author: HUNTER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Fred Leroy HALL, Appellant.
    No. 23414.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.

      O. T. Thomsen, Kansas City, for appellant.
    William A. Collet, Pros. Atty., Jackson County, Kansas City, for respondent.
   HUNTER, Presiding Judge.

The defendant, Fred Leroy Hall, crossed over a public road within his employer’s plant area in Jackson County with one of his employer’s trucks. He was arrested, charged and tried on the misdemeanoi charge of driving and operating a motor vehicle “over and upon” a public highway in Jackson County, Missouri, without displaying on the rear thereof a registration plate bearing a number from the Director of Revenue of the State of Missouri. Upon trial to the court on a stipulation of facts he was found guilty “of driving on the highway without a license” and fined $10.00 and costs. This appeal followed. The question presented is one of first impression in this state.

The pertinent evidence is recited in the following stipulation of facts:

“The defendant, at the time of his arrest, was in the employ of the Stewart Sand and Material Company, a Missouri corporation, which owns and operates certain rock mining property-known as the Pixley Plant, located in Jackson County about one and one-half miles east of Independence, Missouri, outside of the city limits. The property includes a large mine, rock crusher, concrete plant, railway loading facilities, office and scales. The highway in question, Truman Road ('formerly Spring Branch Road); passes through the plant property and is located upon lands owned in fee by the Stewart Sand and Material Company. The mine and rock crusher are on the north side of the road or highway; the scales, office, concrete plant, and railway loading facilities, etc., are on the south side of the highway.
“The defendant, at the time of his arrest, had been in the employ of the Stewart Company as a truck driver for approximately nine years. His employer owns a considerable number of trucks which go upon the highway, all of which bear regular license or registration plates. It also owns several stone trucks (generally three or four) which are used only upon the company premises for hauling rock from the mine to the crusher or from the crusher to the concrete plant or perhaps to load a railroad car. These stone tracks do not hear highway license plates. At the time of the defendant’s arrest, he was operating one of his employer’s stone or rock trucks at its Pixlcy Plant, hauling rock to the concrete plant on the opposite side of the highway, and, in doing so, crossing the highway with the stone truck. Such trucks might travel a considerable distance upon a rock road within the Stewart Company premises before it becomes necessary to cross the highway. The stone trucks generally move directly across the highway but might move along the road for a short distance for a better place to get off.' The location of the highway at the Pixley Plant does not serve any purpose for the stone trucks. They go upon it only to get across it.
“No record has been found of any right-of-way deed to the State of Missouri or of any proceedings to establish a highway upon the property in question, and the existing highway easement apparently was established by prescription or permissive use only.
“The arresting officer testified that at the time of the arrest the defendant drove on the highway, moved along it about 150 or 200 feet, and then moved off to the opposite side. The defendant did not operate the truck upon the highway at any point beyond his employer’s plant area covered by deed recorded in Book 1210, page 264, at Independence, Missouri.
“The property owned by the defendant’s employer at this location, through which Truman Road passes, has been operated continuously as a rock mining and crusher operation for 50 years, or more, during which time the operators crossed the road with operating vehicles. Motor vehicles used only in the plant area have never borne license plates. The defendant’s employer, the Stewart Company, has operated the property since 1930, first as a lessee, and during the past five years as owner. (End of stipulation.)”

The transcript recites: “ * * * The parties agree * * * the question * *, whether a truck of the Stewart Company operated across such roadway, within the limits of the plant area, is required to bear a state registration plate.”

“Defendant’s attorney: Is it Your Hon- or’s suggestion the stone trucks therefore could cross the highway without a license, in the event they go directly across and not move along it in any degree ?”

The trial judge stated “for a man to cross the road to get from one part of his property to another, * * * (he) should not be required to procure a state license to travel across the road, but when they get out upon the highway and travel any distance up and down the highway, I feel it is not up to this court to determine what distance a man has to travel along the highway to require him to buy a license.”

Section 301.020 provides: “Every owner of a motor vehicle or trailer, which shall be operated or driven upon the highways of this state” shall file with the director of revenue an application of registration.

Section 301.130(5) RSMo 1959, V.A.M.S., provides: “Before being operated on any highway of this state every motor vehicle or trailer shall have displayed the license plates or temporary permit issued by the director * * Section 301.440 provides that upon conviction punishment is by fine of from $5.00 to $500.00 or by imprisonment in the county jail not exceeding two years, or both.

It is appellant’s contention that the owner of land through which a highway passes may make any use of it which does not interfere with public travel or proper police regulation, including crossing over it, and that the Motor Vehicle Licensing Law is inapplicable to the facts before the court. The Prosecuting Attorney of Jackson County has not favored us with either an appearance or a brief.

It is the general rule that a highway across a landowner’s property is merely an easement. The title or fee to the lands occupied by it remain in the landowner. “The landowner continues to enjoy all of the rights of property incident thereto, subject only to the rights of travel and use as a highway vested in the public.” Sikes v. St. Louis & S. F. R. Co., 127 Mo. App. 326, 105 S.W. 700, 703. Williams v. Natural Bridge Plank Road Co., 21 Mo. 580. In 39 C.J.S. Highways § 142, page 1083, is stated: “The owner of land through which a highway passes has a right to make any reasonable use of the highway which does not interfere with the enjoyment of the public easement.” In the instant case there is no such interference involved and none is charged. Nor is there any denial of the power of the legislature within constitutional limits, to impose penalties for operating on public highways motor vehicles which have not been licensed and registered.

It is clear that unless the statute cited made it unlawful for the defendant to drive, as described in the evidence, across the highway without a license displayed on the truck his conviction must be set aside. Thus, a construction of Section 301.130 (5) RSMo 1959, V.A.M.S., is necessary.

In the construction of any statute the primary purpose is to ascertain the legislative intent. That intent should be found, if possible, from the wording used and the objectives to be obtained. A criminal statute is not to be held to include offenses or persons other than those which are clearly described and provided for both within the spirit and letter of the statute, and, if there is a fair doubt as to whether the act charged and proved is embraced within the prohibition, that doubt will be resolved in favor of the accused.

The nature and general purpose of the license statute has been discussed in State ex rel. McClung v. Becker, En Banc, 288 Mo. 607, 233 S.W. 54, 55, “ * * * the registration fees * * * must be paid * * * into * * * the state road fund * * *. It is therefore avowedly a revenue measure. The owner of such vehicle may operate it on his own premises without being subject to the payment of the registration fee imposed by the statute. In such case he will pay the general property tax. The state maintains roads and bridges at great expense and exacts a license fee for the privilege of driving or operating these high-powered vehicles thereon. It is clear, therefore, that the registration fee is not a tax on the vehicle but upon the privilege of operating it on the highways of the state.” See, also, State v. Tustin, Mo. App., 322 S.W.2d 179, 182(4-6).

In Northern Illinois Coal Corp. v. Langmeyer, 342 Ill.App. 406, 96 N.E.2d 820, 823, the Illinois Court was presented with a somewhat similar statute for interpretation. The Illinois statute provided, “It is unlawful for any person to drive or move” (any vehicle over a certain size and weight) and, “No vehicle * * ⅜ shall be operated * * * upon the highways’’ if its axle weight exceed certain poundage. In ruling the case in favor of the defendant the court said, “At the outset of our construction of this act we are confronted with the proposition that at common law the owner of the soil over which a highway, outside of the boundaries of a city or village, is located is entitled to the entire use of the land except the right of the public to use the land and materials thereon for the purpose of building and maintaining a highway suitable for the safe passage of travelers. * * * Use of the highway for purposes of travel would ordinarily be upon and along the highway and not across it. If, therefore, the legislature intended to regulate the use of the highway for crossing purposes, it should have been made apparent from the wording of the statute. * * * the legislature did not intend the phrases ‘drive upon,’ ‘move upon,’ and ‘operate upon’ in Article XVI to apply to driving across the highway. We hold that the operations being carried on by the plaintiffs in crossing the highway to reach their own property on adjacent lands are not within the purview of * * * the act, * * See, also, 60 C.J.S. Motor Vehicles, § 63, pages 242-243.

After considering the words of the statute and its purpose, it is our conclusion that in using the words “operated on any highway” our legislature did not intend to prohibit a landowner whose land is, split into two pieces by a public highway from going across such, public highway in his truck in order to get from one piece of his property to the other.- This is not such a use of the vehicle on the public highway as to require a license on the vehicle so moved. The license or registration fee is not a tax upon the vehicle but upon the privilege of operating it on the highways of the state: The public road in question was a barrier to defendant’s employer in getting from one-part of its land to another and defendant in the course of his employer’s business of necessity had to cross over it to get to its property on the other side. In crossing over the road defendant was not exercising or endeavoring to exercise the privilege of operating upon or using a public road in the sense contemplated by the legislature.

We need not here be concerned as to what the result would be if defendant had chosen to drive on and along the highway for any substantial distance and beyond that which reasonably could be said to be a part of his crossing movement. He went on the highway in order to cross it. While the evidence shows the truck moved along the highway for 150 or 200 feet it also indicates this was occasioned by the circumstances present in order for defendant to get across it. The distance was so short and the surrounding circumstances were such that the 150 or 200 foot movement was but a part of the crossing movement and inconsequential in nature. We are convinced that the legislature in its wisdom did not intend to impose criminal liability under such circumstances. Legislatures are not to be presumed to- have intended harsh or unreasonable results beyond the apparent purpose of the statute involved and the necessary meaning of the words used therein.

The judgment is reversed.

All concur.

      . Sec. 556.040, RSMo 1059, V.A.M.S., provides: “The term ‘misdemeanor,’ as used in this or any other statute, shall be construed as including every offense punishable only by fine or imprisonment in a county jail, or both.”


source: Caselaw Access Project

author: STONE, Presiding Judge.

license: Public Domain

text:
    Clarence PHILLIPS and Nellie Phillips, Plaintiffs-Respondents, v. Roy C. STOCKMAN and Fred A. Stockman, Defendants-Appellants.
    No. 7958.
    Springfield Court of Appeals. Missouri.
    Nov. 15, 1961.

      Keyes, Bushman & Hearne, Jefferson City, for defendants-appellants.
    Bond & Dominique, Jefferson City, for plaintiffs-respondents.
   STONE, Presiding Judge.

Harold Dean Phillips, then twelve years of age, suffered fatal injuries about 4:30 P.M. on November 8, 1958, when thrown from a 1956 Chevrolet sedan (hereinafter referred to as the Phillips automobile), then being driven by his mother, Mrs. Nellie Phillips, on Callaway County Route D approximately two miles west of Mokane, Missouri. In this jury-tried action for damages on account of Harold’s death, his parents obtained a verdict for $12,000 against both defendants, who appeal from the judgment entered thereon.

At and near the point of accident, Route D ran in a general easterly-and-westerly direction and was practically level; and, for a distance of not less than one-half mile to the east (that being the direction from which all of the vehicles figuring in this tragedy approached the point of accident), the road also was straight. There was “very little” shoulder between the north edge of the blacktop and the “fair-sized ditch” on that side of the road. At the time of accident, the setting sun was low in the heavens and (as we shall detail) in varying degree bothered some westbound drivers on Route D. Since the time of the setting of the sun is within the storehouse of our judicial knowledge [Haley v. Edwards, Mo., 276 S.W.2d 153, 161(12); McGowan v. Wells, 324 Mo. 652, 658, 24 S.W.2d 633, 635(1); State v. Powell, Mo., 306 S.W.2d 531, 533(2), 66 A.L.R.2d 1141], we record that, on November 8, 1958, the sun set about 5:00 P.M. at the place of accident.

Defendants, Roy C. Stockman and Fred A. Stockman, are father and son, respectively. Roy, with son Fred, then twenty-six years old, and another son Francis (not a defendant herein), then twenty-one years old, had been working that day on Roy’s farm near Steedman, a few miles east of the place of accident. Fred testified that, in the operation of that farm, he and his father, Roy, were partners. Between 4:00 and 4:15 P.M., Fred and his brother, Francis, left the farm in a 1951 Chevrolet two-ton truck with grain bed and stock rack (hereinafter referred to as the stalled truck) owned by Roy and, with Fred driving, proceeded west on Route D en route to the Stockman family home near Wardsville. As Fred and Francis neared the place of accident, the truck motor “started to miss and, just like that, it quit.” Fred (in his words) “pulled over to the (right-hand or north) side of the road as far as I could go” without driving into the ditch. Plaintiffs' witness, Andrew Taylor (the only other witness on this subject) agreed that the stalled truck was “as far off the paved surface as it could be got without being put into the ditch,” and plaintiffs have not charged any violation of the statutory requirement that “(a) 11 vehicles not in motion shall be placed with their right side as near the right-hand side of the highway as practicable.” V.A.M.S. § 304.015(1). In 'the absence of any statement or estimate as to what portion of the stalled truck remained on the blacktop, we are informed only that the truck was “partially” thereon.

When the truck stopped, Fred “got out right away and raised the hood and just looked in” when the right front door of a westbound 1958 Ford sedan driven by Andrew Taylor sideswiped the outside left rear dual tire on the stalled truck. Taylor continued to the west on Route D for “a block or two maybe,” turned around, drove back and “stopped at the (stalled) truck.” As, upon trial, he related the conversation, Taylor inquired, “what did I do to the truck”; and, when Fred and Francis “said they didn’t know” and made a reciprocal inquiry, “what did it do to your car,” Taylor responded, “I don’t know; let’s look.” So, Taylor and Fred “drove down the road” to the east for a short distance (estimated by Taylor at 250 to 300 feet and by Fred at 150 to 200 feet), where Taylor stopped, still headed east, and he and Fred alighted to inspect the right side of the Taylor automobile. As they made this inspection, they were standing either in the ditch, two to three feet deep, on the south side of Route D (as Taylor testified) or alongside of that ditch (as Fred remembered it). In either event, they were on the south side of the stationary Taylor automobile. While engaged in inspection of that side of his automobile, Taylor told Fred that he (Taylor) had sideswiped the stalled truck because he had been blinded by the sun. As Taylor made that statement to Fred, two westbound vehicles were approaching from the east on Route D, towit, (1) the Phillips automobile driven by plaintiff Nellie, then about three hundred feet east of the Taylor automobile and traveling at a speed estimated by Nellie at thirty-five miles per hour and by Fred at forty to fifty miles per hour, and (2) a 1958 Chevrolet pickup (hereinafter referred to as the pickup) driven by defendant Roy, then about two hundred feet behind or east of the Phillips automobile (and thus about five hundred feet east of the Taylor automobile) and traveling about the same rate of speed as the Phillips automobile. Neither Taylor nor defendant Fred called or waved either to plaintiff Nellie or to defendant Roy.

To this stage of our factual review, we encounter no material or important dispute; but, as to what subsequently occurred, the record reflects two diametrically opposed, utterly irreconcilable versions. We first outline plaintiff Nellie’s version. She was en route from Mokane to her farm home with three children riding in the Phillips automobile, i. e., Harold on the right side and Linda in the center of the front seat and Danny in the back seat. “Most of the time” she wore eyeglasses (such as she was wearing at the time of trial) when she drove an automobile; but, before leaving Mokane on this occasion, she removed her eyeglasses, placed them in her dress pocket, and put on sunglasses, described as having a “white frame with blue lenses.” She first saw the stalled truck “quite a ways down the road.” At that time, she did not know whether it was moving; but, as she came “closer,” she learned that “it was stopped.” In the meantime, she also had become aware that the westbound pickup (driven by defendant Roy) was behind her. “I seen it about half a mile down the road on the straight stretch there. I knowed it was coming behind * * * a m;ie behind me.” By the time she was one hundred feet from the stalled truck, the pickup traveling about fifty miles per hour was about one hundred feet behind her. As she “approached” the stalled truck, she slackened the speed of the Phillips automobile (whether by application of brakes or simply by lifting her foot from the accelerator she did not say) so that, when it was twenty feet from the stalled truck, she was traveling about twenty miles per hour. There being no approaching eastbound traffic on Route D, she “started to go around — I give myself plenty of room to go around this (stalled) truck — and something (the pickup) hit me in the rear of (my) car.” This initial impact, which “seemed like” it was to “the left bumper,” was “pretty hard” or “severe,” cast plaintiff Nellie “up against the steering wheel,” and threw the Phillips automobile into the stalled truck. As a result of the second impact, i. e., the impact between the right side of the Phillips automobile and the left rear portion of the stalled truck, both Nellie and her son, Harold, were thrown from the automobile onto the blacktop roadway and the boy suffered the grievous injuries of which he died. Positively and repeatedly, plaintiff Nellie testified that the impact of the pickup upon the rear end of the Phillips automobile “threw” or “flung” it into the stalled truck, and that otherwise she would have cleared the stalled truck safely. Thus ran plaintiff Nellie’s testimony.

The other evidentiary picture was developed by defendants Roy and Fred and plaintiffs’ witness Taylor. Defendant Roy left his farm in the pickup some ten to fifteen minutes after his sons, Fred and Francis, and likewise proceeded west over Route D en route to the Stockman family home. After the Phillips automobile turned west from a north-and-south road onto Route D in front of the westbound pickup, plaintiff Nellie drove the Phillips automobile at a speed of forty to fifty miles per hour and Roy followed at practically the same rate of speed and at a distance of .about one hundred fifty feet (as he estimated it) or two hundred feet (as Fred thought). The setting sun “was glaring” in Roy’s eyes and “was bothering” him; and, with no sunglasses, “I (Roy) was using (the Phillips automobile) as a blind against the sun” — “I was following this car and using it as a guide.” However, Roy insisted that he could “clearly see” the Phillips automobile. Both defendants and ■plaintiffs’ witness Taylor substantially agreed that, as the Phillips automobile approached the stalled truck, there was no perceptible slackening in its speed or discernible change in its course; that the initial impact was between the right side ■of the Phillips automobile and the left rear portion of the stalled truck; that, as a result of this initial impact, the stalled truck was knocked into the ditch and the rear end of the Phillips automobile swung clockwise to the south with that vehicle coming to rest crosswise of the blacktop roadway; that defendant Roy applied the brakes and skidded the wheels of the following pickup, leaving skidmarks (so Roy said) thirty-three feet in length; and that a second impact occurred when the front end of the pickup, then moving “very slow” or “about ten miles an hour,” ran into the right side of the Phillips automobile, then standing crosswise of the blacktop. Other pertinent facts will be noted in connection with our discussion of the legal problems involved.

Defendants’ first contention is that they were entitled to a directed verdict because “plaintiffs’ own testimony and evidence destroyed their theory of the case,” which followed plaintiff Nellie’s version of the ac•cident. This contention depends upon the -alleged conclusive effect of four photographs of the Phillips automobile, identified as defendants’ exhibits during the cross-examination of plaintiff Clarence (plaintiff Nellie’s husband and Harold’s father), conceded by him to be “pretty good” or “fair” representations of the condition of the Phillips automobile after the accident, and received in evidence without objection. The argument of defendants’ counsel follows the line that these photographs, for which plaintiff Clarence vouched and by which both plaintiffs are bound (so counsel assert), indisputably establish certain “physical facts,” towit, “extreme violence and rending damage to the right front end and side” but “no damage to the rear end of the Phillips automobile, and particularly none to the left rear bumper”; and that, therefore, these photographs render plaintiff Nellie’s “account of the accident inherently impossible, opposed to all reasonable probability,” because “it is beyond credence” that the pickup driven by defendant Roy could have struck the rear end of the Phillips automobile and could have thrown that vehicle into the stalled truck with sufficient force to have resulted in the “rending damage” to the right front portion and right side, “without causing and producing plainly visible crushing damage to the left rear bumper and rear end of the Phillips automobile.”

The photographs under consideration do not reflect that character of damage to the rear end of the Phillips automobile, but they do reveal two dents or creases in the trunk lid and indicate that the trunk lid had been sprung. Although no damage to the rear bumper is shown affirmatively, none of the photographs were taken at such angle as to reveal whether the bumper was out of normal position or alignment. Plaintiff Clarence testified that “the left back bumper had that white enamel knocked off of it * * * it looked like where something had hit it and kinda scraped sideways, the way I’d figure it out.” Absent any evidence as to the weight, thickness or strength of the rear bumper or as to its attachment to the frame, we would be engaging in sheer speculation, idle surmise and forbidden conjecture if we undertook to determine as a matter of law that the initial impact, if it occurred as plaintiff Nellie testified, would have caused “plainly visible crushing- damage to the left rear bumper and rear end of the Phillips automobile.”

Under plaintiffs’ theory of the case, the initial impact was between two moving vehicles, i. e., between (1) the Phillips automobile which had “started to go around” the stalled truck and (2) the pickup which (as defendant Roy testified and as plaintiffs’ counsel concede in their brief) had skidded more than thirty feet on dry pavement before the impact. Our courts repeatedly have warned that “so frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other.” Although the photographs under scrutiny undoubtedly constituted competent evidence and tended strongly to prove that the accident did not occur as plaintiff Nellie said, they did not establish indisputably physical facts which would permit us as a matter of law to reject her account as “inherently impossible” and “beyond credence.” The credit or weight to be accorded to photographs as evidence usually is for the jury, and “ ‘there is no rule which permits appellate courts to disturb a jury’s findings because highly convincing photographic evidence may seem to overbalance the parol or other evidence to the contrary.’ ” Ruhl v. Missouri Pac. R. Co., Mo., 304 S.'W.2d 16, 18; Schaefer v. Arkansas Valley Interurban Ry. Co., 104 Kan. 394, 179 P. 323, 325. Oral testimony may be rejected when it is contrary to incontrovertible physical facts unequivocally established by photographic evidence, but we are satisfied that this case does not fall in that category. -

Defendants’ next point is that, in any event, a verdict should have been directed for defendant Fred, the driver of the stalled truck, because (a) “he had no duty to warn plaintiff Nellie Phillips, defendant Roy Stockman, or anyone else of the presence of the stalled truck” and (b) moreover any such failure to warn could not have been a proximate cause of the accident. Before entering upon a discussion of this point, it may be well to remind ourselves that, in determining the submissibility of the case, we must consider the evidence in the light most favorable to plaintiffs, must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendants’ evidence except insofar as it may aid plaintiffs. Daniels v. Smith, Mo., 323 S.W.2d 705, 706(2); LaPlant v. E. I. DuPont de Nemours and Co., Mo. App, 346 S.W.2d 231, 234(1); Hildreth v. Key, Mo.App., 341 S.W.2d 601, 604(2).

Since the stalled truck came to rest in clear weather, during daylight hours, on a long, level, straight stretch of dry road, without fault on the part of defendant Fred, with the right side of the truck as near the right-hand side of Route D as was then and there practicable, and with more than sixteen feet of the blacktop roadway unobstructed, we are of the opinion that a duty to warn did not arise immediately, simply because a substantial portion of the truck remained on the paved roadzvay; and, as we understand the argument of plaintiffs’ counsel, they do not so contend. But, we may not resolve the issue as to defendant Fred’s duty to warn vel non without taking into account another unique but important circumstance, towit, the then position of the setting sun and its then effect upon the vision of westbound drivers on Route D. As heretofore indicated, the degree or extent to which individual drivers were affected by the sun varied. The testimony of two of the four westbound drivers who appeared as witnesses reflected a substantial degree of temporary visual impairment and limitation by reason of the setting sun, while the testimony of the other two of those westbound drivers reflected no material degree of such impairment and limitation. Defendant Roy’s statements were: “At that time of the year and at that time of the day, the sun is right in your eyes * * * “The sun was bothering me and —although I had a blind (visor) down * * * at that time of year it’s pretty rough up that blacktop.” Witness Taylor said that “I.could see the road plain” but, with the sun in his eyes, he “couldn’t see this (stalled) truck — just a blind spot in there” until he was within ten feet of the truck. Defendant Fred “never noticed it (the setting sun) too much, due to the fact that we have a sun visor on the truck”; and, on cross-examination, Fred specifically denied knowledge of any blinding effect upon westbound drivers at that time of day. Plaintiff Nellie said that, wearing sunglasses and with the sun visor down, she saw the stalled truck “quite a ways down the road.”

Of course, motorists whose vision is materially impaired or limited have a duty to exercise care commensurate with the situation then existing [Duffy v. Cortesi, 2 Ill.2d 511, 119 N.E.2d 241, 245; Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223, 229] ; and, those who proceed, though their vision be blinded or substantially obscured by sunlight, hazard the risk of being branded as negligent, oftentimes as a matter of law. But, careless and reckless drivers are no novelty on our highways; and, perhaps in appropriate recognition that in some degree and in certain respects we are or should be our “brother’s keeper” [Genesis 4:9], the law requires that the operator of a motor vehicle, in charting his course of conduct with respect to a stalled or stopped vehicle, reasonably should consider the probability of injury, not only from careful drivers of other vehicles but also from those who may be guilty of negligence ’short of that so “extraordinary” as not to be reasonably foreseeable, In this' respect, foreseeability is as relevant in determination of duty as in consideration of proximate cause, for "(m)os’t duties, imposed by the law of torts, arise out of circumstances and are based on ‘foreseeability’ or reasonable anticipation that harm or injury is a likely result of acts or omissions.”

Although not a vehicle under the jurisdiction of the Missouri Public Service Commission, the stalled truck was equipped, as defendant "Roy (the owner) said, with “burning flares for night” and “red flags for days, for emergency, hauling machinery or equipment or something like that.” Defendant Fred thought that there were no flares on the stalled truck at the time of accident, but he readily conceded that the truck carried red flags, to which he referred as “danger flags” which “we generally use * for pulling equipment, wide equipment, * * * or if we ever need them for anything.” When asked why he “didn’t get them out 'this day,” Fred said, “we didn’t have time.” The record contains no estimate of the elapsed time from the stalling of the truck to the moment of impact, but it will be remembered that defendant Roy left the farm, not many miles distant, some ten to fifteen minutes after defendant Fred and Francis had left. That, when the truck stalled, defendant Fred was not alone but was accompanied by his brother, Francis, is mentioned here as a factor which, in several instances, has been regarded as of some significance in determining whether the operator of a stalled vehicle reasonably could and should have warned approaching traffic.

With all of the foregoing in mind, we are of the opinion that, on the record before us, the triers of the facts might have found that, when the stalled truck came to rest, defendant Fred knew, or in the exercise of the highest degree of cafe could and should have known (i. e., that Fred then had knowledge, actual or constructive), that the truck partially obstructed the north lane of Route D at a time when and a place where the vision of some approaching westbound drivers probably would be materially affected and severely limited by the setting sun; that it then might have been reasonably foreseeable to Fred that such drivers nevertheless would proceed forward and that some accident and injury might result, if adequate warning were not given to westbound motorists; and that, in the exercise of the highest degree of care, Fred could and should have given such warning but negligently failed to do so. But, while such findings would have been permitted by the evidence, we think that they would not have been compelled, but that reasonable men well might have differed as to whether or not a duty to warn then was imposed upon defendant Fred.

In support of their contention that Fred had no duty to warn, defendants cite only one case [Eastman v. Brackman, Mo. (banc), 347 S.W.2d 126], which we have examined carefully. Eschewing the temptation to detail and discuss the factual differences between the Eastman case and this one, suffice it to say that we regard them as clearly so material and distinguishing that the carefully-considered opinion in the Eastman case neither compels nor justifies a like conclusion here. In accordance with the trite commonplace that every case must be decided upon its own facts, we have dissected and analyzed the record, have undertaken to apply basic principles, and have come to the considered opinion that a sub-missible case was made on the issue as to defendant Fred’s alleged duty to warn.

However, defendants argue that “there is not substantial evidence that if the appropriate warning signal (of whatever nature or kind) had been made, defendant Roy Stockman would have been able to see the same, understand its significance, and thereafter control and manage his truck in such manner as to avoid collision with the left rear end of the Phillips automobile.” Causal connection need not be established by direct and positive evidence but may be shown by proof of facts and circumstances from which such connection reasonably may be inferred; and “(t)he facts and circumstances shown should be reckoned with in the light of ordinary experience and such conclusions as common sense dictates deduced therefrom.” Anderson v. Asphalt Distributing Co., Mo., 55 S. W.2d 688, 693(7), 86 A.L.R. 1033, 1043. The usual test as to causal connection between negligence and injury, to which our Supreme Court long has been committed, is whether the facts show that, absent the negligent act or conduct, the injury would not have occurred; and, it is said that, if there be causal connection between negligence and injury, proximate cause usually is for the jury. Boese v. Love, Mo., 300 S.W.2d 453, 458(5); Cox v. Wrinkle, Mo., 267 S.W.2d 648, 654(9) ; La Tour v. Pevely Dairy Co., Mo.App., 349 S.W.2d 436, 442.

In the American Law Institute’s definition of legal or proximate cause, approved by the Supreme Court in Giles v. Moundridge Milling Co., 351 Mo. 568, 577, 173 S. W.2d 745, 750, and followed by us in Hildreth v. Key, supra, 341 S.W.2d loc. cit. 607(13), we are told that “(t)he actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm” [2 Restatement, Torts, § 431, p. 1159], with the same authorities advising us that the word “substantial,” as used in this connection, denotes “the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense in which there always lurks the idea of responsibility, rather than in the so-called 'philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred.” Foreseeability is essential to a finding of proximate cause, in the sense and to the extent that some injury as a result of the negligent act or omission must have been reasonably foreseeable [Dickerson v. St. Louis Public Service Co., 365 Mo. 738 (banc), 286 S.W.2d 820, 824]; but, as we already have concluded in our discussion of defendant Fred’s duty to warn, the evidence would hcuve permitted a finding that Fred reasonably might have foreseen that some accident and injury might result, if adequate warning were not given to westbound motorists. The question is not whether the particular injury under consideration should have been anticipated, but whether, after the occurrence, such injury then appeared to' have been the reasonable and probable consequence of the negligent act or omission. And, it is immaterial that the precise manner in which the injury occurred was neither foreseen nor foreseeable.

In considering defendants’ contention that there was no showing that, even if an “appropriate warning signal” had been given, defendant Roy “would have been able-to see the same” and to “understand its significance,” we recall the testimony of witness Taylor that, although he “couldn’t see this (stalled) truck — just a blind spot in there” until he was within ten feet of the' truck, “I could see the road plain,” and we-recollect defendant Roy’s assurance that, notwithstanding the fact that “the sun was bothering” him, he "could * clearly seethe Phillips automobile ahead” as he followed it at a distance of about 150 feet. As is usually true where a failure to warn is relied upon, no one could know of a certainty precisely what would have happened if defendant Fred had placed red flags-(then available to him) at appropriate distances east of the stalled truck. Cf. Champieux v. Miller, Mo., 255 S.W.2d 794, 797. However, if the triers of the facts found-that defendant Fred had a duty to warn, we think that they also reasonably imght have-found that, if red flags (to which Fred referred as “danger flags”) had been placed at appropriate distances east of the stalled truck, either in the center of the partially-obstructed traffic lane (as would have been required by Rule 58g of General Order No. 33-C issued by the Missouri Public Service Commission, if the stalled truck had been subject to PSC jurisdiction) or on the north shoulder of Route D near the edge of the .blacktop, such flags would have been visible to and seen by defendant Roy as he approached them; that he then would have understood that those flags (universally used for that purpose) signified danger ahead and, so understanding, would have reduced the speed of his westbound pickup sooner than he did; and that, in such event, the pickup (said by defendants to have been moving “very slow” or “about ten miles an hour” at the time of its admitted collision with the Phillips automobile) would not have run into the left rear portion of the Phillips automobile and thus the accident and Harold’s resulting death would not have occurred. Whether a negligent act or omission is a proximate cause of an accident and injury is, in each instance, to be determined and resolved upon the facts of that situation [Dickerson v. St. Louis Public Service Co., supra, 286 S.W. 2d loc. cit. 824(2)] ; and, under the particular and peculiar circumstances reflected by the record before us, we are persuaded that a submissible case was made on the issue as to proximate cause — a conclusion which, although reached on the facts of this case, we believe to be consonant with the holdings in this jurisdiction. In our view of them, all of the cases cited by defendants on this point are quickly and easily distinguishable on their facts, and none of them militate against the conclusion reached here.

Plaintiffs’ instruction PI directed a verdict against defendant Fred upon findings (a) that he “stopped his truck so that a part of same was on the traveled portion of the highway,” (b) “that said defendant failed to exercise the highest degree of care in that he negligently and carelessly failed to give any warning signals that his truck was so stopped on said highway,” (c) that the Phillips automobile was being followed by the pickup driven by defendant Roy, (d) that plaintiff Nellie, “as she approached the stalled truck, gradually slowed down but her car was struck in the rear” by the pickup, causing the Phillips automobile to strike the stalled truck, and (e) that “the negligence of Fred A. Stock-man, if you find he was negligent in failing to give defendant Roy Stockman any warning, directly caused or contributed to cause the death of Harold Dean Phillips.” Of the several complaints leveled at this instruction, we first address ourselves to those which we believe to be meritorious.

One such complaint is that this instruction “does not hypothesize the facts and circumstances essential and necessary to generate defendant Fred Stockman’s duty to warn and to support a finding of causation” between Fred’s negligence, if so, and the accident. Under some circumstances (e. g., in dense fog, heavy rain, or blinding snow), the hazard or peril created by the stalling of a truck with any portion thereof on the paved roadway might be so flagrant and obvious as to charge the driver of the stalled vehicle with immediate knowledge thereof. But the stalled truck in this case came to rest in what we colloquially refer to as “broad daylight,” with no visually-limiting atmospheric condition at that time, on a long, level, straight stretch of dry road, with the right side of the truck as close to the right-hand side of Route D as was then and there practicable, and with more than sixteen feet of the blacktop roadway unobstructed. If the stalling of the truck then created a hazard or peril, it was because of the then position of the setting sun and its then effect upon the vision of some westbound drivers. With the testimony of defendant Fred and plaintiff Nellie reflecting no material degree of visual limitation by reason of the setting sun, we are of the opinion that reasonable minds might well differ as to whether the hazard or peril created by the position of the stalled truck (but only in combination with and by reason of the then position of the setting sun and its then effect upon the vision of some westbound drivers) was so notorious and manifest as to charge Fred with immediate knowledge thereof. This is particularly true in view of the common knowledge of all motorists (of which even judges should not profess ignorance) that innumerable interacting factors, some continually in the process of change and others subject to change, enter into and bear on the effect of the setting sun upon the vision of a motorist driving toward it, e. g., to mention a few such factors, the precise position of the sun at any given moment, the precise position of the motor vehicle at the same moment, the curvature and angle of installation of the windshield of the vehicle, the size and position of the sun visor in front of the driver, the eye level of the driver as related to the visor, the individual characteristics (visual and otherwise) of the driver, etc.

“Negligence, of course, depends iipon surrounding circumstances as well as the particular conduct involved, because an act or omission which would clearly be negligent in some circumstances might not be negligent in other circumstances and surroundings.” Knight v. Richey, 363 Mo. 293, 303, 250 S.W.2d 972, 978. So, what specific findings of evidentiary facts are essential in á verdict-directing instruction must be determined upon the facts and circumstances of the case in which such instruction is offered. In the particular and peculiar circumstances of the case before us, we are convinced that Fred’s knowledge, actual or constructive, of the hazard or peril created by the stalling of the truck not only was an essential prerequisite to a finding that he was negligent in failing to warn westbound drivers but also was a disputed factual issue as to which different inferences might be drawn and different conclusions might be reached by reasonable men.

The purpose of a verdict-directing instruction is to make clear to the jurors the essential factual issues which they must decide [Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 500; Shafer v. Southwestern Bell Tel. Co., Mo., 295 S.W. 2d 1Q9, 116(16); Hampton v. Raines, Mo. App., 334 S.W.2d 372, 378(10)]; and an instruction of such character must require the finding of all facts disputed or not conceded, which are necessary to support the directed verdict, and may neither ignore nor assume any such fact. As has been observed wisely and appropriately, “[a] jury can only understand how to reach a correct general verdict by being told what facts must be found to reach each possible result under the evidence.” Long v. Mild, 347 Mo. 1002, 1013, 149 S.W.2d 853, 860; Lewis v. Zagata, 350 Mo. 446, 455, 166 S. W.2d 541, 547; Thaller v. Skinner & Kennedy Co., Mo.App., 339 S.W.2d 487, 489. But, under instruction PI, the only prerequisite to a finding that defendant 'Fred had “failed to exercise the highest degree of care in that he negligently and carelessly failed to give any warning signals that his truck was so stopped on said highway” was the hypothesized and admitted fact that he had “stopped his truck so that a part of same was on the traveled portion of the highway.” And, with nothing other than instruction PI to guide them on this issue, the jurors were free to conclude that the stalling of the truck with a portion thereof on the traveled roadway immediately raised a duty to warn, and were licensed to find Fred negligent in failing to place red flags or to station a flagman behind the stalled truck immediately after it stopped (or at any time thereafter), regardless of whether Fred then had knowledge, either actual or constructive, that the position of the stalled truck created a hazard or peril by reason of the then position of the setting sun and its then effect upon the vision of some westbound drivers. For failure 'to hypothesize and require a finding to the effect that defendant Fred knew, or in the exercise of the highest degree of care could and should have known, that the stalled truck had come to rest at a time when and a place where the vision of some westbound drivers probably would be materially affected and severely limited by the setting sun (if so) and that, by reason thereof, some accident and injury might result if adequate warning were not given to westbound drivers on Route D, instruction PI was fatally deficient and prej-udicially erroneous. See again Hampton v. Raines, supra, 334 S.W.2d loe. cit. 375 [transfer denied 6/13/60, No. 48294 Mo. Sup.]. And, consult Shaffer v. Sunray Mid-Continent Oil Co., Mo., 336 S.W.2d 102, 107.

If instruction PI was intended (as it appears) to encompass ¿nd permit recovery for Fred’s negligence (if so) in failing to warn defendant Roy after Fred had actual knowledge of the hazard to westbound drivers (i. e., after Taylor had told Fred, while the two of them were standing on the south side of the Taylor automobile, that Taylor attributed his sideswipe of the stalled truck to the blinding effect of the sun), this instruction also should have included and required a finding that thereafter, in the exercise of the highest degree of care, Fred could have given Roy a warning of such character and at such time that Roy, in the exercise of a like degree of care, could have acted thereupon and avoided collision with the Phillips automobile. See Branstetter v. Gerdeman, 364 Mo. 1230, 1240, 274 S.W.2d 240, 246; Johnson v. Missouri-Kansas-Texas R. Co., Mo., 334 S.W.2d 41, 47. For, if Taylor’s then disclosure to Fred were relied upon as initially raising a duty to warn, obviously the time in which and the means with which any warning thereafter might have been attempted would have been most limited, and Fred’s ability, in such time and with such means, to have communicated to defendant Roy an effective warning that the stalled tmck was partially on the traveled roadway (that being the warning Fred should have given, so plaintiffs charged) would have been extremely doubtful.

Instruction PI is also vulnerable to defendants’ complaint that “in effect the instruction tells the jury'that defendant Fred Stockman’s failure to give warning signals was in fact negligence.” The negligence, upon which a verdict against defendant Fred was directed, was “that said defendant failed to exercise the highest degree of care in that he negligently and carelessly-failed to give any warning signals that his truck was so stopped on said highway.” In effect, the instruction thus assumed that Fred’s failure to warn constituted negligence and carelessness and required a finding only that such assumed negligence and carelessness in failure to warn constituted a failure to exercise the highest degree of care. After appropriate factual hypothesization (as hereinbefore discussed), the jury should have been permitted and required to find whether Fred’s failure to warn constituted negligence. In this connection, see Mahaney v. Kansas City, Clay County & St. Joseph Auto Transit Co., 329 Mo. 793, 803, 46 S.W.2d 817, 821(7); Piehler v. Kansas City Public Service Co., 360 Mo. 12, 18, 226 S.W.2d 681, 684; Payne v. Stott, Mo.App., 181 S. W.2d 161, 164(11);. Anderson v. Welty, Mo.App., 334 S.W.2d 132, 140.

Defendants further assert that instruction PI erroneously imposed upon defendant Fred the duty to exercise the highest degree of care, which is the statutory duty of “[e]very person operating a motor vehicle on the highways of this state” [V. A.M.S. § 304.010], whereas (so defendants contend) “at the time of the casualty defendant Fred Stockman was not driving and operating a motor vehicle and had the duty to exercise only ordinary care.” Our courts have held that “operating a motor vehicle on the highways” encompasses “all acts necessary to be performed in the movement of a motor vehicle from one place to another or fairly incidental to the ordinary course of its operation, including * * * the act of stopping en route for purposes reasonably associated with transit * * *.” Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 130(9); Teters v. Kansas City Public Service Co., Mo., 300 S.W.2d 511, 516(9); Karnes v. Ace Cab Co., Mo.App., 287 S.W.2d 378, 380(2). In Taylor v. Silver King Oil & Gas Co., Mo. App., 203 S.W.2d 147, where (according to plaintiff’s evidence) defendant’s truck had stopped on the paved roadway without lights and the driver had been working under the raised hood, it was said [loe. cit. 154(7)] that: “In a legal sense the truck was being operated by the defendant whether it was stationary or moving. The word ‘operation’ is not limited to the movement of the' car alone, but includes such stops as motor vehicles ordinarily make in the course of their operation.” And, the holding in Stewart v. Jeffries, 224 Mo. App. 1050, 34 S.W.2d 560, as epitomized in headnote 2, was that “motorist stopped on highway to repair automobile was ‘operating’ automobile within statute requiring highest degree of care.” We conclude that instruction PI was not erroneous in exacting of defendant Fred the highest degree of care.

Two instructions directed a verdict against defendant Roy. By instruction P4, the jury was told that “under the evidence and the law the defendant Fred A. Stockman was the agent of the defendant Roy V. Stockman at the time and place of the accident” and “therefore if you find against the defendant Fred A. Stockman and in favor of plaintiffs under instruction PI you will also find against the defendant Roy V. Stockman and in favor of plaintiffs.” Instruction P2 (described by plaintiffs’ counsel as “the usual rear end instruction”) directed a verdict against Roy upon a finding that he “failed to use the highest degree of care in that he negligently and carelessly caused or permitted his motor vehicle to strike the rear end of the automobile in which said Harold Dean Phillips was riding.” Since we cannot know whether the jury returned a verdict against defendant Roy (a) under instruction P2 or (b) pursuant to the direction of instruction P4 because the jury had found against defendant Fred under instruction PI (the only verdict-directing instruction as to Fred), the prejudicial error in instruction PI necessitates reversal and remand for a new trial as to both defendants regardless of the validity of the legal assaults mounted by defendants against the other given instructions. Accordingly, we do not further extend this opinion, already inordinately long and tedious, by particularized discussion of defendants’ several complaints as to instructions P2, P3 and P4. However, we observe that, on its face, instruction P2 has one vice in common with instruction PI, i. e., in directing a verdict against defendant Roy on the finding hereinbefore quoted, instruction P2 erroneously assumed that Roy’s conduct in permitting the pickup to strike the Phillips automobile constituted negligence and carelessness, rather than permitting and requiring the jury to find whether such conduct constituted negligence. See the Ma-haney, Piehler, Payne and Anderson cases, supra. Other objections to the instructions may be met and satisfied upon retrial.

The judgment of the circuit court is set aside and for naught held, and the cause is remanded for retrial as to both defendants.

McDOWELL and RUARK, JJ., concur.

      . Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 504, 568; Murphy v. Fred Wolferman, Inc., 847 Mo. 634, 643, 148 S.W.2d 481, 485; Young v. Missouri-Kansas-Texas R. Co., Mo., 100 S.W.2d 929, 934; Bloecher v. Duerbeck, 338 Mo. 535, 547, 92 S.W.2d 681, 685(2); Hardin v. Illinois Central R. Co., 334 Mo. 1169, 1180, 70 S.W.2d 1075, 1079(4), certiorari denied 293 U.S. 574, 55 S.Ct. 86, 79 L. Ed. 672; Burris v. Kansas City Public Service Co., Mo.App., 226 S.W.2d 743, 749(11). See also Garrison v. Ryno, Mo., 328 S.W.2d 557, 560-561(1); Leavitt v. St. Louis Public Service Co., Mo.App., 840 S.W.2d 131, 135; Chiodini v. Terminal R. Ass’n of St. Louis, Mo. App., 287 S.W.2d 357, 362(7).

      . Davis v. Illinois Terminal R. Co., Mo., 307 S.W.2d 395; Weisbrod v. Mueller, Mo.App., 285 S.W. 542, 543(2); Staples v. Spence, 179 Va. 359, 19 S.E.2d 69, 71 (6, 7), 140 A.L.R. 527; Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 9C, § 6361, p. 630.

      . Burris v. Kansas City Public Service Co., supra, 226 S.W.2d loc. cit. 748, 749 - (6, 7, 11, 12); Chiodini v. Terminal R. Ass’n of St. Louis, supra, 287 S.W.2d loc. cit. 362(7, 8); National Linen Supply Co. v. Snowdon, 288 Ky. 374, 156 S.W.2d 186, 189 (1-3); Kennedy v. Southern Pennsylvania Traction Co., 333 Pa. 406, 3 A.2d 395, 397(1, 2).

      . Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 9C, § 6362, p. 634; Id., § 6353, loc. cit. 583; Scott on Photographic Evidence, § 607, p. 496; Bretall v. Missouri Pac. R. Co., Mo.App., 239 S.W. 597, 599(4, 5); Davidson v. St. Louis & S. F. R. Co., 164 Mo.App. 701, 713, 148 S.W. 406, 409(4); Gulf, Mobile & Ohio R. Co. v. Williamson, 8 Cir., 191 F.2d 887, 892. See also Baustian v. Young, 152 Mo. 317, 53 S.W. 921, 922; Fitzgerald v. Schaefer, Mo.App., 216 S.W. 2d 939, 942(7); Cunningham v. Kansas City, 225 Mo.App. 1063, 38 S.W.2d 734, 735(4).

      . Lohmann v. Wabash R. Co., 364 Mo. 910, 919, 269 S.W.2d 885, 891; Brett v. Philadelphia Transp. Co., 154 Pa.Super. 429, 36 A.2d 230; Young v. Gill, 103 Pa. Super. 467, 157 A. 348; Hartley v. A. I. Rodd Lumber Co., 282 Mich. 652, 276 N.W. 712, 715; Phelps v. Wisconsin Telephone Co., 244 Wis. 57, 11 N.W.2d 667, 670; Scott on Photographic Evidence, § 607, loc. cit. 498.

      . Scott v. Missouri Pac. R. Co, 333 Mo. 374, 383, 62 S.W.2d 834, 837; Duffy v. Cortesi, 2 Ill.2d 511, 119 N.E.21 241, 246 (11); Paquin v. St. Johnsbury Truck'ng Co, 116 Vt. 466, 78 A.2d 083, 685(2), 80 A.2d 669, 30 N.C.C.A.(N.S.) 113; Block v. Peterson, 284 Mich. 88, 278 N.W. 774, 776(1); Dinkins v. Jackson Brewing Co., La.App., 57 So.2d 52, 54(1); Ulrikson v. Chicago, M., St. P. & P. Ry. Co, 64 S.D. 476, 268 N.W. 369; Havens v. Loebel, 103 Cal.App. 209, 284 P. 676; Brown v. Atlanta Gas Light Co., 96 Ga.App. 771, 101 S.E.2d 603; Missouri Pac. R. Co. v. Binkley, 208 Ark. 933, 188 S.W.2d 291; Ball v. Soars, Roebuck & Co., 5 Cir, 223 F.2d 695. See also Norby v. Klukow, 249 Minn. 173, 81 N.W.2d 776, 778-779 (1); Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223, 228-232; Meads v. Deener, 128 Cal.App. 328, 17 P. 2d 198; Martin v. Parkins, 55 N.D. 339, 213 N.W. 574.

      . Dickerson v. St. Louis Public Service Co., 305 Mo. 738 (banc), 286 S.W.2d 820, 825; Chiampieux v. Miller, Mo., 255 S.W. 2d 794, 797; Leek v. Dillard, Mo.App., 304 S.W.2d 60, 66; North American Van Lines v. Brown, 8 Cir., 248 E.2d 905, 913 (3). See also Jess v. McNamer, 42 Wash. 2d 406, 255 P.2d 902, 905.

      . Hull v. Gillioz, 344 Mo. 1227, 1236, 130 S.W.2d 623, 628(5); Emery v. Thompson; 347 Mo. 494, 498, 148 S.W.2d 479, 480 (3); LaPlant v. E. I. DuPont de Nemours and Co., Mo.App., 346 S.W.2d 231, 239; Street v. W. E. Callahan Const. Co., Mo.App., 147 S.W.2d 153, 155(3). See also Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 494(7).

      .Shefts Supply Co. v. Purkapile, 169 Okl. 157, 36 P.2d 275, 276; Seibert v. Goldstein, 99 N.J.L. 200, 122 A. 821, 822; Ponder v. National Convoy & Trucking Co., 206 N.C. 266, 173 S.E. 336, 337; Goodwin v. Theriot, La.App., 165 So. 342, 343.

      .No ease closely analogous on the facts has been cited or found, but the interested may consult the following, in each of which plaintiff relied upon breach of an alleged duty to warn of an obstructed roadway during the daytime. For cases recognizing such duty to warn, see Menzies v. Pearson, 44 Wash.2d 252, 266 P. 2d 1038 (recovery by plaintiff blinded by setting sun); Brown v. Atlanta Gas Light Co., 96 Ga.App. 771, 101 S.E.2d 603, 608 (plaintiff, blinded by sunlight, contribu-torily negligent as matter of law); Schroeder v. Chapman, 4 Wis.2d 285, 90 N.W.2d 579; Ponder v. National Convoy & Trucking Co., 206 N.C. 266, 173 S.E. 336; Plummer v. McHale, 15 Misc.2d 35, 179 N.Y.S.2d 759; Toenges v. Schleihauf, 368 Pa. 247, 82 A.2d 15 (warning required by statute but plaintiff, blinded by sunlight, contributorily negligent as matter of law); Jess v, McNamer, 42 Wash.2d 466, 255 P.2d 902 (warning required by statute); Mitchell v. Rogers, 37 Wash.2d 630, 225 P.2d 1074 (warning required by statute); Skelton v. Lowell, 196 Ore. 430, 249 P.2d 958 (warning required by statute). For cases denying such duty under particular circumstances thereof, see Martin v. Smith, 103 Cal.App.2d 894, 230 P.2d 679; Morton v. Mooney, 97 Mont. 1, 33 P.2d 262.

      . State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 119, 28 S.W.2d 97, 102 (6); Taylor v. Silver King Oil & Gas Co., Mo.App., 203 S.W.2d 147, 154(5); Johnessee v. Central States Oil Co., Mo. App., 200 S.W.2d 383, 388(1); Long v. F. W. Woolworth Co., 232 Mo.App. 417, 422-423, 109 S.W.2d 85, 88(3).

      . Votrain v. Illinois Terminal R. Co., Mo. (banc), 268 S.W.2d 838, 843(4); Wood v. St. Louis Public Service Co., 362 Mo. 1103, 1109, 246 S.W.2d 807, 811(4); Rose v. Thompson, 346 Mo. 395, 402, 141 S.W.2d 824, 828(4); Kimberling v. Wabash Ry. Co., 337 Mo. 702, 714, 85 S.W. 2d 736, 741.

      . Boese v. Love, Mo., 300 S.W.2d 453, 459; Floyd v. St. Louis Public Service Co., Mo., 280 S.W,2d 74, 78(9);’ Gray v. Kurn, 345 Mo. 1027, 1043, 137 S.W. 2d 558, 567 (12); La Tour v. Pevely Dairy Co., Mo.App., 349 S.W.2d 436, 442; Feldotto v. St. Louis Public Service Co., Mo.App., 285 S.W.2d 30, 32(5); Bowman v. Moore, 237 Mo.App. 1163, 1172-1173, 167 S.W.2d 675, 680(7).

      . Mrazek v. Terminal R. R. Ass’n of St. Louis, 341 Mo. 1054, 1061, 111 S.W.2d 26, 29-30(6, 7); State ex rel. Emery, Bird, Thayer Dry Goods Oo. v. Sham, 348 Mo. 650, 654, 154 S.W.2d 775, 777 (5); Wilson v.' White, Mo.App., 272 S.W. 2d 1, 5; 2 Restatement, Torts, § 435, p. 1173.

      . Champieux v. Miller, supra, 255 S.W. 2d loc. cit. 797; Johnson v. Lee Way Motor Freight, Mo., 261 S.W.2d 95, 99-100(8); Cox v. Wrinkle, Mo., 267 S.W.2d 648, 654(10); Dickerson v. St. Louis Public Service Co., supra, 286 S.W.2d loc. cit. 824-826; Boese v. Love, supra, 800 S.W.2d loe. cit. 458-459 (4-6); Leek v. Dillard, supra, 304 S.W.2d loe. cit. 65-66.

      . Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240; Vietmeier v. Voss, Mo., 246 S.W.2d 785; Smith v. Mabrey, 348 Mo. 644, 154 S.W.2d 770; Bose v. Thompson, supra, 141 S.W.2d loc. cit. 828-829; Bowers v. Columbia Terminals Co., Mo. App., 213 S.W.2d 663.

      . Creech v. Riss & Co., Mo., 285 S.W. 2d 554, 562(8); Levin v. Caldwell, Mo., 285 S.W.2d 655, 660; Knight v. Richey, 363 Mo. 293, 303, 250 S.W.2d 972, 978; Hampton v. Raines, Mo.App., 334 S.W.2d 372, 378(9).

      . Kimmich v. Berry, Mo., 319 S.W.2d 546; Fitzpatrick v. St. Louis-San Francisco R. Co., Mo., 300 S.W.2d 490, 497-499(10, 12); Shafer v. Southwestern Bell Tel. Co., Mo., 295 S.W.2d 109, 116(16, 17); Tucker v. Taksel, Mo.App., 345 S.W.2d 385, 388; Hampton v. Raines, supra, 334 S.W.2d loc. cit. 378(6, 7); Hicks v. De Luxe Cab Co., Mo.App., 189 S.W.2d 152, 156(8-10). See also Littlefield v. Laughlin, Mo., 327 S.W.2d 863, 869-870; Terrell v. Missouri-Kansas-Texas R. R. Co., Mo., 303 S.W.2d 641, 646(2); Ferguson v. Betterton, 364 Mo. 997, 1004, 270 S.W. 2d 756, 761(4).


author: MAUGHMER, Commissioner.

text:
    Stella Ann KEEFER, Appellant, v. Clarence S. HARTZLER, Respondent.
    No. 23375.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.
    Felix V. Gross, Pleasant Hill, E. J. Murphy, Butler, John C. Milholland, Harrison-ville, for appellant.
    Ray L. Shubert, Harrisonville, Wesner & Wesner, Sedalia, for respondent.
   MAUGHMER, Commissioner.

Plaintiff sued defendant to recover damages for personal injuries sustained by her on August 19, 1959, when the automobile she was driving upon a public highway in Cass County, Missouri, struck defendant’s hog. It was established that at the time and place the Missouri Stock Law was in full force and effect.

Plaintiff’s petition was in two counts. Count 1 was predicated upon the Stock Law and Count 2 charged general negligence. Count 2 was abandoned. There was a verdict and judgment for defendant and plaintiff has appealed. On appeal she charges the trial court with error in the giving of Instructions No. 3 and No. 4. She presents no additional points or assignments of error.

At approximately 8:30 p. m. on August 19, 1959, plaintiff, accompanied by her husband and three young sons, was driving her automobile along No. 2 Highway — a blacktop road — about miles east of Har-risonville. She was driving with the lights on and dimmed them as she met another car. Almost immediately after meeting this other automobile her car struck a red hog owned by and in possession of defendant, who resided nearby. The hog was killed. Investigation by defendant and his tenant Mr. Gillespie, revealed that two other hogs of his were on the highway at the time. Defendant and Mr. Gillespie examined the fences and gates surrounding the 8 or 9 acre lot where his hogs were kept. They found the fences with woven wire tightly stapled to solid posts. The gates were all closed although one gate had not been pulled up snugly at the bottom, leaving an opening of three or four inches. Defendant said the hogs by rooting and pushing might have gone through this opening.

Section 270.010, V.A.M.S. known as the Missouri Stock Law provides in part:

“It shall be unlawful for the owner of any animal or animals of the species of horse, mule, ass, cattle, swine, sheep or goat, in this state to permit the same to run at large outside the enclosure of the owner of such stock, and if any of the species of domestic animals aforesaid be found running at large, outside the enclosure of the owner, * * * (the owner) shall ‘also pay all persons damaged by reason of such animals running at large, the actual damages sustained by him or them; provided, that said owner shall not be responsible for any accident on a public road or highway if he establishes the fact that the said animal or animals were outside the enclosure through no fault or negligence of the owner, i *

There are two cases (Anderson v. Glascock, Mo.App., 271 S.W.2d 243 and King v. Furry, Mo.App., 317 S.W.2d 690), both by the St. Louis Court of Appeals, applying the Missouri Stock Law in its present form. When the basis of an action is statutory, as here, the precise language of the statute is controlling and cases from other jurisdictions involving differently worded statutes are not really helpful. In the Anderson case, supra, a judgment for plaintiff was set aside because of plaintiff’s main Instruction P-2. This instruction told the jury that if they found “defendant’s horse was loose and unrestrained on the highway” then they should find defendant to be negligent in not restraining the animal and that if plaintiff’s injuries were a “direct and proximate result of such negligence” the verdict should be for plaintiff. The instruction was ruled improper because it made no reference to the word “permit” as used in the statute, and authorized a finding for plaintiff based on the mere presence of the horse loose and unrestrained upon the highway and utterly ignored the final provision of the statute to the effect that “[the] owner shall not be responsible * * * if he establishes the fact that said animals were outside the enclosure through no fault or negligence of the owner”.

In the case of King v. Furry, supra, the court, among other' rulings, approved plaintiff’s Instruction No. 1 and defendant’s Instruction No. 3 as proper in a Stock Law case. These instructions corrected the errors contained in those given in the Anderson case.

Consideration of the statute and these two cases leads to the following con-clusipns: The essential elements of plaintiff’s case include proof as to the time and place of the accident, ownership or possession of the animal by defendant, that the Stock Law was in effect and proof of damage. Such proof and finding thereof entitles plaintiff to the verdict unless there is a further finding that the animal was outside the enclosure through no fault or negligence of the owner. In such cases it is the law and proper to instruct the jury that they may infer negligence on the part of defendant from the fact that the animal was on the highway at the time of the collision but such inference is not conclusive. It is further correct to charge the jury that the burden of proof by the greater weight of the credible evidence is upon defendant to prove that said animal was on the highway without any fault or negligence upon the part of the defendant or his agent.

We now examine and apply these conclusions as to Instructions 3 and 4, which plaintiff says are improper. In connection therewith we shall also consider Instruction No. 1, which is plaintiff’s verdict-directing instruction. The texts of all three are set out.

“Instruction No. 1.

“The Court instructs the jury that if you find and believe from the evidence that on or about the 19th day of August, 1959, Stella Ann Keefer, was driving an automobile in an easterly direction on Highway No. 2 in Cass County, Missouri and that at the time and place mentioned in evidence plaintiff’s automobile collided with a hog on Highway No. 2, and if you further find and believe from the evidence that on said date the provisions described and known in the evidence as the Missouri Stock Law was in full force and effect' in Cass County, Missouri; if you so find, and if you further find that the hog with which Plaintiff’s automobile collided was the property of or in possession of the defendant, if you so find, then you are further instructed that by the provisions known as the Missouri Stock Law is meant that provision of the Missouri .Stock Law that required swine, among other animals, ‘be restrained in an. enclosure of the owner “or possessor and not permitted to run at large and onto the Highway in question, and that one violating the Missouri Stock Law ‘shall also pay all persons damaged by reason of such animals running at large, the actual damage sustained by her or them,’ unless you find that said hog was outside the enclosure through no fault or negligence of the owner or possessor. You are further instructed that you are entitled to infer negligence on the part of the defendant from the fact that the hog was on the highway at the time of the collision mentioned in evidence, but that such inference is not conclusive. You are further instructed that the burden of proof by the greater weight of the credible evidence is upon the defendant to prove that said hog was present on the highway without any fault or negligence on the part of the defendant or his agents, and unless you so find your verdict will be in favor of plaintiff and against the defendant”.
“Instruction No. 3.
“The Court instructs the jury that although you may infer that Mr. Hartzler was negligent from the fact that his hog was out of the pasture and on the highway as described in evidence you are not required to so infer that he was negligent and you are further instructed that it is your duty to consider and decide first whether or not under all the facts and circumstances in evidence and all the reasonable inferences deducible therefrom the hog mentioned in evidence was outside Mr. Hartzler’s pasture through no fault or negligence on Mr. Hartz-ler’s part and until you have determined that issue you should not consider to what extent, if any, plaintiff' Stella Keefer was injured as a result of colliding with the hog mentioned in evidence.
“Neither passion, prejudice nor sympathy should influence you in any manner- i'n deciding this case for -it 'is your 1 sworn duty to decide it according to the evidence and the instructions of the Court”.'
“Instruction No. 4.
“The Court instructs the jury that under the law Mr. Hartzler is not liable and plaintiff Stella Keefer is not entitled to recover merely because Mr. Hartzler’s hog escaped from the pasture described in evidence and got out on Highway 2 at the time and place mentioned in evidence and you are further instructed that Mr. Hartzler is not responsible for the accident mentioned in evidence if you find and believe from the evidence that he has established as fact that the hog mentioned in evidence was outside said pasture through no fault or negligence on the part of Mr. Hartzler and if you so find then your can not find the issues in favor of plaintiff Stella Keefer and your verdict must be in favor of defendant Clarence Hartzler”.

It is our opinion that Instruction No. 1 is a good, complete and proper instruction. It requires a jury finding upon all essential factual elements. It rightly informs the jury that they “are entitled to infer negligence on the part of defendant from the fact that the hog was on the highway at the time of the collision but that such inference is not conclusive”. It also correctly informs the jury “that the burden of proof by the greater weight of the credible evidence is upon the defendant to prove that said hog was present upon the highway without any faiilt or negligence on the part of defendant or his agents”. (Italics supplied).

On appeal plaintiff says Instruction 4 fails to hypothesize facts upon which the jury could find defendant free from negligence. This instruction told the jury that defendant would not be liable if “he has established as fact that the hog mentioned in evidence was outside said, pasture through no fault or negligence on the part of Mr. Hartzler”. Such is the law. It placed the burden of proof on defendant and the defense phrase “fault or negligence” is not only the wording of the statute but exactly the same phrase used in plaintiff’s Instruction No. 1. The instruction was proper.

Plaintiff complains that Instruction No. 3 is argumentative and misdirects the jury that plaintiff’s prima facie case was insufficient evidence upon which to base defendant’s liability. The instruction told the jury that although they may infer defendant’s negligence from the fact his hog was out of the pasture and on the highway, they were not required to so infer but to consider all of the evidence and they should first determine if the hog was on the highway through no fault or negligence of defendant before considering if Mrs. Keefer was injured. , Again it seems to us that this instruction accords with plaintiff’s Instruction No. 1 and correctly presents the law and the issues.

Instructions 1, 3 and 4 are basically quite like the instructions approved in King v. Furry, supra. We hold that the giving of Instructions 3 and 4 was proper and did not constitute reversible error. It seems to us that during the trial, counsel for both parties and the Court not only had a correct understanding of the law applicable to the case, but were in full and complete agreement. The evidence was properly presented, the instructions were complete and the jury passed upon the issues submitted. The appellant makes no additional assignments.

Therefore, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGH-MER, C., is adopted as the opinion of the Court. All concur.


author: BROADDUS, Justice.

text:
    STATE of Missouri ex rel. Burl Wilson ATKINS, (Relator), Respondent, v. MISSOURI STATE BOARD OF ACCOUNTANCY, (Respondent), Appellant.
    No. 23353.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld, Asst. Atty. Gen., for appellant.
    Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, O. J. Taylor, Springfield, for respondent.
   BROADDUS, Justice.

Respondent, Burl Wilson Atkins, is a certified public accountant and holds certified public accountant’s certificate No. 1134 issued by appellant, Missouri State Board of Accountancy. On March 4, 1960, respondent was convicted in the United States District Court of the crime of willfully and knowingly failing to make federal income tax returns to the Director of Internal Revenue for the calendar years 1956 and 1957, in violation of 26 U.S.C. § 7203.

On September 3, 1960, respondent was served with a notice of hearing to he held on October 6, 1960, to determine whether certified public accountant’s certificate No. 1134 should be suspended or revoked for cause set forth in Section 326.130, subd. 2 RSMo 1959, V.A.M.S. on the ground that respondent was convicted of a misdemean- or, an essential element of which is dishonesty or fraud, alleged to be the offense aforesaid.

On September 22, 1960, respondent filed his petition in the Circuit Court of Cole County for a writ of prohibition to prevent the Missouri State Board of Accountancy from proceeding further in said matter pursuant to said notice of hearing. A preliminary writ of prohibition was.granted on said date, requiring said Board to desist and refrain from conducting or attempting to conduct a hearing pursuant to said notice.

Respondent’s petition for the writ, which was made part thereof, alleged that in hearing such charge said Board was exercising a judicial function without jurisdiction and in excess of its jurisdiction.

The petition alleged that the Board has jurisdiction to conduct the hearing only if the offense of which respondent was convicted is a crime, an essential element of which is dishonesty or fraud, and that as a matter of law neither dishonesty nor fraud is an essential element of the crime referred to in Section 7203, Title 26 U.S.C., of which respondent was convicted.

The petition alleged that for the foregoing reason, the notice of hearing affirmatively shows on its face the Missouri State Board of Accountancy has no jurisdiction or is acting in excess of its jurisdiction in conducting the hearing on the ground aforesaid, and that there is no way to amend said notice of hearing in order to confer said jurisdiction on said Board.

Appellant, Missouri State Board of Accountancy, filed a motion to dismiss and to dissolve the preliminary writ of prohibition. Said motion alleged that the Board has jurisdiction to proceed with the hearing to determine whether respondent has been convicted of the crime alleged, and stated that a conviction of -the crime of willfully and knowingly failing to file an income tax return in violation of Section 7203, Title 26 U.S.C., constitutes a conviction of a crime, an essential element of which is dishonesty or fraud within the meaning of Section 326.130, subd. 1(2) RSMo V.A. M.S.

On October 17, 1960, the cause was submitted on the pleadings, and the court thereupon entered its order and judgment making the preliminary writ of prohibition permanent. . After, an unavailing motion for new trial this appeal was taken by the Missouri State Board of Accountancy.

The authority of the Missouri State Board of Accountancy to revoke or suspend respondent’s certificate is limited in this case by the provisions of Section 326.-130 RSMo 1959, V.A.M.S. The Board may so revoke or suspend only if it can show that the respondent has been convicted “ * * * of any crime, an essential element of which is dishonesty or fraud.” It is a generally accepted doctrine that, where a statute authorizes the revocation of a license for causes enumerated, such license cannot be revoked upon any ground other than one of the causes specified. Robinson v. Missouri Real Estate Commission, 280 S.W.2d 138, (Mo.App.); State ex rel. Sbordy v. Rowlett, 138 Fla. 330, 190 So. 59, 62, 123 A.L.R. 769; In re Weathers, 159 Fla. 390, 31 So.2d 543, 544.

.[2] The above statute is as simple as are the facts in this case. Dishonesty or fraud must be an essential element of the crime. In other words, the question is not whether this particular respondent was in, fact guilty of a dishonest or fraudulent intent; rather, the question is whether the offense with which he was charged and to which he pleaded guilty is one necessitating proof of fraud or dishonesty — -that is, alzvays requiring that fraud or dishonesty be present as an element of the offense.

The federal misdemeanor statute in question provides:

“Any person required under this title to * * * make a return * * * who willfully fails to * * * make such return * * * at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor * * (26 U.S.C. § 7203).

Since Section 7203 is a United States Statute, we must accept the interpretation given it by the United States courts. Urie v. Thompson, 1949, 337 U.S. 163, 174, 69 S.Ct. 1018, 93 L.Ed. 1282, 1295. “It is scarcely necessary to say that decisions of the federal courts, particularly of the United States Supreme Court, are controlling upon this court in cases based upon alleged violations of federal statutes.” Illinois State Trust Co. v. Missouri Pac. R. Co., 1928, 319 Mo. 608, 5 S.W.2d 368, 370 (2). In the construction of a Federal Statute it has long been the rule in Missouri that “ * * * the state courts will follow and are bound by the decisions of the federal courts.” McElvain v. St. Louis & S. F. R. Co., 151 Mo.App. 126, 1910, 131 S.W. 736, 743(12).

The requirements of Section 7203 are perfectly apparent; the only proof necessary to a conviction is that the person in question: (1) is required to make a return before a certain time; and (2) he wilfully fails to make such a return within the prescribed time.

The requirement of the Federal Statutes concerning filing of individual income tax returns are contained in 26 U.S.C. § 6012. A return is required of every individual having, for a taxable year, a gross income of $600 or more; and such return must be filed on or before the 15th day of the fourth month following the close of the taxable year 26 U.S.C. § 6072.

Significantly, the necessity of filing a return is not determined by the amount of taxable income; rather, the gross income governs. For example, a taxpayer, may have received, during a particular year, a gross income of more than $600, and yet have actually sustained a taxable loss for the year. Nevertheless, he would be required, under the federal statutes, to file a return. It is even possible that the taxpayer may not owe any tax; he may, in fact, be entitled to a refund. And still in either event, he would be required to file a return before the prescribed date. ■

Fraud or dishonesty has' nothing to -do with "this particular offense. Under the circumstances enumerated in the preceding paragraph, the taxpayer is guilty of the misdemeanor in question if he fails to file his return on time and if such action is wilful. These — and these alone — are the requirements of the offense.

That these are the only elements of the offense is spelled out in Haskell v. United States, 10 Cir., 1957, 241 F.2d 790, 794(12), where it is said:

“Considered in that manner, the instructions made it crystal clear to the jury that the elements of the offense laid in the indictment which must be proved beyond a reasonable doubt were that the defendant was required to file an income tax return for the year 1951; that he did not file a return on or before September 15, 1952; and that his failure to file such a return was purposeful, deliberate and intentional and not accidental, inadvertent, or negligent.”

The court did not say that the failure to file such a return must involve fraud. The language employed by the court “ * * * purposeful, deliberate and intentional * * * ” is merely another way of saying that the failure must be wilful.

The term “wilful”, as used in this federal misdemeanor statute does not include fraud as a part of its meaning. In Abdul v. United States, 9 Cir., 1958, 254 F.2d 292, the defendant was charged with both felonies and misdemeanors under the Internal Revenue Laws; the misdemeanors were under the same statute here involved. The court held that the word “wilful” has a different meaning when used in felony statutes than when employed in misdemeanor statutes. The court said at page 293(1):

“The meaning of the word ‘wilfully’ as used in the tax statutes has been considered in a number of cases and seems to have come to rest in this Circuit, as well as others, as meaning with respect to felonies, ‘with a bad purpose or evil motive.’ (citing cases.) But the meaning of the word ‘wil-fully’ as used in the statute defining a misdemeanor has not as yet reached such repose. The trial court in the instant case thought the word ‘wilful’ as used in defining a misdemeanor required a different interpretation, as evidenced by the instructions given after the jury had returned a second time asking clarification of the instructions.”

The court went on to explain that the trial court had first instructed the jury that the word “wilful" meant “ * * * with a bad purpose * * * ” but later clarified this by telling the jury that, as to the misdemeanor counts, the word wilful: “ * * * means with a bad purpose or without grounds for believing that one’s act is lawful or without reasonable cause, or capriciously or with a careless disregard whether one has the right so to act * * * ”. (Italics ours.)

As to the felony counts the trial court had said the word meant: “ * * * with knowledge of one’s obligation to pay the taxes due and with intent to defraud the Government of that tax by any affirmative conduct. Further with respect to these counts, wilfulness implies bad faith and an evil motive.”

The appellate court approved the instructions, saying, at page 294: “We conclude that the word ‘wilful’ as used in the misdemeanor statutes means something less when applied to a failure to make a return than as applied to a felony non-payment of a tax.”

The Supreme Court of the United States has also pointed out in Spies v. United States, 1943, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418, 422, that the word wilful is one of many meanings: “It may well mean something more as applied to nonpayment of the tax than when applied to failure to malee a return. Mere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of wilfullness.”

In the enforcement of the Internal Revenue Laws, the federal courts have expressly recognized that the failure to file an income tax return as required by those laws does not necessarily involve fraud. Under 26 U.S.C. § 6653(b) it is provided that “If any part of any underpayment * * * of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment.” This is commonly known as the civil fraud penalty. In Jones v. Commissioner of Internal Revenue, 5 Cir. 1958, 259 F.2d 300, the appellate court was called upon to review a finding by the Tax Court that a part of the deficiency for certain years was due to fraud with intent to evade tax. The court, in discussing the Tax Court’s findings of fact, stated, at page 302:

“These findings, which alone represent the basis of the Tax Court’s conclusion of fraud, show that in truth the only specific fact which is used as the basis for this conclusion was the deliberate failure to file the two tax returns which were prepared for him by his accountaitt. There is no indication that the Tax Court disbelieved any of the statements of Jones or found his testimony subject to discount because it conflicted with that of other witnesses. Under the decisions of the Supreme Court and of this Court, we do not think that such deliberate failure is enough. (Italics ours.)

“In fact, the statutory scheme shows that Congress intended to deal with willful failure to file and with fraud in different ways. It defined the two separate offenses ■in separate statutes, Footnote one supra. In the landmark Spies case the Supreme Court pointed out the difference in clear terms. And we have been doing the same thing over the years. Beginning with Har-grove and coming down through Veino, we have consistently held that ‘fraud implies bad faith, intentional wrongdoing and a sinister motive. It is never imputed or presumed and the court should not sustain findings of fraud upon circumstances which at the most create only suspicion.’ ” After quoting the Tax Court’s statements concerning the failure to file the returns, the court said, at page 303:

“The quoted statement shows merely that the taxpayer deliberately held the documents and did not file them. He had been told by his auditors that this would subject him to penalty under Section 291(a). That the information would have been helpful to the Government does not tend to sustain the charge that the taxpayer failed to file the prepared returns with a fraudulent intent, and no support for such a conclusion is found in the authorities." (Italics ours.)

The Tax Court had further found that the reason the taxpayer had failed to file his tax returns was that he “ * * * did not want to use his money or have it taken to pay the taxes * * * because he chose to use his money instead for other purposes, including the expansion of his business. * * * He made payments of $32,086.00 in 1948 and 1949 on a home which he was purchasing.” In reviewing this finding the appellate court said:

“The Commissioner, in his presentation before us, dwells upon these findings as if they convicted petitioners of patent perfidy and intentional wrongdoing. Leaving aside the fact that the house had been purchased before the first tax return was due and that the payments had to be made to avoid its sacrifice, the argument is utterly lacking in force that a citizen can be convicted of intentional wrongdoing with specific intent to evade his taxes because he elects 'to use his money, much of it borrowed, for pressing business needs * * * ‘giving the squeaking wheel the grease,’ as petitioner expresses it, i. e., to save his business and his home in preference to turning it over to the Government even though he knows he owes taxes.”

The court then reversed the Tax Court’s judgment insofar as it included a 50 percent fraud penalty. If fraud or dishonesty is a necessary element of the offense of failing to file an income tax return, as appellant contends here on this present appeal, then certainly the Tax Court’s decision in the Jones case would not have been reversed. But it was reversed and reversed squarely on the ground that wilful failure to file a timely return “does not tend to sustain the charge that the taxpayer failed to file the prepared returns with a fraudulent intent.”

In the case of In re Hallinan, 43 Cal.2d 243, 272 P.2d 768, 774, the Supreme Court of California, after reviewing many federal decisions, announced that: “The foregoing cases establish that fraud is not an essential element of the offense proscribed by section 145(b).”

The federal authorities leave no uncertainty about' this issue; the offense of which this petitioner was convicted does not necessarily, and in all cases, involve fraud. As a matter of fact, the United States Supreme Court has said that even the attempt to evade income taxes (a felony under 26 U.S.'C. § 7201) does not neces: sarily involve fraud. United States v. Scharton, 1952, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917.

But since the Missouri State Board of Accountancy is also authorized to revoke respondent’s license if the offense of which he was convicted involves dishonesty, we must consider whether the failure to file a federal income tax return, within the time prescribed by law, necessarily involves dishonesty. '

Appellant in attempting to show that the offense involves dishonesty has relied upon various- dictionary definitions of this term. For instance in its brief appellant relies upon- the definition contained in Black’s Law Dictionary (4th- Edition) : “Disposition to -lie, cheat,- or defraud; untrust-worthiness; lack of integrity.” Then upon Webster’s • New , International Dictionai-y (2d J£.áition).“Want qf honesty, probity or integr-Ry. in, principle;, want of fairness and straightforwardness; disposition to de-. fraud.or betray, faithlessness.-”,- .

Returning again to the simple requirements of the statute in question, how can it be said, by any line of reasoning, that dishonesty is always an element of this offense? The crime is obviously one which is malum prohibitum, not malum in se. As we have said earlier, the requirement that a return be timely filed depends upon the amount of one’s gross .income, not upon his tax liability. In Elwert v. United States, 9 Cir., 1956, 231 F.2d 928, 932 (footnote 2), the court said:

“A prosecution for wilful failure to file a return may be maintained where there is no tax due. But no prosecution for wilful attempts to evade or defeat a tax is possible unless there .is some tax due.” (Italics ours.)

The Supreme Court of the United States has also said that tax liability is immaterial under this statute (Spies v. United States, 317 U.S. 492, 63 S.Ct. 367, supra, 87 L.Ed. loc. cit. 421.) “Hence the willful failure to make a return, keep records, or. supply -information when required, is made a misdemeanor, without regard to existence of a tax liability.” (Italics ours.) As pointed out above, a taxpayer may have in fact made earlier payments by means of estimated tax returns, or may have a refund due from previous years, so that the Government in fact is indebted to him; yet, if he fails to file his tax return within the time prescribed by federal statutes, the offense involved herein has been committed. How can it be said that there is necessarily and always a disposition on such a man’s part “to lie, cheat or defraud? How can it be said that he is necessarily and always “untrustworthy and lacks integrity?” How can it be said that he is necessarily and always wanting in honesty, probity or integrity or principle or has a disposition to defraud or betray or is faithless? Dishonesty is clearly a state of mind. The only state of mind involved in the offense of failure to make a timely filing of an income tax return is the . state of mind, in which the taxpayer knows .that he should. so file. It-, occasionally occprs that a( taxpayer, because of religious and moral convictions, refuses to file the income tax return required by statute or to pay the tax properly computed thereon. Can it be said that such a person necessarily cmd always is dishonest? Of course not. And yet he wotdd be guilty of this federal misdemeanor if his gross income was as much as $600 and he failed to file a timely return.

Since the return is required to be filed within a period of three and one-half months following the close of the taxable year, the taxpayer may well know that the return is required, but, for reasons of his own, may conclude that he will postpone the filing for a period of time. Even though the taxpayer in question may have every intention of filing the return and at that time paying the entire tax due together with interest, it must be admitted that, under this statute, he is guilty of the offense proscribed. But this is not to say that he is necessarily dishonest.

Appellant’s brief agrees that dishonesty is a subjective matter, saying: “Thus it is evident that dishonesty is differentiated and distinguished from honest conduct by the existence of a bad motive. When there is a bad motive or evil intent, the conduct is dishonest.”

Turning again to the federal cases on federal income tax law, a lack of honesty implies a misrepresentation as to the amount owed the Government. For obviously one cannot cheat the Government out of what is owed if in fact nothing is owed. It is, therefore, obvious that dishonesty is not necessarily and always present in an offense which is in no way made to depend upon tax liability.

If, as the Supreme Court said in the Spies case, the misdemeanor may be committed without regard to tax liability, it is evident that “bad motive”, which appellant equates with “dishonesty”, is in fact not a necessary element of the offense proscribed in the misdemeanor section.

Appellant contends that it acts in an administrative capacity in granting or revoking certificates, and is therefore not amenable to prohibition. The contention lacks merit. The use of the writ of prohibition is not confined to courts alleged to' be exceeding their jurisdiction. It is frequently used to prevent boards, commissions, and other public bodies exercising quasi judicial powers from the doing of unauthorized acts or acts in excess of the authority vested in them. State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609, 611; State ex rel. United States Fidelity & Guaranty Co. v. Harty, 276 Mo. 583, 208 S.W. 835.

In the present instance the authority of the Missouri Board of Accountancy is sharply defined by the statutes. As applied to this proceeding, those statutes (Section 326.130, subd. 1(2) RSMo 1959, V.A.M.S.) limit the jurisdiction of the Board to a determination of whether the respondent was convicted of a misdemeanor “ * * * an essential element of which is dishonesty or fraud.” Surely such a determination can only be a judicial determination; surely, also, a proceeding in which such a determination is to be made is a judicial proceeding, to which the writ of prohibition is applicable

Appellant also urges that prohibition is not here applicable because the statutes confer a right of appeal. But our courts have held the right of appeal must be an adequate remedy before its availability will preclude resort to prohibition. State ex rel. Templeton v. Seehorn (Mo.App.) 208 S.W.2d 789, 794. (Citing cases.)

In the present case, it must be remembered that the Missouri State Board of Accountancy was dealing with one of the respondent’s most precious possessions— his right to practice his profession; and, in fact, the Board was seeking to take away his very means of livelihood, for without the right to practice as a Certified Public Accountant respondent will have no means •of employment. To take away this right, even temporarily, could only result in irreparable injury to respondent.

True, the respondent has the right of appeal; but, pending such an appeal he might well lose his right to practice. For the statute does not provide for a mandatory stay of the Board’s order pending appeal; instead, .it is provided in Section 326.130, subd. 3 that the Board may, in its discretion, permit the “accused” to practice pending the appeal. Such a right of appeal is not an adequate remedy, and, under the particular circumstances evident in this ■case, the trial court was clearly justified in granting the writ of prohibition to prevent the Board’s exceeding its jurisdiction.

The judgment is affirmed. All concur.