author: PALMORE, Judge.

text:
    Hubert COLLETT, Appellant, v. Hugh TAYLOR et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.

      James W. Smith, Smith & Gillis, Elizabeth Gillis, Middlesboro, for appellant.
    J. C. Helton, Pineville, for appellee Hugh Taylor.
    Logan E. Patterson, Patterson & Berger, Robert B. Berger, Pineville, for appellee Aetna Cas. & Surety Co.
   PALMORE, Judge.

This is an automobile negligence case in which the defendant, Collett, appeals from a judgment on a verdict awarding the plaintiff, Taylor, $16,171.28 for personal injuries. The only question is whether the defendant was entitled to a directed verdict on the ground that (1) there was no substantial evidence of negligence on his part or (2) the plaintiff was negligent as a matter of law.

The accident happened on the afternoon of July 3, 1961, at a point on U.S. Highway 25E about two miles north of Pineville. The day was clear and dry. Taylor, a garage mechanic, was road-testing a 2-ton truck on which he had done some repair work. He drove northward out of Pineville and was in the act of making a left turn into a junkyard on the west side of the highway when an automobile driven by Collett, attempting to pass from behind, collided with the left rear quarter of the truck.

Collett and his wife testified that he sounded his horn as he moved into the left lane to pass. Taylor testified that he was unaware of the automobile’s presence and did not hear a horn or any other noise to indicate Collett’s intention to pass. The truck window immediately to the left of Taylor’s position in the driver’s seat was open.

KRS 189.340(1) provides, “The person operating * * * the overtaking vehicle shall sound his horn or other sound device before passing.” If, therefore, Taylor’s evidence that he did not hear any signal was sufficient to support a finding by the jury that Collett did not in fact sound his horn, Collett was not entitled to a peremptory on ground (1).

In Collett’s Guardian v. Standard Oil Co., 186 Ky. 142, 216 S.W. 356 (1919), “it was in substance said that where there is positive evidence that warnings were given by a motor vehicle, of its approach to a pedestrian walking in the roadway of a public highway, and there is also negative testimony by witnesses, who were so situated that it could reasonably be inferred that they could and would have heard the warnings if they had been given, and that they did not hear such warnings, the question of whether the warnings were or were not given is for the jury.” Hertell’s Adm’x v. Louisville & N. R. Co., 215 Ky. 639, 286 S.W. 693, 695 (1926). However, the scintilla rule was then in force. Cf. Louisville- & N. R. Co. v. Jameson’s Adm’x, 214 Ky. 552, 283 S.W. 1026, 1030 (1926). Later on,, after Nugent v. Nugent’s Ex’r, 281 Ky. 263,. 135 S.W.2d 877 (1940), had abolished the-scintilla test, it was held that negative evidence by witnesses to the effect that they did not “hear” a sound signal was no longer-sufficient to present a jury question against positive testimony that such a signal was-given. Chesapeake & O. Ry. Co. v. Burke’s: Adm’x, 299 Ky. 851, 187 S.W.2d 295, 296 (1945). See also Louisville & N. R. Co. v. Galloway’s Adm’x, Ky., 267 S.W.2d 90, 92 (1954), on which the appellant in this case-specifically relies

The court evidently had difficulty with the rule prevalent before Nugent,' but the sailing has been even rougher since the opposite tack was taken in Chesapeake- & O. Ry. Co. v. Burke’s Adm’x, 299 Ky. 851, 187 S.W.2d 295, 296 (1945). The case now-before us illustrates that if the rule is to be applied hard and fast, without exception or qualification, it is bad law. The weight and value of evidence is tested in terms of likelihood, or reasonable probability. If a witness (whether interested or disinterested) was in a position in which it is likely that he would have heard and noticed a warning signal, and he did not hear it, it seems to us that there is a reasonable basis for the jury to infer that the signal was not given, particularly when the witnesses testifying that it was given are interested.

Under ordinary circumstances a person driving a vehicle on a highway will hear and be alerted by the sounding of a car horn immediately behind him. Therefore, his testimony that he did not hear such a signal ordinarily should be regarded as substantial evidence that it was not given. His interest in the outcome of the case, and the interest of those witnesses who testify to the point on the other side, are matters of credibility for the jury to weigh. Quite often all the evidence on the question, pro and con, will come from the lips of witnesses with partisan feelings, as it did in this instance. In such a case it would be unfair to hold that the so-called “positive” testimony must be believed for the simple reason that the adverse party had only his ears to rely on. Indeed, he would be left utterly defenseless.

The conclusion we reach on this problem is that there can be no hard and fast application of the rule one way or the other for all time and all circumstances. Whether a jury issue is presented by so-called “negative” testimony must depend on the facts of the particular case, including the degree of preponderance of the positive evidence, the likelihood that the witness or witnesses giving the negative evidence would have heard and noticed the signal had it been given, and the interest or disinterest of the respective witnesses. To the extent that they may be construed as inconsistent with this statement, Chesapeake & O. Ry. Co. v. Burke’s Adm’x, 299 Ky. 851, 187 S.W.2d 295 (1945), and Louisville & N. R. Co. v. Galloway’s Adm’x, Ky., 267 S.W.2d 90 (1954), are overruled.

We think it is very probable that Taylor would have heard and heeded the horn if Collett had sounded it. His testimony that he did not hear it was enough to support a finding that it was not sounded. Hence there was substantial evidence of negligence on the part of Collett, and he was not entitled to a directed verdict on the ground the proof failed in that respect.

Whether the plaintiff truck-driver was contributorily negligent as a matter of law involves KRS 189.350 and 189.380, especially the latter. KRS 189.350 requires the operator of the vehicle about to be overtaken to give way and cooperate as the circumstances reasonably demand. Literally, these duties are predicated upon receipt of the audible signal required by KRS 189.340 (1), but presumably they would apply also if in some other manner the driver being overtaken is or should be aware of the move to pass. KRS 189.380 provides in part, “No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety * * *. No person shall so turn any vehicle without giving an appropriate signal * * * continuously for not less than the last one hundred feet traveled by the vehicle before turning. * * * either by means of the hand and arm or by a signal lamp or lamps or a mechanical signal device.”

The truck was equipped at the rear with directional turn signals, but they were not in working order. Taylor says he extended his left arm horizontally from the window of the truck and kept it so extended for a distance of 100 feet or more before turning. There is no dispute that he slowed down and that the brake light on the back of the truck came on before he started to turn.

The contention that Taylor was negligent as a matter of law proceeds along two avenues, (1) his failure to observe the presence of the Collett vehicle and (2) his alleged failure to give an appropriate turn signal.

The bed of the truck was so constructed as to block the driver’s rear view except for' the presence of a large “Westcoast” mirror mounted on braces and extending about 22 inches from the left side of the cab. Taylor estimated that the bed “would stick out a foot, I guess, more or maybe less” beyond the cab. A witness testifying for the defense measured this latter distance at 16 inches and stated that the mirror was of the type that “gives the most view to the rear when properly installed” and had been installed “in the standard way and manner.” Taylor testified that the mirror afforded him an unobstructed rear view of the left traffic lane, and also of the lane directly behind him except for a blind spot in which he would not be able to see a vehicle within three to five car lengths immediately back of the truck. He said that as he prepared to turn he looked in the mirror and did not see any car: “It would have been behind the bed of the truck and I wouldn’t have seen it, but if it had been close enough to pass I would have seen it in the mirror. As I turned I heard brakes scream,” etc.

Collett’s version was that he was three or four car lengths behind the truck when he moved into the left lane and sounded his horn. Both vehicles were slowing down, but Collett accelerated when he pullecl out to pass. The truck began veering to the left when the front end of the automobile was “getting close” to the rear end of the truck. At this time the speed of the truck was 20 to 25 m. p. h. and the speed of the car was about 40 m. p. h. The car skidded 68 feet before impact. Both vehicles wound up almost completely off the left or west margin of the pavement.

The argument that Taylor was negligent in failing to see that the coast was clear before attempting his turn overlooks the fact that he says it was. The highway was two lanes wide. It is undisputed that the rear view mirror of the truck presented to the driver an unobstructed vision of the left lane, and Taylor says he was looking. Whether he also could or perhaps should have been able to see the automobile before it moved into the left lane is immaterial because, even if he had seen it, in the absence of a signal from Collett that he was about to pass (and, as we have said, that was a jury question) Taylor had every right to make his turn, provided he gave the proper statutory signal of his intention to do so. Unless the following vehicle has already begun its passing move there is no law that gives it priority over a forward vehicle’s right to turn left. In fact, the converse is true; the forward vehicle has precedence.

The last argument is in substance that Taylor failed to give an appropriate signal because, in view of the width of the truck bed, his arm was not long enough. On cross-examination he guessed that his arm was a foot and a half or two feet long. Taking the measurements made by one of Collett’s witnesses, counsel submits that Taylor’s fingertips could not have extended beyond the truck bed. Hence the turn signal could not have been “clearly visible,” as required by one of the instructions offered in behalf of Collett and given by the trial court.

KRS 189.380(4) provides that “the operator of any vehicle so constructed or loaded that a hand and arm signal would not be visible both to the front and rear of such vehicle shall indicate an intention to turn by use of a signal lamp or lamps or mechanical signal device,” etc. The trouble in this ■case, however, is that the evidence does not ■establish conclusively that Taylor’s hand and arm signal was not visible. The length of Taylor’s arm was only a horseback estimate. It would have been easy to measure it with a yardstick in the presence of the jury. On this question in which inches were Important, no attempt was made to establish whether Taylor was sitting in such a position that his left armpit was in a precise fore-and-aft line with the left edge of the steering wheel. He may very well have leaned to his left as he extended his hand and arm. All of this, pro and con, is pure speculation. The record shows that Taylor was required on the witness stand to demonstrate the manner in which he executed the signal. Certainly the jury was in a better position to judge this particular point than we are.

On the basis of the evidence in this case it would not have been unreasonable for the jury to conclude that Taylor did give a visible signal, that Collett did not sound his horn before moving to his left, and that the two vehicles turned leftward at about the same instant. Those permissible inferences precluded a directed verdict for Collett.

The judgment is affirmed.

      . Meanwhile, in Cincinnati, N. O. & T. P. Ry. Co. v. Hare’s Adm’x, 297 Ky. 5, 178 S.W.2d 835, 838 (1944), without alluding to the possible effect of Nugent, the court had held that the negative testimony of witnesses whose attention had, been attracted was sufficient to raise the issue.

      . Of. dissenting opinion of Judge Logan, joined in by Judges Thomas and Rees, in Louisville & N. R. Co. v. Curtis’ Adm’r, 233 Ky. 276, 25 S.W.2d 398, 403 (1930).

      . See, for example, the tightrope act in Pryrear v. Kentucky & Indiana Terminal R. Co., 310 Ky. 250, 220 S.W.2d 546, 549-550 (1949), in which it was said that because the witness went the further step of explaining that she would' have heard the signals if they had been-sounded, her testimony would have been: sufficient to raise the issue except for the fact that she was an interested party and several witnesses on the other side were disinterested. And in Payette County v. Yeach, Ky., 294 S.W.2d 541, 544 (1956), a witness’s testimony was elevated from the status of “negative” to “positive” because he stated “unequivocally” that the signal was “not audible.”"

      . Collett was not necessarily placed on guard by the brake light, because he said the truck had been speeding up and then slowing down for some distance over which he had been following along behind it.

      . Five inches from the outer edge of the steering wheel to the door, three inches for the thickness of the door, and 16 inches from the door to the line of the truck bed, totalling 24 inches.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. George SCHAFFER, Appellant.
    No. 50624.
    Supreme Court of Missouri, Division No. 1.
    Oct. 12, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 9, 1964.
    Thomas F. Eagleton, Atty. Gen., Donald! L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    George Schaffer, pro se.
   HOLMAN, Judge.

Defendant, a prisoner in the Missouri State Penitentiary, instituted this proceeding under the provisions of Supreme Court Rule 27.26, V.A.M.R., by the filing of a pro se motion to set aside a judgment and sentence wherein he had been adjudged guilty of forcible rape. In the original trial the court found as charged, that defendant had been convicted of a prior felony. Defendant’s punishment was fixed by the court .at imprisonment in the penitentiary for a term of 99 years. Upon appeal to this court the judgment was affirmed. State v. Schaffer, Mo.Sup., 354 S.W.2d 829.

Upon the filing of defendant’s motion the trial court set the same for hearing, ordered that defendant be brought to St. Louis so that he could be present at the hearing, and ■appointed an attorney to represent him in presenting the motion. At the hearing the attorney for defendant made an argument in which he discussed the various contentions contained in the motion but no evidence was offered in an effort to prove the fact allegations therein. Thereafter, the court overruled the motion and defendant has duly appealed from that order and judgment.

As stated, the crime charged was forcible rape. As shown by the transcript of the original trial, defendant is a Negro and prosecutrix is a mentally retarded white girl who was 18 years old at the time in question. It was admitted by defendant that prosecu-trix spent the night in his house and that during a part of the night they were in bed together, both in the nude. Prosecutrix testified that she was walking on the sidewalk when she was grabbed from behind and dragged into defendant’s quarters; that defendant then tore her clothing off, beat and -choked her, and “knocked her out” for an indefinite length of time. She could not tell the jury whether defendant had intercourse with her but a medical examination made shortly after she left defendant’s Lome showed facts which would reasonably warrant a finding of recent intercourse. Defendant testified that prosecutrix came to his home voluntarily and that she was, at that time, “scratched and beat up” and her clothes were torn; that she didn’t want to go home because she was afraid her mother would whip her. While he remembered that he and prosecutrix were in bed together, nude, during a part of the night, he stated that he had been drinking and if he had intercourse with her he did not remember anything about it.

A number of the contentions in defendant’s motion relate to alleged errors which occurred in the trial of his case. Such assignments may not be considered in a proceeding under Rule 27.26. This court has recently said that “ ‘Rule 27.26 affords a prisoner a convenient means for a direct attack on the judgment of conviction by motion in the original proceeding. The attack is governed by the general principles applicable to habeas corpus proceedings within the grounds specified in Rule 27.26, which lie only where the sentence is void or otherwise subject to collateral attack.’ State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 806. We have also said that ‘A motion under Rule 27.26 may not be used as a substitute for a motion for new trial (State v. Cerny, Mo.Sup., 286 S.W.2d 804) nor function as an appeal.’ State v. Hagedorn, Mo.Sup., 305 S.W.2d 700, 702. * * * Rule 27.26 does not afford a basis for the review of trial errors * * State v. Childers, Mo.Sup., 328 S.W.2d 43, 44, 45.

One of the principal contentions of defendant in his motion is that his conviction should be set aside because he was denied the constitutional right to the effective assistance of counsel. Defendant was represented by an attorney appointed by the court. On the face of the transcript it appears that said attorney defended the case in a creditable manner. But defendant says that his attorney had a relative on the police force and that he failed and refused to call witnesses who would have testified to facts contradictory to some of the State’s evidence. No proof of these matters was presented at the hearing and therefore they are not before us for consideration. He also contends that his counsel failed in the performance of his duties when he did not file a motion to suppress certain evidence (including a bloody towel) which had been procured by the police in an unlawful search. These items were obtained by the police immediately after defendant had been arrested at his home. In those circumstances a motion to suppress would have been unavailing. A search as an incident to a lawful arrest is not improper. State v. Brook-shire, Mo.Sup., 353 S.W.2d 681. The contention that defendant did not have the effective assistance of trial counsel is ruled against him. State v. Turner, Mo.Sup., 353 S.W.2d 602; Mitchell v. United States (1958), 104 U.S.App.D.C. 57, 259 F.2d 787.

During the original trial a color photograph of prosecutrix, taken on the morning following the events heretofore described, was offered in evidence by the State. It was identified as showing her appearance at that time. It was admitted, over defendant’s objection that it was inflammatory, and he assigned error because of its admission in his motion for new trial. When the transcript was approved by the attorneys it contained a stipulation that the exhibits could be separately filed in this court. That exhibit was not filed here but this court reviewed the new trial assignment and held that the admission of the photograph was a matter which was largely discretionary with the trial court and, since nothing in the record indicated an abuse of that discretion, we overruled the assignment.

In the motion under consideration defendant complains that he was denied due process and did not obtain a “full and fair review” of his trial by this court because the aforesaid photograph was not before this court upon its determination of his appeal. In his briefs filed here he blames both the circuit clerk and his attorney for the fact that the exhibit was not filed in this court. We agree that the photograph should have been filed here but we rule that defendant was not prejudiced by the fact that it was not before us. That exhibit has been delivered to us in connection with the instant appeal. Our examination of it confirms our prior ruling that it was not inflammatory and that the court did not err in admitting it. The picture shows a number of red scratches on the neck of prosecutrix and some indication that her lips were swollen. This photograph does not disclose injuries as extensive as one would visualize from the descriptions contained in the testimony. This point is overruled.

The final contention of defendant is that the court erred in failing to set aside the judgment because he was not represented by counsel upon his appeal. We are not authorized to consider that contention in this proceeding. This for the reason that if the point should be found to be meritorious it would not result in an order setting aside the judgment of conviction in the trial court. If defendant was denied due process because he did not have counsel on appeal the appropriate relief would be to vacate our judgment affirming the conviction and the cause would then be redocketed for another hearing in this court. While the trial court, under Rule 27.26, may set aside a trial court judgment of conviction (for constitutional infirmities which occurred in that court) in a case which has been theretofore appealed to and affirmed by the supreme court, it could not set aside a judgment of the supreme court because of omissions or infirmities relating solely to the validity of the proceedings in that court. In the instant appeal we are limited to a review of the judgment of the trial court. If defendant desires a ruling on the point under consideration it would appear that it should be raised by an appropriate proceeding instituted in this court.

We recognize that what we have said in regard to the last point would likely be applicable to the contention heretofore considered in regard to the fact that an exhibit was not filed in this court. However, since that contention related to a point we actually ruled upon in defendant’s first appeal, we decided that it was appropriate to discuss it herein.

The judgment is affirmed.

All concur.


author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Frank HOWARD, Appellant.
    No. 50408.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
    Tenney, Dahma & Mathewson, E. H. Tenney, Jr., St. Louis, for appellant.
   HYDE, Presiding Judge.

Appeal from order overruling motion under Rule 27.26, V.A.M.R. to vacate judgment and sentence of life imprisonment for forceable rape, previously affirmed by this court on appeal. State v. Howard, Mo., 360 S.W.2d 718. The order, made without hearing evidence, was “motion to vacate and set aside sentence and judgment filed, considered and denied.” Counsel thereafter appointed for defendant, for this appeal, has briefed and argued the case here.

One of defendant’s principal contentions is that his confession received in evidence at the trial was involuntary and coerced. It appears from the transcript in defendant’s appeal from his conviction (a copy being part of .the trial court files, Rule 82.12) that this statement was in question and answer form. The questions were asked by the First Assistant Circuit Attorney of the City of St. Louis in the Circuit Attorney’s office in the presence of the Circuit Attorney, two detectives and the stenographer who took the statement. In answer to questions asked defendant said he had not been promised anything or threatened in any manner and realized that the statement he gave could be used in court against him. It also appears that, after the jury was selected and before any evidence in the case was heard, the court held a full hearing out of the presence of the jury and heard the testimony of defendant and two detectives, who had questioned him before he made the statement. Defendant testified at this preliminary hearing that an officer had struck him on the head with a large book, after his arrest, during questioning before he made the statement admitted in evidence. The State’s evidence was that this was not true and that there was no coercion. After hearing this evidence, the court ruled that the statement was voluntary. After this statement was admitted, defendant testified before the jury, claimed the statement was involuntary and said he was struck on the head with the book the night before he made the statement (about 20 hours before) but admitted he was asked the questions in the statement about its voluntariness. The officer defendant said struck him with a book testified at the trial and denied that he ever struck defendant. Officers also testified concerning verbal admissions made by defendant before he made the written confession. The jury was instructed they could consider voluntary statements but were told “if you find such statement or statements were not voluntarily made, but were procured by coercion or threats or through fear, then you should disregard them altogether.”

Thus the transcript on defendant’s appeal from his conviction, on file in this court and on file in the circuit court, clearly shows a full and fair hearing on the volun-tariness of his confession, out of the presence of the jury, and a finding by the court that it was voluntary before it was permitted to go to the jury. It further shows that the jury later heard testimony of defendant and others about it and were authorized by their instructions to disregard it if they found it was not voluntary. Therefore, we hold that this issue had been judicially determined and it was not questioned in the motion for new trial or on appeal; so on motion to vacate on the the same claim the court properly could find from its own files and records in the case that defendant was entitled to no relief oh this claim. See Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858. On this issue, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is cited because defendant did not have counsel and was not advised of right to counsel before his statement was made. However, we will not expand that ruling beyond the facts of that case where Esco-bedo had a lawyer employed who was trying to see him and was not permitted by the police to do so. In fact, Escobedo was told by the police “that his lawyer ‘didn’t want to see’ him.” Moreover, it was a case of direct review on appeal.

Defendant seeks to raise again the claim of error decided on his appeal that the jurors were permitted individually to see and read his written statement but we adhere to our ruling (360 S.W.2d 1. c. 721) that this “was a matter resting within the sound discretion of the trial court.” Defendant also claims his sentence was unlawful because the court refused to poll the jury as to whether they had read articles in St. Louis newspapers or heard anything on television concerning the trial, saying this was an abuse of discretion, citing State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, and State v. Laspy, Mo.Sup., 323 S.W.2d 713, in neither of which was any abuse of discretion found. The transcript shows the jury was selected and sworn without objection, see Latham v. Crouse, USCA 10th, 320 F.2d 120. It also shows that during the trial defendant’s counsel showed the court a newspaper published after the trial began referring to defendant as a former convict and to his identification by the State’s witness, requesting the jury be polled to determine whether this had been read by any of them. The court overruled the request at that time but later on the same day, upon a renewal of the request, the court did inquire “whether any of you since the start of this case has read any newspaper articles or listened to any media of news concerning this case.” There was no response to the court’s questions, and counsel then asked permission to question the jurors individually which was denied. The court again asked the jurors a similar question on the last day of the trial and the record shows . “all the jurors answered in the negative.” Another request for permission, to question the jurors individually was-denied. This was also a matter resting' within the sound discretion of the court and not one properly for consideration on-motion under Rule 27.26. “[A] motion under Supreme Court Rule 27.26 may not be used as a substitute for a motion for a new trial, nor function as an appeal, nor be used to permit a defendant to have a. second appeal based upon alleged trial' errors.” State v. King, 380 S.W.2d 370, 376, and cases cited.

Defendant also claims a holster and a piece of tape offered in evidence were procured by unlawful search and seizure;, but the transcript shows written permission was given by defendant’s stepfather to the officers for a search of his house, in which defendant was living. No objection was made to these articles being received in evidence and no claim of unlawful search made, perhaps because of the written permission. In his motion, defendant claimed incompetent representation by counsel, although this is not briefed on this-appeal. Defendant’s claims are that counsel did not object to the admission of the articles taken from his home, but as above stated there appears to have been good reason for not doing so; that counsel did not object to the admission of his confession on constitutional grounds, which as shown above was not true but on the contrary was most vigorously contested; that counsel did not sufficiently consult with him; and that counsel did not file an adequate motion for new trial. However, the transcript shows that counsel entered his appearance almost a month before trial, filed depositions taken of the two principal prosecuting witnesses, apparently acted alertly and vigorously throughout the trial particularly in efforts to keep out defendant’s confession as well as other evidence offered by the State, and some of his objections were sustained, filed and argued a motion for new trial and filed a timely notice of appeal. It must be considered that many of the grounds in the motion for new trial,. which did not preserve anything for appellate review, did authorize relief from the trial court if found meritorious. Courts should not attempt to “second guess” counsel on his decisions on trial methods and strategy nor on his judgment of what might constitute prejudicial error at least if it is not plainly and obviously wrong, which is not shown by the transcript in this case. State v. Childers, Mo.Sup., 328 S.W.2d 43, 45; State v. Worley, Mo.Sup., 371 S.W.2d 221, 224; Frand v. United States, USCA 10th, 301 F.2d 102, 103. This is not a case like State v. Herron, Mo.Sup., 376 S.W.2d 192, where an experienced lawyer appointed to represent defendant did not appear and a lawyer, admitted to the Bar less than two months before, was substituted and was alleged to have tried the case without interviewing witnesses. In this case, the court knew defendant’s counsel to be a lawyer of many years’ experience and had the depositions of the State’s principal witnesses.

Defendant’s claim that he was not furnished a sufficient transcript on appeal is based on the claimed inadequacy of the motion for new trial, which we have already considered. The transcript furnished was full and complete. - Defendant also claims his sentence was unlawful because he was not represented by counsel on appeal; but that is not a contention that can be considered on a motion filed. In the trial court under Rule 27.26. State v. Schaeffer, (1964), Mo., 383 S.W.2d 698. Defendant’s brief argues flimsy circumstantial evidence and credibility of witnesses who positively identified defendant as the perpetrator of the crime but these were fact issues for the jury and cannot he considered in this proceeding. We said in State v. King, Mo.Sup., 380 S.W.2d 370, 373: “If the motion presents no material issues of fact, or if the issues presented may be determined by the record and files in the original case, the Court may summarily rule the motion, since the Court may take judicial notice of its own records and the prior proceedings in the case.” Our conclusion is that the court properly could determine the issues presented on this motion from the record and files in the original case which included a copy of the transcript of the entire proceedings.

The order of the court is affirmed.

All concur.


author: WELBORN, Commissioner.

text:
    The GERMAN EVANGELICAL ST. MARCUS CONGREGATION OF ST. LOUIS, a Corporation, Respondent, v. Esther ARCHAMBAULT et al., Appellants.
    No. 50263.
    Supreme Court of Missouri, Division No. 1.
    Sept. 14, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., George D. Chopin, Sp. Asst. Atty. Gen., St. Louis, for appellant, Thomas F. Eagleton, Atty. Gen. of Missouri.
    Herman M. Katcher, W. Donald Dubail, Oscar E. Buder, St. Louis, for appellants, Edith C. Shelton and others.
    Melville A. Ochsner, St. Louis, for respondent.
   WELBORN, Commissioner.

By this action brought by The German Evangelical St. Marcus Congregation of St. Louis, the owner of a tract of land dedicated to cemetery purposes, against the defendants, owners of burial lots in such cemetery and as the representatives of all such owners, the plaintiff sought a decree authorizing the abandonment of the cemetery, removal of the remains of all persons buried therein and the approval of the sale of the property by warranty deed conveying fee simple title free of all limitations upon the use of the realty for cemetery purposes. The trial court granted the relief requested. The defendant lot owners and the Attorney General of Missouri, who was also named a party defendant on the theory that a public charitable trust was involved, have appealed. We have jurisdiction because title to real estate is involved, in view of the object of the relief sought to terminate the interests of burial lot owners in the land in question. Billings v. Paine, Mo.Sup., 319 S.W. 2d 653, 656(4-6).

By its amended petition plaintiff alleged that it was incorporated as a religious corporation by pro forma decree on October 27, 1879; that, among its corporate powers, was the owning of real estate for conducting cemeteries; that plaintiff became the owner of real property in the City of St. Louis which had been operated as a cemetery by the trustees for the congregation of St. Marcus for many years prior to plaintiff’s incorporation and that, after such acquisition, the cemetery was operated by plaintiff. The petition alleged that, on July 2, 1962, an ordinance of the City of St. Louis withdrew Old St. Marcus Cemetery from the list of cemeteries in which interment was permitted in the City of St. Louis. The petition also alleged that, prior to 1929, endowed care for cemetery property was little known and that many lots had been sold in plaintiff’s cemetery under rules and regulations making the owners of the lots responsible for the care and maintenance; “that because of the death of such owners and the failure of descendants to provide such care and maintenance and due to the ravages of time and the elements the graves and lots are and have been overgrown by weeds and have become sunken and the monuments, markers, headstones and railings enclosing burial plots have been deteriorated, worn, corroded, illegible or undecipherable, and dislodged from their original sites.” Plaintiff alleged that the cemetery was located in a section of the City of St. Louis which is being developed and improved with dwellings and business buildings and that the property was particularly well suited for such development; that the plaintiff has no funds for the maintenance of the cemetery and no legal duty to maintain the same; that the cemetery property is tax free and that, if removed from cemetery purposes and sold, it would be added to the city tax lists of the City of St. Louis.

The petition further alleged that plaintiff owned a large cemetery in St. Louis County, known as New St. Marcus Cemetery, and that it proposed to reinter the remains in the old cemetery in the new without cost to the lot owners or descendants of the owners of the rights of burial.

By their answers defendants generally denied the allegations of the plaintiff’s petition. Some of the answers charged “that the condition described in plaintiff’s petition is a result of a plan conceived and adopted by plaintiff for the purpose of intentionally allowing the cemetery owned by plaintiff known as Old St. Marcus Cemetery to deteriorate, decline in appearance, and to become an eye sore in the Community; that said plan originated on the part of the plaintiff with the plan adopted by it at a meeting of its Board of Directors in 1956; that thereafter to make said plan fully effective, that plaintiff did fail, refuse and since that date has failed to maintain, operate and properly care for the lots and properties of said cemetery.” Some answers further charged that the plaintiff encouraged the enactment of the ordinance by the Board of Aldermen of the City of St. Louis by which Old St. Marcus Cemetery was removed from the list of cemeteries in the City in which interments were permitted. The crossbills of some of the defendants requested a declaration that the ordinance prohibiting further interments was void and sought an accounting of the perpetual care fund of the Old St. Marcus Cemetery.

After hearing oral testimony offered by the plaintiff and receiving documentary evidence offered by plaintiff and the defendants, the trial court entered its decree granting the relief sought in the petition and denying the relief sought in the crossbills. After their motions for new trial had been overruled, the defendants appealed to this court.

On this appeal, defendants contend that plaintiff’s action was not properly brought against the defendants as a class action and that plaintiff failed to allege and prove that defendants as class representatives had been fairly chosen and that they adequately represented the lot owners as a class. Defendants also contend that plaintiff’s petition failed to state a claim on which relief may be granted because it failed to allege that the lot owners in Old St. Marcus Cemetery had abandoned their rights therein or that the cemetery was no longer kept as a cemetery, no longer preserved as a cemetery, no longer known to the public as a cemetery, or any other facts to show that it had actually been abandoned in fact; further, that the trial court erred in granting relief because the evidence did not show that the cemetery had been abandoned and showed no basis for the relief sought.

The evidence showed that the tract in question was acquired by the trustees of the predecessor organization of plaintiff, The German Evangelical Congregation of the Southern Part of the City of St. Louis, by deed dated January 3, 1856. The tract originally contained approximately 28.5 acres, but its area was subsequently reduced to 25.51 acres by the acquisition of portions thereof for street widenings.

The plaintiff corporation was incorporated by pro forma decree in 1879. The property in question was transferred, on December 4, 1916, to the plaintiff corporation by the successor trustees to the original grantees.

The deed of dedication, if any, of the property for cemetery purposes does not appear in evidence. An undated plat was introduced in evidence. Just when the use of the tract for cemetery purposes began does not clearly appear although it apparently began shortly after the 1856 acquisition. The original sale document for a lot sold in 1883 was introduced in evidence. Somewhat more than 33,000 burial sites were provided in the cemetery. At the time of the hearing in this case, 19,566 persons had been buried there.

In 1897, plaintiff opened another cemetery in St. Louis County, known as New St. Marcus Cemetery. The operation of both cemeteries has, since 1936, been by a cemetery board of five of the fourteen members of the church council, the church executive body.

The last recorded sale of a lot in the old cemetery was in 1923. Apparently no particular effort was made to sell lots in the old cemetery after that date. However, interments continued until the enactment of the city ordinance in 1962. Three interments were made in 1962, twelve in 1961, sixteen in 1960 and twenty in 1959.

On December 19, 1955, the cemetery board passed a resolution calling for the submission to the plaintiff corporation and its members a proposal that Old St. Marcus Cemetery be removed from dedication as a cemetery and abandoned as such. The minutes of the board meeting at which the resolution was adopted recited that the board had received from Louis H. Wiss-mann “a tentative offer of Eighty-five Thousand Dollars ($85,000) for the property now known and shown on plot as the Old St. Marcus Cemetery. The above offer is made subject to the removal of all bodies deemed necessary by the cemetery law, together with markers and stones.” The minutes further recite: “The Board considered with favor this offer subject to passage of resolution and ratification by the Congregation at its annual meeting January 17, 1956.”

On December 19, 1955, the church council passed a similar resolution and on January 17, 1956, the congregation authorized the cemetery board “to enter into such negotiations as they may deem proper and to give consent to the institution of such legal proceedings, including but not limited to, condemnation, as they may deem proper, and to cause such ordinances or statutes to be prepared and introduced into the proper governmental body or bodies, for the removal from dedication as a cemetery and abandoned as such, the Old St. Marcus Cemetery * * * »

The evidence in the record is limited as to what steps were thereupon taken in order to effectuate this resolution. However, subsequent cemetery board minutes contained frequent reference to the presence at the board meetings of “Mr. L. Wissmann, Agent for Cemetery.” Payments totalling $6,000 to Wissmann for expenses were approved by the board.

In July, 1961, a sale contract was entered into by the board and Frederick O. Whaley, described as a “client of Wissmann,” for the sale of the old cemetery tract for a total of $760,000 conditional upon a favorable decree permitting abandonment of the cemetery and the approval of certain zoning changes.

The original petition in this case was filed March 30, 1962. Subsequently the petition was amended, apparently to allege the enactment by the City of St. Louis, on July 2, 1962, of the ordinance withdrawing Old St. Marcus Cemetery from the list of authorized burial sites in the City.

Mr. Walter H. Rathert, a member of the church council since 1952 and a member of the cemetery board since 1954, and who, according to his testimony, had spent some 12,000 hours in connection with cemetery matters since his election to the board, testified as follows, when asked what prompted the board to enact the abandonment resolution in 1955:

“Well, with the consideration of abandoning the cemetery, because of its continual financial loss, it was discussed among the Board members, and the questions came about to do the right thing, would it be possible for us to abandon the Old Cemetery and remove the remains into the New Cemetery, and, of course, that’s a problem that would run in tremendous costs. The question came up in our minds as to what would be the general feeling if you went out to try to find out where you would find a client to buy a cemetery. And, in order to set the ground work, to get this thing going, we asked this party, Mr. Wissmann, to give us a tentative bid on the valuation of the cemetery after all removals had taken place.”

The evidence with respect to the operation of the old cemetery showed that, from October 1, 1934 to September 30, 1960, a net amount of $40,577.13 had been transferred from the new cemetery to the old cemetery. The evidence showed that both cemetery operations were conducted from the same bank accounts. There were two accounts, a general fund account and an investment account. A large portion of the investment account was represented by the perpetual care funds for the two cemeteries which at the time of the hearing exceeded $627,000. However, only some $50,000 of that amount was credited to the old cemetery. Just when the old cemetery began receiving perpetual care payments does not appear. An audit report showed $13,054.71 in the perpetual care fund in 1929, the earliest date appearing. At the time of the hearing, the perpetual care charge per burial site in the old cemetery was $37.50. There was evidence which indicated that the amount had been less at an earlier date. The income from the fund created by such deposits was used to provide for tire care perpetually of the grave sites for which such deposits had been made. At the time of the hearing, 2,290 grave sites in the old cemetery had been covered by perpetual care agreements. The new cemetery operated as a perpetual care cemetery.

For the fiscal year 1961-1962, the interest earned for the Old St. Marcus Cemetery perpetual care fund was $3,026.60 and the expense of upkeep of perpetual care lots was $1,442.51. For the fiscal year 1960-1961, the interest earned was $2,572.59 and the expense of upkeep was $1,668.79. From October 1, 1934 to September 30, 1960, there was, however, an excess of expenses for perpetual care lots over income from the perpetual care fund of $24,956.32.

There was considerable evidence relating to the item of cost of grass cutting for the nonperpetual care lots in the old cemetery. The 1883 lot sale document which was introduced in evidence contained no provision regarding the care and maintenance of the lot sold. There was introduced in evidence a 1918 deed for a lot in the new cemetery which required the purchaser of the lot to maintain the lot. Apparently, the same form of deed was used at that time for the conveyance of lots in the old cemetery. To provide a fund for the cutting of grass, a charge of $1.00 per grave site had been made for the nonperpetual care lots. Just when this charge was first imposed does not appear. The charge had been increased to $1.25, and in 1958 to $1.50 per grave site. Throughout the years the collection of the grass cutting charge became more difficult as lot owners were scattered and the descendants of buried persons became increasingly difficult to locate. According to the board treasurer, over a 38-year period, from 1921 to 1959, total uncollected grass cutting bills amounted to $59,000.00.

In 1958, 258 grass cutting bills were sent out, but only 133 were paid. In 1959, 204 bills were sent out and 190 paid. In 1960, 187 were sent and 158 paid. In 1961, no bills were sent, but 27 lot owners paid nevertheless. In 1962, two lot owners volunteered payment, but the payments were returned.

Prior to 1956, the board had maintained the cemetery by cutting the grass every ten days to three weeks on perpetual care lots and on other lots on which grass cutting charges were paid. The grass on the remainder of the cemetery was cut at least twice a year. In 1956, 1957 and 1958, grass was cut on the perpetual care lots and on the lots on which grass cutting charges were paid, but the whole cemetery was cut only once each year. In 1958, the replacement of monuments and fences that were down or overturned and the removal of trees that were blown down were discontinued. In 1959, no grass was cut except on perpetual care lots, lots on which grass cutting charges were paid and the pathway between lots. In 1962, only perpetual care lots and some nonperpetual care lots near the entrance to the cemetery were cut. Mr. Rath-ert estimated that the cost of grass cutting for the entire cemetery would be $3,500 to $4,200 per year.

Just what the physical condition of the cemetery was in 1956, when the proposal for its abandonment got under way, was not shown. Plaintiff introduced into evidence two series of photographs taken in the cemetery, one series of twenty-two photographs taken November 11, 1961 and the second series of thirteen on November 1, 1962. The first series showed lots containing graves in which numerous small trees had grown to a height of some fifteen feet; lots covered with a heavy growth of weeds to a height of three to four feet; lots covered by dense growth of sprouts five to six feet in height; lots in which grave markers had fallen from their foundation and lay on the ground; markers leaning at various angles, and lots surrounded by iron fences which were broken or lay on the ground. The second series taken a year later depicts similar conditions. Altogether the plaintiff’s photographic evidence showed a poorly maintained cemetery in which, however, the grave markers remained clearly visible.

The defendants introduced a series of twenty snapshots taken in the cemetery in April, 1962. Some showed conditions similar to those shown by the plaintiff’s photographs. Others showed different areas in which the grounds had been reasonably well cared for.

There was evidence that, to some extent, the overturned grave markers were the result of vandalism. Prior to 1958, employees of the cemetery undertook to return to their foundations stones which had overturned. At the suggestion of the police department and in an effort to curb vandalism, the main automobile entrance gates to the cemetery were, beginning in October, 1962, open only between the hours of 8:00 A.M. and 5 :00 P.M. on weekdays. The gates were closed on Saturdays, Sundays and holidays. However, the pedestrian entrance gates remained open at all times.

Until around 1952, a full-time caretaker had lived on the Old St. Marcus Cemetery grounds. At the time of the hearing, the board employed a superintendent who was in charge of both the old and new cemeteries. Approximately ten per cent of his time was spent on the old. Other employees also worked at both the old and new cemeteries as their services were required.

A member of the cemetery board testified that tentative plans called for the remains in nonperpetual care graves in the old cemetery to be reinterred in a portion of the new cemetery in which there had been no burials. All perpetual care grave remains were to be reinterred in a portion of the new cemetery set aside for such purpose. The witness estimated that, if the old cemetery property was sold and the removal and reinterments made as planned, some $120,000 to $130,000 of the sale price would remain after the payment of all expenses. The tentative plan called for such sum to be set aside as a fund for the maintenance of the nonperpetual care graves in the new cemetery.

The petition in this case sought the right to disinter the remains in the Old St. Marcus Cemetery and to reinter them in the New St. Marcus Cemetery. It sought further a decree that, following the accomplishment of the removal of the remains from the old cemetery, the dedication of the land occupied by the Old St. Marcus Cemetery should be terminated in order that plaintiff might convey a fee simple title to such land.

In Missouri, the purchaser of a lot in a public cemetery does not acquire an estate in fee. The interest acquired is an easement or privilege of burial. Billings v. Paine, Mo.Sup., 319 S.W.2d 653, 656(4). This is the generally accepted theory in this country of the interest of a cemetery lot owner. Jackson, The Law of Cadavers, 2d, pages 356-364. Although, as did the lot transfer documents in evidence in this case, the interest is purported to be transferred “forever,” it is recognized that the right conveyed “is not an absolute right of property, but a privilege or license, to be enjoyed so long as the place continues to be used as a burial-ground, subject to municipal regulation and control, and legally revocable whenever the public necessity requires. It is a right of limited use for purposes of interment which gives no title to the land.” Page v. Symonds, 63 N.H. 17, 19. “The'holder of a lot in a cemetery belonging to a municipality or religious society for burial purposes, whether his evidence of title be by deed or certificate or other means, does not acquire an absolute title to the land, but has the right or license, exclusively of any and every other person, to bury the dead upon the subdivided plot assigned to him, and a license once acquired cannot be revoked so long as the ground continues to be used as a place of sepulture.” Gowen v. Bessey, 94 Me. 114, 116, 46 A. 792, 793. See 14 C.J.S. Cemeteries § 25, p. 84; 14 Am.Jur.2d, Cemeteries, Sec. 25, p. 732.

The right of legislative authority to limit and terminate the interests of lot owners under the proper exercise of the police power has been often recognized. Thus, the prohibiting of further burials in an established cemetery has been upheld when done in the proper exercise of the police power. Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 30 S.Ct. 301, 54 L.Ed. 515; Kincaid’s Appeal, 66 Pa. 411. The existence of such authority was recognized in Union Cemetery Association v. Kansas City, 252 Mo. 466, 161 S.W. 261, 271(2), although the ordinance involved in that case was held invalid on the grounds that it was enacted in the financial interests of property owners in the vicinity of the cemetery rather than for the benefit and protection of the public under the police power.

Legislative power to require or permit the removal of bodies from cemeteries in the reasonable exercise of the.police power is generally recognized. Masonic Cemetery Association v. Gamage, (CCA 9), 38 F.2d 950, 71 A.L.R. 1027; see Annotation, “Constitutionality of statute or ordinance' requiring, or permitting, removal of bodies from cemeteries,” 71 A.L.R. 1040.

In this case there has been municipal legislative action terminating the right to make further burials in Old St. Marcus Cemetery. However, we have no legislative requirement of, or express authorization for, the removal of bodies previously interred therein. The prohibiting of further burials did not produce, per se, an abandonment of the cemetery. Kansas City v. Scarritt, 169 Mo. 471, 69 S.W. 283, 286; Tracy v. Bittle, 213 Mo. 302, 112 S.W. 45, 49.

Thus the question with which we are here confronted is the nature and extent of the authority of a court of equity to authorize and approve a proposal for the disinterment of bodies previously interred and their re-interment elsewhere and upon the completion of such a plan to declare the abandonment of the dedication of the land for cemetery purposes. We find reported cases from other jurisdictions in which courts of equity have recognized authority of this nature in certain circumstances. In Grinnan v. Fred-ericksburg Lodge, 118 Va. 588, 88 S.E. 79, an injunction was sought to prevent the disinterment of bodies buried in a cemetery and their reinterment in the same cemetery in order to provide space for a memorial temple honoring George Washington, a former member of the Lodge which owned the cemetery. In refusing to enjoin the removal, the court stated (88 S.E. 80(1)) :

“There is nothing in our statute law applicable to the facts here presented, nor is there anything in such statutes showing that the policy of this commonwealth is averse to the removal of graves in a reverent and proper manner under all circumstances. Code 1904, § 1416a. There can, however, be no question of the power of a court of equity to deal with a situation like the present, notwithstanding the absence of legislation on the subject, and to authorize, in its sound judicial discretion, the removal of graves or cemeteries in a proper case, after due consideration of all the facts and with due regard to the rights and feelings of all concerned.”

In re Sprogell Burying-Ground, 22 Montgomery County Law Rep. (Pa.) 63, involved a petition by the trustees of a burial ground for permission to remove bodies buried therein and to reinter them elsewhere on the grounds that the land had ceased to be a desirable place for burial because it had become surrounded by manufacturing plants- and railroad tracks made access to the-ground inconvenient and dangerous. In: granting the relief requested, the court stated (22 Montgomery Co. Law Rep. 66) :

“Those who accepted the benefits of the charity could not acquire such an interest in the ground as would defeat the charity itself. If the persons whose relatives are buried in the ground can successfully resist the removal of the dead, then the ground can not be sold; and if the tract can not be sold then the trustees are without means to buy a new tract to continue the charity. Again,, the removal of the dead from this abandoned or unsuitable place to a desirable burial ground is necessary in order to carry out the purpose of the grantor to provide a proper resting-place for the bodies of the dead.

“The claims and rights of a lot-owner are considered in Kincaid’s Appeal, 66 Pa. 421, and Craig v. The First Presbyterian Church, 88 Pa. 51. But if in the course of time it should become necessary to vacate the ground as a burying-ground, all he could claim, either in law or equity, would be that he should have due notice and the opportunity afforded to him of removing the bodies and monuments to some other place of his own selection, or that on his failing to> do so such removal should be made by others. He accepted the grantor license subject to-this necessary condition. In the case cited the authority for the vacation of the burial ground was an act of Assembly; but if a burial ground becomes useless, and the court finds it necessary to abandon and sell the ground in order to continue a charity by the purchase of other ground, then we have a vacation by lawful authority just as imperative as a vacation by a church under legislative permission. The execution of a decree under the act of 1853 is the exercise of a lawful authority, if such decree is lawful.”

In Sprogell, no interments had been made in the cemetery for twenty-three years before the petition had been filed and many bodies had voluntarily been removed therefrom. No body remained in the ground that had been buried there thirty years prior to the filing of the petition.

In Touro Synagogue v. Goodwill Industries, 233 La. 26, 96 So.2d 29, the court ordered specific performance of a contract of the sale of real estate owned by the Synagogue and occupied by what the court found to have been an abandoned cemetery. In its decree the court ordered the Synagogue to remove the remains of all persons buried therein and to reinter them in another cemetery used and maintained by it. The court found that the old cemetery had in fact and as a matter of law been abandoned. In describing its condition, the court stated (96 So.2d 33(3)):

“The cemetery in this case has clearly been abandoned. This burial ground has received no interment since 1872 and in its condition of disintegration is presently unfit for this purpose. In addition, the public and the survivors or others interested in its use as a cemetery have failed to keep and preserve it as a resting place for the dead. The premises have been permitted to fall into disorder, the walls to crumble, and the gravestones and monuments to be destroyed so that graves have lost their identity and nothing now remains to stir the emotions or sentiments of the relatives of the dead.
“We can find no justification under the facts established for denying Touro Synagogue the right to sell the property here involved subject to the conditions imposed by the judgment of the court.”

In Trustees of First Presbyterian Church in Newark v. Ailing, 54 N.J.Sup. 141, 148 A.2d 510, the court affirmed a judgment sought by the trustees in an action described by the court as, “in essence, an application by plaintiff to obtain court approval of a plan to abandon the further use and maintenance of the greater part of the cemetery grounds as such, and thereafter use or dispose of the same free of any dedication for burial purposes.” 148 A.2d 512. In upholding the judgment, the court stated (148 A.2d 513(1, 2)):

“Aside from statutory authorization for the relief sought (see N.J.S.A. 8:3-8 et seq.), there is no doubt of this court’s original jurisdiction to entertain this application. A burying ground or cemetery is affected with a public interest and is a trust. This court has alway exercised supervision and control over cemetery matters.”

The proposal approved in that case called for the disinterment of the remains in an old church cemetery and their reinterment in a common grave in a small portion of the original area and a suitable monument to be erected thereon and the area to be maintained in the future by the church. In describing the condition of the cemetery, the court stated (148 A.2d 514(3)) :

“The proofs submitted in the matter at hand are persuasive and compelling. No religious question is involved since the application is not in conflict with the tenets, practices, or customs of the Presbyterian Church. The burying ground is no longer used and has not been used since the turn of the century. It is in a dilapidated and run-down condition to a point where it cannot be restored. No one visits the cemetery anymore or indicates any interest in it. No one contributes anything to its upkeep. To attempt to maintain the property with any semblance of respectability would constitute a drain on the income of the church.”

In the present case, there was no showing of a situation which would justify the conclusion that Old St. Marcus Cemetery had been abandoned as a cemetery. See Tracy v. Bittle, 213 Mo. 302, 318, 112 S.W. 45, 49-50; Campbell v. Kansas City, 102 Mo. 326, 348-349, 13 S.W. 897, 901-902, 10 L.R.A. 593. There was evidence that a number of the lots had been neglected and that weeds, sprouts and small trees had been permitted to grow in large areas of the cemetery. However, even in such areas the photographic evidence showed that the grave sites continued to be recognizable as such with many stones in place marking their location and identifying the persons buried therein.

Furthermore, a considerable portion of the cemetery was undoubtedly maintained as such. 2,290 grave sites were under perpetual care contracts and continued to be cared for and maintained by the plaintiff. In addition, the nonperpetual care lots in the vicinity of the entrance to the cemetery had been maintained. The photographic evidence showed that the paths and roadways in the cemetery had been maintained.

Inasmuch as this is not a case of prior abandonment of the cemetery, we are confronted with the question of whether or not a court of equity should grant the relief here sought because of the financial burden which the continued maintenance and operation of the cemetery imposes upon the plaintiff. In passing upon this question, we must consider the nature of the-obligation from which the plaintiff seeks relief. We have held that plaintiff as the owner of the fee is under no obligation, absent a contractual assumption of such burden, to maintain the lots which have been sold. United Cemeteries Co. v. Strother, 332 Mo. 971, 61 S.W.2d 907, 910, 90 A.L.R. 438. However, the maintenance of the area in which lots had not been disposed of would be plaintiff’s obligation. Jackson, The Law of Cadavers, 2d, pages 332-333. Although the area involved is not shown, the evidence did show that some 13,500 of 33,000 grave sites provided in the cemetery were unsold. Furthermore, plaintiff had obligated itself under perpetual care contracts to maintain 2,290 grave sites representing more than ten per cent of the total interments.

The evidence showed that the burden of the latter obligation was actually the source of the loss in the maintenance of the old cemetery which necessitated the transfer to it of funds from the new cemetery. The audit of the operations of the old cemetery from October 1, 1934 to September 30, 1962 showed that perpetual care expenses exceeded perpetual care income during the period by $24,956.32. On the other hand, other operations, including grass cutting, of the old cemetery during the same period resulted in a net profit of $9,552.48. For the period of the audit, income from sales of “service” was $34,775.16 and the cost of sales of “service” was $33,804.04. The accountant who prepared the audit stated that “service” was primarily grass cutting.

Thus it appears that the principal financial burden which has been imposed upon the plaintiff was not due to the neglect by lot owners of their obligation, but was attributable to a contractual liability which the plaintiff had assumed. A court of equity may in some circumstances reform a contractual arrangement. However, the mere fact that an obligation has become burdensome affords no basis for relief. As stated in Tamko Asphalt Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527, 537:

“Many courts have found it appropriate to point out, in a wide variety of situations, that equity vests in the judiciary no broad and unfettered discretion to disturb or alter contractual rights and no carte blanche authority to decree such contractual construction as a court may believe would have been better for the parties; that the aid of a court of equity may not be invoked to avoid or prevent enforcement of a contract, simply because such enforcement may work a hardship upon one of the parties; and that, in the absence of some recognized ground warranting equitable interference, the rights of the parties should be determined by their contract and, as thus determined, should be respected and effectuated.”

The existence of the contractual obligation of the cemetery owner in this case distinguishes the case from any which has been called to our attention or which we have discovered in which disinterment of all of the remains in an existing cemetery has been accomplished with the approval of a court of equity without legislative authorization therefor. In our opinion, no basis has been shown in the circumstances of this case to justify the granting by a court of equity of the relief requested. The considerations of public policy involved in an application such as here presented are properly for the policy making governmental authority and not the judiciary. We do not endeavor to pass upon the question of whether or not the considerations here presented would justify the exercise of the police power by the proper legislative authority to require the abandonment of the Old St. Marcus Cemetery.

The appellants on this appeal also complain of the failure of the trial court to hold unconstitutional the ordinance of the City of St. Louis prohibiting further interments in the Old St. Marcus Cemetery. As pointed out above, the constitutionality under the due process clause of such legislation has been upheld by the United States Supreme Court in Laurel Hill Cemetery v. San Francisco, supra. Here the appellants alleged that the ordinance had been enacted at the instance of the plaintiff and was not a valid exercise of the city’s police power. Apparently they were endeavoring to attack the ordinance on the basis employed in the Union Cemetery case, supra. However, -the appellants offered no evidence in support of their allegation. The ordinance is presumed to be constitutional. Passler v. Johnson, Mo.Sup., 304 S.W.2d 903, 908 (3-7); Kansas City v. Liebi, 298 Mo. 569, 591, 252 S.W. 404, 407(1, 2), 28 A.L.R. 295. We find no basis in this case for declaring -it otherwise. We likewise find no basis for -the relief sought by way of accounting for the perpetual care fund of the old cemetery. No showing was made by appellants which casts doubt upon the accuracy of the audit report and the account rendered therein of the perpetual care fund.

Insofar as the judgment of the trial court authorized the relief prayed for by the plaintiff in its petition, the judgment should be reversed. Insofar as it denied the relief sought in the defendants’ crossbills, the judgment should be affirmed.

HOUSER and HIGGINS, CG, concur.

PER CURIAM.

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

All of the Judges concur.


text:
    FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, a Wisconsin Corporation, Plaintiff-Appellant, v. Thomas W. DRANE, Adalpha Drane, Terry Gene Drane, Charles L. Durk, Larry Jensen and MFA Mutual Insurance Company, a Missouri Corporation, Defendants-Respondents.
    No. 50185.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.

      Keyes, Bushman & Hearne, John L. Hearne, Jefferson City, for plaintiff-appellant.
    Spencer, Hines & Petri, Columbia, for Thomas W. Drane, Adalpha Drane and Terry Gene Drane, defendants-respondents-
    Howard F. Major, Columbia, for Charles-L. Durk, Larry Jansen and MFA Mutual Insurance, defendants-respondents.
   WELBORN, Commissioner.

This is an action for declaratory judgment by which the Farmers Mutual Automobile Insurance Company sought a declaration of its nonliability on a farm liability and medical payments policy issued by it to Charles L. Durk. The circuit court sustained a motion for judgment on behalf of defendants, directed at the plaintiff’s petition. This appeal followed.

This litigation originated on July 31, 1957, with the fall of respondent Terry Gene Drane, at that time a minor, from a load of baled hay being hauled by a truck owned by respondent Charles L. Durk and driven by Durk’s employee, respondent Larry Jensen, The truck was being operated on a county road in Boone County, Missouri. Terry Gene fell from the truck when it passed beneath a telephone wire.

Durk was insured under a farmers public and employee liability policy issued by the appellant and also under an automobile liability policy issued by the MFA Mutual Insurance Company (hereinafter refered to as MFA). Appellant investigated the reported casualty to Terry Gene and concluded that there were coverage defenses available to it under the terms of the policy which it had issued to Durk. These defenses are not revealed by the record before- us and no effort is made in this litigation to establish the validity of these coverage defenses-Durk entered into a non-waiver agreement with appellant, under which appellant undertook to handle all claims growing out of the fall of Terry Gene, without waiving any of appellant’s rights or defenses under the policy.

Terry Gene and his parents, Thomas W. and Adalpha Drane, filed separate suits in the Boone County Circuit Court against Durk, Jensen and the owners of the telephone line under which the truck passed at the time of the fall. Terry Gene’s suit sought damages in the amount of $150,000 for the injuries he claimed to have sustained in the fall. His parents’ action sought $25,000 damages for loss of their son’s services. Durk, Jensen and the Beiks, the owners of the telephone wire, were named as defendants in the actions. Both petitioners charged that Terry Gene’s injuries were attributable to the negligent operation of the truck by Jensen, the employee of Durk.

On September 10, 1959, the Dranes, Durk, Jensen and MFA entered into an agreement whereby, in consideration of $11,000 paid to the Dranes by MFA, the Dranes agreed that, in the event of their recovery of a judgment in their favor in the suits pending in the Boone County Circuit Court, they would not levy execution by garnishment or otherwise against Durk, Jensen or MFA, “provided, however, that execution by garnishment or as otherwise provided by law may be levied against said Farmers Mutual Automobile Insurance Company; * * -j'jjg agreement further provided for its being filed for record, in which event any judgment recovered by the Dranes would not be a lien on the property of Durk or Jensen.

On January 25, 1960, the Beiks paid the Dranes $5,600 in settlement of the claims against them and a stipulation for the dismissal of the action against the Beiks was entered into, together with a covenant by the Dranes not to sue the Beiks.

Following the agreement between Durk, Jensen, the Dranes and MFA, appellant filed the present action in the Boone County Circuit Court for a declaratory judgment as to its liability under its policy in the light of such agreement. By its petition on which the matter was determined in the court below, appellant set forth essentially the foregoing facts. It alleged that the agreement of September 10, 1959 was entered into “without the consent, knowledge or permission of the plaintiff (Farmers Mutual Automobile Insurance Company and without notice to said plaintiff company; that said agreement was drawn up and prepared by attorneys representing M.F.A. Mutual Insurance Company and with the active assistance and cooperation of the attorneys representing Terry Gene Drane, Thomas W. Drane and Adalpha Drane; that in negotiating and preparing said agreement the defendant Charles L. Durk conferred with the attorneys representing M.F.A. Mutual Insurance Company without the consent, knowledge or permission of the plaintiff Farmers Mutual Automobile Insurance Company and without notifying it thereof.”

Appellant’s petition, in three counts, sought a declaration of its nonliability on three theories. By Count I, the petition sought such a declaration on the theory that the agreement of September 10, 1959 constitutes a complete bar to the Dranes’ actions in the Boone County Circuit Court. An injunction against further prosecution by the Dranes of the suits was prayed for. By Count II, appellant sought a declaration that the agreement of September 10, 1959 relieved Durk and Jensen of any legal obligation to pay damages to the Dranes and that, appellant’s obligation under its policy being to pay “sums which the insured shall become legally obligated to pay as damages * * the appellant has, by the agreement, been fully discharged from all liability under its policy. Count III sought a declaration that Durk, by conferring with attorneys for MFA without the knowledge and consent of appellant and by entering into the agreement of September 10, had violated and materially breached the cooperation clause of appellant’s policy and the non-waiver agreement entered into between appellant and Durk.

Motions to dismiss appellant’s petition were filed separately by MFA, Jensen and Durk. The Dranes filed a motion to strike and motion for judgment. By the latter motion, they sought judgment against appellant on the grounds that the September 10th agreement "was duly and lawfully authorized by and was duly and lawfully made and entered into under the provisions of Section 537.065, R.S.Mo., 1949, Laws of Missouri, 1959, S.B. No. 259, duly passed and approved, and in force and effect at the time said agreement was made and entered into and at all times mentioned and referred to in plaintiff’s amended petition and in each and every Count thereof, and that thereunder and by authority thereof and by reason thereof said agreement was and is lawful, valid, binding and fully effective and is a bar to and defeats the plaintiff’s alleged action alleged in plaintiff’s amended petition and in each and every Count thereof.”

In response to this motion, the court entered judgment against appellant and in favor of the respondents. As to Count I, the judgment decreed that neither appellant nor its insured was relieved from liability by the September 10th agreement and that the agreement does not constitute a bar to the further prosecution of the Dranes’ actions in the Boone County Circuit Court. In response to Count II, the court found that appellant is not by reason of the agreement released from liability under its policy and that appellant was obligated to defend the cases brought by the Dranes. In response to Count III, the court found that appellant had not shown that, by the agreement, Durk had materially violated or breached any provisions of appellant’s insuring agreement with Durk; that Durk bad not materially impaired the rights of appellant by entering into the agreement; that appellant “will be liable to pay insofar .as the facts and pleadings herein appear any final judgment or judgments, or portion thereof, recovered” in actions brought by the Dranes out of the alleged casualty of July 31, 1957.

On this appeal, appellant renews its contentions regarding the effect of the September 10th agreement upon its liability. It also contends that Section 537.065, RSMo 1959, V.A.M.S., relied upon by respondents, does not authorize the agreement here involved and that, even if it did, it could not excuse Durk’s violation of the cooperation clause of his policy with appellant because it was not in effect at the time of the issuance of the policy and that to permit the statute relied upon to excuse the alleged violations of the policy terms would be contrary to the impairment of contract clauses of the Missouri and United States Constitutions.

Respondents rely upon Section 537.065 as authorizing the September 10th agreement, with the result that the agreement did not bar further prosecution of the Dranes’ actions, and did not terminate the liability of appellant on its policy issued to Durk.

In view of the role of Section 537.065, we note here its terms and history. Section 537.065 provides as follows:

“Any person having an unliquidated claim for damages against a tortfeasor, on account of bodily injuries or death, may enter into a contract with such tortfeasor or any insurer in his behalf or both, whereby, in consideration of the payment of a specified amount, the person asserting the claim agrees that in the event of a judgment against the tortfeasor, neither he nor any person, firm or corporation claiming by or through him will levy execution, by garnishment or as otherwise provided by law, except against the specific assets listed in the contract and except against any insurer which insures the legal liability of the tort-feasor for such damage and which insurer is not excepted from execution, garnishment or other legal procedure by such contract. Execution or garnishment proceedings in aid thereof shall lie only as to assets of the tortfeasor specifically mentioned in the contract or the insurer or insurers not excluded in such contract. Such contract, when properly acknowledged by the parties thereto, may he recorded in the office of the recorder of deeds in any county where a judgment may he rendered, or in the county of the residence of the tortfeasor, or in both such counties, and if the same is so recorded then such tortfeasor’s property, except as to the assets specifically listed in the contract, shall not he subject to any judgment lien as the result of any judgment rendered against the tortfeasor, arising out of the transaction for which the contract is entered into.”

This statute was enacted as Senate Bill No. 259 of the 70th General Assembly. Senate Bill No. 259 was introduced by Senators Spencer, Waters and Jones. Senator Spencer is attorney for the Dranes. On oral argument in this court, he stated that the bill had been introduced because of the situation which had been presented by the injury to Terry Gene Drane. The bill became law on August 29, 1959, and the agreement was entered into twelve days thereafter.

On this appeal, appellant does not challenge the legislative power to enact a statute having the effect which respondents would give to Section 537.065. Nor does appellant contend that, insofar as an agreement might be within the ambit of Section 537.065, it should not be given the effect which respondents would give to the September 10th agreement. The appellant does contend that, in the absence of 537.065, the agreement should be considered as one by which the Dranes gave up all methods of legally enforcing a judgment against Durk or Jensen personally, or their assets, and that they thereby voluntarily gave up the remedy, an essential element of this cause of action.

We need not, however, consider at any length this contention if we conclude that the September 10th agreement is such an agreement as was contemplated by Section 537.065. In such event, the effect of the agreement must be determined in the light of the statute and not in the light of what the law might have been, absent the statute.

Appellant’s contention that the September 10th agreement is not within the scope of Section 537.065 is based upon two grounds. Appellant’s first argument is that any agreement, to be within the scope of Section 537.065, must list assets of the tort-feasor which would be subject to execution in the event of a judgment, and the September 10th agreement lists no assets of Durk or Jensen, but, on the other hand, excludes all of their property and assets from execution to enforce any judgment the Dranes might obtain. Plaintiff contends that the statute requires an agreement whereby the claimant will not levy execution except against specified assets listed in the contract and except against any insurer which insures legal liability of the tort-feasor.

We reject this contention as inconsistent with what appears to us to be the obvious purpose of the statute in question. As applied to the situation of this case, the legislature wished to provide a method whereby one insurer might pay, without litigation, the amount agreed upon between it and the claimant. If the claimant is unwilling to look solely to another insurer, whose coverage may be doubtful, as in this case, he may insist that the tort-feasor provide some security for the payment of a judgment which might be recovered in favor of the claimant. If, however, the claimant is willing to take his chance on payment by an insurer not excepted, we find nothing in the statute which would require that, nevertheless, some assets of the tort-feasor be listed. The absurdity of such a requirement as appellant contends for is clear when one considers that no standard whatsoever is prescribed for assets of the tort-feasor which would, if its contention is correct, be required to be listed. Thus, if such a requirement were found to exist, it might be satisfied by listing as the asset of the tort-feasor which might be levied upon, his savings account in X Bank, an account which might have a balance of $1.00. We think that the more reasonable construction is that the legislature did not intend to require that assets of the tort-feasor be listed, and that the conjunction “and,” pointed to by appellant, in this instance is properly construed to mean “or.” See Hurley v. Eidson, Mo. Sup., 258 S.W.2d 607, 608(1).

Appellant’s second contention is that the statute is not applicable because it refers to “tort-feasor” and that Jensen and Durk are not “tort-feasors” until their liability is determined—that, until that time, they are “merely alleged tort-feasors.” We do not consider this argument meritorious. The statute clearly contemplates a situation wherein the agreement would he entered into prior to a judicial determination of liability. The statute refers to what the situation should he “in the event of a judgment against the tortfeasor.” Obviously this contemplates a situation where liability has not been finally determined and the term “tort-feasor” refers to a person charged with liability for a tort. See Buchanan v. Beirne Lumber Co., 197 Ark. 635, 124 S.W.2d 813, 815.

We, therefore, reject appellant’s contention that the agreement in this case is not within the terms of the statute relied upon by respondents. Having rejected this contention, we likewise reject the position, more inferred than directly argued, that the statute could not be given effect to avoid the bar to further litigation between the Dranes and Durk and Jensen. Insofar as it might alter pre-existing legal theories and concepts, its effect would be similar to the effect of the enactment (Laws of Mo., 1915, page 268) of the provisions of what is now Section 537.060, RSMo 1959, V.A.M. S., which did away with the previously existing rule that a settlement with one joint tort-feasor of a cause of action constituted a settlement for all tort-feasors. Farrell v. Kingshighway Bridge Co., Mo.App., 117 S.W.2d 693.

Appellant strongly argues that, even though the agreement might not bar further litigation between the Dranes and Durk and Jensen, it does discharge appellant from liability because its liability under its policy is “to pay on behalf of the insured all sums which' the insured shall become legally obligated to pay as damages because of bodily injuries.” Appellant argues that the Dranes’ agreement not to levy on property of Durk or Jensen relieves the latter of any legal obligation to pay any damages to the Dranes.

The policy here involved is one insuring against liability and is not one of indemnity or reimbursement. As appellant in its brief states: “It is now well settled in Missouri that the rights and obligations of the parties involved in a casualty, where one or more are insured by liability insurance, become fixed at the time that the casualty occurs; the injured parties’ rights against the insurer are inchoate until a judgment is obtained against the insured, but nevertheless, they are fixed.” Citing: Hocken v. Allstate Ins. Co., 235 Mo.App. 991, 147 S.W.2d 182, and State ex rel. McCubbin v. Ginn, Mo.Sup., 347 S.W.2d 119. There is no indication that the sum paid the Dranes by MFA on behalf of Durk and Jensen was intended as full satisfaction of the Dranes’ claims. On the contrary, the reservation in the agreement of rights against appellant clearly indicates that the parties did not contemplate that the payment was in full satisfaction of the Dranes’ claims.

Cases cited by appellant, holding that the procuring of liability insurance by charitable organizations otherwise exempt from tort liability does not affect such exemption, are not analogous to this situation. In those cases, such as Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, 239 Mo.App. 38, 187 S.W.2d 469, the holding that there would be no liability for damages for personal injury on the part of the insurer of a charitable association which had assumed “to pay all loss by reason of the liability imposed by law” upon the insured was based upon the lack of liability of the insured at the time of the injury. Here, if the allegations of Jensen’s negligence are proven, and his relationship to Durk established, both Jensen and Durk were liable at the time of the injury. The September 10th agreement did not purport to terminate that liability, although it would operate to limit the enforceability of a judgment based upon such liability. We, therefore, conclude that appellant’s argument on this basis is without merit.

Appellant’s final contention is that Durk and Jensen, by entering into the September 10th agreement, breached the cooperation clause of appellant’s insurance contract. Appellant argues that, by entering into the agreement, its insureds violated their duty to exercise good faith and act fairly toward their insurer, the appellant. Of course, the insureds owed a similar obligation to MFA. We would not say that, simply by cooperating with that insurer, Durk and Jensen violated the cooperation clause of appellant’s policy.

Appellant insists that its position was prejudiced by the agreement. It argues that the agreement constituted “a damaging admission of liability” by Durk, and that appellant, in its defense of the Dranes’ claims, would be confronted with the dilemma of being obliged to offer evidence of the payments to the Dranes in an effort to obtain a reduction in the amount of damages now recoverable by the Dranes, but, at the same time, to produce the agreement as evidence of the payment would result in the jury’s receiving evidence of an admission of liability by Durk and Jensen. They also argue that the Dranes, in their suits, would be able to use the agreement as an admission on the part of Durk and Jensen.

As to appellant’s dilemma, there are various considerations. We do have cases holding that evidence of partial payments on account of damages may be introduced in order to reduce the amount of recovery to which' a plaintiff is entitled. Wooldridge v. Scott County Milling Co., Mo.App., 102 S.W.2d 9S8. However, we do not consider that such evidence would be required to be introduced in this case. The trial would establish the amount of damages to which the Dranes would be entitled in order to make them whole. They would be entitled to only one satisfaction of that amount. Abbott v. City of Senath, Mo.Sup., 243 S.W. 641, 642. Therefore, it would be proper, in garnishment or other proceedings to enforce appellant’s claimed liability, to consider the effect of the payments received by the Dranes upon appellant’s obligation to pay the judgment or a portion thereof. Although the agreement does not recite that the payment of $11,000 was in partial satisfaction of the Dranes’ claims, it cannot realistically be considered otherwise. See Comments, 24 So.Cal.Rev. 466, 476.

Therefore, in the garnishment proceedr ing, appellant should be entitled to have such payment considered as partial satisfaction of the Dranes’ claims and its obligation determined in the light thereof, and in the light of the nature and extent of the coverage afforded under the policies of appellant and MFA. A determination in such proceeding of the effect upon appellant’s obligation of the payment already made to the Dranes would obviate the necessity of introducing the agreement at the trial of the Dranes’ claims for damages.

Insofar as appellant’s contention that the Dranes, in their lawsuits, might use the agreement as an admission of liability on the part of Durk and Jensen is concerned, the petition does not allege that the Dranes are contending that the agreement may be used for such purpose. In their brief in this court, respondents do not contend that the agreement may be so employed. In such circumstances, we will not pass upon its use for such purpose as producing a violation of the cooperation clause of appellant’s policy issued to Durk. We do note that the agreement contains no express admission of liability on the part of Durk and Jensen. In view of the obligation of Durk and Jensen to cooperate with both MFA and appellant, we cannot say that the mere fact of entering into the agreement constituted a breach of the cooperation clause of appellant’s policy.

The judgment is 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: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Wilbert Roscoe McMILLIAN, Appellant.
    No. 50741.
    Supreme Court of Missouri, Division No. 1.
    Oct. 12, 1964.
    Motion to Transfer to Court En Banc Denied Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
    E. C. Lockwood, Mountain Grove, for appellant.
   HIGGINS, Commissioner.

This appeal is from an order overruling appellant’s motion to set aside and vacate judgment and sentence, filed under Supreme Court Rule 27.26, V.A.M.R. No evidence was offered at the hearing and, after argument by counsel, the court found that the files and records of the court showed to the satisfaction of the court that the appellant was entitled to no relief.

Wilbert Roscoe McMillian was convicted December 18, 1958, of the crime of forcible rape and was sentenced to life imprisonment. He appealed from the judgment and sentence and his conviction was affirmed October 10, 1960. State v. McMillian, Mo., 338 S.W.2d 838

Assignment No. I is that appellant was denied the protection of due process of law. In support of this contention appellant states that his court-appointed counsel lived thirty miles away; that there were little means of procuring evidence; that there was little opportunity for conference, and that he was without counsel when he waived his preliminary hearing. Assignment No. II also relates to a charge of lack of time to procure and evaluate evidence, and we consider these assignments together. The transcript filed in the original appeal shows that counsel was appointed for appellant October 27, 1958, and that appellant and his counsel then asked “that the cause be continued until December 15, 1958, for preparation for trial.” On December 15, 1958, appellant appeared with his counsel, waived formal arraignment, and announced, ready for trial. No request for continuance for additional preparation was made. The rule in connection with time to prepare is stated generally in 23 C.J.S. Criminal Law § 982(8), p. 978: “The amount of time and effort of preparation required to provide effective representation will vary with the nature of the charge, counsel’s familiarity with the applicable law, and the facts, and a claim of lack of effective assistance of counsel must be supported by a showing that more time was needed, requested, and deniedIn State v. Stucker, 352 Mo. 1056, 180 S.W.2d 719, appellant’s counsel was appointed the day before trial began on a charge of assault with intent to kill which resulted in conviction and a sentence of imprisonment for twenty years. There the court said, 1. c. 720 [3, 4] : “We know of no decisions holding the accused can complain of want of time for preparation when he did not ask for it.” See also State ex. rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268, 276 [11], 278 [18],

We have previously held that “Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination,” State v. Turner, Mo., 353 S.W.2d 602, 604 [6-8], and any defect in connection with the preliminary examination would be waived by failing to object and going to trial. State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, 302 [1],

Appellant here announced ready for trial without request for additional time or continuance, and stood trial with the aid of competent counsel and without raising any question concerning his preliminary hearing or his waiver of that right. His complaints by way of Assignments I and II are denied.

By his Assignment No. Ill appellant charges that his conviction was obtained by perjury and suppression of evidence. Although the argument on this assignment contains some allusions to the evidence at the trial, the charges of perjury and suppressed evidence are unsupported conclusions. We have held that “A motion to vacate under Rule 27.26 is insufficient which states mere conclusions. In order to state a claim, the facts alleged must be sufficient to establish grounds for the relief contemplated by the rule.” State v. Ninemires, Mo., 306 S.W.2d 527, 530 [8], 531 [9, 10]. Other than by way of appellant’s unsupported accusations and conclusions it is not shown where the prosecution in this case knowingly used perjured testimony or gained conviction by suppressing evidence. There are no affidavits, testimony or other evidence by which these assertions might be supported, and they do not prove themselves. The assignment is overruled.

Assignment No. IV charges that the court erred in overruling motions for acquittal at the close of the State’s case and at the close of all the evidence. Assignment No. V charges that the court erred in not instructing the jury as required by Section 546.070 RSMo 1959, V.A.M.S. Assignments VI and VII are complaints of failure to declare mistrial because of alleged inflammatory and prejudicial argument. These assignments are the same as some of the errors alleged to have occurred at the trial of the case, and they were reviewed and ruled specifically on the direct appeal. State v. McMillian, supra. We have held that ‘Rule 27.26 affords a prisoner a convenient means for a direct attack on the judgment of conviction by motion in the original proceeding. The attack is governed by the general principles applicable to habeas corpus proceedings within the grounds specified in Rule 27.26, which lie only where the sentence is void or otherwise subject to collateral attack.’ State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 806. We have also said that ‘A motion under Rule 27.26 may not be used as a substitute for a motion for new trial (State v. Cerny, [365] Mo.Sup. [732], 286 S.W.2d 804) nor function as an appeal.’ State v. Hagedorn, Mo.Sup., 305 S.W.2d 700, 702.” State v. Childers, Mo., 328 S.W.2d 43, 44 [3],

In State v. Childers, supra, 1. c. 45 [4], we held that “Rule 27.26 does not afford a basis for the review of trial errors * * The matters contained in Assignments IV, V, VI, and VII, were all reviewed and ruled on the direct appeal and are not to be considered in this proceeding.

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

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

All concur.