author: DONNELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Carl Alda MARTIN, Defendant-Appellant.
    No. 51231.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, Martin M. Lipsitz, Special Asst. Atty. Gen., St. Louis, for respondent.
    Graham & Hawkins, by David Brydon, Jefferson City, for appellant.
   DONNELLY, Judge.

Defendant, Carl Martin, was convicted of escaping from a State institution, in which he was lawfully confined, by a jury in the Circuit Court of Cole County, Missouri, and his punishment was assessed at-two years in the custody of the State Department of Corrections. V.A.M.S., § 557.-351 (Added Laws 1959, H.B. No. 10, § 1, as amended Laws 1961, p. 331, § 1). Following rendition of judgment and imposition of sentence in accordance with the verdict, an appeal was perfected to this Court.

On September 8, 1964, defendant was arraigned, was given an opportunity to exercise his right to be represented by counsel, defendant requested the trial court to appoint counsel in his defense, and counsel was appointed.

On September 17, 1964, defendant filed a Motion for Change of Venue from Cole County, Missouri, which was denied. Defendant, on October 7, 1964, entered a plea of not guilty.

The trial began on October 22, 1964, in the Circuit Court of Cole County, Missouri. Prior to trial, defendant asked that his court-appointed counsel withdraw from the case and that defendant be given counsel of his own choosing. A hearing was held in the trial court and his request was denied. Also, prior to trial, and with leave of court, the Information was amended so as to name defendant as “Carl Martin” rather than “Carl Alda Martin.” The trial then proceeded before a jury.

Harry Lauf, clerk and custodian of the records of the Department of Corrections, identified copy of Sentence and Judgment on Plea of Guilty, Without Counsel, in the Circuit Court of Boone County, Missouri. This document, dated March S, 1964, showed one Carl Martin entered a plea of guilty to uttering a forged instrument and was sentenced to two years in an institution to be designated by the Department of Corrections of the State of Missouri. Lauf also identified records showing defendant was received at the Missouri State Penitentiary on April 2, 1964, and subsequently was assigned to Algoa Intermediate Reformatory on May 5, 1964. Lauf stated that he had no records in his custody showing that the Boone County judgment had been set aside.

Cecil Riley, an officer at Algoa, testified that about 7 p. m. the evening of July 6, 1964, he was stationed on a watch tower inside a fence which extended around all of the buildings at Algoa. He saw three inmates outside the fence and observed them running east through a cornfield. Two of them ran across the railroad tracks and one stopped down by the railroad tracks. Riley sounded the alarm. Later, two of the inmates were captured on a hill beyond the railroad tracks and the other inmate was captured along the railroad tracks. The railroad is not on Algoa property. Riley identified the defendant in the courtroom as one of the inmates captured thereafter and returned to custody.

Calvin Beard, assistant superintendent at Algoa, testified that he captured one inmate after the inmate walked down the tracks. This inmate came out of the weeds and surrendered. Beard identified defendant as the man he captured. Defendant was apprehended a half-mile off the Algoa property. Beard, in company with one Lloyd Tatlock and one Herbert Rueff, employees at Algoa, returned defendant to Riley at the Algoa Administration Building. Tatlock and Rueff corroborated Beard’s testimony and both stated that they knew defendant.

Defendant has filed no brief here. However, we will review all assignments of error properly preserved in his Motion for a New Trial and essential portions of the record. Rules 27.20 and 28.02 V.A.M.R.; State v. Deutschmann, Mo.Sup., 392 S.W.2d 279.

First, defendant alleges that he was denied his constitutional rights under the 1945 Missouri Constitution and under the Fifth Amendment to the Constitution of the United States because he had no hearing before a grand jury and was tried under an information rather than under an indictment. In State v. Cooper, Mo.Sup., 344 S.W.2d 72, 74, 75, this Court stated: “The contention that the portion of the Fifth Amendment of the Federal Constitution pleaded by defendant in bar of prosecution of him by the State of Missouri by an information instead of indictment for the offense of robbery is without merit. Article I, § 17, of the 1945 Constitution of Missouri, V.A.M.S. (in substance § 12, Article II, of the Constitution of 1875, as amended in 1900) provides: ‘That no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies, * * The Fifth Amendment of the Constitution of the United States is a limitation only upon the powers granted to the government of the United States and constitutes no such limitation upon the governments of the several states. The provision of our State Constitution authorizing criminal prosecution of persons duly charged under the laws and in the courts of this State with felony by either indictment or information is not viola-tive of the due process and equal protection of the laws clauses of the Federal Constitution, Amend. 14. Hurtado v. People of State of California, 110 U.S. 516, 538, 4 S.Ct. 114 [292], 28 L.Ed. 232; State v. Jones, 168 Mo. 398, 68 S.W. 566, 567; Lyle v. Eidson, 8 Cir., 182 F.2d 344, 345, certiorari denied 340 U.S. 837, 71 S.Ct. 22, 95 L.Ed. 614.” There is no merit in defendant’s allegation of error.

Defendant next attacks the form and substance of the Information, The Information reads as follows: “INFORMATION James T. Riley, Prosecuting Attorney within and for Cole County, Missouri, upon his oath of office informs the Court and charges as follows:

“That Carl Martin was duly convicted in the Circuit Court of Boone County, Missouri, of the crime of uttering a forged instrument, an offense punishable by imprisonment in the penitentiary, and in accordance with said conviction, Carl Martin was, on the 5th day of March, 1964, duly sentenced by said Court to imprisonment for a term of two years, and in accordance with said judgment and sentence, he was duly imprisoned in the Missouri State Penitentiary.
“That thereafter, on the 6th day of July, 1964, at Cole County, Missouri, the defendant, Carl Martin, was lawfully confined in the Intermediate Reformatory, an institution under the control of the State Department of Corrections of the State of Missouri, and the said Carl Martin did unlawfully and feloniously escape therefrom and go at large, against the peace and dignity of the State.
“/s/ James T. Riley James T. Riley Prosecuting Attorney
“Comes now James T. Riley, Prosecuting Attorney within and for Cole County, Missouri, and upon his oath deposes and says that all the facts and matters set forth and contained in the foregoing Information are true according to his best information, knowledge and belief.
“/s/ James T. Riley James T. Riley Prosecuting Attorney
“Subscribed and sworn to before me this 7th day of August, 1964.
“/s/ Guy M. Sone Clerk of the Circuit Court
(SEAL)
“WITNESSES FOR STATE
Harry Lauf
Ray French
Lloyd Tatlock
Cecil Riley
H. H. Rueff
Calvin Beard”

Defendant contends that the Information is insufficient in that it fails to show upon its face that it was signed by the Prosecuting Attorney. See Section 545.240 RSMo 1959 and Rule 24.16 V.A. M.R. Defendant’s contention is not supported by the record.

Defendant next contends that the Information fails to show upon its face that the Prosecuting Attorney had before him a copy of an indictment or a copy of an information from Boone County, Missouri, showing that this defendant was legally and lawfully charged with the crime of uttering a forged instrument or that the defendant was legally and lawfully confined under the control of the Department of Corree-tions under said charge. Defendant’s contention is without merit.

The next contention made by defendant is that the Information fails to show upon its face that it was legally and lawfully made upon the oath of the Prosecuting Attorney so as to charge defendant with the crime of escape or to sustain the State’s charge of escape or to show that this defendant was illegally or unlawfully at large from State property. Defendant also contends that the Court erred in failing to quash the Information alleging that the Information is so vague and indefinite that it does not sufficiently inform the defendant of the charge against him.

The record shows that the Information was made on the oath of the Prosecuting Attorney and fully informed the defendant of the offense of which he stood charged. V.A.M.S. § 557.351. (Added Laws 1959, H.B. No. 10, § 1, as amended Laws 1961, P- 331, § 1.)

Defendant’s next contention is that the trial court erred in refusing to grant defendant a change of venue from Cole County, Missouri. Defendant alleged in his Motion for Change of Venue that “ * * * the minds of the inhabitants of Cole County are so prejudiced against inmates of the Missouri Department of Corrections charged with escape in general and this defendant in particular that he cannot obtain a fair trial here.” Five residents of Cole County made affidavits alleging that the matters set forth in said motion were true. We recognize that the five affidavits, had they stated facts and not mere conclusions, would have been sufficient to cause the Motion for Change of Venue to be sustained. However, in this instance, the affidavits were not sufficient. Section 545.490 RSMo 1959 V.A.M.S.; Rule 30.04 V.A.M.R.; State v. Bradford, 314 Mo. 684, 285 S.W. 496, and State v. Hancock, 320 Mo. 254, 7 S.W.2d 275, 276, 277. The trial court did not err in this regard.

Defendant next contends that the trial court erred in admitting the copy of the Boone County conviction because there was no connection shown between defendant and the conviction. This evidence was necessary to show that defendant was lawfully confined before he escaped. State v. Whalen, 98 Mo. 222, 11 S.W. 576; State v. King, Mo.Sup., 372 S.W.2d 857. The copy of the Sentence and Judgment or Plea of Guilty, Without Counsel, in the Circuit Court of Boone County, Missouri, revealed that one Carl Martin was the person sentenced. In proceedings under the Plabitual Criminal Act, we have held the identity of names is prima facie evidence of identity and sufficient under said Act. State v. Reed, Mo.Sup., 298 S.W.2d 426, 428; State v. Collins, Mo.Sup., 394 S.W.2d 368, and State v. Madden, Mo.Sup., 394 S.W.2d 317, both filed October 11, 1965. Further, the trial court examined a photograph exhibited from the Department of Corrections, observed defendant in the courtroom, and expressly identified the defendant with the photograph. The trial court did not err in this regard.

Defendant next contends that the trial court erred in allowing the State to amend its information a few moments before trial to name as defendant “Carl Martin” rather than “Carl Alda Martin.” The record shows that the Information was amended before the jury was sworn and that the amendment did not operate to charge an offense different from that charged in the original Information. There is no merit in defendant’s contention. Section 545.300 RSMo 1959 V.A.M.S.

Defendant next contends that the trial court erred in not allowing defendant to dismiss his court-appointed counsel in order for defendant to procure other counsel. The record shows that defendant asked for his court-appointed counsel to withdraw from the case and that he be permitted to have counsel of his own choosing. His request was refused. Article I, § 18(a), Const, of Missouri, 1945, provides that “in criminal prosecutions the accused shall have the right to appear and defend, in person and hy counsel; * * See also Section 545.820 RSMo 1959 V.A.M.S.; Rule 29.01, V.A.M.R.; State v. Glenn, Mo.Sup., 317 S.W.2d 403. However, a trial court does not err in failing to appoint a lawyer of accused’s own choosing. State v. Whitaker, Mo.Sup., 312 S.W.2d 34; State v. Sublett et al., 318 Mo. 1142, 4 S.W.2d 463. Here, the trial court examined the court-appointed counsel as to his qualifications and found them sufficient. We have examined the entire record and defendant was given a fair trial with able counsel. Defendant’s allegation of error in this regard is without merit.

Defendant’s next contention is that the trial court erred in allowing into evidence the testimony of witnesses Harry Lauf and Cecil Riley and in not directing a verdict for defendant on the grounds that the State failed to make a submissible case. Harry Lauf identified the record of prior conviction and of defendant’s lawful confinement prior to escape. We have concluded that there was a connection between the person referred to in these records and this defendant. Cecil Riley witnessed the escape and identified the defendant as one of the inmates captured after the escape and returned to custody. In 30A C.J.S. Escape § 26 c., p. 903, it is stated: “As a general rule, in a prosecution for an escape or a related offense, every material allegation of the offense must be established beyond a reasonable doubt.” There is sufficient evidence that defendant, sentenced to the State Department of Corrections, escaped from a State institution in which he was lawfully confined. Section 557.351, supra. The jury found defendant guilty beyond a reasonable doubt. The State made a submissible case against defendant.

Defendant next contends that the court erred in giving an instruction on circumstantial evidence in that there was insufficient circumstantial evidence as a matter of law to sustain a conviction on a charge of escape. An instruction in substantially the same form was approved in State v. Jordan, Mo.Sup., 235 S.W.2d 379, 383. We have held the evidence sufficient to sustain the conviction. The trial court would have erred had the instruction not been given.

We have examined the record as required by Rule 28.02 V.A.M.R. The verdict found the defendant guilty “in the manner and form as charged in the information”, and did not specify the offense. This form of verdict, while not encouraged, has been held sufficient where, as here, the instructions fairly submitted to the jury the facts charged in the information. State v. Hendrix, Mo.Sup., 310 S.W.2d 852, 857. The record shows that defendant was heard on his Motion for New Trial, appeared personally for judgment and sentence, was informed by the court of the verdict of the jury, and was asked whether he had any legal cause to show why judgment and sentence should not be pronounced against him.

We find no reversible error. The judgment is affirmed.


source: Caselaw Access Project

author: HYDE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. John Samuel RIMA, Appellant.
    No. 51037.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Thomas J. O’Brien, Special Asst. Atty. Gen., Kansas City, for respondent.
    Kenneth K. Simon, Robert G. Duncan, Simon & Pierce, Kansas City, for appellant.
   HYDE, Presiding Judge.

Defendant was convicted of robbery, first degree, and sentenced to eight years’ imprisonment in accordance with the verdict of the jury. Secs. 560.120 and 560.135. (Statutory references are to RSMo and V.A.M.S.) Defendant has appealed and alleges error in refusing to sustain his motion for acquittal at the close of the evidence.

The robbery was at the Kansas City Star Credit Union, a few minutes after Brink’s made a delivery of money, and $34,350.00 was taken by four masked men about 11:45 A.M., July 22, 1963. The masked men ran to a pink and white 1962 Buick in the street. Witness Larkins, driving north on Grand Avenue, saw the four masked men run to and get in the Buick and he stopped at its left rear as it pulled out from the curb. The driver of the Buick, who was not masked, looked back for two or three seconds toward Larkins, who was within 15 or 16 feet from him, and then drove north. Lar-kins identified defendant at the trial as the driver of the get-away car. Larkins followed the Buick to a parking lot on 15th Street at Main and then returned to the Star Building and contacted the police. Another witness, Hernandez, followed the Buick to the parking lot at 15th and Main and saw the men get out of the Buick, some going to a 1960 white Oldsmobile and some to an early 1950 red Plymouth. He could not identify any of the men. The license plate on the Buick was identified as one used on another car by a man who had previously been seen with defendant. Other material facts will be hereinafter stated.

The basis of defendant’s claim for a directed verdict is his contention that the credible evidence was unsubstantial and insufficient to sustain a conviction and that there was reasonable doubt of his guilt as a matter of law. His argument is that Lar-kins had only a 20-200 vision without glasses (it does not appear he was without glasses) ; that he looked at the driver of the get-away car for only two or three seconds; that when his deposition was taken he identified two photographs as pictures of defendant which were pictures of defendant’s twin brother; and that the testimony of Larkins and Hernandez was in conflict as to which of their cars was directly behind the get-away car while it was driven from the Star Building to 15th and Main. (Hernandez said the closest he got to the Buick was about half a block.) Defendant also points out the testimony of his ten alibi witnesses who said they saw him or were with him at the City Market from 10:30 A.M. to 12:20 P.M. Defendant says an appellate court should reverse where the evidence clearly does not warrant conviction, citing State v. Mahan, 138 Mo. 112, 39 S.W. 465 (a rape case reversed and remanded for trial errors) ; or where the testimony is irreconcilable with human experience, citing State v. Sechrist, 226 Mo. 574, 126 S.W. 400 (a rape case in which conviction was affirmed); or where the evidence is so weak that the necessary inference is that the verdict is the result of passion, prejudice or partiality, citing State v. Caviness, 326 Mo. 992, 33 S.W.2d 940 (in which conviction was affirmed) ; and State v. Hancock, 340 Mo. 918, 104 S.W.2d 241 (in which the circumstantial evidence was held sufficient but reversed and remanded because of an erroneous instruction.) Defendant further argues the court’s duty to pass on credibility to determine whether the testimony is sufficient to permit belief of guilt beyond a reasonable doubt, to grant relief where denial would shock the sense of justice and to see that no conviction shall stand which is the result of prejudice of the jury, citing State v. Dupepe, Mo.Sup., 241 S.W.2d 4 (reversed and remanded because of prosecuting attorney’s improper argument); State v. Sarten, Mo.Sup., 344 S.W.2d 1 (holding jury case made but reversed and remanded because of improper cross-examination) ; State v. Spraggins, Mo.Sup., 368 S.W.2d 407 (holding evidence of identification sufficient and conviction affirmed); and State v. Webb, 254 Mo. 414, 162 S.W. 622 (reversed and remanded for misconduct of state’s counsel).

In this case, the essential fact issue was identification and Larkins’ identification of defendant as the driver was positive both at the police station on the day of the robbery and at the trial. As stated in State v. Reece, Mo.Sup., 324 S.W.2d 656, 659: “It was within the province of the jury to disbelieve defendant and the several witnesses by whom he sought to establish an alibi. The testimony upon which the jury based its ■ verdict was of probative force, convincing in character and given by a reputable citizen.” Alibi witnesses can be mistaken as to dates and the jury could reasonably have found that those in this case did not satisfactorily fix the particular date. Moreover, the state had testimony of two officers who arrested defendant a few hours after the robbery that he gave them a different account of his whereabouts between 10:30 and noon on that day from that given by his alibi witnesses. Our conclusion is that it was not error to refuse defendant’s request for a directed verdict.

Defendant also claims error in denying his motion for mistrial because of witness Larkins’ statement regarding seeing defendant in “mug-books” at the police station. This testimony of Larkins was as follows:

“Q. (By Mr. Mason) All right. Did you have occasion to observe him again, after you saw him there in the Buick Automobile ?
“A. Yes.
“Q. When was it that you next saw him?
“A. In mug books at the police station.
“Q. And did you thereafter see him in person?
“A. Yes.
“Q. When was that?
“A. That evening in the police line-up.
“Q. Were you able to identify him there in the line-up?
“A. Yes.
“Q. As being the driver of the Buick?
“A. Yes.”

The answer concerning defendant’s picture was not responsive to the question asked but there was no motion to strike or request for action of any kind at the time. However, the next morning defendant filed a written motion for mistrial and when it was overruled asked the court to instruct the jury “to disregard any testimony concerning this photo identification.” The court refused, stating the basis of its ruling to be that there was no objection of any kind or character at the time the testimony was given; and under the circumstances we consider this refusal to take any action at that time to be a proper exercise of the court’s discretion. Reopening the matter at that time could have been harmful rather than beneficial to defendant. The trial court was in a better position than we are to determine whether there was any prejudicial effect from the answer of this witness.

However, defendant relies on State v. Baldwin, 317 Mo. 759, 297 S.W. 10, which involved testimony identifying a photograph of the defendant therein by the prosecuting witness, and we further consider defendant’s claim because we find the Baldwin case unsound on this issue. The theory of the Baldwin case was that testimony of a witness concerning his identification of a photograph of the defendant therein was inadmissible because it was considered as a prior consistent statement for corroboration before any impeachment of the witness. (297 S.W. l. c. 15, 16.) The Baldwin case overlooked the fact that the testimony therein of the identification of the defendant’s picture was the direct testimony of the witness himself and not the testimony of another as to a prior statement or identification such witness had made. In State v. Buschman, 325 Mo. 553, 29 S.W.2d 688, 70 A.L.R. 904, this court pointed out that the authorities cited in the Baldwin case were cases in which the evidence rejected was testimony of third parties concerning a prior statement of a witness and not the testimony of the witness himself concerning identification. We said (29 S.W.2d l. c. 691): “We have thus at some length discussed the Baldwin Case and the authorities therein cited and followed in order to show that the question there considered and decided was the competency vel non of testimony offered as original evidence to prove in corroboration of an unimpeached witness that such witness had previously made declarations consistent with his testimony, or by acts equivalent to such declarations had designated or pointed out the defendant as the guilty person. It did not decide that testimony given by an identifying witness on the witness stand to the effect that such witness had on prior occasions, either before or after the commission of the offense for which defendant was on trial, seen the defendant and recognized or known him to be the person seen by the witness at the commission of the offense.” Therefore, the Buschman case held that a witness could so testify. See also State v. Nolan, Mo.Sup., 171 S.W.2d 653; State v. DePoortere, Mo.Sup., 303 S.W.2d 920. We see no reason why a witness likewise could not testify he recognized a photograph as that of the defendant “recognized or known to him to be the person seen by the witness at the commission of the offense.” We find that view thus stated in 1 Wharton’s Criminal Evidence 363, Sec. 182: “The identification which the witness makes may be at a time when the witness sees the person again and identifies him, as in a police line-up or in court, or it may be made from photographs, as an identification of police record photographs.” See also 2 Wigmore, Evidence, 3rd Ed., Sec. 660, State v. Lanegan, 192 Or. 691, 236 P.2d 438, 441. There was another reason given for the reversal in State v. Baldwin, which was because testimony of the police photographer showed that the photograph identified was from the Bertillon room in which pictures of persons convicted of a felony were kept. See Sec. 222.-050. As to that this court (297 S.W. l. c. 19) said: “So, under the law (presumably known by all citizens) the defendant’s picture was in the Bertillon room of the city of St. Louis, wherein it had no place, unless, under section 4140 (RS 1919), he had been convicted of a felony and his conviction had not been reversed. This made this evidence highly prejudicial.” However, insofar as State v. Baldwin holds that direct testimony of a witness that he recognized a photograph of a defendant as a person he saw, at the commission of the offense involved, was inadmissible it should no longer be followed. Therefore, we hold the statement of Larkins concerning recognition of a picture of defendant was not a basis for claiming prejudicial error.

Defendant’s final claim of error is that Instruction No. 6 was “confusing and misleading, erroneously and unlawfully tending to impose upon appellant the burden of proving his abili beyond a reasonable doubt.” This instruction was as follows: “The Court instructs the jury -that the defendant has interposed for a defense what is known as an alibi; that is, that even if the crime was committed, he at the time of the commission thereof, was at another and different place than that in which such offense was committed, and therefore was not and could not have been the person who committed the same. Now, if the evidence leaves in your mind a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission thereof, you will find him not guilty.” Defendant concedes that we recently passed on this same instruction in State v. Bryant, Mo.Sup., 375 S.W.2d 107, 109, and we upheld it against the same complaints the defendant now makes, holding the claim of it being confusing, as to what evidence the jury should consider, to be insubstantial. As to the further claim “that it places the burden of proof of alibi upon defendant, whereas the burden of proving that defendant ‘was there and committed the robbery’ was upon the state,” we there ruled: “This same criticism, leveled at an identical alibi instruction, was rejected by this court less than a year ago in State v. Washington, supra [364 S.W.2d 572], for the reasons stated in two cases cited in that opinion, 364 S.W.2d l. c. 577, namely, State v. Williams, 309 Mo. 155, 274 S.W. 427, 435 [12], and State v. Prunty, 276 Mo. 359, 208 S.W. 91, 95[5], viz., that where this instruction is given in connection with a proper instruction on reasonable doubt and presumption of innocence, this gives the defendant the full benefit of the defense of alibi and does not place the burden of proof upon him.” Furthermore, Instruction No. 2 in this case required the jury to find beyond a reasonable doubt that defendant participated in the robbery. We find no prejudicial error in any of the complaints made concerning the trial of this case.

We have also examined the record as required by our Rules 28.02 and 28.08, V.A. M.R., and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

All concur.


author: STOCKARD, Commissioner.

text:
    Jack D. MERRIMAN, Respondent, v. Frank CATON, Appellant, and J. B. DILLINGHAM, Third-Party Defendant-Respondent.
    No. 51342.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.

      Pettijohn & Eiser, Oregon, for respondent and third-party respondent.
    Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.
   STOCKARD, Commissioner.

This is an appeal by defendant Frank Catón from a summary judgment entered on plaintiff’s petition for money due and owing, and on Caton’s counterclaim and cross-claim in quantum meruit for labor performed.

For ten years beginning in 1952 Catón was the tenant of Jack D. Merriman and J. B. Dillingham under an oral agreement that he should pay as rental one half of the crops produced on the land. This tenancy was terminated by Merriman and Dilling-ham effective March 1, 1962. In June of that year Merriman brought suit against Catón to recover the sum of $2,400, the balance due on an amount alleged to have been loaned to Catón for the purchase of farm equipment. After Catón filed his answer he brought Dillingham in as a third-party defendant, and then by his counterclaim against Merriman and cross-claim against Dillingham he sought $24,000 in quantum meruit for work and labor. The allegation was as follows: “That [Merriman] and [Dillingham] were co-partners in the ownership of certain farm property known and described as * * *; that * * * since August 1952 and for many years thereafter [Catón] was continuously a tenant of [Mer-riman] and .[Dillingham] on said premises under an oral agreement which provided, inter alia, that [Catón] should pay as rental one half of the crops produced upon said land; that at the special instance and request of [Merriman] and [Dillingham] * * * Catón, in addition, worked and labored in the clearing of timber, refuse, and waste materials from the surface of said land continuously during all of the years of said tenancy from August 1952 to March 1962; that [Catón] complied with ail the terms of said agreement by him to be met but that [Merriman] and [Dillingham] nevertheless terminated the tenancy of [Catón] effective the first day of March 1962, and otherwise breached the terms of said oral agreement between the parties with respect to payment to * * * Ca-tón for clearing certain land to the great damage to [Catón] in these, to-wit: * It was then alleged that Catón had cleared 800 acres of land, and that the reasonable value of such work to Merriman and Dill-ingham was $30 per acre or $24,000.

Merriman and Dillingham did not seek to have the above pleading made more definite and certain, and they do not challenge its sufficiency to state a claim. In' fact, in their first point in their brief to this court they admit that Catón was proceeding in quantum meruit. In their responsive pleading they admitted that “since August 1952, and for many years thereafter,” Catón was a tenant on their land under an oral agreement pursuant to which Catón was to receive one half of the crops while a tenant, and they then denied “that at their instance or request defendant Catón did any additional work or labor in the clearing of timber, refuse, and waste material from the surface of said land or that they agreed to pay the defendant in any other manner than one-half of the crops produced upon said land.” They also pleaded an estoppel and accord and satisfaction.

At what appears to have been a conference between counsel before the trial court so that matters not in dispute could be submitted by agreement, counsel for Catón admitted that Catón owed Merriman the $2,400 referred to in plaintiff’s petition. Counsel for Merriman and Dillingham admitted that Catón had not been paid anything for clearing the land “as such.” Counsel for Catón also admitted that during the tenancy he had received $55,682.48 as “Commodity loans through the ASC office” for his share of the crops grown on the land. Based on the pleadings and these admissions the trial court then entered summary judgment in favor of Merriman and against Catón in the amount of $2,400 with interest from December 1, 1961, and in favor of Merriman and Dillingham on Ca-ton’s counterclaim and cross-claim. From the discussion between the trial court and counsel it appears that the theory of the trial court was that if one half of the crops received by Catón as his share under the oral agreement pertaining to his tenancy of the land had a value in excess of the amount sought by Catón, he was not as a matter of law entitled to recover anything. In reaching this conclusion the trial court relied on Gipson v. Fisher Bros. Co., Mo.App., 204 S.W.2d 101, and Stewart v. Droste, Mo.App., 294 S.W.2d 600. We agree that these cases lend support to that result, but only when there is no agreement for work and labor separate and apart from the agreement pertaining to the tenancy and the sharing of the crops. In fact, Gipson v. Fisher Bros. Co. expressly held, and we agree with that holding, that quantum meruit was available to a tenant to recover for work and labor done pursuant to a “special and independent agreement” separate from the agreement pertaining to tenancy and sharing of the crops when that special agreement was not enforceable because of the statute of frauds and the landlord terminated the tenancy. See also 37 C.J.S. Frauds, Statute of § 259.

The essential issue in this case is whether Catón pleaded an action for quantum meruit on the theory that he and Merriman and Dillingham entered into an agreement pertaining to the clearing of the land separate and apart from their agreement pertaining to the tenancy and division of crops. In determining whether a pleading states a claim upon which relief may be granted the averments therein are to be given a liberal construction, and are to be accorded their reasonable and fair intendment. A pleading is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Myers v. City of Palmyra, Mo., 355 S.W.2d 17, 18, 92 A.L.R.2d 791; Zuber v. Clarkson Construction Company, 363 Mo. 352, 251 S.W.2d 52. It must be admitted that the counterclaim and cross-claim is not a model of precise pleading, but when we view it in the light of the above principles it stated an action for quantum meruit for work and labor in clearing land under an agreement separate and apart from the oral agreement of tenancy and division of crops, which was unenforceable by reason of the statute of frauds and which was terminated by Merriman and Dillingham.

We turn now to the authority of the trial court to enter summary judgment under these circumstances. Summary judgment is authorized where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law,” but, “In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Civil Rule 74.04(c) and (h), V.A.M.R. See also Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 309. In this case Catón would be entitled to recover in quantum meruit if there was in fact an agreement pertaining to the clearing of the land separate and apart from the agreement pertaining to the tenancy and division of crops. Catón has pleaded such an agreement, and Merriman and Dilling-ham in their pleading have denied its existence. This issue of fact could not be resolved by summary judgment on the pleadings and the admissions made by counsel in this case. Entry of summary judgment was not authorized.

The judgment is reversed and the cause remanded for further proceedings.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Leslie SWINDLER, Appellant, v. W. F. GROSS and W. L. Gross, d/b/a W. F. Gross and Son and Butler Manufacturing Company, a Corporation, Respondents.
    No. 51446.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

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

Plaintiff Leslie Swindler brought suit for $50,000 damages against W. F. Gross, W. L. Gross and Butler Manufacturing Company. The cause of action arose out of injuries sustained by plaintiff while employed by the Grosses on their farm in the operation of a feed grinder which the Grosses had purchased from Butler.

At the trial a motion of defendant Butler for a directed verdict at the close of plaintiff’s opening statement was sustained. The matter proceeded to trial against the Grosses alone and the jury returned a verdict against them in favor of plaintiff for $12,0Q0.

Subsequent to the verdict plaintiff filed a motion for new trial against Butler and the Grosses filed a motion for new trial on the judgment entered on the verdict in favor of. plaintiff against them. The plaintiff’s motion as to Butler was overruled and the motion of the Grosses was sustained and a new trial ordered. Thereupon, plaintiff filed a notice of appeal to the Kansas City Court of Appeals from the order awarding the Grosses a new trial and from the judgment entered in favor of Butler.

After notice of appeal had been filed, plaintiff withdrew his appeal against the Grosses. The plaintiff’s contention that Butler’s motion for a directed verdict at the close of his opening statement should not have been sustained was briefed by the parties in the Kansas City Court of Appeals. However, on motion of respondent the cause was transferred to this court, on the theory that the amount in controversy is $50,000, the amount sought in plaintiff’s petition.

At the outset of our consideration of the appeal we are confronted with the question, although it has not been raised by the parties, of whether there is a final appealable judgment in the cause. A judgment to be final must dispose of all parties and all issues. As the matter now stands, there is no disposition of the cause as to the Grosses. Their motion for new trial having been sustained and the appeal from the order sustaining their motion having been withdrawn, the cause as to them is in the same position as it was prior to the trial. There not being presently a judgment disposing of all issues and all parties, there is no final judgment and this appeal is premature. Wicker v. Knox Glass Associates, Inc., 362 Mo. 614, 242 S.W.2d 566, 571 [7-9].

Therefore, the appeal must be dismissed'.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Russell D. MILLS, Sr., and Norma J. Mills, His Wife, Appellants, v. W. H. KEASLER and Rebecca A. Keasler, His Wife, and Felix Hampton, Jr., Respondents.
    No. 50988.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Edwin Rader, Herbert Lasky, Clayton, for appellants.
    Riddle, O’Herin & Newberry, Malden, for respondent, Felix Hampton, Jr.
   HOUSER, Commissioner.

This is a suit in equity to rescind a contract for the exchange of real estate and for $75,000 actual and $750,000 punitive damages for breach of contract and fraud. The court found the issues for the defendants and the plaintiffs have appealed.

Respondents have filed a motion to dismiss the appeal for violation of the rules governing the preparation of appellate briefs. Respondents attack the statement of facts as improper and nothing but a résumé and find fault with the statement of the points and authorities and- appellants’ failure to develop them, and appellants’ failure to key the argument to the transcript with page references. Notwithstanding the brief is subject to most of respondents’ criticisms we overrule the motion to dismiss. The brief has been sufficient to enable respondents to identify the issues presented and to answer appellants’ contentions, and is sufficient to enable the court with reasonable certainty and effort to ascertain what the issues on appeal are and appellants’ contentions with reference thereto.

As a suit in equity this case is to be reviewed de novo on the record made in the trial court, Smith v. Mitchell, Mo.Sup., 394 S.W.2d 308 (No. 51002 decided September, 1965), and we make our own findings of fact, draw our own conclusions of law, and render or direct the rendition of such judgment as equity and justice may require, giving proper deference to the findings and conclusions of the trial judge in the case of conflicting testimony.

These are the pertinent facts as we find them: Plaintiffs are Mr. and Mrs. Russell D. Mills, Jr., former owners of a motel at Eldon, Missouri. Defendants are Mr. and Mrs. W. H. Keasler, former owners of a 2,000 acre tract of land in Jackson County, Illinois, and Felix Hampton, Jr., a real estate broker. Desiring to sell the motel the Mills listed it with Hampton. Keasler had previously agreed to give Hampton a finder’s fee if he sold the farm. Hampton got in touch with Keasler and interested him in a trade. Both properties were heavily encumbered. In September, 1961 when these negotiations began and on October 4, 1961 when the exchange contract was executed there was a first deed of trust on the 2,000 acres held by Connecticut General Life Insurance Company to secure a debt which then amounted to $88,000 and there was a second deed of trust on the 2,000 acres held by Loyd Bentsen, on which there was a balance due of $79,000. Keasler had a contract to sell 800 acres of the 2,000 acres to an eastern syndicate. Hampton tried to interest Mills in the remaining 1,200 acres. While not interested in a deal of that size Mills expressed interest in a trade when Keasler agreed to divide the 1,200 acres into two tracts of 560 and 640 acres. On September 27, 1961, after Keasler had inspected the motel and after Mills had viewed the 640 acre tract, the parties had a discussion in which Keasler told Mills that he had 2,-000 acres encumbered by mortgages; that he had a contract for the sale of 800 acres and would have to secure new loans, take off the mortgages against the 2,000 acres “and cut it down to the difference” so as to “cut the mortgage to not exceed eighty-two five against the 640” and Mills would give Keasler his note back for the difference between the value of the 640 acres and the motel. Keasler testified that prior to the signing of any contract he discussed with Mills the amount of the encumbrances or mortgages against the land in Illinois and who owned or held the mortgages, giving their names. Mills, on the contrary, testified that he was informed by Keasler and Hampton and understood that there was one debt of $88,000 against the 640 acres, a loan made by Connecticut General Life Insurance Company, and that that was the only deed of trust against the place. Mills denied knowledge prior to the execution of the exchange contract of a deed of trust in favor of Loyd Bentsen. On this direct conflict in the testimony we defer to the finding of the trial chancellor, who saw and heard the witnesses and had the best opportunity to judge of their credibility, and find that Mills was fully informed as to the existence of both deeds of trust and was given the names of the holders of the notes prior to the execution of the exchange contract. After further discussion the parties came to an oral understanding for an exchange of the properties on these terms: Keasler was to get the motel subject to a first deed of trust for $36,000, a second deed of trust for $133,600 and a third deed of trust for $2,750. Mills was to get the 640 acres subject to encumbrances not to exceed $82,500. It was understood that the 2,000 acre farm was to be split up into three separate tracts: the 800 acre tract sold to the syndicate, the 640 acre tract, and the remaining 560 acres. The encumbrances on the 2,000 acre farm were to be removed from the whole tract, the deeds of trust changed and new loans negotiated. Keasler’s equity in the 640 acres over and above the $82,500 was agreed to be worth $36,650 more than Mills’ equity in the motel. Mills was to give Keasler a note for the difference, secured by a deed of trust on the 640 acres. Keasler was to lease the 640 acres for 2 years and pay as rent the installments of principal and interest to come due on notes in the amount of $82,500 and $36,650, and pay the insurance and taxes on the land.

The parties went to the office of Jack Edwards, a lawyer in Sikeston, to reduce the agreement to writing. Keasler wanted possession of the motel the following Monday, October 1. Mills objected, preferring to wait until October 22 for closing in order to allow time for the examination of the title. Hampton assured Mills that this was not necessary and could be “worked out”; that Mills had nothing to worry about; that Hampton knew Keasler and had had previous dealings with him, and knew him to be a very wealthy man; that Mills should let Hampton handle it; that he was Mills’ broker and Mills was paying him to handle it. Mills then agreed to enter into the contract without a prior examination of the abstract of title. The lawyer had his secretary prepare a rough draft of a contract containing the provisions orally agreed upon and among other things the following: An agreement by the parties each to convey to the other titles good in fact and merchantable of record by general warranty deed free and clear of encumbrances, except as noted in the contract; to furnish each other with a complete abstract of title within 20 days showing well vested merchantable title, with 10 days allowed for examination and a reasonable time to correct defects found. Following the lease provisions there was a provision reserving to Mills the right to sell the 640 acres during the term of the lease, in which event the Keaslers agreed to surrender possession on December 31 of the year in which the sale was made. Possession of the motel was to be delivered upon execution of the contract. Deeds were to be delivered on December 15, 1961.

The matter of real estate commissions was discussed by Mills, Keasler and Hampton at that meeting. It was agreed that Mills was to pay Hampton a commission of $13,250 as follows: $3,250 cash and a $10,000 note secured by a deed of trust on the 640 acres. Hampton and Keasler made it known to Mills that Keasler owed Hampton a $5,000 commission or finder’s fee for Hampton’s services in connection with this exchange of properties. Keasler did not have the money to pay the $5,000. At first the giving of a note by Keasler to Hampton was considered. Then it was decided to deduct $5,000 from the amount of the note from Mills to Keasler and add $5,000 to the note from Mills to Hampton. Mills consented to this arrangement, whereupon the figure $36,650 in the contract was changed to $31,650. At Mr. Edwards’ office each of the parties signed a warranty deed form in blank. The blanks were not filled in at the time because the legal descriptions of the lands were not immediately available. On the same day, September 27, Keasler delivered ten abstracts of title to the 640 acres to Mills, who took them the next day to Eldon and Tuscumbia, looking for a lawyer to examine them. He went to the offices of three lawyers, all of whom were out of town on the weekend. Mills at that time wanted to ascertain the condition of the title to his own satisfaction and was not at that time depending on Hampton to find out about the title. Mills thought that it would take 2 or 3 weeks to have the title examined. Before signing the exchange contract Mrs. Mills questioned Hampton about running the abstract of title. Hampton said there was no point in doing that because he knew Keasler and had done business with him and that Hampton could “handle it.” The Mills trusted Hampton because they had known him for many years. He had previously transacted business for the Mills. The Mills knew that under the exchange contract they had until December IS to have the abstracts examined. The Mills themselves made no further efforts to have the abstracts examined because after they executed the exchange contract, notes and deeds of trust, Hampton took from them the papers and abstracts of title and told the Mills to go ahead and make their planned move to St. Louis, assuring them that he would handle it. Relying upon Hampton’s promises the Mills left in Hampton’s hands the matter of accomplishing the division of the 2,000 acres into three tracts, the rearrangement of the deeds of trust, getting an abstract “of their own” on the 640 acres and the examination of the abstracts of title, “figuring on him getting it done.”

The exchange contract was dated October 4, 1961. The two warranty deeds were dated and the acknowledgments bore that same date. The Mills signed and delivered a $15,000 note to Hampton, signed and delivered a note to Keasler in the amount of $30,650, and gave Hampton a check for $3,250. A lease of the 640 acres had been prepared for Keasler to sign but he refused to sign it, claiming possession under the provisions of the exchange contract relating to leasing. The copy of the exchange contract produced by the Mills shows the interlineation of the following words, among others, in the provision relating to the lease: “at agreed rental of Fourteen Thousand Three Hundred Fifty Dollars each year” and “If the above payments of principal, interest, insurance and taxes do not amount to yearly rental sum, difference shall be paid in cash.” We do not find that these interlineations were in the contract when it was signed by the Keaslers, or that the Keaslers agreed to these changes; we do find that these interlineations were- made after the Keaslers signed and without their consent.

In an effort to “split the land and get new loans” on the 560 and 640 acre tracts by December 15, the date set in the contract for the closing (by delivery of deeds), Keas-ler applied to a mortgage company for a new loan on the property. Keasler could not get this accomplished as to the 640 acre tract because Mills’ deed had been recorded on October 6, 1961, instead of waiting to record it until December 15, the contractual date for the delivery of the deeds. With the title to the 640 acres out of Keasler and in Mills the mortgagee Bentsen would not accept a new deed of trust signed by Keasler and would not accept Mills’ paper. During October, November and December, 1961 Keasler had several meetings with the mortgagees or their representatives (at some of which meetings Mills was present) in which arrangements were attempted to be made for the reshuffling of the mortgages by Mills reconveying to Keasler, placing the deed in escrow while making arrangements with the insurance company and the Bentsens, and then Keasler reconvey-ing to Mills subject to the new deeds of trust. Mills, however, did not agree to this and did not put his deed in escrow. At Mills’ request, however, Hampton released his fourth deed of trust and placed it in escrow to assist in straightening out the title. In April or May, 1962 Mills and Keasler flew to Mission, Texas, home of Loyd Bentsen, in an unsuccessful effort to secure Bentsen’s agreement to a proposed method of clearing up the title. Keasler filed his deed to the motel for record on December 21, 1961. Keasler obtained possession of the 640 acre tract and leased it to one Devore. Although Mills made an effort to obtain possession of the 640 acres in 1962 he was unable to do so, and was threatened by Devore if he was seen on the land. Mills has never received one cent from Keasler or anyone else for the possession and use of the land. In 1962 the 640 acres and the “other farm” yielded $7,-000 rent but the Mills received none of that. Some of the $7,000 was received “through the soil bank.” On January 1,1962 the first payment on the $30,650 note came due. Keasler had assigned it to one Albrecht, who made a demand upon Mills for payment. Mills refused, stating that the note was not due; that Keasler had guaranteed that the note would be paid out of the crops and cancelled. From October, 1961 through June, 1962 Mills pressed Hampton to get the thing straightened out or to get a contract for the sale of the 640 acres, under an option he gave Hampton on October 3, 1961 to sell the land. In March or April, 1962 Mills “soured on the arrangement” and gave Keasler until June 5 to straighten things out. Several new mechanics’ liens were filed against the property. In May or June, 1962 Mills called Hampton on the telephone and tried to “get his motel back.” Mills complained that Hampton “wouldn’t do anything.” In June, 1962 Mills was still after Hampton, trying to get him to find a buyer for the place. In September, 1962 Hampton told Mills that he was going to take over the 640 acres under the note he held. In that same month, September, 1962, Keasler paid the mortgages on the Illinois land down to $82,500, paid a mechanic’s lien in the sum of $2,700 and paid the taxes up to date. Mills filed suit on December 10, 1962. The holder of the second mortgage on the motel foreclosed on February 8, 1963, and there is some evidence that at the time of trial foreclosure proceedings on the 640 acre farm had been instituted by Bentsen. It was stated in oral argument and not denied that through foreclosures the Keaslers have lost the motel and the Mills have lost the 640 acres.

Plaintiffs’ first two points are that the court erred in not awarding damages against the Keaslers and in denying plaintiffs equitable rescission of the contract because the Keaslers violated and breached the terms of the exchange contract by deeding and exchanging the 640 acres subject to encumbrances in excess of $82,500. The evidence shows that on October 4, 1961, the date the exchange contract was signed, and on December 15, 1961, the date fixed by the contract for the delivery of the deeds, the encumbrances exceeded $82,500. They totalled $167,000. Plaintiffs claim that the breach of the agreement that encumbrances were not to exceed $82,500 on December 15, 1961 entitles them to declare the contract at an end and to recover the following damages which they claim resulted from the breach: the return of the $3,250 paid the real estate broker as a commission; the cancellation of the $31,650 note given the Keaslers; the cancellation of the $15,000 note given Hampton, and recovery of the reasonable value of plaintiffs’ equity in the motel property.

As to the defendants Keasler: Plaintiffs are in the anomalous position of suing in one count for both rescission of the contract and damages for breach' of the contract. Of course plaintiffs may not at the same time successfully pursue both the remedy of rescission and that of an action for damages because they are inconsistent, the first resting upon a disaffirmance and the second resting upon an affirmance of the contract. 17 C.J.S. Contracts § 167, p. 940. Under the facts as we have found them plaintiffs are not entitled either to rescission of the exchange contract or to recovery of the substantial damages they seek from the Keaslers. They are entitled only to the amount, if any, due them under the provisions of the exchange contract relating to the leasing of the 640 acres to the Keaslers.

We begin with the important (and conceded) fact that the Keaslers have fully performed their agreement to convey the 640 acres with encumbrances not exceeding $82,500. Their performance of this promise, due by December 15,. 1961, was late. The encumbrances on the 640 acres were not reduced to $82,500 until September, 1962. Time, however, was not of the essence of the contract. “If time is not of the essence, mere delay in performance is not considered a material breach justifying rescission.” 17A C.J.S. Contracts § 422(1), p. 520.

Furthermore, plaintiff Mills had full knowledge at the time he executed the exchange contract that there were encumbrances on the 2,000 acres in excess of $82,-500; that it would be necessary to secure partial releases of the deeds of trust on the 640 acres or have the deeds of trust on the 2,000 acres cancelled and new ones executed on the three tracts of 560, 640 and 800 acres in such fashion that the encumbrance on the 640 acres would not exceed $82,500; that these arrangements would have to be made with the consent of the holders of the deeds of trust and that this would take time to accomplish. With this knowledge, Mills effectively contributed to Keasleris delay in performance by prematurely recording his deed to the 640 acres, or permitting it to be recorded, on October 6, 1961 instead of wáiting until December 15, the date recognized in the contract as the time for the delivery of the deeds and presumably of the closing of the contract, and by refusing to reconvey to Keasler and place his deed in escrow to facilitate the reshuffling and rearrangement of the deeds of trust. Moreover, Mills granted Keasler until June 5, 1962 to straighten things out and there is some evidence that Mills was still trying to rectify the situation after June 5. “The arm of equity, however encompassing it may be, is not equal to the remedying of wrongs of which the party claiming to have been injured has full knowledge, and absolved or waived the same by thereafter continuing in and consummating the transaction in which they are alleged to have been committed.” Stockton v. Minkin, Mo.Sup., 276 S.W. 374, 379. Having frustrated performance, contributed to the delay, and extended the time in an effort to straighten out the title Mills is in no position to complain of the delay and has no right to rescission on the ground of Keasler’s untimely performance. Mills’ conduct entitled Keasler to a reasonable time after December 15 within which to comply with the requirements of the contract, Wentzel v. Lake Lotawana Development Co., 226 Mo.App. 960, 48 S.W.2d 185, 197[19]; Motor Port v. Freeman, Mo.App., 62 S.W.2d 479, 481 [2], and under the circumstances Keasler did not take an unreasonable amount of time.

Nor are plaintiffs entitled to the substantial damages sought for breach of contract. Plaintiffs have shown no damages resulting from the failure of the Keaslers to reduce the encumbrances to $82,500 prior to September, 1962. As indicated, the delay was consented to by Mills as far into the year 1962 as June 5. Plaintiffs have not shown how or in what manner the 3 or 4 month delay beyond June 5, 1962, when Keaslers finally performed, actually prejudiced or damaged them. Under the instant facts the damages do not include the amount of the real estate commission, the Keasler note and Mills’ equity in the motel property, as the Mills claim. If there had been a total failure of consideration the Mills might have established these items as the measure of damages but there was no failure of consideration. The Mills got what they bargained for: a 640 acre tract of land subject to encumbrances of $82,500.

The only way in which it appears that the Mills may have sustained damages is in connection with the leasing arrangements. The petition counted upon an annual rental of $14,350 for two years beginning January 1, 1962 and an agreement that the $30,650 note was to serve as a set-off against the amounts reserved for rentals, but we have not found these to be the facts. We have found that Mills’ agreement was to' lease the 640 acres to Keasler in consideration of the payment by Keasler of the installments of principal and interest on the $82,500 and $31,650 notes as they came due and the payment of the insurance and taxes on the land during the continuance of the lease. There is no evidence that Keasler paid the rent thus reserved, and in all justice and fairness the cause should be remanded for a hearing on the amount if any the Keaslers owe the Mills under the lease, and the entry of an appropriate judgment on this issue.

As to the defendant Hampton: Plaintiffs’ claim for damages against Hampton, the subject of the last two points in their brief, is based upon the theory that Hampton made false and fraudulent misrepresentations to the plaintiffs, relied upon to their damage, and that Hampton acted as real estate broker for both parties to the transaction without obtaining plaintiffs’ consent thereto, thus representing adverse interests.

Plaintiffs are not entitled to recover damages against Hampton on the ground of the allegedly false and fraudulent representations that it was not necessary for the Mills to have the abstracts of title examined or “run the title” on the 640 acre farm because Keasler was a man of great wealth and had “plenty of money.” Even if this representation was made, and was false, and was relied upon by the Mills, there could be no recovery against Hampton on this basis for the reason that there is nothing to show that the Mills would have been damaged thereby. A title search would have shown encumbrances then totalling $167,000, but Mills was already apprised of this fact. He entered into the exchange contract of October 4, 1961 with all of the knowledge about the condition of title, the amount of the encumbrances and the names of the holders of the deeds of trust that a careful examination of the abstracts of title would have revealed. The Mills could not possibly have been damaged in this respect by this representation, even if it was false. Proof of substantial injury and damage is essential to recovery in an action for fraud, Lammers v. Greulich, Mo.Sup., 262 S.W.2d 861, and where no damages are sustained as a result of the fraud charged, no action for damages may be maintained. Bales v. Lamberton, Mo.Sup., 322 S.W.2d 136. “Fraudulent representations, without injury, are not actionable.” Abbott v. Miller, 226 Mo.App. 277, 41 S.W.2d 898, 900 [6].

Nor are plaintiffs entitled to recover damages against Hampton on the ground that he acted as a real estate broker not only for the Mills but also for the Keaslers, without the consent of the Mills so to do, on the basis that when a broker secretly acts for both parties in a transaction and serves two masters representing adverse interests he is liable for damages which may ensue. The powers of a court of equity are broad but they are limited to the claim for relief and issues made by the pleadings. Witte v. Cooke Tractor Co., Mo.App., 261 S.W.2d 651, and authorities cited l.c. 660. The defense of dual employment must be specially pleaded, Shepley v. Green, Mo.App., 243 S.W.2d 772, 777, but this petition does not plead constructive fraud based upon the alleged nondisclosure of the dual agency of Hampton. The issue of constructive fraud therefore has not been properly raised. Furthermore, Mills, prior to the execution of the exchange contract, had knowledge of the fact that Hampton was to receive a $5,000 finder’s fee or commission from Keasler and acquiesced in the arrangement, even to the extent of consenting to have the amount of Hampton’s fee tacked on to the amount of his note to Hampton and to have his note to Keasler reduced by the same amount. “ * * * [Wjhile any such agency requires the consent of each principal in order to legalize its dual character, yet, where the fact that the agent is representing two principals is known to each and they go forward with the transaction without objecting, their consent will be implied both as between themselves and as to such agent.” Shepley v. Green, supra, 243 S.W.2d l. c. 777.

Accordingly, we rule that plaintiffs are not entitled to rescission of the contract of October 4, 1961; that plaintiffs are not entitled to damages against defendants Keasler for delay in performance of their agreement to convey subject to encumbrances not in excess of $82,500, and that plaintiffs are not entitled to damages against defendant Hampton. To this extent the judgment of the circuit court is affirmed. We direct, however, that the cause be remanded for the purpose of conducting a hearing on the question of the liability, if any, of the Keaslers to the Mills under the agreement to lease the 640 acres, and for the entry of an appropriate judgment on that issue. The costs of this appeal are ordered divided equally and assessed accordingly.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Mills acknowledged that he consented to the addition of $5,000 to the one note and the subtraction of $5,000 from the other but Mills did not relate the $5,000 to the instant transaction. On the contrary Mills testified that Keasler and Hampton were referring to a previous deal between them involving a business transaction in Kentucky or Tennessee. This, however, was denied by Hampton who testified that Keasler did not owe him any money from a prior transaction and by Keasler, who testifed that they had never had any previous dealings with each other. On this direct conflict in the testimony involving the credibility of witnesses we defer to the trial court’s general finding for defendants, which we presume to have been favorable to them on this contested issue and conclude that the $5,000 obligation related to the instant transaction.

      . There is no accounting for the $1,000.-00 discrepancy between the amount agreed to in the contract and the actual amount of the note.


author: STORCKMAN, Judge.

text:
    Edgar WELBORN, Jr., Appellant, v. SOUTHERN EQUIPMENT COMPANY, a Corporation, and Aetna Casualty & Surety Company, a Corporation, Respondents.
    No. 51308.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1965.

      James K. Cook, Schuchat, Cook & Wer-ner, St. Louis, for appellant.
    Luke, Cunliff, Wilson, Herr & Chavaux, St. Louis, for respondents.
   STORCKMAN, Judge.

This is an action for benefits under the Workmen’s Compensation Law, Chapter 287, RSMo 1959, V.A.M.S. The referee and the Industrial Commission denied the employee’s claim and the Circuit Court of the City of St. Louis affirmed. The St. Louis Court of Appeals reversed and remanded but transferred the cause to this court on the ground that its decision was in conflict with the opinion of the Kansas City Court of Appeals in Igoe v. Slaton Block Co., Mo.App., 329 S.W.2d 39. The opinion of the St. Louis Court of Appeals is reported at 386 S.W.2d 432. The primary question involved is whether the furnishing of medical services by an employer to an employee after the one-year statute of limitation has run is a payment that revives the employee’s claim for compensation and permits it to be filed within one year thereafter.

The essential facts are that on or about July 20, 1960, the claimant and other employees were engaged in removing a cafeteria counter weighing from 200 to 40C pounds from a dolly and placing it on the factory floor. One of the employees suddenly let go of his end of the counter but the claimant held on and was pulled to one side and his back was jerked. He felt a real sharp pain in his back, like somebody was sticking him with a pin, which lasted for just an instant. Thereafter, the claimant had a pain in his back when he bent over to lift anything. On August 1, 1960, and at .intervals thereafter, the claimant was treated by Dr. Gibson, a chiropractor, for a pain in his left lower back. In March 1961, he went to Dr. Cresswell, a medical practitioner, who prescribed a special belt and sleeping on a hard board. The claimant went to Dr. Gibson and Dr. Cresswell of his own volition and personally paid them for their services.

On August 23, 1961, after the claimant’s employment was terminated, he told Mr. Muckier (described by the claimant as “the owner of Southern Equipment”) he had trouble with his back and he was sent by-Mr. Muckier to Dr. Reinick who treated him for about six weeks and then sent him to Dr. Leydig. The employer paid for the services of Dr. Reinick and Dr. Leydig. The claim for compensation was filed on September 15, 1961. Thus, the accident occurred about July 20, 1960, no compensation was paid by the employer, and no medical aid was furnished by the employer until August 23, 1961, which was more than a year after a compensable injury was found to exist.

The findings of the Industrial Commission were consistent with the referee’s award and are as follows:

“We find from all of the evidence that the employee, Edgar L. Welborn, Jr., sustained an accident on or about July 20, 1960, arising out of and in the course of his employment with the Southern Equipment Company. We further find that it became reasonably discoverable and apparent to the claimant that he had sustained a compensable injury on August 1, 1960, when he first obtained medical treatment from his personal physician, Dr. Gibson. See: Crites v. Missouri Dry Dock & Repair Co., 348 S.W.2d 621.
“The employer and insurer paid no compensation and furnished no medical treatment on account of said injury during the year next after August 1, 1960. However, a year and twenty-three days later, on August 23, 1961, the employer did send him to a doctor for treatment. This did not revive the claim. The action to toll the running of the statute must take place before the period has expired. Cf. Igoe v. Slaton Block Co., 329 S.W.2d 39. It follows that the filing of the claim for compensation on September 15, 1961, was not timely and that the claim is barred by Section 287.430, RSMo 1959.
“Compensation, therefore, must be and the same is hereby denied.
“The other points raised by the application for review become moot in view of the above.”

The employee contends that the Industrial Commission erred in holding that it became reasonably discoverable and apparent on August 1, 1960, that the claimant had sustained a compensable injury; further, the employee contends that the Commission should have fixed a date no earlier than February 1961 at which time the employee noticed a catch in his hip and sought the services of a medical doctor for the first time. He cites Crites v. Missouri Dry Dock & Repair Co., Mo.App., 348 S.W.2d 621, and Hundley v. Matthews Hinsman Co., Mo.App., 368 S.W.2d 528. The Hundley case cited has no standing in support of the contention because it was transferred to the supreme court where a decision was rendered by the court en banc contrary to the opinion of the court of appeals. See Hundley v. Matthews Hinsman Co., Mo., 379 S.W.2d 489. The supreme court held in the circumstances of the case that a compensable injury was sustained when as the result of the accident substantial injury was apparent and medical aid was required and that the statute of limitation began to run from the time compensation and medical aid was terminated even though the maximum injury and disability was not disclosed until a later date. 379 S.W.2d 489, 494 [1]. In this regard, the court quoted liberally from Wheeler v. Missouri Pacific R. Co., 328 Mo. 888, 42 S.W.2d 579, which called attention to § 42 of the original act, Laws 1927, p. 512, now § 287.470, vesting the Industrial Commission with a continuing jurisdiction to change an award, and stated: ‘The purpose of the Legislature as disclosed by the act to our minds plainly shows that it was its intention to provide that the claim should be filed within six months after the receipt of a compensable injury by the employee and, should it transpire thereafter that the injury received has developed into a more serious injury compensable in a different manner, the commission should change the award, if any, previously made.’ ” 379 S.W.2d 489, 491, Col. 2.

The Hundley case further holds that fixing the date when the existence of a com-pensable injury is reasonably discoverable is in large part a question of fact for determination by the Industrial Commission. 379 S.W.2d 489, 495. The Crites case is consistent with the holding of the supreme court in Hundley. There was substantial evidence f’rom which the Commission could find that a compensable injury was sustained on August 1, 1960. The Commission was empowered to make this finding of fact and we cannot say that it erred in so doing. Sec. 287.490, RSMo 1959, V.A.M.S.

The employee next contends that the furnishing of medical treatment by the employer beginning on August 21, 1961, was a part payment on account of the injury within the meaning of § 287.430 which had the legal effect of reviving his claim so that the filing on September 15, 1961, was timely. This court and the other appellate courts of the state have uniformly held that the furnishing of medical services by the employer to an injured employee constitutes a payment on account of injury which postpones the running of the period of limitation provided by § 287.430. McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, 1070 [4]; McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911, 914 [5]; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130, 135 [11]; Cotton v. Voss Truck Lines, Inc., Mo.App., 392 S.W.2d 428, 430 [1]; Buecker v. Roberts, Mo.App., 260 S.W.2d 325, 327 [2].

The decisions of the appellate courts of this state' have not been uniform with respect to the limitation statute in question; that is, whether it is a condition and a part of the substantive law which extinguishes the claim or right of action when the period of limitation has elapsed or whether the statute is one of repose and affects the remedy only. In Dees v. Mississippi River Fuel Corp., Mo.App., 192 S.W.2d 635, 640 [1], the St. Louis Court of Appeals held that the one-year statue of limitation in a Workmen’s Compensation case was not designed to affect merely the remedy but its legal effect was to extinguish the right itself. A little more than a year later that court in Buecker v. Roberts, Mo.App., 200 S.W.2d 529, 532 [3], without referring to the Dees case by name, reversed its stand and held the statute to be one of repose or limitation which did not extinguish the right or cause of action stating that cases to the contrary had been overruled by the supreme court in Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852. The Wentz case was certified to the supreme court by the Kansas City Court of Appeals which had held the statute to be procedural affecting the remedy only but transferred the case not only because of conflicts in the courts of appeal but also because of inconsistent decisions of the supreme court. See Wentz v. Price Candy Co., Mo.App., 168 S.W.2d 462.

Decisions of the St. Louis Court of Appeals have held that the furnishing of medical services is a payment on account of injury which not only tolls or postpones the running of the statutory period of limitation, but also has the legal effect of waiving the bar of the statute of limitation so that a claim may be filed within the period of one year after the medical services were furnished. See Parker v. St. Louis Car Co., Mo.App., 145 S.W.2d 482; Mussler v. American Car & Foundry Co., Mo.App., 149 S.W.2d 429; Buecker v. Roberts, Mo.App., 260 S.W.2d 325; and Welborn v. Southern Equipment Co., Mo.App., 386 S.W.2d 432. The decision by the Kansas City Court of Appeals in Igoe v. Slaton Block Co., Mo.App., 329 S.W.2d 39, holds to the contrary and produces a conflict which prompted the St. Louis Court of Appeals to transfer the instant appeal to this court. 386 S.W.2d at page 439.

The limitation statute involved, § 287.430, RSMo 1959, V.A.M.S., provides in part: “No proceedings for compensation * * shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account o-f the injury or death, within one year from the date of the last payment.”

Distinctions have been made where the right or cause of action is not one known at common law but is the creature of a statute which also imposes the limitation. In such cases there is a tendency, not strictly followed in this state, to hold that the bringing of the suit within the time allowed is substantive and a condition to the maintenance of the action and that the lapse of the specified period after the cause of action accrues extinguishes the right or cause of action.

On the other hand, general statutes of limitation quite uniformly are held to be statutes of repose or limitation only which do not extinguish the cause of action. Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760, 761 [1] ; City of St. Louis v. Miller, Mo.App., 155 S.W.2d 565, 567 [1]; 53 C.J.S. Limitations of Actions § lb, p. 901. We need not concern ourselves too deeply, however, with this distinction because § 287.430 directly ties the limitation of compensation claims into our general statutes of limitation by this language: “In all other respects such limitations shall be governed by the law of civil actions other than for the recovery of real property, * * Section 516.100 of the general limitation statutes relating to personal actions provides that: “Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; * * Then follows § 516.110 to § 516.140 which lists the categories of civil actions and the periods within which they may be commenced.

Taking into consideration the entire Workmen’s Compensation Law and other cognate statutes, we hold that there is no legislative intent expressed in § 287.430 to extinguish completely a Workmen’s Compensation claim if not filed within the period provided by the statute. Our conclusion is buttressed by the decision of this court in Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852, which holds § 287.430 is a statute of limitation or repose affecting the remedy only.

In the Wentz case, the employee was injured on April 26, 1941, at which time the statute required a Workmen’s Compensation claim to be filed within six months. Thus, she had until October 26, 1941, to file her claim. However, on October 10, 1941, an amendment to the limitation section became effective which extended the time for filing claims from six months to one year. The employee filed her claim on December 26, 1941, which was more than six months but less than a year after the date of injury. The ultimate question for determination was whether the amendment applied to the employee’s claim. In reaching its conclusion this court had to determine the nature of the limitation section, which is now § 287.430; that is, whether the general assembly intended the claim to be completely extinguished if it was not filed in the time specified. The rules for construing limitation statutes are stated in Wentz as follows: “The intention of the legislature should be the guide in determining whether a statute extinguishes the right or merely the remedy. The plain language of a statute must of course be heeded in its expression of the legislative intention. Yet courts should exercise restraint in declaring a construction that the very right itself is extinguished by the lapse of time unless such is the plain statutory intent. Limitation laws operating on the remedy recognize instances of excusable delay in the enforcement of rights. Such laws are now construed liberally because of the more favorable judicial attitude toward them which has grown up in recent years.” 175 S.W.2d 852, 854-855.

Noting the reference in § 287.430 to the general limitation laws, the opinion states the only reasonable meaning of the provision is that the legislature intended the section to be governed by the general limitation laws applicable to personal actions. The court then held that: “The legislature clearly intended Section 3727 [§ 287.430] to be one of limitation and repose, affecting the remedy only, and we are obliged to so regard it.” 175 S.W.2d 852, 855. Reliance was placed on Cytron v. St. Louis Transit Co., 205 Mo. 692, 104 S.W. 109, an opinion by the court en banc. The Wentz case overruled approximately 20 previous decisions of the supreme court and the various courts of appeal.

Accepting the primary holding of the Wentz case that § 287.430 does not extinguish the right of action or claim for compensation, we are faced with the further inquiry whether a payment of compensation such as the rendering of medical aid made more than one year after the injury or the last payment of compensation will have the legal effect of reviving the claim and permitting the claim to be filed with the Industrial Commission within one year thereafter. In making this determination, we must again consult the language of § 287.-430, other related statutes, and the controlling decisions of the appellate courts construing these statutes.

It should be observed that the Workmen’s Compensation Law is contractual in that it is elective by the employer and the employee and when so accepted its provisions become an integral part of the employment contract. Sec. 287.060, RSMo 1959, V.A.M.S.; State ex rel. Brewen-Clark Syrup Co. v. Missouri Workmen’s Compensation Commission, 320 Mo. 893, 8 S.W.2d 897, 899 [4]; Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852, 857 [12]. The compensation, medical aid and other benefits required by the Workmen’s Compensation Law are, therefore, in the nature of obligations or payments due under a contract. As directed by § 287.430, we consider the general statutes of limitation and the legal effect of a payment on account of a debt or other obligation.

Section 516.320 provides that in actions founded on any contract no acknowledgment or promise shall be evidence of a new or continuing contract taking any case out of the provisions of §§ 516.100 to 516.370 or deprive any party of the benefit thereof unless such acknowledgment or promise be in writing subscribed by the party chargeable. However, § 516.340 provides that nothing contained in § 516.320 “shall alter, take away or lessen the effect of a payment of any principal or interest made by any person.”

Under these general statutes of limitation, a part payment made within the prescribed statutory period before suit is brought will take a case out of the operation of the statute of limitation whether the payment was made before or after the statutory period has elapsed. Loewenstein v. Queen Ins. Co., 227 Mo. 100, 127 S.W. 72, 77; Johnson v. Johnson, 81 Mo. 331, 335; Shannon v. Austin, 67 Mo. 485, 487; Hickey v. Sigillito, Mo.App., 162 S.W.2d 638, 641-642 [7]; 54 C.J.S. Limitations of Actions § 334, p. 455. Considering all of the relevant statutes and decisions thereunder, we hold that the payment made on account of the injury in the form of medical aid furnished by the employer after the one-year period of limitation provided by § 287.-430 had elapsed revived the employee’s claim and right of action and the claim filed within one year thereafter was timely. This holding is also in keeping with § 287.800 which requires that all provisions of the Workmen’s Compensation Law shall be liberally construed with a view to the public welfare. See also Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W 2d 28, 30 [1],

As to its defense of the bar of the statute of limitations, the respondents relied primarily upon the Igoe case, the second Hundley case and Higgins v. Heine Boiler Co., 328 Mo. 493, 41 S.W.2d 565. The Higgins case held that the filing of a claim within the time prescribed by the Workmen’s Compensation Law for maintenance of the right of action was jurisdictional; however, this is one of the numerous cases overruled by Wentz v. Price Candy Company. The cases lend no support to the respondents’ position on this issue.

Igoe v. Slaton Block Co. did not determine if § 287.430 was a limitation statute “which extinguishes the right or is one of repose, that is, a true statute of limitations”, but held that under either interpretation the claim was not timely filed. 329 S.W.2d at page 45. We have held that the statute does not extinguish the right of action and that the Workmen’s Compensation claim is subject to revival. In this regard the Igoe opinion is in conflict with our present decision.

Further, the Igoe opinion held that the Mussler and Parker decisions by the St. Louis Court of Appeals were distinguishable because in “each of those cases the claimant received medical attention before expiration of the limitation time period”. 329 S.W.2d at page 45. The distinction attempted is of no legal consequence. Section 287.430 provides alternative dates for the beginning of the running of the statute of limitation depending on whether compensation has or has not been paid. If no compensation has been paid on account of the injury, the statutory period runs from the date of the injury. If compensation has been paid, the statutory period is reckoned from the date of the last payment of compensation. There is only one limitation period provided and the language of the statute does not admit of different legal consequences depending on the event that marks the beginning of the period. We are concerned with the legal effect of a payment on account of the injury and that is the same in either situation. This construction is further fortified by the terms of § 287.440 which provides another event that may mark the beginning of the statutory period which is the termination of a damage suit or Workmen’s Compensation claim filed in another state, but the provision regarding payments on account of the injury remain the same as in § 287.430. To the extent that Igoe holds otherwise, it is in conflict with our present decision.

A further defense asserted by the employer is that the claim cannot be maintained because the claimant failed to comply with § 287.420 which requires that a written notice be given the employer not later than thirty days after the accident “unless the commission shall find that there was good cause for failure to give such notice, or that the employer was not prejudiced by failure to receive such notice.” The respondents cite Brown v. Douglas Candy Co., Mo.App., 277 S.W.2d 657, which held the purpose of the notice was to give the employer a timely opportunity to investigate the facts of the alleged accident and if medical attention is required to render it promptly in order to minimize the disabilty. The court of appeals concluded the evidence was insufficient to sustain a finding that the employer had not been prejudiced by the failure to receive the statutory notice and reversed and remanded the award with directions to dismiss the claim.

In an additional opinion rendered in connection with overruling the motion for rehearing, the court of appeals in the instant case indicated a view that the employer had abandoned and waived its defense of failure to give notice, but ruled that the issue as to the giving of notice was a question of fact and held the employee had made a prima facie case of actual notice and that there had been no showing of prejudice. Since the judgment must be reversed and remanded on other grounds, it is not necessary or desirable to undertake to rule the issue on the unsatisfactory record before us. See Buecker v. Roberts, Mo.App., 200 S.W.2d 529, 533 [5].

As we read the record, however, the claimant’s testimony as to whether he reported the accident to his foreman, Mr. Schraft, or to anyone in a position of authority with the company prior to his telling Mr. Muckier on August 23, 1961, is conflicting. The court of appeals concluded the evidence was sufficient to show that the claimant had told Mr. Schraft of the accident. The opinion sought to explain the claimant’s positive statement that the first time he told anyone “at the office of the company” about the accident was on August 23, 1961, by making fhe observation that it appeared that Mr. Schraft was a foreman and not in the company office. But the transcript reveals at page 66 that the claimant testified that George Schraft was in the “factory office”. Contradictory testimony of a single witness, relied on to prove a fact, does not constitute substantial evidence in the absence of an explanation or other circumstances tending to show which of the two versions is true. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647 [6], At best the evidence does not have the clarity and undisputed quality necessary for an appellate court to rule an issue not passed on by the Commission as contemplated by § 287.420. The Commission is the sole judge of the weight of the evidence and the credibility of the witnesses. Kelsall v. Riss & Co., Mo.App., 165 S.W.2d 329, 331 [1]. See also § 287.-490, RSMo 1959, V.A.M.S.

The findings of the Commission affirmatively state that other points “raised by the application for review become moot in view of the above.” The findings “above” were the fact of the accident and injury and that the claim was not timely and was barred under § 287.430. The issue of lack of notice has not been adjudicated or precluded on the present record and the question of whether notice was given as required by § 287.420 will remain a live issue upon which the parties may adduce evidence at another hearing together with any other issues that may be properly in the case.

The opinion of the Kansas City Court of Appeals in Igoe v. Slaton Block Co., Mo.App., 329 S.W.2d 39, insofar as it conflicts with the views expressed herein, is disapproved and should no longer be followed. We have approved in part and disapproved in part the holdings of the St. Louis Court of Appeals in Welborn v. Southern Equipment Co., Mo.App., 386 S.W.2d 432. To the extent that the views in that opinion are contrary to those expressed herein, they are disapproved.

Accordingly, the judgment is reversed and the cause remanded with directions to the circuit court to remand the cause to the commission for further proceedings not inconsistent with this opinion.

All concur and STONE, Sp. J., concurs.

DONNELLY, J., not participating because not a member of the court when the cause was submitted.


text:
    Leo H. MOLL, Appellant, v. SPRINGDALE PARK, INC., a corporation, Respondent.
    No. 51291.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.

      Sherman Landau, St. Louis, for appellant.
    J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from an adverse judgment, entered pursuant to a unanimous jury verdict, in his action for damages in the amount of $65,000 allegedly resulting when he fell from a ladder leading to the “high-dive tower” at the public swimming pool of defendant. A detailed statement of the facts is not essential to rule the issues, presented on this appeal.

Plaintiff submitted his case to the jury on the negligence of defendant in permitting “grease on the right rail or handhold near the top of said ladder” when the grease-had been there for a sufficient time prior to plaintiff’s fall for the defendant, in the exercise of due care, to have discovered such condition and to have removed it or to have warned plaintiff of its presence. At the request of defendant the trial court gave Instruction 10, a cautionary instruction pertaining to “surmise, guesswork and speculation,” which, except for the first sentence, was identical, or substantially so, to the instruction approved in Landau v. St. Louis Public Service Company, Mo., 347 S.W.2d 870, 873, and McCormack v. St. Louis Public Service Company, Mo., 337 S.W.2d 918. The first sentence was as follows: “The court instructs the jury that negligence is. not in law presumed, but must be established by proof as explained in another instruction.”

Plaintiff asserts the instruction is erroneous because (1) “it improperly places upon plaintiff the burden of proving his case ‘beyond a reasonable doubt,’ ” (d) it “improperly detracts from the weight of plaintiff’s circumstantial evidence,” and (3) it “presents an unfair and prejudicial argument against the plaintiff’s cause of action.”

This point does not comply with Civil Rule 83.05(e), V.A.M.R., in that it does not set out why the instruction accomplishes any of the things asserted in the form of a conclusion. As worded, the point does not inform opposing counsel just what plaintiff’s contentions really are and what he is required to answer. See Reifsteck v. Miller, Mo., 369 S.W.2d 229; and Domijan v. Harp, Mo., 340 S.W.2d 728. However, if in a liberal exercise of discretion we should say that we are able to discover plaintiff’s contentions from the argument in his brief, none of the above contentions, as stated or as implemented by argument, were advanced at the time the instruction was given or in the motion for new trial. Plaintiff in effect admits this in his reply brief because he cites and relies on Hart v. Midkiff, Mo., 321 S.W.2d 500, wherein it was held that pursuant to Supreme Court Rule 3.23, now repealed and replaced, a general allegation of error with respect to instructions was sufficient. That rule no longer is in effect, and now in order to preserve for appellate review a challenge to an instruction, specific objections must be made either at the time of trial or in the motion for new trial. See Civil Rules 79.02 and 79.03, V.A.M.R. This was not done, and the contentions of appellant now advanced are not preserved for appellate review. Miller v. Gulf, Mobile & Ohio Railroad Company, Mo., 386 S.W.2d 97. In any event, the instruction was not erroneous. Plaintiff’s argument is directed to the use of the word “establish,” but in Morris v. E. I. Du Pont De Nemours & Co., 351 Mo. 479, 173 S.W.2d 39, 40, and Automobile Ins. Co. of Hartford v. J. C. Nichols Co., Mo.App., 309 S.W.2d 698, 700, the precise point was ruled adversely to plaintiff’s contention. In addition, the phrase used in Instruction 10 is that “negligence * * * must be established by proof as explained in another instruction,” and there is no challenge to the other instruction.

Plaintiff’s second point is that the “court erred in sustaining defendant’s ' objection that plaintiff’s physical impairment was ‘speculative and conjectural,’ and in denying plaintiff’s counsel the right to comment to the jury on plaintiff’s damages.”

Again, this point is insufficient, Civil Rule 83.05(e), V.A.M.R., and there is no mention, direct or inferential, in the motion for new trial pertaining to the first portion of the point. As to the second part, plaintiff made no reference to the amount of damages in his opening argument to the jury, and defendant did not argue the issue. In plaintiff’s closing argument he attempted to argue the amount of damages the jury should return and the court sustained defendant’s objection thereto. In this situation we doubt that plaintiff is entitled to complain, but in any event, the verdict on the issue of liability was for the defendant. The jury never reached the issue of damages, and any error pertaining to argument as to damages could not have been prejudicial. Merritt v. Mantony, Mo., 353 S.W.2d 768; Nash v. Plaza Electric, Inc., Mo., 363 S.W.2d 637. This principle applies equally to the first part of the point because it also pertains only to the issues of damages.

Plaintiff’s third and last point is that the trial court “erred in failing to grant a new trial to plaintiff for the misconduct of defendant’s counsel in defying and disregarding the court’s rulings by injecting into the case the false and synthetic issue of selection of plaintiff’s physician after the court had twice ruled squarely against the admission of such issue.” Aside from the insufficiency of the point, we find from the argument in plaintiff’s brief that he has reference to two objections which he made and which were sustained, and to a subsequent question asked of plaintiff as to whether his attorney arranged for him to see Dr. Luebbert, but to which no objection was made. Plaintiff’s answer was that, "My attorney did not, sir.” We fail to see how plaintiff was or could have been prejudiced. Plaintiff makes reference in the argument portion of his brief to a comment made in oral argument, but that also was not objected to. In addition, we note that all of this pertains to the issue of damages, at least it does not pertain to the issue of liability, and the jury never reached the place where it properly could consider damages. We find no error prejudicial to plaintiff.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.