text:
    Elmer KARNOPP, Appellant, v. Mildred R. KARNOPP, Respondent.
    No. 50770.
    Supreme Court of Missouri, Division No. 2.
    March 8, 1965.

      Robert L. Jackson, John G. Killiger, Kansas City, for appellant.
    Lawrence R. Brown, Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzed, Kansas City, for respondent.
   PRITCHARD, Commissioner.

Appellant, Elmer Karnopp, brought suit against his sister, the respondent Mildred Karnopp, a single woman, by which he sought to have a trust declared of a one-half interest in two parcels of real estate. This real estate was formerly owned by the mother of the parties, Mrs. Mattie J. Kar-nopp. One of the properties was the family residence at 421 West 49th Street Terrace, and the other was a storeroom and second story office structure (the Karnopp Building) at 4301 Main Street, in Kansas City, Missouri.

Respondent denied appellant’s claim and also asserted a counterclaim against him by which she sought to have herself declared to be the sole owner of a third piece of real property, 4300 Walnut, just to the rear of the Karnopp Building. Respondent’s theory was that of a resulting trust, she having furnished the entire consideration for the purchase of the property, the title to which was placed in the names of appellant and his wife, Willa, and respondent. Appellant’s wife, Willa Karnopp, entered her appearance in the case and by specific signed and acknowledged instrument filed in the court disclaimed any interest in the third piece of real property. Respondent also prayed for an accounting of certain of her money claimed to have been expended by appellant, but she waived the right to an accounting in the court below after submission of the case.

The trial court heard the case, took it under advisement, and thereafter rendered a final decree against appellant on his petition and for respondent on her counterclaim.

We consider first appellant’s claim on his petition. He pleaded that the mother of the parties, Mrs. Mattie Karnopp (of whom they are sole heirs), on or about March 15, 1956, made a quitclaim deed to a straw party, Mae R. Karnopp, of her two tracts of real estate; that Mae R. Karnopp, pursuant to Mrs. Karnopp’s instructions, re-conveyed on the same date the same property to Mrs. Karnopp and respondent “as joint tenants and not as tenants in common.” That it was then the intent and purpose of Mrs. Karnopp that the deeds were made for convenience only and- were not intended to convey the entire equitable interest to respondent. That the deeds were made in order to permit the immediate transfer of title in the event of Mrs. Kar-nopp’s death, hut with specific instructions and agreement that the joint tenancy of respondent was for the equal benefit and use of appellant. That the intent of the grantor was that in the event of her death the parties would enjoy full legal and equitable ownership of the two tracts of real estate. It was further pleaded that there was no consideration for the deeds and no gift was intended and that respondent took title with full knowledge that her interest was for the benefit of her and appellant. By reason of all the foregoing acts and agreements it was pleaded by appellant that a trust arose by implication of law as to a one-half interest for his benefit. The petition is further that the intent of Mrs. Karnopp “was communicated to the defendant and the defendant received such joint tenancy on the express understanding and agreement that in the event of her mother’s death the plaintiff would be given equal ownership in the said real estate with his sister and it was pursuant to such arrangement and agreement that such deeds were executed, made, delivered and recorded.” Appellant also pleaded that respondent had failed and refused to acknowledge the trust arrangement and refused to convey to appellant his one-half interest in the property, but claimed the entire fee in her own right. The prayer of the petition was that the court find that the 1956 transactions were intended and did create an equal ownership in the parties, and that respondent is the trustee of a constructive trust for the benefit of appellant of a one-half interest in the two tracts of real estate.

Appellant suggests in his brief that the nature of his remedy is that of a resulting trust. Such suggestion is without merit. A resulting trust usually involves only the situation where one person pays the purchase price of property, which raises a presumption that the purchase was for his own benefit. Appellant does not contend that he furnished anything for the deeds. See Swon v. Huddleston, Mo., 282 S.W.2d 18, 24, 55 A.L.R.2d 205.

We construe appellant’s pleading to be at best one for the establishment of a constructive trust of the properties in question. If it is an express trust without more [done by the direct and positive acts of the parties, 89 C.J.S. Trusts § 11, p. 722; Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022, 1031; Gwin v. Gwin, 240 Mo.App. 782, 219 S.W.2d 282, 285], appellant’s case must fail because his evidence does not satisfy the Statute of Frauds, § 456.-010, RSMo 1959, V.A.M.S. Although respondent did not plead the Statute of Frauds as an affirmative defense as is ordinarily required, Condit v. Maxwell, 142 Mo. 266, 44 S.W. 467, 469, she did make timely objection to the parol evidence tending to show an express trust established, and renewed that objection throughout the trial. The timely objection was sufficient to interpose the unpleaded defense of the Statute of Frauds. Long v. Conrad, Mo., 42 S.W.2d 357, 361 [3, 4]. If there is, however, evidence of unconscionable conduct on the part of the grantee in inducing the conveyances, or causing the grantor not to make a provision by will which she would have made absent such conduct, then the Statute of Frauds is no bar to an action to establish a constructive trust. Mead v. Robertson, 131 Mo.App. 185, 110 S.W. 1095, 1096; Thierry v. Thierry, 298 Mo. 25, 249 S.W. 946, 954 [9]; Jackson v. Tibbling, Mo., 310 S.W.2d 909, 915 [4-6].

The only testimony bearing upon his claim is that of appellant himself. Mrs. Karnopp was killed in an automobile collision near Osceola, Missouri, in September, 1960. In that same collision respondent was severely and critically injured which occasioned her hospitalization at St. Luke’s Hospital in Kansas City for about five months. Appellant came to Kansas City and took over the management of the business properties and attended to the illness expenses of respondent, using proceeds from the cashing of U. S. Bonds which had been jointly held by respondent and her mother. Appellant testified that respondent herself brought up the subject of the management or ownership of the property in November, 1960, while she was at St. Luke’s Hospital. Appellant testified that respondent stated to him that the property was in her name, that it had been put there as a convenience and for him not to worry because half of everything was supposed to be his and it was for his protection also that it was that way; that their mother desired that they both have the property and to enjoy it equally. At no time during the discussions about the property and changing the title thereto, did respondent raise any question about appellant’s right to receive a one-half interest in the real estate.

It is apparent that the aboye is insufficient evidence to establish a constructive trust. There is no evidence that Mrs. Karnopp ever directed that respondent hold the property for appellant’s benefit at the time the conveyance was made. Indeed, the evidence is overwhelming that Mrs. Karnopp intended to benefit only respondent, and that she intended to exclude appellant who was capable of caring for himself. There was no evidence that respondent ever made a promise to her mother to hold the real estate in trust for appellant’s benefit. Even if there were such a promise, “The mere violation of a parol promise made by a grantee of land to the grantor thereof, to hold such land in trust or for a specified purpose, or to convey it back to the grantor or to a person designated or to be designated by him, does not create a constructive trust in the grantee, in the absence of fraud in procuring the conveyance to him, since the trust, if any, is an express one and is not enforceable under the statute of frauds; and, a fortiori, a simple avowal of acquisition of property for the benefit of another, or of an intention to convey it to another, not made as a promise or inducing the conveyance, will not give rise to a constructive trus.t.” 89 C.J.S. Trusts § 149, p. 1040. (Emphasis added.) See also Beach v. Beach, Mo., 207 S.W.2d 481, 486 [5]; Jankowski v. Delfert, 356 Mo. 184, 201 S.W.2d 331, 335 [5-7]; Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688, 690; Anno. 155 A.L.R. 106. Since appellant’s case was- entirely devoid of proof that Mrs. Karnopp made the deeds in reliance upon a promise by respondent that she would hold the property for the benefit of appellant, as to a one-half interest; or that the conveyances were induced or obtained by fraudulent means, that is, by any artifice, deception, undue influence, duress, coercion, false representations or fraudulent conduct on the part of grantee, Mildred Karnopp (Beach v. Beach, supra, loc. cit. 207 S.W.2d 486 [6]), the trial court correctly entered a decree against appellant upon his claim.

Appellant conceived, the idea to purchase the 4300 Walnut Street property and mentioned it to respondent while she was still in the hospital. She was reluctant to do so, thinking she would need her funds to care for herself. Appellant, according to respondent and witness Chaplain Beachy, hounded her repeatedly, about this matter- and according to witness, Phoebe Carpenter, who was her nurse, at times when she was under tranquilizers and pain-killing sedation, the pain being severe, especially from nerve damage in the left arm and hand. The evidence of respondent’s physical condition which resulted from the automobile collision was that she suffered seventeen broken bones; both legs were in casts and traction; she had a brain concussion; four broken bones in her neck which necessitated her wearing a neck collar; her right arm was in a cast and under traction; and her pelvis was broken. During the time appellant was looking after respondent’s affairs her mental condition was that she was grief stricken' over the death of her mother; her psychiatrist, who had treated her in 1958 for a mental condition characterized her as a suggestive and a •dependent person, although at the time she was in the hospital after September, 1960, she was not suffering from any disabling mental illness, and was competent from a legal standpoint. At the time she left the hospital in March, 1961, according to Chaplain Beachy (who was the hospital Chaplain and also a medical doctor and who counselled with respondent while she was in the hospital) respondent had not yet adjusted to her situation. Respondent herself testified that during the times appellant was talking to her about business, she was upset about her mother’s death, and was confused and worried. Appellant finally persuaded respondent to cash another bond of a face amount of $10,000, the cash value of which was used as a down payment on the property. The evidence is clear from this record that respondent did not go into this venture of her own volition, but that she was subjected to pressures from appellant amounting to duress and coercion at a time when she was not mentally and physically capable of resisting. This was at a time also when appellant was acting in a fiduciary relationship with respondent, handling all of her business and managing her properties. These facts, coupled with appellant’s conceded statement that he furnished none of the consideration and that the title was placed not in respondent’s name alone, but also in appellant’s and his wife’s name, are sufficient to justify the trial court’s declaration of a resulting trust of the property in respondent, and decreeing title to be solely in her. Swon v. Huddleston, supra; Sanders v. Sanders, 357 Mo. 881, 211 S.W.2d 468; Decker v. Fittge, 365 Mo. 139, 276 S.W.2d 144, 147 [2]; and Isenman v. Schwartz, Mo., 335 S.W.2d 112, 116 [2-7], Appellant has not by any evidence justified any interest in the property being in himself, so as to rebut the presumption that the one furnishing the purchase money intends the beneficial title to be in himself. 54 Am. Jur. Trusts, § 603, p. 467; Long v. Kyte, Mo., 340 S.W.2d 623, 627 [3].

The decree of the trial court against appellant on his claim and for respondent on her counterclaim is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM.

license: Public Domain

text:
    Louis W. LITTLE and Nora C. Little, Plaintiffs-Respondents, v. Oscar FOX and Lillie Fox, Defendants-Appellants.
    No. 50552.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.

      Geo. F. Addison, Salem, for respondents.
    Dorman L. Steelman, Salem, for appellants.
   HENRY J. WESTHUES, Special Commissioner.

This case was filed in the Circuit Court of Dent County, Missouri, wherein plaintiffs, respondents on this appeal, asked the court to try and determine title to real estate. Plaintiffs claimed title by adverse possession. Defendants, appellants in this Court, claimed title by deed and urged that plaintiffs’ claim of adverse possession was not supported by evidence. The trial court entered a decree for plaintiffs and the defendants appealed.

We shall refer to the parties as plaintiffs and defendants.

The land in dispute is situated in Dent County, Missouri. It is a narrow strip of land lying in the south portion of the S.E. 14 of the S.W. of Section 27, Township 34 North, Range 7. It may be described as beginning at the S.W. corner of the S.E. 14 of the S.W. '14 of Section 27, thence north 17 feet, thence easterly 590 feet to a road and to a point 6 feet north of the southern boundary line of Section 27, thence south to the section line, thence west 590 feet to point of beginning.

The evidence disclosed that plaintiffs, by deed, owned the land south of the south section line of Section 27 which land is in the N.E. 14 of the N.W. }4 of Section 34, Township 34 North, Range 7 West.

The evidence showed that defendants held title by deed to the land lying north of the southern section line of Section 27.

Plaintiffs offered evidence to support their claim of adverse possession to the strip of land above mentioned.

Defendants offered evidence that plaintiffs’ predecessors in title took possession of some land of the defendants to the north of the section line by permission with the understanding that possession would be surrendered at any time upon request.

The sole dispute of fact is whether plaintiffs’ evidence of adverse possession is to be believed; or whether defendants’ evidence as to plaintiffs’ predecessors in title taking possession by permission of the disputed strip of land be true. We do not mean to indicate that any witness knowingly testified to an untruth. The main dispute is over a matter which occurred about thirty years ago and memories do fail.

The dispute arose after the defendants purchased the land they own lying immediately north of plaintiffs’ land. This purchase was made in 1956. In 1962, defendants had the land surveyed and it was learned that the section line was south of the existing fence between the properties of plaintiffs and the defendants. Defendants began to construct a fence along the section line whereupon the plaintiffs filed the present suit.

Plaintiffs, to establish their claim by adverse possession, offered evidence by witnesses who had known of the existing fence for many years. These witnesses testified that the fence which was located along the north boundary of the strip of land in dispute had been there for more than thirty years; that no dispute had ever taken place as to the boundary line. There was evidence that the land in plaintiffs’ possession had been used for a garden and fruit trees and had always been cleared of brush while the land to the north was covered with brush. Photographs of the fence were introduced in evidence which support plaintiffs’ theory.

The theory of defendants was, and is, that before the fence was constructed the then owner of plaintiffs’ land by permission constructed a fence and used the land north of their property for pasture purposes. As we understand it, the evidence supports defendants’ claim that land north of the section line was by permission fenced and pastured by the owners of the land now owned by plaintiffs. However, the trial court evidently found, and we agree, that the permission to build a fence and pasture land had no connection with, nor did it concern, the fence along the northern line of the strip of land in question. The small strip of land would not justify building a fence- for pasture purposes. Defendants’ evidence supports the theory that the permission to build a fence on the land they now own had no relation to the fence along the north of the strip in question.

Robert Reading, one of the main witnesses for .the defendants, testified as follows concerning the permission given to pasture the land north of plaintiffs’ land:

“Q Bob, you say that Raymond Skiles wanted to use this little strip of land for pasture ?
“A Yes.
"Q That was the basis on which he asked for the permission to use it, was that he might be allowed to use it for pasture for cows and mules ?
“A That is right.
“Q You say he fenced it along the road. Where do you mean, Bob, whereabouts along the road ?
“A That road running North and South on the east side of the tract of land we are talking about.
“Q That is the same road that is now the highway there, is that the one you are talking about ?
“A Yes.
“Q It used to be the old road, now it has been widened and improved as a highway ?
“A Yes.
“Q It runs, more or less, North and South by the little house?
“A Yes.
“Q Starting right there at the northeast corner of the Little house place, which direction did this fence run?
“A It run North.
“Q It ran North?
“A Yes.
“Q How far North did it run?
“A Well, I don’t know, I would say half a quarter.
“Q So, starting right there at the road where the Little’s driveway goes into their house place now—
“A It started from the corner of the yard.
“Q From the corner of the yard and it ran North along the road for a distance of about half a quarter?
“A Close to that.
“Q Did it run any to the East or West of that point?
“A I wasn’t down there, I couldn’t tell you.
“Q Did you give permission for the running of the fence anywhere East or West?
“A Yes. He would have to run West to fence it.”

The road mentioned in the evidence is the eastern boundary line of defendants’ land. It may be noted that the fence constructed by permission extended north for ■“half a quarter” while the fence now the subject of dispute extended north at the eastern boundary only 6 feet.

There is no dispute as to the law applicable with reference to adverse possession. The party claiming title has the burden of proof. Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010, l.c. 1012, 1013 (5-7); White v. Wilks, Mo., 357 S.W.2d 908, l.c. 912 (5-7).

In the case before us, plaintiffs’ evidence showed that they and their predecessors in title had been in the exclusive possession of the land in question claiming it to be their own for more than thirty years. Their possession was open, notorious, exclusive, and hostile. The only evidence to the contrary was with reference to the building of a fence by permission. The trial court by entering a decree for plaintiffs concluded that such evidence of permission did not concern the fence in question.

Cases of this nature are reviewable de novo. However, in cases where there is a sharp conflict in the evidence, an appellate court defers to the finding of the trial court. In this case, we find ourselves in agreement with the finding of the trial court and hence the judgment is affirmed.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: HIGGINS, Commissioner. PER CURIAM.

text:
    Esther C. BARON, Respondent, v. Sam AFTERGUT, Harry Epstein, Sid Bierman and Alvin Siteman, Co-partners, d/b/a Hanley Realty Company, Appellants.
    No. 50642.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.

      Everett Hullverson, Corinne Richardson, Orville Richardson, Hullverson, Richardson & Hullverson, St. Louis, for respondent.
    Louis A. Robertson, Robertson, Baker & DeVoto, St. Louis, for appellants.
   HIGGINS, Commissioner.

Action for $35,000 damages for personal injury. Defendants obtained verdict and judgment; the trial court awarded plaintiff a new trial, and defendants have appealed.

Plaintiff was injured while an invitee of her sister who rented an apartment on premises owned by defendants. On the occasion in question she entered the apartment building through the front door, but left by the rear door because she was going to ride with a friend whose car was at the rear of the building. It was dark and raining and this was the first time plaintiff had used the rear door. There was a concrete platform 51j4 inches wide which extended 8 inches on each side of, and 44 inches outward from, the rear doorway. It was 20 inches high and three steps led from it to the ground. It had no bannister or railing and was said to be “dimly lighted” by an overhead fixture containing a 60-watt bulb in a “dirty bug-encrusted” bowl. Plaintiff pushed the screen door about “one-fourth way open” and back to her right. She stepped out on her right foot, then her left, and thereafter fell off the left side of the porch to the ground and to her injury.

Plaintiff’s case was submitted to the jury by Instruction No. 1: “The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence Mrs. Baron, the plaintiff, had been visiting one of the tenants in the building mentioned in evidence owned by the defendants, and that she attempted to leave the premises by means of the doorway, platform and steps mentioned in evidence, and that in so doing she fell from the platform and was injured, and that at the said time she was exercising ordinary care for her own safety and was not guilty of contributory negligence as submitted in Instruction No. 4, and

“If you also find and believe from the evidence that the platform was not protected with a bannister and that its edge was about 8 inches to the side of the doorway, and that the platform was reached by means of a screendoor that swung outwardly and had a strong spring thereon, and that the angle and resistance of the screendoor were such as would tend to make the user veer to his. left if he or she was unaware of the nearness of the edge of the platform, and that by reason of these conditions this exit and' platform were not reasonably safe unless, the platform was equipped with a bannister or was adequately lighted for the use of tenants’ guests unfamiliar with the premises who might be using them in the nighttime, and

“If you further find and believe from the evidence that these portions of the premises, were not adequately lighted on this particular occasion so as to permit tenants’ guests to use them with reasonable safety and that Mrs. Baron was unfamiliar with them and their condition, and that in failing to provide the platform with a bannister and in failing to provide it with adequate lighting, the defendants failed to exercise reasonable care and were negligent, and that as a direct result thereof Mrs. Baron failed to see the edge of the platform and stepped to one side after pushing open the screendoor because of the angle and resistance of the door, and that in so doing she stepped off of the platform and fell to the ground and was injured, then and in that event Mrs. Baron is entitled to recover and your verdict should be in her favor and against the defendants.” (Emphasis ours.)

The order granting new trial states: ■“Plaintiff’s Motion for New Trial is sustained on the grounds set out in paragraphs •5-A, B and C relating to Instruction 3, and paragraphs 7-A, B, C, D, E, F and G relating to Instruction No. 7 of said Plaintiff’s Motion * *

We turn first to Instruction No. 3: “The Court instructs the jury that if you find and believe from the evidence that the platform mentioned in evidence was sufficiently lighted on the occasion mentioned in evidence so as to permit plaintiff by the exercise of ordinary care for her own safety, to use said platform with reasonable safety to herself, then plaintiff is not entitled to recover and your verdict should be in favor of defendant.” Reasons for holding this instruction erroneous adopted by the trial court are: “A. Instruction No. 3 * * * improperly injected contributory negligence into the instruction by the requirement of ‘exercise of ordinary care’ by the plaintiff”; “B. The instruction required defendants to make safe the place of exit only for persons exercising ordinary care. The duty of the plaintiff was not properly a part of Instruction No. 3. It .assumed * * * that the plaintiff was not exercising ordinary care for her own safety”; “C. The instruction placed the burden of proof upon the plaintiff to prove that she was exercising ordinary care for her own safety instead of * * * upon the defendants * * *. It is, therefore, in direct conflict with Instruction No. 5 * *

Instruction No. 3 is not erroneous for any of the above reasons. Each reason is bottomed upon a condemnation of the use of “by the exercise of ordinary care.” Such criticism is not meritorious here because, irrespective of defendants’ duty of •ordinary care, Lewis v. Gershon, Mo.App., 335 S.W.2d 522, 524, plaintiff was required to exercise ordinary care on her part in the use of the premises, Winters v. Hassenbusch, Mo.App., 89 S.W.2d 546, 550[4], and plaintiff saw fit to set forth her duty in her verdict-directing instruction. (See emphasis in Instruction No.' 1.) Plaintiff should not be permitted, therefore, to complain of the use of her own language in converse Instruction No. 3, because it is her verdict-directing instruction which first injected her duty as an element of her right of recovery.

We turn next to Instruction No. 7: “The Court instructs the jury that the mere fact of itself that plaintiff was injured and has brought suit claiming defendants were negligent is no evidence whatever that defendants were in fact negligent. Negligence is not in law presumed, but must be proven by evidence as explained in other instructions.” The trial court adopted seven grounds of error respecting this instruction; however, respondent has supported the trial court on but one ground: “G. This instruction is erroneous because the trial * * * occurred after June 11, 1962, when it was decided * * * in. * * * Wise vs. St. Louis Public Service Co., Mo., 357 S.W.2d 902, ‘in the interest of proper administration of justice to eliminate’ from practice after the date of the opinion ‘mere fact’ instructions containing the phrase ‘you should not find the defendant negligent from the mere fact of the occurrence shown by plaintiff’s evidence’ or ‘language to that effect’, such as contained in Instruction No. 7.” In addition, respondent contends that the trial court should be upheld in granting a new trial for giving cautionary Instruction No. 7 absent an abuse of discretion.

We consider first the effect of Wise v. St. Louis Public Service Co., Mo., 357 S.W.2d 902. There plaintiff’s wife fell while a passenger on defendant’s streetcar. Submission was under the res ipsa loquitur doctrine to which defendant offered a burden of proof instruction containing the caution hereinafter set out. We quote the discussion at 1. c. 905 [4] in more detail than previously, set out from plaintiff’s motion for new trial: “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, l. 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 * * *, 335 Mo. 1104, 75 S.W.2d [1001] 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.” Thus, we see that the author limits his proscription of “mere fact” instructions to res ipsa loquitur submissions. We note also that Wise v. St. Louis Public Service Co., supra, was decided by this court en banc with but two judges joining the author; two judges concurred in result only, one judge concurred in result in separate opinion, and one judge concurred in result and in the separate opinion. Thus, the court cannot be said by that case to have outlawed all “mere fact” instructions. (We suggest attention, however, to Missouri Approved Jury Instructions by which mere fact instructions are now outlawed.)

Next we note that Instruction No. 7' is exactly the same as language held free-of error in LeGrand v. U-Drive-It Co., Mo., 247 S.W.2d 706, 711 [8]. Even though the cases indicate mixed feelings concerning “mere fact” instructions, the instruction here has been thus approved by this court,, and Wise v. St. Louis Public Service Co., supra, did not overrule or withdraw such, approval.

Having determined both instructions in question to be free of error in their application to this case, we cannot uphold' the trial court in granting a new trial on-their account We are not unmindful of the rule that where a new trial has been> granted we view the errors assigned by the-trial court with a “broad and liberal” construction, Bierman v. Langston, Mo., 304 S.W.2d 865, 868 [8], Mochar Sales Co. v. Meyer, Mo., 373 S.W.2d 911, 916 [10], but we cannot stretch that rule to cover the grant of a new trial on account of errors in instructions when such instructions are not erroneous. Warren v. Kansas City, Mo., 258 S.W.2d 681, 683 [2].

Accordingly, the judgment is reversed and the cause remanded with directions to reinstate the verdict and judgment in favor of defendants.

HOUSER and WELBORN, CC, concur,.

PER CURIAM.

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

All concur.


author: EAGER, Chief Justice.

text:
    STATE of Missouri ex rel. M. PRESSNER AND COMPANY, Inc., and Jeryco Plastics Corporation, Relators, v. Honorable Michael J. SCOTT, Judge of the Circuit Court of the City of St. Louis, Respondent.
    No. 50972.
    Supreme Court of Missouri, In Banc.
    March 8, 1965.
    Paul W. Lashly and Hiram W. Watkins, Lashly & Neun, St. Louis, for relator, M. Pressner & Co., Inc.
    Fred B. Whalen and Warren Grauel, Whalen, O’Connor, Grauel & Sarkisian, St. Louis, for relator, Jeryco Plastics Corp.
    Allen J. Roth, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   EAGER, Chief Justice.

This is an original proceeding in prohibition instituted in this Court. We issued our provisional rule and the respondent filed his return. All the facts essential to a determination of the question of jurisdiction are conceded, and the question is one of statutory construction. More specifically, the issue is the validity of an attempted service of process on two unregistered foreign corporations under § 351.630, as amended by Laws 1961, pp. 257-258, Cum. Supp.1963. Substantially the same amendment was made of § 355.375, at the same time and in the same bill.

On February 11, 1964, a suit for personal injuries was filed in the Circuit Court of the City of St. Louis by William Jerry Callow, a minor, by next friend, against the relators herein both of which are New York corporations. Neither corporation has registered in Missouri nor does either admit that it is doing, or has done, business in Missouri. Plaintiff is a resident of Missouri; he alleged in Count I negligence in the manufacture, sale, and distribution of a plastic slingshot which allegedly broke, injuring plaintiff’s eye to such extent that it was later removed. The article was sold in St. Louis, and the injury occurred there; the slingshot allegedly broke because the plastic portion was “defective, weak and insufficient,” the rubber bands were too strong, and the article had not been tested or inspected. In a second count plaintiff charged a breach of warranty. Upon the title of the petition (and copies) plaintiff’s counsel endorsed the supposed New York City address of each defendant. Summons was issued to both defendants and it was served on February 18, 1964, by the Sheriff of Cole County on the Chief Clerk of the Secretary of State, together with copies of the petition. The affidavit of the Chief Clerk shows that a copy of the summons and a copy of the petition, together with a notice of the service of process upon him, were mailed to each defendant on February 18, 1964, by restricted, registered mail, “Deliver to Addressee only,” with a request for a return receipt or a statement as to the disposition. In due time return receipts were filed showing receipt of the papers by the Secretary of each corporation. The Secretary of State has since issued certificates stating that there were no “records” in his office which showed that either corporation had ever registered in his office; an officer of each corporation has executed an affidavit to'the effect that it had never given to .the Secretary of State, for his records or otherwise, the address of its--principal office or any other address, and that it had never had a certificate of authority from the State of Missouri.

Each defendant filed a motion to quasli the service of summons. It will not be necessary to detail the sundry allegations of those motions; it will suffice to say that the-respective motions raised all of the points-which we will consider or mention in this-opinion. These motions were overruled and the petition for a writ of prohibition followed.

Prior to 1961, Section 351.630 provided for service of process upon any foreign corporation licensed to do business in Missouri, by service upon its registered agent or, if none be found or if its certificate had been forfeited, then upon the Secretary of State as its agent for service. The first paragraph of the section (as thus digested) ended with the following sentence: “In the event that any process, notice, or demand is served on the secretary of state, he shall immediately cause a copy thereof to be forwarded by registered mail, addressed to-such corporation at its principal office as the same appears in the records of the secré-tary of state.” Paragraphs 2 and 3, respectively, permitted service in any other manner lawfully provided, and required the-Secretary of State to keep a record of all “processes, notices, and demands served upon him under this section.”

In 1961, the legislature inserted into the-said section as paragraph 2 the following: “2. If a foreign corporation commits a tort, -excepting libel and slander, in -whole- or in part in Missouri against a resident or nonresident of Missouri, such acts shall' be deemed to be doing business in Missouri by the foreign corporation and shall be deemed equivalent t-o the appointment by the foreign corporation of the secretary of state of Missouri and his successors to be-its agent and representative to accept service of any process in any actions or proceedings against the foreign corporation arising from .or growing .o.ujt of the tort.. Service on the secretary of state of any such process shall be made by delivering to and leaving with him or with any clerk having charge of the corporation department of his office, duplicate copies of the process. The committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served personally within the state of Missouri.”

At the same time the legislature removed the last sentence (quoted above) from the end of paragraph one and inserted it as. a new paragraph 3, with only the addition of the words “return receipt requested” and “secretary of such” (corporation) so that the sentence, now paragraph 3, reads as follows: “3. In the event that any process, notice, or demand is served on the secretary of state, he shall immediately cause a copy thereof to be forwarded by registered mail, return receipt requested, addressed to the secretary of such corporation at its principal office as the same appears in the records of the secretary of state.” It is obvious that the legislature sought to make the directions just quoted applicable both to the old paragraph 1 and to the new paragraph 2, but we cannot assume that, in so transposing the sentence, it meant to change the basic meaning of the words therein. The title of the 1961 Act was as follows: “AN ACT to repeal sections 351.630 and 355.375, RSMo 1959, relating to service of process on foreign corporations, and to enact in lieu thereof two new sections relating to the same subject.” The same changes were made in Section .355.375 (appearing in the chapter on “General Not for Profit Corporation Law”), except for immaterial .differences in form, but we are not concerned here with “Not for Profit Corporations.”

The total lack of logic in the shifting.of this directory sentence appears from the fact that the Secretary of State admittedly had records in his office concerning-all foreign corporations which were licensed or had been licensed, but that he would have no records, at least in any ordinary sense of the word, of the address of the principal office of any foreign corporation which had never sought to register in Missouri. Respondent seeks to uphold the service and the statute upon the theory that the statute requires no particular type of record of the address of such principal office, that an address furnished by plaintiff’s counsel by endorsement on the petition becomes a “record” which the Secretary of State is required to keep, that the official thus complied with the requirements of a valid statute, and that the notices, having actually been received, were sufficient to answer all legal requirements. We cannot construe so loosely the term “addressed to the secretary of such corporation at its principal office as the same appears in the records of the secretary of state.” The term “records” of the Secretary of State has, over the years, come to acquire a rather definite and fixed meaning; we construe the term to mean those records which are made, filed or deposited there pursuant to some law, usually a statute. The kinds of “records” which the Secretary of State receives and keeps concerning foreign corporations are illustrated by § 351.580; that information is furnished by the corporation itself, in order to procure a certificate of authority. There was and is no provision of § 351.630 requiring or directing the present plaintiff or his counsel to furnish these addresses to the Secretary of State. The act was gratuitous and it was not done pursuant to the statute. The Secretary of State cannot conceivably have any “records” of an unlicensed, foreign corporation. The use of the directory sentence in its present location is simply an anomaly.

It has long been held that statutes extending the jurisdiction of a state over nonresidents must be strictly construed. Swarts v. Christie Grain and Stock Co. (CC Mo.), 166 F. 338; Drinkard v. Eastern Airlines, Inc., Mo.App., 290 S.W. 2d 175; Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763. And it has been held very specifically that such a statute must, by its terms, provide for a means of notice which makes it reasonably probable that the nonresident will receive -actual notice. Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R. 1230, Parker v. Bond, Banc, Mo., 330 S.W.2d 121, Harris v. Bates, supra; Towe v. Giovinetti (WD Mo.), 164 F.Supp. 159. And even actual notice, gratuitously furnished under a statute which does not contain adequate requirements for notice, is insufficient, Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R. 1230; Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, for such a statute:does not meet the requirements of due process. And consider, also, Parker v. Bond, supra. We hold that § 351.630 does fail to provide, within itself, a method which would assure a reasonable probability of actual notice to the defendant and for that reason fails to meet the requirements of due process. We do not reach the broader constitutional question, namely, whether the statutory provisions fixing jurisdiction because of the commission of a tort, “in whole or in part in Missouri,” as applied to the allegations of the petition in this case, would constitute a deprivation of due process.

The primary and obvious reason for holding the service here to be invalid is simply that the statute provided for an impossible means of notice, there being no “records” of unlicensed corporations in the Secretary of State’s Office, and it provided no other method of notice. There could be, and was, no compliance with the statute. We have not been cited to the statute of any state which'is similar to that of Missouri. Of those which provide for the assumption of jurisdiction upon the commission of a tort within the’state, and sometimes also upon the' execution or performance of a contract in the state, all provide: first, for service of-process in the state upon a designated state official; and' secondly, for. the trailing by such official by registered mail of a copy of the process, etc., to the last known address of the -defendant (Vol. 20, Minn.St.Ann., Ch. 303, § 303.13, subd. 1(3), Laws 1957, c. 538) or to the address of its principal office or place of business (41 Iowa Code Ann., § 617.3, Laws 1961, c. 287; West Virginia- Code 1961, Ch. 31, Art. 1, § 3083(71); Vermont St. Ann., Title 12, § 856). In Vermont and West Virginia the statutes provide that such principal place of business shall be stated “in such process”; in Texas (Vernon’s Texas Ann.Civ.St., Title 42, Art. 2031b, Sec. 5), it is made the official’s duty to “require a statement of the name and address of the home or home office of the non-resident.” In North Carolina (Gen.St.N.C, Vol. 2B, Ch. 55, § 55-146) the process is to be mailed to the corporation at its principal office “as it appears in the records of the Secretary of -State” or, if there is no such address on file, then to the corporation at its office "as shown in the official registry of the state of its incorporation" All of these statutes are broader than our § 351.630; some of them, as thus seen, permit or require that the plaintiff or his counsel furnish a statement of the defendant’s address. The vice of our statute is that it does not do so; the furnishing and use of such information gratuitously is not permissible as a constitutional basis for outstate service by mail.

There are precedents in the Missouri statutes for nonresident service. Those most frequently used and referred to are the so-called “Long-Arm” Statutes, §§ 506.200-506.320, providing for service on nonresident motorists. These have been construed by the courts. Parker v. Bond, supra; Harris v. Bates, supra; State ex rel. Sullivan v. Cross, Mo., 314 S.W.2d 889; Towe v. Giovinetti (WD Mo.), 164 F.Supp. 159; and see Civil Rule 51.14, V.A.M.R. The mailing provision of § 506.240 is as follows: “2; The secretary of state shall immediately mail to the defendant, and to each' of them if there be more than one, by-.restricted, registered mail, addressed to the defendant at his last known address, residence or place of abode a notice of such service and a copy of such process and petition.” Section 506.270 provides for the filing of the registry receipt. Such provisions do not preclude the furnishing, bona fide, of defendant’s address to the Secretary of State, and the service has been held to be complete upon the filing of the return registry receipt or of a statement by the postal authorities that the defendant has refused to accept the mailing. Parker v. Bond, Banc, Mo., 330 S.W.2d 121.

The respondent says that the case of McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, constitutes authority for upholding the service here. The Court there merely decided that the defendant had sufficient connection with the State of California to meet the requirements of due process; it did not in any sense pass upon the mode of notification or the statutory requirements for notification. The decision is not applicable. We are not deciding whether there was here such a “substantial connection” with Missouri as to permit service. The McGee opinion is, however, an illustration of the ever-shrinking concept of the standards required for outstate service of process.

We note, in passing, a well written article dealing with the present statute in 31 University of Kansas City Law Review 292; it is concerned largely with the constitutionality of the statute as a means of acquiring jurisdiction over a nonresident. It is worth consideration in any future review of the statute, but we'do not reach that substantive question’ here. This Court had occasion to examine § 351.630 in the case of State ex rel. Clay Equipment Corp. v. Jensen, Banc, Mo., 363 S.W.2d 666, but the decision did not affect the questions now before us.

We note,one further point made by relators, in view of the possibility of future legislation. They say that the 1961 amendment of § 351.630 was also unconstitutional because violative of Art. V, Section 5 of the Missouri Constitution, V.A.M.S. which provides that a rule of the Supreme Court “ * * * may be annulled or amended by a law limited to the purpose,” and for the further asserted reason that it violates Section 23 of Art. Ill, providing that “No bill shall contain more than one subject which shall be clearly expressed in its title, * * *.” Our Rule 54.06(c) (2) is substantially identical, with paragraphs 1 and 3 of § 351.630 as they existed prior to the 1961 amendment. Paragraph (c) (1) of the Rule is the same as § 506.-150 with which we are not concerned here. The addition of new paragraph 2 to § 351.-630 did purport to amend that Rule, and the legislative act made no reference to the Rule. This was not in compliance with the constitutional requirement. However, the subject-matter of new paragraph (2) of the statute, which seeks to subject non-licensed foreign corporations to the jurisdiction of Missouri upon the commission of torts in this state, is so markedly different from the purport and meaning of paragraph (1), which merely provides a mode of service upon corporations which have voluntarily subjected themselves to the jurisdiction, that such legislation (i. e., such as paragraph 2) might well be enacted as a separate section dealing with a different subject and, therefore, not amendatory of the Rule or offending the constitutional restriction. We do not need to discuss the objection now made to the title of the 1961 Act; nor do we discuss the amendment of § 355.375 by the 1961 Act, for Chapter 355 deals with subjects with which we are in nowise concerned here.

It is ordered that, the provisional rule heretofore issued be made -.absolute. ’

STORCKMAN,' HYDE, ' HOLMAN, HENLEY and FINCH, JJ., and STONE, Special Judge, concur.

DALTÓN, J., not sitting!

      . Statutory references are to RSMo 1959. Y.A.M.S.. unless otherwise stated.


text:
    STATE of Missouri, Respondent, v. Melvin COOLEY, Appellant.
    No. 50663.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.
    Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    Morris M. Hatchett, St. Louis, for appellant.
   HIGGINS, Commissioner.

An indictment charged that on July 4, 1963, Melvin Cooley and Robert Cooley feloniously, -willfully, premeditatedly, on purpose, and of their malice aforethought, with a knife “did strike, cut, stab, and wound” Odell Davis, inflicting a mortal wound from which he died on September 1, 1963. Melvin Cooley was granted severance and, upon trial, a jury found him guilty of manslaughter and assessed his punishment at ten years’ imprisonment. Sections 559.070 and 559.140 RSMo.1959, V.A.M.S. The ensuing judgment and sentence commuted the punishment to a term of seven years. Supreme Court Rule 27.04, V.A.M.R.

Several of appellant’s assignments of error have the effect of challenging the sufficiency of the evidence to support the instruction on manslaughter and the jury’s verdict. Accordingly, the evidence will be stated in detail.

Ernest Melvin Garrett testified that he owned a full drink tavern, Tiajuana Lounge, at 2510 North Grand, on the corner of Grand and Montgomery Streets in St. Louis, Missouri. The tavern was approximately 100 feet long and 25 feet wide. On the evening of July 3, 1963, he was present as early as 8:30 P.M. The place was fairly crowded and a “small combo” was providing music for dancing; tables were placed close together to provide more room. The Billups boys, Charles, Roosevelt, and James, were in a group of at least eight people which occupied a booth and a table pushed against it. One of the Billupses (Roosevelt), while leaving the booth, walked over the top of the table and caused a bottle of water to spill on a man at a neighboring table. This man stood up and asked if Billups was going to apologize. This brought the other Billupses to their feet and a conversation followed, during which “I stepped up and told them if they was going to have an argument they would have to carry it outside.” Another man, Arnold Humphrey, stood up with the man upon whom the water had spilled. When Humphrey and the latter sat down, Charles Billups and Roosevelt Billups proceeded to the rear of the bar. Humphrey remained approximately 15 minutes. He and his party left, and he returned around midnight. At this time appellant came into the place with his brothers, Lawrence and Robert, and Davis (Jerry or James, as distinguished from Odell Davis) and Rice. Davis went to the bowling machine where the Billups boys were playing and asked to join them. Arnold Humphrey returned at this point. He walked up to Davis and asked for “the thing,” “a small automatic weapon.” He got it from Davis and walked back to the door. Davis then got into the bowling game and tendered a dollar bet, which one Leads Bounds covered. Davis lost and refused to pay. Humphrey reappeared, this time with Robert Rice. Delores Bounds, daughter of Leads, moved in and asked Davis to leave her father alone, at which time Humphrey and Rice moved up beside Davis around the bowling machine. Humphrey took Davis’s part, saying, “Yes, sir, he’s not going to pay nobody a dime.” Jimmy Billups turned around and asked, “What’s the matter with you? You crazy?” As he turned, Humphrey pulled the pistol. Jimmy Billups “charged” him and Humphrey shot up over his head. They started to struggle and the Cooley brothers came in. “Everybody started to tussle and somebody * * * thumb-bolted the back door.” People “was piling up at the door.” Odell Davis (the victim) had come in with the Billups boys but was not participating in the fight. “He was standing by the bowling machine looking horrified.” “Everybody kept saying that he was with them; they was after him. ‘You better get out.’ ” He “took off” for the front door and Melvin Cooley and Robert Cooley caught up with him at the front door. “I seen one take him by each arm and smash him out into the walkway of the door. * * * I seen a knife. * * * In the hands of both of them. * * * They were cutting on him across the front.” He saw Melvin Cooley cut him in the stomach. Davis broke loose and ran on up the street. Then a Robert Moody broke and ran and everybody chased him up Montgomery. There were 25 or 30 people in the tavern when the fight started. The Cooleys were reputed to be local toughs.

Delores Bounds testified that she was present in the company of Jimmy Billups. About 12:30 she stepped outside and saw a white Oldsmobile car with six passengers drive into a filling station across the street from the Tiajuana. The six people jumped out “all sides of the car,” and “rushed into the tavern.” Appellant was one of them and she also saw Robert Rice, “Two-Bucket” Curtis, Jerry Davis, Arnold Humphrey, and Willie Broeck. After the shot was fired she left with Jimmy Billups and his father, James, Sr., to take Jimmy to the hospital. Jimmy had a stab wound in his chest from which he died at the hospital. She said Garrett and Lawrence Cooley were fighting and she also saw Lawrence and Jimmy fighting. She did not see the incident between appellant and Odell Davis except to see appellant running up the street with others.

Lula Lowery, another daughter of Leads Bounds, left the tavern before any altercation involving her father, whom she described as drunk. Appellant was at the tavern when she left.

Patrolman Donald Swanson went to 3500 Montgomery at 1:31 A.M. in response to a radio call. He found a Thomas (Robert) Moody bleeding and sent him to the hospital by ambulance. He examined an automobile owned by James Billups, Sr., and found a .32-caliber revolver with three spent cartridges.

Patrolman Donald Preston testified that he saw a large pool of blood in the street at Grand and Montgomery and found a case knife, Exhibit 4, near the blood.

Charles Billups testified to his presence in the Tiaujuana with his wife, Lillie Rose. He did not see or have any fights; however, he said there was quite a bit of “noise” around the bowling machine and that someone “pushed” him as he tried to leave. He later found he had been cut (presumably when “pushed”) and he went with his brother to the hospital for treatment.

Tommy Moody testified to seeing all the above principals at the Tiajuana. Appellant and his group came in around 12 o’clock. In the course of the fight he got stabbed in the side and, as he left, hit with a bottle. He ran up Montgomery Street with six or eight people after him. He did not see the incident between appellant and Odell Davis.

Detective Joseph Harr testified that he arrived at 1:31 A.M. on July 4, 1963, and found blood in the driveway of the Shell station across the street from the Tiajuana. He also found fresh blood in front of 2546 North Grand and a trail of blood leading west across Grand through a parking lot next to 2517, on across a 12-foot cyclone fence at the back of the lot at 2517, and then back to the scene. He went to the hospital and found Odell Davis, the victim. He had been “conveyed there by an unknown cruiser.” He arrested appellant on July 7 or 8.

Mrs. Tressie Orange was also a patron of the Tiajuana. She saw appellant that evening but saw no fighting before she left around 12:30 A.M.

Roosevelt Billups testified to his presence at the Tiajuana in the company of his brothers, Jimmy and Charles. He admitted being the person who spilled the water in the first incident of the evening. Later in the evening he saw a fight between Lawrence Cooley and his brother Jimmy in which he intervened to hit Lawrence with a bottle. He went outside following the scuffle, having been stabbed himself. He also had some words with Melvin Cooley but denied fighting with him. He saw Odell Davis in the bar but did not see the incident between Odell and Melvin.

Dr. John J. Thomas, a surgeon, testified that he was the pathologist for the coroner’s office. He performed a post-mortem examination on the body of Odell Davis September 2, 1963, at 10 A.M. He found Odell Davis to he a colored male, 19 years old, 5 feet 6 inches tall, weighing about 110 pounds. The body showed marked nutritional deficit; he was small and skinny. There were old and recent healed postoperative incisions in the right rectus. There was an old midline postoperative scar healed at the distal end; the upper end had a large abscessed cavity and fistula connected with the abscess. Infection was coming from inside the abdomen. There were wounds where glucose, blood, medication and water had been fed to the patient. A large part of the large bowel had been removed and the small bowel was sewed to the remaining portion. The liver showed chronic acute inflammation with an abscess involving the left lobe containing foul-smelling pus. He stated the cause of death to be septicemia caused by the abscess of the liver and acute diffused peritonitis. He found no stab wounds but gave his opinion that the peritonitis could have resulted from stab wounds. He had not seen the patient prior to his examination but, from the history available, deemed the treatment evidenced by the wounds he saw to have been adequate and normal for one suffering stab wounds. “ * * * he developed complications from his stab wounds, which necessitated the other * * * operations that he had.” He stated also that the condition he found was a complication of some type of trauma; that if the trauma was stab wounds they probably would be removed or cut through at the time of surgery.

Medical records from Homer G. Phillips Hospital, in evidence as Exhibit 5, showed that Odell Davis was admitted July 4, 1963, at 3 A.M. and that he remained in the hospital until he expired September 1, 1963, at 2:50 P.M.

Dr. Cecil Harold, a physician, testified that he was Chief Resident, General Surgery, at Homer G. Phillips Hospital. On July 4, 1963, at approximately one to two A.M., he was called to see Odell Davis who was between 18 and 20 years old, about 6 feet tall, and weighing 140 pounds. “There was a stab wound on his abdomen with a piece of his liver sticking out.” Another member of the witness’s medical team operated Davis immediately. The patient’s abdomen was opened just to the right of the midline and a laceration of the right lobe of the liver was found. The laceration was sutured. There was also a small tear in the wall of the stomach which did not go inside the stomach. The abdomen contained about two pints (1,000 c.c.) of blood, an abnormal amount. The patient was operated again July 6, 1963, at which time free blood was found in the abdomen. This loss was replaced by vein. About'three or four days later the patient started to bleed, a general oozing or seeping of blood from his abdominal incision. Investigation showed the patient to have sickle cell trait, a coagulation problem in which blood fails to harden over the wound. This was treated by repeated blood transfusions. The patient then developed “stress ulcer” as a result of his severe injury which caused additional bleeding. By July 19, 1963, intestinal obstruction had developed from the scar of the two operations. This was relieved by an operation performed by the witness in which a segment of the small bowel was removed and the bowel rejoined. During all this time the patient “was losing weight and was going downhill.” He continued to bleed from the abdominal incision and developed a hema-toma or blood clot in the upper end of the incision. This contributed to the oozing situation, all of which could be treated only by further transfusions which were given. This was confirmed by a specialist from Barnes Hospital called for consultation. The witness performed a fourth operation July 31, 1963, to remove a dead portion of the large bowel from the patient’s right groin. About three-fourths of the colon was removed and the small bowel was connected to the remainder. “He was in a critical condition at this time.” The witness stated further that the original opening in the abdomen started at the lower margin of the stab wound. The patient became progressively worse and expired at 2:50 P.M., September 1, 1963. This witness stated that Davis died “as a result of the stab wound and associated complications. * * * If he had never been stabbed, the complications never would have been demonstrated and this bleeding problem would not be.” He admitted that the liver wound he first saw normally would not cause death.

Appellant, age 21, testified that he was at the Tiajuana on July 3, 1963, and left “around nine somewhere; between nine and ten.” He went home because his brother Robert reminded him that his mother did not want him in a tavern. He stated there were no fights or arguments, and that he did not know an Odell Davis; that he had no arguments with anyone including all the Billupses, and that he had never been convicted of a crime. He denied seeing brother Lawrence and knowing Arnold Humphrey; he admitted knowing James (Jerry) Davis but did not see him that night. Nobody saw him or knew him to be in his home. He was interviewed by the police at 2:00 P.M., and was arrested three or four days after the incident.

Appellant contends the court erred in giving an instruction on manslaughter as a result of a stabbing and cutting for the reasons that “there was no evidence * * * that * * * other causes and physical infirmities were not the proximate cause of death”; that there was no probative and cogent evidence of any “causal connection between the incident of an alleged assault of July'4, 1963, * * * and the death of Odell Davis oh September 1, 1963,” and that there was no evidence to support a submission of “either acting alone, or jointly with another or others.” In addition he contends that the evidence was not sufficient to support a verdict because the state offered “no probative and substantial evidence as to the cause of the death of Odell Davis.”

The testimony of Doctor Harold shows Odell Davis to have been a healthy man upon his arrival at the hospital, his disability or infirmity being then limited to a stab wound in the abdomen from which his liver protruded. He traced the course of treatment given and described the steady worsening and weakening of the victim due to the complications of infection, bleeding, and blood condition, all of which were triggered by the stab wound. The nutritional deficit, kidney condition, and septicemia found by Doctor Thomas, the pathologist, upon post-mortem examination all followed the original stab wound; none of these conditions existed at the time the victim entered the hospital. In the words of Doctor Harold, “If he had never been stabbed, the complications never would have been demonstrated.” The testimony of the pathologist is consistent with and corroborative of the testimony of Doctor Harold, and the combination produces substantial probative evidence of the direct effect of the stab wound. Even if it be assumed that the stab wound was insufficient in itself to produce death, appellant is entitled to no comfort. In State v. Cheatham, Mo., 340 S.W.2d 16, 20 [9], we quoted the rule from 26 Am.Jur. § 48, p. 191: “ ‘Liability for homicide does not depend upon the fact that death is the immediate consequence of the injury inflicted by the accused. One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes mediately or immediately to the death of such other. The fact that other causes contribute to the death does not relieve the actor of responsibility, provided such other causes are not the proximate cause of the death.’ ” In an analogous situation in State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, appellant struck deceased, a hemophiliac or “bleeder,” on the jaw with his fist. A slight laceration resulted but it produced a hemorrhage which lasted ten days ending in death. The attending physician gave his opinion that the blow would not have caused the death and that the death was caused by hemorrhage from the laceration. Appellant contended that the sole cause of death was hemophilia. The court applied the rule: “If one commits an unlawful assault and battery upon another without malice and death results, the assailant is guilty of manslaughter, although death was not intended and the assault was not of a character likely to result fatally.” 98 S.W.2d l. c. 713 [6], We conclude that there is substantial probative evidence to support a finding of death caused by a stab wound as opposed to natural or other causes, and the instruction is not erroneous for submitting the victim’s death as the direct effect of a stab wound.

As to the causal connection between the incidents of July 4 and the death of Odell Davis September 1, 1963, we turn to the testimony of Ernest Melvin Garrett, owner of the tavern and eyewitness to the matters in question. In addition to the substance of his testimony previously set out, we note these questions and answers:

“Q. You say Melvin and Robert cut at Odell Davis ? A. Yes.
“Q. Where did it strike him? A. In the stomach.
“Q. You saw Melvin Cooley cut him in the stomach? A. Yes.”
******
“Q. Is there any doubt in your mind that Melvin Cooley cut that man in the door of your tavern? A. No.
“Q. Any doubt at all? A. No, there is no doubt.
"Q. Did he do it? A. Yes.”

This testimony refers to events occurring around or shortly after midnight, and such incidents followed earlier indications of anger, high feelings, and gunplay, all of which, as well as appellant’s presence, is corroborated by the evidence set out earlier in this opinion. The victim was admitted to the hospital at 3 A.M., July 4, 1963, after being seen by Doctor Harold, the resident in surgery between 1 and 2 A.M., at which time the stab wound and protruding liver were observed and immediate surgery prescribed. The victim never left the hospital alive, and we conclude that there was substantial probative evidence from which a jury could connect the assault with a knife on July 4, 1963, at 2510 North Grand Avenue, to a death on September 1, 1963, at Homer G. Phillips Hospital.

Appellant’s complaint of the use in Instruction No. 5 of “either acting alone or jointly with another or others” in submitting the question of appellant’s guilt of manslaughter is also without merit. We read the entire charge and note that this matter was fully covered by Instruction No. 2: “All persons are equally guilty, who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly, is the act of all and of each one so acting. However, the mere presence of one at or near the scene of a crime, does not render that person liable as a participator therein. If one is only a spectator, innocent of any unlawful act or criminal intent, and does not aid, abet, assist, advise or encourage another or others in the commission of a crime, that person is not liable as a principal or otherwise, and should be acquitted. If, however, a person be present, and by words or actions, aids, abets, assists, advises or encourages the crime, with the intent that the words or acts should encourage and abet the crime committed, then that person is equally guilty with the person or persons who actually commit the physical act.”

An explosive situation prevailed at the Tiajuana throughout the evening of July 3 and early morning of July 4, 1963. The situation involved not only appellant and his brother Robert, but several others as well. The evidence thus justified giving Instruction No. 2, and when read with Instruction No. 5, it is obvious that the jury was required to make all the findings necessary to a verdict of guilty of manslaughter. State v. Lawrence, Mo., 280 S.W.2d 842, 848[6, 7, 8].

Appellant contends that the court erred in permitting argument to the effect that certain persons in the courtroom were present for purposes of intimidating State’s witnesses. He contends also that argument to the effect that convictions do not start until a person is 17 years of age suggests that appellant had committed infractions as a juvenile, and that such was also outside the evidence, inflammatory and prejudicial. In his brief appellant states that his objections on these accounts were sustained, and the transcript shows that the trial court, without request, instructed the jury to disregard all the matters in the argument to which appellant made general objection, and there are no requests for mistrial. The only references to these matters in the motion for new trial are: “6. That the closing argument of the Circuit Attorney was improper and inflammatory.” “8. That the Circuit Attorney made improper reference to persons sitting in the audience in an effort to influence the jury by insinuating persons of rough mien were there for the purpose of intimidating the State’s witnesses in the trial.” “9. That the closing argument of the Circuit Attorney was improper in that allusion was made to a possible juvenile record of the accused which was not in evidence and in fact did not then and does not now exist.” These assignments are conclusions at most, and do not set out or direct the trial court to any particular, portion of the argument to which they refer. They were thus too general to present anything to the trial court for corrective action and, under our Rule 27.20, V.A.M.R., are too general to have preserved anything for appellate review. State v. Davis, Mo., 367 S.W.2d 517, 521 [12].

We have examined those matters as required by our Rule 28.02, V.A.M.R. The mdictment is sufficient to charge murder in the second degree to which defendant, upon arraignment, pleaded not guilty. The verdict is in proper form, is responsive to the issues, and the punishment is within the limits prescribed by law. Defendant and his counsel were present throughout the trial and counsel represented appellant on appeal. Allocution was granted and the judgment and sentence was responsive to the verdict.

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.


author: WALTER H. BOHLING, Special Commissioner. PER CURIAM:

text:
    KIRKWOOD DRUG COMPANY, Inc., a Corporation, Plaintiff-Appellant, v. CITY OF KIRKWOOD, a Municipal Corporation, and James M. Neely, Defendants-Respondents.
    No. 50937.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.

      Richard M. Stout, Kirkwood, for appellant.
    John R. Barsanti, Jr., James W. Singer III, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for defendants-respondents.
   WALTER H. BOHLING, Special Commissioner.

This is a declaratory judgment action by plaintiff, Kirkwood Drug Company, Inc., a corporation, against defendants City of Kirkwood, a municipal corporation, and James M. Neely, collector of said City. Plaintiff, appellant here, questions the validity of the City of Kirkwood’s Ordinance No. 3636 imposing license taxes on specific businesses, trades and occupations within said City in its application to druggists and retail merchants and the effectiveness of § 304(e) thereof authorizing an investigation of the books, documents, records and papers of certain licensees to ascertain the accuracy of their returns for determining their proper annual tax. A demand by the City to inspect plaintiff’s books, etc., occasioned •this action. Defendants filed a Motion for Summary Judgment (Civil Rule 74.04, V.A. M.R.) based upon the allegations in plaintiff’s petition, an affidavit of defendant Neely and the attached exhibits therein referred to. Interrogatories submitted by plaintiff to defendants, with the answers thereto, were filed. Defendants’ Motion for Summary Judgment, after hearing, argument and submission, was sustained and the Court entered its decree and declaratory judgment in favor of the defendants and against the plaintiff, holding said Ordinance No. 3636 “valid in all respects” as it applied to plaintiff. Plaintiff appealed.

The parties say this appeal involves a construction of the revenue laws of the State and vests jurisdiction here. It has been so held. See Mo.Const. Art. V, § 3, V.A.M.S.; City of Berger v. La Boube, Mo, 260 S.W.2d 527 [1]; State to Use of Divine v. Collier, 301 Mo. 72, 256 S.W. 455 [1]. (Statutory references are to RSMo 1959 and V.A.M.S. unless otherwise indicated.)

Plaintiff operates a “retail drug and general merchandise store in the City of Kirk-wood,” a class three city and herein referred to as City. James M. Neely is the duly qualified and acting Collector of said City, having custody of the City’s records relating to licenses under Ordinance No. 3636.

The City of Kirkwood, proceeding under § 94.110, quoted in part infra, enacted Ordinance No. 3636, a comprehensive licensing ordinance effective June 15, 1950, prohibiting the conduct of the businesses, trades and occupations specified therein without first having paid for and obtained the annual license provided for in said ordinance (§ 304(a)).

Ordinance 3636 provides for the following, among other, licenses: “Druggists 75(5 per $1,000 of annual gross business; Minimum per year $10.00.” An identical license tax is imposed on “Merchants (Wholesale and Retail).”

The Ordinance, § 304(d), requires licensees, where the license is based on the annual “gross business” or “gross receipts,” to file between June 1st and July 1st an estimate of his or its aggregate gross business or gross receipts for the coming fiscal year and pay the fee based on said estimate. At the close of said fiscal year, June 30th next, each such licensee must file an “adjusted return” showing said licensee’s actual gross business or actual gross receipts for said fiscal year; and any over-payment or under-payment of said tax is then adjusted by a proper refund or an additional payment.

Section 304(e), relating to the statements required by § 304(d), provides: “The City Collector or his Deputies, or such other officer as the City Council may designate, shall be and are hereby authorized to investigate the correctness and accuracy of the statement required in the preceding section, and for that purpose shall have access at all reasonable times to the books, documents, papers and records of any person or persons, firm or corporation, association or partnership making such statement in order to ascertain the accuracy thereof.”

Plaintiff says § 304(e) authorizes the City to investigate a licensee’s returns and inspect a licensee’s records and may not stand. Plaintiff contends there is no legal grant of authority to the City to require such overly-broad inspections; and even if the City has some rights of investigation, plaintiff’s rights against overly-broad inspections and to security from publicity of results should have been but was not protected by the declaratory judgment. Plaintiff here stresses Mayor, etc. City of Liberty v. Dealers Transport Co., Mo., 343 S.W.2d 40, 43 [3] ; Cf. 26 U.S.C.A. § 7213(a) and (b); Cf. V.A.M.S. §§ 146.090 and 143.270. Plaintiff cites the City of Liberty case, supra, to the point that, as a general rule, courts in awarding declaratory relief should dispose “of all questions of right, status, or other legal relations encountered in adjudicating the controversy * * * quoting from 26 C.J.S. Declaratory Judgments § 161. See, however, Id., §§ 27, 28, 30 and M.F.A. Mut. Ins. Co. v. Hill, Mo., 320 S.W.2d 559 [9]; Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70 [1 — 4]. The City of Liberty case is not determinative of the merits of any justiciable controversy here presented. Under plaintiff’s other citations certain restrictions and safeguards, broadly stated, are set up against the inspection by or disclosure to third persons of information found in a taxpayer’s state income or intangible tax return by the director of revenue or any of his agents. §§ 143.270 and 146.090. And, under 26 U.S.C.A. § 7213(a), •(b), it is an offense for Federal officers, employees and other specified persons to make unauthorized disclosures of information in Federal income tax returns.

Plaintiff assumes § 304(e), without stating wherein, authorizes “overly-broad” inspections and states the only restriction on the investigation is that it be conducted at a reasonable time. Section 304(e) explicitly restricts the investigation to plaintiff’s records establishing the accuracy or inaccuracy of plaintiff’s annual gross business in its statements filed under § 304(d), and, as plaintiff states, the investigation must be at a reasonable time.

“Subject to such limitations as the legislature, within constitutional limits, may deem proper to impose, power to license or impose license taxes includes: The power * * * of providing for the collection or enforcement of the payment of such fee or tax * * 53 C.J.S. Licenses § 10, p. 482. See also McQuillin, Municipal Corporations, 3rd ed., §§ 44.131, n 79, 10.21, n 22; 64 C.J.S. Municipal Corporations § 2074, nn 82-89.

Missouri cities are authorized to exercise taxing powers for corporate purposes under power granted to them by the General Assembly. Mo.Const. Art. X, § 1. The General Assembly has vested Class Three cities with “power and authority to levy and collect a license tax on * * * druggists, * * * wholesale merchants, merchants of all kinds” and other business activities. § 94.110, Laws 1953, p. 295. No question exists as to the express authority of defendant City to impose a license tax on druggists and on merchants.

Section 94.150 provides: “The enforcement of all taxes authorized by sections 94.010 to 94.180 shall be made in the same manner and under the same rules and regulations as are or may be provided by law for the collection and enforcement of the payment of state and county taxes * * Missouri statutory provisions exist for investigating, examining or inspecting a taxpayer’s records for the collection of proper state or county taxes. For instance: Income tax (§ 143.240); Intangible tax (§ 146.090) ; Cigarette tax (§ 149.090) ; Sales tax (§§ 144.320 and 144.330); Use tax (§§ 144.640 and 144.645); Merchants’ tax (§ 150.055); Manufacturers’ tax (§ 150.-325). (See also §§ 136.070-136.100 for like general powers of the state collector of revenue.)

In Ploch v. City of St. Louis, 345 Mo. 1069, 138 S.W.2d 1020, 1024 [12], a cigarette license tax ordinance provision authorizing an examination of, among other things, “cigarettes, vending machines and receptacles containing cigarettes” was considered valid, reasonable and in aid of the collection of the tax. Reasonable enactments granting taxing agencies inquisitorial powers to determine the accuracy of tax returns have been held not to conflict with the search and seizure, due process and other clauses of state and Federal constitutions. See 51 Am.Jur., Taxation, § 671, cited by plaintiff; Gange Lumber Co. v. Henneford, 185 Wash. 180, 53 P.2d 743, 103 A.L.R. 513, and Annotation at 522; Commonwealth ex rel. v. Freeman, 20 Pa. List. & Co. R. 314; Paducah Automotive Trades Ass’n v. City of Paducah, 307 Ky. 524, 211 S.W.2d 660 [12].

We hold the provisions of § 304 (e) for investigating licensees’ tax returns are reasonable, in aid of the collection of the tax and authorized by § 94.150 when read in connection with other statutes, cited supra.

Section 304(a) of ordinance 3636 imposes license taxes on many different business activities. In many instances it bases the tax, on a “flat sum per year”;' in other instances the tax is based on a specified sum “per $1,000 of annual gross business,” as is the license on druggists (plaintiff directs attention to nineteen such instances), and in still other instances it is based on a percentage of “gross receipts” (plaintiff directs attention to seven such instances).

Plaintiff contends that since ordinance 3636 does not define the terms “gross busi-, ness” and “gross receipts” or specify any difference in their meanings and since said terms have been used in the same connection in said ordinance, the ordinance is caused to be uncertain and unenforceable against plaintiff. Morgan v. Jewell Const. Co., 230 Mo.App. 425, 91 S.W.2d 638, 640 [2], and the quotation therein from Novicki v. O’Mara, 280 Pa. 411, 124 A. 672, 673, are stressed. The Morgan case states: “There is also a well settled rule of statutory construction that where different language is used in the same connection in different parts of a statute it is presumed that the Legislature intended a different meaning and effect.” It would be difficult to reach a different result in the Morgan case in view of § 3357, RSMo 1929, discussed and quoted at 91 S.W.2d 1. c. 641. Consult now § 287.610.

The provisions of ordinance 3636 point to a different result. City of Flordell Hills v. Hardekopf, Mo.App., 271 S.W.2d 256 [1], upheld a municipal license “based upon the aggregate amount of all sales” during the preceding fiscal year. We have said “courts do not declare void for uncertainty any statute susceptible of any reasonable construction which will sustain it.” Leggett v. General Indemnity Exchange, 363 Mo. 273, 250 S.W.2d 710 [5], See also State v. King, Mo., 303 S.W.2d 930, 934 [6]. A basic guide for construing statutes and ordinances is to first seek the lawmaker’s intention from the whole of the act and, if possible, to effectuate that intention. Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832 [2]; State ex rel. Wright v. Carter, Mo., 319 S.W.2d 596 [5]; plaintiff’s Morgan case, supra. The Laclede Gas Co. case, in discussing a license tax of 5% of plaintiff’s “gross receipts,” stated (253 S.W.2d 1. c. 835): “In its usual and ordinary meaning ‘gross receipts’ of a business is the whole and entire amount of the receipts without deduction.”

So far as involved on this issue in this case ordinance 3636 provides that no license “shall be issued for more than one year” (§ 304(f)), and “shall not issue” until the applicant “shall have paid the collector” the charge therefor (§ 304(h)). All licenses are “due and payable on the first day of July of each year at the full yearly rate and shall expire on the 30th day of June following the date of issue” (§ 304 (b)). Section 304(d), in addition to the provisions thereof hereinbefore mentioned and again referred to, states the purpose of the ordinance is to make each licensee whose license is based “on annual gross business or annual gross receipts” pay a license tax for each fiscal year “measured by his actual aggregate amount of all such business, and receipts.” And § 304(k) provides that “ ‘75‡ for $1,000’ or similar terms” in said ordinance “shall be construed to mean that the license fee shall be computed upon the amount of the ‘annual gross business’ or ‘annual gross receipts’ ” of the licensee.

We think it plain from a reading of the whole ordinance that a practical construction of the involved terms exists and that “annual gross business” means the whole and entire amount of the licensee’s business without deduction, and that “annual gross receipts” means the whole and entire amount of the licensee’s receipts without deduction. Plaintiff has experienced no difficulty in the payment of its annual license tax during the fourteen years of its operation under said ordinance. In its petition and again in its brief here plaintiff applies the term “annual gross business” to occupations which deal in the purchase and resale of goods and merchandise, and the term “annual gross receipts” to occupations primarily rendering a service; for instance, electric and gas utilities.

Plaintiff’s contention is overruled.

Section 109.180 (Laws 1961, p. 548, § 1) provides: “Except as otherwise provided by law, all state, county and municipal records kept pursuant to statute or ordinance shall at all reasonable times be open for a personal inspection by any citizen of Missouri * * The City, in obedience to § 109.180, permits the public to inspect all documents authorized to be inspected under said section, and plaintiff asserts in argument this is sufficient ground for reversing the judgment. Plaintiff’s brief presents no point to this effect. See State v. Brookshire, Mo., 325 S.W.2d 497, 500 [4]; Sandler v. Schmidt, Mo., 263 S.W.2d 35, 38 [1]; and we read in 84 C.J.S. Taxation § 481, p. 920: “At common law tax returns or reports were open to public inspection” and in the absence of statute it has been held they are “not possessed of such privacy as to justify a denial of their inspection where it would clearly be expedient for the public good.” Plaintiff’s position is not established.

There is no showing of record that defendants seek an investigation of plaintiff’s records in excess of that authorized by § 304(e) of ordinance 3636, or to make any matters public beyond information within said ordinance and § 109.180. It would be premature to enter an advisory opinion on hypothetical situations which may never occur. M.F.A. Mutual Ins. Co. v. Hill, Mo., 320 S.W.2d 559, 564; Annotation, 11 A.L.R.2d 367, § 4.

A point in defendants’ brief is that since plaintiff has filed license tax returns under Ordinance No. 3636 for fourteen years, plaintiff does not have the requisite standing to question the validity of said ordinance and cannot thus avoid its burdens. See St. Louis Public Service Co. v. City of St. Louis, Mo., 302 S.W.2d 875, 879 [1, 2] ; State v. Bennett, 315 Mo. 1267, 288 S.W. 50, 53 [3], Such rulings usually invoke the doctrine of estoppel or waiver. St. Louis Public Service Co. case; Annotation, 65 A.L.R.2d 660. We rest our holdings in this case on the reasonings herein.

The trial court held “Ordinance No. 3636 valid in all respects” but did not place that ruling on a discussion and disposition of the specific issues preserved and ruled herein. The judgment, therefore, is reversed in part and the cause is remanded with directions to modify the judgment in accord with the holdings herein.

PER CURIAM:

The foregoing opinion by BOHLING, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.