not be necessary to review the evidence further, except to say that the State offered no testimony as to where defendant’s 1960 income tax return was either prepared or mailed. The return was stamped “received” in Jefferson City by Clerk No. 20 on April 18, 1961. Since there was no remittance accompanying the return, a notice of the tax due (which is now attached to the official return) was mailed to “Virgil A. and Christine G. Poelker” at 12152 Olive Street Road, Creve Coeur, on May 17, 1961, and on May 25, 1961, Mrs. Poelker issued a check on the St. Johns Community Bank in the sum of $91.18 and mailed it, together with the notice, to the Department of Revenue in Jefferson City, and the return was “processed.”

In view of the facts testified to by the defendant himself and not contradicted in any manner by the State’s evidence, we shall first consider two of appellant’s assignments of error which have to do with venue, one that the verdict-directing instruction is prejudicially erroneous in not requiring the jury to find all the essential elements of the offense charged, among other respects “in failing to require the jury to find that the alleged offense occurred in the County of St. Louis, Missouri.” The other claim of error is based on the Court’s refusal to sustain motions to dismiss for the reasons that “there was no evidence of any kind showing that the alleged offense was committed in the County of St. Louis, State of Missouri, that the Circuit Court of St. Louis County therefore lacked jurisdiction and venue over this cause, and that the conviction of the defendant was therefore violative of the defendant’s constitutional right to be tried in the County where the offense was committed, under Article I, Section 18(a) of the Missouri Constitution and further violative of defendant’s right to due process of law * *

Appellant insists that, while the State charged that the defendant, with the intent to evade income taxes, made and filed a false return with the Director of Revenue at the County of St. Louis, State of Missouri, no such evidence was presented at the trial, therefore, the defendant was not afforded his constitutional right of a public trial by an impartial jury “of the county,” and that prosecution and conviction of the defendant could not legally be had in a county where there was no evidence to show the offense, if any, had been committed.

At the time in question the Department of Revenue for the State of Missouri maintained a branch office in Maplewood in St. Louis County; but defendant’s 1960 Missouri Income Tax Return was not filed there. Defendant testified: “Well, sir the return for 1959 was filed on the last date of the year and I know that usually when they were filed on the last date for the return we drove down and we put our returns in the mail at the main post office in the City of St. Louis. * * * For the year 1960, that was also on 4/15/61 that return was mailed at the main post office in the City of St. Louis.”

. As indicated above, the indictment expressly charged the commission of the alleged offense in the County of St. Louis. The State, however, submitted the cause to the jury without requiring the jury, under Instruction No. 1 or under any other instruction, to find that the offense charged was in fact committed in St. Louis County.

Instruction No. 1 submitted a finding of guilty, if the jury found “ * * * beyond a reasonable doubt, that the defendant, Virgil A. Poelker, on or about the 15th day of April, 1961, filed a joint income tax return with the Director of Revenue, State of Missouri, and that income reported in said return was shown as $15,000.00 for the period of January 1, 1960, through December 31, 1960, and that said return was false, in that it understated income for said period by $3,500.00 or some portion thereof, and that the defendant filed said return wilfully, knowing it to be false * *

Because of the State’s position, as hereinafter set out, we find it necessary to review certain statutory provisions.

Section 143.010 RSMo 1959, as amended Laws 1959, H.B.No. 395, § 1, V.A.M.S., in part expressly provides: “Every single individual, a citizen or resident of this state having a gross income in excess of one thousand two hundred dollars, and every married couple, citizens or residents of this state having a gross income in excess of two thousand four hundred dollars, shall file an income tax return or returns, and pay a tax upon net income received, from all sources during the preceding year in excess of the exemptions herein provided. * * * >f

Section 143.230 RSMo 1959, V.A.M.S. provides: “Everyone who is subject to a tax based on income shall on the second day of January of each year or as soon thereafter as practicable, apply to the director of revenue for a proper blank on which to make a return of income for the preceding year. The return shall be filed with the director of revenue on or before the fifteenth day of April next following, except in cases * * (The exceptions do not apply in this case.)

Assuming but not deciding that the above statutes refer to and require the filing of true and correct income tax returns, nevertheless it is clear that the indictment in question was not intended to be based upon a violation of either of these statutes.

Section 143.330(4) RSMo 1959, V.A.M.S., provided: “Any individual * * * required under this chapter to pay a tax, make a return * * * who willfully fails to pay such tax, make such return * * * or attempts in any manner to defeat or evade the tax, shall, in addition to all other penalties provided in this section, be guilty of a misdemeanor and, upon conviction thereof, he. fined not more than one thour Sand dollars,' or imprison,ed for not more than one.'year or both, at thé discretion of the court, together with the' costs of prosecution.” (Italics ours.) The section was amended -by Senate Bill 128, approved July 7, 1961, Laws 1961, page 616, and the words “or willfully makes a false return,” are now included.

Article I,- Section 1.8(a) of the. Constitution. of Missouri, • 1945, V.A.M.S., relied upon by appellant, in part, provides: “That in criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county.”

Section 541.030 RSMo 1959, V.A.M.S. provides that: “Offenses committed against the laws of this state shall be punished in the county in which the offense is committed, except as may be otherwise provided by law.” 0‘f course, defendant’s constitutional and statutory right to a trial by a jury in the county where the alleged offense occurred was a personal privilege which could be waived, but -no waiver is- in issue here. See State v. Page, Mo.App., 186 S.W.2d 503,-5Ó7-.

" Section: 541.035 RSMo 1959,'V.A.M.S. provides that: “Offenses for failure or refusal to comply with any law requiring a report to be filed of made in or to the staté of Missouri, or any department or officer thereof, shall be held to be committed in the county of the residence of the person failing or refusing to file or make such report, except where the person shall reside without the state of Missouri, in which event the unlawful act- is deemed to have been committed in the county wherein the report is required by law to be filed.” (Italics ours.)

As indicated, appellant contends that the record is “totally void of any evidence that the crime alleged to have been committed by the defendant was committed in St. Louis County, Missouri as charged in the indictment.” Appellant concedes “that ven-' ue may be established as any other fact * * ■ * and it is considered established if the jury could, have reasonably, found from the facts arid circumstances in evidence that the crimé occurred in the county in which the trial took place.” Appellant further concedes that if there had been “shown, by direct or' circumstantial evidence, that the defendant filed a false income tax return in the County of.St. Louis or if facts were adduced from which , the jury could reasonably infer such fact, venue perhaps would have been established, even though there was no express statement by any witness that the same occurred in St. Louis County,” citing State v. Hartwell, Mo.Sup., 293 S.W.2d 313, 318.

When the issue of venue was being considered in the trial court after the defendant had filed a motion to dismiss at the close of the State’s case, counsel for the State stated: “It is the State’s opinion, coinciding with what I understand, not with any cases, -but with the Circuit Court’s rulings, thus far in the State of Missouri, venue is properly in the taxpayer’s County of residence for wilfull filing of false return.”

The cause was apparently ■ submitted to the jury- on that basis, since the instructions' did not. require a finding that the offense was committed in. St. Louis County, but the evidence showed that defendant resided inSt. Louis County, and such fact appeared both by defendant’s 1960 Missouri Income Tax Return and by-the‘testimony of defendant himself. ■ ■

This Court in State v. Civella, supra, 368 S.W.2d 444, 446, where defendant had been charged and convicted of the offense of “willfully failing to file an income tax return for the year 1957,” and an appeal had been taken to this Court, said: “In this case appellant had the duty to file an income tax return with the director of revenue. He was afforded the right to comply with that duty in several places, including Jackson County, the county of his residence. His wiliful* failure to comply with that duty constituted an offense at 'the place or places where he failed to comply,' one of 'which was.' Jackson County. Therefore, without' ■reliance upon Section 541.035 the indictment of appellant was properly found in Jackson County, and the trial was properly held there pursuant to the information substituted for the indictment. We need not now concern ourselves with the question of whether, by reason of Section 541.035, Jackson County would be the only place where the offense could be charged.”

Apparently, the State now seeks to consider the case as one charging a failure or refusal to file a true and correct 1960 income tax return and, in effect, seeks to rely on the Civella case when, in its printed brief in this Court, it makes the following argument: “Appellant, in the case at bar, had a duty to file a correct return at the main office of the Department of Revenue in Cole County or at one of the various branch offices. Failing in this duty he was subject to prosecution in any of the counties where he should have filed a correct return. The state chose to prosecute in St. Louis County and since this is one of the counties where appellant was under an obligation to file then they established a prima facie showing of venue. The record shows that a branch office was located in St. Louis County at the time the offense was committed. This was perhaps circumstantial evidence to show that the crime was committed there but this Court has on many occasions held that the degree of proof needed to sustain a showing of venue can be merely circumstance [sic] which tends to the satisfactory conclusion that the crime was committed in the county where prosecution was held,” citing State v. Haun, Mo. Sup., 324 S.W.2d 679, 682; State v. Heissler, Mo.Sup., 324 S.W.2d 714, 716. The State also contends that: “Since appellant took no action to transfer this case to the county in which he believed the crime was committed,' he has in effect waived his right to be tried in the county where the offense may have taken place,” citing State v. Lynn, 169 Mo. 664, 70 S.W. 127, 129; State v. Harmon, Mo.Sup., 243 S.W.2d 326, 328, and Section 541.120 RSMo 1959, V.A. M.S.

No facts or circumstances constituting a waiver of proper venue appear from this record, nor do we find the facts and ■circumstances shown by the record to be sufficient to support an inference that the return was prepared in St. Louis County, and even if prepared there that it was filed with the Director of Revenue in that county. Nor does Section 541.120 RSMo 1959, V.A.M.S. apply here, since the court made no orders in reliance thereon.

We find no statute fixing venue for the prosecution of one charged with an offense under Section 143.330, supra, such as the one here where defendant is charged with wilfully and unlawfully, with intent to evade income tax, making and filing with the Director of Revenue of this State a false income tax return. Nor have the appellate courts of this State determined the matter. It would seem that venue in such a case is governed by Section 541.030, supra. The offense with which defendant was charged is clearly not one for failing or refusing to file an income tax return with the Director of Revenue, nor is venue governed by Section 541.035, supra. Nor does the State contend that there is any evidence in this record from which an inference could be drawn that the offense was committed in St. Louis County and, as stated, such an issue was not submitted to the jury. Nor does the State contend that the false return was prepared by defendant in St. Louis County. No facts or circumstances, other than the mere residence of defendant in St. Louis County, are pointed out to us as being sufficient from which such an inference could be drawn. We think that proof.of mere residence of the defendant in the county where the charge is filed is wholly insufficient for venue purposes. See State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245, 254 [20-23]; and State v. Hartwell, supra, 293 S.W.2d 313, 318, where the facts and circumstances shown in evidence were held sufficient to show proper venue. As stated, the évidence here fails to show that the false return was filed at the branch office of the Department of Revenue in St. Louis County. Apparently, the 1960 income tax return was sent directly from the City of St. Louis to Jefferson City, and there is no evidence that it was filed with the Director of Revenue of the State of Missouri at any other place than Cole County.

The crime charged in this case against defendant is quite different from the crime of forgery and it cannot he handled by the Court in a similar manner. It was pointed out in the case of State v. Hawkins, Mo. Sup., 361 S.W.2d 775, 778 [3], that “Due to the difficulty of proving the place of a forgery, the courts of this state have, in some instances, indulged in prima facie presumptions in order that a case may be made in the absence of evidence contradictory to the prima facie presumption so indulged. In these cases, it has been stated that possession of a forged instrument, or, at all events, the uttering of it in the county where the indictment or information is found is cogent evidence to be addressed to the jury that the forgery was committed by the defendant in that county. State v. Yerger, 86 Mo. 33, 39; State v. Willard, 228 Mo. 328, 128 S.W. 749, 751-752; State v. Douglas; 312 Mo. 373, 278 S.W. 1016, 1022.” Even then the prima facie presumption must be submitted to a jury for a finding of proper venue. See State v. Willard, supra, 228 Mo. 328, 128 S.W. 749, 751. But no such rule can apply here where the offense is not complete until the false income tax return is filed with the Director of Revenue with intent to evade payment of the proper tax.

Where the evidence is insufficient to support a finding that venue of the charge filed against the defendant, and of which he was convicted, was properly laid, the judgment of conviction cannot stand. See State v. Hawkins, supra, 361 S.W.2d 775, 778 [1],

In order to sustain the charge made against this defendant in the indictment, as hereinbefore set out, it was necessary for the State to prove that the defendant wil-fully and unlawfully, with intent to evade income tax, prepared and signed a false income tax return for the period of time mentioned, and, as charged, filed the said income tax return with the Director of Revenue of the State of Missouri in the said County of St. Louis. The state failed to prove the venue of the offense charged.

The judgment is reversed and the cause remanded.

■ STORCKMAN, HYDE and HOLMAN, JJ., concur.

EAGER, C. J., and LEEDY, J., concur in result.