author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. George B. SHAW, Appellant.
    No. 48839.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.
    Grace S. Day, St. Joseph, for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

Defendant, George B. Shaw, has appealed from a sentence of imprisonment in the State Penitentiary for a term of two years imposed in conformity with the verdict of a jury finding him guilty of the offense of forgery and felonious alteration of a certain check issued to defendant by Julian Bulla for the principal sum of $60 and thereafter by defendant feloniously so altered as to purport to have been issued for the principal sum of $604. A brief statement of the material evidence adduced in behalf of the State will suffice for determination of the errors assigned in appellant’s brief.

On Saturday, June 18, 1960, defendant called at Harrison Asbury’s home in King City, Gentry County, Missouri. Representing himself as a “termite extinguisher”, he inquired of Mr. Asbury if he desired any work of that nature done. Advised in the negative by Mr. Asbury, defendant, followed by Mr. Asbury, went to the home of Julian Bulla, an approximately ninety-year-old citizen of King City, residing about one-half block from the home of Mr. Asbury. There defendant, in the presence and hearing of Mr. Asbury, talked with Mr. Bulla about termites and told Mr. Bulla that it would cost $60 to free his home of termites. Mr. Bulla assented to that proposal. Thereupon, a man, working for defendant, dug a small hole in the foundation of Mr. Bulla’s home and entered the hole, staying there about an hour, presumably “spraying” the premises. During that time, Mr. Bulla and Mr. Asbury sat on Mr. Bulla’s porch. Defendant then advised Mr. Bulla that he was ready for his check and defendant and Mr. Bulla went into Mr. Bulla’s house. While they were in the house, defendant told Mr. Bulla, “It was sixty dollars.” Mr. Bulla said, “You write out the check and I’ll sign it.” Defendant wrote the check, Mr. Bulla looked at it, saw that it was for the amount of $60 and signed it. On Monday, June 20, 1960, defendant and another man came to Mr. Bulla’s home. The man had a hammer and some short pieces of lumber. That man remained at the home about one-half hour. On the same day, defendant came to the First State Bank of King City and presented to Roy Lux, cashier of said bank, the check signed by Mr. Bulla. It bore the date of June 17, 1960, and was drawn on said bank, purportedly for the sum of $604. Mr. Lux knew Mr. Bulla’s signature and knew defendant by sight and priorly had cashed checks payable to him. Defendant endorsed the check in Mr. Lux’s presence and Mr. Lux cashed it. Before doing so, however, Mr. Lux inquired of defendant what he had done for Mr. Bulla and was informed by defendant that he “had put a new foundation under Mr. Bulla’s house.”

Defendant did not testify. Earl Robertson of Stanberry, Missouri, called as a witness in behalf of defendant, testified that he had met defendant one time, to wit: on June 20, 1960; that on that date, around eleven o’clock, defendant did some “termite work” for him, finishing the job within about an hour, for which Robertson paid defendant $196; and the work was satisfactory.

The information, as originally drawn, consisted of two counts. The first count contained the charge of which defendant was tried and convicted. The second count charged defendant with felonious possession and utterance of the aforesaid check. At the conclusion of all of the evidence, the State, with consent of defendant, dismissed as to the second count. Other trial incidents will be referred to as necessary.

Counsel for defendant charges error in the refusal of the trial court to grant the defendant a continuance. On the morning of February 13, 1961, when the case was called for trial, counsel for defendant requested two or three days’ time for the stated purpose of procuring the attendance of witnesses who, counsel for defendant said, would testify that defendant was not present when the alleged crime was committed. Counsel for defendant then stated that she had also understood that the prosecuting attorney, if asked by the court, would recommend, upon defendant’s plea of guilty, a jail sentence and the placing of defendant on probation, if defendant would make restitution, and that she had thought the case might be disposed of without trial. Counsel for the State agreed that he had promised counsel for defendant, if asked by the court for a recommendation, to so recommend to the court. It was evident that the court was not interested in disposing of the case in that manner. Interrogated by the court, counsel for defendant also expressly admitted that she had in open court agreed on the 27th day of December, 1960, the case was to be set for trial on February 13, 1961, and that defendant would be ready for trial on that date. No written application for continuance was made and nothing further was said with reference to the procurement of witnesses who would testify as counsel for defendant had priorly stated to the court. Although the court unnecessarily permitted trial of the case to continue into the second day in order to afford defendant opportunity to procure the attendance of any witnesses that might be available, there is no showing or suggestion .that any effort was ever made to subpoena or otherwise procure the attendance or testimony of any of the witnesses referred to by counsel for defendant as having knowledge that defendant was not present when the crime with which he was charged was committed. The trial court did not err in denying the application. S.Ct. Rule 25.08, V.A.M.R.; State v. LeBeau, Mo., 306 S.W.2d 482, 486.

After the court had denied defendant’s application for continuance, counsel for defendant orally requested the court to grant her leave to submit an application for change of venue. Interrogated by the court, counsel admitted that the application was sought solely for the purpose of delay, but later added that she wanted time to prepare properly for the defense and “on the grounds I feel that at this time that the Judge would be biased and prejudiced of (sic) defendant.” The court stated, “Request denied. I think the counsel’s statement was true. You only want a continuance, you know.” There the matter ended. The request for “change of venue” was not made in the manner provided nor upon previously given reasonable notice to the opposite party that defendant could not have a fair and impartial trial by reason of the interest or prejudice of the judge, as contemplated by S.Ct. Rule 30.12 and was therefore properly denied. State v. Thost, Mo., 328 S.W.2d 36, 39.

Defendant next contends that the court erred in permitting the State to try defendant on the first count of the information when “no charge of uttering (as alleged in the second count) had been previously filed in the magistrate court,” and that defendant had not been afforded an opportunity to have a preliminary hearing on that charge. The record shows that the information in two counts was filed on September 9, 1960, and that defendant, on September 12, 1960, waived formal arraignment and entered a plea of not guilty. The case thus remained on the docket, thereafter went to trial and was tried without any objection whatever under the information in two counts as originally filed until, at the close of all of the evidence, counsel for the State, with full consent of defendant, volunteered to dismiss as to the second count. The law is clear that when an information charging the commission of a felony is filed in the circuit court and the defendant, represented by counsel, pleads the general issue and goes to trial without calling the matter of want of preliminary hearing to the attention of the trial court, he is held to have waived any right thereto. State v. Cooper, Mo., 344 S.W.2d 72, 75. That is precisely what occurred in this case. But, even if it had not so occurred, the charge of “uttering”, as set forth in the second count, was dismissed by consent of defendant. Under no conceivable theory could defendant have been prejudiced by the procedure followed in this case.

Defendant next contends that the evidence was insufficient to connect defendant with the crime charged and of which defendant was found guilty. We need not here again review the evidence. The mere reading of it demonstrates its sufficiency to support the verdict and judgment.

Defendant further contends that the verdict rendered is against the greater weight of the evidence and was returned under the influence of passion and prejudice. There is not a scintilla of evidence or indication of any kind in the record to support the contention made by defendant that the verdict was the result of passion or prejudice on the part of the jury. The charge does not prove itself. The contention is without merit.

Defendant next challenges Instruction No. 1 given in behalf of the State “as being contra to the evidence in the case, all to the bias and prejudice of the appellant and being against the burden of proof and weight of evidence presented herein, in that the State attempted to procure conviction on circumstantial evidence alone.” The instruction, insofar as material to the complaint here made of it, hypothesizes a finding beyond reasonable doubt that defendant “willfully and feloniously did forge and alter the check set out in the Information and read in evidence, made by one Julian Bulla and drawn on the First State Bank of King City, Missouri, payable to the defendant, George B. Shaw, in the amount of Sixty Dollars by forging and altering said check so that it purported to have been drawn in the sum of Six Hundred and Four Dollars, and that the same was forged and altered by the defendant, George B. Shaw, if you so find, with the intent on the part of the defendant, George B. Shaw, to defraud the said Julian Bulla, then you will find the defendant, George B. Shaw, guilty * It is sufficient in form and is supported by direct evidence. The contention is overruled.

Defendant next contends that the court erred in admitting State’s Exhibit No. 1, the check described in the information, into evidence on grounds “no proper identification was made for its introduction, and no showing that said exhibit had any connection with the appellant in this case.” Reference to the testimony above set forth so clearly refutes the contention made by defendant as to require no further discussion of it. It is without merit.

The record shows that the defendant was duly arraigned and entered a plea of not guilty. The information is in due form, Section 561.011 RSMo 1959, V.A.M.S.; State v. Adamson, Mo., 346 S.W.2d 85, 89. The verdict is in due form and the punishment assessed within the limits of § 561.011. Defendant and his counsel were present throughout all stages of the proceedings. Allocution was granted and the judgment is in due form of law.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    Lloyd Eugene MILES, Respondent, v. Sammy Herbert GADDY and Dan Newton, d/b/a Newton Distributing Company, Appellants.
    No. 48466.
    Supreme Court of Missouri, En Banc.
    June 11, 1962.

      Orville C. Winchell, Lebanon, Corinne Richardson and Hullverson, Richardson & Hullverson, St. Louis, of counsel, for appellants.
    William E. Gladden, Houston, for respondent.
   STORCKMAN, Judge.

This is a suit for personal injuries and property damage resulting from the collision of two motor vehicles on Missouri Highway 17 at the north end of the bridge over the Big Piney River about two and one-half miles north of Houston, Texas County, Missouri. The jury returned a verdict against both defendants in the sum of $20,845.47 from which the plaintiff voluntarily remitted $595.47 and judgment was entered for $20,250. The defendants’ motion for a new trial was overruled and they have appealed. The defendants contend that the judgment should be reversed and the cause remanded because of errors in the plaintiff’s verdict-directing instruction and his damage instruction, and that the verdict is excessive and should not be permitted to stand for more than $10,500.

■ The plaintiff, 37 years of age, lived on his 80-acre farm five miles north of Houston and had been working as a carpenter for about eight years. The defendant Newton, doing business as the Newton Distributing Company, owned and operated a soft-drink bottling and distributing business out of Rolla. The defendant Gaddy, 20 years of age, worked for Newton Distributing Company in the plant and also drove a delivery truck. On September 28, 1958, the plaintiff had been doing carpenter work in Houston. Shortly after noon he was driving his 1949 Chevrolet pickup truck north on Highway 17. The day was clear and the sun was shining. The blacktop pavement was dry and at the place in question was about 20 feet wide with a center line marker. As the plaintiff drove onto the Piney River bridge, he saw the Newton delivery truck, operated by defendant Gaddy, coming south about 400 yards away. The bridge is about 360 feet long. The road north of the bridge runs straight and level for about 100 yards before it curves upward to the northwest over a hill.

The plaintiff, driving in the northbound lane, about two feet from the center line, was just leaving the bridge when the Newton truck swerved from the southbound lane into the path of plaintiff’s vehicle and they collided. The main points of impact were the right front portions of each vehicle. The plaintiff’s truck was thrown around and came to rest headed east with its front wheels on the east shoulder and its right side against the iron superstructure of the bridge. The Newton truck ran off the east side of the pavement, down a 10-foot embankment and stopped about 40 feet from the highway. Except for salvage value, the plaintiff’s truck was a total loss. The plaintiff’s principal injuries were a gash on his forehead from the broken windshield, a cut on his wrist and a fracture of the kneecap or patella of his right knee which developed traumatic arthritis and had to be removed surgically.

It is not denied that the Newton truck came across the center line and collided with plaintiff’s truck in the northbound traffic lane. The essential controversy is what caused the Newton truck to so behave. The plaintiff testified that he was driving his truck at 30 to 35 miles an hour and at all times remained on his side of the road; that the soda pop truck approached without swerving or other unusual behavior and seemed to be traveling at a speed of about 35 to 45 miles per hour; that the Newton truck seemed to slow up when it was 25 to 30 feet away, and when it was about 20 feet away it “swayed” across in front of the plaintiff at a 45-degree angle; and that the defendants’ truck came across without warning and so suddenly that the plaintiff had no time to apply his brakes or swerve. The point of contact was five or six feet inside the northbound lane. No skid or black smudge marks were found on the highway.

The defendant Gaddy testified that he was driving a 1951 Chevrolet truck and had had no difficulty with it before this occurrence; that as he came down the hill he was traveling at 40 miles an hour and slowed to about 35 miles an hour as he approached the plaintiff; that when he was about 40 feet from the bridge “something must have broken loose”; that the steering wheel slipped out of his hand and made a sharp turn to the left; and that he pulled but he could not hold it. In his own words: “It made a jerk to the left and I couldn’t hold the wheel. I don’t think any man in here could and I couldn’t do anything with it.” Defendant Gaddy denied telling the plaintiff that it was all his fault. He said he might have cursed the truck after the accident, but he didn’t think so. He thought that he had made a statement to the highway patrolman that he had put on his brakes and went to the left and down the embankment trying to miss the plaintiff. Additional evidence will be discussed during the course of the opinion.

The defendants’ first contention is that the court erred in giving plaintiff’s verdict-directing instruction. This instruction, No. 1, undertook to submit a failure to drive the defendants’ truck on the right half of the roadway (§ 304.015, subd. 2, RSMo 1959, V.A.M.S.) and a failure to keep the truck under control. The material portion of the instruction with the parts italicised about which the defendants complain reads as follows: “If you further find and believe from the evidence that as said motor trucks approached and met the southbound truck operated by Sammy Herbert Gaddy was caused and permitted to swerve out of its right hand lane into the left hand lane and into collision with the northbound truck operated by Lloyd Eugene Miles, and if you further find and believe from the evidence that in so operating said truck the Defendant Sammy Herbert Gaddy then and there failed to operate the said truck on the right half of the roadway, and that he failed to keep the truck which he was driving under control under the circumstances then and there existing, and if you further find and believe that in so operating the said truck the Defendant Sammy Herbert Gaddy failed to exercise the highest degree of care and was negligent and that such negligence, if any, directly caused the collision mentioned in evidence, and if you further find that as a direct result of said collision Lloyd Eugene Miles sustained injuries and damage, then your verdict shall be in favor of the Plaintiff Lloyd Eugene Miles and against Defendant Sammy Herbert Gaddy and Defendant Dan Newton, doing business as Newton Distributing Company”.

For at least thirty years the decisions of this court, both en banc and in division, have criticised and condemned instructions for submitting the failure to control a motor vehicle as a ground of specific negligence. Nevertheless, the use of this form of submission persists and seems to be increasing. In State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422, this court en banc reviewed on certiorari a decision of the Kansas City Court of Appeals, Burgher v. Niedorp, 50 S.W.2d 174, 175, which held a submission “that defendant carelessly and negligently failed to exercise the highest degree of care in the operation of said automobile to keep same under proper control and management,” to be a submission of general negligence, to constitute a roving commission and to be reversibly erroneous. 50 S.W.2d, 1. c. 176. The supreme court held the opinion of the Court of Appeals not to be in conflict with any decision of this court, quashed its writ and in conclusion stated, 55 S.W.2d, 1. c. 424: “In the instant case, the instruction authorized a verdict on specific negligence, and also authorized and invited the jury under the charge of general negligence ‘to speculate in reference to what defendant did or failed to do in the management of the car.’ ” In Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 876 [6], the court held a similar submission of failure to control to be reversibly erroneous and characterized it in this fashion: “It may be possible that situations may arise where the terms control, or management, embrace but a single matter of fact and may of themselves be fully descriptive of the same. But not so in the instant case. The term ‘control’ as used in the pleading and in the instruction was used— ostensibly so to the jury — in a collective sense as embracing all the various factual elements and circumstances brought out in the evidence. The appellant complains of this, and properly so; * *

These and later decisions have established that failure to control the operation of a motor vehicle is a charge of general negligence and that an instruction which submits it is confusing and constitutes a roving commission. Rosenfeld v. Peters, Mo., 327 S.W.2d 264, 269 [7,8]; Highfill v. Brown, Mo., 340 S.W.2d 656, 663 [9] ; Myers v. Buchanan, Mo., 333 S.W.2d 18, 21 [2] ; McCarthy v. Sebben, Mo., 331 S.W.2d 601, 606-607; Thompson v. Gipson, Mo., 277 S.W.2d 527, 531. [5]; Kitchen v. Wilson, Mo., 335 S.W.2d 38, 45 [11]; Kimmich v. Berry, Mo., 319 S.W.2d 546, 548; Vogelgesang v. Waelder, Mo.App., 238 S.W.2d 849, 856 [8]. See also Coit v. Bentz, Mo., 348 S.W.2d 941, 945 [5], As applied to the operation of a motor vehicle, loss or lack of control is usually the result of some antecedent act or omission which is the essential fact that should be hypothesized in the verdict-directing instruction. Myers v. Buchanan, Mo., 333 S.W.2d 18, 21.

Even though an allegation of general negligence in the pleadings is unchallenged, an instruction must submit the specific acts of negligence shown by the evidence unless the case is one where the doctrine of res ipsa loquitur applies. Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 875 [1]; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487, 491 [6]; Allen v. Missouri Pac. Ry. Co., Mo., 294 S.W. 80, 87.

In Thompson v. Gipson, Mo., 277 S.W.2d 527, 531 [6], the giving of a “control” instruction in conjunction with one on specific negligence in the same case was held to be error, the court stating: “Unquestionably, Instruction No. 2, which as stated, submitted defendant’s negligent failure ‘to properly control and operate [her] car at said time and place’, is a mere hypothesization of general negligence. See State ex rel. Burger v. Trimble, supra. It specifies no act or omission of defendant, but leaves to the jury the province of determining defendant’s negligence by whatever act done or omitted to be done that, in its imagination, it may conceive. On the other hand, plaintiff’s Instruction No. 4 hypothesizes specific negligence of defendant in failing to stop, swerve to the left or sound a warning. We hold that the court erred in giving Instruction No. 2 in conjunction with Instruction No. 4.”

In avoidance of the consequences of the error, the plaintiff resorts to the rule that where acts of negligence are submitted in the conjunctive and there is evidence to support one, but not the other, the error will not be considered prejudicial on the theory that the jury must have found for the plaintiff on both grounds and the one not supported was therefore unnecessary. But this rule of harmless error does not apply where one of the several grounds of negligence conjunctively submitted is an improper statement of the law and a positive misdirection. Berry v. Harmon, Mo., 329 S.W.2d 784, 793 [13]; Bowman v. Heffron, Mo., 318 S.W.2d 269, 275 [9]; Fitzpatrick v. St. Louis-San Franciso Ry. Co., Mo., 300 S.W.2d 490, 498 [11], As shown by the numerous cases cited, the submission in these circumstances of failure to control the motor vehicle as a hypothesis of negligence is not a correct statement of either statutory or case law and its inclusion renders the instruction preju* dicially erroneous.

Since the cause must be remanded for a new trial, it is unnecessary to decide other questions presented; but some observations with respect to other alleged defects in the instructions may be helpful. The defendants further contend that plaintiff’s evidence tended to corroborate defendant Gad-dy’s testimony that the truck veered to its left “because of a sudden mechanical failure” and that plaintiff’s instruction therefore injected a false issue that Gaddy operated the truck so as to cause it to swerve when the real issue was whether Gaddy was guilty of some antecedent negligence that caused it to so behave and that the instruction assumed that Gaddy operated the truck across the center line thereby ignoring “the possibility of an accidental or non-negligent mechanical failure as the proximate cause and bringing this Instruction into conflict with defendants’ Instruction No. A.”

We do not view the evidence as having the conclusive effect which the defendants ascribe to it. In addition to describing the conceded fact that the Newton truck came across the center line and into collision with his truck, in plaintiff’s case it was proved that Gaddy admitted that the truck veered across the line when he applied the brakes as he approached the plaintiff and that Gad-dy cursed the “old truck” and said he was afraid it would kill somebody. Gaddy testified that he had had no previous trouble with his truck and his only explanation of the truck’s movement was that “something must have broken loose”; that the steering wheel slipped out of his hand, he could not hold the wheel and he did not think “any man in here” could and that the truck turned sharply to his left. Gaddy’s testimony was certainly not definitive and no other evidence specified the particular in which the mechanism of the truck failed. For all that appears the cause was vis major. The plaintiff did not endorse Gaddy’s explanation and the jury was not bound to accept it. Proof of Gaddy’s statements after the accident should not deprive the plaintiff of his right to rely upon a violation by Gaddy of his statutory duty to drive the truck on the right half of the roadway.

Section 304.015, subd. 2, RSMo 1959, V.A.M.S., provides that upon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway with these exceptions: (1) when overtaking and passing another vehicle, (2) when a vehicle is making a lawful left turn, (3) when the right half is closed to traffic because of construction or repair, and (4) upon a roadway designated for one-way traffic. Laws 1953, p. 587, § 304.020. Under similar statutes, the cases have also recognized “excuses” or “excusable violations” which appear to be of a sort that could not be avoided in the exercise of the highest degree of care as imposed by § 304.010 upon all operations of a motor vehicle. In this category are sudden and unexpected brake failure, blowout of a tire and non-negligent skid. See for example, Beezley v. Spiva, Mo., 313 S.W.2d 691, 695 [5] ; Evans v. Columbo, Mo., 319 S.W.2d 549, 552 [3] ; and Kitchen v. Pratt, Mo. App., 324 S.W.2d 144, 147 [1], and related case, Mo.App., 324 S.W.2d 778.

The plaintiff’s evidence established that defendant Gaddy was the operator of the Newton truck and did not establish exculpatory circumstances. In case of a statutory violation, it is generally sufficient to couch the verdict-directing instruction substantially in the language of the statute. Creech v. Blackwell, Mo., 318 S.W.2d 342, 348-350 [5] ; Hanson v. Tucker, Mo., 303 S.W.2d 126, 128 [1] ; Cuddy v. Schenewark, Mo., 231 S.W.2d 689, 690-691 [3]; Harris v. Hughes, Mo.App., 266 S.W.2d 763, 770 [13]; Arky v. Kessels, Mo.App., 262 S.W. 2d 357, 358-359 [3]; Smyth v. Hertz Driv-Ur-Self Stations, Mo.App., 93 S.W.2d 56, 58-59 [1, 2]; King v. Friederich, Mo.App., 43 S.W .2d 843, 844 [2], The situation is different where the language of the statute is such as to require construction. Gaffner v. Alexander, Mo., 331 S.W.2d 622, 626 [2]. Defendants’ Instruction A followed in general Gaddy’s explanation of the occurrence; that is, that the truck veered suddenly and unexpectedly to the left, that Gaddy had no control over its operation and was not negligent. In view of the general nature of the defendants’ evidence and submission, they are in no position to complain of the plaintiff’s instruction submitting negligence based on § 304.015, subd. 2.

The defendants’ objections to the plaintiff’s damage instruction are such that they can be avoided on another trial.

The judgment is reversed and the cause remanded.

The foregoing opinion by STORCK-MAN, J., is adopted as the opinion of the Court En Banc.

All Judges concur.


author: WESTHUES, Chief Justice. STORCKMAN, Judge HYDE, Judge

text:
    Eddy WISE, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 49185.
    Supreme Court of Missouri, En Banc.
    June 11, 1962.

      V. James Ruddy, St. Louis, for appellant.
    Morris A. Shenker, St. Louis, John E. Bardgett, Clayton, for respondent.
   WESTHUES, Chief Justice.

On October 3, 1956, Aretha Wise was injured when she fell while a passenger on one of the defendant’s streetcars. Her husband, plaintiff Eddy Wise, filed this action to recover damages for loss of services of his wife and consortium. A jury verdict for plaintiff in the sum of $12,000 was reduced by remittitur to $7,000. A judgment was entered for that amount. On appeal to the St. Louis Court of Appeals, the judgment was affirmed. See Wise v. St. Louis Public Service Co., Mo.App., 349 S.W.2d 406. On application of the defendant, the cause was ordered transferred to this court.

For a complete statement of the evidence, reference. is made to the opinion of the Court of Appeals. For a disposition of the case in this court, the following statement is deemed sufficient. On the day in question, plaintiff’s wife was a fare-paying passenger on a streetcar southbound on Grand Avenue in the City of St. Louis, Missouri. As the streetcar approached Park Avenue, Mrs. Wise sounded the buzzer. She intended to get off the streetcar at Park Avenue. As she was walking toward the door, she claimed the streetcar gave two sudden and unusual jerks causing her to fall. It is claimed that she sustained permanent injuries. Defendant claimed no unusual movement of the streetcar occurred.

The cause was submitted to a jury by an instruction under the res ipsa loquitur doctrine. The defendant offered an instruction on the burden of proof which the trial court refused. This the defendant says was error. The question was briefed and the Court of Appeals held that the trial court was justified in refusing to give the instruction on the theory that it was not substantially correct. The instruction (B) read as follows: . ■ ■

“The Court instructs the jury that the burden of proof is on the plaintiff to show by the greater weight of the credible evidence that defendant was negligent and that plaintiff’s injuries, if any, were the direct result of the negligence of the defendant.
“You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence, if you find and believe from all the evidence in the case that the defendant was not negligent, and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be in favor of the defendant.”

In the briefs filed in the Court of Appeals, plaintiff urged that the instruction was properly refused for the reason that, in the second paragraph of the instruction, the jury was advised not to find “that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence.” Plaintiff cited a number of cases by this court in support of that contention. The defendant cited a number of cases also from this court holding that such an instruction was proper. The apparent conflict in the various opinions disappears to some extent when the factual situations and the wordings of the instructions are examined.

The Court of Appeals held that, in the factual situation as shown by the evidence, the instruction was not improper for the reason urged by the plaintiff. See 349 S.W.2d 1. c. 408(1). In this ruling of the Court of Appeals we concur. We shall deal with this subject later in the opinion.

The Court of Appeals, however, sua sponte held the trial court was justified in refusing to give the instruction for the reason that, in the first paragraph of the instruction where it reads, “that plaintiff’s injuries, if any,” the word “damages” and not “injuries” should have been used. See 349 S.W.2d 1. c. 408(2,3). .To this we cannot agree. The word “injuries,” as used in the instruction under consideration, imports the same meaning as damages. In Funk and Wagnalls’ Practical Standard Dictionary, “injury” is defined as “1. Any wrong, damage, or mischief done or suffered. * * * 3_ a wrong or damage done to another.” In Webster’s Third New International Dictionary, the word “damage” is mentioned as a synonym for “injure”; and under “injury,” we find “la: an act that damages.” Under the word “damage” reference is made to the word “injury” as a synonym. We rule that the trial court was not justified in refusing to give the instruction on that ground.

Returning now to the consideration of the so-called “mere fact of the occurrence” instruction, often given in res ipsa loquitur cases, this court should not censure a trial court for giving or refusing to give such an instruction. This is for the reason that this court has in a number of cases advised that such an instruction should not be given in any case, while in other cases such instructions have been approved. Note the case of Rittershouse v. City of Springfield, Mo., 319 S.W.2d 518, 1. c. 521, where a number of cases dealing with this subject were reviewed and this court (Division One) said: “ * * * but the decisions we have considered in our review of Instruction No. 6 manifest the hazard of error in giving any kind of a mere fact instruction in any kind of a negligence case. We, in passing, were looking at an instruction, ‘No. 8,’ in Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223, 229, and said the instruction was argumentative and ‘the cautionary “mere fact” unnecessary.’ By this we certainly were intending to say a cautionary ‘mere fact’ is unnecessary in fairly and simply submitting the controverted factual issues of a negligence case.”

Let us now look at the case of Goldblatt v. St. Louis Public Service Co., 351 S.W.2d 773. The facts in that case are somewhat similar to the facts in the case before us. In each case, the injury involved was claimed to have been caused by an unusual jerk or jolt of the vehicle in which the injured person was a passenger. Each case was submitted on res ipsa loqui-tur. In each case, an identical instruction was offered by the defendant, containing the phrase “the mere fact of the occurrence.” In the case before us, the instruction was refused while in the Goldblatt case the instruction was given. In the Goldblatt case, a verdict for defendant was returned and on appeal, plaintiff contended that the “mere fact” instruction was prejudicial and should not have been given. In reviewing the question and after considering a number ■ of cases dealing with this subject matter, this court (Division Two) said in the Goldblatt case, 351 S.W.2d 1. c. 774: “Despite protestations to the contrary and the nicety of some of the distinctions, it is most likely, as a matter of rationale, that the ‘mere fact’ cases are in irreconcilable conflict. Nevertheless, this case can be made to fit the framework of the pronouncements and it is not necessary to rationalize or examine the underlying principles. In the first place, the plaintiff’s principal instruction and instruction 6 are admittedly rescripts of the suggested instructions in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, a res ipsa loquitur case. And although not mentioned in the cases criticizing the ‘mere fact of the occurrence’ instructions, Harke v. Haase has not been overruled.” We rule that in the opinion of Division Two it was correctly stated that the case of Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, had not been overruled. Further, we agree that under the factual situation in the Goldblatt case the giving of the questioned instruction was in conformity with the prevailing rule in this state. It follows that the instruction now before us was authorized by the law as in force at the time of trial. It was the only burden of proof instruction offered and since it was refused, there was no instruction given which even remotely referred to the burden of proof. It was correctly ruled by the Court of Appeals, 349 S.W.2d 1. c. 408(1), that a defendant in a res ipsa case is entitled as a matter of right to a burden of proof instruction.

On a retrial of this case, is the court to give a burden of proof instruction, if offered, containing the clause “you should not find the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence” or language to that effect? We say, “No.” We have decided, in the interest of the proper administration of justice, to eliminate such instructions from our practice. They have tended to confuse rather than clarify the law. Burden of proof instructions can be drawn without such language as was said in the case of Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223, 1. c. 229(13, 14): “The instruction is argumentative, and the cautionary ‘mere fact? unnecessary.” The res ipsa loquitur doctrine is based upon the theory that a plaintiff is entitled to have his case submitted to a jury on the theory that the occurrence justifies an inference of negligence. 65 C.J.S. Negligence § 220(2) pp. 987-993. In Harke v. Haase, supra, 335 Mo. 1104, 75 S.W.2d 1. c. 1003(2,3), this court said, “The fact of the occurrence was all that plaintiff’s evidence showed in this case. We will therefore consider this case as a res ipsa loquitur case.” In such cases, a jury may or may not infer negligence from the fact of the occurrence alone. Occurrence means “the happening of an event.” Funk and Wagnalls’ Practical Standard Dictionary. “Something that happens unexpectedly and without design” is the definition in Webster’s Third New International Dictionary. The same dictionaries define the word “mere” as “such and no more,” “nothing but,” and “exclusive of or considered apart from anything else.” In our opinion, the word “mere” does not affect the meaning of the instruction and may be treated as superfluous.

It is true that if instruction B, quoted supra, is considered in its entirety, it is not a misstatement of the law. This is for the reason that the jury is advised by the last portion of the instruction that “if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be in favor of the defendant.” (Emphasis supplied.) However, the first portion of the second paragraph of the instruction is a misstatement of the law unless the next and last portion of the instruction is given full effect in connection with the first portion.

As has been said in a number of our opinions, the language under consideration, that is, “the mere fact of the occurrence shown by the plaintiff’s evidence,” is argumentative and in certain circumstances confusing. Such language should not and need not be used in burden of proof instructions.

It would serve no useful purpose to refer to or consider the many cases dealing with this subject. The opinions in the cases cited supra referred to most of those cases. The rulings in the cases where the instruction now under consideration and similar instructions have been approved are hereby overruled and should no longer be followed. This rule shall be effective from the date of the publication of this opinion and shall not affect cases tried prior to that date.

The judgment of the trial court is hereby reversed and the cause remanded.

EAGER, J., concurs.

STORCKMAN, J., concurs in separate opinion filed.

LEEDY and HOLLINGSWORTH, JJ., concur in result.

HYDE, J., concurs in result in separate opinion filed.

DALTON, J., concurs in result and concurs in- separate opinion of HYDE, J.

STORCKMAN, Judge

(concurring).

I concur fully in the principal opinion but would go farther and disapprove the entire second paragraph of Instruction B because it is argumentative, repetitious and incomplete, and is likely to be confusing and misleading. The paragraph to which I refer reads as follows:

“You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence, if you find and believe from all the evidence in the case that the defendant was not negligent, and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be in favor of the defendant.”

That this paragraph is likely to be confusing and misleading is indicated by the growing number of cases in which it has been questioned, criticized or distinguished.

The subject that it attempts to deal with is sufficiently and better covered by the plaintiff’s verdict-directing instruction No. S which instructs the jury “that such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendant St. Louis Public Service Company, a Corporation, was negligent, and you may so find unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to defendant’s negligence, * * Italics supplied. Instruction 5 from which this quotation is taken is in the form suggested in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1004. It has been almost uniformly used as the plaintiff’s principal instruction in a res ipsa loquitur case and has never been seriously questioned.

The thought expressed in the italicized part of instruction 5 is twice repeated in instruction B. I think this repetition is unnecessary and improper. Furthermore, the second repetition directs a verdict for the defendant without hypothesizing any facts. As a verdict-directing instruction, it is incomplete.

Defendant’s instruction No. 6 attacks and converses the plaintiff’s basic premise; it instructs the jury “if you further find that said streetcar did not jerk and jolt in a sudden and unusual manner, then your verdict should be for the defendant.” If the defense had conceded the unusual movement of the streetcar and sought to excuse it as being caused by an emergency application of the brakes to avoid a collision of some sort, the defendant would have been entitled to an instruction on that theory which would have had to incorporate the hypothesis that the defendant was not negligent in so doing. It would seem that these two kinds of instructions and plaintiff’s instruction gives the defendant all that it is entitled to on the merits and all that is contemplated by the second paragraph of instruction B which in effect tells the jury that if it finds “that the defendant was not negligent,” then its verdict should be in favor of the defendant.

The paragraph complained of can hardly be said to have a proper place in a burden of proof instruction. As stated in Stumpf v. Panhandle Eastern Pipeline Company, 3S4 Mo. 208, 189 S.W.2d 223, 229 [13], an instruction of this kind is argumentative and cautionary in nature. It also directs a verdict on what purports to be a statement of a rule of law without stating facts upon which the finding is to be made. This was condemned in Harke v. Haase as well as in later cases.

A burden of proof instruction in the usual and accepted form should be sufficient even in a res ipsa loquitur case because McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641, has held that the burden of proof in a res ipsa loquitur case is the same as in any other.

This court should seize every opportunity to eliminate jury argument from instructions. Permitting argumentative instructions to be given is perhaps the greatest single weakness in our instruction practice.

I think we should stop temporizing with this and other “mere fact” situations. I would disapprove of the second paragraph of instruction B in its entirety.

HYDE, Judge

(concurring).

I concur in the result because I think defendant was entitled to have a burden of proof instruction such as Instruction B given in this res ipsa loquitur case, in which the main instruction given at plaintiff’s request told the jury that the facts of the occurrence therein hypothesized (“sudden and unusual jerk and jolt”) “are sufficient circumstantial evidence to warrant a finding * * * that the defendant * * was negligent.” (It also used the word “occurrence” as descriptive of the incident resulting in plaintiff’s injuries.) I do not agree that the second sentence of Instruction B is improper. In fact, the principal opinion say's, if it “is considered in its em-tirety, it is not a misstatement of the law.” However, it also says the first portion is a misstatement of the law unless the last portion “is given full effect in connection with the first portion.” Is there any reasonable basis for not doing so? Of course, any clause taken out of context and considered alone would not likely be adequate to express any intended concept. I can see no basis for refusing to consider a sentence of an instruction as a whole, especially when there is nothing self-contradictory in it and when so considered it is a correct statement of the law. It is our well-settled rule that even separate instructions are construed together as a whole and if, when so considered, they properly state the law, that is sufficient. (See the many cases cited under Trial <⅞=’ number 295(1) (2) West’s Missouri Digest.)

Perhaps the term “mere fact” may not be be the best term to express the intended meaning although I think the definitions of “mere” set out in the principal opinion show it was not erroneous to use it in the way it was used in Instruction B. However,, I would suggest that such language as “from only the fact of the occurrence” might be better. It might even be better to reverse the first two clauses of Instruction B so that the last sentence would read: “If you find and believe from all the evidence in the case that the defendant was not negligent, you should not find that the defendant was negligent from only the fact of the ■occurrence shown by the plaintiff’s evidence, and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be in favor of the defendant.” (For the word “only” emphasized above, the word “solely” might be used or the term • “from the fact alone” might be substituted.)

I do not agree that any part of the second sentence is improper or could make the instruction argumentative or confusing. The fact of the occurrence is not conclusive of negligence. “We follow the res ipsa rule stated by the Supreme Court of the United States in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, as follows: ‘Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evi-denec to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.’ See McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Cruce v. Gulf, Mobile & O. R. Co., 358 Mo. 589, 216 S.W.2d 78; Jesionowski v. Boston & M. R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416.” Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587, 590. Therefore, I think defendants in res ipsa cases should have the benefit of this kind of burden of proof instruction.


author: EAGER, Presiding Judge.

text:
    John S. WHITE, Augusta Bigham, Anna B. Grinstead, James Edgar Bigham, John Paul Bigham, Mayme Petty, Anita Essary, Hina Webb, and Carl M. Webb, Jr., Respondents, v. Floyd C. WILKS, Administrator of the Estate of Mary Agnes Swinney Pate, deceased, and Floyd C. Wilks, Administrator of the Estate of Stephen S. Pate, deceased, and Charles Albert Faris, Vista Wayne Ford, Vernon Pate, Vera West, Emerson LaFayette Pate, Eldridge Malcolm Pate, Elsie Virginia Newton, Clara Jordan, Clarence Pate, Meredith S. Pate, Stephen S. Pate, Mary Sue Shafer, Hattie Blanche Davis, Reba Williams, Ruth Dowrey, Charles J. Pate, Harold M. Pate, Martha F. McQuinn, James A. Pate, Delores L. Gustin, Stevie John Pate, Rudolph V. Pate, Wanda Jean Pratt and Donald Michael Pate, a Minor, Appellants.
    No. 49011.
    Supreme Court of Missouri, Division No. 2.
    May 14, 1962.
    Opinion Modified on Court’s Own Motion and Rehearing Denied June 11, 1962.

      Sharon J. Pate, Caruthersville, for appellants.
    Ward & Reeves, Caruthersville, for respondents.
   EAGER, Presiding Judge.

Count One of the petition in this suit is an action to ascertain and determine title to forty acres of'land in Pemiscot County. Plaintiffs are the heirs of J. M. Big-ham who died about 1907. Defendants, except for the administrator and a tenant who were included as more or less nominal parties, are the heirs of Stephen S. Pate; he derived whatever interest he may have had by will from his wife, Mary Agnes Swin-ney' Pate, a daughter of Bigham. A second count was laid in ejectment, a third sought partition between the plaintiffs, and a fourth was for the recovery of certain taxes. The fourth count was dismissed by plaintiffs and is of no further moment. By amended answer the defendants denied the title of plaintiffs and of J. M. Bigham and alleged that Bigham never had title; they further alleged that fee simple title was vested in Mary Agnes Swinney Pate by adverse possession for more than thirty-one years prior to her death; and defendants prayed affirmatively that fee simple title be found and adjudged in them.

A jury was waived. The court found the issues generally for plaintiffs on Counts 1, 2 and 3, adjudged that they were the owners in fee simple and that they should recover possession and certain rents; it also entered an interlocutory decree in partition. Defendants appealed, after the automatic overruling of their motion for a new trial.

Plaintiffs offered in evidence a warranty deed dated June 14, 1902, from J. M. j Bigham and his second wife, Maud E., in j which they purported to convey the land t in question to Mary Agnes Swinney (later 1 Pate) “to have and to hold” unto said grantee “and unto her bodily heirs only forever * * This deed was duly recorded. Mary (and for brevity we shall so refer to her) went into possession soon after the date of that deed and remained in possession until her death on January- 13, 1959, a period of well over fifty years. She left no bodily heirs. By her will, duly probated, all of her property (with exceptions not material here) was bequeathed and devised to her husband, Stephen S. Pate, who survived her but died in September 1959. By oral testimony it was shown that J. M. Bigham left six children, including Mary; one of these, Nora, was a child by his second wife. His first wife was Margaret Eastwood Bigham; the date of her death was not shown, but it was obviously prior to 1902. The will of J. M. Bigham, dated January 23, 1907, made no specific reference to the land in controversy, but directed that all his real estate be sold and the proceeds divided among his wife and his children; however, the testator further did “give and bequeath” all his real estate, subject to debts, to his wife and children in equal undivided interests.

Defendants offered in evidence two deeds which, considered together, purported to convey the land in controversy; that is to say, each deed conveyed a part of it. The first was a warranty deed from John Cotton and Julia Cotton, his wife, dated November 2, 1888, to Margaret E. Bigham and to his heirs and assigns forever; that deed was duly recorded. The second was an executor’s deed from James D. Tinsley, Executor of James Eastwood, deceased, to Margaret E. Bigham and her heirs, forever, reciting authority from the probate court to sell for the purpose of paying debts; that deed was dated September 24, 1889, and was duly recorded. By these deeds defendants sought to establish title in Margaret, the first wife of J. M. Bigham. It was admitted, as already stated, that Mary was in possession of the land after 1902; also that she had paid all taxes except those for the last two years prior to her death.

In rebuttal plaintiffs produced several witnesses who testified, in one form or another and over repeated objections, that Mary had stated on various and sundry occasions that she only had a lifetime interest in the forty acres in question and could not sell it; and that it would then go to the “Bigham heirs,” or the “other heirs,” or, as one or two said, “to her heirs.” The preponderance of this testi[mony fairly indicated that she had stated | that at her death the land would go to the I “Bigham heirs.” Plaintiffs also showed that no will of Margaret E. Bigham could be found in the probate records.

Defendants’ counsel submits here the following points, without elaboration or substantial argument: that plaintiffs wholly failed to prove that J. M. Bigham (and his second wife) had any title, and that none could therefore revert to his heirs; that the two deeds offered by defendants showed title in Margaret E. Bigham, the mother of Mary, who died without administration on her estate; that plaintiffs must prevail, if at all, on the strength of their own title, and that they failed to prove any title in them; and, finally, that Mary acquired title by adverse possession for a period exceeding fifty years. Plaintiffs, seeking to uphold the judgment, say: that no title was shown in either of the two grantors who conveyed to Margaret E. Bigham, that possession by her was not shown nor was any conveyance from her shown, and that the deeds were incompetent; that Mary went into possession under her “bodily heirs” deed, which was her sole source of title; that' she could not claim the land by inheritance because Bigham left five other children, against whom she could not claim title by adverse possession; that it was not shown that Mary ever claimed a fee simple title, or claimed adversely; that upon the death of Mary the title reverted to the J. M. Big-ham heirs; that plaintiffs established a “common source of title” and could rely upon the strength of their own title under the oft-stated rule, since Mary took possession under the “bodily heirs” deed from her father, and recognized that deed, with its conditions, as her only source of title; and, finally, that Mary and those claiming under her are bound by the doctrine of “estoppel by deed.”

Plaintiffs tried the case and have presented it here on the theory that therei was a common source of title in J. M. Big- ' ham, and consequently they have not at-{ tempted to prove title in him or in anyone prior to him. In Riley et al. v. O’Kelly et al., 250 Mo. 647, 157 S.W. 566, the court said, loc. cit. 568: “The rule is settled in this state that where the adversary parties in actions to quiet title as well as in actions of ejectment hinge their claims of title to the property in controversy upon that of a common grantor or ancestor, then the court and jury have but one issue to solve, to wit, which of the adversary parties acquired the title under which they respectively claim? And in determining this issue it is sufficient if the record shows that the contending parties proved, admitted, or assumed a common source of title.” (Citing cases.) See also Harrison Machine Works v. Bowers, 200 Mo. 219, 98 S.W. 770; Travelers’ Insurance Co. v. Beagles, 333 Mo. 568, 62 S.W.2d 800. The theory of these cases is that the “parties litigant” (Harrison, supra) are committed to the common source of title where the record shows that they have relied upon such a title or have agreed upon it. The defendants here neither relied upon nor agreed to the contention of j plaintiffs that title was in J. M. Bigham. They specifically alleged in their pleadings that no title was in Bigham, they objected to the deed from Bigham, and they offered other deeds in an effort to show an independent title in Margaret Bigham. There was no action of the “parties litigant” which established a common source of title. Plaintiffs seem to rely upon the acts of Mary, in her lifetime, as constituting an agreement upon a common source of title, chiefly by her acceptance of the deed from Bigham, her possession thereunder, and her declarations concerning the title. While acts and declarations of an ancestor may have some relevancy on a question of estop-pel, they may not serve as a substitute for an agreement, express or implied, of the parties to the litigation. No common source of title was established here, and hence plaintiffs must rely upon, and prove, the strength of their own title. Harrison Machine Works, supra; Cullen v. Johnson, 325 Mo. 253, 29 S.W.2d 39; Baugh v. Grigsby, Mo, 286 S.W.2d 798, 58 A.L.R.2d 607; Feeler v. Reorganized School District No. 4 of Lincoln County, Mo, 290 S.W.2d 102.

There is no doubt that, had title been effectively proved in J. M. Bigham, it would have reverted to his heirs upon the death of Mary without bodily heirs. Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903; Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23; Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348.

In so far as defendants claim that title was established in them through limitations, we may simply say that no adverse possession, as it is defined in our authorities, was sufficiently proved. It is true that possession was agreed to have been in Mary for over fifty years. But proof of title by adverse - possession requires much more, and the burden is on those asserting such a title. Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010; Fisher v. McClard, Mo, 262 S.W.2d 37; Franck Bros, Inc. v. Rose, Mo, 301 S.W.2d 806. In the latter case the court said, loe. cit. 811: “‘In order to establish title by adverse possession plaintiff had the burden of proving that he and those under whom he claims had possession of the land for the statutory period (10 years), and that such possession was (1) actual, (2) hostile, i. e, under claim of right, (3) open and notorious, (4) exclusive, and (5) continuous. City of Kirksville v. Young, Mo.Sup, 252 S.W.2d 286.' Feinstein v. McGuire, Mo.Sup., 297 S.W.2d 513, 515. Whenever any of these elements is lacking-no title can ripen by adverse possession.”’ The defendants here made no pretense of’ proving certain of these attributes of adverse possession; indeed, the only evidence concerning the nature of the possession came from the plaintiffs. That evidence; indicated rather clearly that Mary was-merely claiming to hold for her life and that she was not claiming the fee, in hostility to the heirs of Bigham. At this point,, in view of another trial, we hold that her declarations, generally, were admissible, not to establish title in anyone, but as bearing-upon the nature and character of her possession. Allen v. Morris, 244 Mo. 357, 148 S.W. 905; Stephens v. Fowlkes, 338 Mo. 527, 92 S.W.2d 617; Boynton v. Miller, 144 Mo. 681, 46 S.W. 754; Minor v. Burton, 228 Mo. 558, 128 S.W. 964. In this instance-the statements were also against her interest. Boynton v. Miller, supra; Meier v. Meier, 105 Mo. 411, 16 S.W. 223. The competency of this evidence under the Dead Man’s Act is suggested. Section 491.010 RSMo 1959, V.A.M.S. Plaintiffs say that the statute is not applicable to testimony concerning statements of this character. Stuff v. Schuetze, 293 Mo. 635, 240 S.W. 139, 144(2). It is unnecessary to decide that question here. The defendants have not briefed any question of the incompetency of the testimony. The case is being-reversed and remanded, and the competency of the evidence may be reconsidered upon another trial, with particular reference to-the competency of each witness under the-statute. In any event, it is only the testimony of certain witnesses which is barreda And see generally, Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875; Fisher v. Cox, Mo., 312 S.W.2d 775; Stoops v. Stoops, Mo., 276 S.W.2d 188.

It thus appears that no record title was established by either plaintiffs or defendants and that no common source of title was agreed upon. Under these circumstances it is unnecessary to consider plaintiffs’ point that the two deeds to Margaret were inadmissible, for in any event they were not shown to have established any title in defendants. Nor have defendants prosecuted their case upon the theory that they are the heirs of Margaret, which they evidently are not, although Mary was one of her heirs.

There remains the contention i that Mary and those claiming through or ! under her are estopped under the doctrine ( of “estoppel by deed.” While there has been some occasional and casual reference to this doctrine in Missouri (Hunt v. Searcy, 167 Mo. 158, 67 S.W. 206, 209; Fox v. Windes, 127 Mo. 502, 30 S.W. 323; Johnson v. Adams, Mo., 7 S.W.2d 1010), it has not been developed to the point where our cases are of any great assistance. By reference to such texts as 19 Am.Jur., Estoppel, § 21, p. 619, § 10 et seq., p. 606 et seq.; 31 C.J.S., Estoppel, § 13, pp. 196-198, § 15, pp. 199-201; and American Law of Property, § 15.18 et seq., we see that the doctrine is .'more aptly applied to a grantor than to a [grantee, and that, generally speaking, if a l grantee is estopped to deny the title of his i grantor, the estoppel is an equitable one, ^ rather than a strict estoppel by deed. A grantee may be required to claim under the whole of his deed rather than to accept the benefits and reject the burdens; but, as a general rule, a grantee may acquire a superior title or one by limitations. 19 Am. Jur., Estoppel, §§ 23, 24; Macklot v. Dubreuil, 9 Mo. 282 (477). And see the rather full discussions in Robertson et al. v. Pickrell et al., 109 U.S. 608, 3 S.Ct. 407, 27 L.Ed. 1049, and Bybee v. Oregon and California R. R. Co., 139 U.S. 663, 11 S.Ct. 641, 35 L. Ed. 305. We have determined that the doctrine of estoppel is not properly in issue here. Defendants affirmatively alleged that J. M. Bigham had no title whatever, they asserted title in themselves by limitations, and they prayed a finding and adjudication of fee simple title in them as the heirs of Stephen S. Pate. This, in effect, was a cross-action to determine title. We hold that it required a responsive pleading, whether designated as a reply or otherwise. This has been held necessary in a case applicable here by close analogy. McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757, 759(1). There the court said, loc. cit. 759: “Foulke’s answer prays the affirmative relief of an adjudication as absolute owner in fee simple of the land in question, and prays also that the court adjudge that the instant plaintiffs have no right, title or interest therein. Such an answer requires a reply under our statutes.” In so far as mere denials would suffice, the necessity for such a pleading might be waived if the parties tried the issues alleged in the cross-action, without objection; but under § 509.-090 RSMo 1959, V.A.M.S., estoppel is an affirmative defense; and see Cook v. Daniels, Mo., 306 S.W.2d 573. If plaintiffs wished to rely upon an estoppel they should have filed a pleading containing the appropriate allegations. See also Smyth v. City of St. Joseph, Mo.App., 297 S.W.2d 578, 581; Hill v. Hill, Mo.App., 236 S.W. 2d 394, 398. The purpose of this statutory requirement is not merely technical, but to give notice to the opposing parties in order that they may be prepared on the issue. Upon remand the parties should have leave to reframe their pleadings, if desired.

The judgment is reversed and the cause remanded. Since the judgments on Counts 2 and 3 depend entirely upon the judgment on Count 1, all are set aside. This will afford an opportunity to the parties to develop in a more realistic manner the actual state of the record title. It is so ordered.

All of the Judges concur.


author: DALTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Percy POWELL, Appellant.
    No. 48953.
    Supreme Court of Missouri. Division No. 1.
    June 11, 1962.
    Richard L. Hughes, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Presiding Judge.

This is an appeal from a conviction of burglary in the first degree and a sentence of 10 years’ imprisonment in the state penitentiary. See Sections 560.040 (Laws 1957, p. 374) and 560.095 RSMo 1959, V.A.M.S. The indictment charged the offense under the Habitual Criminal Statute, Sec. 556.280 (Laws 1959, S.B. No. 117). Five previous felony convictions were alleged, shown and found by the trial judge. The punishment was accordingly fixed by the court. Section 556.280 RSMo 1959, V.A.M.S.

The indictment in question, in part, charged: “That Percy Powell in the City of St. Louis, on the 11th day of November, 1960, with force and arms, into a certain dwelling house and building of the Catholic High School Association of the Archdiocese of St. Louis, Missouri, a corporation, said building known as St. Teresa’s Convent, in the care and custody of Rev. H. J. Roberts, Pastor of St. Teresa’s Catholic Church, said convent building situated at No. 2413 North Grand Boulevard, there situate and being and in which said dwelling house and building there was a human being, * * * forcibly did break and enter, by then and there * * * breaking the outer door of said dwelling house and building with the felonious intent then and there and thereby * * * to steal, take and carry away certain goods, chattels and personal property in the said dwelling house and building then and there kept and deposited therein, * * *.”

While the assignment of error is not in proper form, it is apparent from appellant’s brief that one of the chief issues sought to be raised on this appeal is whether there was substantial evidence to support a finding that the breaking and entering of the building in question was made “with the felonious intent then and there to steal therein.”

The defendant offered no evidence and only the one factual issue of the charge is questioned on this appeal. Appellant insists that the testimony of the State’s witnesses “clearly negates any ‘intent to steal’ on the part of this defendant.”

A number of Catholic nuns, members of an order known as “Sisters of St. Joseph,” taught in the parochial schools in St. Teresa’s Parish and resided in the building known as St. Teresa’s Convent. Father Harry Roberts, the Pastor of St. Teresa’s Church, had the care and custody of the convent building.

The main front entrance of the convent building, located at 2413 North Grand Boulevard, consisted of outside wooden double doors which were two and one-half inches thick. About three feet back from the outside doors was another set of double doors, panel doors, with glas's windows in the top half. On the evening in question, each set of doors was closed and secured by three sets of locks. Sister Theresa Ann was the first to come down on the evening of November 10, 1960, for the night services, prior to retiring, and she closed and locked the doors with a total of six locks.

The outer doors were secured first by an ordinary latch which locks when you close the doors. There was also “a lock at the top, which closes with a chain, about halfway down, and the next lock is a chain and at the bottom there is a lock that is pushed down into the floor like” from the right-hand door. “The inner door has a chain like the outside door, and then it has a lock with a chain, and then it has a night lock.”

Sister Mary Agnes, who resided in the convent building, had authority and supervision over the other members of the order. The sisters had retired about 10 p. m. on the evening of November 10, 1960, and, about 2 a. m. the following morning, Sister Mary Agnes was awakened by one of the sisters who reported a noise, stating she had heard it approximately ten minutes prior to reporting it. She asked Sister Mary Agnes to come into her room to see if she could determine if the noise was at the convent or on Grand Avenue. Sister Mary Agnes got up and went to the room of the complaining sister and waited some five minutes, but without hearing anything, so returned to her bed and, shortly thereafter, heard the crashing of glass and she promptly telephoned to the police.

Two police officers from the Fifth Dis- . trict received the call from St. Teresa’s Convent about 2:15 a. m., November 11, 1960, and immediately proceeded to that place. There they noticed that the front doors were open and so they went inside the convent. One of them first saw defendant standing against the wall. The other officer first saw defendant as he was coming out of an ante-room inside the building, the first room the officers entered. Defendant, a “colored man,” was immediately arrested and removed from the building. No burglary tools were discovered, no bag or anything to carry personal property in was located, nor did they find any other person or automobile about the premises. Apparently the defendant was acting alone. He had been drinking.

In the ante-room where defendant was arrested, the officers saw silver, a couple of chairs and a piano. The officers also observed the two outside wooden doors with a hallway leading into a little vestibule and then two more doors, the top parts of which were made of glass. The glass was broken out of one of these inside doors. The officers observed that the locks had been pushed off the two outside wooden storm doors, the chain lock was off and the other locks had been forced open. The plate glass window in the upper part of one of the inner doors had apparently been broken by a rock, since the officers found a rock inside the building. When asked about breaking into the place, the defendant kept saying, “I am glad I did it,” that was the only statement he made. One of the officers held the defendant prisoner while the other continued the search of the building, but no other intruder was found.

The Catholic sisters who testified could not identify the defendant. They only saw the police removing a “colored man” from the convent building.

Other evidence tended to show that the first floor of the convent building was separated into several rooms or divisions with doors between the three main divisions. These doors were not locked. In one of the rooms there were portiers, a table, four chairs, a piano, a piano bench, a few other benches and a few other articles. In another room, an ordinary living room, there was a divan, two chairs and a television. In the chapel the items of value included the sacred vessels, such as the chalice, the ciborium and the monstrance. The chalice is a silver cup, goldplated; the ciborium is a goldplated cup that holds the host that is used at communions; and the monstrance is a metal frame, also goldplated, which is used at benedictions. The value of the three items would amount to around $1000, approximately. Some other witnesses placed the value at $300. There was evidence that these items would be difficult to sell. The statues and other small items in the little parlor, the first room as you enter the convent, were of no great value, perhaps five or seven dollars. They were made of plaster of paris. The statues would be material to the sacred vessels and the blessed sacrament, which were kept in the chapel. No property was missing from the convent after defendant was arrested and removed from the building. The locks on the inner double doors were not broken because the glass had been broken out of one of the doors and it was possible for one to reach in and open the several locks.

At the close of the State’s case defendant moved for a judgment of acquittal which was considered by the court and overruled. As stated, defendant offered no evidence.

Appellant’s theory that no case was made for the jury is, as stated, based upon his conclusion that the testimony of the State’s witnesses “clearly negates any ‘intent to steal’ on the part of this defendant.” Appellant argues that had he intended to steal anything he would have entered the building stealthily and at its weakest point. This argument is based upon the testimony of Father Roberts that the rear and side entrances of the convent were not nearly'so secure and difficult of access as the front of the building. Appellant neglects to point out that there is no evidence that the defendant knew how the rear and side entrances of the convent were protected, nor is there any evidence to show that defendant knew the building was occupied as a home for the Sisters of St. Joseph, who were teaching in the parochial schools. Since entrance was attempted to be made at about 2 a. m., there is no evidence tending to show that it was particularly important to defendant that the entrance he made “stealthily’, because there was no evidence that he knew the building was occupied.

Appellant further argues that had the defendant intended to steal anything he would have come prepared to break in by means of tools and equipment necessary for a quiet breaking and entering; and that, if defendant intended to steal any of the bulky contents of the building, he would have come prepared with some means of carrying the loot away. Appellant argues that ordinary human experience demonstrates that defendant’s forcible entry of the building at its strongest point of defense and the breaking of a glass panel out of one of the inner doors, which produced a great noise and commotion, show that the entrance was not made with any intent to steal. Appellant further argues that since no burglary -tools and no bag for carrying equipment were found, and since the type of property •in the building was of such character that it would not have been valuable to defendant had he obtained it, no intent to steal was shown. Of course, there is no evidence that defendant knew what particular type of property was in the building at the particular time, or what money, jewelry and other items of value could be obtained therein.

While it was necessary for the State to produce evidence from which the jury could find beyond a reasonable doubt that at the time the defendant broke and entered the building he did so “with the felonious intent then and there to steal therein,” as submitted by the State’s Instruction 1, this proof could be made by circumstantial evidence. “The intent with which certain acts are done may be found, and frequently can only be found, from • the attendant circumstances and must ordi:narily be inferred from the facts” in evidence. State v. Whitaker, Mo.Sup., 275 S.W.2d 316, 319[5—9]; State v. Lugar, Mo. Sup., 84 S.W.2d 614, 616[1, 2], It would seem that defendant would not have made the effort to break through two sets of doors secured by six locks unless he intended to profit thereby to some extent and in some manner, and the jury could well find from the facts shown that defendant broke and entered with an intent to steal therein. No lawful motive or purpose was shown to otherwise explain defendant’s action. The jury could, therefore, infer and find from the facts shown that the breaking and entering were committed with the intent to steal. State v. Parks, Mo.Sup., 336 S.W.2d 369, 370[2, 3]; State v. Lugar, supra, 84 S.W.2d 614, 616[1, 2]. Consummation of the intent is not necessary to complete the crime of burglary. State v. Farris, Mo.Sup., 243 S.W.2d 983, 985 [1-2]; State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, 275 [2, 4], No authorities are cited in support of appellant’s view. There is only a reference to the statute upon which the prosecution was based, to wit: Section 560.040 RSMo 1959, V.A.M.S. A case was clearly made for the jury and the assignment of error must be overruled.

Appellant further argues that the court erred in overruling the objection made by defendant’s counsel to certain comments made by the assistant circuit attorney in his jury argument, which comments appellant construes to be comments on defendant’s failure to testify in his own behalf. See Section 546.270 RSMo 1959, V. A.M.S.; Art. I, Sec. 19, Constitution of Missouri 1945, V.A.M.S. Only portions of the argument appear in the transcript. State’s counsel in his closing argument stated: “I ask you ladies and gentlemen of the jury to take all the instructions to your jury room. Read all the instructions. Analyze the entire — all of the entire instructions in conjunction with the evidence that you have received, and based upon that, based upon that, I have no question in my mind what your final analysis will be. I say this because the State’s evidence is unrefuted, it is undisputed, and it is undenied.”

There can be no question but that it is error to allude either directly or indirectly to a defendant’s failure to testify. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 886. Appellant however admits that, in accordance with the decisions of this court, it is not error per se for a prosecuting attorney to tell a jury that there is no “dispute” as to the evidence; nor is it error per se for a prosecuting attorney to tell the jury that the State’s evidence is “unrefuted”; nor is it error per 'se for the prosecuting attorney to tell the jury that the State’s evidence is “unde-nied.” Appellant’s theory is that “the use of all of these words in one alliterative phrase cannot help but call the attention of the jury to the fact that the accused did not testify.” Appellant relies particularly on State v. Lindner, Mo.Sup., 282 S.W.2d 547, 550, where the court said that the ultimate test of whether the statutory prohibition had been violated was “whether the jury’s attention was called to the fact that the accused did not testify.” On its facts, that case is clearly distinguishable from the present case. In State v. Hayzlett, Mo.Sup., 265 S.W.2d 321, 323 [3, 4], the court pointed out that “the key words of the statute * * * are ‘accused’ and ‘testify,’ * * The same rule is quoted in State v. Lindner, supra.

We think the argument in this case of which appellant now complains falls within the purview of those cases which permit the prosecuting attorney to discuss the evidence in general and refer to the failure of the defense as a whole to combat the facts adduced by the State tending to prove the guilt of the defendant. State v. Hayzlett, supra, 265 S.W.2d 321, 324 [3, 4]; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660, 662[5]; State v. Murray, Mo.Sup., 280 S.W.2d 809, 811 [3-5]; State v. Varner, Mo.Sup., 329 S.W.2d 623, 633 [18]; State v. Hardy, 365 Mo. 107, 276 S.W.2d 90, 95 [8, 9]. In the Hardy case this court pointed out that it had “consistently held that it was not a violation of the statute to state that evidence was-uncontradicted, undisputed or uncontro-verted.” The assignment must be overruled.

Appellant further contends that the court erred in sustaining the assistant circuit attorney’s objection to the argument of defendant’s counsel concerning the time involved in the alleged “break-in” and when so doing also erred by commenting on the evidence. The record shows that defendant’s counsel undertook to argue to the jury that “he (defendant) breaks down the ■front door. It takes him fifteen minutes to break that door, fifteen minutes to break down that door. He was breaking that door for fifteen' minutes.” An objection was made on the ground that there was no evidence that fifteen minutes was so used. ■The court sustained the objection by the words: “There is no evidence that fifteen minutes was devoted to that, and I sustain the objection that the argument is outside of the record.”

The argument of defendant’s counsel was clearly and completely outside the testimony in the record. The testimony, as hereinbefore set out, shows that one of the sisters had heard a noise and did not know whether it was at the convent building or on Grand Avenue. Some ten minutes later she notified the superior of the home, who visited her room and waited five minutes, but heard nothing and returned to her own room and again retired. Thereupon she heard the breaking of glass and telephoned the police. Sister Mary Agnes testified: “ * * * the Sister had heard it approximately ten minutes prior to her coming to me * *

The court did not err in sustaining the objection and there was no comment on the evidence, since there was no evidence to the effect that fifteen minutes was devoted to the “break-in.” See State v. Van Horn, Mo.Sup., 288 S.W.2d 919, 921, 922 [7-9]; State v. Florian, 355 Mo. 1169, 200 S.W.2d 64, 68 [9-10]. Further, the trial court had wide discretion in determining the latitude permitted counsel in misquoting the evidence and the trial court reasonably required counsel to confine his argument to facts shown by the evidence. State v. Van Horn, supra; State v. Florian, supra.

Appellant further contends that “The court erred in allowing the Assistant Circuit Attorney to equate the tranquillity of the City with the guilt of the Defendant”, citing State v. Laster, 365 Mo. 1076, 293 S.W.2d 300. Appellant contends that the assistant circuit attorney’s argument “gave the jury a roving commission to find defendant guilty not only if they found him guilty in the light of the evidence as presented, but also if they felt that by sending the defendant to the penitentiary they would be contributing to the diminution of the St. Louis crime rate and improving the safety of the citizens of this City”; and that the argument, in effect, told the jury: “This is your City; it’s your duty to protect it; the defendant is on trial for burglary; burglary is a crime that must be stopped if we are going to have peace and tranquillity in this City; therefore, you (the jury) should convict the defendant.” A careful reading of the assistant circuit attorney’s argument as appears on the particular pages of the transcript to which appellant refers in his brief (also the argument considered as a whole) wholly fails to sustain the assignment and the argument made in support of it. The argument complained of was within the limits of permissible argument as shown in the cases and rules stated in State v. Laster, supra, 293 S.W.2d 300, 306[7, 8],

We have further carefully examined the record in regard to those matters not required to be preserved in the motion for a new trial and we find no error. Perhaps we should further say that defendant was well represented in the trial court by court-appointed counsel. Defendant was also permitted to appeal as a poor person and the court-appointed counsel who represented him in the trial court saw fit to represent defendant as appellant in this court and to file a brief in his behalf.

The judgment is affirmed.

All concur.


author: HOLMAN, Commissioner. PER CURIAM.

text:
    In the Matter of the Vacation of a ROADWAY IN SECTION 21, TOWNSHIP 60, RANGE 6, WEST. August J. MAST and Clara C. Mast, his wife; Alvin Klauser and Irene Klauser, his wife, Respondents, v. Leo G. DETERS and Dorothy G. Deters, his wife, Appellants.
    No. 49132.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.

      J. Patrick Wheeler, Canton, for appellants.
    Richard DeCoster, Canton, and Earl L. Veatch, Monticello, for respondents.
   HOLMAN, Commissioner.

Respondents filed a petition in the County Court of Lewis County, Missouri, seeking to enclose about 500 feet of roadway running through their land which had been' relocated by the construction of a new road. The relief was sought under the provisions of § 228.160 (unless otherwise indicated all statutory references are to RS Mo 1959, V.A.M.S.). The required notice was given and appellants, Leo G. and Dorothy G. Deters, filed a remonstrance. The county court held a hearing and on December 2, 1960, the court made an order vacating said roadway and authorizing respondents to enclose same. Thereafter, appellants filed a notice of appeal in the Circuit Court of Lewis County in which they sought to appeal from the aforementioned order of the county court “under the-provisions of Chapter 536, RSMo.” Respondents filed a motion to dismiss the appeal which was sustained by the circuit, court. The Deterses have duly appealed from the order and judgment dismissing-their appeal.

The sole question for decision in this court is whether appellants were entitled to a review of the order of the county court under the Administrative Review Act as provided in Chapter 536 (Civil Rule 100, V.A.M.R.). In ruling that question we will assume that the notice of appeal filed by appellants in the circuit court was sufficient to constitute a petition for review under that Act.

As stated, this proceeding was instituted under the provisions of § 228.160, which reads as follows: “Any person wishing to cultivate or enclose land through which ■any road may run may petition the county ■court, first giving notice, as in the case of new roads, for permission to turn such road ■on his own land or on the land of any ■other person consenting thereto, at his own ■expense. The court shall thereupon cause the county highway engineer to view the ■same and report the practicability of the proposed change and distances and situation of the ground, and proposed changes, at the first term of the court thereafter; and if upon the report the court be satisfied that the public will not be in any manner injured thereby, or said road lengthened or the grade thereof increased, or the road thrown on rougher land, it shall order such a change, and upon satisfactory proof of such road being opened in such manner as to be equally convenient to travelers, the court shall make an order vacating so much of the former road as lies between the different points of intersections, and cause the report thereof to be recorded.”

It will be noted that there is no provision in said section for the filing of a remonstrance and, although a notice is required, there is no specific provision for a hearing by the court. It has long been the holding of the cases that no appeal will lie from an order made under the provisions of § 228.160. Howe v. Callaway, 119 Mo.App. 251, 95 S.W. 974; Teague v. Sanders, Mo.App., 193 S.W. 609. See also Overbeck v. Galloway, 10 Mo. 364, and Foster v. Dunklin, 44 Mo. 216. The theory of these cases is that a proceeding under that section affects only the public interest and does not involve private rights; that persons such as appellants have no greater interest in the matter than the public generally; that the statute does not contemplate an adversary proceeding where individuals, as a matter of right, may appear and have a trial with right of appeal; that notice is required so that the court may be properly advised as to the truth of the petition so that the public interest will be protected.

Appellants contend, however, that the Constitution of 1945 “created county courts as administrative bodies and when such bodies are called upon to hear applications to vacate roadways, and such other matters as county courts are authorized to act upon by law, such courts fall within the definition of 'agency’ as made in Section 536.-010,” and hence that appellants are entitled to a review of the order in question under the provisions of Chapter 536. No authorities are cited in support of that contention and the matter is not substantially developed in the appellants’ brief.

“Since the legislature has power to formulate conditions under which resort to the courts may be had, the persons accorded a right to obtain a review of administrative decisions and orders are to be ascertained from the terms of the statute providing therefor. Not every person who files a protest and is given an opportunity to be heard by the administrative agency has a right to appeal from an order of the agency, but whether a particular person has the right to contest administrative action is largely a question of law, dependent on a number of variable factors, including the nature and extent of his interest, the character of the administrative act, and the terms of the statute.” 73 C.J.S. Public Administrative Bodies and Procedure § 176, p. 517.

We have concluded that the trial court ruled correctly in dismissing the appeal. In considering this matter we have assumed that the county court is a body which would come within the definition of “agency” as contained in § 536.010, and we note that, while § 228.160 contains no provision for review, provision is specifically made in'§ 228.120 for a judicial review in the manner prescribed by Chapter 536 of orders of the county court relating to certain other road matters. Our view is that appellants did not have sufficient individual rights and interests involved in order to entitle them to a judicial review of the order in question. Their only interest was as a user of the road. While they might have used the road 'more than certain other' persons in the community their legal interest was, nevertheless, the same as that of the public generally. The cases heretofore cited hold that this is not an adversary proceeding and that it involves the public interest and not private rights. Article 5, § 22, Constitution of Missouri, 1945, V.A.M.S., provides, in part, as follows: “All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law.” (Emphasis added.)

Statutory provision for a judicial review in a “contested case” is contained in §§ 536.100 and 536.140. A “contestecj case” is defined in § 536.010 as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” It is obvious from a consideration of that definition and from what we have heretofore said that appellants were not entitled to a judicial review of the order in question on the theory that it was a “contested case.”

The provision for review in cases other than “contested cases” is contained in § 536.105 wherein it is stated that “When any administrative officer or body existing under the constitution or by statute o.r by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action * * *.” (Emphasis added.) In construing that section we have stated that it “clearly comprehends only decisions involving individual rights and interests.” May Department Stores Co. v. State Tax Commission, Mo.Sup., 308 S.W.2d 748, 756. In-the May case it was held that a landowner appealing from a specific valuation could not obtain a review of the annual order of inter-county equalization made by the State Tax Commission.

We have heretofore held that the order of the county court herein did not involve appellants’ individual rights and interests. It is therefore apparent that appellants were not entitled to a judicial review under the provisions of § 536.105. Furthermore, it would appear from the instrument or type of pleading filed by appellants in the circuit court that they were not attempting to come within the provisions of that section.

It follows from what we have heretofore said that appellants were not entitled to appeal from the order in question and were not entitled to a judicial review thereof under the provisions of Chapter 536.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.