author: PRITCHARD, Commissioner.

text:
    CENTURY ELECTRIC COMPANY, a Corporation, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Respondent.
    No. 53052.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1968.

      Thomas J. McGarry, St. Louis, for appellant.
    Gerald K. Presberg, St. Louis, for respondent.
   PRITCHARD, Commissioner.

Appellant sought judgment on the theory of unjust enrichment against respondent for the value of a travelling crane situated on the latter’s premises (a portion of which was going to be condemned for highway purposes) which had, since June 1, 1926, been under written lease to appellant. The prayer for damages was $95,000. Upon respondent’s motion for judgment on the pleadings the trial court dismissed appellant’s petition and the propriety of that action is now before this court.

Count II of the petition alleges that on June 1, 1926, the parties entered into a continuing lease for unimproved land, which provided that appellant could erect a large travelling crane on the premises and place supports for the crane on adjacent premises of respondent. It was alleged that the lease could be terminated by either party on six months’ notice; that it was the intent of the parties that the lease would be exceptionally long (in term); and it was silent as to whether appellant’s improvements would be classed as real or personal property.

It is then alleged that all rents and taxes have always been timely paid by appellant, that it did erect a large travelling crane upon the leased premises and used both of the same continually and without interference in connection with its adjoining five-story warehousing operation since June 1, 1926. Respondent, under a reservation in the lease, used the crane free of charge when it was not in use by appellant.

By paragraph 6 of the petition it was alleged that the Missouri State Highway Commission had announced that it would take a portion of the premises for highway construction, affecting the lease, and had started negotiations prior to actual condemnation, and in its appraisal included the crane as part of the proposed condemnation award.

On November 19, 1965, respondent served notice upon appellant that it desired to ter-mínate the lease on June 1, 1966, and has failed and refused to determine and settle or even discuss with appellant the portion of the total award in condemnation properly belonging to it. It is alleged also that the reason for giving the notice to terminate the lease was to gain complete domination and control of the leased premises prior to condemnation award, and hold for respondent’s benefit the portion of the total award belonging to appellant by reason of the complete removal of the crane. It is alleged that by its bad faith termination of the lease of 40-years’ duration, respondent will unjustly enrich itself in the amount of $95,000, by refusing to reimburse appellant for the value of its improvements.

Respondent’s motion for judgment on the pleadings is on these grounds: “1. That there is no dispute as to any material fact in this case and said pleadings, with exhibit annexed, show on their face that Defendant is entitled to judgment as a matter of law. 2. That the Petition filed in this case fails to state any facts upon which any relief can be granted to Plaintiff and fails to state a cause of action against this Defendant.”

Apparently Count I of the petition, not included in the transcript of the record, was for an injunction as there is in the transcript a “Return to Order to Show Cause” filed by respondent as to why a temporary injunction should not be granted as prayed for in the petition. This return was refiled as respondent’s answer on March 24, 1967 (apparently to Count I but it also has admissions and denials relevant to Count II, and the lease between the parties is attached and incorporated by reference in the pleading), and on April 19, 1967, an answer was filed to Count II of appellant’s first amended petition. That answer admits the corporate existence of the parties, that they entered into the lease June 1, 1926, that it was terminated by notice, and that the travelling crane was erected on the premises by appellant. All other averments of the petition are denied. Then respondent alleged that it “agrees Plaintiff may remove the aforesaid travelling crane from Defendant’s premises, provided, such removal is accomplished by Plaintiff within 30 days after its removal is required to accommodate the construction program of the Missouri Highway Department as evidenced by written demand for such removal from said department and, provided further, this agreement shall in no manner alter or affect the termination of said lease and defendant’s rights thereunder as accomplished by the aforesaid notice of termination.” The motion for judgment on the pleadings was sustained by the trial court on April 5, 1967.

Section 509.360, RSMo 1959, V.A. M.S., and Civil Rule 55.39, V.A.M.R., provide that “After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.” For the purposes of the instant motion the pleadings are treated as closed when the “Return to Order to Show Cause” was refiled as an answer on March 24, 1967, it having allegations meeting those of Count II of the petition. The answer of April 19, 1967, being after the motion was ruled upon, would have had no effect upon the pleadings and, of course, could not have been considered by the court in ruling upon the motion.

By the allegations of appellant’s petition, considered as true for the purposes of the motion (Ralph D’Oench Co. v. St. Louis County Cleaning & Dyeing Co., 358 Mo. 1072, 218 S.W.2d 609, 611 [1]), it is apparent that it is seeking compensation for something that is attached to the realty as an improvement. It is alleged that appellant is entitled to a portion of an award in condemnation to be paid respondent and that the appraisal negotiations of the con-demnor included the travelling crane. The lease here is silent as to the ownership of the improvements upon termination of the lease. In such case the rule in this state is set forth in Buhlinger v. United Firemen’s Ins. Co. of Philadelphia, Mo.App., 16 S.W. 2d 699, 701, where it was said, “There is no provision authorizing lessee to remove any-building that he might erect during the life of the lease, and, therefore, the building which he erected became a part of the realty. Thompson on Real Property (1924) §§ 149, 172, 179; Schneider v. Bulger (Mo.App.) 194 S.W. loc.cit. 739; McAllister v. Reel, 59 Mo.App. loc.cit. 74.” In the there cited McAllister case the lease provided that lessee would be compensated for improvements in the event of a sale; it was held that condemnation of the property was not a sale; and it was said, “The improvements when made became the property of the defendant, as there was nothing in the lease authorizing their removal, or requiring that they should be paid for at the end of the term. The plaintiff was only entitled under the lease to pay for the improvements, in case the defendant should sell the premises prior to the expiration of the leasehold. The defendant did not sell, but the property was taken for public use.” (59 Mo.App. loc.cit. 74.)

It is alleged that the lease was terminated pursuant to six months’ notice as provided therein. As there was a legal right of either party so to terminate the lease, that act was not wrongful as to appellant. It is not of any significance that the condemnor in negotiations appraised the crane with the property, as alleged. It is proper for the whole property to be valued in condemnation without regard as to who put improvements thereon or the right to remove them (which are matters to be considered when it comes to apportioning the damages between owner or lessees, if any right therein exists). City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600, 607 [15, 22],

No facts are pleaded by appellant to show that it is entitled to any compensation on its theory of unjust enrichment. Hoffman v. Hogan, 345 Mo. 903, 137 S.W.2d 441, had in it an initial agreement between landlord and tenant that the latter could rent the balance of land (above 140 acres) to others and sell the land, and there was an understanding that lessee was authorized to clear the land and make improvements. The fact here that respondent could, under the reservation in the lease, use the crane free of charge, would raise no implication that it was to reimburse appellant for its value at the termination of the lease. The Hoffman case is inapplicable. It is not here alleged that the travelling crane is an item such as a trade fixture (36A C.J.S. Fixtures § 33, pp. 681, 682) which could be removed without material injury to the realty. See also 51 C.J.S. Landlord and Tenant § 394c, pp. 1137, 1138. It is nowhere alleged that appellant is entitled, by reason of facts and circumstances, to remove the crane and that respondent is wrongfully refusing to permit such removal. It is alleged only that respondent has failed and refused to settle or even discuss with appellant the portion of the total award in condemnation properly belonging to it. Under the foregoing authorities, appellant has failed to plead facts showing it has a right to any such award. See also Annotation, 3 A.L.R.2d 286, 305, § 9; and 29A C.J.S. Eminent Domain § 175(2), p. 752. The trial court did not err in sustaining the motion for judgment on the pleadings.

The judgment is affirmed.

BARRETT, C., not sitting.

STOCKARD, C, concurs.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Donnie Ray McCORMICK, Appellant.
    No. 53157.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Motion for Transfer to Court En Banc Denied April 8, 1968.
    Norman H. Anderson, Atty. Gen., Michael P. Riley, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
    Charles Clayton, Clarksville, Philip Scha-per, Jr., Bowling Green, for appellant.
   PRITCHARD, Commissioner.

The sole issue on this appeal is whether appellant was denied his constitutional rights under the Sixth and Fourteenth Amendments to the Constitution of the United States by reason of the trial court’s refusal to grant his pretrial motion, made as a poor person, to take depositions and for stenographic services.

By the verdict of a jury appellant was found guilty of the commission of the crime of murder in the first degree. Having been found to be a second offender under § 556.280, RSMo 1959, V.A.M.S., appellant was sentenced by the court to imprisonment for life in the Department of Corrections.

Appellant’s motion to take depositions and for free stenographic services therefor is to this effect: He moves the court to order and direct the court reporter or some other qualified stenographer or public stenographer, who is also a notary public, to take and transcribe the depositions of James M. Marshall, J. W. Lindsey, Robert Cash-man, Shelby Ward, Henry A. Sweets, M.D., J. O. Mudd, Alberta Hoover, Maybelle Beuterbaugh, Gene Grammer, and John Wesley Penn, at the expense of the State of Missouri, or County of Pike. It was stated in the motion that appellant was charged with the crime of murder in the first degree; had pleaded not guilty thereto on his arraignment; that he did not in fact commit said crime and that it was necessary to properly prepare his defense that depositions be taken of each of said persons and of any other persons who might be endorsed as witnesses by the state; that he had no funds to employ a court reporter or stenographer; and that he is indigent. The motion was overruled on September 19, 1966, and the trial began on February 27, 1967. The persons named in the motion testified at the trial except J. W. Lindsey, Robert Cashman, and May-belle Beuterbaugh.

Supreme Court Rule 25.10, V.A.M.R., provides: “A defendant in any criminal case pending in any court may obtain the deposition of any witness to be used in such case conditionally.” By the following Rule 25.11 it is provided that “the method of taking such depositions shall be governed by the statutes or rules applicable to civil actions, except as otherwise provided herein.” See §§ 545.380, 545.390 and 545.400, RSMo 1959, V.A.M.S. The matter of the right of a defendant in a criminal case to take depositions has long been established by said statutes and rules. See Ex parte Welborn, 237 Mo. 297, 141 S.W. 31, 33 [1], “Since the defendant may have witnesses examined conditionally in his behalf exactly as in civil cases (section 5173, R.S.1909), save that a commission must issue, and since in civil cases a party to a pending suit ‘may obtain the deposition of any witness, to be used in such suit, conditionally’ (section 6384, R.S.1909), the commission under section 5173 issues on demand as a matter of right without any preliminary showing. The deposition of any, consequently every, witness may be taken, and the sole prerequisite to the issuance of a commission under section 5173 is that defendant desires one, and asks for it.” Appellant did not ask for a commission to issue to take depositions, but the basic request addressed to the court is that the stenographic services for the taking and transcribing of the witnesses’ testimony be paid for by the state or county. It was held upon this precise question in State v. Aubuchon, Mo., 381 S.W.2d 807, 812 [2-4], that “The taking of depositions at all, civil or criminal, is a privilege granted by the State and upon such terms as the State may fix. * * * The State of Missouri has done much over the years in furnishing an adequate defense to indigents in felony cases; more may remain to be done, but the legislature has certainly not provided for the payment or advancement of the cost of defendant’s depositions and the courts have no authority to order any such payment.” (Italics added.) The federal case of United States v. Germany (U.S.D.C., Ala.), 32 F.R.D. 421, relied upon by appellant, had in it a failure and refusal on the part of the United States to provide funds and to reimburse court-appointed counsel for the indigent defendant in interviewing a material witness, all pursuant to a court order made upon the express authority of Rule 15, Federal Rules of Criminal Procedure, U.S.C.A. That rule, 15(c), expressly provides that “ * * * If it appears that a defendant at whose instance a deposition is to be taken cannot bear the expense thereof, the court may direct that the expenses of travel and subsistence of the defendant’s attorney for attendance at the examination shall be paid by the government. In that event the marshal shall make payment accordingly.” Missouri has no such rule, and at present there is a lack of legislative authority to provide funds for the purpose of taking depositions on behalf of an indigent defendant.

While the motion was granted in the Germany case, supra, it has been held that a motion made under Rule 15 is addressed to the discretion of the trial court; that it is to be granted only in “exceptional situations”; that the moving party has the burden of demonstrating the availability of the proposed witnesses and their willingness to appear; the materiality of the testimony which it is expected they will give; and that injustice will result if the motion is denied. United States v. Whiting (C.A.N.Y.1962), 308 F.2d 537, 541 [4, 5], cert. den. 372 U.S. 919, 83 S.Ct. 734, 9 L.Ed.2d 725.

Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, also relied upon by appellant, concerns only the furnishing of a transcript of the record to an indigent defendant, which transcript was necessary for him to present on appeal alleged prejudicial errors occurring during trial.

Appellant has not shown how he was or could have been prejudiced by the refusal of the trial court to provide free stenographic services in the taking of depositions. Upon the positive and strong testimony concerning his commission of the alleged crime of first degree murder, it is not suggested how that testimony could have been refuted, impeached, or lessened in effect or that injustice resulted by denial of the motion. And of significance is the fact that appellant did not exercise his right to submit interrogatories to witnesses under the provisions of Supreme Court Rule 25.11, V.A.M.R.

Complied with are matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    George KRUMPELMAN and Myrtle M. Wright Krumpelman, Respondents, v. Bernard J. KRUMPELMAN, Margaret Mary Branch, Cecelia Gandy, Laureen Ballenger and Eileen Whitehurse, Appellants.
    No. 53076.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.
    James J. Wheeler, Keytesville, for respondents.
    Edward W. Speiser, Salisbury, for appellants.
   WELBORN, Commissioner.

Quiet title action. Trial court quieted title in plaintiffs. Defendants appealed.

Plaintiffs in this action, George and Myrtle Krumpelman, are husband and wife. George and Myrtle were married June 16, 1962. George was 78 years of age at the time. Both George and Myrtle had previously been married. George had five children from his prior marriage. They are the defendants in this case. Myrtle had four children from a previous marriage.

On June 4, 1962, George and Myrtle entered into an antenuptial agreement. The agreement recited that George owned 160 acres of land in Yellow Creek Township, Chariton County, “as to which there shall be conveyed promptly after marriage a life estate in remainder to [Myrtle] to take effect in possession on the death of [George], as a provision for her support during her life in the event [Myrtle] survives [George], but as to which [George] reserves a life estate for his own life and the fee following [Myrtle’s] remainder for life * *

The agreement further recited that Myrtle owned 140 acres in Macon County, as to which she would convey a similar interest to George.

The agreement provided that in consideration for such conveyance, “it is agreed that neither party shall upon or subsequent to said marriage acquire any interest * * * in or to the property * * * 0f * * * the other * *

On July 17, 1962, George executed a deed to Myrtle which gave rise to this action. The conveyance was of 160 acres in Chari-ton County. The deed was in the form of a general warranty deed to Myrtle, “her heirs and assigns.” It contained the following provision:

“Grantor reserves unto himself the right to the use, possession, and profits of the aforedescribed property for and during his natural lifetime and further reserves unto himself and his heirs and assigns all the right, title and interest in the aforedescribed property after the natural lifetime of the grantee herein, Myrtle M. Wright KrumpZe-man.”

In their petition in this action, filed October 13, 1966, plaintiffs alleged that an uncertainty existed as to whether, under this provision, the heirs of George acquired an interest in the premises, either present or future, by reason of the reservation in the deed. The defendants’ answer alleged that the deed granted to them a vested remainder interest, subject to the prior life estates of George and Myrtle.

After a trial, at which George was the only witness for plaintiffs and Myrtle the only witness for defendants, and at which the deed and the antenuptial agreement were introduced in evidence, the trial court found that George was the owner of the fee, subject to the life estate of Myrtle after the death of George, and that the defendants have no interest in the property. The defendants appeal from this judgment.

On this appeal, the defendants contend that the undisputed testimony of plaintiffs at the trial was that plaintiffs intended that the remainder interest in the lands vest in defendants, subject only to the successive life estates of George and Myrtle, and that the trial court should either have so construed the deed or have reformed the deed, in accordance with the prayer of defendants’ amended answer, to have given effect to such intention. Plaintiffs contend that the deed is clear on its face, but that in any event the oral declarations of the parties, were they admissible, would not support the construction contended for by defendants.

George testified that the deed had been prepared by a lawyer and that Myrtle executed a deed to him at the same time as he executed the deed to Myrtle. According to the witness: “We made a contract so her kids would get her part of her estate and mine would get mine, that’s what it was made for.”

“Q In other words, it was your intention that if she outlived you that she would have your property as long as she lived P
“A That’s right.
“Q And when she died it was to go to your children?
“A That’s right.”

The witness testified that he had a similar understanding of the effect of the contract and Myrtle testified to a similar understanding of the transactions. It is this testimony upon which defendants rely.

On this appeal, appellants’ sole reliance is upon the contention that this evidence established that the grantor’s intention was to convey a present interest to his children and that the deed should either be construed or reformed to give effect to such intent.

By what is known as the “doctrine of reversion” “* * * an inter vivos conveyance for life, with attempted remainder to the heirs or next of kin of the conveyer, is ineffective to create a remainder, but leaves a reversion in the conveyer.” 28 Am.Jur.2d, Estates, § 174, p. 303. The doctrine has been recognized and applied in this state. Wells v. Kuhn, Mo.Sup., 221 S.W. 19; Stephens v. Moore, 298 Mo. 215, 249 S.W. 601; Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641, 643[9]. Although this is only a rule of construction, which will yield to an otherwise ascertainable contrary intention on the part of the grantor (Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187, 125 A.L.R. 531), our review under Supreme Court Rule 73.01, V.A.M.R. of this court-tried case does not cause us to conclude that the trial court’s conclusion was “clearly erroneous.”

The grantor did testify, largely in response to leading questions on cross-examination, that his intention was that his wife should have a life estate in the property after the grantor’s death and that thereafter it was to go to the grantor’s children. However, such testimony must be viewed in the light of the entire circumstances. The antenuptial agreement was obviously intended to afford the surviving party to the marriage the benefit during his or her lifetime of the whole of the property that each owned at the time of the marriage. However, it was further clear that the object of the parties’ arrangement was to avoid the devolution of the property of either to the children of the other. The statements of the parties at the trial express no further or different intention. Neither testified as a person experienced in the intricacies of conveyancing. However, they knew what they wanted to accomplish and the testimony at the trial was nothing more than the witness’s method of explaining how the ultimate result was intended to be accomplished. We are satisfied with the trial court’s conclusion that the testimony did not show an intention of the grantor to establish a present interest in his children, whether the matter be considered from the standpoint of construction of the deed or the request for reformation. The trial court was justified in concluding that the testimony should not be given the effect which appellants urge. We find no reason to disagree with the trial court’s conclusion.

Judgment affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges Concur.


author: FINCH, Presiding Judge.

text:
    Delbert R. CROSSWHITE, Appellant, v. STATE of Missouri, Respondent.
    No. 53108.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1968.
    W. Clifton Banta, Charleston, for appellant.
    Norman H. Anderson, Atty. Gen., L. James Gardner, Asst. Atty. Gen., Jefferson City, for respondent.
   FINCH, Presiding Judge.

Defendant appeals from an order overruling his motion under Supreme Court Rule 27.26 (all references are to V.A.M.R.) to vacate a judgment and sentence dated July 23, 1937, which sentenced him to life imprisonment on a charge of first degree murder.

On December 11, 1966, defendant filed pro se his motion to vacate. In it he alleged with reference to his first degree murder conviction that (1) he agreed, without benefit of counsel, to waive a preliminary hearing but didn’t go before the Justice of the Peace to waive the preliminary; (2) his circuit court appointed attorneys were incompetent and did not interview witnesses and simply urged defendant to enter a plea of guilty; (3) the jailer coerced defendant and promised him a parole if he would plead guilty; and (4) his plea of guilty was not entered of his own free will.

The Circuit Court appointed W. Clifton Banta of Charleston to represent defendant on his 27.26 motion, and he has done so in a very capable manner in both the Circuit Court and on appeal.

The trial court set the motion for an evidentiary hearing, which was held April 11, 1967, with defendant present. Record entries in the original prosecution, introduced at that time, disclose that on June 29, 1937, defendant was brought before Owen Cook, Justice of the Peace, at which time he waived his preliminary hearing. On July 12, 1937, defendant was brought before the Circuit Court, at which time he was without counsel. The court gave defendant until July IS, 1937, to obtain private counsel. On July 16, 1937, defendant was again brought before the Circuit Court and still had not employed counsel. He requested that counsel be appointed, and the record discloses that the court appointed W. H. Grissom and John Fletcher, both members of the Mississippi County Bar, to represent defendant. On July 21, 1937, defendant appeared with counsel in the Circuit Court and entered a plea of guilty, but sentencing was deferred. Then on July 23, 1937, defendant again appeared with counsel and was sentenced to life imprisonment.

The evidence on behalf of defendant (other than the record entries reviewed above) consisted principally of the testimony of defendant himself. It was as follows: He was brought to the jail on the night of June 25, 1937. On the next morning, James Haw, the Prosecuting Attorney, talked to him briefly. Then on the morning of June 29, Haw came to the jail and asked him if he wanted to waive a preliminary hearing. Haw did not explain what a preliminary hearing was and he knew nothing about it. Nevertheless, defendant told Haw he would waive a preliminary hearing, but he did not go to the office of the Justice of the Peace to actually waive the preliminary hearing. Defendant’s brother Frank was permitted to see defendant at any time. He came to the jail to see him every day from about June 27 until July 23, and on some days he would see the defendant twice a day. He was trying to employ counsel and to get money for that purpose. On July 12, defendant first appeared in the Circuit Court before Judge Frank Kelly. He still did not have an attorney and he says that he asked for a continuance but it was not granted. The judge told the defendant that he would give him until July 15 to employ an attorney. Then on July 16 he again appeared in the Circuit Court and the judge asked whether he had an attorney and he advised that he did not. The judge then asked if the defendant wanted an attorney appointed. Defendant replied that it looked like that was the only way he would get one. The court then appointed William Grissom.

Defendant says that Grissom came and talked to him and his brother in the jury room that afternoon or evening and that Grissom stated that defendant had a bad case and if he did not hang, Grissom would be surprised. Grissom remarked that the only way he could help defendant was if he pleaded guilty. Defendant replied that he did not want to plead guilty, and Grissom remarked that it was his only hope. Gris-som did not ask what occurred on the night of the alleged offense, but defendant gave him the names of several witnesses (five, he thought). When asked whether Grissom saw them, defendant said, “There was nothing to show that he ever did.”

Defendant further testified that after this conference with Grissom, his brother Frank went to Judge Kelly and asked that Grissom be disqualified. The next day, John Fletcher showed up with Bill Grissom. He said that Grissom still did all the talking and that he still urged the defendant to plead guilty. Defendant then gave the names of witnesses to the two of them but neither seemed interested.

Defendant next saw Grissom on July 21 and Grissom still urged him to plead guilty and avoid being hung. He then gave in and they went before Judge Kelly. The judge asked him if he wanted to enter a plea of guilty, and he said yes, and the judge then indicated he would defer sentencing until August 5.

Defendant testified that the Prosecuting Attorney never talked to him about entering a plea of guilty, and that he was never threatened or abused or promised anything by the Prosecuting Attorney, by Sheriff Walter Beck, or by Judge Kelly. However, the jailer, who he said was a Mr. Lynn, talked to him and told him that he ought to plead guilty and that the defendant would only be in prison five or six years and the jailer then would get him out on parole.

Defendant also- said that the range of punishment on first degree murder was not explained to him and that he didn’t know what he was pleading guilty to. On cross-examination, in reciting the basis of his contention that his constitutional rights were violated, defendant stated: “No, I wouldn’t have pled guilty if I wasn’t guilty. I wasn’t guilty until I was proved guilty. It was under coercion; that is the only reason I pled guilty, was under coercion and threats and knowing I was fouled in every way, I had two inadequate attorneys, unqualified to handle criminal cases.”

Defendant’s only other witness was his brother Frank. He told of seeing defendant frequently at the jail and of his attempts to obtain private counsel for the defendant. He was present when Judge Kelly appointed Mr. Grissom as counsel and he and his brother then talked with Mr. Grissom. He said that Grissom wanted defendant to plead guilty and defendant did not want to, and that personally he did not know what to tell defendant to do. Whereas defendant testified that Grissom did not inquire about what had happened and did not ask about witnesses, Frank Crosswhite testified that Mr. Grissom did ask the defendant about the case and about what had happened (but didn’t go into detail), and that Grissom also asked about witnesses and defendant told him whom he wanted. Frank did not know whether Grissom ever talked to these witnesses.

Frank Crosswhite also testified that, so far as he knew, no one had coerced the defendant. On July 21 the defendant told him that he was going to plead guilty. Frank stated that prior to that the two of them had talked about it and decided that this was the best thing to do.

The State called James Haw, an attorney at Charleston, who was Prosecuting Attorney in 1937. He remembered going to the scene of the murder the evening of June 25, 1937, and that he saw the defendant the next morning in the Sheriff’s office. He saw him at that time to arrange for him to be at the Coroner’s hearing, although the defendant did not testify at the Coroner’s hearing. Mr. Haw stated that subsequently he explained to defendant what a preliminary hearing is and what defendant could do, and that he could have witnesses brought in, but that the defendant waived a preliminary hearing. Mr. Haw said that the defendant was taken before Owen Cook, the Justice of the Peace, on June 29 to waive the preliminary hearing.

On July 16, when the defendant was in Circuit Court the second time and still did not have privately employed counsel, Judge Kelly asked the defendant if he wanted an attorney, and offered to appoint one if he could not hire one. As a result of the discussion, Judge Kelly did appoint both Mr. Grissom and Mr. Fletcher. This was done on July 16 and the men were not appointed on successive days, as defendant testified. Mr. Haw testified that both men were competent to try murder cases and to advise the defendant, and he mentioned that Mr. Grissom was forceful and knew his duty to his client and that no one ran over him.

Mr. Haw also testified that Judge Kelly told the defendant the range of punishment on a charge of murder in the first degree before he entered his plea of guilty, and that the defendant was fully advised of his rights by the court.

Another witness called by the State was Walter Beck, who was the Sheriff of Mississippi County in 1937. He did not remember many details about the case, but did testify that the defendant was not promised anything to plead guilty, that he was not abused in any way and that he was permitted visitors, including his brother, at any time. Mr. Beck testified that Vernon Brooks was the jailer at that time, not a Mr. Lynn.

The record discloses that Owen Cook, the Justice of the Peace, was deceased at the time of the trial, that both Judge Kelly and Mr. Grissom had been dead for several years, and that Mr. Fletcher, then eighty-three, was still living but in bad health.

On May 31, 1967, Judge Craig overruled the defendant’s motion to vacate and made various findings. He found that the defendant was not denied a preliminary hearing, that the defendant was not mistreated, that the defendant was represented by two competent attorneys, that the defendant was competent and cooperative with the attorneys, that the constitutional rights of the defendant were not violated and that he received due process and equal protection of the law.

At the outset, we observe that the burden of proving ground for relief rests on the prisoner, Supreme Court Rule 27.26 (f), and that on appeal our review is limited “to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous,” Supreme Court Rule 27.26(j). Prior to the amendment of Rule 27.26, effective September 1, 1967, Supreme Court Rule 28.05 provided for de novo appellate review in proceedings under Rule 27.26. However, Supreme Court Rule 28.05 was repealed, effective September 1, 1967, and the review provided by Supreme Court Rule 27.26(j) was substituted. The appellate review thus established corresponds to the appellate review of federal post convictions under § 2255, Title 28, U.S.C. Clearly, this is not a de novo review. Rather, the findings of the trial court are presumptively correct and are to be sustained unless clearly erroneous. Amer v. United States, 8 Cir., 367 F.2d 803; Drummond v. United States, 8 Cir., 350 F.2d 983; Burge v. United States, 8 Cir., 332 F.2d 171. An excellent statement describing the “clearly erroneous” type of review made in the federal courts and contemplated by our Rule 27.26 (j) is contained in Clayton v. United States, 8 Cir., 302 F.2d 30, 35.

“From the foregoing resume it plainly appears that this Section 2255 proceeding (civil in nature, Taylor v. United States, 8 Cir., 229 F.2d 826, cert. den. 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500), presented an issue of fact for the trial court, namely, whether appellant was ‘competent’ on October 10 and on October 24, 1958, * * *. It is equally manifest that on this appeal the narrow question is whether the findings of the trial court are clearly erroneous or were induced by an erroneous view of the law. ‘The findings of the court are presumptively correct and will not be set aside unless clearly erroneous. Federal Rules of Civil Procedure, Rule 52(a), 28 U.S.C.’ Lipscomb v. United States, 8 Cir., 209 F.2d 831, 834, 835, cert. den. 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105.”

Judge Matthes then proceeds to' further define or explain “clearly erroneous” by a quotation from United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, as follows: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”

We have examined the transcript and have concluded that there is ample basis for the findings and judgment of the trial court and that the same are not clearly erroneous.

On the issue relating to the preliminary hearing, the defendant testified that nobody had explained to him about a preliminary hearing, that he did not know what it was, and that Mr. Haw did not explain it to him. However, James Haw, the Prosecuting Attorney, testified that he did explain all about a preliminary hearing and the defendant’s rights before the defendant agreed to waive the preliminary. The defendant stated that he was not taken before the Justice of the Peace, but he was contradicted on this by Mr. Haw, who testified that he was taken before the Justice of the Peace, and, of course, the record entry so indicated. The credibility of the witnesses was for the trial court to determine.

Defendant also asserts that he had a constitutional right to counsel at his preliminary hearing, citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799, 93 A.L.R.2d 733; Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed. 2d 193. This court has decided on several occasions that the preliminary hearing is not a critical stage in Missouri and that there is no absolute requirement of counsel at the preliminary hearing. State v. Owens, Mo., 391 S.W.2d 248; State v. Turley, Mo., 416 S.W.2d 75. Nothing appears, from this record to show that defendant was prejudiced by a lack of counsel at that time.

On the issue of competency of counsel, the defendant claimed that his attorneys did not ask anything about what occurred and did nothing about seeing witnesses and simply tried to persuade the defendant to plead guilty. However, his brother testified that Mr. Grissom did inquire about what had occurred and did inquire about witnesses and the names were given to him. The brother testified that he did not know whether the attorneys ever saw the witnesses, and all the defendant could say about that was that there was nothing to indicate that they had seen the witnesses. The record does not contain proof that the attorneys did not talk to the witnesses whose names were given to them, all of whom, of course, were residents of that county. Defendant’s claim of incompetence of the attorneys is based on his assertion that they did not see witnesses or inquire about the case and simply tried to persuade him to plead guilty. On the other hand, James Haw testified that both men were competent and could and did handle this type of case. The fact that they may have urged the defendant to enter a plea of guilty and avoid the possibility of being hanged is not necessarily evidence of incompetence. If the defendant was guilty of murder in the first degree, there were only two possible punishments, death or life imprisonment, and he received the lesser punishment on a plea of guilty. In a first degree murder case, the advice given could have been good advice. Defendant did not sustain his burden of proving incompetency of counsel.

With reference to the claim that his plea was coerced, the evidence is not at all convincing. All of the evidence was that defendant was not threatened or mistreated in any way. The Sheriff, the Prosecuting Attorney and the Judge did not even discuss a plea of guilty with defendant. He was permitted to' have visitors at any time. Defendant’s brother, Frank, testified that so far as he knew defendant was not coerced by anyone. The only evidence offered by defendant was his statement that a jailer by the name of Lynn told him that he ought to plead guilty to avoid being hanged, and that if he did, the jailer would attempt to get him paroled after five or six years. The testimony of Sheriff Beck shows that the jailer was Vernon Brooks, not a Mr. Lynn. This evidence did not sustain defendant’s burden of showing his plea was coerced.

Finally, the defendant claimed that his plea of guilty was not entered of his own free will. To the contrary, the testimony of defendant’s brother indicates that he and the defendant discussed what the defendant should do and that the two of them had concluded that the best thing for defendant to do was to enter a plea of guilty, and that this was done before the plea was entered on July 21. Furthermore, Mr. Haw testified that Judge Kelly did explain the range of punishment and the rights of the defendant. The defendant says that his attorneys urged him to enter a plea of guilty but does not claim that the attorneys coerced him into so doing, and the trial court certainly was justified in finding that the plea was not coerced and that the defendant’s constitutional rights were not violated.

Apparently, all available evidence relating to these questions was introduced at the evidentiary hearing held on April 11, 1967. Many of the principals have died during the intervening thirty years. One of them, John Fletcher, was in poor health so that he was not used as a witness, but apparently the other persons still living who had any knowledge of the matter testified. There is nothing in the record to indicate the existence of any other persons who would have any knowledge about the matter. Hence, it would appear that the record now before us contains all the information which is available.

While it would have been desirable that the findings and conclusions of the trial court be somewhat more detailed, they do dispose of the issues raised and are supported by the evidence introduced. They are not clearly erroneous.

The judgment is affirmed.

All of the Judges concur.

      . This presupposes, of course, that the trial court has conducted an evidentiary hearing when required by Rule 27.26 and that it has made the necessary findings and conclusions pursuant to Rule 27.26 (i).


author: SEILER, Judge.

text:
    STATE of Missouri ex rel. ST. LOUIS COUNTY, Missouri et al., Relators, and Don B. Sommers, Relator-Intervenor, Respondents, v. James C. KIRKPATRICK, Secretary of State, State of Missouri, Godfrey Padberg et al., Appellants.
    No. 52822.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.

      Joseph B. Moore, St. Louis County Counselor, Thomas W. Wehrle, Deputy County Counselor, Clayton, for respondents St. Louis County and Lawrence K. Roos.
    Walter M. Clark, St. Louis, for respondent, Don B. Sommers.
    Norman Barken, St. Louis, for appellants.
   SEILER, Judge.

The first question before us in this case is whether relator St. Louis County has the authority to enact an ordinance submitting to the voters cf St. Louis County at the next general election, a proposal calling for the nonpartisan appointment and retention of circuit judges and probate judges in said county, pursuant to the provisions of Art. V, § 29(a)-(g), 1945 Constitution, V.A. M.S., and another ordinance with the same proposal as to magistrate judges. The Board of Election Commissioners refused to place the two proposals on the ballot. The county, joined by intervenor Sommers, a registered and qualified voter of the county, petitioned the circuit court of St. Louis County for a writ of mandamus requiring the Election Board to submit the proposals to the voters. The circuit court, after a hearing, entered an order issuing a peremptory writ, and respondent Board of Election Commissioners has appealed. The trial court, on October 25, 1966, found the failure of the General Assembly to provide for the submission to the voters of St. Louis County of the question of adoption of the nonpartisan court plan was a denial to in-tervenor Sommers of equal protection and due process of law; that the two ordinances were part of an orderly procedure for the submission of the propositions contained so as to guarantee equal protection and due process to the intervenor and others similarly situated, and ordered respondents to submit the two propositions at the next general election after the November 8, 1966 election.

The county contends that by virtue of its charter provision authorizing it to exercise all powers of legislation conferred on counties by the constitution and the holding in Heilman v. St. Louis County (Mo.Sup.) 302 S.W.2d 911, 916, that Art. VI, § 18(b), carries with it an implied grant of such powers as are reasonably necessary to the powers granted and not contrary to the public policy of the state, the County Council as the “legally authorized agency to order elections” is authorized to guarantee due process and equal protection to respondent Sommers and other citizens of the county by adopting the two ordinances in question, which, it argues, the election board must then carry out by submitting the proposals to the voters.

If St. Louis County, which is a county of the first class operating under a home rule county charter, originally adopted by its voters in 1950, has any authority to enact such ordinances, it must be found in Art. VI, § 18, of the 1945 Constitution. Our construction of the section is that it does not give St. Louis County any such authority. Therefore, the two ordinances are not valid and the judgment must be reversed, State on Information of Dalton, ex rel. Shepley v. Gamble, banc, 365 Mo. 215, 280 S.W.2d 656, 659-660.

While it is true Art. VI, § 18(b), requires a county home rule charter provide for certain matters, including the “ * * * manner of selection * * * of the county officers * * * ”, this, in our opinion, does not give the St. Louis County Council the right to submit proposals as to the manner of selection of circuit, probate, and magistrate judges. “Circuit judges are judges of the State of Missouri and not merely judges of the circuit in which they are elected or appointed”, Cantrell v. City of Caruthersville, 363 Mo. 988, 255 S.W.2d 785, 786. It has been held that probate judges are not county officers, State ex rel. Buchanan County v. Imel, 242 Mo. 293, 146 S.W. 783, 784—785. Part of the judicial power of the state is vested by the constitution in the circuit, probate, and magistrate courts, Art. V, § 1. The matter of the selection of circuit, probate, and magistrate judges is not a power which is incident to home rule county government. We hold such is not within the powers directly granted St. Louis County in its home rule charter or reasonably necessary to the exercise of the powers which are granted to it. Art. VI, § 18(e) reserves election laws to the legislature and the state statutes have, for many years, provided the means of selection, by primary and general elections, of circuit, probate, and magistrate judges throughout the state (except, of course, for the operation of the nonpartisan court plan in St. Louis City and Jackson County), while the constitution has prescribed the terms and qualifications of such judges. Even though St. Louis County under its charter must perform certain state functions over the entire county, State on Information of Dalton ex rel. Shepley v. Gamble, supra, 280 S.W.2d 1. c. 660, it is not within the constitutional power granted the county to provide for the manner of selection of such judges, State ex rel. Cole v. Matthews (Mo.Sup. banc) 274 S.W.2d 286, 292.

In fact, until the present attempt St. Louis County apparently has made no effort to legislate in the field of the manner of selection of judges. Its charter, Art. II, § 3, does not include circuit, probate, or magistrate judges as elective county officers and the charter does not purport to provide for their selection or election. It is evident the county itself has not heretofore construed the constitution or charter as giving it such power.

Having concluded the St. Louis County Council has no authority under the 1945 Constitution and its charter adopted thereunder to submit the proposals in question to the voters of the county, there is no need to reach other matters discussed in the briefs which necessarily fall out of the case if the county has no authority to act in the first place.

The judgment is reversed and petition for writ of mandamus ordered dismissed.

STORCKMAN, J., and HOLMAN, Alt. J., concur.

HENLEY, P. L, not sitting.

      . This was a case which held St. Louis County had authority to enter into certain contracts with appraisal companies for the appraisal of real estate in the county.


author: HIGGINS, Commissioner.

text:
    Virginia P. McCLELLAN, Plaintiff-Appellant, v. HIGHLAND SALES & INVESTMENT CO., Inc., Defendant-Appellant.
    No. 52566.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.

      Edward F. Aylward, Kansas City, for plaintiff-appellant.
    Terrell, VanOsdol & Magruder by Robert F. Redmond, III, Kansas City, for defendant-appellant.
   HIGGINS, Commissioner.

Action to require removal of remains from a grave (Count I), for actual damages (Count II), and punitive damages (Count III) for trespass upon the grave. Jury verdict on Counts II and III was for plaintiff for $550 actual and $1,000 punitive damages; Count I was dismissed by the court. Plaintiff appeals from the dismissal of Count I and from the award of a new trial to defendant on Count II; defendant appeals from the overruling of its motion for judgment in accordance with its motions for a directed verdict.

Both appellants assert jurisdiction in the supreme court on the theory that the action involves title to real estate.

Plaintiff’s Count I alleged that in May 1964 she was the owner of a grave in which she was to be buried with her husband, Grant H. McClellan, who predeceased her; that defendants “notwithstanding her ownership and a headstone with her and her husband’s name thereon standing by said grave, trespassed upon and buried another person in said grave; that plaintiff has no adequate remedy at law to restore her grave to herself so she can be buried with her husband at her death.” The prayer of Count I was that defendants “be made to remove the body and remains from the grave of which she is owner * * * and such other * * * relief, including injunctive relief, as the Court deems just and proper.”

Count II charged that defendants “wrongfully buried another person in said grave; that defendants thereby trespassed upon plaintiff’s real property.” The prayer was for $1,000 actual damages. Count III charged that the action alleged in Count 11 was willful, wanton, and malicious, and prayed for $5,000 punitive damages.

Defendants’ answer was a general denial and “Further answering, defendants state that plaintiff’s husband, Grant H. McClellan, was buried in Grave 11, Lot 7, Block 7, Highland Cemetery on February 4, 1958; that said grave lot was purchased by his estate together with the adjoining lot, No. 12; that the decedent’s son, Eddie McClellan, was the executor and sole residuary beneficiary of said estate * * *; that on or about November 24, 1963, the decedent’s first wife, Bessie McClellan, died; that Eddie McClellan, her son, instructed Lawrence A. Jones Mortuary and Highland Cemetery to bury his mother in grave No. 12 which he had purchased as executor of his father’s estate; that Bessie McClellan was buried * * * November 27, 1963; that the cost of said grave lot was $50.00; and that the plaintiff has no right, title or interest therein.”

Plaintiff, Virginia P. McClellan, married Grant H. McClellan September 7, 1956. He previously had been married for forty-three years to Bessie McClellan, their marriage ending in divorce June 17, 1949. Grant and Bessie McClellan raised Eddie McClellan as their son. Grant McClellan died and was buried in Grave 11, Lot 7, Block 7, Highland Cemetery, owned by defendant Highland Sales and Investment Co., Inc., February 4, 1958. Funeral arrangements were made with Watkins Brothers Funeral Home by plaintiff (her version) and by Eddie McClellan (his version). Plaintiff made a cash deposit on the funeral bill of $150, and the balance of $1,057.29 was paid from the estate of Grant McClellan by Eddie McClellan, executor. The bill included an item of $50 for a reserved grave beside the grave in which Grant McClellan was buried. Plaintiff claimed this grave to have been reserved for herself. All arrangements concerning the funeral and grave were made by Watkins Brothers Funeral Home. Plaintiff received nothing from Highland; Highland received nothing from plaintiff. Highland was not advised for whom the grave was reserved except for the McClellan family. Plaintiff testified that she called Highland Cemetery several times about a deed to the reserved lot.

Upon the death of Bessie McClellan, November 24, 1963, Eddie made arrangements for her funeral and burial with Woodland Funeral Home. He advised the funeral director, Lawrence Jones, that he had reserved a grave site in Highland Cemetery and that his mother, Bessie McClellan, could be buried there. Mr. Jones confirmed the reservation of a grave in the name McClellan, and Bessie McClellan subsequently was buried in that grave, No. 12, Lot 7, Block 7, Highland Cemetery, November 27, 1963.

In the fall of 1958, plaintiff ordered a double grave marker through Watkins Funeral Home and had it placed on these grave sites at a cost of $226.96. It was inscribed “Grant H., 1888-1958” and “Virginia P., 1903-19 .” This marker was in place when Bessie McClellan was buried. Eddie did not recall seeing it; plaintiff was not at the burial; and Mrs. Alma P. Morrison, manager of Highland Cemetery, did not know of the inscription until after the burial of Bessie McClellan when it was brought to her attention by plaintiff after she discovered the situation Memorial Day 1964. Mrs. Morrison was unaware until this time that Grant McClellan had been married twice. She also explained that it was not unusual for deeds not to be issued for burial sites.

“ * * * the character of a cause of action is determined from the facts stated in the petition and not by the prayer or name given the action by the pleader,” State v. Consolidated Sch. Dist. No. 4 of Iron County, Mo., 417 S.W.2d 657, 659 [3]; and examination of the petition in that light (and the facts established by the evidence) does not show this case to involve title to real estate within the meaning of Article V, Section 3, Constitution of Missouri, V.A.M.S.

A right of interment, even though not strictly an easement, is an interest in real property for purposes of jurisdiction in this court provided the action directly determines a controversy involving title to the easement, or seeks to establish an easement, or seeks to set aside an easement. Billings v. Paine, Mo., 319 S.W.2d 653. See also Moss v. James, Mo.App., 403 S.W.2d 661, 662 [2, 3], The above proviso has been defined: “Title must not only be in issue; it must be in issue directly, as distinguished from collaterally or incidentally. * * * The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it to another.” Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771, 774 [7,8]; Schell v. Schell, Mo., 381 S.W.2d 864, 865.

There is no allegation in plaintiff’s petition that this defendant owns or claims any interest in plaintiff’s alleged right of interment or burial easement; neither does defendant make any claim to plaintiff’s alleged interest, nor does the evidence show any such claim. Defendant simply alleges by answer that title to the burial easement claimed by plaintiff is in the estate of Grant McClellan. In briefing the question of jurisdiction defendant “submits that the relief sought by Count I on the facts alleged is a decree divesting a third party (Bessie McClellan) of her continued enjoyment of the burial easement granted by defendant and establishing' such easement in the plaintiff,” and plaintiff admits that “defendant did not aver ownership itself.” These concessions are consistent with the pleadings and the evidence and it is not shown that any judgment is sought or would result in which title to an interest in real estate would be taken from one litigant and given to another. Schell v. Schell, supra. See also Billings v. Paine, supra, and State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878, 884 [3, 4], where both plaintiff and defendant claimed title to the real estate in question and sought relief which would take title from one party and place it in the other and jurisdiction was in the supreme court. Cf. Dillard v. Sanderson, 282 Mo. 436, 222 S.W. 766, and Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721, were neither party sought a judgment which would or could take title from one party and lodge it in another and jurisdiction was transferred to the court of appeals.

It is not alleged nor shown that defendant claims any title to real estate which could be taken from it and given to plaintiff, and defendant seeks nothing from plaintiff but to be discharged with its costs. Accordingly, title to real estate is not involved and jurisdiction is in the court of appeals.

Cause transferred to Kansas City Court of Appeals.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Lawrence A. Jones Mortuary, Inc. and Lawrence A. Jones originally were joined as defendants. The suit was dismissed as to them at the close of plaintiff’s case and they no longer are in the case.


text:
    Leslie SWINDLER, Appellant, v. BUTLER MANUFACTURING COMPANY, a Corporation, Respondent.
    No. 52985.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.

      Edward L. Simmons, and Russell D. Jacobson, Kansas City, for appellant.
    Gene C. Morris, of Rogers, Field & Gentry, Kansas City, for respondent.
   WELBORN, Commissioner.

Appeal by plaintiff from judgment in favor of defendant at close of plaintiff’s opening statement on trial for $50,000 damages for personal injuries. A prior appeal was found to be premature because the judgment appealed from did not dispose of all questions and parties. See Swindler v. Gross, Mo.Sup., 395 S.W.2d 109. The claim against codefendant Gross has now been dismissed and the issue between plaintiff and defendant Butler is now properly before us.

This cause of action arose out of injuries sustained by appellant Swindler while employed on the Gross farm in De-Kalb County. On October 21, 1958, Swindler fell when a ladder on which he was standing slipped. He had climbed the ladder to observe the level of the contents of a bin into which feed processed on a Select-O-Mix Grinder was being conveyed. The petition charged negligence against the Grosses in failing to provide a safe place to work in that the floor on which the ladder had been placed was slick concrete, made more slippery by dust and feed particles which the grinding process produced. The petition also charged that the ladder was worn, cracked and broken, and otherwise unsafe.

The petition alleged that Butler was “engaged in the business of manufacturing machinery and other products, and specifically engaged in the manufacture of a machine designated by said defendant as a Select-O-Mix Grinder, which machine was offered for sale to members of the public by the defendant * *

Paragraph 6 of the petition stated plaintiff’s claim against Butler as follows:

“6. States that defendant Butler Manufacturing Company was negligent in the manufacture and design of the Select-O-Mix Grinder in failing to equip said machine with a safe place for workmen to stand while operating said machine, and that defendant knew, or in the exercise of ordinary care should have known, that workmen would be working in close proximity to said machine and that such workmen would be likely to be injured, and of the dangers as aforesaid, prior to October 21, 1958, in time to have remedied said conditions; Defendant Butler Manufacturing Company was negligent in that it failed to instruct or to supply instructions to either defendants Gross and/or plaintiff herein for the installation and operation of the Select-O-Mix Grinder, and that the cause [sic] of * * * the design and manufacture of the grinder as aforesaid that such instructions were necessary in order that the installation and operation of said grinder be safely carried out, and that defendant Butler Manufacturing Company knew, or in the exercise of ordinary care should have known, that men would be working on and in close proximity to said grinder and therefore that such instructions should have been given, but that defendant Butler Manufacturing Company failed or omitted so to do.”

Butler filed a general denial to plaintiff’s petition. The plaintiff propounded interrogatories to Butler. Butler’s answers asserted that it sold the Select-O-Mix Grinder to the Grosses; that the grinder was ordered, at the request of Gross, from the manufacturer, Belle City Engineering Company; that it was delivered directly to Gross; that none of Butler’s employees installed or assisted in the installation of the grinder and that it gave no direction or instruction regarding the installation or operation of the grinder.

In his voir dire examination, plaintiff’s counsel stated that Butler “did not manufacture but * * * sold and distributed and demonstrated a milling and grinding machine.” Butler’s motion for a directed verdict on the basis of such statement alone was overruled. Thereafter, and prior to his opening statement, plaintiff asked leave to amend his petition to state in Paragraph 6 of his petition that Butler “was negligent in the manufacture and design of the Select-O-Mix Grinder, or in-selling said machine * * Butler’s objection to such amendment was sustained.

Plaintiff’s counsel then proceeded to make his opening statement. The following references to Butler were made:

“ * * * [I]n the spring of 1958 Mr. Gross installed what they called a Select-O-Mix Grinder, a machine that grinds and mixes different grains and elevates them to different bins, the bins being up overhead in the building which had been constructed for that purpose, and from these bins the ground and mixed grain comes down and goes into a wagon and it is then taken out and fed to cattle and hogs.

“Mr. Gross got this machine from Butler Manufacturing Company here in Kansas City, Missouri. They had advertised it and displayed it and demonstrated it throughout the midwest here. I think the evidence is they showed it in Atchison, Kansas, and the Trimble-Minor farm, and places like that or of that nature. It was a new product they were selling to farmers, cattlemen and hogmen in this area. The Grosses saw it and went down there and got it and installed it. They built the building and put bins up above the machine into which the different kinds of grain was elevated by means of ducts and tubes. From these bins up above the grinder the grain would come down and mix and be ground into whatever formula was desired. They had some four tubes that would bring in four different kinds of grain which could be mixed and ground into different rations so that when they got through the grinding machine they had a ration for the cattle or other kinds of livestock.

“They installed this grinder and it is about three to four feet square and about that high (indicating), and all these pipes ran into it.

“ * * * Mr. Gross had gone to the Butler and got the machine after he had seen it displayed around the area. Then he took it up and installed it. This machine was solidly built. The sides were about three foot high by three foot wide and sort of a rectangular thing. They were of solid walls. There was no mirror or glass openings so that you could tell from this machine when the grain was coming in or if one of those bins was full, or anything of that nature. Mr. Gross solved this problem by making openings where the un-ground grain came in three or four inches square. Mr. Gross not only had this ladder there, but instead of using a square fitting to fit over the square hole he put a round pipe into the square hole.

* * * ⅝ * *

“This left an opening which he explained as having to leave it that way so he could see when the grain was coming down. Milo is grain that is round and hard like a ball bearing, and that spilled out onto the floor in this grinding process and the dust and the ground grain spilled out onto the floor. And that is where the ladder was set. At no time was there any other place provided for on this machine to show that the grain was moving through that thing other than these openings that were there.

* * * * * *

“There were no openings of any kind except the openings where this raw grain comes down, where a man could see that this grinder had grain to grind, or whether a pipe was clogged, or anything. Not only that, but there was no place provided on this machine for a man to stand while he was working in this vicinity where he would be free from this dust that was bound to come out of this machine grinding grain. The machine had to be anchored to the floor and all these pipes came to it. It was anchored in the concrete floor. It was anchored in such manner that this pit, not only did it come to the west of it but it also extended along the south side of it, about half way along the south side, so you could put a ladder only at the extreme east edge of the machine. You couldn’t work to the south because of the tractors coming through; and you couldn’t work along the south of it because of the pit; and you couldn’t work to the west of it because of the pit, — you had to have this ladder here (indicating). You couldn’t have it too close to this three-foot pit because of the angle that angled it along the south side of the machine. So you are very limited there where this ladder had to be placed.

“At no time did Butler Manufacturing Company ever give anybody any instructions as to how to install this machine to provide for the safety of the people that had to use it to grind this grain. It was designed especially to grind grain which is known to have a high moisture content when it had been freshly harvested. They were bringing milo right straight in from the field. Not only that, there are vegetable oils, corn oil, and so forth, — they look dry on the outside but on the inside they have a high vegetable oil content. It is like a lubricant; they have oil and moisture in them. This machine was designed especially for this use and sold for this use. At no time did they give any instructions as to how to safely use it or install it. So that on the morning of the accident, the event in question, not only was he using this rickety ladder by this machine that had no opening to see whether or not the grain was going down, but this happened in October and they were, at the very time when Mr. Swindler was grinding, they were bringing in freshly harvested milo. Mr. Gross, the son, was actually in the field with the combine harvesting this milo that Mr. Swindler was grinding. The experts will tell us and I am sure you all know that freshly harvested grain has a larger moisture content and that one ton out of every four tons is water. That makes it extremely slick, falling out here on this slick concrete floor. This was the place Mr. Swindler was asked to grind grain in on that particular morning.

“There is another thing that the expert will explain to you, that freshly harvested milo, or any other grain, put in the bin last will come out of the bin first; the last grain in is the first grain out at the bottom. That is the principle we all see in the bath tub, you get a circular motion of the water and out it comes first. This freshly harvested milo was the very grain that he was grinding.”

The statement also stated in some detail the charges against Gross, based largely upon the theory that the ladder which fell with plaintiff was defective.

At the close of plaintiff’s opening statement, defendant Butler moved for a directed verdict in its favor on the grounds that, based upon plaintiff’s opening statement and the admissions therein, plaintiff could not make a case against Butler. The trial court sustained the motion. This appeal eventually followed. The sole question on the appeal is the propriety of the trial court’s ordering a directed verdict on plaintiff’s opening statement.

In Hays v. Missouri Pacific R. Co., Mo. Sup., 304 S.W.2d 800, the court examined at length the practice of granting a directed verdict upon plaintiff’s opening statement. The court there pointed out that there are two general situations in which such action is proper. “The first situation exists when counsel makes an admission in his opening statement which affirmatively demonstrates as a matter of law that his client has no cause of action or is not entitled to recover on his cause of action.” 304 S.W. 2d 803 [1], In this case, there was an admission that Butler was not, contrary to the allegation of plaintiff’s petition, the manufacturer of the grinder. If that were the only theory upon which plaintiff might recover, that admission would be fatal to plaintiff’s case.

However, plaintiff asserts that he was not bound to show'that the grinder actually was manufactured by Butler. Plaintiff points out that the petition also alleges that Butler sold the grinder and argues that the facts stated by plaintiff did not preclude Butler’s liability as a manufacturer or supplier of chattels. This argument involves the second category of situation referred to by the court in Hays v. Missouri Pacific R. Co., supra.

“The second situation is represented by those cases wherein the facts recited by plaintiff’s counsel in his opening statement which he intends or expects to prove would not, as a matter of law, constitute enough when established by evidence to make a submissible case to go to- the jury.” 304 S.W.2d 804.

In this category of cases, the admonition frequently appears that the order of a directed verdict on an opening statement is a radical, harsh remedy, to be applied with great caution. Hays v. Missouri Pacific R. Co., supra, 304 S.W.2d 804; 88 C.J.S. Trial § 161, p. 322; Annotation: “Dismissal, Nonsuit, Judgment, or Direction of Verdict on Opening Statement of Counsel in Civil Action,” 5 A.L.R.3rd 1405, § 3, pp. 1417-1418.

However, a litigant predestined to failure on the facts which form the basis of his claim has no right to burden the courts and the public with a necessarily futile presentation of evidence to establish such facts, and in such circumstances the obvious impossibility of recovery will justify the abrupt termination of his cause of action upon his counsel’s opening statement. Butcher v. Main, Mo.Sup., 371 S.W.2d 203, 206-207 [2], [3].

On this appeal, plaintiff advances the following theories of why the facts stated would support, or at least not preclude, recovery:

“First, plaintiff outlined a case against defendant Butler in his opening statement which was submissible to the jury on the theory that defendant Butler was a supplier of a chattel (i. e., a feed grinder) and had failed to instruct or warn the plaintiff with respect to the installation and operation of the chattel, and also on the theory that defendant Butler was responsible legally for the manufacture and design of the same, under the facts and circumstances outlined here, and also that defendant Butler had knowledge or should have had knowledge of the dangerous condition created by the machine in connection with the ground grain which it produced; and second, and in the alternative, that even if the opening statement of plaintiff’s counsel was insufficient with respect to> certain facts constituting a submissible cause of action, that even this standing alone, is not sufficient justification to enter the aforesaid verdict and judgment in favor of defendant Butler and against plaintiff.”

We must acknowledge that we find some difficulty in ascertaining the theory upon which plaintiff’s claim is based. In part, he seems to rely upon the theory of liability of a supplier of a chattel known to be dangerous for intended use. Basically, his contention appears to be that Butler, by reason of its dealing in and experience with the grinder either knew or should have known that its operation involved the production of dust and “a wet and moist product” which would make the floor of the area in the vicinity of the grinder slick and dangerous. Therefore, Butler had a duty to warn of the matters giving rise to the danger. In asserting his claim on this basis, plaintiff has ignored the element of liability that the supplier must have no reason to believe that users of the grinder would recognize the danger which, according to this theory, its operation involved. “It is not necessary for the supplier to inform those for whose use the chattel is supplied of a condition which a mere casual looking over will disclose, unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made.” 2 Rest, of Torts (2d), § 388, Comment on Clause (b), pp. 306-307. Here, in his opening statement, plaintiff’s counsel acknowledged that plaintiff was aware of the condition which gave rise to the danger. He stated: “When feed is ground there is a great deal of dust and loose grain and things of that nature that comes out and rolls around and settles on the floor. Mr. Swindler was afraid to move the ladder because if he did move it he was bound to get some of the grain and dust underneath it; he had to leave the ladder right where it was.” (Emphasis supplied)

The admitted knowledge of the obvious condition precludes liability on the theory of failure to warn. Cases cited by plaintiff, such as Bean v. Ross Manufacturing Company, Mo., 344 S.W.2d 18, 25 [3]; Martin v. Maxwell-Brisco Motor Vehicle Co., 158 Mo.App. 188, 138 S.W. 65, and Blitzstein v. Ford Motor Company, 5 Cir., 288 F.2d 738, 742-743 [8, 9], offer no support for plaintiff’s position here. Bean v. Ross involved the adequacy of the warning of the danger involved in the use of an admittedly dangerous product. Martin v. Maxwell-Brisco involved the duty of an automobile salesman, familiar with the danger from a “kicking” crank, to' warn one unfamiliar with such matters and unaware of the danger.

Plaintiff also suggests that his counsel’s admission that the grinder was not manufactured by Butler would not necessarily preclude Butler’s liability as if it were the manufacturer, because the statement did not negative the possibility that Butler had sold the grinder as its own product. See 2 Rest, of Torts (2d), § 400, pp. 337-338. On this basis, plaintiff would then impose upon Butler the liability imposed upon a manufacturer of a chattel made under a dangerous design or plan. That liability is stated in § 398 of the Restatement of Torts (2d), p. 336, as follows: “A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.”

Assuming that proof of liability as for a manufacturer might not he precluded, plaintiff’s petition charged that the negligent design lay in failure to provide a safe place to stand for persons working in the vicinity of the grinder. However, plaintiff’s statement showed that the injuries were not sustained in a fall by him while standing near the grinder. It clearly showed that the fall occurred while plaintiff was on a ladder placed on the floor in the vicinity of the grinder. There was no allegation that would have placed any duty upon the manufacturer to provide a safe place for ladders in the vicinity of the machine and the charge related to a failure to provide a safe place to stand cannot be taken to allege a duty with respect to persons on ladders.

In his opening statement, plaintiff’s counsel apparently sought to extend his charge of negligent design to encompass a failure of the design to provide openings in the receptacle through which grain entered the grinder in order to allow the operator to ascertain that the desired ingredients are entering the grinder for processing. He would relate such defective design to the material on the floor by his statement that, because of the absence of such openings, Mr. Gross was obliged to make square openings in the receptacle into which he inserted round pipes, with the result that grain spilled out onto the floor through the openings left by the round pipes in square holes. Even if it be conceded that somehow proof to such effect might have been admissible under plaintiff’s petition, his statement makes clear that the inadequacy of the Grosses’ alteration of the design was the cause of the escape of grain through the openings which Mr. Gross made and could not afford any basis for liability on Butler’s part on the ground of failure to adopt a safe design for the grinder.

Alternatively, appellant argues that, in any event, the record does not show that the whole of plaintiff’s case was fully and completely set forth in the opening statement, and, therefore, the motion for directed verdict should not have been sustained even if the statement made did not reveal facts which would show a right of recovery by plaintiff. In Hays v. Missouri Pacific R. Co., supra, the court did state that a directed verdict at the close of an opening statement should be granted “only when it affirmatively appears that plaintiff’s case has been fully stated and after counsel has been afforded an opportunity, after the motion for directed verdict has been made, to correct or add to his opening statement.” 304 S.W.2d 804-805 [2-5]. Here, plaintiff’s counsel’s opening statement was certainly more than “an outline of the anticipated proof * * Approximately eleven pages of the transcript here are filled with the portion of the opening statement relating to the circumstances and cause of plaintiff’s injury. When Butler’s attorney moved for a directed verdict, stating the deficiencies in the statement upon which the motion was based, plaintiff’s counsel made no effort to supply such deficiencies. In such circumstances, we cannot conclude that plaintiff’s opening statement did not in fact state the whole of plaintiff’s case. The trial court was not, in this case, under a duty to suggest to plaintiff that his statement might be amplified. See Jones v. Hicks, 358 Mich. 474, 100 N.W.2d 243. Even on this appeal, appellant has advanced no showing of what proof he might have offered in addition to that contained in his opening statement. He does state that he had “intended to call an expert of his own choosing, one or possibly both of the Grosses, and perhaps some of defendant Butler’s own personnel as witnesses with respect to the manner in which the unit was sold, the design features, and the knowledge that one of them may or may not possess with reference to the operation and installation of the unit.” The vagueness of this statement reinforces our opinion that the trial court, in this case, justifiably concluded that plaintiff had stated the essential basis of his cause of action and that he simply had no valid claim against Butler.

Judgment affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles Earl HAMMOND, Defendant, and Maryland National Insurance Company, Surety, Appellant.
    No. 53098.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.

      Robert G. Duncan, Pierce, Duncan, Beitl-ing & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., J. Steve Weber, Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

This is an appeal from an order overruling a surety company’s motion for a remittitur following entry of a judgment of forfeiture of defendant’s appearance bond in a burglary and larceny prosecution.

Defendant Charles Earl Hammond posted the bond in magistrate court. Bound over to circuit court, defendant failed to make an appearance on the date set by the court, whereupon the court ordered forfeiture of the bond and that a scire facias issue to defendant and the surety. The scire facias issued and was served on the attorney-in-fact for the surety company. A non est return was made as to defendant Hammond.

The surety filed a motion for remittitur of all or part of the bond “for the reason that said surety was' unable to return said defendant to the jurisdiction of this Court, because he is incarcerated in another state.” The motion was overruled; judgment was entered against the surety for $4,000 and the surety appealed.

Appellant’s first point is that the court erred in entering judgment of forfeiture because no motion for judgment was filed and the procedure established by Criminal Rule 32.12 was not followed.

Criminal Rule 32.12 provides as follows: “If there is a breach of condition of a bond, the court in which a criminal case or proceeding is then pending shall declare a forfeiture of the bail. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of the court in which the defendant is required to appear under the condition thereof and in which a prosecution is or may be pending against the dc fendant and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors to their last known addresses.”

The procedure followed did not constitute literal compliance with Criminal Rule 32.12. The irregularity, however, was technical and nonprejudicial. It is not questioned that the court had jurisdiction over the subject matter and over the surety. It is indisputable that the surety had due notice and an opportunity to be heard and to show cause why “justice does not require the enforcement of the forfeiture.” The surety did in fact make a showing upon the basis of which it prayed for remittitur. It showed that at the time of the setting of the case defendant was incarcerated in Oklahoma State Penitentiary at McAlester; that the surety had diligently attempted to obtain his return to this jurisdiction for trial — had done everything possible to produce him, including sending two detainer warrants to the Oklahoma authorities. The surety makes no showing or contention that it has been prejudiced by the procedure employed, contending simply that scire facias “was not the appropriate procedure for the enforcement of the bond forfeiture herein.”

The irregularity of the proceedings has resulted in no actual prejudice to the appellant. If Criminal Rule 32.12 had been followed the court, after declaring the forfeiture, could have directed that the forfeiture be set aside if justice did not require enforcement of the forfeiture. If the forfeiture was not set aside the court, acting under the rule, could have entered judgment of default and issued execution, on motion. While no motion for judgment was filed, the office of the motion was fulfilled in the procedure followed and appellant was not prejudiced by its omission. Civil Rule 83.13 (b) and § 512.160 [2], RSMo 1959, V.A.M.S., provide that “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.” In state ex rel. Kansas City University of Physicians and Surgeons v. North, 316 Mo. 1050, 294 S.W. 1012, 1. c. 1014 [4], the Court en Banc said: “We do not feel constrained, in view of the facts in this case, to seriously consider the technical procedural errors complained of by the appellant. Error, to merit consideration, should be such as to work injury to the complainant. The facts do not sustain such a contention.” The office and purpose of the scire facias are to notify the sureties of the default of the principal “and afford them an opportunity to show cause why execution should not be awarded against them.” State v. Austin, 141 Mo. 481, 43 S.W. 165, 167. No other or greater opportunity to be relieved from the burden of the recognizance would have been afforded the surety if the procedure under the rule had been followed to the letter. While Criminal Rule 32.12 should be followed the rule does not prohibit the instant procedure, indeed, does not prohibit an independent suit to enforce liability on a bond filed in a criminal case. State v. Haverstick, Mo.Sup., 326 S.W.2d 92, 95 [2], 75 A.L.R.2d 1422. The proceeding adopted in this case is not to be defeated and the judgment of forfeiture is not to be set aside for the irregularity noted. “In such a case it has been said that ‘[t]he court will look at the whole record, and if it appears that the recognizance was duly executed, and judgment of forfeiture entered, and the record be sufficient to support the judgment, the proceeding will be sustained, although there may be omissions and irregularities in the recognizance or scire facias. * * State v. Adank, Mo.Sup., 256 S.W. 768; State v. Potts, 60 Mo. 368, 369; State v. Whitsell, 55 Mo. 430; Kelley’s Criminal Law and Procedure, 4th Ed., Sec. 102.” Idem. The Supreme Court of Florida, in a case in which an adoption had been decreed despite the fact that the proceedings were irregular, certain formalities prescribed by statute not having been followed, upheld the decree, asking and answering its own questions in the following language, which we adopt as entirely appropriate in this case: “But where is the harm or injury? Where is the harmful error? No one appears to have been injured by reason of these irregularities. Prescribed formulas of procedure are to provide a means to an end. When they relate to the means by which jurisdiction is to be acquired they are substantive and must be pursued with great strictness, but when they relate to the exercise of jurisdiction which is otherwise complete, a breach thereof not shown to be harmful is taken to be harmless error.” In re Johnson, 157 Fla. 25,24 So.2d 711, 712.

Appellant’s second point is that the court abused its discretion in overruling the surety’s motion for remittitur because the surety exercised diligence and did everything it could possibly do to secure the appearance of the defendant, an impossibility because of his incarceration in the foreign penitentiary. Appellant refers to State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927, which recites the general rule that sureties are discharged as a matter of law when the return of the defendant is prevented by an act of God, an act of the law or an act of the obligee, the state where the criminal charge is pending. Appellant concedes that State v. Horn, 70 Mo. 466, 35 Am.Rep. 437, holds that the fact that a defendant was arrested, tried, convicted, sentenced and imprisoned in another state, and therefore was prevented from performing the conditions of the recognizance for his appearance, is no defense available to the surety in a scire facias proceeding on the recognizance. Judge Hyde stated the rule thus: “It is well settled that if the principal goes to another jurisdiction and is there imprisoned for violation of its laws, the sureties are not discharged. [6 Am.Jur. 103, Sec. 140; 8 C.J.S. Bail § 77, p. 149; Annotation 26 A.L.R. 412; State v. Horn, 70 Mo. 466, 35 Am.Rep. 437; State v. Adank, Mo.Sup., 256 S.W. 768.] * * * ” State v. Wynne, supra, 204 S.W.2d 1. c. 934. More recently the rule was applied in State v. Haverstick, Mo.Sup., 326 S.W.2d 92, 95, 75 A.L.R.2d 1422. Appellant contends that we should no longer follow these decisions because of new laws, practices, procedures, rapid means of transportation and communication and other changes, particularly in a case where a detainer is placed on defendant, whereby his appearance is “assured.” We are not so persuaded. The considerations of public policy underlying those decisions are as cogent now as they were when the rule was first announced. Criminal Rule 32.12 neither affords nor suggests any new reason for excusing a surety under these circumstances. “Sureties know and solemnly contract that the defendant shall appear and abide the orders of the court and in the event of his default are bound by their obligation. Recognizances are not idle forms. If sureties, who have it in their power to insure compliance by a defendant, may be relieved because they make diligent effort for his arrest as a fugitive there exists little inducement for diligence on their part in the first instance to prevent his escape. To exonerate sureties for such reason would seriously impede the declared public policy of the State for the prevention and punishment of crime. It is more important that an accused be forthcoming for trial and of greater importance that he be forthcoming for sentence than that the expense of keeping him in prison be avoided.” State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522, 1. c. 524.

Other reasons for denying relief to the surety are these: the performance of the contract has not been prevented by the act of the obligee, the State of Missouri, or the law of this state; the removal of the principal to Oklahoma and his falling into the toils of the law of that state are the result of defendant’s own voluntary act; the surety is at fault for permitting him to go into another jurisdiction, instead of keeping him under its control, and “if the rule were otherwise, a person accused of a serious "offense in one jurisdiction and released under heavy bail could secure the release of his bail by committing in another jurisdiction a minor offense for which he would be arrested and detained.” 8 Am. Jur.2d, Bail and Recognizance, § 188, p. 886. We find no abuse of discretion in the act of the trial judge in denying the remittitur.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Rules of the Supreme Court of Missouri, Y.A.M.R.