author: WESTHUES, Judge.

text:
    Raymond H. JOHNSON, Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, A Corporation, Appellant.
    No. 48697.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.
    Frank J. Rogers, Kansas City, Lynn M. Ewing, Jr., Nevada, Mo., for appellant.
    Everett Teel, Nevada, Mo., Sylvan Bru-ner, Pittsburg, Kan., A. C. Popham, Kansas City, for respondent. Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   WESTHUES, Judge.

Plaintiff, a railroad section laborer - for the defendant Railroad Company, was given a jury verdict in the sum of $30,000 against his employer for an injury alleged to have been sustained when he was carrying a railroad tie. From the judgment entered, the Railroad Company appealed. The case was brought under the Federal Employers’ Liability Act. The injury was claimed to have been sustained on October 17, 1957. A previous trial resulted in a verdict and judgment for plaintiff in the sum of $45,000. On appeal, the judgment was reversed and the cause remanded for retrial. See Johnson v. Missouri-Kansas-Texas Railroad Co., Mo., 334 S.W.2d 41. That opinion contains a complete statement of the evidence and it was decided, contrary to defendant’s contention, that the evidence was sufficient to make a case for a jury. Except for a few minor details, the evidence at the second trial was substantially the same as that presented at the first trial. On this appeal, we do not have before us the question of the sufficiency of the evidence to sustain a verdict for plaintiff.

In the brief on this appeal, defendant contends that the trial court erred in giving, at plaintiff’s request, instructions 1 and 2; further, that the trial court erred in overruling defendant’s objection to inflammatory arguments and statements made by plaintiff’s attorney.

For the disposition of the case on this appeal, the following statement of plaintiff’s evidence will be sufficient. Plaintiff had been in the employ of the defendant since June, 19S0. He was injured on October 17, 1957. On that day, the crew of which plaintiff was a member consisted of three men, Hamilton, the foreman, Smeithers, and the plaintiff. A fourth member, being on vacation, was absent. At the time plaintiff claims he was injured, he and Smei-thers were loading two ties on a motorcar at the direction of the foreman Hamilton. The two ties to be loaded were lying on the ground along with about eight other ties. After one tie was loaded, plaintiff and Smeithers went back for the second. Plaintiff testified that this second tie was unusually large and weighed about 300 lbs. Plaintiff stated that he had hold of one end of the tie and walked backward toward the motorcar while Smeithers had hold of the other end and walked forward. The distance from the place where the ties were lying to the motorcar where they were to be loaded was about 30 feet. The railroad roadbed was slightly higher than the ground where the ties had been lying. Plaintiff testified that when he reached the track upon which the motorcar was standing and while he was in the act of stepping over the rail, Smeithers shifted his hold on the tie, throwing it up then letting it down, which caused plaintiff’s body to be thrown into a twist. Plaintiff stated that he felt as though his back was broken, that he lost his balance and went down with his hands on the tie; that this all happened suddenly and without any warning from Smeithers that he was about to shift his hold on the tie; that the foreman helped him up and the foreman and Smeithers loaded the tie on the motorcar. The ties were taken to a point down the track where the foreman and Smeithers placed them under the tracks. Plaintiff stated that he did no more work that day.

Plaintiff testified that he consulted and was treated by a doctor beginning on October 22, 1957, and continuing to the day of the trial and that he has been unable to perform any manual labor since the time of the alleged injury.

Plaintiff testified that it was the usual practice when loading ties to use three men, two in the front and one trailing in the rear; further, that when one crewman was absent, the foreman would help; that on the occasion when he was injured, the foreman did not offer to help carry the ties. Plaintiff further testified that on such occasions, when two men would carry a 'tie and one would want to change his hold, it was a custom that first he would warn his helper that he would change his hold.

The defendant introduced evidence to sustain its contention that it was not the usual practice and custom to have three men carry a tie but that only two were used to perform that task. Further, defendant introduced evidence, contradicting that of plaintiff, denying that anything unusual occurred when plaintiff and Smeithers were loading the two ties in question; that plaintiff was not injured in the manner he claimed; and that plaintiff had complained of backache for a long time prior to October 17, 1957. Defendant introduced evidence that the ties loaded by plaintiff and Smei-thers on October 17 were ties of the usual size and weight of mainline ties; that such ties weighed on an average less than 200 lbs.

The trial court gave, at plaintiff’s request, instructions 1 and 2. By instruction 1, the case was submitted to the jury on the question of whether defendant negligently failed to “furnish reasonably sufficient help for” the task of carrying the ties in question. The instruction further submitted the question of whether the defendant in requiring only two men to carry ties had violated an alleged custom of having three men carry such ties. The instruction then submitted the question of whether Smei-' thers, while the tie was being carried “undertook to change his hold on the tie and shifted it and violently pushed it against plaintiff” thereby causing plaintiff to be injured. Upon those issues, if found in plaintiff’s favor, a verdict for plaintiff was authorized.

By instruction 2 the case was submitted to the jury on the question of whether the failure on the part of Smeithers to warn plaintiff that he intended to change his hold on the tie constituted negligence.

Defendant has briefed five points concerning alleged errors in instruction No. 1. The first is that “Instruction 1 is preju-dicially erroneous in that it is unnecessarily long, complicated, argumentative and confusing.” We are of the opinion that this contention must be sustained. The instruction contained over 800 words, all in a single sentence. The disputed issues as to defendant’s liability were few. Many fa.cts referred to in the instruction were not in dispute and were admitted by the defendant. The instruction submitted many evidentiary matters not material in reaching a verdict. It may be noted in reading the instruction, hereinafter quoted in full, that it referred at least five different times to the question of whether the foreman directed plaintiff and Smeithers to load the ties. That fact was admitted. The instruction in question reads:

“The Court instructs the jury if you believe and find from the evidence that on the occasion of his alleged injuries plaintiff and Smeithers as his co-worker were in the employ of defendant as sectionmen and at said time engaged in work incident to the maintenance of its mainline and the operation of its interstate trains and the carrying on of interstate commerce, and if you find that through its foreman over plaintiff, Hámilton, if so, defendant was then attempting to move from a pile of ties on its right-of-way, if so, said tie, referring herein to the tie which plaintiff was allegedly helping carry, when he was allegedly injured, and load it on a motor- car then standing on its tracks some distance away, if so, for use in said main line, if so, and if you find that same was for use as a standard main line tie and that it and all ties in said pile were and were for use as main line ties, and if you find that main line ties generally were of a weight of about two hundred pounds and that the above mentioned tie weighed such amount or more, and if you find that there was then a long-standing general custom of defendant that in the carrying of a standard main line tie and such as said tie for the above-mentioned distance and loading same a crew of three sectionmen were generally provided and used to carry and handle same and if the third man was away or unavailable for the foreman to act as the third hand and so help the other two, if so, and if you find that plaintiff at all times relied upon the abovesubmitted custom, if any, and if you find that defendant’s said foreman over plaintiff, if so, ordered and required plaintiff and Smeithers to so carry and handle and load the abovementioned tie alone and to perform said task without other help or assistance, and if you find that in carrying out said above-mentioned task at said time and place plaintiff and his coworker had to hold the ends of such tie against their bodies and go up an incline and over a rough terrain, if you find such existed, and to step over the rails in order to get the tie up to and on handles of the said motor car, if you so find, and if you find that defendant on said occasion did not provide nor furnish reasonably sufficient help for said task and that it was dangerous and not reasonably safe for such employees generally and plaintiff for plaintiff and Smeithers alone to carry and load said tie and to carry out the above-submitted order of Hamilton and to perform said abovesubmitted task if only two men were so provided and used by defendant, if so, and if you find that in doing, if so, such two persons carrying their respective loads at each end were likely to attempt to change their holds on said tie and shift same and that such employees generally and plaintiff were likely to be injured in the carrying and loading same, if you so find, and if you find that when Hamilton ordered and directed plaintiff and Smeithers alone, if so, to carry and handle and load the tie above referred to, if so, Hamilton timely knew or by the use of ordinary care would have timely known of the aforesubmitted custom and all the aforesubmitted facts, if you find them to be the facts, and in time by the use of ordinary care to have provided and used additional and reasonably sufficient help, and that he failed so to do, if so, and if you find that by ordering and requiring plaintiff as above submitted to so perform said task with the help of one coworker alone and by furnishing and using only two men to so lift and carry and load same, if so, Hamilton violated the abovesub-mitted custom and that thereby and in the abovesubmitted respects defendant and Hamilton were negligent, if you so find, and if you find that at the time of his said alleged injuries plaintiff was obeying the abovesubmitted order and carrying and handling and holding against his body one end of the abovementioned tie and Smei-thers was handling and carrying and holding against his body the other end thereof and that plaintiff was then attempting to step over a rail and was under strain from his load and was attempting to lift same up to and on said handles and was unstably balanced, if you so find, and if you find that Smeithers then and there undertook to change his hold on the tie and shifted it and violently pushed it against plaintiff, if you so find, and if you find that plaintiff’s body was thereby suddenly and violently twisted and he was thereby injured, if you so find, and if you find that the above-submitted negligence of defendant and its foreman Hamilton directly contributed to cause plaintiff to be so injured, if you so find, then you will return a verdict for plaintiff Raymond Johnson and against the defendant company.”

In the case of Prince v. Kansas City Southern Ry. Co., 358 Mo. 393, 214 S.W.2d 707, l. c. 710, this court considered the propriety of such an instruction and stated: “The instruction consists of a single sentence, containing more than 700 words and submitting more than forty separate questions. Many of those questions are immaterial, but prejudicial, and the instruction as a whole is an argument for plaintiff rather than an explanation of legal issues. * * * The instruction is unnecessarily long, complicated, argumentative, misleading and confusing.”

Instruction No. 1, here under consideration, is subject to the same criticism. We may comment here that the attorney who argued this case before this court was also counsel in the Prince case, supra. Instructions of this character have been condemned in a number of cases as may be noted from the case of Cade v. Atchison, T. & S. F. Ry. Co., 364 Mo. 620, 265 S.W.2d 366, l. c. 370(9), where this court en banc said, “We also must condemn instruction No. 2 for the reasons stated in Prince v. Kansas City Southern R. Co., 358 Mo. 393, 214 S.W.2d 707, 710, as ‘unnecessarily long, complicated, argumentative, misleading and confusing’; and in Stid v. Missouri Pac. R. Co., 236 Mo. 382, 139 S.W. 172, 177, as ‘leaving a jury to become confounded in a labyrinth of immaterial detail.’ See also Roshel v. Litchfield & M. R. Co., Mo.App., 112 S.W.2d 876. Instruction No. 2 was more than twice as long as the one we criticised in the Prince case and is too long to set out in this opinion. It repeats many matters several times, * * Again we note what this court said many years ago in the case of Williams v. Ransom, 234 Mo. 55, 136 S.W. 349, l. c. 350(3) : “The court refused five instructions asked by plaintiff. The one which outlined plaintiff’s theory of the case covers about three large printed pages, and points out all matters of pleading and proof. It is a labyrinth of details of both proof and pleadings. No average jury could follow the train of thought contained in it. Even if it be granted that the theory of this instruction was correct, it should have been refused on account of its length alone, leaving out of consideration the comments contained therein upon the pleadings and the evidence. Why it should require three large printed pages for the principal instruction upon the simple facts of this case is beyond comprehension.”

The holdings in the above cases are supported by the general rule in other jurisdictions as stated in 88 C.J.S. Trial § 335, page 876, where it is stated thus: “It is necessary to any useful effect they may have on the minds of jurors that instructions should be as few, short, and pointed, as may consist with the object of giving clear ideas to the jury of the main points of law governing the case as applied to the facts. Therefore, it is generally held that the court should ordinarily avoid the giving of long and numerous instructions, because such instructions do not enlighten the minds of the jurors on the issues submitted, but tend rather to mislead and to introduce confusion, to invite error, and to lead to needless repetition.”

There are cases wherein unusually long instructions were given and the judgments were affirmed. However, we find no case wherein such practice has been expressly approved. See Adams v. Atchison, T. & S. F. Ry. Co., Mo., 280 S.W.2d 84, l. c. 92, 93 (11), where it was noted that the instruction contained several paragraphs which were distinctly separated and numbered. In the case before us, there were no paragraphs or separations, but rather one long sentence containing over 800 words. It is very difficult to determine just what essential findings were required to authorize a verdict.

Other objections made concerning instruction No. 1 need not be considered. Our ruling renders it unnecessary to consider objections to instruction No. 2 and points briefed with reference to statements and arguments made by plaintiff’s attorney during the trial.

.For the reasons above given, the judgment of the trial court is reversed and the cause remanded for retrial.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dorothy C. CONTESTIBLE, Administratrix of the Estate of Ralph Burton Collings, Deceased, Respondent, v. W. A. BROOKSHIRE, Appellant.
    No. 48581.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied March 12, 1962.

      W. A. Brookshire, Columbia, Richard K. Phelps, Kansas City, for appellant.
    Edwin C. Orr and Carl F. Sapp, Orr & Sapp, Columbia, for respondent.
   PER CURIAM.

Action under the Wrongful Death Act, sections 537.080 and 537.090, RSMo 1949, V.A.M.S., for $25,000 damages for the death of Ralph Burton Codings who, according to the petition filed by his daughter, the administratrix of his estate, was wrongfully and maliciously shot and killed by defendant. Ten members of the trial jury returned a verdict for plaintiff for $17,000. Defendant has appealed from the judgment rendered on the verdict.

Plaintiff’s petition recited Codings’ death, plaintiff’s appointment as administratrix of the estate of deceased, and plaintiff’s and her brother’s survivorship and heirship; charged that on May 25, 1959 on defendant’s farm in Boone County defendant wrongfully and maliciously killed Codings by shooting him with an automatic pistol; alleged that Codings contributed from his earnings and labor to the support of plaintiff ; that the killing was of an aggravated and malicious character, and prayed for actual and exemplary damages in the total sum of $25,000. Defendant’s answer denied the killing was malicious and wrongful and alleged that “defendant was acting in the defense of his dwelling when the said Ralph Burton Codings was in the commission of a felony in said dwelling and was further acting in the defense of his own life and under Section 559.040 RSMo 1949 these acts constituted justifiable homicide.”

Defendant contends that the circuit court lacked jurisdiction because the Probate Court of Boone County had no authority to issue letters of administration; that section 473.010, RSMo 1949, V.A.M.S., provides that letters of administration shad be granted in the county in which the domicile of the deceased is situated, or if he had no domicile in this state, in any county wherein he left any property; that deceased resided at plaintiff’s home in the City of St. Louis, and possessed no property whatever. Plaintiff’s application for letters stated that the “last residence” of deceased was Boone County. The Probate Court of Boone County found that deceased was “late of the County of Boone,” and issued letters of administration on his estate, appointing plaintiff as administratrix. The probate court’s determination of deceased’s residence is the judgment of a court of record, valid until vacated, Thompson v. Kansas City, C. C. & St. J. Ry. Co., 224 Mo.App. 415, 27 S.W.2d 58, or set aside in a direct proceeding, In re Davidson’s Estate, 100 Mo.App. 263, 73 S.W. 373, the verity of which is conclusive against collateral attack by proof that deceased was a resident of another county. In re Sheldon’s Estate, 354 Mo. 232, 189 S.W.2d 235; State ex rel. Gott v. Fidelity & Deposit Co., 317 Mo. 1078, 298 S.W. 83; Johnson v. Beazley, 65 Mo. 250; In re Greening’s Estate, 232 Mo.App. 78, 89 S.W.2d 123.

On the merits, defendant contends' initially that plaintiff failed to prove her case because the evidence offered by plaintiff, coupled with the cross-examination of defendant, “clearly establishes that the killing was justifiable homicide.” Since defendant admitted in his answer, on the stand and in oral argument that he shot and killed deceased (not under any claim of accident or misfortune, but intentionally), we need not review the evidence to determine whether plaintiff made a submissible case of intentional killing independent of defendant’s admissions. Unquestionably a case was made on defendant’s admissions, unless plaintiff is bound by the testimony of defendant that the killing was justifiable. Nor is there any necessity under this point to review defendant’s testimony as to the facts surrounding the killing. Suffice it to say that defendant testified to facts which, if believed, tended to show defendant killed Collings under justifiable circumstances. The decisive first question, therefore, is whether plaintiff is bound by defendant’s testimony in justification. If so, defendant’s motion for a directed verdict should have been sustained.

Plaintiff called defendant as an adverse witness for the limited purpose of establishing defendant’s wealth and financial standing on the issue of punitive damages. Plaintiff asked defendant no questions except with respect to his financial standing. At the conclusion of defendant’s testimony on this limited issue the court permitted defendant’s counsel to cross-examine defendant in great detail as to the facts and circumstances surrounding t'he killing. After defendant’s recital of his version of the facts surrounding the killing, counsel for plaintiff did not examine defendant further nor did plaintiff introduce any evidence to impeach, contradict or rebut the facts testified to by defendant in justification. Since defendant’s testimony in justification was given after he had been called to the stand as a witness for plaintiff, defendant claims plaintiff thereby vouched for defendant’s credibility and was bound by defendant’s uncontradicted and unim-peached testimony that defendant shot and killed Collings under justifiable circumstances ; that this testimony completely destroyed plaintiff’s case and entitled defendant to a directed verdict. Defendant’s claim is without foundation. “What he (defendant) said in his own behalf did not in any way bind the plaintiff. Where a party desires to prove an essential element of his case by his opponent, he is permitted to do so, and he is only bound by that part of his adversary’s testimony for which he vouches for as the truth and he is free to show facts contradictory of all other testimony given by the adverse party. Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353, loc. cit. 355; Richeson v. Roebber, 349 Mo. 132, 159 S.W.2d 658, 141 A.L.R. 1; Missouri Cafeteria v. McVey, 362 Mo. 583, 242 S.W.2d 549.” Hall v. Brookshire, Mo.App., 285 S.W.2d 60, 64. (Parentheses supplied.)

Nexf, defendant claims reversible error was committed in the giving of Instructions Nos. 1, 2, 3 and 4.

No. 1 instructed that the jury was not required to find that deceased met his death at the hands of defendant, because the shooting and killing of deceased was admitted by defendant; that if the jury found that plaintiff was the duly appointed administratrix and that the killing was without just cause or provocation and not done in the defense of defendant’s person or dwelling; and found the survivorship of a son and a daughter and that plaintiff “was receiving pecuniary benefits from and contributed by” deceased “in the form of money, tasks performed by deceased and services rendered by him,” then the jury should find a verdict for plaintiff and against defendant. Defendant’s objections to No. 1 are that it does not properly declare the law “in that the jury is told that they did not need to find that the defendant killed the deceased”; that No. 1 fails to instruct “that the burden was upon the Plaintiff to prove beyond a reasonable doubt that the Defendant had committed the crime of murder” and that the killing was done from a criminal intent; that there was no evidence of the commission of a crime or of a malicious killing; that the statement in No. 1 with reference to pecuniary benefits confused the jury; and that No. 1 “failed to inform them of the burden of proof upon each and every issue.” We find no fault with Instruction No. 1. Defendant’s admissions that he intentionally killed Collings made a prima facie case for plaintiff, dispensing with the necessity of plaintiff proving or the jury finding that fact. It would have been error to instruct the jury that the burden of proof was upon plaintiff to prove beyond a reasonable doubt that defendant committed the crime of murder. This is a civil case. The burden of proof in such a case is by a preponderance of the evidence, not beyond a reasonable doubt. Plaintiff was not required to establish criminal intent or the crime of murder. Plaintiff, suing under the Wrongful Death Act, section 537.080, RSMo 1949, V.A.M.S., was only required to establish the death of Collings “by a wrongful act.” The intentional killing of a human being is a wrongful act, unless it is done under circumstances which justify or excuse homicide. No. l’s reference to the pecuniary benefits which plaintiff had been receiving from her father is not confusing, as - charged. No. l’s failure to “set out the amount of money furnished or the value of the services rendered * * * nor the manner in which such damages were to be ascertained,” is not error. It was not necessary to include these elements in No. 1. The measure of damages was dealt with in separate instructions. Nor was No. 1 erroneous in failing to inform the jury of “the burden of proof upon each and every issue.” The burden of proof was properly instructed upon in separate Instructions Nos. 2 and 3.

Defendant’s objection to Instruction No. 2, which instructed that the burden was upon plaintiff to prove her case by the preponderance of the credible evidence, is that it “left with the jury the authority or power to determine the greater weight or preponderance of the evidence,” and that the concluding part of No. 2 (telling the jury that if the evidence preponderated in plaintiff’s favor, this would be sufficient to sustain the burden of proof) was unnecessary, unwarranted, confusing and misleading. This criticism is insubstantial. It is fundamental that in a civil case it is the proper province and function of the jury to determine where the greater weight or preponderance of the evidence lies, and the concluding part of the instruction is a correct statement of law.

Defendant assails Instruction No. 3 on the ground that it “clearly casts upon the Defendant the burden of proof and informed the jury that the burden of establishing the guilt of the Defendant was not upon the Plaintiff but rested upon the Defendant himself, which is contrary to both the civil and criminal burden of proof.” Justification is an affirmative defense; a plea in the nature of a confession and avoidance. Matters constituting an avoidance or affirmative defense must be affirmatively pleaded, section 509.090 RSMo 1949, V.A.M.S., Prewitt v. Witte, 224 Mo.App. 836, 26 S.W.2d 1020, and the burden of proof on all affirmative defenses rests upon the defendant, as the asserting party. Gennari v. Prudential Insurance Company of America, Mo.Sup., 335 S.W.2d 55, 60; Rucker v. Alton R. Co., 343 Mo. 929, 123 S.W.2d 24; 31 C.J.S. Evidence § 104, p. 711. The burden was upon defendant to prove his affirmative defense of justification. Judge Lamm expressed it this way, in Morgan v. Mulhall, 214 Mo. 451, 114 S.W. 4, l. c. 6: “[A] plaintiff, hit by a bullet, may identify the shooter, prove the hit, and quit. At that point the burden [of going forward] shifts, and the law, as well as the good sense of it, puts the boot on defendant’s foot and the laboring oar in his hands — he must justify or otherwise lawfully excuse the shot.” (Brackets supplied.) No. 3 properly fixes upon defendant the burden of proof with respect to the affirmative defense of justification.

Defendant attacks Instruction No. 4, on actual and punitive damages, which concluded as follows: “The Court further instructs the Jury that if you find a verdict for the plaintiff that your verdict must be in one lump sum * * Defendant claims that No. 4 constituted a roving commission to find the value of deceased’s assistance to plaintiff, erroneously directed the jury to find in one lump sum,, instead of assessing actual and punitive damages separately, “wholly fails to declare the law governing actual and punitive damages in a wrongful death action.” Neither in his point nor in the argument does defendant elucidate or explain his charge that No. 4 constitutes a roving commission, or demonstrate in what respect No. 4 fails to properly declare the law in this type of action. Accordingly, our review is limited to the allegedly improper direction of No. 4 that the jury return a lump sum verdict without separate assessment of actual and punitive damages. Cooksey v. Ace Cab Company, Mo.Sup., 289 S.W.2d 40; Lewis v. Watkins, Mo.App., 297 S.W.2d 595. Section 509.200 RSMo 1949, V.A.M.S., provides that “In actions where exemplary or punitive damages are recoverable, the petition shall state separately the amount of such damages sought to be recovered.” Section 510.270 RSMo 1949, V.A.M.S., provides that “ * * * When exemplary or punitive damages are allowed by the jury, the amount thereof shall be separately stated in the verdict.” These sections, however, have no application to a proceeding under the wrongful death statutes... Spalding v. Robertson, 357 Mo. 37, 206 S. W.2d 517, and authorities cited, l. c. 521, [4], Section 537.090 RSMo 1949, V.A. M.S., as amended Laws 1955, p. 778, § 1, provides that “In every action brought under section 537.080, the jury may give to the surviving party or parties who may be entitled to sue such damages, not exceeding twenty-five thousand dollars, as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death, and having regard for the mitigating or aggravating circumstances attending the wrongful act, neglect or default resulting in such death.” Under this statute any amount above compensation is penalty, La Bella v. Southwestern Bell Telephone Co., 224 Mo.App. 708, 24 S.W.2d 1072, 1077, and it is a matter within the discretion of the jury to say how much compensation and how much penalty in the aggregate shall be awarded. There is no requirement, by statute or decision, that the trial court direct the jury to separately state the amount of the actual and punitive damages to be awarded in wrongful death actions. The decided case law is to the effect that these amounts need not he separately stated. La Bella v. Southwestern Bell Telephone Co., supra. The court did not err in directing the return of a lump sum verdict in this case.

Next, defendant claims reversible error was committed in refusing to give defendant’s proffered Instructions Nos. 8 and 9.

No 8 instructed the jury that under the law and evidence “plaintiff is not entitled to recover punitive damages.” Defendant’s objection is that “there was an utter and entire absence of any evidence whatever justifying the submission of the issue of punitive damages to the jury.” We are of the opinion that the submission was proper; that there was ample evidence to sustain the submission of malicious killing without just provocation. Eliminating defendant’s theory of violent invasion of defendant’s home and violent assault on defendant’s person, which the jury had the right to disbelieve, there was no lawful provocation. During the few weeks Col-lings had lived and worked on defendant’s farm, he had done some painting on defendant’s house. Defendant, dissatisfied, claimed to have been damaged to the extent of $50 by Collings’ use of the wrong type of paint. Collings had taken a $20 bill defendant gave him and gave it to a woman who came to the farm to get paid for some hay. Collings felt that defendant “should give him that $20 back,” and had mentioned it to defendant “a time or two.” Defendant claimed that he gave Collings the custody of a blind, registered cow to feed and care for but that because of Collings’ neglect the cow, worth $300, had died. The arrangement between defendant and Collings had become unsatisfactory to defendant. Although they “had no arguments” and defendant said the relationship was “very pleasant,” defendant did not consider Collings a “valuable hand.” On the morning of May 25, 1959 defendant told Collings he expected the latter to leave. Collings said “Well, I will leave when you pay me what you owe me.” Defendant retorted, “I don’t owe you anything,” claiming that he had paid Collings for all services rendered. The foregoing, testified to by defendant, was uncorroborated. Collings was 63 years old, of slight build, five feet four inches in height, 135 pounds in weight. He was not a strong man. He was a mild mannered man who had never been known to harm, attack or fight with anyone or to have been in any trouble, either with the police or other persons. It stands admitted that defendant shot Collings to death with an automatic pistol, using five separate bullets. At least two of the bullets tore into the vital parts of Col-lings’ body in such a manner as to cause unconsciousness and death almost instantly. After the killing defendant drove 11 miles to town, picked up his mail at the post office, and then called the sheriff’s office, telling the officer in charge there was a dead man down at his house and that he “wanted somebody to come down there sometime that day.” Defendant’s testimony in justification was that Collings threatened to kill defendant, broke into his house brandishing a five-pound hammer in his hand, advanced upon defendant swinging the hammer in a menacing manner and in close proximity to defendant’s head, striking glancing blows upon defendant’s shoulder and hand; that defendant .retreated from the kitchen to the dining room, and finally shot Collings in order to save his own life. The jury, however, had the right to disbelieve, State v. Brookshire, Mo. Sup., 353 S.W.2d 681 (handed down concurrently herewith), and evidently did disbelieve, defendant’s testimony in justification. That testimony eliminated, and given defendant’s admissions that he shot and killed a mild and innocuous person, there was nothing left but defendant’s account of the foregoing trivial disagreements to justify the killing. This constituted no lawful provocation for the killing and consequently there was no error in submitting malicious killing without just provocation.

Refused Instruction No. 9 stated that “when a witness is called the party calling the witness vouches for the credibility of such witness and is bound by the testimony given unless there is testimony given by other witnesses that contradicts the evidence given by the witness called.” Defendant repeats his contention that plaintiff was bound by defendant’s testimony in justification by placing defendant on the stand and examining him at length on his life, education, financial standing and worth; by “participating” in defendant’s cross-examination of defendant, and by failing to offer evidence contradicting or casting doubt upon defendant’s testimony given in justification. Defendant says the court should have given No. 9, by which the jury would have been instructed that plaintiff was so bound. The quotation from Hall v. Brookshire, Mo.App., 285 S.W.2d 60, l. c. 64, supra, disposes of this contention adversely to defendant’s contention.

Defendant seeks a reversal of the judgment for refusal to discharge the jury because of a remark made by one of the jurors during defendant’s final argument. By Instruction No. 5 the jury had been told that if Collings forcibly entered defendant’s home and assaulted defendant with a hammer defendant was not obliged to retreat, but was privileged to defend his home and use the means absolutely necessary to repel Collings. In discussing No. 5 and its reference to forcible entry defendant argued “ — well, he [Collings] did forcibly enter; he broke the glass in the back door and — .” At this point a juror interrupted and said “That’s what you say he did. He’s dead. How ya gonna prove it ?” Defendant did not object to the juror’s interruption or ask the court at that time to take any affirmative action. On its own initiative the court admonished the juror not to interrogate counsel, and directed the defendant to “go ahead.” Defendant proceeded to complete his argument, making no reference to the incident until he finished, at which time, out of the hearing of the jury, he moved for a mistrial on the ground that the juror had “made up his mind or is prejudiced” and that defendant could not have a fair and impartial trial with a man like that on the jury. The court denied the motion. The juror who asked the question did not join in the ten-member verdict. This point is disallowed for two reasons. First, defendant waived the objection by not objecting at the time of the occurrence to the alleged misconduct of the juror. Second, the propriety of a mistrial for alleged misconduct on the part of a juror rests largely within the discretion of the trial court. The court, with the jurors before it, was in an advantageous position to determine whether the remarks of the juror had any effect on or prejudiced defendant’s rights. The court did not regard the incident as significant. There is nothing in the remarks themselves or in the circumstances under which they were made indicating that the court abused its discretion in not taking further action than it did when it indicated its disapproval of the juror’s interrogation. Robb v. Bartels, Mo.App., 263 S.W. 1013, 1016.

Defendant says the jury should have been discharged because of an argument made by plaintiff’s attorney, which defendant brands as improper, prejudicial and untruthful. Plaintiff’s attorney, referring to defendant’s previous argument, told the jury “Mr. Brookshire said to you that we vouch for him and for the truth of what he says. Nothing could be further from the truth!” Defendant objected on the ground that a party putting a witness on the stand vouches for his credibility. The court overruled and permitted plaintiff’s counsel “to respond to the argument that was made by the defendant.” It is the policy of the law to indulge a liberal latitude in argument, especially where the argument is a fair retort to the preceding argument of opposing counsel. Riley v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 666, and cases cited, l. c. 673. Defendant had argued that “It is as clear as the noonday sun” that when you place a witness on the stand you vouch for his credibility and status. “They put me on the stand. * * * They vouched for my credibility.” Defendant’s argument was a partial misstatement of the law of this case. Plaintiff placed defendant on the stand for the limited purpose of testifying as to defendant’s wealth. Plaintiff did not thereby vouch generally for defendant’s credibility as a witness, or for the truth of defendant’s testimony in justification of his taking Cokings’ life, as defendant sought to tell the jury, but only sought admissions bearing on a single issue. The argument made by plaintiff’s counsel, provoked by and in answer to defendant’s improper argument, was within bounds and the court properly .allowed plaintiff’s counsel to make it.

Defendant’s final point is that "The Court committed reversible error in permitting the introduction of Plaintiff’s evidence which was obtained without a search warrant and without the consent of the Appellant.” This is wholly insufficient to preserve anything for review. It fails to particularize and specify what evidence should not have been admitted. Nibler v. Coltrane, Mo.Sup., 275 S.W.2d 270, 274 [5], Going to the argument, however, we find that defendant’s complaint relates to a revolver and hammer, which were removed from defendant’s house without a search warrant and without his consent. The admission of the gun in evidence was not error because the gun was obtained' in the course of a search incidental to a lawful arrest. State v. Brookshire, supra. (The facts held sufficient to justify the action of the officers in the criminal case are the same as in this civil case.) Furthermore, when the gun was offered in evidence defendant said: “I admit that it is my gun and I admit that it is the one I used.” These voluntary admissions destroyed defendant’s right to now insist upon the protection of his constitutional guaranties, for defendant thereby admitted every fact that plaintiff sought to show by using the evidence, namely, that he owned the gun and used it to kill Cokings, and cannot now complain that the gun was obtained by an unlawful search and seizure in the first instance. State v. Brookshire, supra; State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 140; State v. Bray, Mo.App., 278 S.W.2d 49, 52. In no event could the admission of the hammer in evidence have prejudiced defendant. It was defendant’s theory that the hammer was used by Cokings as a weapon in his alleged attack upon defendant. Certainly it would not hurt defendant’s case to exhibit the hammer to the jury.

No error appearing the judgment is affirmed.

All concur.


author: DALTON, Judge.

text:
    STATE of Missouri ex rel. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent.
    No. 48797.
    Supreme Court of Missouri, En Banc.
    Feb. 12, 1962.
    Rehearing Denied March 12, 1962.
    Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen. Counsel, Missouri Public Service Commission, Jefferson City, for respondent.
    O. L. Houts, Chicago, Morris E. Osburn, Jefferson City, Hale Houts, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for appellant Chicago, R. I. and P. Ry. Co.
   DALTON, Judge.

This is an appeal from the order and judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission of Missouri as entered on May 26, 1960, in Commission Case No. 13386.

This Court has jurisdiction of the appeal because the issues presented directly concern the construction of an opinion and decision of this Court on a prior appeal of the cause, its enforcement and the sufficiency of this Court’s mandate for that purpose. Adams v. Adams, 350 Mo. 152, 165 S.W.2d 676; Morrison v. Caspersen, Mo.Sup., 339 S.W.2d 790; Shull v. Boyd, 251 Mo. 452, 158 S.W. 313, 320; State ex rel. Barker v. Assurance Company of America, 251 Mo. 278, 158 S.W. 640, 648; 14 Amljur., 373, Courts, Sec. 174.

On May 4, 1956, appellant Chicago, Rock Island and Pacific Railroad Company, hereinafter referred to as Rock Island, applied to the respondent Public Service Commission of Missouri, hereinafter referred to as Commission, for authority -to discontinue its Trains 23 and 24 between Kansas City and Eldon, Missouri. The'relief requested was denied and, upon review by this Court, this Court, on April 14, 1958, held that the Commission’s order denying the company’s application for discontinuance of the mentioned trains was unreasonable and arbitrary. This Court reversed a judgment of the Circuit Court affirming the order of the Commission and remanded the cause with directions to the trial court to remand the cause to the Commission for its further consideration. State of Missouri ex rel. Chicago, Rock Island & Pacific Railroad Company v. Public Service Commission, Mo.Sup., 312 S.W.2d 791, 805.

In the closing portion of that opinion this Court said: “The demand for passenger service in the area served by these trains is declining and there is no hope for its improvement. The resort area surrounding the Lake of the Ozarks affords practically no demand for passenger service on trains. It is reasonable to assume that the demand for such service will become even less than it was when this case was decided by the commission in October, 1956. A reconsideration of the matter in the light of developments subsequent to that time, if the commission, in its discretion, should deem such a course advisable, might prove of value in any future determination of the problem. However that may be, the foregoing facts convince us the losses being sustained by the company in the operation of Trains 23 and 24, as of October, 1956, were so patently disproportionate to the public convenience and necessity then. or thereafter to be served by them as to render the order that they be continued unreasonable and arbitrary within the meaning of the public service commission statutes.”

After remand, the Commission held a hearing on June 10, 1958, and, on July 17, 1958, it again denied Rock Island’s application and ordered rehabilitation of the service. Later, the order of July 17 was set aside by the Commission on motion for rehearing, and a new hearing was held on September 17 and 18, 1958, after full notice to the various interested parties, attorneys and organizations. Following that hearing- and, on December 29, 1958, the Commission entered its Report and Order, again denying the application and ordering rehabilitation. On certiorari the Circuit Court of Cole County set aside that Report and Order and, thereafter, declined to enter a stay of its judgment pending on appeal. The Commission and various intervenors-appealed from the Court’s judgment.

In this connection it should be pointed out that in the original application filed by-Rock Island on May 4, 1956, requesting authority to discontinue Trains No. 23 and 24 between Kansas City and Eldon, Missouri, Rock Island offered certain “substitute service” with reference to handling of baby chicks in the event its request for discontinuance of said trains was sustained. It further appears that, in the course of the subsequent hearings on June 10, 1958, and again on September 17, 1958, Rock Island again tendered the mentioned “substitute service” in the event that its request with-reference to the discontinuance of said trains was sustained. However, as stated, the offer was rejected by the Commission and, in each of its Reports and Orders, Rock Island’s application to discontinue the mentioned trains was denied.

When this second Report and Order of the Commission, dated December 29, 1958, reached this Court for review, this Court reviewed the record presented and, in an opinion handed down on April 11, 1960, said: “If the former order of the Commission was unreasonable and arbitrary,. the present one is doubly so. * * ⅜ The facts being substantially the same, our prior opinion is the law of the case. * * * And our prior opinion controls here. There remains now no room for any further discretion to be exercised by the Commission on these facts, despite the usual rule of deference recognized in such cases ⅜ ⅜ *. The Circuit Court here set the order aside, without remand.” 335 S.W.2d 182, 190, 191.

The opinion then quoted from State ex rel. Byers Transportation Co., Inc. v. Public Service Commission, Mo.App., 180 S.W.2d 259, as follows: “ ‘If, upon another hearing, additional testimony was introduced proving a substantially different set of facts, then the Commission, could, and should, make its findings and order based upon the new facts and conditions. But if there was no substantial difference, then the Commission could not re-enter the same order which a court of competent jurisdiction had declared unlawful and unreasonable.’ ”

The opinion of this Court then concluded, as follows:

“Under these circumstances, we modify the judgment of the Circuit Court in this, to-wit: that the Report and Order of the Commission be and it is set aside; the cause is remanded to the Commission so that it may enter an order in conformity with the opinion, but not for the purpose of a further hearing; and therein the Commission may make suitable provisions requiring the furnishing of the substituted service for the handling of shipments of chickens as heretofore tendered in these proceedings. As so modified the judgment is affirmed.” (Italics ours.)

On Motion for Reargument a “Per Curiam” order was entered on May 9, 1960, as follows:

“The Commission has filed a motion for rehearing. We find nothing essentially meritorious in it, and it is overruled. Respondent has filed a motion seeking a modification of our opinion; specifically, it asks that the judgment of the Circuit Court be affirmed and that all provisions for remand to the Commission be eliminated. The motion is based upon the following asserted facts: that after the end of the 1959 baby chick season the Post Office Department completely changed the method of handling the parcel post shipments; that they are now transported by Star Route on trucks to points on the Missouri Pacific, the St. Louis-San Francisco Railway, and perhaps elsewhere; that in any event no mail shipments are now delivered to Respondent, that its previous offer of substituted service has been rendered entirely unnecessary, mid that no further order of the Commission is necessary. It states, however, that some express shipments of chicks are still being handled by it in ventilated trucks, and it concedes that this is a ‘common carrier duty.’ It asserts: that this service as now rendered by it is adequate and that there are no complaints; that the Commission would have no jurisdiction to interfere in the parcel post movements; and that there is no occasion for a remand or for any order of the Commission.

“The Commission has filed suggestions in opposition to this motion and it asserts that the services now being rendered on the chick shipments are wholly unsatisfactory to the hatcheries; it attaches a document showing specific and substantial complaints by various hatcheries. We are not in position to determine whether the dissatisfaction involves the parcel post shipments alone, or all truck shipments. The Commission also questions that the Post Office Department has voluntarily occupied the parcel post field with the truck shipments. In these circumstances the order of remand will stand; this, for the purpose of making such order, if any, as may seem proper in connection with the chick ship•-ments as indicated in our original opinion, and in the light of subsequent developments. This need not involve any interference with the Post Office Department. The motion to modify is overruled.” (All italics ours.) (335 S.W.2d 182, 191-192.)

The foregoing “Per Curiam” order, as stated, was made on May 9, 1960, and thereafter, on May 25, 1960, this Court’s mandate, as mailed to the Circuit Court of Cole County, was in part in the following form:

“ * * * the court * * * doth order and adjudge that the judgment of the Circuit Court of Cole County heretofore rendered herein be, and the same is hereby modified as follows: that the Report and Order of the Public Service Commission of the State of Missouri be and it is set aside; the cause is remanded to the Commission so that it may enter an order in conformity with this opinion, but not for the purpose of a further hearing; and as so modified the judgment of the Circuit Court of Cole County is affirmed, and stand in full force and effect; * * (Italics ours.)

It will be noted that the mandate followed the closing paragraph of the opinion and entirely disregarded the modification, if any, made by the “Per Curiam” order as to “subsequent developments.”

This mandate reached the Circuit Court of Cole County on May 26, 1960, and the Court entered its judgment whereby its prior “judgment entered herein on the 30th day of March, 1959” was modified and, as modified, was affirmed, as follows:

“The Report and Order of the Commission be and it is set aside; the cause is remanded to the Commission so that it may enter an order in conformity with the opinion of the Supreme Court, but not for the purpose of further hearing; and therein the Commission may make suitable provisions requiring the furnishing of the substituted service for the handling of shipments of chickens, as heretofore tendered in these proceedings, as indicated in the original opinion of the Supreme Court, and in the light of subsequent developments.” (Italics ours.)

As noted, the order of the Circuit Court was entered on the day following the issuance of this Court’s mandate, to wit: on May 26, 1960. On that same day the Commission, without notice to the parties in interest and without the hearing of any evidence concerning the alleged “subsequent developments,” issued the order now under review by this Court. The Commission set out the mandate of the Circuit Court and, thereafter, entered its order in said Case No. 13386. The order styled “Order to Institute Substitute Service” pointed out that, on May 4, 1956, when the Rock Island filed its first application with the Commission for an order authorizing the discontinuance of the operation of its Passenger Trains No. 23 and 24 between Kansas City and Eldon, Missouri, Rock Island offered to make other provisions for the transportation of baby chick shipments in the event the Commission authorized discontinuance of the mentioned trains. The order then reviewed the subsequent history of the proceedings, including this Court’s opinion dated April 14, 1958 (312 S.W.2d 791), and pointed out that the Commission had again, on December 29, 1958, denied the Rock Island’s application; that the Circuit Court had set its order aside without remand; and that on appeal by the Commission to the Supreme Court the decision had been modified and affirmed on April 11, 1960, and that, thereafter, the cause had been remanded to the Commission, on May 26, 1960, for the entry of orders in conformity with the Court’s opinion. The order quoted from the April 11, 1960, opinion of this Court in Case No. 47574 (335 S.W.2d 182, 185) with reference to the fact that the Rock Island had again in 1958 tendered the same substitute service as it had in 1956 (312 S.W.2d 791, 797), and then quoted the closing paragraph of said opinion, but without any reference whatever to the “Per Curiam” modification of the opinion as entered on May 9, 1960, and without any reference to the closing words of the order and judgment of the Circuit Court as issued on the very day of the Commission’s Report and Order. The order of the Commission then stated: “In view of the statements of the (Supreme) Court recited above, it is the opinion of the Commission that a further hearing in regard to this application has been precluded by the Court and that the Commission’s jurisdiction in this cause is now limited to the entry of an order providing for the substitute service as directed by the Court.” (Italics ours.) The Report and Order then set out at length the Rock Island’s offer of “substitute service” as contained in paragraph 9 of its May 4, 1956, application for discontinuance of trains.

The Report and Order continued as follows :

“The passenger trains which are the subject of this proceeding were discontinued more than a year ago after the Circuit Court of Cole County had set aside the Report and Order of the Commission as aforesaid. The substitute service for the transportation of chickens as discussed in the opinion of the Supreme Court and as promised by the applicant was discontinued at the end of the 1959 hatching season. The Railroad Company did not seek the permission of this Commission to discontinue this service to the public, and the Commission was unaware that this service had been discontinued until complaints were received from the hatcheries involved following the issuance of the Supreme Court’s opinion aforesaid on April 11, 1960. A full month remains in the 1960 hatching season, and it is the opinion of the Commission that the substitute service as proposed by the Railroad Company and as sanctioned by the Supreme Court should be put into effect without delay.”

Thereupon, the following order was entered :

“ORDERED: 1. That the Chicago, Rock Island and Pacific Railroad Company, during the months of February through June, inclusive, on all days of the week except Friday, furnish a baggage car or cars, equipped with electric fans and heated when necessary, at Windsor, Missouri, for the transportation of baby chicks for the chicken hatcheries, moving to or through Kansas City, Missouri from Windsor, Missouri, and from all stations between Windsor and Eldon, Missouri, including Eldon; that an employee shall be in attendance on the car in said transportation; that said car be picked up at Windsor in the afternoon on each day of operation and delivered at the Union Station in Kansas City at or before 5:45 p. m.; that the company pick up chicks moving to or through Kansas City at the stations between Windsor and Eldon, including Eldon, by suitable ventilated motor trucks, transport said chicks thereby to Windsor and load said chicks in the baggage car aforesaid in time for transportation on the same day from Windsor to Kansas City by said car.

“ORDERED: 2. That this Order shall be effective on the first day of June, 1960, and that the Secretary of the Commission shall serve a certified copy of same upon each interested party.”

Thereafter, on May 31, 1960, the Rock Island filed its application for a rehearing and for a stay of the Commission’s Order of May 26, 1960, wherein it pointed out that the Commission’s Order of May 26, 1960, was made without notice or any opportunity for a hearing and contrary to the supplemental opinion, decision and order of this Court as entered on May 9, 1960, and contrary to Sec. 387.190 RSMo 1959, V.A.M.S., and that the Report and Order of the Commission “ * * * deprives the Rock Island of its property without due process of law in violation of Section 10 of Article I and Section 22 of Article V of the Constitution of Missouri [V.A.M.S.] and Section I of the Fourteenth Amendment of the Constitution of the United States, and imposes a burden on interstate commerce in violation of the third clause of Section 8 of Article I of the Constitution of the United States, and is not authorized by law as required by Section 22 of Article V of the Constitution of Missouri.” These grounds for relief have been carried forward through all subsequent proceedings and are now presented in this Court. Numerous other grounds for a rehearing were also contained in the motion for rehearing but they need not be considered at this time. On June 13, 1960, the Commission overruled the Rock Island’s motion for a rehearing and for a stay in said cause.

The Commission in its order overruling appellant’s motion for rehearing asserted that the order requiring the Rock Island to reinstate “substitute service” for the transportation of chickens was entered “pursuant to the directions of the Supreme Court rendered on a recent appeal in this matter,” and further stated that: “In the event the railroad company feels justified in seeking a discontinuance of the substitute service ordered, there remains available to the company the normal remedy of applying to the Commission for permission to discontinue such service as not required by the public convenience and necessity.” Compare Chicago B. & Q. R. Co., v. Illinois Commerce Comm., D.C., 82 F.Supp. 368, 376(4).

All necessary and proper steps were duly and timely taken to present the Report and Order of the Commission, as entered on May 26, 1960, to the Circuit Court of Cole County for review, and, thereafter, a judgment was entered in that court affirming the order and judgment of the Commission. Motion for a new trial was duly filed, considered and overruled and this appeal duly taken.

Appellant here contends that the court erred in entering the mentioned judgment because the Report and Order of the Commission, as entered on May 26, 1960, was illegal and void in that it was made without notice or an opportunity for a hearing and contrary to the opinion, decision and order of this Court, as set out in the “Per Curiam” order remanding the cause to the Commission for the purpose of making such an order, if any, as might seem proper in connection with the chick shipments and “in the light of subsequent developments.”

Appellant points out that the Report and Order dated May 26, 1960, was entered without notice and without opportunity for the filing of pleadings or the presentation of evidence as to present existing conditions, and after the former Report and Order had been completely set aside. Appellant insists that the action of the Commission approved by the Circuit Court violates Sec. 387.190, subdivision 3, RSMo 1959, V. A.M.S., which requires notice and a hearing prior to the issuance of such a Report and Order. See Sec. 387.190(3) RSMo 1959, V.A.M.S.; Public Service Commission of Missouri v. St. Louis-San Francisco Ry. Co., 301 Mo. 157, 256 S.W. 226, 227-228. Appellant further relies upon the several provisions of the State and Federal Constitutions as set out in its application for a rehearing, and as carried forward through subsequent proceedings to this Court on appeal, and appellant insists that the order and judgment of the Circuit Court, as appealed from herein, is therefore subject to the same defects as the record made before the Commission.

Appellant’s position with reference to alleged changed conditions subsequent to the Commission’s Report and Order of December 29, 1958, appear rather clearly from the recitals in this Court’s “Per Curiam” order of May 9, 1960. (335 S.W.2d 182, 191.) These alleged changed conditions were again set forth in Rock Island’s verified motion for a rehearing filed with the Commission on May 31, 1960, together with an allegation that: “Rock Island does not presently have available a freight train by which a car could be transported from Windsor to Kansas City in the manner indicated in the Commission’s order and any such chick transportation would require expense of more than Eight Thousand Dollars a month in excess of revenue from express or usually paid by the Post Office Department.”

Rock Island’s motion for a rehearing was overruled on June 13, 1960, and one of the reasons assigned by the Commission for its action in overruling the motion was that the case had been commenced on May 4, 1956, and, that “since that date the subject matter of this proceeding has been the object of continual hearings before the Commission and litigation in the courts. * * * As noted above, the record in this case has extended over a period of more than four years, and the issues have been exhaustively developed.” However, there was no evidence properly before the Commission of any changes subsequent to the conclusion of the Commission’s hearing held on September 18, 1958, and no opportunity was offered for making any such proof.

Respondent does not question the record which indicates that no notice or an opportunity for the filing of pleadings or the offering of evidence was given Rock Island (appellant) on remand. Respondent by its argument concedes that fact. Respondent contends that “notice and hearing are required by a fact-finding agency such as the Commission only in those circumstances where there may be facts in dispute”; and that “in the case before the Court there is no dispute,” because “the railroad company’s duty to furnish railway transportation service for the hatcheries industry had been clearly established in several legal proceedings extending over a period of twelve years.” Respondent further says that “the railroad has seized upon the language ‘subsequent developments’ as absolutely requiring an additional hearing”; and that “the Commission has considered subsequent developments. ⅜ ⅜ * An emergency situation which demanded immediate action— and the Commission acted.” It is then argued that appellant was not entitled to a further hearing. The effect of respondent’s brief is to admit that no notice or an opportunity for a hearing of evidence or the showiilg of “subsequent developments” was given appellant prior to the entry of respondent’s order of May 26, 1960.

Respondent further seeks to support its Report and Order of May 26, 1960, upon the further ground that the Court in its last opinion “recognized and affirmed as satisfactory the substitute service proposal”; that “thus the legal duty of the railroad company to provide railway transportation service for the hatcheries industry has been established repeatedly and conclusively”; that the abandonment of railway transportation service for the hatcheries industry required prior authority from the Commission; that “the Commission’s order requiring restoration of the substituted service issued without notice and hearing is lawful and reasonable”; that “the railroad company was not entitled to a hearing on the order requiring the restoration of service which had been unlawfully abandoned” ; and that the order of the Commission to provide “substitute service” for railway transportation to the hatcheries industry did not deprive the railroad company of its property without due process of law or otherwise violate statutory or constitutional provisions.

We find no evidence in this record tending to show that the Commission by any prior order had directed Rock Island to place in operation the mentioned “substitute service” or that Rock Island had violated any such order.

From a careful review of this entire record, as presented upon this appeal, we have reached the conclusion that the Report and Order of the Commission dated May 26, 1960, entitled “Order to Institute Substitute Service” and the order and judgment of the Circuit Court entered March 16, 1961, affirming the order and judgment of the Commission cannot be sustained.

It clearly appears on the face of this record that the mandate of this Court dated May 25, 1960, based upon the opinion of this Court filed April 11, 1960, conformed to the original opinion, but not to the final decision of this Court as shown by its “Per Curiam” order entered on May 9, 1960. The mandate, however, was accompanied by a copy of the “Per Curiam” order.

The original opinion, filed on April 11, 1960, directed that the remand was not “for the purpose of a further hearing,” however, that portion of the opinion did not apply to the new matter considered in the order of May 9, 1960, reviewing the contentions of the parties as made subsequent to the filing of the original opinion. The “Per Curiam” pointed out that this Court was in no position to determine the true facts concerning subsequent events. The Court did not modify its order that the Report and Order of the Commission of December 29, 1959, be set aside, and it expressly stated that “the order of remand will stand.” The purpose of the remand was then definitely stated, as follows: “ * * * this, for the purpose of making such order, if any, as may seem proper in connection with the chick shipments as indicated in our original opinion, and in the light of subsequent developments." (Italics ours.)

The several motions to modify the original opinion were overruled, nevertheless it clearly appears that the original opinion and decision of the Court was, in fact, modified on the Court’s own motion to permit a further hearing with reference to chick shipments in view of subsequent developments; and that the clause, “but not for the purpose of a further hearing,” was intended to apply only with reference to the discontinuance of the mentioned trains, the issue ruled in the principal opinion.

All may regret the confusion resulting from the failure of the mandate and the records of the Court to correctly reflect the facts, but the truth is that the final order of this Court has not been carried into effect; that no motion has been made to modify the mandate to make it conform to the “Per Curiam” order; that appellant’s right to a further hearing “in the light of subsequent developments” has been denied; and that a new order was entered by the Commission without notice or a hearing of evidence or even an opportunity to protest the making of the order. Appellant’s statutory and constitutional rights were clearly violated by the order of May 26, 1960, and the Circuit Court erred in affirming that order. Section 387.190(3) RSMo 1959, V. A.M.S.; Public Service Commission v. St. Louis-San-Francisco Ry. Co., supra, 256 S.W. 226, 227-228; State ex rel. Anderson Motor Service Co. v. Public Service Commission, 234 Mo.App. 470, 134 S.W.2d 1069, 1076(12, 13), affirmed 348 Mo. 613, 154 S.W.2d 777, 780; Hoppe, Inc. v. St. Louis Public Service Co., Mo.Sup., 235 S.W.2d 347, 351(9); State ex rel. Reid v. Walbridge, 119 Mo. 383, 24 S.W. 457, 460; State v. Goodbar, Mo.Sup., 297 S.W.2d 525, 528(5-8); Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387, 391 (8); Magerstadt v. La Forge, Mo.Sup., 303 S.W.2d 130, 134(8-10); Baker v. Baker, Mo.App., 274 S.W.2d 322, 326; Section 386.510 RSMo 1959, V.A.M.S.; 16A C.J.S. Constitutional Law § 628(b) (1), p. 856.

It is further apparent that the Commission ordered the institution of the proposed “substitute service” without notice or the hearing of evidence after Rock Island had alleged in a motion filed in this Court that the conditions upon which the prior proposal was based no longer existed.

The judgment of the Circuit Court is reversed and the cause remanded with directions to remand the proceedings to the Commission with directions to set aside its order of May 26, 1960, and grant appellant a hearing in accordance with this Court’s prior “Per Curiam” order.

All concur.


author: EAGER, Presiding Judge.

text:
    Silver HALL, Mabel Hall, Pearl Hall and Myrtle Hall, Appellants, v. J. Hugh SMITH, Respondent.
    No. 48794.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.
    Motion for Rebearing or for Transfer to Court en Banc Denied March 12, 1962.

      Wm. H. Frye, Vogel & Frye, Cape Gir-ardeau, Albert C. Lowes, Buerkle & Lowes, Jackson, for appellants.
    Harold B. Bamburg, Clayton, Thompson, Walther & Shewmaker, St. Louis, Wayne L. Townsend, Dittmer, for respondent.
   EAGER, Presiding Judge.

This action was instituted for the purpose of having the purchaser at a partition sale declared to be a constructive trustee for plaintiffs. The court sustained a motion to dismiss and plaintiffs appealed. We shall consider only the last amended pleadings. In their amended petition plaintiffs alleged: that in May 1958 two of the plaintiffs owned undivided one-fourths and the other two an undivided one-half of certain described land in Cape Girardeau County, totalling one hundred acres, more or less; that Silver Hall and Mabel Hall had formerly been husband and wife; that in May 1958 one R. P. Smith as attorney for Mabel Hall filed a partition suit in the Court of Common Pleas of that county, naming the other three present plaintiffs as defendants; that a “preliminary” decree in partition was entered, the sheriff was ordered to advertise and sell the land, and the land was so sold on October 17, 1958; that the sheriff filed his report of sale showing that the land was sold to the present defendant, J. Hugh Smith, for $1,000; that on October 17, 1958, the court entered its final decree in partition approving the sale, directing the distribution of the proceeds, and ordering the execution and delivery of the sheriff’s deed; that the deed was so executed and delivered on said day. Then appeared the following allegations concerning the purchaser, who is the present defendant: that he was the son of R. P. Smith, Mabel Hall’s attorney, was closely associated with R. P. Smith in his practice, shared offices with him, acted as his secretary and office manager, had access to all information and “confidential matters” concerning clients, including these plaintiffs, and shared fees with him (though not a lawyer) ; that defendant was present at the sale as the agent of R. P. Smith, that he “actively participated” in the conduct of the sale, gave directions to the sheriff, and “through his actions discouraged other purchasers from bidding a fair price for said land”; that R. P. Smith was allowed a fee of $100 for his services in the partition suit, and that defendant “directly or indirectly received part of said fee”; that “on or about the date the said sale was approved by the court, defendant informed these plaintiffs that he had purchased the land for their benefit and protection.” Thereupon, the plaintiffs alleged the existence of a confidential relationship and its breach, that the sale price was grossly inadequate, that defendant had reaped profits from the land, and that plaintiffs “hereby tender” the sum of $1,000 to defendant. The prayer was for a decree declaring that defendant held the land as trustee for plaintiffs, that title be vested in plaintiffs, and that an accounting be rendered.

In defendant’s amended motion to dismiss it was alleged that the petition failed to state a claim upon which relief could be granted, particularly in that: plaintiffs were barred by estoppel, having received the “fruits of the sale”; that no fraud or lack of jurisdiction were alleged in connection with the prior judgment; that the court in the prior judgment made a “specific finding” of the propriety of the sale, which was res adjudicata of plaintiffs’ rights; that defendant held a judgment for possession ; and that plaintiffs were barred by laches. Although the amended motion was filed prior to the last amendment of the petition, it is stipulated here that it was considered by all concerned as refiled, and that it may be so considered here. A motion for summary judgment was also filed. It is of no importance on this record, for-reasons to be stated later.

At the hearing on the motion to dismiss defendant was “granted leave to introduce into the record * * * File No. 2325 of this court * * ⅜” (the partition case). We shall consider the file as in evidence, under this rather awkward order. After the final order sustaining the motion, and at defendant’s request, it was ordered that such entire file should be included in the transcript. Much wholly immaterial matter is thus brought here, although the essential parts were properly included.

In considering a petition on motion to dismiss, we construe it liberally and favorably to the plaintiff, giving him the benefit of all inferences fairly deducible from the facts stated. Jacobs v. Jacobs, Mo., 272 S.W.2d 185, 188; Bedell v. Daugherty, 362 Mo. 598, 242 S.W.2d 572, 574; Fish v. Fish, Mo.App., 307 S.W.2d 46, 49; Ladue Contracting Co. v. Land Development Co., Mo.App., 337 S.W.2d 578, 582. Ordinarily the ruling is confined to the face of the petition. Pogue v. Smallen, Mo., 285 S.W.2d 915, 916; Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644, 645-646; Hudson v. Jones, Mo.App., 278 S.W.2d 799, 802; Abbott v. Seamon, Mo.App., 229 S.W.2d 695, 699; State ex rel. State Highway Commission v. Shultz, 241 Mo.App. 570, 243 S.W.2d 808, 810; Section 509.300, RSMo 1959, V.A.M.S. If it clearly appears from the petition that the cause of action is barred by limitations, a motion to dismiss is properly sustained. DeVault v. Truman, 354 Mo. 1193, 194 S.W.2d 29, 32. This court has held that the “other matters” which may be raised by motion under § 509.290 include the defense of res adjudicata, Pogue v. Smallen, supra; Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526, 530, if such would dispose of an action “groundless on the uncontroverted facts.” Met-calf, supra. See, also on that point, Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69, 71; Agnew v. Union Construction Co., Mo., 291 S.W.2d 106, 109; and Rippe v. Sutter, Mo., 292 S.W.2d 86, 89. And, under that statute, “the grounds * * * may be supplied by affidavit.” Certainly record evidence may be offered instead of affidavits. And see, generally, Hamilton v. Linn, supra, 355 Mo. 1178, 200 S.W.2d 69, loc. cit. 71, where the court said: “The trial court is authorized to receive proof on matters raised by motion.” In Rippe, supra, it was indicated that evidence should have been offered to support the contention of res adjudicata, since the motion did not prove itself. In the present case plaintiffs have affirmatively pleaded in their petition the partition proceedings (as indeed they must), including the final judgment confirming the sale. That judgment appears here as a part of our record and may be considered.

In our view of the case it will not be necessary to decide whether defendant, J. Hugh Smith, stood in a confidential relationship to plaintiffs, or any of them. It is therefore unnecessary to discuss the various cited cases, such as Swon v. Huddleston, Mo., 282 S.W.2d 18, 55 A.L.R.2d 205; Edwards v. Gottschalk, 25 Mo.App. 549; and Connecticut Mutual Life Insurance Co. v. Smith, 117 Mo. 261, 22 S.W. 623, 38 Am.St.Rep. 656. We have determined that the amended motion to dismiss was properly sustained, in that the prior judgment was res adjudicata of plaintiffs’ present claims. In that judgment, entered on October 17, 1958, the court found that the price paid was the best obtainable, was fair and reasonable and that the sale should be approved; it found the respective interests of the parties, they constituting all of the present plaintiffs; it ordered the sale in all things approved and a deed executed; it allowed the expenses of sale and an attorney’s fee, and it ordered the net proceeds distributed. The deed was executed and acknowledged on the same day. No objection of any kind was made to the sale prior to the confirmation, nor apparently until this suit was filed more than two years later; the transcript contains receipts for the respective distributive shares of all parties.

A final judgment in partition is as conclusive and binding on all the parties thereto as any other final judgment. It forecloses all the issues litigated, and all that might have been litigated in that cause. Miller v. Proctor, 330 Mo. 43, 49 S.W.2d 84; Bushman v. Bushman, 311 Mo. 551, 279 S.W. 122; Clark v. Sires, 193 Mo. 502, 92 S.W. 224; Virgin v. Kennedy, 326 Mo. 400, 32 S.W.2d 91; Edson v. Fahy, Mo., 330 S.W.2d 854. The validity of the sale is an essential thing to be determined at the time of confirmation. In the present case plaintiffs are actually attacking the validity of this sale: first, on the ground that the defendant Smith was not a proper person to purchase because he was, in effect, the “alter ego” of the moving attorney and in a confidential relationship; secondly, because he had “discouraged other purchasers”; and lastly, because the price bid and paid was grossly inadequate. All these matters could and should have been presented to the court prior to the confirmation of the sale; they went directly to the essential issue which the court then considered, and they could have been raised upon any proper form of objection made or filed in the cause by an interested party. Had the court considered such objections substantial, it could easily have ordered a new advertisement and a resale. Plaintiffs could also have attacked the confirmation by a motion for new trial filed in that cause within proper time. The present suit constitutes a collateral attack upon the partition judgment which is not permissible. Rupp v. Molitor, 320 Mo. 938, 9 S.W.2d 609; Virgin v. Kennedy, 326 Mo. 400, 32 S.W.2d 91; Phelps v. Domville, Mo., 303 S.W.2d 601, 607; Ray v. Ray, 330 Mo. 530, 50 S.W.2d 142. There is no contention that the court in the prior case, did not have jurisdiction of the subject matter and the parties; nor do plaintiffs claim that for any other reason that judgment was void. All of these plaintiffs were parties to the partition suit and as such they are bound by the judgment. The mere fact that the present defendant was not a formal party to that suit, although the purchaser, is immaterial. He is not contesting the binding effect of the judgment. See, by analogy, First National Bank & Trust Co. of King City v. Bowman, 322 Mo. 654, 15 S.W.2d 842, 851. Illustrations of proceedings to set aside partition sales, taken in the original case, are shown in: Tatum v. Bernard, Mo.App., 49 S.W.2d 1083; Borchers v. Borchers, 352 Mo. 601, 179 S.W.2d 8; and Goode v. Crow, 51 Mo. 212. Many similar instances might be cited. The grounds alleged by plaintiffs here are not such as to constitute a direct attack upon the partition judgment. See Johnson v. Stull, Mo., 303 S.W.2d 110, 115, and cases there cited; Reis v. LaPresto, Mo., 324 S.W.2d 648; Kroger v. Engel, Mo.App., 321 S.W.2d 27.

We have considered the allegation of the amended petition that “on or about” the date when the sale was approved, defendant told plaintiffs that he had bought the land “for their benefit and protection.” If plaintiffs had alleged that a specific agreement such as that shown in Swon v. Huddleston, Mo., 282 S.W.2d 18, 55 A.L.R. 2d 205, was made prior to the confirmation of the sale and that they were thereby induced to and did refrain from opposing the confirmation, we might conceivably consider whether the present case could be held to come within the principle of that case. But there is no such allegation. Not only is the time left uncertain, and no inducement and resulting nonaction are alleged, but the words “for their benefit and protection” are so vague as to be meaningless. Thus, the allegation does not legally avoid the effect of res adjudicata as heretofore discussed.

We note that this opinion does not constitute an approval of the alleged actions of the defendant. Not having heard the merits we are in no position to express an opinion on the propriety of defendant’s acts. Those attributed to him are not to be recommended. We have disregarded sundry statements concerning matters outside the record, and papers wholly outside the proper scope of the record, including letters to the trial court. Counsel for defendant have insisted here that their motion for summary judgment should be sustained; that question is wholly immaterial, as the order sustaining the motion to dismiss is a final judgment. State ex rel. McMonigle v. Spears, 358 Mo. 23, 213 S.W.2d 210; Mansfield v. Veach, 240 Mo.App. 617, 212 S.W.2d 90; Runnion v. Paquet, Mo.App., 233 S.W.2d 803. Moreover, when the court on plaintiffs’ motion for a new trial set aside that part of its former order sustaining the motion for summary judgment, defendant took no appeal and he is foreclosed.

We hereby direct the clerk to tax against the respondent one-half the cost of fifty-two pages of the transcript, in the sum of $15.60. The judgment is affirmed.

All of the Judges concur.

      . All statutory citations are to that revision.