author: BATEMAN, Justice.

text:
    PAN AMERICAN SIGN COMPANY, Appellant, v. J. B. HOTEL COMPANY et al., Appellees.
    No. 16723.
    Court of Civil Appeals of Texas. Dallas.
    May 13, 1966.

      Richard S. Woods, Dallas, for appellant.
    John Peace, San Antonio, for appellees.
   BATEMAN, Justice.

This appeal involves only the question of the proper venue of the case. The appellant Pan American Sign Company, claiming to hold an unsatisfied judgment against the appellee J. B. Hotel Company, sued that company and appellee E. J. Burke alleging that the former transferred its assets to the latter in fraud of creditors, that the transfer was void under Vernon’s Ann.Civ.St., Art. 3997, and prayed that it be so adjudicated and set aside, for the appointment of a receiver and for general and special relief. Both defendants filed pleas of privilege, J. B. Hotel Company praying for transfer of the cause to Bexar County, where it resided, and Burke praying that it be transferred to Webb County, where he resided.

Appellant controverted the Hotel Company’s plea on the ground that the suit was maintainable in Dallas County against the other defendant, E. J. Burke, under subdivision 3 of Art. 1995, V.A.C.S, and was therefore maintainable there against the Hotel Company, a necessary party, under subdivision 29a of Art. 1995.

Subdivision 3 provides that if a defendant resides without the State or if his residence is unknown he may be sued in the county in which the plaintiff resides. Subdivision 29a provides that when there are two or more defendants, and the suit is lawfully maintainable in the county of suit as to any of such defendants, it may be maintained in such county against any and all necessary parties thereto.

After due notice and hearing, the court sustained both pleas of privilege. By its first two points of error on appeal the appellant asserts that there was no evidence to support the sustaining of either plea of privilege, as the applicability of exceptions 3 and 29a was established by the uncontro-verted evidence.

The only evidence offered by appellant to prove that Burke’s residence was unknown was the testimony of its attorney, Mr. Richard S. Woods, who said that he tried to determine Burke’s residence by examining the telephone directories for San Antonio and Laredo, Texas, but found only E. J. Burke, Jr. listed in San Antonio; that John E. Fitzgibbon, an attorney in Laredo, Webb County, Texas, advised him that Burke “was out of the State.” Citation in this cause was sent to the Sheriff of Bexar County for service on Burke, but was returned unserved. A citation was served on Elmore Borchers, a Webb County Attorney described by the Sheriff of Webb County as the attorney representing E. J. Burke, after which answers were filed.

On cross-examination Mr. Woods testified that while in Laredo before January 31, 1964 in connection with another cause he attempted unsuccessfully to locate Burke’s address by visiting with the deputy sheriff who serves citations. He made no attempt to locate Burke anywhere else besides San Antonio at that time and made no trips to San Antonio to ascertain whether he could be located at the residence of his son, or that of his daughter, or anybody who might assist him in locating Burke.

Appellant proved that its residence was in Dallas County, Texas, and also introduced in evidence a letter dated March 20-, 1964 from the Sheriff of Webb County, Texas, to appellant’s attorney, as follows:

“We do not know when E. J. Burke became a citizen in Oklahoma. It seems that he travels extensively. However, his son, E. J. Burke, Jr. does live in San Antonio. Whenever our office can assist you in any way just call on us.”

There was other testimony, introduced by appellees, to the effect that in the years 1961, 1962 and 1963, and on January 31, 1964 (when this suit was filed) Burke lived at the Sands Motel, in Laredo, Texas, although on that date he was recuperating from a serious operation he had in Houston, Texas. His tax returns are prepared in Laredo, where he is well known. He had a Mercury station wagon registered in Webb County, Texas, as well as other interests in Laredo and in Nuevo Laredo, Mexico. He had a post office box in Laredo.

The burden of proof was on appellant to show by a preponderance of the evidence that Burke’s residence was unknown to it at the time this suit was filed. This was a venue fact which it had to prove; a prima facie case was not sufficient. Compton v. Elliott, Tex.Com.App., 88 S.W.2d 91; Couch v. Schley, Tex.Civ.App., 255 S.W.2d 885, no wr. hist. To carry this burden appellant relied wholly on the testimony of its attorney, who said that he was the only person with appellant who was “concerned with the whereabouts of Mr. Burke.” He may have intended that statement to mean that none of those in charge of appellant’s business, other than himself, knew where Burke’s residence was, and that he was the only one who made any effort to ascertain it; but the trial court could have interpreted it to mean that he was the only one connected with the company who cared where it was; that others in the company may have known where it was but were not “concerned” about it. Moreover, one’s place of residence may be well known but his present “whereabouts” quite unknown.

The trial court filed no findings of fact or conclusions of law. The state of the evidence was such as to warrant the implied finding that appellant failed to carry its burden of proving that Burke’s residence was unknown to it at the time of filing the suit. That being true, we have no authority to disturb the same or the order based thereon. Ex parte Head, Tex.Civ.App., 102 S.W.2d 1101, no wr. hist.

It is a well established rule that a person’s right to be sued in the county of his residence is a valuable right, of which he should not be deprived unless it is shown by a preponderance of the evidence that the case comes under some “exception” to the rule.

“Another rule of law long recognized in this State is that where a case is tried to the court, as here, and no findings of fact or conclusions of law are filed, the judgment will be affirmed if there is any ground to support it, upon any theory in the case; every issue in the case must be resolved in support of the judgment. So, too, where the evidence is uncontro-verted, and where its weight and credibility on the issues involved raise a reasonable doubt in the mind of the judge, as the trier of facts, his judgment must be affirmed.” Gunstream v. Oil Well Remedial Service, Tex.Civ.App., 233 S.W.2d 897, no wr. hist. (Italics ours.)

Moreover, the trial court may have concluded that appellant failed to exercise the reasonable diligence to ascertain Burke’s residence, which the law requires. For appellant or its attorney merely to say they do not know where a defendant resides is insufficient. Villarreal v. Garcia, Tex.Civ.App., 294 S.W.2d 754, no wr. hist.

Moreover, the testimony of appellant’s attorney, though in most respects un-contradicted, was not necessarily binding on the trial court. Burke v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Tex.Civ.App., 346 S.W.2d 663, no wr. hist. The trial court could accept as true all that the witness said and still find that Burke’s residence was not shown by a preponderance of the evidence to be unknown to appellant’s management, or that appellant had not exercised sufficient diligence to ascertain the same.

It is argued that, even if the suit were maintainable in Dallas County against Burke under exception 3, the Hotel Company was not shown to be a necessary party to the suit against Burke. The Hotel Company admitted the transfer of the notes to Burke, but denied that it was fraudulent. The fraudulent nature of the transfer, within the meaning of Art. 3997, V.A.C.S., was an essential venue fact, but it was not shown. There was no evidence that appellant was a creditor of the Hotel Company, or of a lack of valuable consideration for the transfer, or of the Hotel Company’s insolvency at the time thereof. Therefore, so far as the Hotel Company was concerned, at least, an essential venue fact was not proved.

Moreover, it appears that the Hotel Company retained no interest in the notes it transferred to Burke. It was therefore not a necessary party to the suit. “And the fraudulent grantor is a proper but, it seems, not an indispensable party to the suit at least if he retains no interest in the property.” 20-A Tex.Jur., Fraudulent Conveyances, § 169, pp. 617-618. See also United States Gas & Oil Co. v. Duffy, Tex.Civ.App., 8 S.W.2d 278, no wr. hist.; Moreland v. Hawley Independent School District, 140 Tex. 391, 168 S.W.2d 660; Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 763-764; Keene v. Hale-Halsell Co., (C.A.-5), 118 F.2d 332; Birdwell v. Butler, 13 Tex. 338; and 26 Tex.Jur.2d, Fraudulent Conveyances, § 152, p. 444.

Appellant’s first two points of error are overruled.

Appellant in its third point of error says that it was error to sustain Burke’s plea of privilege on the basis of exception 14 to Art. 1995. Burke had alleged, in his plea of privilege, that the suit is maintainable only in Webb County, Texas, under subdivision 14, Art. 1995, as follows:

“Suits for the recovery of lands or damages thereto, or to remove incum-brances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

The property which appellant alleged had been fraudulently transferred to Burke by the Hotel Company consisted of two promissory notes alleged to be secured by the vendor’s lien and a deed of trust lien on a certain motor hotel in Webb County. This is obviously not a suit coming within the provisions of exception 14. Appellees do not even argue in their brief that it is. If the court sustained Burke’s plea on the theory that exception 14 was applicable, error was committed, but we find nothing in the record to indicate that this was the basis for the court’s action. The third point is therefore overruled.

Affirmed.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Nathan A. VALLEROY, Respondent, v. SOUTHERN RAILWAY COMPANY, a corporation, Appellant, and Terminal Railroad Association of St. Louis, Defendant.
    No. 51466.
    Supreme Court of Missouri, Division No. 2.
    May 9, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 3, 1966.

      Gray & Sommers, Charles E. Gray and Jack C. Terry, St. Louis, for plaintiff-respondent.
    George E. Lee and Doris J. Banta, St. Louis, Carter, Bull, Baer, Presberg, Lee & Stanard, St. Louis, Roberts, Gundlach, Lee & Stubbs, East St. Louis, Ill., of counsel, for defendant-appellant, Southern Ry. Co.
   STOCKARD, Commissioner.

Southern Railway Company, hereafter referred to as “Southern” has appealed from a judgment entered against it in the amount of $60,000 for personal injuries sustained by plaintiff as the result of a train collision.

Plaintiff’s petition was in two counts. The first purported to state a cause of action against Southern and against Terminal Railroad Association of St. Louis, hereafter referred to as “Terminal,” under the Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq. The second count, alleged in the alternative, purported to state a cause of action only against Southern based on common law negligence. At the close of plaintiff’s evidence the trial court directed a verdict for Terminal and for Southern on Count I. The case then proceeded to trial against Southern alone on Count II, and a mistrial was subsequently declared when the jury was unable to agree upon a verdict. Following plaintiff’s motion for a new trial as to Terminal and Southern on Count I, the trial court denied the motion as to Southern and sustained it as to Terminal. The trial in which the judgment was entered from which this appeal was taken was against Terminal on Count I under the Federal Employers’ Liability Act, and against Southern on Count II on common law negligence. The jury verdict was against plaintiff and in favor of Terminal on Count I, and in favor of plaintiff and against Southern on Count II in the amount of $85,000. The trial court thereafter sustained the motion of plaintiff for a new trial against Terminal, it overruled the motion of Southern for judgment notwithstanding the verdict, and it overruled Southern’s motion for new trial on condition that plaintiff enter a remittitur in the amount of $25,000, which was done. Plaintiffs cause of action against Terminal was subsequently dismissed without prejudice. It is from this judgment against Southern in the amount of $60,000 that this appeal is taken.

The accident in which plaintiff was injured occurred between 12:30 and 1:00 o’clock in the morning of April 9, 1963, in an area known as the 6th Street yard of Southern in East St. Louis, Illinois. During switching operations by a Southern crew a boxcar owned by Seaboard Air Lines was “kicked” onto track 3 so that when other switching work was completed the boxcar could be placed on a nearby track in a reversed position. Both the conductor and the brakeman of the Southern switching crew were aware of the fact that the boxcar had come to rest on track 3 in a position where it “fouled” or did not clear what was referred to as the running track. Plaintiff was employed by Terminal as a fireman-engineer, and reported for work on the night of April 8 with other members of his crew at the switching and classification yard of Terminal. The first and usual course of business for this switching crew was to take a “cut of cars” to the switching and classification yard of Southern. The line of track used for this operation was the running track. When Terminal engines were operating on this track in the Southern 6th Street yard they were governed by Southern’s operating rules which required that engines were to be operated at a speed which would permit stopping within one half of the distance of visibility. The Terminal engine, with plaintiff acting as fireman, was pulling twenty-two cars and a caboose. The headlight was lit and it threw a beam of light 600 feet ahead. As the engine approached the place of the accident, the running track made a slight “dog leg” curve to the right at a switch point, referred to as a “frog,” and then curved back to the left to a second “frog” 476 feet distant and which led into track 3 where the boxcar was standing. There was a dispute in the testimony as to when the engineer and plaintiff could and should have seen the boxcar fouling the running track. There was also a sharp dispute as to the speed at which the terminal engine with its twenty-two cars was being operated. In any event, the Terminal engine struck the boxcar and plaintiff was injured.

Southern’s first point on this appeal is that Count II of the petition failed to state a cause of action for common law negligence against it because plaintiff affirmatively pleaded facts showing that the cause of action, if any, arose in Illinois, but he did not allege that he was in the exercise of due care for his own safety at the time of the accident.

Civil Rule 55.23(b), V.A.M.R., provides that “In every action or proceeding wherein the pleading states that the law of another state is relied upon or contains allegations which show that the law of another state must be applied, the courts of this state shall take judicial notice of the public statutes and judicial decisions of said state. The court may inform itself of such laws in such manner as it may deem proper, and may call upon counsel to aid it in obtaining such information.” (Italics added.) The petition affirmatively alleged that the cause of action arose in the State of Illinois, and this fact was established by proof at the trial, and by reason of the provisions of the above quoted rule the substantive rights of the parties must be determined by the law of Illinois. Hall Motor Freight v. Montgomery, 357 Mo. 1188, 212 S.W.2d 748; Graham v. Illinois Terminal R. Co., Mo.App., 260 S.W.2d 846; Hughes Provision Co. v. La Mear Poultry & Egg Co., Mo.App., 242 S.W.2d 285. The trial court was and on appeal this court is required to take judicial notice of all statutes and judicial decisions of that state relevant to the issues presented.

In Redick v. M. B. Thomas Auto Sales, Inc., 364 Mo. 1174, 273 S.W.2d 228, this court reviewed Illinois cases and prior decisions of this court and held: “It is also clear that under the law of Illinois it was incumbent upon plaintiff to allege and prove that he was in the exercise of ordinary care for his own safety at the time of the accident.” In this case plaintiff did not so plead in his petition. Southern filed a motion to dismiss Count II on the ground that it “fails to state facts therein sufficient in law to entitle him to the relief prayed for therein and fails to state a cause of action against this defendant.” This motion was overruled. Whether or not the deficiency in the petition now asserted by Southern was expressly called to the attention of the trial court in oral argument on the motion is not revealed by the record. Southern’s answer to Count II consisted of certain admissions concerning plaintiff’s employment and the occurrence of the collision, and an allegation that plaintiff’s injuries, if any, “were directly and proximately caused and contributed to be caused by his own acts of negligence and carelessness in failing to exercise ordinary care for his own safety in that he failed to keep a careful lookout and watch ahead and laterally ahead for obstacles and obstructions situated on or near the track on which his engine was being operated and in failing to observe and comply with applicable yard rules.” No reply was filed, but by reason of Civil Rules 55.01 and 55.11, V.A.M.R., none was required to be filed to put in issue plaintiff’s contributory negligence.

Southern contends that a petition which states no cause of action presents a jurisdictional defect which may be raised at any stage of the case, and this ordinarily is true. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; Civil Rule 79.03, V.A.M.R. Plaintiff contends, on the other hand, that by reason of Southern’s answer and Civil Rules 55.01 and 55.11 the issue of his freedom from contributory negligence or exercise of due care was made an issue in the case, and that the omission in the petition was thereby cured. A similar situation developed in Bean v. Ross Manufacturing Company, Mo., 344 S.W.2d 18, but there a reply was actually filed. It was held that “the answer affirmatively put in issue the question of plaintiff’s due care, and it seems that under the law of both Missouri and Illinois, at least when the reply joins in the issue, this cures the omission of an element from the petition.” By operation of Civil Rule 55.11 the averments in the answer that plaintiff was contributorily negligent, that is, that he was not in the exercise of due care, were “taken as denied or avoided.” Therefore, under our procedural rules the issue of plaintiff’s contributory negligence was joined, whether or not a reply actually was filed. We conclude, as was done in the Bean case, that the omission of the essential element in the petition as to plaintiff’s exercise of due care was cured. However, it was further stated in the Bean case that even though the error of omission in the petition was cured, plaintiff still “had the burden of proving his freedom from contributory negligence, notwithstanding defendant’s affirmative plea.” This presents Southern’s second point in its brief; that the trial court erred in giving Instruction 5 over its objection by which the jury was told that “it does not devolve upon plaintiff to disprove said claim [of contributory negligence], but rather the law casts the burden of proof in reference to said claim upon defendant Southern Railway Co.”

In O’Leary v. Illinois Terminal Railroad Company, Mo., 299 S.W.2d 873, this precise question was before this court. There the cause of action arose in Illinois, and the contention was that the trial court erred in giving an instruction at the request of the plaintiff which cast upon defendant “the burden of proving its affirmatively pleaded defense of contributory negligence on the part of plaintiff in bar of any right of recovery she otherwise might have.” After a thorough and careful review of the cases, this court quoted from Redick v. M. B. Thomas Auto Sales, Inc., supra, and held that the Illinois requirement that plaintiff prove he was in the exercise of due care is substantive “just as much so as is the requirement that plaintiff plead and prove the negligence of defendant,” and it was held that giving the instruction constituted error. See also, Bean v. Ross Manufacturing Company, Mo., 344 S.W.2d at p. 26. We are in agreement with that ruling, and we see no occasion to restate or discuss the rationale of the O’Leary case. We conclude and hold that Instruction 5, which placed on Southern the burden of proof of establishing plaintiff’s contributory negligence, was erroneous notwithstanding Southern’s affirmative plea in its answer. However, plaintiff advances several contentions why Instruction 5 should not be considered to be erroneous, or at least not prejudicially erroneous, in the circumstances of this case, and we shall now examine those contentions.

Plaintiff points out that prior to trial Southern sought a severance of the common law action from the action based on the Federal Employers’ Liability Act. One of the reasons advanced by Southern was that “the defenses of contributory negligence and assumption of risk are properly available to it” as to Count II but not as to Count I, and the consolidated trial of these two causes of action would be confusing to the jury. This motion was overruled. Plaintiff further points out that Southern pleaded contributory negligence as an affirmative defense in its answer, that Southern offered no instruction placing the burden of proof on plaintiff to establish freedom from contributory negligence although plaintiff requested and the court gave an instruction placing the burden on Southern, and that Southern first made its present contention in its motion for new trial. Plaintiff also states that Southern’s pleadings did not invoke the law of Illinois, and it did not advise the court that it was relying upon the law of that state. Plaintiff asserts that for these reasons the common law of Missouri was applicable, and that Southern waived the application of Illinois law or is estopped to invoke the Illinois law. With this we cannot agree.

When plaintiff brought his action alleged in Count II, based on common law negligence, and affirmatively alleged (and subsequently proved) that the cause of action arose in Illinois, the trial court was required to take judicial notice of and apply the Illinois law. Civil Rule 55.23, V.A.M.R. Plaintiff, by so pleading, gave notice to the court and to Southern that he was invoking and relying on the law of Illinois. Southern was the defendant in the action, and in the absence of a denial by it that the Illinois law governed, no notice or action by it was necessary to invoke the application of the Illinois law. Plaintiff had already done so.

We do not consider that the language in the motion for a severance, relied on by plaintiff and previously set out, constituted a denial by Southern of the application of the Illinois law. The defense of contributory negligence is available to a defendant in a common law action under the Illinois law, and the allegation in the motion to that effect was correct. In the O’Leary and Bean cases this court held that by defendant affirmatively pleading contributory negligence as a defense in a common law action in which the Illinois law was applicable the plaintiff was not relieved of the burden of proving the exercise of due care on his part. Therefore, Instruction 5 placed the burden on the wrong party, and plaintiff cannot escape the consequence of an erroneous instruction given at his request, when defendant properly and timely objected thereto, on the ground that defendant should correct his error. This is not the situation where the instruction did not constitute a misstatement of the law but defendant believed it was not as complete as it should have been.

Plaintiff further argues that the law of Illinois was not applicable in this case because Southern did not comply with Section 490.110, RSMo 1959, V.A.M.S., which is a part of “The Uniform Judicial Notice of Foreign Law Act.” Section 490.-080 provides that every court of this state shall take judicial notice of the common law and statutes of other states. There is no requirement in this section that the foreign law be pleaded. Section 490.090 provides that the court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information. Section 490.110 then provides that any party “may also present to the trial court any admissible evidence of such laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.” Plaintiff asserts that this requirement of reasonable notice was enacted by the legislature after the adoption of Rule 3.14 which was replaced by Civil Rule 55.23, and that this requirement was not met by Southern. We shall assume the requirement to be in effect. See the Comment, Judicial Notice of Foreign Law as Developed in Missouri Tort Law, 25 Mo.Law Rev. 176. However, the requirement is that notice be given “in the pleadings or otherwise.” By affirmatively pleading in his petition that the cause of action arose in Illinois, plaintiff gave the required reasonable notice, not only to Southern but .to himself, and he cannot complain that Southern did not give him notice that it intended to rely on the Illinois law which by his pleadings plaintiff had invoked.

Plaintiff next asserts that “Under the applicable law of the State of Illinois, the burden of proving alleged contributory negligence of plaintiff rested on the defendant.” The basis of this contention is not easily understood or stated. Count I of the petition purported to state a cause of action against Southern and against Terminal based on the Federal Employers’ Liability Act. At the first trial, the trial court directed a verdict as to Count I in favor of Southern, and plaintiff asserts in his brief that this was upon “the theory that the Federal Employers’ Liability Act was not available to plaintiff” in his alleged action thereunder against Southern. Whether this was the theory of the trial court we cannot say. In the order granting the directed verdict it was stated that “said order to be held in abeyance until conclusion of the entire case.” After a mistrial, the case again went to trial on Count I against Terminal under the Federal Employers’ Liability Act, but not against Southern. No appeal has been taken by plaintiff as to the disposition of Count I against Southern. Plaintiff argues that his verdict directing instruction as to Count II against Southern based on common law negligence, required the jury to find that while plaintiff was a fireman on an engine of Terminal and delivering “a cut of cars” to Southern and operating on Southern’s tracks the collision occurred and plaintiff was injured. He then cites and quotes from several Illinois cases, and concludes “from the foregoing, the only logical conclusion that can be reached is that under the facts present in the instant case, the courts of Illinois would apply the principle of the Federal Employers’ Liability Act,” and that “the question is not what law the case was submitted under but the question is what law of Illinois is applicable to the factual situation submitted by plaintiff’s Instruction No. 2.” He then cites Illinois cases brought under the Federal Employers’ Liability Act to show that the burden of proving contributory negligence (not as a defense but in mitigation of damages) rests on the defendant, and concludes that “Under such facts, the substantive law of Illinois places the burden of proof on defendant.”

Whether the Federal Employers’ Liability Act applies to the factual situation of plaintiff’s claim against Southern is not to be determined by the law of Illinois, but by Federal law. Also, whether or not the trial court improperly directed a verdict against plaintiff and in favor of Southern as to Count I based on the Federal Employers’ Liability Act is not an issue on this appeal. On the contrary, this appeal pertains to the correctness of the judgment in favor of plaintiff and against Southern on Count II in which plaintiff alleged and submitted his cause of action on common law negligence to which the substantive law of Illinois was applicable. Whether the Illinois courts hold that in an action based on the Federal Employers’ Liability Act the defendant has the burden of proving contributory negligence (for the limited permissible purpose) is immaterial. The issue is whether, in an action based on common law negligence, and to which the substantive law of Illinois is applicable, plaintiff has the burden of proving he was in the exercise of due care, or defendant has the burden of proving contributory negligence on his part. As previously pointed out under the Illinois law the burden is on the plaintiff to prove he was in the exercise of due care.

Plaintiff next contends that there was no evidence warranting the submission of any contributory negligence, that is, that there was no evidence from which it could be found that he was not in the exercise of due care. To this we cannot agree. A jury could have found from the evidence that plaintiff knew the engine on which he was riding was in a Southern yard where switching operations by Southern were performed. He acknowledged that it was his duty to keep a lookout for any obstructions which might be in the way. Plaintiff testified that he did not see the boxcar fouling the track until 100 yards from it. There was evidence from which the jury could have found that he could and should have seen the boxcar, and that it was fouling the track, at least 700 feet away, which was in time for plaintiff to have warned the engineer and prevented the collision. Southern alleged and submitted contributory negligence on the part of plaintiff in failing to maintain a lookout and to warn the engineer of the presence of the boxcar fouling the track. We need not set out other evidence.

We necessarily conclude that error prejudicial to Southern resulted from the giving of Instruction S over its objection, and for that reason the judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    Fred SAIGH and Elizabeth Saigh, Appellants, v. August A. BUSCH, Jr., and Anheuser-Busch, Incorporated, a Corporation, Respondents.
    No. 50622.
    Supreme Court of Missouri, Division No. 2.
    May 9, 1966.
    Rehearing Denied June 13, 1966.

      Lon Hocker, St. Louis, Hocker, Goodwin & MacGreevy, St. Louis, of counsel, for appellants.
    Mark D. Eagleton, Thomas F. Eagleton, J. J. Thyson, Roberts P. Elam, St. Louis, Albert J. Stephan, Jr., St. Louis, of counsel, for defendant-respondent August A. Busch, Jr.
    Harry W. Kroeger, St. Louis, Dwight D. Ingamells, St. Louis, of counsel, for defendant-respondent Anheuser-Busch, Inc.
   STORCKMAN, Judge.

This purports to he a shareholders’ derivative action in two counts; the counts were tried and appealed separately. A judgment adverse to the plaintiffs on count 2, involving charges that excessive compensation had been paid to the individual defendant as a corporational officer, was affirmed by the St. Louis Court of Appeals in Saigh ex rel. Anheuser-Busch, Inc. v. Busch, Mo.App., 396 S.W.2d 9. This court is concerned solely with count 1 by which the plaintiffs Fred Saigh and Elizabeth Saigh, for themselves as shareholders of the defendant Anheuser-Busch, Incorporated, and in behalf of the class of shareholders similarly situated, seek to set aside the sale by the corporate defendant of 26,121 shares of its common stock to the defendant August A. Busch, Jr., an officer of the Corporation, pursuant to a stock option agreement.

Count 1 was tried and submitted on a written stipulation of facts and the trial court rendered judgment against the plaintiffs and the class of shareholders represented by them and in favor of the individual and corporate defendants. The plaintiffs contend that the difference between the amount paid for the shares in question and their value is $227,252.70 which vests this court with jurisdiction of the appeal from the adverse judgment on count 1.

The plaintiffs’ chief contentions on this appeal are that the consideration for the 26,121 shares sold to the defendant Busch was so inadequate as to constitute fraud on the defendant Corporation and its other shareholders and that the amendment of the corporate charter purporting to abolish existing preemptive rights, being in derogation of shareholders’ rights, was void because it was adopted by a vote of less than all of the shareholders.

The defendant Anheuser-Busch, Incorporated, originally organized in 1875, was granted a corporate charter in Missouri on June 20, 1925. The plaintiffs Fred Saigh and Elizabeth Saigh, since January 1, 1954, have owned 30,000 and 1,600 shares, respectively, of the common stock of the Corporation. The defendant Busch has been a member of the Board of Directors of the Corporation since December 7, 1926. He became President and Chief Executive Officer on September 5, 1946, and Chairman of the Board on April 11, 1956. Since the dates specified, he has acted in the capacities indicated.

At the annual meeting of shareholders of the Corporation on April 9, 1952, a proposal to accept the General and Business Corporation Act of Missouri was adopted. The shares of stock entitled to vote on the proposition were 4,475,000. Of that number, 4,056,431 shares were voted in favor of the resolution and none were voted against it. There were 25,000 shares of treasury stock not eligible to be voted. A certificate of the acceptance by the Corporation of the Act was duly filed in the office of the Secretary of State and recorded. On December 7, 1953, the number of authorized common shares was increased from 4,500,000 to 6,000,000 of the par value of $4 per share. At that time the Articles of Incorporation were further amended to provide that: “Authorized but unissued shares of the corporation may be issued at such time or times, in such amounts and for such consideration or considerations (received by the corporation or transferred from surplus to stated capital) not less than the par value thereof, as may from time to time be fixed and determined by the Board of Directors of the corporation.”

At a special meeting of the shareholders held on August 2, 1955, a proposed restricted stock option plan for officers and key employees of the Corporation was adopted by a vote of 3,787,386 shares for, and 274,-494 shares against it. The following amendment to the Articles of Incorporation of the Corporation was also submitted to the shareholders and the vote thereon was 3,771,240 shares for and 290,851 against it: “TENTH: 240,811 shares of the common stock of the corporation having a par value of $4 each, which at August 1, 1955 were part of the authorized but unissued shares of said stock, may be issued and sold, at any time or from time to time, to officers and employees of the corporation and its subsidiaries pursuant to any stock option plan duly adopted by the corporation, without being first offered to the holders of the outstanding shares, and no shareholder, as such, shall have a pre-emp-tive right to acquire any of such shares. * * * fi

The plaintiffs were among those shareholders who voted against both the stock option plan and the amendment. Said amendment was certified to and filed with the Secretary of State on August 5, 1955. On September 7, 1955, Mr. Saigh by a telegram to Mr. Busch protested the distribution of shares under the stock option plan until minority shareholders had a chance to be heard. Prior to August 2, 1955, there was no express provision in the corporate charter, in its bylaws, or in its stock certificates referring to any preemptive rights of the shareholders of the Corporation.

Following the adoption of the stock option plan by the shareholders, the Board of Directors at a regular meeting reserved and appropriated 240,811 shares for issue and sale upon the exercise of options under the plan. A stock option committee of members of the Board of Directors was appointed by the Board on August 2, 1955. None of the members of the committee were at any time employees of the Corporation or entitled to participate in the plan. The actions of the Corporation in adopting a stock option plan and in making available the 240,811 shares for the purpose of granting stock options to officers and key employees were reported in a quarterly report to all shareholders on or about August 5, 1955, and the statement relative thereto was repeated in the annual report of the Corporation for the years 1955 to 1962, both inclusive, which statement also gave information concerning the number of shares with respect to which options were granted, the option prices and the number of shares which remained subject to the plan at the end of the year.

The stock option committee authorized the grant of a stock option to Mr. Busch and, on August 15, 1955, the Corporation executed a stock option agreement by which Mr. Busch received an option to purchase 36,121 shares of the Corporation at $25.30 per share, a price not less than 110 percent of the market price of the shares on that date. The number of shares allocated to Mr. Busch under his option was 15 percent of the 240,811 shares set aside under the plan and was in accordance with a provision that no individual could be granted an option for more than such 15 percent of the total shares. The consideration for the option expressed in the plan was that each individual to whom a stock option was granted agreed to remain in the employment of the Company or one of its subsidiaries, at the pleasure of the Company or of such subsidiary, for at least two years from the granting of such option. The price at which each share of capital stock covered by the option might be purchased was not less than 95 percent of the fair market value of the stock at the time the option was granted unless the optionee owned stock possessing more than 10 percent of the voting power of all stock of the Company within the meaning of § 421(d) (1) (C) of the Internal Revenue Code of 1954, in which event the option price would have to be at least equal to 110 percent of the market value.

Numerous stock option agreements were executed, and beginning on October 18, 1956, various officers and key employees exercised their options to purchase shares. On July 29, 1960, the Corporation sold 21,-121 shares of common stock to Mr. Busch and on August 8, 1960, an additional 5,000 shares at $25.30 per share without having first offered any shares to the plaintiffs or to other shareholders proportionately. The market value of such shares on said date was approximately $34.00 per share. The shares were sold under the restricted stock option plan and the agreement dated August 15, 1955, and in accordance with the definition of the plan in § 421 of the Internal Revenue Code. 26 U.S.C.A. § 421.

Prior to the adoption of the stock option plan, the Corporation had five plants or facilities located in St. Louis and Springfield, Missouri, New Orleans, Louisiana, Los Angeles, California, and at Newark, New Jersey. Thereafter, a new plant was erected in 1960 at New Orleans; a brewery at Tampa, Florida, in 1959; and a malting facility at Manitowoc, Wisconsin, was purchased in 1962. The Corporation also owns the St. Louis National Baseball Club, Inc., popularly known as the St. Louis Cardinals, and Busch Stadium in St. Louis. A ten-year summary of the financial condition of the Corporation, including the years 1953 through 1962, discloses that the assets of the Corporation increased from $149,070,-569 to $204,271,855 and the equity of its shareholders increased from $105,815,803 to $163,127,494. Another exhibit shows that the earnings increased, although not consistently, from $13,232,549 in 1953 to $17,009,-029 in 1962. The number of shareholders of the defendant Corporation was 10,867 in 1955 and grew to 16,024 in 1962. The market price of the Corporation’s common stock was about $24 per share in 1952 and it increased to about $56 per share in 1962.

Section 351.185, RSMo 1959, V.A.M.S., subd. 3, provides : “When payment of the consideration for which shares are to be issued shall have been received by the corporation, the shares are full paid and non-assessable. In the absence of actual fraud in the transaction, the judgment of the board of directors or the shareholders, as the case may be, as to the value of the consideration received for shares shall be conclusive.” Emphasis added. The plaintiffs do not contend that this statute is invalid or inapplicable to the transaction in question. In their reply brief the plaintiffs disclaim that they seek “to set aside the stock option plan of Anheuser-Busch, Inc.,” on the ground that “employee stock option plans are void”, and affirmatively state their position to be that “there is no legally valid consideration for the specific sales to the specific optionee under the circumstances in the record.” The plaintiffs stop short of expressly stating there was no consideration for the stock option agreement entered into with this specific op-tionee. The distinction they make is a fine one and hardly tenable. If the stock option agreement between the Company and Mr. Busch was supported by a valid consideration and that consideration was performed and paid, it would seem to follow that the “specific sales”, that is, the transfer to Mr. Busch of the shares called for by the option agreement, must also be valid.

The purpose of the restricted stock option plan adopted by the defendant Corporation on August 2, 1955, was “to induce officers and key employees of the Company and its subsidiaries, who are in a position to contribute materially to the prosperity thereof, to remain with the Company or its subsidiaries and to encourage them to continue to promote the best interest of the Company and its subsidiaries.” The option plan required each individual to whom a stock option was granted, as consideration for the option, to agree in writing to remain in the employment of the Company or its subsidiaries “for at least two years from the date of the granting of such option”. By the terms of the stock option agreement entered into on August 15, 1955, Mr. Busch agreed to remain in the employment of the Company for at least two years from that date and, if the covenant was violated, the agreement provided that any option still held by the officer would automatically terminate. It has been generally held that the promise of the optionee to remain in the employer’s service for a stipulated period of time constitutes a valid consideration for the stock option agreement. 18 Am.Jur.2d, Corporations § 301; Annotation: 96 A.L.R.2d 176, § 3(b), p. 182; Annotation: 34 A.L.R.2d 852, § 2, p. 855; 5 Fletcher Cyclopedia Corporations, Perm.Ed., § 2143.1 and Cumulative Supplement.

Section 421 of the Internal Revenue Code, 26 U.S.C.A. § 421, provided that if stock was transferred to an individual pursuant to his exercise after 1949 of a restricted stock option, and no disposition of such stock was made by him within two years from the date of granting the option nor within six months after the transfer of such stock to him, no taxable income would result at the time of the transfer of such stock to him. To the same effect are §§ 421-425 of the Revenue Act of 1964. This income tax advantage accounts for the popularity of this type of incentive compensation and is the reason that stock option plans are widely used by corporation employers to retain old employees and to acquire new ones. There is no contention that the stock option agreement between Mr. Busch and the Corporation does not comply with the minimum requirements of 26 U.S.C.A. § 421.

The plaintiffs make three main arguments in support of their contention that the consideration for the sale of the 26,121 shares was so inadequate as to constitute fraud. Two of them relate to the financial advantages and disadvantages of the transaction. They say that Mr. Busch received a gift of $227,252.70 from the Corporation in that he paid $660,861.30 for shares that had a market value of $888,114 at the time the option was exercised. They further assert that the total financial disadvantage to the Corporation was more than twice the difference between the option price and market value because the Corporation also gave up the right to deduct such amount as a business expense under § 162 of the Internal Revenue Code. We need not explore these theories or examine the plaintiffs’ computations further than to say these or similar results are inherent in the exercise of the options granted by all such agreements. If the employee is not permitted to take advantage of the increase in value of the optioned shares, then the essential purpose of this additional incentive device is defeated. There are undoubtedly numerous instances where the spread is much greater than in this case. Obviously, an option will not be exercised where the market value is less than the option price. Neither the amount involved nor any other fact or circumstance in this case is indicative of fraud.

The final contention on the inadequacy of consideration issue is that by reason of Mr. Busch’s stock ownership, his various official positions and long tenure with the Corporation, he did not need a stock option agreement to induce him to remain. That may be true. The Directors may also have been confident that the Corporation would not lose any valuable property by fire within the next two years because of a good fire record in the past, but the business policy of being assured and insured in both particulars cannot be justly criticized merely because the period has expired without a casualty having occurred. The Corporation was not prohibited by law from granting a restricted stock option to a long-time officer who was also a substantial stockholder. The chances of such an employee leaving might be less, but the injurious consequences of his leaving, and perhaps joining a competitor, would be much greater. There is no showing of fraud and on the record before us the Board of Directors was vested with the determination of whether to grant the option, and the shareholders are without lawful authority to control or restrict this exercise of business judgment. Santa Fe Hills Golf & Country Club v. Safehi Realty Co., Mo., 349 S.W.2d 27, 34 [4].

The plaintiffs assert that the Directors of the Corporation had no discretion to sell the corporate shares except at the market price. Section 351.185 does not so limit the Directors. Article 11, § 7, Constitution of Missouri 1945, V.A.M.S., provides that a corporation can issue stock for “money paid, labor done or property actually received.” In the absence of actual fraud in the transaction, the judgment of the Board of Directors as to the value of the consideration received for the shares will not be interfered with. The agreed statement of facts which is the evidence in the case does not demonstrate or permit any inference of fraud. We hold the stock option agreement and the sale of the shares pursuant thereto were supported by a legally sufficient consideration which was duly performed and paid. Putnam v. Juvenile Shoe Corporation, 307 Mo. 74, 269 S.W. 593, 597 [3], 40 A.L.R. 1412. Plaintiffs’ first point is without merit and is denied.

Next the plaintiffs contend that the amendment of the corporate charter purporting to abolish preemptive rights in the block of shares set aside for stock option agreements, being in derogation of shareholders’ rights, was void because the amendment was adopted by a vote of less than all of the shareholders. It will be noted that this complaint directly attacks the validity of this amendment to the Articles of Incorporation, which amendment was adopted by a vote of 3,771,240 for and 290,851 votes against at a special meeting of the shareholders on August 2, 1955. The amendment undertakes to set aside 240,811 shares of the authorized but unissued common stock of the Corporation for sale and issuance at any time or from time to time to officers and employees of the Corporation and its subsidiaries pursuant to any stock option plan duly adopted by the Corporation without being first offered to holders of the outstanding shares, and the amendment specifically provides that no shareholder, as such, shall have a preemptive right to acquire any of these shares. The plaintiffs voted their shares against the amendment. The Corporation contends, inter alia, that an action for the violation of a preemptive right to purchase shares of corporate stock is not a secondary or derivative action, but must be brought directly in the right of the shareholder and not on behalf of the Corporation.

In 18 Am.Jur.2d, Corporations § 281, p. 804, the prevailing rule is stated in this manner: “Where the pre-emptive rights of shareholders have been violated, the wrong is to the shareholders and not to the corporation. Accordingly, an action brought for the violation of such right must be in the right of the shareholder and may not be maintained on behalf of the corporation. Moreover, if the shareholders who have been deprived of their rights do not complain, it does not lie within the power of the corporation to rescind the sale of shares sold in violation of pre-emptive rights, especially where the sale has been for value.”

The issue was involved in Barsan v. Pioneer Savings & Loan Co., 163 Ohio St. 424, 127 N.E.2d 614, 621 [10-12], and the court stated: “However, pre-emptive rights of shareholders are rights of the shareholders and not rights of the corporation. If those rights have value and shareholders are deprived of those rights, it is the shareholders who are damaged, not the corporation. Thus, if the action of the corporation deprives a shareholder of his pre-emptive rights, the shareholder may have an action against the corporation to recover for their value, [citing cases] Also, if such a remedy at law would be inadequate as a protection for the shareholder’s interests in the corporation, the shareholder may have equitable relief to protect those interests, [citing cases] But the corporation is not damaged merely because its shareholders are deprived of such rights, and, therefore, the corporation has no legal or equitable right with respect to their enforcement.”

Waters v. Horace Waters & Co., 201 N.Y. 184, 94 N.E. 602, 603, held that “the plaintiff, in the absence of any waiver or matter of estoppel, had a personal right of action growing out of the issue of the Hamilton stock, but it was a right of action against the corporation, not in its behalf. No conceivable injury could be sustained by the corporation by reason of the issue and sale of three shares of its capital stock at par, unless as matter of fact a larger price was obtainable therefor.” We have heretofore considered and held that the Corporation was not defrauded and that the stock option agreement and the sale of the shares in question were supported by a legally sufficient consideration.

Although the precise question appears not to have been directly decided in this state, the courts have adjudicated without reservation alleged violations of preemptive rights where direct actions were brought by complaining shareholders against corporations. Maynard v. Doe Run Lead Co., 305 Mo. 356, 265 S.W. 94; Knapp v. Publishers, George Knapp & Co., 127 Mo. 53, 29 S.W. 885. See also Dyer v. Securities and Exchange Commission, CA-8, 290 F.2d 534, 539 [4], and Ames v. Mengel Company, CA-2, 190 F.2d 344, 346 [2]. In the Mengel case the court stated in substance that the plaintiff did not represent the corporation but only herself and other like shareholders, and that the corporation was not a nominal defendant but the actual one. The clear weight of authority is that a shareholder may seek relief directly in equity to vindicate his preemptive rights or sue at law for damages. 18 Am.Jur.2d Corporations § 281, p. 802; Annotations: 138 A.L.R. 526, 536, and 52 A.L.R. 220, 241. We hold that plaintiffs’ claim to preemptive rights in the block of 240,811 shares is a direct and primary action and not a derivative or secondary action. In order to prevail on this claim, it was necessary for the plaintiffs to establish that the charter amendment of August 2, 1955, purporting to abolish preemptive rights was invalid. The plaintiffs have undertaken to establish this proposition by the second point of their brief.

The pleading is unsatisfactory in that count 1 combines a claim of inadequate consideration constituting fraud regarding the 26,121 shares transferred under the option agreement to Mr. Busch with a claim that the amendment of August 2, 1955, purporting to extinguish shareholders’ rights in the block of 240,811 shares, is invalid. The quantum and character of relief in each instance is different. If the plaintiffs prevailed on both claims, they would be restored to their preemptive rights in the block of 240,811 shares and the sale of the 26,121 shares to Mr. Busch could be set aside on equitable terms. But, if they suc-ceded only in establishing their preemptive rights in the block of 240,811 shares, Mr. Busch might still be entitled to retain his 26,121 shares. On the other hand, if they succeeded only in establishing that the sale of 26,121 shares to Mr. Busch was fraudulent, they would still be without preemptive rights in any of the 240,811 shares optioned for a valid consideration. We have held against the plaintiffs on their claim that the sale to Mr. Busch- was invalid, and therefore, all that remains is their claim against the Corporation -that they are entitled to preemptive rights in the block of 240,811 shares. Unless the charter amendment of August 2, 1955, can be proved to be invalid, the plaintiffs are not entitled to prevail on this score.

In addition to their defenses on the merits, the defendants have interposed the plea that the cause of action did not accrue within five years next before the commencement of the action and was barred under § 516.120 of the statutes of limitation, and the further plea that the plaintiffs were barred by laches from maintaining the action. The pleas in bar of the action are so compelling that we cannot reach and effectively decide the validity and scope of § 351.305 which furnishes the legal basis for the adoption of the August 2, 1955, amendment limiting preemptive rights.

On August 2, 1955, the shareholders of the corporate defendant not only approved the stock option plan, but also adopted the amendment to the Articles of Incorporation which barred preemptive rights with respect to the 240,811 shares set aside for options under the plan. On August 15, 1955, a stock option agreement was entered into with Mr. Busch and thereafter numerous other such agreements were made with other officers and key employees. The first option to purchase shares under the plan was exercised on October 18, 1956, by someone other than Mr. Busch. The operation and progress of the plan and agreements thereunder were the subject of reports and comments in subsequent annual reports of the Corporation. There is no charge of concealment of any material fact. On September 7, 1955, Mr. Saigh sent Mr. Busch a telegram suggesting postponement of the “distribution of approximately 240,000 shares” until minority shareholders could be heard. The telegram concluded: “Proceeding in direct conflict with minority views will be construed as a challenge to quick action.” Nevertheless, the Corporation continued to operate the stock option plan and the plaintiffs did not file suit until May 7, 1963.

Point 2 of plaintiffs’ brief states that “the amendment to Anheuser-Busch’s charter purporting to abolish the existing preemptive rights of shareholders was void under applicable law”. If that statement is true now, it was true on August 2, 1955, when the amendment was adopted and at all times thereafter. The amendment is what decisively and permanently impaired the plaintiffs’ preemptive rights in that block of shares. As of the date the amendment was adopted, the plaintiffs’ cause of action accrued and they were entitled to undertake to have the amendment declared void and to enjoin the issuance of any of these shares without first offering them proportionately to the present shareholders. Ames v. Mengel Co., CA-2, 190 F.2d 344. The invalidity of the charter amendment as a basis for setting aside the sale of stock to optionees can relate only to the time of adoption of the amendment.

The case of Maynard v. Doe Run Lead Co., 305 Mo. 356, 265 S.W. 94, is controlling. In that case the shareholders increased the capital stock, paid for the increase out of surplus assets and provided that the increased capital stock be held as treasury stock to be sold for the company benefit or paid out as stock dividends in the discretion of the directors. The directors declared a stock dividend and the rest was retained as treasury stock in the treasury of the company. This was done May 10, 1906. In November 1920 the plaintiff brought suit to compel issuance to him of shares of stock to which he claimed to be entitled as his proportionate share of the increased capital stock. The court held that the five-year statute of limitations barred recovery because plaintiff’s cause of action arose when the board of directors set aside the increase of stock as treasury stock. In this connection, the court stated, 265 S.W. 94, 98-99: “He [the plaintiff] claims that his cause of action did not accrue at that time, because it is not necessary to have certificate stock issued to attest the ownership of the stock. Permitting the certificates to remain unissued would not affect his right to it nor put upon him the necessity of demanding or suing for his certificates. Conceding that principle to be correct, as a general rule, it would not apply in this case, because the stockholders of the company and the directors of the company, by the action taken May 10, 1906, asserted a right to the stock, hostile to his claim, by making it treasury stock, as shown in the minutes set out above. It was that hostile act which he claims wronged him and furnished him a cause of action. No demand was necessary. So far as his rights were concerned he could sue then, and the statute began to run from that moment.” See also Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 24 A.L.R.2d 611; Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678; and E. S. Woodworth & Co. v. Carroll, 104 Minn. 65, 112 N.W. 1054, 115 N.W. 946, where a defendant shareholder’s counterclaim based upon the corporation’s refusal to allow him to purchase his proportionate part of a new issue of stock was held barred by a five-year statute of limitations, suit being brought more than six years after the refusal and sale of stock. We hold that the plaintiffs’ right of action in the present case is barred by § 516.120, RSMo 1959, V.A.M.S.

We are also impressed by the defendants’ plea of laches. At various times after the adoption of the stock option plan on August 2, 1955, stock option agreements, similar to the one with Mr. Busch, were entered into between numerous eligible officers and key employees and the Corporation. Beginning with October 18, 1956, these options to purchase shares were exercised and continued to be exercised up to the time the facts were stipulated. The suit was not filed until May 7, 1963, almost three years after Mr. Busch exercised his options in July and August 1960. The facts permit a reasonable inference of disadvantage to the various op-tionees as well as the Corporation by reason of the delay after the promise of “quick action” in September 1955. Jones v. Fidelity Nat. Bank & Trust Co. of Kansas City, 362 Mo. 712, 243 S.W.2d 970, 979 [11]. Since the relief sought is barred by limitations and laches, we are precluded from any meaningful consideration of other questions presented by the parties.

The judgment is affirmed.

All of the Judges concur.


author: HOLMAN, Presiding Judge.

text:
    Virginia M. PRETTI, Respondent, v. Dr. Carl W. HERRE, Jr., Appellant. Ralph V. PRETTI, Respondent, v. Dr. Carl W. HERRE, Jr., Appellant.
    Nos. 51443, 51444.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.

      J. Martin Anderson, Kansas City, for respondents Pretti.
    Henry G. Eager, John J. Kitchin, Kansas City, Swanson, Midgley, Jones, Black-mar & Eager, Kansas City, of counsel, for Dr. Carl W. Herre, Jr.
   HOLMAN, Presiding Judge.

In these consolidated actions Virginia M. Pretti sought to recover damages for personal injuries in the sum of $50,000, and her husband, Ralph Pretti, also sought damages in the sum of $50,000 for loss of his wife’s services, etc. Mrs. Pretti was injured when the car she was driving was struck from the rear by one driven by Dr. Herre. The three cars involved were all being driven in the same direction. Defendant Richard A. Griswold, driving the first car, stopped suddenly when he realized that he had passed the house he was looking for. Mrs. Pretti made a very sudden stop to avoid hitting the Griswold car. Dr. Herre then came over the crest of a hill and was unable to stop before his car collided with the Pretti automobile. The trial resulted in a verdict in favor of all defendants. Thereafter, the trial court made the following order: “Now on this day plaintiffs’ motions for a new trial are by the court sustained.” All of the defendants appealed, but Gris-wold and City Wide Mortgage Company made a settlement with plaintiffs and their appeal has been withdrawn.

Civil Rule 83.06(b), V.A.M.R., provides, in part, as follows: “When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent.” We accordingly ordered plaintiffs-respondents to file the original brief here and they have done so. Plaintiffs have stated two propositions under their “Points Relied On” but we construe these points as stating only one ground in support of the action of the trial court in granting the new trial, i. e., “that the verdict of the jury is against the weight of the credible evidence.” However, the difficulty with plaintiffs’ position is that the ground relied upon is a discretionary one and we are immediately confronted with the provisions of Civil Rule 83.06(c), which states that “If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds.” Since the trial court did not specify any ground in its order, and since we are precluded by the quoted rule from presuming that the new trial was granted on the assignment plaintiffs rely upon, it is apparent that the action of the trial court cannot be sustained on that ground.

Plaintiffs indicate in their brief that the trial judge stated at the time the motion for new trial was argued that he was sustaining it on the ground that the verdict was against the weight of the evidence. However, that does not appear in the transcript. We must take the record as it comes to us and it cannot be supplemented by extraneous matter not found in the transcript nor conceded by adverse counsel. Eaves v. Wampler, Mo.App., 390 S.W.2d 922; Baker v. Missouri National Life Ins. Co., Mo.App., 372 S.W.2d 147 [11].

Since the only point relied on by plaintiffs to support the granting of the new trial is one which we are precluded from considering, it follows that the action of the trial court cannot be sustained. The order of the trial court is accordingly set aside and the cause is remanded with directions to reinstate the verdicts and judgments in favor of defendant Herre.

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Jesse James TURNBULL, Appellant.
    No. 51588.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, Wyvetter H. Younge, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Charles M. Shaw, Clayton, for appellant.
   BARRETT, Commissioner.

Jesse Turnbull, Harold Meyer and Ralph Meyer were jointly charged with burglary in the second degree (RSMo 1959, § 560.-045, V.A.M.S.) and stealing. RSMo 1959, § 560.156, V.A.M.S. Upon a change of venue from Lincoln County, and after a severance, a jury in Pike County found the appellant Turnbull guilty of both the burglary and the stealing and fixed his punishment at two years’ imprisonment for each offense. RSMo 1959, §§ 560.095, 560.161, 560.110, V.A.M.S.

Turnbull was a machinist by trade, employed by the Multiple Boring Machine Company in St. Louis, but he had a hobby or sideline of buying and selling property at auction sales, particularly antiques. He denied breaking into Anna Filsinger’s farm home, “No sir-ee” he said, and although he permitted her relatives and the officers to remove certain articles, “looks more or less like junk to me,” from his home as Anna’s property, he denied that he had participated in its theft. The implication from his testimony was that he had bought the articles from auctions or from the Meyer brothers. The state’s proof was that Anna Filsinger, age 77, was in a nursing home. Her home on Highway 47, about five miles west of Winfield, was being looked after by her niece Vera Arnhold. On February 10, 1965, Mrs. Arnhold and her husband were at the home and “(e)verything was in order,” the doors and windows were all closed and locked. They returned on February 12 and the house had been ransacked, locks had been broken, doors “busted” and left open and a large number of articles of furniture, dishes and household articles removed. A motor vehicle had been stuck in the backyard and blankets and other articles had been employed to extricate it. About 6:30 in the morning of February 12th a station wagon was found “upside down” in a ditch near the intersection of Highways 47 and 79 in Lincoln County, and a “lot of broken junk had spilled out of the car.” The station wagon belonged to Turnbull and he employed William Sheppards of Hazelwood to tow the station wagon into his home at Bridge-ton Terrace. Around the overturned vehicle, Mr. Sheppards said, “it just looked like a bunch of junk to me. I understand that it was antiques.” When the officers and family arrived at his home Turnbull “told us that we could look in the house and we went in the house and we found some articles that we thought belonged to Mrs. Filsinger.” The sheriff said that Turnbull admitted that the articles “came out of that car. * * * Out of the station wagon.” Clara Arnhold who identified a number of the articles in Turnbull’s home testified that he (Turnbull) said “if they was ours that he wanted us to take them, and he insisted on us taking them — . * * * He said that we should look and see what there was that we could identify.” A highway patrolman participated in the investigation, described property found in the station wagon and the house and he testified, “His exact words on one piece that he handed to Mr. Arnhold, * * * was: ‘That belongs to you. This came from your house,’ and he handed it to him.” The patrolman said that when questioned about the Filsinger burglary Turnbull “stated that he had been out, that he had an accident in Lincoln County when he was up in that area the night and early morning * * * and he was intoxicated and couldn’t remember anything. He was too drunk to remember anything.”

Needless to say, these circumstances support the jury’s finding of appellant’s guilt of both the burglary and the stealing. State v. Kennedy, Mo., 396 S.W.2d 595. The appellant was represented by experienced counsel and in the background of this record filed a motion for new trial in which there are six assignments of error relating to the admission and rejection of evidence, conduct of counsel for the state and instructions.

The first assignment allegedly relating to the admission of evidence is that a mistrial should have been declared when Sheriff Elliott said, “We thought that the defendant’s tires matched the tire tracks found at the scene.” However, counsel first objected to “we thought” and to the attempted answer as not responsive to the question whether Turnbull had made any other statement than the one that certain articles came out of the station wagon. The court agreed that the answer was not responsive and requested that the question be repeated. Then when the sheriff in response to the question “what type of tires were on the station wagon” responded “Not entirely; we thought that the tracks matched — ” and counsel moved for a mistrial and the court made this ruling: “The last answer of the witness was not responsive to the question and will not be considered by the jury in any degree whatsoever. Please confine yourself, Mr. Sheriff, to answering specifically the question that is asked you.” There was no further objection or request for action and the subject was not again referred to. It is not necessary to say whether the sheriff’s evidence was proper or admissible, the court in effect .struck the evidence and plainly instructed the jury to disregard it and in these circumstances there was no manifest prejudicial error. 24B C.J.S. Criminal Law § 1915(7) (11), p. 83; State v. Gerberding, Mo., 272 S.W.2d 230.

The second assignment of error as to the admission of evidence is that the court erred in not discharging the jury when state’s counsel inquired of defendant’s witness Elizabeth Ann Cockrum “as to her present marital status.” Mrs. Cockrum conducted an auction in St. Charles County, state’s counsel inquired as to her “marital status now” and she replied, “I am still married.” Then state’s counsel inquired, “Are you applying for a divorce?” Upon objection and request that the jury be “instructed to disregard that” the court ruled: “It is so ordered. The jury will please do so. It is of no consequence, whatsoever.” There was no other reference to this subject, no request by defense counsel for further remedial ruling and even though irrelevant the mere question was not manifestly inflammatory or prejudicially erroneous. 24A C.J.S. § 1908(1), p. 1049; State v. McKissic, Mo., 358 S.W.2d 1, 7.

The remaining assignment concerned with testimony arose when the defendant called in rebuttal as a witness Lee Wilkins who said that he had made purchases at the Cockrum Auction Barn. Then counsel asked, “Do you know what it is to buy a ‘Box of Goodies ?’ ” The witness answered “Yes” and when counsel inquired “What does that mean?” the state’s attorney objected and the court sustained the objection. Defense counsel then said, “I want to show, if he is permitted to answer, that the witness would testify to the effect that this is a common practice in the auction business.” The court adhered to its ruling and defense counsel excused the witness. One of the items of property identified as coming from Mrs. Filsinger’s was a box or carton of broken glassware and a rather miscellaneous collection of dishes known in the auction and antique business as a “Box of Goodies” and the inference to be drawn here was that this box could have come from any number of places other than the burglarized home. But the assignment of error is that the court erred in not permitting this witness to say that he “had seen the defendant at the auction barn” during the period of time the state’s witness, the highway patrolman, had testified that “there were no records of transactions made by the Defendant” at Cock-rum’s Auction Barn. Obviously the assignment in the motion for a new trial is not supported by the record, all that occurred has been set forth and even if proper rebuttal in that the subject was of the same time and place, there was no such offer of proof and the court did not abuse its discretion in not admitting this particular rebuttal testimony. State v. Niehoff, Mo., 395 S.W.2d 174, 182.

As to argument of counsel the assignment is that the court erred in not granting a new trial when the prosecuting attorney in his closing argument “referred to Defendant as ‘these burglars.’ ” And it is not proper, of course, for a prosecutor to apply personal epithets or to engage in abusive vilification of either parties or witnesses. 23A C.J.S. Criminal Law § 1106, p. 201; State v. Taylor, 320 Mo. 417, 8 S.W.2d 29, and State v. Harris, Mo., 351 S.W.2d 713, in which the cases and annotations are collected. But here the prosecutor had been reviewing Turnbull’s testimony and then he said, “And remember this, ladies and gentlemen, when these burglars — this defendant — came down that highway, if it hadn’t . . ..” Then there was an objection and state’s counsel said, “I will withdraw it, Your Honor.” The court refused to declare a mistrial and there was no other epithetical language. This was not a flagrantly unbridled argument (23A C.J.S. § 1117(2), p. 246), there was an apparently good faith retraction and in the context of this record it may not be said that the court manifestly erred in not declaring a mistrial. State v. Harris, supra; State v. Churchill, Mo., 299 S.W.2d 475, 479; State v. Stroud, 362 Mo. 124, 128, 240 S.W.2d 111, 113; State v. Marshall, 317 Mo. 413, 424, 297 S.W. 63, 69.

There were three formal instructions, presumption of innocence, intent and circumstantial evidence and the fourth was the principal instruction — it hypothesized a finding of a breaking into Mrs. Filsinger’s home and the removal of her personal belongings. At one point the instruction uses this language that “the defendant did wrongfully, forcibly and burglariously break and enter into the house and building of Anna Filsinger.” It is objected that “By omitting the word ‘felony’ in the charge of burglary, the instruction was clearly in error in not including the necessary elements that the jury must find.” In this connection it is objected that the court erred in not defining the words “wrongfully,” “forcibly” and “burglariously.”

Two distinct sets of instructions on burglary and stealing have evolved and are in general use. In one set of instructions the word “feloniously” is defined and employed in the manner the appellant now urges, “as meaning ‘wickedly and against the admonition of the law, that is unlawfully’ ” and “burglariously” in these instructions is defined “as meaning ‘with an intent to commit burglary.’ ” In those cases the appellants attacked the definitions, particularly the definitions of “feloniously,” but the court approved them in both form and substance. State v. Turner, Mo., 272 S.W.2d 266, 271-272; State v. Jackson, Mo., 338 S.W.2d 848, 851-852. In the other set of instructions the word “feloniously” is not separately defined and as will be noted from the excerpt quoted here from Instruction 4 they do not insert or employ the word “feloniously” along with the language “wrongfully, forcibly and burglari-ously.” It does not appear that the objections made here have heretofore been lodged against this instruction but against other complaints it has been approved. State v. Papin, Mo., 386 S.W.2d 355, 360. Then too in the instruction in that case as in Instruction 4 here, after hypothesizing a wrongful and forcible breaking the instruction continues “with the felonious intent, then and there to steal therein.” So in the end the word “felonious” is employed and it will be noted that in the instructions defining terms the word is defined as “wickedly and against the admonition of the law, that is unlawfully,” all of which is synonymous with “wrongfully, forcibly and bur-glariously.” “Wrongfully,” “forcibly” and “burglariously” are not words of art and in the absence of a request or necessity for further explanation or definition of terms the court did not prejudicially err in failing to separately define these terms. State v. Papin, supra; State v. Smith, Mo., 342 S.W.2d 940.

As indicated, the information appropriately charges the offense and there are no errors “upon the record” before the court (RSMo 1959, § 547.270, V.A.M.S.; Criminal Rule 28.02) and for the reasons indicated the judgment is affirmed.

STOCKARD, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Theodore DUISEN, Appellant.
    No. 51451.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Theodore F. Schwartz, Clayton, for appellant.
   STOCKARD, Commissioner.

Theodore Duisen, charged as an habitual offender (Section 556.280 RSMo 1959, V.A. M.S.), was found guilty by a jury of the felony of carrying concealed upon his person a deadly and dangerous weapon, and was sentenced by the court to confinement in the penitentiary for a term of two years. He has appealed from the ensuing judgment. Although represented by counsel of his own selection, no brief has been filed in this court. We review the assignments of error properly presented in the motion for new trial.

There is no challenge to the sufficiency of the evidence. A jury reasonably could find from the evidence that early in the morning of September 29, 1964, defendant was arrested while at a tavern at 7301 South Broadway in the City of St. Louis, and when searched there was found on his person concealed from view a .32 caliber, seven shot, loaded Arminius revolver.

The first assignment of error is that the trial court erred in overruling defendant’s motion to suppress evidence for the reason that the search and seizure were made without a warrant and without probable cause. The second assignment of error, related to the first, is that the court erred in admitting into evidence the revolver, holster and seven bullets found on defendant’s person as the result of the search made at the time of his arrest.

The testimony received by the court at the hearing on the motion to suppress evidence was not included in the transcript filed in this court. Pursuant to Civil Rule 82.12(e), V.A.M.R., made applicable to criminal cases by Criminal Rule 28.18, V. A.M.R., this court directed that a supplemental transcript containing such testimony be prepared and filed.

The legality of a seizure of property is to be determined by a motion to suppress the evidence, State v. Lord, Mo., 286 S.W.2d 737, 740, and “the burden is on the defendant to offer evidence and affirmatively demonstrate the illegality of the search and seizure.” State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 887. In this case the only evidence on the motion to suppress was offered by the State and not the defendant. In fact, defendant did not cross-examine the only witness who testified.

Police Officer Thomas Hennessey testified that he “received information” that in a “saloon” located at 7301 South Broadway there was a man “attempting to sell narcotics.” He and another officer went there, and Donald Bollinger told them that he had called the police, and he then “pointed out the defendant” and stated to the officers that the defendant had “attempted to sell narcotics to him.” Officer Hennessey then placed defendant under arrest and as shown at the trial when defendant was searched as an incident of that arrest a loaded revolver in a holster was found concealed on his person.

Police officers may arrest, without a warrant, one whom they have reasonable cause to believe is guilty of a recent felony, State v. Campbell, Mo., 262 S.W.2d 5, and “What constitutes ‘a reasonable and probable ground of suspicion is incapable of exact definition, beyond saying that the officer must not act arbitrarily, but must exercise his discretion in a legal manner, using all reasonable means to prevent mistakes. In other words, he must be actuated by such motives as would influence a reasonable man acting in good faith ;***.’ State v. Cantrell, Mo., 310 S.W.2d 866, 869. Defendant does not dispute this principle, but he asserts that there was no reasonable cause for his arrest, and, therefore, the seareh made as an incident thereto was illegal. Donald Bollinger told the arresting officer that the defendant had attempted to sell narcotics to him. See Sections 195.010, 195.020 and 195.200, and also Section 556.140 RSMo 1959, V.A.M.S. Therefore, the informer had actual knowledge of the recent commission by defendant of a felony. This is not the situation in United States v. Clark, D. C., 29 F.Supp. 138, where the informer had no reasonable ground to believe the person arrested had committed a felony. The rule stated in State v. Witt, Mo., 371 S.W.2d 215, 217-218, is applicable to this case, and is that “Police officers are authorized to arrest upon reasonable cause to suspect that one is guilty of a felony, either upon their own knowledge or upon facts ‘communicated to them by others * * *.’ ” Here the facts, as distinguished from suspicions, communicated to Officer Hennes-sey by Donald Bollinger constituted an adequate basis for the determination by the police officer that he had reasonable cause to believe that defendant had recently committed a felony. Aside from the fact that defendant failed to meet the burden of establishing the illegality of the arrest and the search incident thereto, the State established its legality. The arrest was lawful, and being so, the officer could conduct a search of defendant’s person as an incident thereto, and the revolver, holster and seven bullets seized were properly admitted into evidence.

The third assignment of error is that the trial court erred “in finding the defendant guilty of the prior conviction as charged in the amended information in that the court failed to find that the defendant was duly sentenced by said court to a fine of $100 and costs, and that the defendant lawfully complied with said sentence.”

Defendant voluntarily took the stand and testified that on October 27, 1961, he was found guilty of the offense of assault with intent to do great bodily harm without malice, a graded felony, and was fined $100 which he paid. In addition, counsel for defendant and the State stipulated that the defendant was “the same Theodore Duisen who was convicted of a felony offense of assault with intent to do great bodily harm without malice, and he was fined one hundred dollars and costs, and in compliance [there] with did pay a fine of one hundred dollars and costs, * *

Section 556.280 RSMo 1959, V.A.M. S., provides that if any person convicted of any offense punishable by imprisonment, in the penitentiary, “shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor,” and is charged with having thereafter committed a felony, certain procedures in his trial shall be followed, one of which is that the trial judge shall determine the punishment. It is further provided that evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole or prohibition shall be heard and determined by the trial judge out of the hearing of the jury, “and the court shall enter its findings thereon.” The findings of the trial court in this case were only that “The court will find him guilty of the prior conviction.” This does not comply with the minimum requirements of Section 556.280, in that there was no finding that defendant was “sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor.” See State v. Hill, Mo., 371 S.W.2d 278, and also State v. Collins, Mo., 383 S.W.2d 747. In the Collins case, the issue was whether the defendant had been imprisoned by reason .of the prior conviction, and it was there pointed out that “defendant’s admissions did not include imprisonment under [the] sen-tence.” Here, not only did the defendant testify, but he stipulated that he was convicted, sentenced to a fine, and that he paid the fine. There was no evidence to the contrary. Therefore, while the findings of the trial court were not completely in compliance with Section 556.280, defendant is in no position to complain now on appeal that the trial court did not enter a formal finding that he was sentenced to pay a fine of $100 and that he had complied with the sentence.

Defendant asserts in his fourth assignment of error that the trial court erred in refusing to grant a mistrial “after allowing the plaintiff [State], over defendant’s objection, to go into the facts of defendant’s conviction for violation of the National Firearms Act after defendant had previously testified to said conviction.” Defendant testified in his own behalf, and on direct examination he volunteered the information that in 1961 he had served about four months imprisonment for a federal offense described by him as “possession of an unregistered shot gun.”. On cross-examination he was asked if the offense of which he was convicted was “for possession of an unregistered shot gun, a sawed off shot gun?” To this question defendant entered an objection, without stating any reason, and moved for a mistrial. The trial court overruled the obj ection and motion.

When a defendant becomes a witness, he shall be liable to cross-examination as to any matter referred to in his examination in chief. State v. Rose, Mo., 325 S.W.2d 485; State v. Brown, Mo., 312 S.W.2d 818; State v. Byrd, Mo., 360 S.W.2d 614. Defendant first brought out information about the federal conviction, and the State unquestionably had the right to cross-examine him concerning it to clarify his testimony. This assignment is without merit.

The fifth and sixth assignments of error are that the trial court erred in refusing to declare a mistrial when the assistant circuit attorney stated in argument to the jury “that the defendant’s prior convictions should be used in deciding the guilt of the defendant,” and when he commented “on the character of the defendant when the defendant had not previously put his character in issue.” The immediate answer to these contentions is that this is not what was said in argument. What was said by the assistant circuit attorney was this: “The Court tells you to evaluate the credibility and weight to be given to each and every witness’ testimony, and that is where you can take into consideration the man’s background. Is he a truthful person? Does he have a good, substantial background? Does he have a background as substantial as other witnesses in this case? This is where that comes into play, how much weight you are going to give to this testimony. The man has a prior conviction. Don’t think this has been brought out in the open and there is nothing to it at all. There is something to it. You have to consider this man’s background. You can take each and every, circumstance surrounding this particular occurrence that night. What type individual is this ?” At this place defendant objected to the argument “as going into his character.”

The above comments in argument concerning a previous conviction clearly were directed to the credibility of defendant who had elected to take the stand and tell about the previous conviction. There can be no question but that the above comment was authorized and proper. State v. Cox, Mo., 333 S.W.2d 25; State v. Jones, Mo., 221 S.W.2d 137, 138; State v. Kuever, Mo.App., 363 S.W.2d 31. It may be said that any comment concerning the credibility of the defendant may indirectly have some bearing on his character, but when the comments are proper as comments on credibility, as they were in this case, the defendant cannot complain that the jury knows about the previous conviction, or that the properly received information may affect other areas of consideration.

The seventh assignment of error is that the trial court erred in failing “on its own motion to instruct the jury on the law governing the defendant’s prior convictions.” The jury was properly instructed concerning the credibility of witnesses, and that is the only instruction which might pertain to defendant’s prior convictions to which defendant was entitled under the facts of this case, at least without a specific request, which admittedly was not made.

The final assignment is that the court erred in failing to declare a mistrial and in permitting counsel for the State to say in closing argument that “I know the defendant is guilty.” The only portion of the argument set out in the transcript pertaining to this contention is as follows:

“Mr. McDonald [State’s attorney] This weapon is not a play toy.
“The Court: Your time is up, Mr. McDonald.
“Mr. McDonald: I want you to consider that.
I say to you, in all sincerety and humility, this man is guilty of this charge.
“Mr. Schwartz: [Defense Counsel] Your Honor, that statement is highly improper, and I ask that a mistrial be declared.
“The Court: It will be denied.”

The applicable rule is set out in State v. Paglino, Mo., 319 S.W.2d 613, 625, as follows: “ ‘The law is well settled that the prosecuting attorney may not express his private opinion or knowledge of a defendant’s guilt but where it is apparent that his opinion is based solely on the evidence in the case he may properly argue that, in his opinion, defendant is guilty.’” See also State v. Groves, Mo., 295 S.W.2d 169, 173; State v. Burchett, Mo., 302 S.W.2d 9; State v. Feltrop, Mo., 343 S.W.2d 36, 39. We cannot say from the limited record before us that the comment was not an expression of opinion by the State’s attorney based exclusively and solely on the evidence in the case. The argument is not shown to have been improper.

Examination of the record as required by Criminal Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

BARRETT, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM:

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

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Edward Lawrence VANDERGRIFF, Appellant.
    No. 51706.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, William A. R. Dalton, Sp. Asst. Atty. Gen., Springfield, for respondent.
    J. W. Grossenheider, Lebanon, Claude T. Wood, Richland, for appellant.
   HENLEY, Judge.

Defendant appeals from a judgment of conviction on a charge of burglary in the second degree. He was charged by information in two counts with (1) burglary in the second degree and (2) stealing in connection with the burglary. Sections 560.-070, 560.156 and 560.110, RSMo 1959, V.A. M.S. Trial was before the court without a jury, the jury being waived by defendant with assent of the court. Article I, § 22(a), Constitution of Missouri, V.A. M.S.; Rule 26.01(b), V.A.M.R. At the close of the state’s case, defendant filed and stood on a motion for judgment of acquittal as to both counts. The motion was overruled as to the first count and sustained as to the second. The court made and entered a general finding of guilty of burglary in the second degree and assessed defendant’s punishment at imprisonment in the penitentiary for a term of three years. Section 560.095(2), RSMo 1959, V.A.M.S. After an unavailing motion for new trial, defendant was sentenced and judgment entered in accordance with the finding.

A statement of the facts of the case is unnecessary to an understanding of the legal points on which the case turns; hence we forego the usual statement. The information on which the case was tried is assailed on two grounds. The sufficiency of the information to charge the crime of burglary was challenged in defendant’s motion for new trial, and the points of attack now directed toward the information are fully and ably briefed by both the defendant and the state. Too, it is our duty to determine on appeal the sufficiency of the information, whether or not it is questioned in the motion for new trial or the question briefed. Rule 28.02, V.A.M.R. Defendant contends that the information does not charge the offense of burglary in the s'ec-ond degree under § 560.070, in that it fails to allege (1) that the breaking and entering was burglariously done, (2) that goods, wares, merchandise or other valuable thing was kept or deposited in the building broke and entered, (3) that defendant broke and entered the building with intent to steal goods, etc., therein. We find the information fatally defective and reverse and remand.

Because the state contends that we should look to and consider the second count as supplying the alleged deficiency in the first count, we set out both counts of the information, omitting wordage therein unnecessary to this opinion. It charges: that on August 7,1963, defendant “ * * * with specific criminal intent, wilfully, intentionally, unlawfully, deliberately, feloniously, on purpose

“COUNT I

did break and enter the Chambers Store Building owned by Vinita Randall breaking the panel of the rear door of said building with the intent to steal, and did,

“COUNT II

steal by appropriating by exercising dominion over men’s clothing without the consent of the owner, to-wit: Euell Chambers by taking, using and retaining possession of said clothing and being done in connection with the breaking and entering as set out in Count I * *

The statute defining the offense with which the first count of this information sought to charge defendant is § 560.070, RSMo 1959, V.A.M.S. It reads: “Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to he burglary in the first degree, or any booth or tent, or any boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein, shall, on conviction, be adjudged guilty of burglary in the second degree.”

There is no allegation in the information, nor is there any proof or contention that there was any human being in the building or that there was any intent to commit any crime therein other than to steal.

In effect, defendant’s first and third points of attack on the information are the same. The contention that the information should have alleged that “the breaking and entering was burglariously done” is, in effect, the same as the contention that the information should have alleged “that defendant broke and entered the building with intent to steal goods, etc., therein.” “Burglariously breaking into a building is breaking in with intent to steal * * *.” (emphasis supplied.) State v. Gentry, 329 Mo. 282, 44 S.W.2d 27, 31 [6].

If defendant also means by his first point, as his argument would seem to indicate, that the word “burglariously” is a technical or magic word that must be used in the information, we hold to the contrary. The word had a technical meaning and was required to be used in an indictment for burglary at common law, but the technical word is not required to be introduced into an information to charge effectively the statutory crime of burglary. All that need be alleged is the essential elements defined by § 560.070. State v. Ruffin, Mo., 286 S.W.2d 743, 746-747 [2-3]; State v. Thomas, Mo., 360 S.W.2d 694, 696-698 [1]. And one of those elements is that the breaking and entering be with intent to steal.

The information does not charge that the building allegedly broken and entered was one in which there was at the time goods, wares, merchandise or other valuable thing kept or deposited. In so failing to charge, the information omitted a description of the type of building that might be burglarized as defined by § 560.-070, and thereby omitted an essential element of the offense of burglary in the second degree. State v. Thomas, supra; State v. Moten, 276 Mo. 354, 207 S.W. 768, 769 [1-3], and cases therein cited.

Nor does the information charge that the breaking and entering was with the intent to steal goods, etc., kept in the building, also an essential element of the offense. State v. Watson, Mo., 383 S.W.2d 753, 756-757 [6]; State v. Whalen, 297 Mo. 241, 248 S.W. 931, 932-933 [4]; State v. Pryor, 342 Mo. 951, 119 S.W.2d 253, 255 [3]. In State v. Moten, supra, cited with approval in State v. Thomas, supra, this court said at l. c. 769 of 207 S.W.: “In order to charge burglary under section 4520 [now § 560.070], for the burglarious entry of a building in which goods, etc., are at the time kept and deposited, apt allegation must be made of the fact that goods, etc., are kept and deposited therein, together with the further averment that the breaking and entry was with the intent to steal the goods, etc., in the said building then and there being.”

State v. Moten, supra, l. c. 769 of 207 S.W., holds also that while it is permissible to charge both burglary and stealing in the same count, “ * * * the two charges must be kept separate and not jumbled together and intermingled, and each must be a complete and sufficient charge within itself, barring mere formal allegations.” (emphasis supplied.) We adhere to that rule. But in the face of this rule, we look to the allegations of the second count, as the state suggests, to see if those allegations supply the otherwise missing elements of the offense sought to be charged in the first count. Reading the two counts as one, we fail to find apt allegations of the above-discussed essential elements of burglary in the second degree. The information is insufficient to sustain defendant’s conviction of burglary in the second degree.

Because of the result we reach we need not discuss the other assignments of error briefed by defendant.

The judgment is reversed and the cause remanded.

All concur.