author: HYDE, Judge.

text:
    STATE of Missouri, Respondent, v. Jim CROSS, Appellant.
    No. 49106.
    Supreme Court of Missouri, Division No. 1.
    May 14, 1962.

      Robert A. Mcllrath," Flat River, for ap.pellant. ...
    Thomas F. Eagleton, Átty. Gen., Pendle-ton Goodall, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HYDE, Judge.

. Defendant was charged with burglary, . second" degree, and stealing. (See Secs. 560.070 and .560.156,. statutory citations are to RSMo and V.A.M.S.) The jury found defendant guilty on both 'charges and assessed punishment at two years’ imprison- . ment on each.- Defendant has appealed from judgment and sentence in accordance with the verdict.

• The State says defendant was allowed 20 days to- file motion for new trial and did not file it within that time. However, the motion was filed within 30 days and since the court considered and ruled on the motion it must have construed its order as • meaning that the'20 days it allowed ■jya.s in addition to fhe 10 days authorized by-Rule ‘27.20, -V.A.M.R. Therefore, we will consider the assignments in the motion for new trial which comply with that Rule.

Assignments 1 and 2 concern the sufficiency of the evidence to support the verdict, claiming the court should have sustained defendant’s motions for acquittal at the close of the State’s evidence and at the close of all the evidence. Of course, defendant waived the first by putting on evidence and a statement of the facts shown demonstrates the second is without merit. Defendant was charged with breaking into and entering the V-.P.W.-Hall in Desloge, taking four cases of beer and several cartons of cigarettes. It was admitted that the Hall was broken into and-the beer and cigarettes taken. A trustee of the.organization testified he found a window broken and the front door unlocked when he came there on the morning of May 24, 1960. He also ■said"the beer was kept in- a cooler'behind the bar; and that • there were four locks broken, one at each end of the cooler and two on doors. :

Four young men were charged with this offense; two of them had been tried and convicted before defendant’s trial, one still serving sentence at Aigoa. At defendant’s trial these, two testified they had broken in, stolen the beer and cigarettes and that defendant was not with them. However, these two admitted in their testimony, that when first arrested, they told the officers that defendant and his companion ' (who worked together at a filling station) were the ones who did it and they were released; and that after being arrested again, they told the officers that all four did it. Two of the sheriff’s deputies testified that defendant admitted his participation to them and that he then signed a statement written in his words by a girl in the prosecuting attorney’s office. She said: “He wanted to make a statement of what he had done and he told me that he had broke into the V.F.W. -Hall .and taken beer and cigarettes. There was five cases of beer and I think four Cartons of cigarettes. And then he went on to say that they broke into the fire escape and got in and then he let the others in.” The officers said defendant made his admissions and written statement without any threats or promises, saying “they got the beer and the cigarettes and they thought they might as well go ahead and get it over with.” At the trial, defendant denied haying any part in the burglary or stealing and had evidence to support his defense of alibi. As to the confession, defendant testified one of the deputies told him: “[I]f I’d admit it, he’d help me get off on parole and if I didn’t, if I fought it, I’d get two to five years.” We must hold that the court properly over- ' ruled the motion for acquittal at the close of all the evidence.

Assignment 3 alleged error “in ¡allowing witnesses to be endorsed on the information at the last moment.” Sec. 545.-240'; Sec. 545.320, and Rule 24:17 mean that •names of known witnesses must be endorsed on the information when it is filed, although the court may order additional names to be added on proper notice and showing. However, in this case, there was no claim of surprise and no written application for continuance filed. (See Rule 25.08; State v. Burlison, 315 Mo. 232, 285 S.W. 712, 716; State v. Comer, 296 Mo. 1, 247 S.W. 179, 181; State v. Ash, Mo.Sup., 286 S.W.2d 808, 811.) Notice showing the names of the witnesses had been given about three days before the trial and the only witnesses used were the deputy sheriffs, the girl in the prosecuting attorney’s office and the trustee of the V.F.W. Hall. Since there had been previous trials of two of the three men charged with defendant, there was probably no surprise in the use of these witnesses. Nevertheless, we must disapprove the practice of endorsing no witnesses on the information when it is filed.

Assignment 4 alleged error in giving the instruction on confession (No. 7) which it is claimed was a comment on the evidence and did not properly state the law. Instruction 7 is as follows: “You are instructed that with reference to the paper offered in evidence purporting to be a confession of the defendant of the commission of the crime charged against him in the information, the court instructs the jury that it is a rule of law founded in reason that a confession of a defendant, when voluntarily made, is evidence against him, because common experience proves that a man will not without motive for so doing, confess facts to his disadvantage, unless they are true. The court further instructs the jury that before any confession can be received as evidence in a criminal case, it must be shown that it was voluntarily made, and if the confession drawn from the defendant was by the use of the flattery of hope, or by the torture of fear, or by such promises held out to the defendant that (as) rendered his said confession involuntary, then the jury should reject such confession.”

The first sentence in this instruction is substantially the same as the first sentence in the instruction set out in State v. Stebbins, 188 Mo. 387, 396, 87 S.W. 460; see also Raymond, Missouri Instructions, Secs. 3491, 3494. The last part of this first sentence is an argumentative comment on the evidence (defendant’s confession). Since this confession, the truth of which was denied by defendant, was the only direct evidence of his participation in the crime, it would surely be prejudicial to tell the jury it is “a rule of law” that his confession was evidence against him without requiring the jury to find it was true; especially when this instruction went on to say it was evidence against him “because common experience proves” he would not confess such facts “unless they are true.” We consider these statements very similar in effect to those condemned in State v. Dollarhide, 333 Mo. 1087, 63 S.W.2d 998; State v. Johnson, 333 Mo. 1008, 63 S.W.2d 1000; and State v. Phillips, Mo.Sup., 299 S.W.2d 431, 435, and cases therein cited. As we said in the Phillips case, this instruction “seems to say the jury had no function to determine whether or not anything the defendant had said against himself was true, even though later denied by him.” The instruction in the Stebbins case was approved before our rulings in the Dollarhide and Johnson cases; but it did have the following qualifying sentence which gave some indication of the jury’s function to determine the truth of the confession and which does not appear in Instruction 7 herein, namely: “Such confessions, however, should be strengthened and supported by facts and circumstances corroborative of their truth; and in this case if the jury believes from the evidence that the defendant made such alleged confession to the prosecuting attorney and other officers having him in custody and that the same was freely and voluntarily made, then you should take such confession into consideration in making up your verdict.” Moreover, the instruction in the Stebbins case submitted the issue of whether or not the defendant therein had “sufficient mind or memory to comprehend what he was saying or doing” (because of intoxication, etc.) which was a different situation from that presented herein. (See also the confession instruction approved in State v. Pillow, Mo.Sup., 169 S.W.2d 414, 416.) The vice of Instruction 7 herein is that it does not require the jury to find what the defendant said in the confession was true but instead in effect tells them, if found to have been voluntary, it must be accepted as true although he denied it, gave an explanation for making it, and presented the defense of alibi.

Assignments 5 and 6 allege as error, improper rebuttal testimony by a deputy sheriff, some of which consisted of his statements as to what the others charged with defendant told him (out of the presence of defendant) in answer to such questions as “Who did Harris tell you had broken into the place? Who did Hahn tell you had broken in?”; and in allowing the sheriff to quote what Jesse Dean had said, as follows: Question: “Jesse, I guess you know why we’re here?” Answer: “He said, ‘It’s about that beer and cigarettes at the V.F.W. Plall.’ ” (Defendant’s counsel did state a better objection to this one than to the others.) All this not only went beyond proper rebuttal (which the court has some discretion to permit) but was inadmissible evidence. Prior inconsistent statements of a witness are admissible for impeachment as affecting his credibility. (58 Am.Jur. 417, Witnesses 767; 98 C.J.S. Witnesses §§ 573, 610, pp. 531, 611; Wigmore on Evidence, Secs. 1017, 1018.) As noted it had been shown, and properly so, when the two who had been tried denied at the trial defendant’s participation with them, that they had first accused defendant and his companion of the breaking and stealing and then later said all four of them did it. (As noted, these inconsistent statements were admitted by them.) However, “statements offered as self-contradiciio'ns are admitted not as assertions to be credited, but merely as constituting an inconsistency which indicates the witness to be in error in one or the other statement.” (Wigmore on Evidence, Sec. 1792; 58 Am.Jur. 449, Witnesses 804; 98 C.J.S. Witnesses § 628, p. 643; see also State v. Turner, Mo.Sup., 272 S.W.2d 266, 48 A.L.R.2d 1008; State v. Davenport, 342 Mo. 996, 119 S.W.2d 291.) Furthermore, an admission or confession by a person accused of a conspiracy or crime after its accomplishment is not ordinarily admissible against others participating in the crime or conspiracy and implicated thereby (22A C.J.S. Criminal Law § 769, p. 1157). “[I]f the declaration of a co-conspirator or co-actor sought to be shown in evidence is not in furtherance of the object of the unlawful combination, or if it was made prior to the formation thereof, or after the consummation of the purpose thereof, the objection to be made is that such declaration is hearsay statement and not binding upon the co-conspirator or co-actor on trial. * * * After the common enterprise is ended, whether by accomplishment or abandonment, no one of the conspirators or joint actors is permitted by any subsequent act or declaration of his own to affect the others.” (State v. Cher-nick, Mo.Sup., 278 S.W.2d 741, 748; and authorities cited; State v. Chernick, Mo. Sup., 280 S.W.2d 56, 59.) The statements made to the deputy sheriffs, out of the presence of defendant by the others charged with the crime some time after its commission, were not admissible as evidence against defendant. Other matters raised, such as claimed prejudicial argument of the prosecuting attorney, need not be considered now.

The judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: BOHLING, Commissioner.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Willard G. EAKIN et al., Respondents.
    No. 48476.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1962.
    Motion for Rehearing or Transfer to Court en Banc Denied May 14, 1962.
    Robert L. Hyder, Ralph H. Duggins, Jefferson City, for plaintiff-appellant.
    Walter Wehrle, Thomas W. Wehrle, Wehrle & Wehrle, Clayton, for respondents.
   BOHLING, Commissioner.

This is an eminent domain proceeding in St. Louis County involving the location, construction and maintenance of a part of what is now known as Interstate Route 44, a limited access highway with two 24 feet wide high type pavements, separated by a median strip. The Phillips Pipe Line Company, a corporate interstate common carrier of oil, gas and the products thereof and sometimes herein referred to as Phillips, has and is using its private right of way easement along a portion of said proposed highway right of way at a highway interchange. The State Highway Commission, condemnor and sometimes designated Relator or Commission, in addition to condemning the necessary right of way for said highway across the lands of Willard G. Eakin and Emily Eakin, his wife, and Deep Springs Farm, Incorporated, a corporation, seeks to condemn an easement in a 50 foot wide strip of said condemnees’ land immediately north of and in juxtaposition to the north line of said proposed highway right of way as a substitute location for the aforesaid portion of Phillips’ existing pipe lines. The court, after a hearing, sustained the above-named condemnees’ “Motion to Strike” from Relator’s petition the material portions thereof wherein Relator sought the substitute easement over their lands for the pipe lines of the Phillips Pipe Line Company on the grounds Relator was without authority under the Constitution and laws “to condemn an easement for pipe line right-of-way for the Phillips Pipe Line Company, a corporation/' or “to use public funds of the State of Missouri to pay for an easement for pipe line right-of-way for the Phillips Pipe Line Company, a corporation”; and, striking ¶¶ 7, 30.20 and 30.21 from the petition, dismissed Relator’s cause of action against said condemnees “for the appropriation of an easement for pipe-line purposes for the use of the Phillips Pipe Line Company, a corporation.” Relator has appealed.

Among the issues involved is whether the condemnation of this substitute easement for the relocation of Phillips’ pipe lines constitutes a taking of private property for public use under Art. I, § 26 or a taking for private use prohibited by Art. I, § 28, of the Constitution of Missouri, V.A.M.S. We have jurisdiction of the appeal.

Relator pleads, in substance in its petition (¶[ 3), that it is authorized to locate, relocate, design, construct, reconstruct and maintain state highways when necessary to comply with any federal law which is a condition to the receipt of federal highway funds; that a federal law (see 23 U.S.C.A. particularly §§ 103(d), 106 arid 120(c)) provides for a National System of Interstate and Defense Highways; that said Interstate Route 44 has been duly selected by the Highway Departments of the states of Oklahoma, Missouri, and Illinois and the Secretary of Commerce of the United States as a part of said National System of Interstate and Defense Highways for a highway connection between the Missouri-Oklahoma and Missouri-Ulinois state lines; and that said federal law makes it a condition to the receipt of federal highway funds that Relator construct and maintain said highway as a State highway.

It is also alleged (fj 7) that Phillips Pipe Line Company is an interstate common carrier of oil, gas and the products thereof for public use by underground pipe lines; that Phillips owns and is using a certain strip of land within said proposed highway right of way for public pipe line purposes; that it will be necessary to move said pipe lines before said highway “can be properly and economically constructed and maintained”; that to take Phillips’ said strip for said highway purposes and remove said pipe lines would materially interfere with or destroy the public pipe line use to which said strip of land is devoted; that Phillips has agreed with Relator to surrender said strip of land if Relator will secure for Phillips like rights over a substitute strip of land immediately north of said proposed highway right of way; that “it is necessary for the proper and economical construction and maintenance” of said State highway that like rights be acquired for Phillips in such substitute strip of land and that Relator has so found, determined and declared in compliance with law.

Relator also alleges (¶ 10) : “It is necessary for the proper and economical construction and maintenance of said State highway that the lands, property, and rights” indicated on the detail plans and set out in the petition be acquired, and that Relator, in compliance with law, has so found, determined and declared.

Paragraphs 30 and 30.10 of the petition describe the land of the named condemnees to be taken for said proposed highway right of way. Paragraph 30.20 describes the SO foot wide “easement” across said respective condemnees’ land to be taken for the substitute location of Phillips’ existing pipe lines. Paragraph 30.21 states the purposes for which said substitute easement is sought on behalf of Phillips.

The following constitutional and statutory provisions bear on whether Relator has authority to provide a substitute location for the pipe lines in the circumstances of this case, which is stated to be a case of first impression in Missouri.

Article IV, § 29, Mo.Const.1945, provides that the Commission “shall have authority over and power to locate, relocate, design and maintain all state highways; and authority to construct and reconstruct state highways * ⅜ *; and authority to limit access to, from and across state highways where the public interest and safety may require,” all subject to such limitations and conditions as may be imposed by law.

Section 30 of said Article provides that the state revenue therein specified “be credited to a special fund and stand appropriated without legislative action for” stated purposes in the order specified, including:

“Second, any balance in excess of the amount necessary to meet the payment of the principal and interest of any state road bonds for the next succeeding twelve months shall be credited to the state road fund and shall be expended under the supervision and direction of the commission for the following purposes: * * *

“(3) In the discretion of the commission to locate, relocate, establish, acquire, construct and maintain the following: * * * (d) any highway within the state when necessary to comply with any federal law or requirement which is or shall become a condition to the receipt of federal funds * * *.

“(5) For such other purposes and contingencies relating and appertaining to the construction and maintenance of such highways and bridges as the commission may deem necessary and proper.”

Section 227.120 authorizes the Commission to “condemn, lands in the name of the state of Missouri for the following purposes when necessary for the proper and economical construction and maintenance of state highways: * * *

“(3) Acquiring the right of way for the location, construction, reconstruction, widening, improvement or maintenance of any highway ordered b.uilt by the bureau of public roads of the department of agriculture of the United States government; * * *

“(13) Acquiring lands for any other purpose necessary for the proper and economical construction of the state highway system for which the commission may have authority granted by law.”

The condemnees stress People ex rel. Trombley v. Humphrey, 1871, 23 Mich. 471, 9 Am.Rep. 94, Cooley, J., writing, a mandamus proceeding by a landowner for the compensation awarded by commissioners appointed under an act of the Michigan Legislature for the appropriation by the State of land to be conveyed to the United States for lighthouses. The United States thought the award excessive and refused to accept the property. The court considered the act unconstitutional, reasoning, briefly stated (476), there was no necessity for the State to exercise this power for the United States as the authority of the United States was ample for its own needs in the circumstances ; and that the power of eminent domain in any sovereignty existed only for its own purpose, and the appropriation of lands for national objects was not among the ends contemplated in the creation of state governments. The Trombley and other cases with like statements are considered inconsistent with the “general rule that the exercise of the power of eminent domain by a state or under the authority of a state, if otherwise valid, is not invalidated by the fact that the power is exercised for the benefit or use of the United States” in an Annotation at 143 A.L.R. 1042(11), 1048(111). And, the later holding in Sommers v. City of Flint, 1959, 355 Mich. 655, 96 N.W.2d 119, 122(4), is not in harmony with the Trombley case. However, these authorities do not necessarily rule the precise issue presented here.

The condemnees also quote statements from State ex rel. State Highway Commission v. Gordon, Banc, 327 Mo. 160, 36 S.W. 2d 105, 106 [3], and State ex rel. Missouri Water Co. v. Bostian, Mo.App., 272 S.W.2d 857, 861 [1-4], to like effect. The Gordon case states: “When an agency of the state asserts that the right to exercise the power [eminent domain] has been delegated to it, it must be able to point out a statute which in express terms or by clear implication authorizes such exercise and to the extent claimed.” This principle has not been applied in some jurisdictions as strictly to public bodies as it is in construing power given private corporations rendering a public service. Eminent Domain, Nichols, § 3.213 [1], note 97 and cases cited; 29 C.J.S. Eminent Domain § 22. The result reached in the Bostian case, supra, was reversed upon transfer to court en Banc at 365 Mo. 228, 280 S.W.2d 663, stating (666 [1-4]): “On the other hand, 'while eminent domain statutes are to be strictly construed so far as the power to condemn is concerned, yet they are not to be construed so as to defeat the evident purpose of the Legislature.’ * * * Further, the doctrine of strict construction does not exclude a reasonable and sound construction of the statute under consideration. * * * ” (Citations omitted.)

Relator stresses the following, among other, cases.

An Act of Congress (41 Stat. 1367, 1403) giving authority to condemn land for a substitute town site to relocate the inhabitants of that portion of American Falls, Idaho, which the construction of a reservoir would flood was held constitutional and the condemnation of the necessary land to be for a public use; the court stating, in part: “The transaction is not properly described as the condemnation of the land of one private owner to sell it to another.” Brown v. United States, 263 U.S. 78, 82, 83, 44 S.Ct. 92, 94, 68 L.Ed. 171.

Michigan statutes authorizing state officials to contract with a railway for acquiring its existing right of way for highway purposes in exchange for a substitute right of way for the railway and to condemn, if necessary, the land for the substitute location of the railway and the action of the state officials thereunder was upheld in Fitzsimmons & Galvin v. Rogers (1928), 243 Mich. 649, 220 N.W. 881, 884 [5], holding, among other rulings, that such taking was for a public use and not for a private interest. Like issues were involved in Dohany v. Rogers (1930), 281 U.S. 362, 366, 50 S.Ct. 299, 301, 74 L.Ed. 904, 68 A.L.R. 434, where the court, citing, among others,, the Fitzsimmons case, supra, said with respect to public user under the federal constitution : “It is enough that, although the land is to be used as a right of way for a railroad, its acquisition is so essentially a part of the project for improving a public highway as to be for a public use. [Citations-omitted.]” See Annotation, 68 A.L.R. 442,. reviewing cases.

The condemnation of a private road over the land of a third party by a railway as a substitute private road for a landowner whose land and' only access to a public highway had been taken for railway purposes-was held a taking for public use in Pitznogle v. Western Md. Ry. Co., 119 Md. 673,. 87 A. 917, 46 L.R.A.,N.S., 319 [1].

In Tiller v. Norfolk & W. Ry. Co., 201 Va. 222, 110 S.E.2d 209, on account of the terrain the cost of construction of a spur track was prohibitive. The case is much like the instant case. The State Highway Department and the railway entered into a contract under which the railway was to-construct a portion of the spur track on the highway right of way and acquire land for and construct the highway on a relocation. The railway, in a condemnation proceeding, conceded there was no express-statutory authority authorizing it to condemn the substitute highway right of way,, but contended the general statutory authority listing various- grounds for condemnation of property by railroads “or for other necessary railroad purposes” was sufficiently broad to give it that right. After reviewing cases, the court considered the proceedings were in the public interest and for public use, and sustained the railway’s position (1. c. 213 [4 — 7]). See also Eminent Domain, Nichols, § 7.226; 18 Am.Jur. § 80; 29 C.J.S. Eminent Domain § 31, note 42.

In State ex rel. Bartholomew v. District Court, 126 Mont. 183, 248 P.2d 215, a case not cited by the parties, a private power corporation sought to condemn a substitute location for the portion of a United States highway to be flooded by the construction of a reservoir. The court assumed that the use was a public use but held the condemnor was without authority to condemn land for state highway purposes.

Section 227.240 gives the Commission control and supervision of the location and removal of public utility facilities, including pipe lines, within state highway rights of way insofar as the public travel and traffic and interference with the construction or maintenance of such highways are concerned; provided, however, that the effect of the order of the Commission shall not be to remove all or any part of such facilities from the right of way of the highway. State ex inf. McKittrick v. Southwestern Bell Tel. Co., 338 Mo. 617, 92 S.W.2d 612; State ex rel. State Highway Comm. v. Weinstein, Mo., 322 S.W.2d 778, 782 [1],

There was evidence to the effect that the traffic on Interstate 44 called for the construction of the proposed interchange here involved; that it was necessary to relocate the pipe lines from within the limits of the interchange for the proper and economical construction and maintenance of said highway, and that this conformed with the policy of the Commission, adopted in 1958, with respect to the “Location of Utility Facilities on State Highways.”

Under the contract between Phillips and the Commission Phillips releases to the Commission all its right, title and interest here involved in its existing right of way and the Commission grants to Phillips the right to locate and maintain its facilities upon the Commission’s right of way as shown on the substitute location.

The appropriation of land for just compensation by a common carrier of oil, gas and their products by means of underground pipe lines (§ 523.010) is for a public use within Art. I, § 26, Mo.Const. See State v. Shell Pipe Line Corp., 345 Mo. 1222, 139 S.W.2d 510, 519, 520; Phillips Pipe Line Co. v. Brandstetter, 241 Mo.App. 1138, 263 S.W.2d 880, 885, 886, and cases there reviewed.

At first of a different view, we think a study of the cases shows Relator vested with authority to secure a substitute location for the existing pipe lines here involved.

In State ex rel. State Highway Commission v. Curtis, Banc, 359 Mo. 402, 222 S.W. 2d 64, some of the lands and rights alleged to be necessary for the proper and economical construction of the highway were to be devoted to future public uses which had not been determined and were not definitely specified. A bill of particulars, filed in response to a motion on behalf of landowners, alleged that the uses of the land sought to be appropriated and which the plan on file did not positively show were to provide an adequate and necessary safety factor for all contingencies and developments in the construction, reconstruction, improvement and maintenance of the entire ultimate highway, “which may be reasonably anticipated, but which it is impossible at this time to foresee fully and to state and set forth definitely and in detail.” (Emphasis added.) One of the public uses specifically detailed was “room to take care of * * * public utility installations * * *” (222 S.W.2d 1. c. 66) ; and reference to the record on file here discloses that said paragraph of the bill of particulars read: “Room within which all public utility installations can best be located and maintained under Section 8757, R.S.Mo.1939 [now § 227.240], for the safety, convenience, and welfare of public travel and traffic, and where they will least interfere with the construction and maintenance of the highway.”

Notwithstanding all of the property was not to be occupied by the highway, the court ruled Art. IV, § 29, Mo.Const., authorized Relator to construct “limited access” roads, and now § 227.120 vested Relator “with authority to institute proceedings to condemn lands for right-of-way, and ‘for any other purpose necessary for the proper and economical construction of the state highway system.’” (1. c. 67 [3].) The court also held that the Commission, in exercising its discretion, was “not limited to the taking of only so much land as is actually necessary for the construction of the road, but may be governed by the purposes stated in its bill of particulars”; and that the Commission’s legislative action in determining just what land was necessary for the proper and economical construction and maintenance of State highways was not subject to judicial review in the absence of allegations and proof of fraud or bad faith or an unwarranted abuse of discretion (1. c. 69 [14]).

In the case before us the use of the substitute location has been determined. It is for an authorized public use. It is for the improvement of the highway. The Commission has found the appropriation necessary for the proper and economical construction and maintenance of Highway 44 of the National System of Interstate and Defense Highways (§ 227.120(3) and (5)) and for the removal of pipe lines under its control and supervision (§ 227.240) from an interchange on said highway. See also Mo.Const. Art. IV, § 30, Second (3), (d), and (5). Relator was authorized to appropriate the substitute location for the existing pipe lines to the extent here involved.

Does this action of Relator violate constitutional provisions to the effect that the General Assembly has no power to grant public money or property of the State to any private corporation? See Mo.Const. Art. Ill, §§ 38(a) and 39(2). Said § 38(a) also provides: “Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States.” State ex inf. McKittrick v. Southwestern Bell Tel. Co., Banc, 338 Mo. 617, 92 S.W.2d 612, was a quo warranto proceeding to prohibit defendant from maintaining its poles, wires and conduits on, over and under certain State highways, a privilege accorded defendant under what is now § 227.240. The State contended that said section was unconstitutional, being in contravention of Mo.Const.1875, Art. IV, § 46, reading: “The General Assembly shall have no power to make any grant, or to authorize the making of any grant of public money or thing of value to any individual, association of individuals, municipal or other corporation whatsoever * * That case pointed out that said § 46 prohibited “only gratuitous grants” of public money; and concluded (1. c. 614, 92 S.W.2d): “The General Assembly no doubt considered that the benefit to the general public arising from the promotion of the extension of • such [telephone] service justified the granting of the privilege of the use of the highways. While that benefit may not be said to be a formal consideration, as that term is generally understood, yet it is that benefit and that consideration which takes this grant out of the class of grants prohibited by the Constitution.”

Under the record before us a formal consideration passes to the State for the relocation of Phillips’ pipe lines; to-wit: The surrender of a portion of Phillips’ existing private right of way easement interfering with the proposed highway interchange. This involved factors closely connected with the safety and welfare of the traveling public and a right Relator could not compel Phillips to surrender without making some provision therefor. § 227.240 and Southwestern Bell Tel. Co. case, supra. A grant of public money to a private corporation is not established. See also quoted Mo.Const. provisions, Art. Ill, § 38(a) and Art. IV, § 30, Second (3) (d) and (5); Fitzsimmons & Galvin v. Rogers, 243 Mich. 649, 220 N.W. 881, 886 [7, 8]; Brown v. United States, supra.

Mention is made by condemnees that Relator alleges condemnees’ lands are subject to special benefits and that Phillips has no such right. Allegations respecting the measure of damages for the appropriation of the substitute strip for the relocation of Phillips’ pipe lines are not determinative of whether Relator stated a claim for the appropriation of said strip.

The judgment dismissing ¶¶[ 7, 30.20 and 30.21 of Relator’s petition is reversed and the cause remanded for proceedings not inconsistent herewith.

BARRETT and STOCKARD, CC., concur.

All of the Judges concur.

PER CURIAM.

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

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


author: LEEDY, Judge.

text:
    Patrick JETT, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Appellant.
    No. 48434.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.
    As Modified May 14, 1962.
    Robert C. Ely, St. Louis, for appellant.
    George R. Gerhard, William L. Mason, Jr., St. Louis, for respondent.
   LEEDY, Judge.

Action by Patrick Jett against Terminal Railroad Association of St. Louis to recover damages in the sum of $112,285 resulting from personal injuries allegedly sustained by him through Terminal’s negligence, and in which separate appeals have been taken by the parties, respectively; that by Terminal is from the judgment awarding Jett $15,-000, and in the other Jett appeals from the order overruling his motion for a new trial on the issue of damages only. The amount in dispute in the latter instance exceeds $15,000, hence appellate jurisdiction is in this court. See Rule 82.14(c), V.A.M.R.

1 .We consider first the appeal of Terminal for the reason that if either the giving of certain of plaintiff’s instructions or the refusal of one offered by defendant constituted reversible error, as contended by Terminal, we would not reach the question of inadequacy of the verdict, which is the sole subject matter of plaintiff’s appeal.

It is conceded that plaintiff’s case as made by the pleadings and proof comes within the doctrine of res ipsa loquitur. It was submitted as such, so in view of the nature of the points we are to consider it will be unnecessary to state the facts in any great detail, it being sufficient to say that plaintiff’s evidence was to the effect that he was injured at about 2 A.M., on July 16, 1959, when the automobile in which he was riding as a passenger (occupying the left rear seat) was struck at a grade crossing by a runaway, unattended, unlighted freight car. Penrose Avenue in the City of St. Louis, on which the automobile was proceeding eastwardly, crosses the defendant’s tracks at right angles. The freight car, rolling free down a 2% grade in a northwardly direction, struck the right side of the automobile, shoved it down the track for a distance of approximately 67 feet from the point of impact, then off to the side, and then it continued on, rolling a total of three miles before being overtaken and stopped by an engine alerted for that purpose. Plaintiff did not see the railroad car before it struck the automobile.

Defendant’s evidence, insofar as it may be pertinent to the first point we are to consider, was to the following effect: The railroad car was loaded with wallboard and was consigned to Central Hardware. On the afternoon preceding the accident, Terminal had undertaken to deliver the freight car to Central Hardware’s industrial track, but that track was filled, and by an arrangement with Superior Folding Box Company the car was stored temporarily on its industrial track, so that it could be delivered by Terminal to the consignee the following day, when there would be room on Central Hardware’s track. Superior’s plant is located at the southwest corner of the railroad crossing, and its industrial track begins at a switch immediately south of Penrose. There is a derail on Superior’s industrial track located approximately four car lengths south of Penrose Avenue. Terminal’s switching crew placed the freight car on Superior’s industrial track at about 1:20 PiM., on the previous day, July 15. It was shoved to a point approximately four feet beyond the derail, and was stopped there. The foreman of the crew, Ledford, testified that he placed a wedge shaped oak block under one wheel of the car and a railroad spike under another. He then pulled the pin of the couplers and the locomotive pulled back. After the locomotive had cleared the derail, Ledford placed the derail on the track, and then the crew went on about their switching operations. Either the oak block or the spike was sufficient to keep the car from rolling. The derail is a heavy metal device attached to the tie and hinged so that it can be raised on and off the rail. If the derail is on the rail, any car moving against it will be derailed, thus stopping it from rolling farther. No other cars were moved onto Superior’s track after the movement just described. Ledford’s crew is the only crew that worked in the area, and his crew left at 3 :30 P.M. Superior’s plant superintendent left work at 5 :30 or 6:00 P.M., and at that time he checked the derail and it was still on the rail. His company neither sent out nor received any cars that night.

The defense was that the accident was faked, and did not occur as testified to by plaintiff; that the automobile had been placed on the crossing, and the railroad car then caused or permitted to roll free, and that neither plaintiff or the three other supposed passengers were in the automobile when it was struck and carried down the track. The proof adduced in support of this defense was, of necessity, largely by way of circumstantial evidence, and which, while interesting, is not pertinent to the present inquiry. Taking notice of our own records, however, we know that in a companion case (Simpson v. Terminal R. R. Ass’n of St. Louis, No. 48,687, now under submission in this division, and which involved the claim of another of the supposed passengers) the same defense was interposed, and with success, in that the jury returned a verdict for the defendant.

The evidence clearly warranted the submission of the hypothesis of exclusive control over the freight car being in the defendant, and this was done by instruction No. 1, which was plaintiff’s verdict-directing instruction. Terminal concedes this was proper under the evidence and necessary to a recovery under the res ipsa doctrine. But plaintiff gave another instruction (No. 2) which elaborated on that element as thus submitted, and defendant claims that such instruction (No. 2) is reversibly erroneous. It reads as follows:

“The Court instructs the jury that with reference to Instruction No. 1, the meaning of the requirement in said instruction that the defendant, Terminal Railroad Association, have exclusive control and management of the boxcar mentioned in evidence does not mean, and is not limited to, actual physical control and management, but refers to the right of control and management by defendant at the times mentioned in evidence.

“In this connection, you are further instructed that if you find and believe from the evidence that at the times mentioned in evidence, the defendant, Terminal Railroad Association, had the exclusive right to the •control and management of the boxcar in question, the mere possibility that some third person, in no way connected with the defendant, may have tampered with, or altered the condition of, said boxcar so as to make it defective and dangerous to persons, or property does not relieve the defendant of its duty, under the law, to exercise ordinary care to manage, control and maintain said boxcar so that the same should not cause injury to persons or property.”

The propriety of the first paragraph is not questioned. Indeed, it is conceded. The vice of the instruction is charged to be in that portion of the second paragraph beginning with the words “the mere possibility that some third person.” The challenged language is obviously borrowed from the opinion in Bobbitt v. Salamander, 240 Mo. App. 902, 221 S.W.2d 971, 976, where the question involved was the propriety of only the words set out in the first paragraph of instruction No. 2 in the present case. The contention there was that the instruction made the defendant liable although his automobile was started by some other person unlawfully tampering with it, regardless of the owner’s right of control. In answering this argument, and after pointing out that there was no evidence in the case of anyone tampering with the car (which had been parked on a steep incline for eleven hours), the court quoted approvingly the following from 45 C.J. 1214: “However, where it is established that the thing which caused the accident was within the control of defendant, the possibility that some third person, who was an intermeddler and in no way connected with defendant, tampered with it so as to make it defective or dangerous does not defeat the application of the (res ipsa loquitur) doctrine.”

It will be seen that this statement of a rule of law as there applied to the question of the submissibility of a case under the res ipsa doctrine is now sought to be submitted (with slight adaptation for the purpose) as an instruction for the guidance of the jury. Defendant objects on the ground it is an abstract statement of a rule of law of res ipsa loquitur, and even though it may be technically correct as such, its application is to be found in determining the legal question of submissibility, and it should not be set forth in an instruction because to do so would be confusing and misleading to the jury.

While it is not necessarily error to give correct abstract instructions or statements unless they are confusing or misleading, and, therefore, prejudicial (Benham v. McCoy, (Mo.) 213 S.W.2d 914, 920), it is also held that the mere fact that a statement or language is found in an opinion of an appellate court does not authorize its inclusion in an abstract instruction to the jury. Detrich v. Mercantile Trust Co., (Mo.) 292 S.W.2d 300, 303-304. The latter case cites approvingly the following from Anderson v. Glascock, (Mo.App.) 271 S.W.2d 243, 248: “There are many expressions used in appellate opinions which are not proper for incorporation in instructions to juries. In passing upon motions for directed verdicts courts often say that plaintiff has made a prima facie case, or that certain facts authorize a presumption of negligence; but trial courts frequently may not use the same language, in instructions which submit to juries the finding of facts.”

The purpose served by, and the importance of, the requisite element of defendant’s exclusive control in res ipsa cases is in warranting the inference that defendant (father than someone else) was negligent. By- submitting under the res ipsa theory, and by the first paragraph of instruction No. 2, plaintiff had received the benefit of everything to which he was entitled as regards the element of control, but this instruction goes further. It not only deprecates the defense interposed (by reference to the “mere possibility” of tampering by some third person), but also charges a duty of care with respect to the injuring agency in such a way that the jury would be likely to understand that although it might believe that the acts of a third person (perhaps even plaintiff himself) did intervene, still that fact does not defeat plaintiff’s right to recover. The concept reflected in the abstract rule of law embodied in the instruction is directed to the court’s function, and not that of the jury. In view of the nature "of the defense and the circumstances 'surrounding the casualty, ■ we hold the challenged instruction No. 2 to be reversibly erroneous.

Defendant assigns error in the refusal of its instruction “A” and in submitting items “Three” and “Five” of plaintiff’s measure of damages instruction (No. 7), which items dealt with the subjects of permanent injuries and loss of future earnings. These assignments are based on the claim that the evidence was insufficient to show causal connection between the accident and the cerebral hemorrhage or stroke suffered by plaintiff four months after he returned to work (this notwithstanding there wasadmit-tedly proof of a resulting aggravation of plaintiff’s pre-existing hypertension). Wherefore it is argued that it was error to refuse instruction “A” which would have withdrawn that subject (stroke or cerebral hemorrhage) from the consideration of the jury; and, for the same reason, it was error to submit the elements of permanent injuries and future loss of earnings in instruction No. 7, there being, in defendant’s view, no evidence of any permanent injuries other than that resulting from the stroke, and that the aggravation of plaintiff’s hypertension was only temporary. These points turn on the interpretation to be given to the testimony of plaintiff’s physician, Dr. Law-ton, the defendant contending he did not testify that there was any such causal connection, and the plaintiff countering with the proposition the witness testified in such manner and to such extent as to justify the finding of causal connection. In view of this insistence on plaintiff’s part, it is thought that on retrial the evidence on this subject will likely be more specific so that the present objection will not recur, and for this reason we should not decide the point on the present record.

Apart from the question of whether • the “order overruling plaintiff’s motion for a new trial on the issue of damages only” (from which Jett’s notice states his appeal was taken), was appealable under Section 512.020 RSMo 1959, and V.A.M.S., or whether under a liberal construction of Rule 82.08 such designation in the notice is sufficient to authorize appellate review of the judgment itself insofar as concerns the adequacy or inadequacy of the amount thereof, the judgment cannot stand in any event because of the error in giving instruction No. 2. Therefore the question of the claimed inadequacy of the sum awarded is rendered moot, so plaintiff’s appeal, which involves only that question, should be, and it is dismissed. In fairness to plaintiff’s attorneys it should be made to appear on the face of this opinion, and we accordingly state, that it is not claimed that they were involved in any of the facts or circumstances on which the defense herein is founded.

For the reason noted, the judgment is reversed, and the cause remanded.

All of the Judges concur.