author: HIGGINS, Commissioner. PER CURIAM:

text:
    Maureen CONLON, a Minor, by Mary Ann Conlon, Her Next Friend, Respondent, v. Mae BOEDER, Appellant.
    No. 52330.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.

      Padberg & Raack, Godfrey P. Padberg, St. Louis, for respondent.
    Derrick & Holderle, St. Louis, for appellant.
   HIGGINS, Commissioner.

Maureen Conlon, age 6, was injured August 16, 1962, in a collision between a 1959 Chevrolet operated by her great aunt, Mae Roeder, and a tractor-trailer unit owned and operated by Atlas Electric Company. Trial March 14 — 16, 1966, resulted in a directed verdict for Atlas Electric Company and verdict and judgment for plaintiff for $16,000 damages against Mae Roeder.

At the timé of collision Mrs. Roeder was taking her grandnieces, Maureen and Jean Conlon, to their home after visiting her over the weekend. Jean was in the front seat; Maureen was in the rear. ' Mrs. Roeder was northbound on Halls Ferry Road in St. Louis County, Missouri, intending to turn left into Highway 140. The Atlas tractor-trailer unit was eastbound on 140 approaching the intersection from Mrs. Roeder’s left. There was a stop sign controlling traffic on Halls Ferry Road crossing or entering Highway 140. Mrs. Roeder, driving about 40 miles per hour, did not remember stopping for the stop sign or looking to her left as she approached before entering 140, and she never saw the truck prior to the collision. The tractor-trailer struck the Chevrolet at the rear door on the driver’s side, causing the Chevrolet to spin around and come to rest at the northwest corner of the intersection with its rear upon the curb.

The Atlas driver died prior to trial. Plaintiff was 10 years old at trial and she could not remember anything about the accident except sitting in a chair in a filling station at the scene.

Mrs. Roeder testified that Maureen was thrown from the car to the pavement when the car spun around. When the car came to a stop she went to Maureen and picked her up. She was “covered by blood.” Plaintiff’s mother first saw her sitting in the filling station.

Plaintiff, accompanied by her mother and defendant, was taken by ambulance to St. Louis County Hospital. Its record, among other things, stated:

At Barnes emergency room Dr. Minot P. Fryer, a specialist in plastic surgery, closed plaintiff’s wounds. The mother counted approximately 50 stitches in the cheek laceration and the same number in the eyelid laceration. Dr. Fryer later removed the stitches and saw plaintiff some five times following the accident at six-month intervals. He described the cheek injury at trial as a transverse laceration of the left cheek extending into the ala or corner of the nose. It measured 21/⅞" in length by ⅛" in width. The scar was deep and extended down into the fat of plaintiff’s face. The eyelid scar measured 10 millimeters by one millimeter and was visible when the eyelid was closed. Dr. Fryer felt that the cheek scar could be improved by a revision ,which would require cutting and removing the deepest scar and approximating the edges together for a finer scar. This surgery would require four or five days’ hospitalization. Both scars are permanent. The larger scar is redder than surrounding skin and is more noticeable with summer tanning. The discoloration probably will persist and revision will not change the length of the scar.

On July 23, 1963, while at home standing next to her mother, plaintiff had an experience in which “she started sliding down the wall to the floor * * *. She was not just perfectly, calmly lying there. She was trembling or twitching. She was making motions, but not for any length of time. * * * her hands were not relaxed, and her legs didn’t seem relaxed. * * * And she was very white and stayed white for some time, and then complained of a headache * * *. She acted tired and drowsy.” A neighbor, Jean Backowski, witnessed this incident. According to her, Maureen stood by her mother and “said something about I don’t feel too good, or something, and all the color drained out of her, her eyes drained back in her head, and she started twitching or something and went out. * * * More or less her whole body” was twitching and her eyes “went back in her head. * * * when we got to her on the floor, you know, she was still sort of unconscious.”

In February, 1964, Peter T. Conlon, Jr., plaintiff’s father, heard Jean Conlon scream that Maureen had fainted, “and I ran into the bathroom. My daughter, Maureen was lying between — her head was between the commode and the bottom of the washstand, and her head was hitting on the floor. * * * Bouncing up and down on the floor. * * * I reached right up in the medicine chest for smelling salts, and tried to revive her. After she started coming around, I picked her up and carried her into our bedroom. * * * She said she was hot, she had a headache, and she was sweating. * * * she said she would like to go to sleep.”

Maureen had never fainted prior to the accident, and had been an “easy-going” happy child. Following the accident she went to first grade and did well, but in the second grade she changed, complained of dizziness, stayed home from school, and became difficult. Prior to the accident she enjoyed swimming; after the accident she became afraid of water.

Dr. David Mendelson, a neurologist, saw plaintiff February 25, 1964, upon referral by plaintiff’s pediatrician, Dr. Ebel. Dr. Mendelson obtained history and complaints from plaintiff’s mother, examined plaintiff, and ordered X rays and an electroencephalogram. The tracing “demonstrated a mild, abnormal, slow EEG which I thought, in view of her clinical history, may relate to the convulsive basis for the child’s complaints.” A second EEG tracing made September 17, 1965, was normal.

Dr. Mendelson testified that convulsive disorders can be caused by trauma and that it is not unusual to have a period of eleven months (from August 16, 1962, to July 23, 1963) between the trauma and initial faint. In response to hypothetical questions, he gave an opinion based upon a reasonable degree of medical certainty that plaintiff “had some type of convulsive disorder directly related to the injury experienced” in the collision of August 1962. On cross-examination he stated this conclusion to be based on “reasonable probability.” “The prognosis is guarded. She is complaint free as of her last visit, but she still has this tendency to have seizures.” On cross-examination Dr. Mendelson also stated that in addition to the hypothesis given, he was aware that plaintiff had been in an accident in which she was thrown from a car and received injuries to her head. He also considered a history of being unconscious following the accident and concluded from that also that plaintiff had received a blow to her head. He stated that one is not rendered unconscious from a blow other than to the head. He wrote in his report that in his opinion, plaintiff had experienced a cerebral concussion, which term described the effects on the brain of a blow to the head.

Dr. Fryer “didn’t make a note of it at the time, but I do know she was examined for head injury” while in emergency at Barnes Hospital. He testified that plaintiff “could have a severe brain injury, and it might not be anything visible,” and Dr. Mendelson stated that “one can receive a fatal blow to the head without any external evidence.”

At the conclusion of Dr. Mendelson’s testimony, defendant moved to strike the testimony and, at the conclusion of all the evidence, requested Instruction A, refused by the court, which would have withdrawn any issue of brain damage from the jury. Appellant contends (Point II) that the court erred in refusing her motion to strike because Dr. Mendelson failed “to connect the fainting spells or convulsive seizures with any injury the plaintiff sustained,” and (Point I) that the court erred in refusing Instruction A because Dr. Mendelson “failed to connect the brain damage with any injury sustained by the plaintiff on August 16, 1962, and his opinion as to brain damage was based on the fact that plaintiff sustained a blow to the top of the head followed by a period of unconsciousness, which facts are not supported by the evidence.”

Appellant’s argument is that the hypothetical question giving rise to Dr. Mendel-son’s opinion that plaintiff sustained brain damage as a result of the accident submitted only the facts of two fainting spells or seizures; that he admitted considering other factors such as the accident, and that the plaintiff had sustained a blow to the top of the head accompanied by a period of unconsciousness; that if there had been no blow to the head or unconsciousness, his opinion would have been different; and that there was no credible evidence of the blow; or unconsciousness. Appellant cautions that an “expert’s opinion must not be a mere guess or conjecture but must be based upon facts and adequate data, and the opinion must (be) * * * supported by competent evidence,” Harp v. Illinois Central Railroad Co., Mo., 370 S.W.2d 387, 391[2]; that the facts upon which such an opinion is based must measure up to legal requirements of substantiality and probative force and cannot be based on unproven assumption. Craddock v. Greenberg Mercantile, Mo., 297 S.W.2d 541, 548[11, 12]; Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 849 [11]; that “where the opinion (of a physician) is based partly on the facts in evidence and partly on facts related by the patient to the doctor which are not in evidence, * * * the opinion is not competent,” Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780, 782[7] ; that it is error to base a hypothetical question on statements not proved and evidence different from the record or which the evidence does not tend to prove, Bunch v. Wagner, Mo.App., 275 S.W.2d 753, 757 [6]; Sneed v. Goldsmith, Mo.App., 343 S.W.2d 345, 352[4]; II Wigmore on Evidence, 3d Ed., § 672, pp. 792-795.

In determining whether there was evidence of a blow to the head accompanied by a period of unconsciousness to support Dr. Mendelson’s opinion, rational inferences drawn from testimony, as well as positive testimony, may form the basis of a hypothetical question, Schmitt v. Pierce, Mo., 344 S.W.2d 120, as may facts of which there is substantial circumstantial evidence, Heppner v. Atchison, T. & S. F. Ry. Co., Mo., 297 S.W.2d 497, 506[9, 10] ; and reasonable probability is sufficient to support a hypothetical question on causal connection, Davis v. Brezner, Mo.App., 380 S.W.2d 523, 527 [2].

Dr. Mendelson’s opinions and appellant’s contention stem from this context:

“Q. Assume that Maureen was involved in an automobile collision which occurred in August of 1962, and that as a result of that collision she was thrown out of the car onto the pavement of the street causing a severe, deep laceration on her face and over her eyelid; and assuming further, Doctor, that the first time she fainted and had rigidity of her hands and extremities was in July of 1963, approximately eleven months later; is the difference in time between the collision that is in August and the time of the first faint in July, is that abnormal or unusual in conclusive disorders related to a trauma? A. Oh, not at all. Usually it takes several months to even years for seizures to appear after an episode of brain damage.

“Q. Doctor, assuming that Maureen had a fainting spell and in July of 1963, in which she had jerking or trembling of her extremities; and assuming further that she had another episode in February 1964, where she was hot and was hitting her head on the floor of the bathroom when she was unconscious, assuming also that she complained of dizziness and headaches and grogginess; and further taking into consideration the tests that you have run on her, the EEG test, did you form an opinion based upon a reasonable degree of medical certainty as to the cause of these faints? A. I did. Q. What is your opinion?

“MR. DERRICK: I am going to object to that * * * because I don’t think the hypotheses contains all of the facts that should be in. THE COURT: What facts do you want to add, Mr. Derrick? MR. DERRICK: Well I am not going to state at this time what the facts should be. THE COURT: Well, if you feel there are some omitted you may add them. MR. DERRICK: I will do that on cross-examination then. * * *

“Q. * * * what is your opinion, Doctor? A. My opinion was and is that this child had some type of convulsive disorder directly related to the injury experienced * * * i>

On cross-examination the doctor was asked:

“Q. Then you took into consideration something else besides what was in that hypothetical question, didn’t you? A. I imagine I did, yes. * * * Q. You did take into consideration * * * the history that her mother had given you * * * didn’t you? A. Correct. * * * Q. If you had known at the time you made your examination or if it had been included in this hypothetical question that the child’s grandmother had had fainting spells and that the father had had fainting spells and that you knew one of her sisters had had fainting spells, would that have made any difference in your diagnosis? A. No. Q. Despite the fact that you just got through saying these causes could he hereditary? A. Well, my diagnosis would have been the same. Diagnosis is that of seizures, no matter what the cause is; the diagnosis is one thing that causes the other; do you understand that?

“Q. Yes; my question is as to what the cause of it is. A. You asked me if it would make any difference in my diagnosis. Q. I meant the diagnosis as to the cause, etiology. A. No, no; this — I would have regarded her as having — possibly a low convulsive threshold, but the precipitating event, I still feel, was the injury. Q. That would have to be to the head, would it not ? A. Correct. Q. To the brain? A. Yes. Q. That would have to be by some blow to that part of the head, would it not? A. Correct. Q. If there were no blows to the head around the— * * * A. The top. Q. The top and the sides; that is where the blow would have to be? A. Correct.

“Q. If you did have no blow up there, then that would change your opinion as to the etiology of the cause of this; is that correct? A. Decidedly. Q. In your examination were you given any information - that she did have a blow oh that part of her head? A. I obtained the history that she was unconscious for approximately five minutes. Q. That is not in evidence, and nobody knows whether she was or not, Doctor, so far, so we would have to rule that out. A. Well, one is usually or almost invariably rendered unconscious by a blow to the head. Q. Did you get any history of a blow to the head ? A. I concluded she had a blow to the head which rendered her unconscious for five minutes.

“Q. How did you arrive at that conclusion ? A. Because when people are struck elsewhere than the head, they aren’t rendered unconscious. Q. Then you just assumed that without having any concrete evidence that that occurred, isn’t that correct, Doctor ? A. Sir, I wrote down the history as I obtained it. * * * Q. Did you say in that report anywhere that she received a blow to her head? * * * A. She was thrown from a moving automobile and was rendered unconscious for five minutes. Q. Doctor, who told you that she was rendered unconscious? A. Mrs. Conlon.”

Appellant made no objection to the hearsay nature of some of this testimony and, at the conclusion of it, moved to strike only “because it has not been connected up with the injury properly here; and furthermore, he based it entirely upon facts not in evidence, the blow to the head and a period of unconsciousness.”

Application of the principles previously announced and a review of the foregoing testimony and previous statement demonstrate connection between collision and injury and that there was evidence of a blow to plaintiff’s head accompanied by a period of unconsciousness. The only thing that plaintiff remembered of the accident circumstances and the first thing she recalled after the accident was sitting in a chair in the nearby filling station where her mother first saw her, permitting an inference that she was unconscious from the moment of striking the pavement until later at the filling station. It is undisputed that a violent collision occurred, the force of which threw plaintiff to the pavement from the car with such an impact as to cause injuries to her head, i. e., the deep cheek and eyelid lacerations. The St. Louis County Hospital record reflects a concern and question of unconsciousness, and plaintiff was examined for head injury when being treated in Barnes emergency .for the lacerations. Without objection, Dr. Mendelson testified on cross-examination that plaintiff’s mother, Mrs. Conlon, told him that plaintiff was rendered unconscious for approximately five minutes. Dr. Men-delson’s diagnosis included cerebral concussion, which means brain injury resulting from a blow to the head, and it was obvious to him and a medical conclusion that plaintiff had sustained a head injury. He was not only told of the head injury and unconsciousness but could see evidence of injury to the head and, even though the lacerations would not have themselves produced unconsciousness, they were evidence from which it could be inferred that the head itself was injured as well. That the evidence of head injury and unconsciousness from Mrs. Conlon was normally subject to objection as hearsay does not deprive it of probative value because “[wjhile * * hearsay, it was not objected to, and in fact was adduced by defendant’s counsel. It is the established rule that hearsay evidence, if not objected to, is admissible and may be considered, along with other evidence, in determining whether a submissible case has been made.” Hill v. Seaboard Fire & Marine Ins. Co., Mo.App., 374 S.W.2d 606, 609 [3], And see also Corley v. Andrews, Mo.App., 349 S.W.2d 395, 400-401 [3, 4], where, as here, a doctor’s testimony based on unobjected-to hearsay, sought later to be stricken, was given “its natural probative force”; and Hawkins v. Nixdorff-Krein Mfg. Co., Mo.App., 395 S.W.2d 247, 250[1,2], where a failure to move to strike hearsay evidence which supported the doctor’s opinion was a waiver of objection to the opinion. Likewise, the hospital record mentioning “unconscious” was properly “used to form the basis for expert testimony.” Harris v. Goggins, Mo., 374 S.W. 2d 6. Nor was the statement made to Dr. Mendelson impeached by Mrs. Conlon’s admission that she did not remember telling any doctor at St. Louis County Hospital that Maureen had been unconscious, because contact with Dr. Mendelson was in his office.

Appellant’s contention appears also to attack the sufficiency of the hypothetical question, but the record as quoted shows that two assumptions of facts and hypothetical questions were put to Doctor Mendelson and, in combination, they include most, if not all, the pertinent facts of the case and are thus sufficient. In any event, “trial courts may exercise a sound discretion over such matters, and the omission of some facts or a violation of the general rules does not necessarily preclude an answer.” Schmitt v. Pierce supra, 344 S.W.2d 1. c. 130[8].

Appellant charges that the $16,000 verdict “is excessive, has no foundation in fact nor evidence to support it, and is the result of bias, passion and prejudice against the defendant since the testimony of Dr. Mendelson failed to connect the alleged brain injury to the injuries sustained in the collision. The only injuries supported by the evidence are the cuts on the cheek and eyelid.”

The gist of this contention is that Dr. Mendelson’s testimony finding brain damage and convulsive seizures and relating them to the collision should have been stricken or withdrawn and that $16,000 is then excessive damages for the remaining injuries physically represented at trial by the two scars. Previous discussion has demonstrated the propriety of overruling the motion to strike Dr. Mendelson’s testimony and permitting the evidence of brain damage to go to the jury. With that evidence properly in the case, the contention falls, and it cannot be said that the verdict is so excessive as to be the result of bias, passion and prejudice requiring reversal and retrial.

In determining whether a verdict is excessive so as to require remittitur under the theory of uniformity of verdicts, Ficken v. Hopkins, Mo., 389 S.W.2d 193, 202 [17], “[e]ach case must be determined upon its own peculiar state of facts,” Emerson v. Mound City, Mo., 26 S.W.2d 766, 767 [3]. Appellant cites some former opinions, “not necessarily for comparing amounts — but to see the manner in which the results were reached,” which are distinguishable from this case: Larson v. Atchison, T. & S. F. Ry. Co., 364 Mo. 344, 261 S.W.2d 111, involved nervousness, headaches, and weakened memory. There was no medical expense, a minimum of treatment, and no further treatment indicated. There was no evidence of permanent injury or brain damage. Rosenkoetter v. Fleer, Mo., 155 S.W.2d 157, involved only an extensive laceration on the temple with resultant discoloration and scar. There was no evidence of brain damage. Karnes v. Ace Cab Co., Mo.App., 287 S.W. 2d 378, involved a mild cerebral concussion and headaches. No permanency or brain damage was shown. Gooch v. Lake, Mo., 327 S.W.2d 132, involved severe contusions, fractures, concussions, and unconsciousness, but there was no showing of permanency or brain damage.

Without further detailed review, it can be said that the injuries sustained by Maureen Conlon at age 6 are substantial and permanent, and “[pjlaintiff’s age, and the nature, extent, and permanency of her injuries are paramount factors in determining if her award is excessive.” Painter v. Knaus Truck Lines, Inc., Mo., 375 S.W. 2d 19, 26 [8, 9]. Here facial lacerations were deep, extensive, painful, and have resulted in scars which are permanent and disfiguring, for which additional plastic surgery requiring hospitalization is recommended. She has sufffered brain damage manifested by seizures and is susceptible and has a predisposition to future seizures. Her school work, personality and disposition have suffered and changed. Support for a $16,000 award for such injuries may be found in the cases: Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107, approved $15,000 damages in 1959 for a 5-year-old girl who sustained head injuries causing permanent impairment of hearing, facial twitching and susceptibility to headaches. Meade v. Kansas City Public Service Co., Mo., 250 S.W.2d 513, affirmed $12,500 damages in 1952 for a 12-year-old girl who suffered permanent brain damage which adversely affected her personality and social aptitudes, a deformity of her nose, instability of a knee, recurrent headaches, and leg and lower-back pains.

In these circumstances this verdict is not excessive.

Appellant charges error when the court refused to declare a mistrial “when plaintiff’s attorney prejudicially emphasized the matter of insurance in his voir dire examination of the jury panel” by asking two questions about insurance companies interested in the case.

Trial of this case commenced against two defendants, each with an insurance company interested in the defense. Prior to the voir dire and outside the hearing of the jury, plaintiff’s attorney requested permission to ask “whether any members of this jury work for, have a financial interest in, or any members of their family have any financial interest in the companies,” to be interposed among other questions touching upon the jurors’ qualifications. After objections and discussions, the court’s position was stated: “He is asking him— you want him to ask one question combined, financial interest in or employment by, of them or their immediate family so that —you want him to ask the question in that way.” On the voir dire examination and after some seven questions, counsel proceeded: “Mrs. Roeder is represented here by Mr. Tyree Derrick, the gentleman to my left at the counsel table. He is at 506 Olive Street; he is associated with a man by the name of Karl Holderle. Do any of you folks know either of them, either professionally or socially?

“Do any of you folks work for, or have a financial interest in, or any member of your family work for, or have a financial interest in the American Insurance Group?

“The other defendant was Atlas Electric Company. The latter owned — located in Fort Lauderdale, Florida — I don’t know their exact address — but would any of you folks be acquainted with that address at all?

“Incidentally, the driver of that tractor-trailer at the time of this particular occasion has since passed away and before his deposition was taken, and he won’t be here at all.

“Now, the Atlas Electric Company is represented by Mr. Paul S. Brown, the gentleman seated behind Mr. Derrick. Mr. Brown is located in the Pierce Building in downtown St. Louis and associates in the firm — I will read off some of the members of that firm — and ask you if you know any of these people — (naming thirteen); do any of you folks know any of the gentlemen I just mentioned, or do you know Mr. Brown either professionally or socially?” Next follows fourteen exchanges between Mr. Padberg and juror Kruetzman. Then: “Do any of you folks work for or have a financial interest in or does any member of your family work for or have a financial interest in the Allstate Insurance Company ?”

Appellant then objected and his objection there and argument here is that “the way he handled the insurance question here by asking about those two companies at two different times and then emphasizing unduly the fact there is insurance in the case. That can be only prejudicial to the defendants in this case and I therefore move for a mistrial.” Further argument here is that the manner of inquiry was a breach of agreement made in chambers and identified each defendant with an insurance company.

The context of the matters in chambers and the pertinent voir dire have been set out because they demonstrate a lack of certainty as to counsel being limited to one question embodying all manner of interest in both companies in a single question. For that reason, the charge of breach of faith is not well taken.

Appellant concedes the propriety of examining prospective jurors in respect to their connections with insurance companies interested in the defense of a case, and that “it is within the province of the trial judge to reasonably circumscribe the voir dire inquiry in that respect by limiting the number of questions and imposing other curbs on the nature of the examina-tion.” Gooch v. Avsco, Inc., Mo., 340 S.W. 2d 665, 667 [1,2].

Appellant attempts to support her argument by Rodenberg v. Nichels, Mo.App., 357 S.W.2d 551, which actually supports respondent because five questions relating to insurance were asked and no reversal was ordered, the court simply observing “that there is surely a limit to the number and extent of these questions. Counsel in their zeal should not entirely forget such limitations.” 357 S.W.2d l.c. 555[3, 4]. In Gooch v. Avsco, supra, three questions related to defendant’s insurance company, and then a fourth was asked to determine if any members of the panel had ever handled claims or adjusted for any insurance company. No reversal was ordered.

In Martin v. Sloan, Mo., 377 S.W.2d 252, 259 [8], counsel assured the court that only one question on insurance would be asked and then asked a second. The court could not say “that absent the agreement that the asking of either or both questions would have been prejudicial. * * * Bad faith is not shown, and whether a mistrial should have been declared * * * rests largely in the discretion of the trial court.” See also Bullock v. Sklar, Mo.App., 349 S.W.2d 381, 385[5], 90 A.L.R.2d 318; Bunch v. Crader, Mo.App., 369 S.W.2d 768, 770 — 771 [1 — 5].

Appellant suggests that this alleged prejudice had a “cumulative effect * * * reflected in the excessive verdict.” The verdict already has been shown not to be excessive and no prejudicial connection appears between the voir dire and the verdict.

Finally, appellant charges error in connection with plaintiff’s closing argument in that the court permitted counsel “to mention for the first time in the last half of his closing argument to the jury the sum of $25,000.00 as the amount of the verdict the jury should return, and to argue the subject of damages, when he failed to mention anything about the amount of damages in the first half of this argument to the jury, thus depriving the defendant’s attorney of an opportunity to reply to the argument of the amount of damages.”

As stated by appellant in her reply brief, the “question (of liability) is not before the court in this appeal,” and a very small portion of the jury argument was devoted to liability. The transcript shows that about a page of plaintiff’s opening argument was devoted to liability, followed by some six pages of argument on injuries and damages in every detail without mention of a specific figure. Defendant then devoted about a paragraph of argument to liability and some fifteen pages of detailed answer to plaintiff’s argument on injuries and damages. Again, there was no mention of a figure. Plaintiff’s final argument of some seven pages had these incidents near its close: “ * * * You arrive at your verdict, * * *. You are the folks who are going to do it. I have confidence you will do it. I know you will do it fairly. Mr. Derrick never mentioned a figure you should bring in. I think that should be left in your discretion. You can’t bring in more than twenty-five thousand.

“MR. DERRICK: I will object to any figures at all; that was not done in the first part of his argument. I want to move for a mistrial in respect to that.

“THE COURT: The jury will disregard any figure. * * * I am going to overrule your motion for mistrial.”

Appellant’s theory is that this was “unfair, improper and prejudicial” under Shaw v. Terminal Railroad Ass’n of St. Louis, Mo., 344 S.W.2d 32, 93 A.L.R.2d 26S. In that case plaintiff never mentioned injuries or damages in his opening statement, defendant advised the court prior to the end of plaintiff’s opening argument that plaintiff had not argued injuries and damages and that he would not, therefore, undertake to discuss such items. It was held error to permit plaintiff to argue injuries and damages in closing under those circumstances, because “Counsel having the affirmative will be held to the requirement of fairly stating his essential points in the opening argument, at least to the extent that the defendant may fairly answer them.” 344 S.W.2d 1. c. 37[2, 3], See also Misch v. C. B. Contracting Co., Mo. App., 394 S.W.2d 98, 102, 103; Goldstein v. Fendelman, Mo., 336 S.W.2d 661, 667 [9]. It is doubtful that plaintiff’s closing argument here can be construed as suggesting any specific amount which the jury should return. It would be more accurately characterized as advice on the limit of the money damages sought; the jury was not bound by it and could award what “in your discretion” would be a proper amount of damages. See Bertram v. Wunning, Mo.App., 385 S.W.2d 803, 807-808 [7, 8],

Even assuming that the closing argument was a mention for the first time of a specific sum, no prejudice is demonstrated. The jury did not return a verdict for $25,000 but awarded $16,000, a sum already shown not to be excessive, and “[i]n view of the wide discretion afforded the trial judge in ruling both the impropriety and prejudicial effect of argument of counsel, and the deference generally paid to his rulings by the appellate court, Votrain v. Illinois Terminal R. Co., Mo., 268 S.W.2d 838, 844, we would be loath to hold that under the peculiar circumstances here present the court committed prejudicial error.” Bertram v. Wunning, supra, 385 S.W.2d 1. c. 808. In Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, plaintiff’s opening argument was on liability without mention of injuries or of an amount of money. Defendant answered the liability argument and referred briefly to the matter of injuries. Plaintiff closed with reference to liability, injuries, and a mention that “there’s not a man or lady on this jury which would take fifteen thousand,” — Obj ection — “Obj ection sustained.” That case also was unlike Shaw v. Terminal Railroad Ass’n, supra, because defendant’s counsel argued injuries and it was, as here, properly within the court’s discretion to permit closing argument on damages and injuries where the court sustained the objection to the figure and instructed the jury to disregard it. 347 S.W. 2d 1. c. 716[6].

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    STATE ex rel. Letha M. VOSS, Sarah L. Lucito, Maizie Francis Dorcy and Roberta E. Shortino, Respondents, v. Ilus W. DAVIS, Mayor et al., Appellants.
    No. 52302.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.

      Charles C. Shafer, Jr., Kansas City, for respondent-relators.
    R. Robert Cohn, John C. Thurlo, Kansas City, for respondents, Fred A. Murdock, Henry L. Mahley, Max W. Foust and Lowell L. Knipmeyer, Members of Bd. of Election Comrs. for Kansas City, Jackson County.
    Herbert C. Hoffman, City Counselor, Car-rol C. Kennett, Assoc. City Counselor, Kansas City, for appellants.
   SEILER, Judge.

The trial court, upon petition in mandamus by certain electors and taxpayers of Kansas City, ordered the city council to enact an ordinance submitting certain charter amendments to an election and if not done, ordered the Kansas City Board of Election Commissioners to proceed with the election as if the ordinance calling it had been passed, but stayed the effective date of the judgment until the appeal was decided. The city council appeals, contending the proposed charter amendments, which would set the terms of the elected officials of the city (including incumbents) at two years instead of the four presently provided, violate Art. VII, Sec. 12 of the 1945 constitution, V.A.M.S., that the proposed amendments conflict with other charter provisions, and that the petitions for said amendments were insufficient and could not be made sufficient by supplemental petitions.

The facts are stipulated. The proposed charter amendments to the Kansas City home rule charter, excluding portions relating to terms which have already expired and hence need not concern us, are these:

“Sec. 489. Terms of office to be two years. The terms of office of all elective officials, including the mayor, the councilmen and the judges of the municipal court, shall be two years, and until their successors are elected and have qualified.

* * * * * *

“The terms of office of officials elected at each biennial election after such 1965 election shall continue until ten o’clock in the forenoon of April 10th, two years after the date when they were elected and until their successors are elected and have qualified. This Section shall take effect immediately upon adoption.

“Sec. 490. Elections held every two years . . . [I]n the year 1967, and in each second year thereafter, a regular municipal election for the choice of all such municipal officers to be elected by the people shall be held on the last Tuesday in March. A primary election shall be held in the city, in each election precinct thereof on the fourth Tuesday preceding each regular municipal election. All candidates for office shall be nominated and all elections herein provided for shall be held in accordance with the provisions of Article XVI of this Charter, and the other election laws of this state applicable to elections held in this city not in conflict with this Section. This Section shall take effect immediately upon its adoption.”

Relators caused petitions for the charter amendments to be circulated and then filed 701 such petitions in the office of the board of election commissioners on April 1, 1965. The election board notified relators April 22, 1965 that the petitions were 2014 signatures short of the required 22,479 (10% of the total registered electors) and gave rela-tors ten days to obtain supplemental petitions, which the relators proceeded to obtain and filed with the board May 1, 1965, in the form of an additional 165 sheets of petitions and signatures. The board on May 6, 1965, certified to the city council that the required number of signatures of registered voters in Kansas City had been obtained. The Council refused to pass an ordinance submitting to a vote of the people the propositions set forth in the proposed amendments.

We do not agree with the council’s contention that the original petitions could not lawfully be supplemented within ten days as permitted by the election board. Neither Sec. 19 nor 20 of Art. VI of the 1945 constitution, although self-executing, State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W. 2d 762, goes into detail as to the procedure to be followed in determining the sufficiency of a petition to amend a home rule charter. Although the two sections refer to “petition”, this word must be taken as having a collective meaning — numerous separate petitions rather than a single document, as the latter would be impossible where there were thousands of signatures involved. Sec. 20 provides the question of amendment shall be submitted on a petition signed by the requisite number of registered qualified electors filed with the body in charge of the city elections. It does not say when the door is closed on accumulating the required number or that all the petitions must be filed at the same time — only that when a petition signed by the requisite number is filed the question shall be submitted.

Sec. 19 provides the election body or official “shall forthwith finally determine the sufficiency of the petition”, but does not provide exactly what makes up the petition whose sufficiency is to be determined, aside from the fact it must be filed. In the matter of charter amendments by petition, as in initiative and referendum, the people are exercising power reserved to them and the provisions under which they proceed should be construed liberally to the end that their right to determine all proper questions by free and open elections shall be secure. “Provisions reserving to the people the powers of initiative and referendum are given a liberal construction to effectuate the policy thereby adopted. Such provisions should be construed so as to make effective the reservation of power by the people”, 28 Am.Jur., Initiative, Referendum and Recall, Sec. 6, p. 439. We should not apply the provisions of Secs. 19 and 20 relating to the sufficiency of petitions as though they were “a rule in a checker game, where once your hand is off the man the move is final”, but rather should apply them so as “to give all who actually desire the passage of the proposed measure every opportunity to obtain the required number on a petition finally put up to the city council for action”, Dagley v. McIndoe, 190 Mo. App. 166, 176 S.W. 243, 247. This is not a case where the number of signatures first obtained was so small as to make preposterous the expectation of obtaining sufficient additional signatures, or where the extension or period of time within which additional petitions were permitted was so long as to make stale the signatures on the petitions first filed. We see nothing unreasonable, against public policy, or violative of any constitutional provision in the board’s allowing ten days in which to obtain additional signatures. Where there is a large metropolitan electorate as here, circulators of petitions acting with the utmost diligence and highest good faith can expect to sustain a significant but unpredictable attrition in the number of valid signatures obtained— signers of petitions may honestly be mistaken as to whether they are registered, their registration may have expired, they may have moved to a new address, there may be duplications of signatures, etc. By necessity of the circumstances of the case petitioners have no practical way to determine in advance whether they have obtained the necessary 10% of the qualified registered electorate. It would be unduly restrictive of a constitutional right to refuse those interested a reasonable opportunity to secure additional signatures where they were close to the mark on the first attempt. Otherwise the petitioners could be safe only if they “make assurance double sure” by getting so many signatures there would be no chance of falling short, which would greatly and unjustifiably handicap the right of charter amendment by petition.

So we overrule the council’s contention that the petitions were not properly filed and that the board acted illegally in receiving the additional petitions and in certifying the petitions to the council as sufficient.

As to the assignment the proposed amendments are unconstitutional: Respondents agree with relators’ contention that under American law there is no vested or private property right in a public office, State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477; State v. Ludwig, (Mo.Sup. banc) 322 S.W.2d 841, 847; McQuillin on Muncipal Corporations, Vol. 3, Sec. 12.117, p. 489; 16 C.J.S. Constitutional Law § 251, p. 1230, and concede that the terms of office of Kansas City elective officials may be shortened by a charter amendment, but contend this may not be made effective during their terms of office, citing State ex inf. Barrett ex rel. Bradshaw v. Hedrick, 294 Mo. 21, 241 S.W. 402, 411, as follows:

“ ‘A public office is a public trust;’ it is a public agency solely for the good of the public, which, unless otherwise provided in the Constitution, may be abolished or regulated by statute. Nevertheless, one who has been elected or appointed to a public office has a right to exercise its functions and enjoy its emoluments during the term for which he was appointed or elected, unless sooner removed in accordance with the provisions of the law. Whoever undertakes to remove such a one must be able to put his finger on the law authorizing such action * * *” (emphasis by respondents).

The council contends Sec. 12, Art. VII, of the 1945 constitution forbids what the proposed charter amendments call for and the city is under no duty to submit the same to the voters. The parties have not cited a case directly in point and we have not been able to find one. “There is no doubt of the power of the legislature which creates an office to abolish it or to change it, and the legislature may shorten or lengthen the term of the office itself, in the absence of constitutional inhibition”, 43 Am.Jur., Public Officers, Sec. 151, p. 11. The matter is well put in Lanza v. Wagner, 11 N.Y.2d 317, 229 N.Y.S.2d 380, 385, 183 N.E.2d 670, 673, 97 A.L.R.2d 344, to-wit, “ * * * [T]here is no constitutional inhibition against the mere shortening of the term of an existing statutory office by legislation aimed at the office rather than at its incumbent. * * * Absent any express constitutional limitation, the Legislature [note: here it would be the people of Kansas City] has full and unquestionable power to abolish an office of its creation or to modify its term, or other incidents attending it, in the public interest, even though the effect may be to curtail an incumbent’s unexpired term.” The Lanza case referred to an early New York decision, Long v. Mayor, 81 N.Y. 425, 427, where the court said: “It is claimed that the act in question shortens the duration of the plaintiff’s term of office, so that the term declared by statute, in force when he was elected, to be for ‘two years’, is made, by the act of 1870, a term for five months. We see no legal objection thereto. The office was not created by, or regulated in any manner by, the Constitution. The legislature had entire control over the matter. The office was created, its term was fixed by that body, and it could be changed by it * * * The original term was thus shortened. The legislation was aimed at the office, not the incumbent. But however viewed, the act complained of was within the lawful exercise of power by the legislature, and within the principle frequently reiterated by the courts of this State, that a public office is not a grant, and that the right to it does not depend upon, or partake of the nature of, a contract * * * ”

The council contends that the only exception to Sec. 12, Art. VII, which section provides “Except as provided in this constitution, and subject to the right of resignation, all officers shall hold office for the term thereof, and until their successsors are duly elected or appointed and qualified”, is that set out at the start of the section; that this exception relates back to Sec. 4, Art. VII, which provides “Except as provided in this constitution, all officers not subject to impeachment shall be subject to removal from office in the manner and for the causes provided by law”; that the officers subject to impeachment are those specified in Sec. 1, Art. VII, namely, all elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts; that this does not include the mayor, city councilmen and municipal judges, who therefore, are subject to removal only “in the manner and for the causes provided by law”; that these provisions for removal are found in the charter of Kansas City and consist of Sec. 9 of the charter relating to expulsion of a member of the council by the council itself and Secs. 434-444 relating to recall petitions seeking the removal from office of an elected official. The council contends further that the proposed charter amendments constitute merely an attempt to remove from office the incumbents prior to the expiration of the four-year term to which they were elected, which attempt is in violation of Sec. 12, Art. VII.

There is no proof in the record that the proposed charter amendments are merely a device to accomplish a recall with no thought of effectuating a change in policy as to the length of terms of the elected officials generally (assuming such evidence would be admissible if offered). The amendments on their face are impersonal, and the fact is that the terms of the incumbents in office when these proposed charter amendments were circulated and presented to the city council have already expired, so the amendments could not possibly operate as a recall as to them; and as to those now in office, these amendments were pending when they became candidates. At any rate, as stated in 16 C.J.S. Constitutional Law § 154, p. 775, “The courts, as a general rule, cannot inquire into the motive, policy, wisdom, or expediency, of legislation”. And further, at p. 809, “It is a well settled rule that in determining the validity of an enactment, the judiciary will not inquire into the motives or reasons of the legislature or the members thereof.” This is equally true with respect to legislation in the form of charter amendments proposed by the electors of Kansas City by the petition method. The adoption of a charter amendment is direct legislation by the people of Kansas City — the people are legislating for themselves, they are the lawmakers, by their vote, State ex rel. Otto v. Kansas City, (banc) 310 Mo. 542, 276 S.W. 389, 400.

The proposed amendments on their face deal with the terms of elected officials and that is all. Terms of elected officials are generally regulated or fixed by various considerations affecting the public interest. It is apparent that a reasonable argument can be advanced for the soundness of two-year terms, as well as for four-year terms. Some people may think two-year terms provide a more responsive government, perhaps influenced by the two-year terms for representatives in the Congress and the General Assembly or the fact that on various occasions in the past the terms of the elected officials of Kansas City have been two years. We do not hereby mean to express any opinion as to the wisdom of the proposed charter amendments. Such is not within our province. We make the above comments merely for the purpose of illustrating that the proposed charter amendments cannot fairly be said to be completely divorced from a field in which the Kansas City electors have a legitimate concern — the length of terms of their elected officials— even though an incidental effect of the proposed amendments, if adopted, would be to shorten the terms of whoever is then in office.

In Sanders v. Kansas City, 175 Mo.App. 367, 162 S.W. 663, it appeared that one Sanders was appointed to the office of city physician on April 15, 1907, for a term expiring April 15, 1909. He discharged the duties of his office until October 15, 1908, when he was ousted and his salary discontinued on the ground that his office had been abolished by the provisions of a new charter adopted by the people of Kansas City at an election held September 3, 1908. The new charter omitted the office of city ■physician. Plaintiff brought suit for unpaid salary alleged to be due him from October 15, 1908 to April 15, 1909. Judgment in the trial court was for the defendant city, which was affirmed on appeal, the court saying at 162 S.W. 1. c. 665 :

“* * * [A]n officer elected or appointed even for a definite term takes office with the implied understanding that the power which created the office may abolish it before the expiration of his term, in which event he will find himself out of office. * * *

“We give our approval to the following quotation from McQuillin on Municipal Corporations, vol. 2, § 494: ‘An unconditional repeal of a municipal charter, or the substitution of another with inconsistent provisions, without a saving clause respecting offices and officers as they existed under the former charter, will operate to abolish all offices thereunder. The term of a charter officer may be shortened by amendment to the charter * * * ” (emphasis ours).

Although the 1875 constitution, which was in force at the time of the above decision, contained provisions similar to the present Secs. 1, 4 and 12 of Art. VII relied upon by the council here, no mention of any constitutional provisions was made in the Sanders decision.

In our opinion, respondents misconstrue Sec. 12 when they say its purpose is to bar the shortening of the term of an officer. We believe the intent and purpose of Sec. 12 is to guarantee a continuity of tenure, to make sure that the public, for whose benefit the office has been created, will at all times have an incumbent to perform the duties thereof, to insure that the public interest will not suffer from the neglect of duties which would result for want of an incumbent and that public business will not be interrupted. See State v. Tyler, 349 Mo. 167, 159 S.W.2d 777, 781. Such is the effect given Sec. 12, Art. V, and what is now Sec. 105.010, V.A.M.S., as seen by the holding in Langston v. Howell County, 336 Mo. 444, 79 S.W.2d 99, 102, that “During the time an officer so holds over, under the provisions of the constitutional and statutory provisions, supra, he holds the office as a de jure officer (46 C.J. p. 969) and by the same tenure, after the prescribed term, until the right of his duly chosen and qualified successor attaches.” In 67 C.J.S. Officers § 48, p. 203, it is said: “In many states constitutional or statutory provisions that officers shall hold over after the expiration of their terms until their successors are elected or appointed and have qualified have been adopted to prevent public convenience from suffering because of a vacancy, and to insure against vacancies in office except in classes of cases or for causes provided by law * *

Sec. 12 does not read “all officers shall hold office for the length of the term as it existed when they were elected”, as the council in effect contends. The words “for the term thereof” in Sec. 12 mean for the term of the office, whatever it may be. When so read and taken along with the final clause “and until their successors are duly elected or appointed and qualified”, which is an integral part of the section, it then fulfills its purpose of insuring continuity and avoiding a lapse in an office, no matter whether the term is shortened or not. In the case before us the city charter fixes the term, not the constitution. By the charter amendments under consideration it is proposed to fix the term for which the officers concerned shall hold office at two years. If these amendments are adopted then the term will be two years, and if the officers hold it for that length of time and until their successors are duly elected or appointed and qualified the requirements of Sec. 12 will have been met.

Even if Sec. 12 were directed against the shortening of an incumbent’s term of office as contended by the council, it would not follow the proposed charter amendments would be invalid, because the impact of the amendments on the terms of whoever happens to be the incumbents when adopted (if so), would be only incidental to the main purpose of the amendments, which is to effect a change in the terms of the elected officials generally. This is illustrated by what the courts have said regarding the provisions against extending the term of any officer, found in both the 1945 and 1875 constitutions (Sec. 13, Art. VII, 1945 constitution, and Sec. 8, Art. XIV, 1875 constitution) and couched in language equally as imperative as that of Sec. 12. In State ex rel. Attorney General v. Ranson, 73 Mo. 78, where the effect of a statute was to extend the term of certain justices of the peace, the courts said, 73 Mo. 1. c. 89:

“ * * * The spirit and intent of the convention, in framing section 8, of article 14 of the constitution [the 1875 constitution], as we apprehend, was to prevent the too frequent practice that had obtained, of passing special laws to increase the compensation or fees of particular officers, or to extend the term of special offices by like special legislation, for the benefit of present incumbents * * *. We cannot suppose that the convention intended thereby to cripple and embarrass the legislature in the exercise of a sound and wise discretion in making such reasonable changes in the times of electing public officers, as the public interest and convenience might require. Such changes were not within the mischief contemplated by the convention, although they might incidentally result, in some instances, in prolonging the time a given officer might have under his commission * * * [I]f in the exercise of a sound and proper discretion on the part of the legislature, in thus fixing a definite time for the election of justices of the peace, it should incidently result, that some of the justices should thereby continue in office longer than they would have done in the absence of this enactment, we are not prepared to say that the legislature thereby exceeded its authority, or violated the spirit or intent of the constitution in this particular.” Accord, State ex rel. Attorney General v. McGovney, 92 Mo. 428, 3 S.W. 867.

The council relies heavily on Howard v. City of Boulder, 132 Colo. 401, 290 P.2d 237, but the case is distinguishable. In the Howard case the decision rested primarily on the proposition that the title of the proposed amendment appearing on the ballot was insufficient under the constitutional prvisions and so the people were not fully aware of what they were voting for, which of course is not involved here. The charter amendment called for two-year terms instead of six and removed from office three councilmen who had four years remaining on their terms and three who had two years remaining. The amendment also provided for a councilman from each of nine districts rather than nine councilmen at large as had been the case, required a councilman to be a taxpayer for two years before election instead of a mere elector as before, and reduced the residence requirement from five to three years. Although it was not necessary to the decision, the Colorado court looked to the effect on the six councilmen and stated the whole proceeding was really a device to unseat incumbents, and that the unseating was not merely incidental to a new system of representation on the council. We find it hard to understand how the Colorado court could with such assurance declare the charter amendment with its comprehensive changes of the type which clearly would be within the legislative discretion of the people to be “nothing more than a device to unseat the incumbents”. As stated earlier, we believe the proposed Kansas City charter amendments before us must be viewed as proposals to change the length of terms of elected officials generally and whatever the effect may be on whoever happens to be in office at the time of their adoption, if they are adopted by a vote of the people, such effect is only incidental to the change in the system.

We take judicial notice of the provisions of the Kansas City home rule charter, Art. VI, Sec. 19, 1945 Constitution, Fleshner v. Kansas City, 348 Mo. 978, 156 5.W.2d 706, and Sec. 488 of the charter itself invites us to do so. We note that Kansas City originally started out with four-year terms for the mayor, councilmen and municipal judges, Sec. 6 and Sec. 395, and with elections every four years, Sec. 417, Charter of 1926, but in the February 13, 1940 election by Sec. 489, these terms were changed to two years, and the terms of office of the incumbents were shortened so as to terminate April 10, 1940, which was two years short of the term for which they were elected. In the same election, Sec. 490 providing for elections to be held every two years also was adopted. Apparently there was no challenge to this in the courts and it seems to have been accepted without question by the electorate and all branches of the Kansas City municipal government. This might have been on the practical assumption that what the people gave they could take away. While of course not conclusive, this acceptance is somewhat persuasive of the constitutionality of the aforesaid 1940 charter amendments, State ex rel. Oliver v. Hunt, (Mo.Sup. banc) 247 S.W.2d 969, 972, which charter amendments were almost identical in language to those involved here. In 1948, the terms were changed to three years and then to four years, where they have since remained, Sec. 489, Art. XX, ratified March 9, 1948.

We conclude the authority and power to amend the Kansas City charter under Sec. 20, Art. VI, of the 1945 constitution, carries with it the right of the people to determine the length of term of their elected officials, even though it incidentally involves shortening the term of those already in office, and that the proposed charter amendments do not violate the spirit and intent of Sec. 12, Art. VII of the 1945 constitution and are not unconstitutional. The council thus did not have the right to refuse to pass the necessary ordinance to submit the amendments to a vote of the people, State ex rel. Lane v. Chambers, (Mo.App.) 353 S.W.2d 835.

The council also points to various contradictions between the proposed amendments and the present charter as to terms of municipal judges, the former prescribing a two-year term and the latter a four-year term, and also as to dates of municipal elections. What we have said as to the terms of the elected officials in general applies to the municipal judges, as do the observations that the same sort of change from four to two years in their terms apparently was accomplished successfully in 1940. As to the matter of election dates, portions of the proposed amendments relate to the 1965 elections, which, of course, have already passed. But these 1965 portions are not essential to the balance of the ordinances, which relate to subsequent elections and officials. Proposed Sec. 490 calls for regular municipal elections on the last Tuesday in March beginning in 1967 and in each second year thereafter and also for primary elections on the fourth Tuesday preceding each municipal election. Thus, if the proposed amendments are adopted by the people, there will he no difficulty in following the procedure prescribed beginning with the 1969 election.

The order of the trial court is affirmed and the cause remanded to the circuit court for further proceedings not inconsistent herewith.

HENLEY, P. J., and HOLMAN, J., concur.

STORCKMAN, J., not sitting when cause was submitted.

      . One of the meanings given by Webster’s Third New International Dictionary for “forthwith” is “within a reasonable time” and we have said “ [forthwith means thereafter, and within a reasonable time thereafter", Atlantic Nat. Bank of Jacksonville, Fla. v. St. Louis Union Trust Co., 357 Mo. 770, 211 S.W.2d 2, 7. “Generally ‘forthwith’ means within a reasonable time under the circumstances”, In re Costello’s Estate, 338 Mo, 673, 92 S.W.2d 723, 725, as would necessarily have to be the case here with thousands of names and records to check.

      . The stipulation discloses it took 1765 man hours of work for election board employees to cheek the first group of 701 petitions and 255 man hours to check the second group of 165 petitions. Approximately 14,000 signatures appearing on the petitions were rejected for various reasons, so evidently the petitions contained over 35,000 signatures. The initial filings, with signatures of 20,464 qualified registered electors, were less than 1% short of the required number.

      . Relators do not seriously challenge the city’s contention that Sec. 12, Art. VII, applies to municipal officers. The similar provision of the 1875 constitution, Sec. 5, Art. XIV, was held to apply to municipalities, State ex rel. Crow v. Lund, 167 Mo. 228, 66 S.W. 1062, 1065. All the officials here involved are elected, act independently, take an oath of office, are without control of a superior power other than the law, have delegated to them some part of the sovereign power of the people and there is continuity in their offices. We therefore hold that Sec. 12, Art. VII, applies to the municipal officers here involved, Kirby v. Nolte, (banc) 349 Mo. 1015, 164 S.W.2d 1.

      . Usually courts will not inquire into the validity of an act of legislation until it has become fait accompli, but here we will rule the constitutional question because if unconstitutional we should not put Kansas City to the burden and expense of submitting the amendments to a vote, State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891, 81 A.L.R. 1066; Anderson v. Smith, (Mo.App.) 377 S.W. 2d 554.

      . According to the Index Digest of State Constitutions, 2nd Ed., 1959, Columbia University, p. 847, nineteen state constitutions contain provisions relating to officers holding over after term. In Vernon’s Constitution of the State of Texas, Annotated, Vol. 3, p. 182-183, the commentary under Sec. 17, Art. 16, states: “This provision, that officers hold over after the expiration of their terms until their successors are elected or appointed and have qualified, was placed in the constitution to prevent public convenience from suffering because of a vacancy in office, and to insure against vacancies in office * *

      . Kansas City amended Sec. 395 of its charter in the November 1966 election regarding the selection and retention of municipal judges. Amended Sec. 395.7 calls for submission to the voters every four years, on a separate judicial ballot without party designation, of the question whether the particular judge shall be retained in office for another term. If the proposed amendments before us should be adopted by the electorate this would have the effect of changing those portions of amended Sec. 395 providing for the terms for municipal judges from four to two-year terms and would also necessarily change the retention elections from every four years to every two years.


author: HENLEY, Presiding Judge.

text:
    MILLER NATIONWIDE REAL ESTATE CORPORATION and Krieger Nationwide Real Estate Corporation, Respondents, v. SIKESTON MOTEL CORPORATION, Appellant.
    No. 52283.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.

      Robert A. Dempster, James R. Robison, Dempster, Edwards & Robison, Sikeston, for respondents.
    Kenneth L. Dement, Sikeston, for appellant.
   HENLEY, Presiding Judge.

This is an action in two counts by nonresident corporations to recover real estate brokers’ commissions for securing for defendant, Sikeston Motel Corporation, one D. G. Granger as tenant-lessee of a Holiday Inn. Trial before the court without a jury resulted in judgment for plaintiffs for $22,-670.76 on count one and for $416.67 on count two, or the total of $23,087.43. Defendant appeals.

On January 14, 1964, the two plaintiffs and defendant executed a memorandum of agreement reciting that plaintiffs and their associates, acting as consultants, had assisted in negotiating an agreement between Sikeston Motel Corporation, as the owner, and D. G. Granger, as the prospective tenant, for the lease of a Holiday Inn at Sikes-ton, Missouri. It was agreed that when the lease was executed by those parties defendant would pay to these consultants, as brokers’ commissions: (1) $25,000.00, to be evidenced by a promissory note executed by defendant, payment of which was to be guaranteed by the endorsement of Plez Lewis & Son, Inc., and (2) five per cent of the monthly rental paid by Granger to defendant, payable monthly when received by defendant from Granger.

Thereafter, a lease for this Holiday Inn was executed by defendant and Granger. The provisions of the lease are not in issue and it was not offered in evidence. However, the testimony indicates that it was for a term of thirty years, with two ten-year options, at an annual rental of $100,000.00, payable in monthly installments.

On May 28, 1964 a contract designated “Partial Assignment of Rents and Agreement” was executed by plaintiffs, defendant, D. G. Granger, and one Kenneth J. Johnson, wherein it was recited that defendant had that day leased the Holiday Inn at Sikeston to Granger for a term of thirty years with options to renew as above indicated. This instrument further recited that plaintiffs and Johnson had been responsible for and had completed the negotiations for the lease; and that Johnson had theretofore assigned to plaintiffs his interest in defendant’s indebtedness to the real estate brokers for these services. The contract further recited that defendant had paid plaintiffs $5,000.00 on the $25,000.00 brokers’ commission; that defendant agreed to pay plaintiffs the balance of $20,000.00 in forty-eight monthly installments of $469.71 each, beginning July 1, 1964; that defendant also agreed to pay plaintiffs monthly five per cent of the monthly rental received by it throughout the life of the lease.

On the next day, May 29, defendant executed its promissory note payable to these plaintiffs for the above balance of $20,-000.00; the principal, and interest at six per cent per annum on the unpaid balance, was payable in forty-eight monthly installments of $469.71 each, beginning July 1, 1964. The note also provided for a reasonable attorney fee. Plez Lewis & Son, Inc., endorsed the note and was made a party defendant in this action, but plaintiffs dismissed as to this defendant after it was declared bankrupt.

Count one of plaintiffs’ petition is for the balance of $18,132.80 allegedly due on the above-described note, and for interest and attorney fees. Count two is on the May 28 contract for five per cent of the monthly rental of $8,333.33 allegedly paid by Granger to defendant from June 1, 1964, through August, 1965. There is no evidence how much rent, if any, was paid by Granger to defendant. The evidence indicates that Granger probably defaulted at some point.

Defendant contended in the trial court, and contends here, that the January 14, 1964, contract executed by plaintiffs and defendant was void ab initio, and that both the promissory note and the May 28 contract flowing from it are void and unenforceable under Missouri law, because plaintiffs were not on any of those dates licensed by this state as real estate brokers. Defendant also contends that plaintiffs cannot maintain this action in the courts of this state, because they were engaged within this state in the business of real estate brokers and did not allege and prove that they were licensed real estate brokers or salesmen, or that they were real estate brokers licensed by the state of Missouri when the alleged cause of action arose.

Admitting that they are not licensed as real estate brokers by this state, plaintiffs contend that they are licensed brokers in their home states and as such they are entitled to recover on either of two theories. First, they contend they are entitled to recover, because they were associated in this transaction with a licensed Missouri real estate broker and the rights they seek to enforce are those assigned to them by the Missouri broker. Second, they contend that as licensed brokers in their respective home states they are entitled to recover in their own right, regardless of their association with a Missouri licensed broker and his assignment of his interest to them, because this was a single isolated transaction and in negotiating it they were not in reality engaged in the brokerage business within this state.

In this jury-waived action at law it is our duty to review the record de novo on both the law and the evidence as in suits of an equitable nature, make our own findings and conclusions as to the facts and law, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, but we may not set aside the judgment unless it is clearly erroneous. Civil Rule 73.01(d), V.A.M.R.; Hoover v. Whisner, Mo.App., 373 S.W.2d 176, 178 [3],

Plaintiff, Miller Nationwide Real Estate Corporation, is an Indiana corporation; Krieger Nationwide Real Estate Corporation is a Delaware corporation; both are regularly engaged in the real estate brokerage business and were partners in this transaction. There is no proof that either plaintiff is a licensed corporate real estate broker or salesman in the states of their respective residences. Phillip E. Miller, the only witness, testified that he is president of and owns all of the stock in Miller Nationwide, and that he “ * * * considered Miller’s Nationwide * * * and [himself] one and the same.” He further testified that his office “ * * * as a real estate man” is in Indiana, and that he is “ * * * licensed in the State of Indiana.” He did not testify that either the plaintiffs or himself was a licensed real estate broker. Neither Miller nor the plaintiffs were licensed by this state as real estate brokers or salesmen at any time pertinent to this case. Plaintiffs and Miller have never advertised in this state as, or generally held themselves out to be, real estate brokers, dealers or salesmen in Missouri, and, so far as this record shows, this is the only real estate transaction they have ever engaged in within this state. Mr. Miller further testified that when they began the negotiations for this lease plaintiffs “ * * * invoke[d] the services of a licensed real estate broker for the State of Missouri, * * * Mr. Kenneth Johnson;” that Johnson collected “* * * a fee in this case * * * ” and made “ * * * an assignment of his interest to * * * ” plaintiffs. Kenneth Johnson is licensed by this state as a real estate broker. Mr. Miller did not testify as to the particular part Mr. Johnson played in this transaction, other than that his services were “invoked,” that he collected a fee and assigned his interest. The contract dated May 28 sued on in count two, signed by Johnson, recites that defendant was indebted to Johnson and plaintiffs for their services in completing the negotiations for this lease, and that some time prior to that date Johnson had assigned his interest in that indebtedness to plaintiffs.

The January 14 memorandum of agreement between plaintiffs and defendant, the lease from Sikeston Motel to Granger, the contract dated May 28, and defendant’s promissory note to plaintiffs were all executed in Missouri. The negotiations leading up to the execution of these instruments were conducted in this state. Defendant is a Missouri corporation and the real estate involved is located in this state.

Section 339.020 provides that it shall be unlawful for any person or corporation, foreign or domestic, to act as a real estate broker or salesman without first procuring a license from the Missouri real estate commission. Section 339.090 provides that nonresidents of this state may become licensed real estate brokers or salesmen by conforming to the conditions of Chapter 339, RSMo 1959, V.A.M.S. Section 339.170 makes it a misdemeanor to violate this chapter and provides for the imposition of a fine or imprisonment upon any person or corporation, or any officer or agent of such corporation, violating its provisions. Section 339.160 provides that no person or corporation engaged within this state or acting in the capacity of a real estate broker or salesman may maintain an action in the courts of this state for recovery of compensation for services rendered in leasing any real estate without alleging and proving that he or it was a licensed real estate broker or salesman at the time the cause of action arose.

In Schoene v. Hickman, Mo., 397 S.W.2d 596, 602 [11] this court cited with approval a decision of the St. Louis Court of Appeals in Gilbert v. Edwards, Mo.App., 276 S.W.2d 611, 616-617, wherein that court said that if Chapter 339 “ * * * is designed solely to raise revenue and not for the purpose of rendering the calling otherwise unlawful, it is generally held that the right of a broker or agent to recover on an express contract for commissions is not defeated by his failure to take out a license thereunder, even though the statute is expressly prohibitory and imposes a penalty for violation. If the object of the statute is to protect the public by insuring the honesty and good behavior of brokers and agents, that is, if it is a police regulation, there can be no recovery if a license has not been procured prior to the rendition of the services sued for. 8 Am.Jur., Brokers, Sec. 154, p. 1076. [see also 12 Am.Jur.2d, Brokers, § 178, p. 918.]

“It was the manifest intention of the Legislature of our state in enacting the provisions of Chapter 339 * * * to protect the public from the evils of fraud and incompetency. We hold the provisions of this Chapter to be an exercise of the police powers of the state. * * * ”

“As stated above, the provisions of Chapter 339 are for the protection of the public and are an exercise of the police power of the state, and, therefore, plaintiff, who seeks shelter under an exemption provision of said Chapter, must present a clear case, free from all doubt, as such provision, being in derogation of the primary purpose of the Real Estate Agents and Brokers Law, must be strictly construed against the person claiming the exemption and in favor of the public. 33 Am.Jur., Licenses, Sec. 38, pp. 363-364.”

One purpose of Chapter 339 was to set apart the business of the real estate broker or salesman as distinct from occupations which by general acquiescence are pursued of common right without regulation or restriction, and to make illegal acts of the unlicensed in the real estate broker’s field. In our judgment the legislative objective Jn closing the courts of this state to unlicensed brokers was to establish a policy so strong that neither a contract nor the unlawful efforts in its pursuit, nor its fruits, could provide the basis of pecuniary benefit to such broker. See Schoene v. Hickman, supra, 397 S.W.2d 1. c. 602, [11], and authorities there cited; also see footnote 7 at 1. c. 603.

Plaintiffs’ contentions present questions of first impression in this state.

In connection with their first contention, plaintiffs argue that § 339.150 “* * * clearly contemplates and sanctions a situation such as this where a foreign broker may become associated with a licensed resident broker * * * ” and recover on an assignment of the interest of the resident broker. They cite no authority in support of this position, other than § 339.150. That section provides that “No real estate broker shall pay any part of a * * * commission * * * received by * * * [him] to any person for any service rendered by such person to the broker in * * * leasing * * * any real estate, unless such person is a licensed real estate salesman regularly associated with such broker, or * * * a person regularly engaged in the real estate brokerage business outside of the state of Missouri.” Plaintiffs are regularly engaged in the real estate brokerage business outside this state.

Plaintiffs fail to recognize and understand the purpose and effect of § 339.150. Its purpose is to control and restrict the class of persons to whom a licensed broker may pay a part of his commission; it does not give those persons the right to bring or maintain an action in their own name against the customer. Gilbert v. Edwards, supra, 276 S.W.2d 1. c. 618 [9, 10]; Schoene v. Hickman, supra, 1. c. 603. To permit plaintiffs to maintain this action in their own name would require that we ignore § 339.020 making it unlawful for any corporation, foreign or domestic, to act as a real estate broker without being licensed as such by this state, and to ignore § 339.160 providing that no corporation engaged in this state in the business of a real estate broker shall bring or maintain an action in our courts without alleging and proving it is a licensed broker of this state. To permit foreign corporations, licensed or unlicensed in their home states, to maintain such action in our courts would be to permit them to do what the legislature has denied resident unlicensed corporations. Such was not the intent of the legislature.

In the face of this record, plaintiffs may not contend successfully that they were not engaged in the business of or acting as real estate brokers in this state; their “retaining” or “invoking the services” of a licensed resident broker and paying him a “fee” does not preclude or avert the conclusion that they were so engaged and acting. They found the customer at a Holiday Inn convention in Memphis; they began the negotiations; they are the only named brokers in the January 14 contract; the note sued on is made payable directly to them only and they are the beneficiaries of the May 28 contract; Kenneth Johnson is not shown to have been present at any of the meetings of the parties at which negotiations were carried on leading to the successful culmination of the transaction, except the meeting on or about May 28, at which he signed his name to the contract bearing that date. In connection with the extent of Johnson’s participation, plaintiffs assert in argument that it would be surprising if defendant’s officers ever claimed to have gained the impression they were dealing with brokers licensed in Missouri. We conclude that plaintiffs were the dominant motivating force and parties negotiating this lease for their customer, the defendant; and that they were engaged in the business of real estate brokers in this state.

It would have been a simple matter for them to make their acts as such lawful by first procuring the license provided for nonresidents by § 339.090. Without that license their acts were unlawful; their association with a licensed resident broker does not make their acts lawful.

Applying the law of Wisconsin where the statutes applicable to real estate brokers and salesmen are substantially the same as those of this state, the United States Court of Appeals for the seventh circuit in Reed v. Kelly, 177 F.2d 473, 474-475, held that a real estate broker licensed in Illinois could not maintain an action for broker’s commission in the courts of Wisconsin for the sale of land in that state, because not licensed as a broker in Wisconsin. See also: Payne v. Volkman, 183 Wis. 412, 198 N.W. 438; Kemmerer et al. v. Roscher, 9 Wis.2d 60, 100 N.W.2d 314. For cases from other jurisdictions to the same effect, see: Tanenbaum et al. v. Sylvan Builders, Inc., 29 N.J. 63, 148 A.2d 176; Wasson et al. v. Hartt, Tex.Civ.App., 244 S.W.2d 258; Campbell v. Romfh Bros., Inc., Fla.App., 132 So.2d 466.

In support of their second contention plaintiffs cite Ressler v. Marks, 308 Pa. 205, 162 A. 666, 86 A.L.R. 638; Annotations, 86 A.L.R. 640 and 159 A.L.R. 274; § 339.010, subsection 3, RSMo 1959, V.A.M.S. They argue that although unlicensed in Missouri they are entitled to recover in their own right, regardless of their association with a licensed resident broker, because they were negotiating an isolated transaction and were not shown to be engaged in the real estate brokerage business in this state. Ressler v. Marks, supra, was an action by a New Jersey broker, unlicensed in Pennsylvania, to recover brokerage commissions for negotiating in the latter state an isolated real estate transaction. The trial court sustained a motion to dismiss on the ground that the procurement of a Pennsylvania broker’s license was a condition precedent to a lawful transaction and to recovery of brokerage fees. The Supreme Court of Pennsylvania, finding that the case was not such a clear one as to permit disposition on the pleadings, reversed and remanded for trial, where, “ * * * with all the facts developed, it can be seen whether the transaction * * * was an isolated one, oi whether he was doing business in this state in violation of the provisions of our stat-tutes.” 162 A. 1. c. 667. In the course of the opinion the court said: (1) if plaintiff were actually engaged in the real estate brokerage business in this state the trial court would be right; and (2) that the court was not prepared to hold that a single transaction would require plaintiff to procure a Pennsylvania license before he could recover. The annotations in 86 A.L.R. and 159 A.L.R., cited by plaintiffs, state that in the cases which have reached the conclusion that an unlicensed nonresident broker may recover where the transaction is an isolated one, the determining factor was whether the non-complying foreign broker was negotiating merely an isolated transaction or was in reality engaged in the brokerage business within the state.

Gilbert v. Edwards, Mo.App., 276 S.W.2d 611, an action by a Missouri resident not licensed as a real estate broker or salesman to recover from a licensed resident broker commissions the broker allegedly agreed to pay plaintiff for finding a buyer involved an isolated transaction. Plaintiff in that case contended, as plaintiffs contend in the instant case, that subsection 3 of § 339.010 expressly excluded him from the licensing provisions of chapter 339. Subsection 3 provides that the chapter shall not apply to any person “ * * * who does not advertise or hold himself out to the public as a real estate broker or dealer and who might, occasionally, * * * sell * * * or lease any real estate * * The court said, 1. c. 617-618, that all sections of chapter 339 must be construed together to carry out the legislative intent, and that considering subsection 3 in the light of § 339.150 the contention would be denied. Tanenbaum, et al. v. Sylvan Builders, Inc., supra, involved an isolated transaction and the court, in construing statutes quite similar to ours, held that any single act in the execution of the authority to serve as a broker constituted engaging in the real estate brokerage business and required the actor to have a license. In Bickley v. Van Antwerp Realty Corporation (1960), 271 Ala. 117, 122 So.2d 275, the Supreme Court of Alabama interpreted its Real Estate License Law (Title 46, Code of Ala.), which is substantially the same as our chapter 339, as applicable to a single isolated transaction.

We hold that plaintiffs’ acts in negotiating this transaction constituted engaging in the real estate brokerage business in this state and required that they have a broker’s license issued by this state. Accordingly, their acts were unlawful and they may not maintain this action.

The judgment is reversed.

SEILER, J., and STORCKMAN, Alternate J., concur.

HOLMAN, J., not sitting.

      . All references to sections of statutes are to RSMo 1959 and V.A.M.S., unless otherwise indicated.