author: WELBORN, Commissioner. HOUSER, Commissioner

text:
    STATE of Missouri, Respondent, v. Raymond MOSLEY, Appellant.
    No. 51464.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Morris M. Hatchett, St. Louis, for appellant.
   WELBORN, Commissioner.

Raymond Mosley appeals from a judgment and sentence, imposing a 40-year term of imprisonment, entered, under the Habitual Criminal Act, upon a jury’s verdict of guilt of murder in the second degree.

The state’s evidence showed the following version of the events involved in this case:

The victim of the homicide, Elijah Frie-son, was a resident of Chicago. He and three brothers or stepbrothers had driven to St. Louis in Elijah’s automobile and had taken a 12-year-dld stepsister to the residence of Elijah’s stepfather, Fred E. Franks, Sr. They arrived at the Franks residence at approximately 2:00 A.M., August 23, 1964. The four men left the residence at 3100 North Market Street to go to a tavern at 1812 North Grand, operated by a stepsister. Elijah’s automobile, in which the group had traveled from Chicago, was left parked in front of 3100 North Market.

At the tavern, the men met three women, previously unknown to them. Because the tavern was required to close at 2:30, the women and some of the men decided to go to East St. Louis. The group was walking back to Elijah’s automobile. At 3103 North Market Street, Miss Gloria Jean Dickerson was seated on the front steps of her residence. Miss Dickerson recognized one of the women in the group, Mary Higgins, and called to her. Miss Higgins and Elijah crossed the street and the two women engaged in a good-natured conversation about Miss Dickerson’s pregnancy. Elijah did not know Miss Dickerson and, according to Miss Higgins who testified as a state’s witness, Elijah did not talk to Miss Dickerson.

After a brief visit, Miss Higgins and Elijah went across the street to Elijah’s automobile and the rest of the group. At about the time they got into the automobile, the defendant, Raymond Mosley, appeared and said to Elijah: “Man, don’t you ever say anything to my old lady.” Elijah, according to the state’s witnesses, replied: “If I said anything to your lady, I’m sorry.” Mosley replied: “Well, you better make sure you didn’t. If you did, I’ll blow your brains out.”

Elijah got out of the automobile and Mosley struck him, knocking his glasses off. Mosley then produced a gun and several of the group ran to the front door of the Franks residence. Mosley pointed the gun at one of Elijah’s stepbrothers and snapped it. He then fired three shots at the persons in the Franks doorway and Elijah was struck in the chest by a .45 caliber bullet which caused his death.

Gloria Jean Dickerson and the defendant were the only defense witnesses. Miss Dickerson, who admitted that the defendant was her “boy friend” and the father of the child with whom she was pregnant, testified that, when Miss Higgins and Elijah crossed the street to visit with her, she and Miss Higgins engaged in a friendly conversation but that Elijah demanded to know why she was sitting on the front steps at that hour of the night. According to the witness, Elijah began to curse her and said that no decent woman would be on the front steps at that hour of the night. Miss Higgins returned to the Frieson automobile, but, according to the witness, Elijah remained and continued to curse her.

The defendant came around the comer and asked what was going on. Elijah started cursing the defendant and ran across the street to his car. The witness said that Elijah ran across the street to his car, stuck his hand in the window and ran to the back end of the car and then into the doorway. Raymond crossed the street after Elijah ran into the doorway and ran up the steps. Then the defendant fell back down and rolled over on the ground. The witness said that she heard some shots fired but that she never saw a weapon in the hands of either Raymond or Elijah.

The defendant’s version of the affair was as follows: He had gone for some shrimp and when he returned, “I heard this particular fellow cursing and talking to her, and then I had the food still in my hand, and I set the food down. I first, I asked ‘what did you do to him?’ She said, T didn’t do nothing. I don’t even know him.’ I said to him, I said, ‘you are wrong; she don’t know you.’ He said, ‘what do you know about it ? I’m talking to her.’ Calling her all nasty names I wouldn’t say in front of ladies. He called her all kind of nasty names. He said — I forgot what time it was, but he said, ‘if you seen her on the front this time of morning, you up to no good. You are just like the other three I found in the tavern.' I told him he was wrong that was no proper way to talk to any lady, and if I was talking to his sister, what would he do, you know, and so he said, ‘I don’t know what’s wrong with you. I want some trouble anyway.’ He said, ‘I haven’t had any trouble since I have been in town.’ I sat down and finished talking to her, and he went back across the street. When he went back across the street, he reached over in the car. When he turned around, I saw him come out of the car, that’s when I ran over toward the car. He had the pistol in the hands when he came out. We were struggling for the pistol. The pistol shot up in the air first time, and then from around me, another man coming from around me— I didn’t know him either — he come around and I managed to knock the pistol on the ground, and me and the man got on the ground and struggled for the pistol, and the pistol shot again, and then that’s when everybody started running up in the doorway, and that’s when I dropped the pistol and I left.” The defendant did not testify that either of the shots which were fired during his struggle with the deceased struck the victim. The defendant said that he saw no wound on the deceased. He also said that he “would not know” whether he heard more than two shots.

There can be no doubt that the state’s evidence would authorize a finding of the appellant guilty of murder in the second degree. Appellant’s contention that proof of the essential element of malice was lacking is without merit. Malice, as an element of murder in the second degree, is “the intentional doing of a wrongful act without just cause or excuse” and does not mean spite or ill will. State v. Anderson, Mo.Sup., 375 S.W.2d 116, 119 [2, 3]; State v. Williams, Mo.Sup., 323 S.W.2d 811, 813 [5-8]. The state’s evidence showed that the defendant intentionally killed the deceased with a deadly weapon. Such evidence is sufficient to support a conviction for murder in the second degree. State v. Williams, supra; State v. Thomas, Mo.Sup., 309 S.W.2d 607, 609 [3-5]; State v. Hogan, 352 Mo. 379, 177 S.W.2d 465 [1, 2].

Appellant contends that the trial court erred in failing to instruct on manslaughter and excusable or justifiable homicide, stating that the evidence supported the giving of such instructions.

The allegations of appellant’s motion for new trial upon which these assignments are based are:

“2. The Court erred in failing- to instruct the jury on points of law properly raised by the evidence in that the Court failed to instruct the jury as to manslaughter which was fairly raised by the evidence, as required by Supreme Court Rule 26.02 (6).

“3. The Court erred in failing to instruct the jury on points of law properly raised by the evidence in that the Court failed to instruct on justifiable or excusable homicide each of which was raised by the testimony of the defendant, as required by Supreme Court Rule 26.02 (6).”

The assignments of error state no facts or theory upon which these instructions should have been given. In the recent case of State v. Cheek, 413 S.W.2d 231, 238 [17], the court stated:

“Supreme Court Rule 27.20(a) provides that a motion for new trial ‘must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.’ In discussing that rule we recently said: ‘Among other assignments in the motion for a new trial is the contention that the court erred in refusing to instruct on manslaughter; that such an instruction was requested and refused and that the facts in the case warranted such an instruction. We think this assignment wholly insufficient, under the facts of this case, to comply with Supreme Court Rule 27.20 in that it does not set forth in detail and with particularity the specific grounds or cause therefor, in that it does not indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction.’ State v. Luttrell, Mo.Sup., 366 S.W.2d 453, 459. To like effect, see also State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335 [15], State v. Kukovich, Mo.Sup., 380 S.W.2d 324 [10], State v. Sprout, Mo.Sup., 365 S.W.2d 572 [9], State v. Pope, Mo. Sup., 364 S.W.2d 564 [2], and State v. Benjamin, Mo.Sup., 309 S.W.2d 602 [8]. As we have indicated, defendant in the case before us, has completely failed to specify any facts in evidence which would have supported a submission of manslaughter by culpable negligence. In that situation we rule that this assignment wholly fails to comply with S.Ct. Rule 27.20(a) and hence does not preserve anything for review.”

The same conclusion is here applicable. Moreover, we do not find that the defendant’s evidence required instruction on either manslaughter or justifiable or excusable homicide. Miss Dickerson’s testimony would at most show verbal provocation. Such provocation is not sufficient to reduce the otherwise proven offense of second degree murder. State v. Parker, 358 Mo. 262, 214 S.W.2d 25, 27 [5, 6]; State v. Robinson, 353 Mo. 934, 185 S.W.2d 636, 639 [5]; State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38, 40 [2-4].

The appellant’s own testimony does not relate his activity to the fatal wound inflicted upon the deceased. No mention is made of either of the shots which defendant said were fired while he and the deceased struggled striking the deceased. In fact, the defendant said that he saw no wound on the victim. The state’s evidence, which the defendant did not contradict was that the deceased was shot while in the doorway, not in the street. If the two shots about which appellant testified were the only shots fired, the reasonable assumption could be that the second inflicted the fatal injury. However, appellant stated that he “wouldn’t know” whether he heard more than two shots and Miss Dickerson said that she heard “about two” shots. The defendant’s version simply would exculpate himself completely from any connection with the death of the deceased and therefore could afford no basis for an instruction on either manslaughter or justifiable or excusable homicide.

The matters of record, examined pursuant to Criminal Rule 28.02, V.A.M.R., are without error.

The judgment is affirmed.

HOUSER, C., dissents.

HIGGINS, C., concurs.

PER CURIAM:

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

HOLMAN, P. J., and HENLEY, J., concur.

SEILER, J., dissents and adopts as his dissenting opinion Memorandum of HOUSER, G

MEMORANDUM OF DISSENT

HOUSER, Commissioner

(dissenting).

As I understand defendant’s version of the facts the victim, after quarreling with defendant and stating that he was looking for trouble, crossed the street, reached into his automobile and came out of it with a pistol in his hand. Defendant, who in the meantime had run towards the automobile, struggled with the victim for the possession of the pistol. One shot was discharged into the air. Defendant managed to knock the pistol to the ground. Defendant then engaged in a struggle for the pistol with a third man, who “came from around” defendant. The two men “got on the ground” in their struggle, and the pistol was discharged a second time. “Everybody” started running up into the doorway. According to the state’s evidence, the victim was struck by the bullet while in the doorway. Defendant said that he dropped the pistol and left.

Defendant did not categorically deny that he pulled the trigger nor did he testify that he did not intend to shoot the deceased. It seems to me, however, that the plain inference to be drawn from the foregoing is that the victim was shot while standing in the doorway as a result of an unintentional and accidental discharge of the pistol occurring while defendant and the third man were on the ground, scuffling with each other for possession of the pistol.

As I have always understood the law, when a gun is discharged while defendant and the victim are scuffling or struggling for its possession, and death results, the court is obliged to instruct on the issue of excusable homicide. I see no substantial difference between the facts in this case and those in State v. Haygood, Mo.Sup., 411 S.W.2d 230. There defendant and the victim had words concerning a reconciliation. The victim came at defendant with a knife, stabbed him, and the parties started grappling. Defendant picked up a pistol off a table. While they were scuffling and as defendant was trying to transfer the gun from his right to his left hand he was again stabbed and the gun went off and shot into the ceiling. While defendant was holding the victim’s hand in which she held the knife the gun went off again, shooting the victim. Defendant at that time did not know that the victim was shot. On February 13, 1967 Division 2 held that under these circumstances it was plain error not to instruct on the issue of excusable homicide.

Other cases involving homicide as a result of scuffling for a gun, in which it was held that an instruction on excusable homicide was proper or necessary, are State v. O’Kelley, Mo.Sup., 213 S.W.2d 963 and State v. Hale, Mo.Sup., 371 S.W.2d 249. See also State v. Baker, Mo.Sup., 277 S.W.2d 627.

The proposed opinion suggests that defendant’s testimony does not relate his activity to the infliction of the fatal wound; that there is no testimony that either of the shots struck the victim. This seems to me to be an overrefinement in reasoning. It is apparent to me that there is circumstantial evidence of the fact that the second shot inflicted the fatal wound; that this is the plain inference to be drawn from defendant’s testimony. I cannot concur in an opinion which if adopted will affirm a conviction which carries a 40-year punishment, on such a hypertechnical basis, especially in view of the fact that only three months ago, under strikingly similar facts, this Court reversed a conviction of second degree murder on the ground that the failure to instruct on excusable homicide constitutes plain error.

I recognize that under State v. Cheek, et al., the assignment of error in defendant’s motion for new trial did not sufficiently raise the point that the court erred in not instructing on manslaughter, under previously decided cases requiring the supporting facts to be alleged in the motion.

Notwithstanding the point was not sufficiently developed in the assignment of error in the motion for new trial I believe that the judgment should be reversed and the cause remanded under the plain error rule. State v. Haygood, Mo.Sup., 411 S.W.2d 230, found good reason to invoke that rule in that case, and I cannot see any substantial difference in these two cases, as previously indicated. In Haygood Division 2 said, 411 S.W.2d, l. c. 232:

“We conclude that under the circumstances of this case the failure of the trial court to instruct the jury on defendant’s defense that the homicide was accidental was plain error under Criminal Rule 27.20(c). See State v. Reeder, Mo., 395 S.W.2d 209, 211.”


source: Caselaw Access Project

author: LAURANCE M. HYDE, Special Commissioner.

license: Public Domain

text:
    Mary HORTON, Plaintiff-Appellant, v. SWIFT & COMPANY, a Corporation, and Allen Cab Company, Inc., a Corporation, Defendants-Respondents.
    No. 52665.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.

      Sherman Landau, and Robert L. Wither-spoon, St. Louis, for appellant.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel and Robert E. Keaney, St. Louis, for respondent, Swift & Co.
    Sam Weber and Alan B. Weber, St. Louis, for respondent, Allen Cab Co.
   LAURANCE M. HYDE, Special Commissioner.

Action for $35,000.00 for personal injuries. At the close of plaintiff’s evidence, the court directed a verdict for both defendants. Plaintiff has appealed from the judgment entered. Thus the issue is whether plaintiff made a submissible case against either defendant.

Plaintiff testified that, while standing on the northwest corner of the intersection of Dickson and Jefferson Streets in St. Louis, she decided it would be necessary to take a taxicab to make connection with the bus she had to take at another intersection to reach the place of her employment on time. When traffic on Jefferson was stopped by a traffic light, she saw a cab standing in the third southbound lane to the east (there were four southbound lanes) and “pointed to him I was going in the direction towards Franklin Avenue.” Plaintiff said the taxi driver gave her a signal “to come on.” To reach the cab, plaintiff had to walk in front of a Swift Packing Company truck standing in the second lane to the east (to the right of the taxi). There were four southbound lanes and there was evidence that there were vehicles in all of them. Plaintiff said when she passed in front of the truck (which the driver said was about four feet from the north line of the pedestrian crosswalk) the truck driver “was looking at me” and continued to look “when I turned to go down in between the truck and the cab.” It also appears the truck had rear view mirrors. The truck was a closed body, two-and-a-half ton truck. Plaintiff further stated, “I opened the cab door to get in and the truck pulled up and knocked me to the ground.” The door opened toward the front of the cab. Plaintiff’s principal injury was to her right hand which she was using to open the door of the taxi. Plaintiff said she did not know whether her hand was caught between the cab door and the side of the truck (which seemed most likely from the nature of her injury), whether she fell on her hand or whether the truck ran over her hand. Plaintiff did not know what part of the truck came in contact with her.

Plaintiff could not estimate the distance between the truck and the cab except “there was room enough for me to walk down in between them, the truck and the cab.” The only other testimony on this was an indefinite statement of the truck driver, who testified as follows: “Q About how far was that cab from your truck. Specifically, about what distance separated the side of the cab from the side of your truck? A Well, those markers, I guess they must be — probably be about, maybe, a foot and a half or two feet between the white lines and my — and the cab. [The white lines marked the pedestrian crossing.] Q And the cab reached the pedestrian crossing before you made your stop or did it come up after you made your stop ? A I’m not sure about that. He must have come up around the side of me, but he was pretty well back, you know, the truck is a little bit longer than the car would be, and his front end — I mean his nose would be about where I was in the cab, see, it wouldn’t be up even with me. Evidently wasn’t. Q That is, the front end of the taxicab was not as far south as your position in the truck, is that true? A In the truck, no, I don’t think so. Q Had you seen the taxicab at any time before this accident occurred? A No, sir, I didn’t pay that close attention.” Plaintiff said she did not know where the front bumper of the cab was with reference to the front bumper of the truck. The truck driver also said he did not see plaintiff at any time before she was injured; that he was watching the red light; that he “hadn’t moved a foot” when he “heard somebody holler” ; and that he looked in his glass and saw plaintiff standing by the open door of the cab.

Plaintiff’s theory of liability of the cab company is that the cab driver was negligent in beckoning her out of a position of safety on the sidewalk and into a position of danger between the two vehicles. Plaintiff cites Miller v. Watkins, Mo.Sup., 355 S.W.2d 1, 90 A.L.R.2d 1426, in which the driver of a school bus, waiting for a boy to come to the bus from a house across the street, signalled a following truck “to come on through.” In coming through the truck struck the boy running to the school bus. We held that “ ‘waving the truckdriver through’ involved a foreseeable risk of, injury” to the boy under the circumstances of that case which included the school bus driver’s knowledge of the propensity of the boy to run to the rear of the bus without looking for traffic. Plaintiff also cites 13 C.J.S. Carriers § 724, p. 1356 as to the duty of a carrier to a boarding passenger as to dangers which exist at other than a regular stopping place including danger from passing vehicles. However, the evidence herein shows all the cab driver did was to signal plaintiff to come on. This was an indication that he would wait for plaintiff to come to the cab; but it cannot reasonably be considered a direction to open the cab door at the time and in the situation she did it. Plaintiff knew the truck was there when she passed in front of it and she could see how far the side of the truck was from the cab. The cab driver had nothing to do with opening the door and there was nothing in the evidence to show that he knew or could have anticipated that plaintiff would open it with her hand between it and the side of the truck or open it close to the truck before the truck moved away. The rule is thus stated: “Where a secpnd actor has or should have become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause.” Cohagan v. Laclede Steel Co., Mo.Sup., 317 S.W.2d 452, 457. Our view is that the cab driver’s signal for plaintiff “to come on” from the sidewalk to the cab was not the proximate cause of her injury but instead her injury was caused by her act in opening the door so close to the truck and the movement of the truck at that time. In any event, as hereinafter stated, we conclude that plaintiff’s conduct was contributory negligence as a matter of law.

Plaintiff’s theory of liability against Swift is that its driver was negligent in starting its truck forward when plaintiff was in a position of danger and in failing to give a warning before starting. One trouble with this theory is that it is based at least partly on the view that the front of the cab was equal with the front of the truck. There is no evidence to so show. The truck driver said the front of the cab was back of his seat on the truck and plaintiff said she did not know where it was. It is true plaintiff’s testimony that the truck driver was looking at her as she passed in front of it and turned to go along its left side (although denied by him) would be substantial evidence that he saw her, as he should have in the exercise of the proper degree of care. Nevertheless, she passed from his view in going back to the cab and thereafter he could have seen her only in his rear view mirror. Of course, he also had to watch the traffic signal to move when it changed, there being other traffic on this street.

Plaintiff cites Railway Express Agency v. Little, U.S.C.A.3rd, 50 F.2d 59, 61, 75 A.L.R. 963, holding that a pedestrian starting to cross a street with a favorable signal has the right of way over automobiles until reaching the opposite curb, saying: “If the defendant’s car moved forward with the signal without waiting for pedestrians properly on the crossing to get safely across, it was just as much a violation of traffic regulation as if it had moved against the signal.” However, that does not fit the facts of this case because plaintiff had passed in front of the truck and was not going to the opposite curb but went to the taxi. It appears from all of the evidence that plaintiff would not have been injured if she had waited to open the cab door until after the traffic light changed and the truck had moved away. Plaintiff lived near the intersection involved, crossed it frequently to get a bus to her place of work, and she knew that traffic would move when the traffic light changed. Thus no warning signal from the truck was required to give notice to her when it would move.

Plaintiff also relies on House v. Brant, 323 Pa. 53, 185 A. 628, in which a large concrete mixer truck stopped in an alley less than nine feet wide and people were walking in a space of only about two feet between the right side of the truck and a building wall. The truck driver moved it forward and to the right without warning and plaintiff was pinioned between the right rear wheel of the truck and the wall. The driver did not look forward or to his right and gave no warning, looking only to his left. Judgment for plaintiff was affirmed. We have very different facts. There is nothing in the evidence to indicate that plaintiff would have been touched by the moving truck if she had not opened the cab door. Plaintiff said: “There was room enough for me to walk down between them, the truck and the cab.” There is no evidence to show that the Swift truck did not move straight ahead. Our conclusion is (even if there was some negligence of the truck driver) that plaintiff’s action in opening the cab door so close to the side of the truck, when the traffic light was about due to change, was contributory negligence as a matter of law.

We consider Louisville Taxicab & Transfer Co. v. Swift, 306 Ky. 618, 208 S.W.2d 944, to be a similar case. There the plaintiff went to a cab waiting at an intersection with three other cars for a traffic light to change. Plaintiff went to the cab, opened the door with the help of the driver getting in as the light changed. A car between the cab and the sidewalk moved with the light and in passing the cab “sideswiped” its partially open door fracturing a bone in plaintiff’s leg. The court said: “Swift knew that the Broadway traffic light would change momentarily. He knew that the swirling traffic would soon engulf him if he tarried there in the deadly channel of its changing tide. He knew that the cars were lined up and waiting to hurry along the way. He knew that cabs, in the interest of public safety, had rules against opening their doors out in the no man’s land of the vehicular battlefield furnished by a busy metropolitan thoroughfare. Yet, Swift, in his purpose of boarding this cab, left the pedestrian safety lane, discontinued his previous progress toward sidewalk security, took sufficient time to pass between cars and to open the cab door but somehow took insufficient time to close the door quickly behind his complete entrance. All of this constituted, as we see it, contributory negligence, in the exclusion of which there would necessarily have been exclusion of Swift’s injury.”' Although there is nothing in this case about rules against opening cab doors out in the street, the cab driver in this case had nothing to do with opening the door, and we consider the act of plaintiff herein opening the cab door so close to a truck that she must have expected to move with the change of the light just as negligent as the conduct of the plaintiff in the Louisville Taxicab and Transfer Company case. See also Danzo v. Humfeld, Mo.Sup., 180 S.W.2d 722; Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663; Annotation, 75 A.L.R.2d 988, 999.

The judgment is affirmed.

PER CURIAM: The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    Larry J. BERRY and Phyllis Berry, Respondents, v. Kenneth Driggs RIDGEWAY, Appellant.
    No. 52266.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Charles H. Howard, Hendren & Andrae, P. Pierre Dominique, Jefferson City, for respondents.
    Tweedie Fisher, Jefferson City, for appellant.
   PRITCHARD, Commissioner.

Two questions are presented: (1) Whether the trial court erred in permitting plaintiff, Larry J. Berry, to testify that he owned the motor vehicle involved in the accident (for the damage to which plaintiffs recovered a $1,000 judgment) over objection that the title was the best evidence of ownership; (2) whether the damages, $40,000, awarded Larry J. Berry for personal injuries are excessive.

Larry J. Berry testified that on July 29, 1965 (the date of the collision), he had a 1960 Pontiac two-door hardtop, a Ventura, with power steering, power brakes and power radio antenna. The vehicle was in excellent condition. Berry was then asked:

“Q Did you own this automobile?
“A Yes, sir.
MR. FISHER: Now, just a moment. I didn’t have an opportunity to object before it was answered. The title is the best evidence.
THE COURT: Well, that may be so, but he can testify he owns it.
MR. FISHER: I ask his answer be stricken.
THE COURT: Overruled.
MR. FISHER: And the jury told to disregard it.
THE COURT: Overruled.”

Then on cross-examination of Berry by counsel for defendant, the following was elicited:

“Q Now, Mr. Berry, I believe that I’m quoting you right. This is when I made that objection, the certificate* of ownership was the best evidence. Did you say that you yourself owned the automobile?
“A Well, it was in — the title was in my wife’s name and mine.
“Q When you said this originally, on the stand, you didn’t mean that only you owned the automobile ?
“A No.”

On April 13, 1966, during the trial and by leave of court, Count III was filed alleging that plaintiffs were the owners of a 1960 Pontiac automobile, which was damaged as a direct and proximate result of defendant’s negligence in the amount of $1,100, for which judgment was prayed.

If any error occurred in the overruling of defendant’s objection to Berry’s direct testimony it was rendered harmless by the fact of the true state of plaintiffs’ automobile title (being joint) being brought out by defendant’s cross-examination of Berry.

Berry was pinned in his car as a result of the collision, with both legs fractured. Prior to the collision, he was in good health, married, with two children, and at the time of trial was 24 years of age. He was hospitalized 29 or 30 days, returning thereafter for treatment as an outpatient. While he was in the hospital he was twice operated upon, with two steel pins being put in his left leg above the ankle. When he was discharged, he wore casts on his legs from the toes to about the middle of his thighs. During all this time he was in pain. He was bedfast or in a wheelchair for six months after he left the hospital, and at the time of trial was using crutches.

The medical testimony is that Dr. Larry B. Klebba, M. D., cared for Berry from July 29 to August 23, 1965, seeing him on the first day (the day of the collision). The left leg above the ankle was doubled under, with +V bone orotruding through the skin, and a deep laceration through the muscle. There was a comminuted fracture of the right kneecap, and the right ankle was fractured. In detail, he found that Berry sustained fractures to the left tibia and fibula, left kneecap, left heel bone, left navicular bone.' As to the right leg, he found a comminuted fracture of the right kneecap, three separate ankle fractures, and two fractures of the tibia. He also had a large bruise of the left forearm and bruises of the chest. Dr. Klebba first gave Berry sedation, straightened the leg, then took him to surgery where operations were done on the left leg, both kneecaps, placing of wires on the right kneecap and pins in one leg; casts on both legs from midthighs to toes.

Berry was seen by Dr. Fred O. Tietjen, M. D., whose specialty is orthopedics, on August 16, 1965. He testified that Berry’s injuries were compound fractures of the left tibia and fibula, multiple closed fracture of the right kneecap, closed fracture of the navicular and calcaneus bones of the left foot, closed fractures between the lower end of the right fibula and fracture of the medial malleolus and a tri-malleolar fracture of the back side of the tibia, and a fracture of the nose. Dr. Tietjen performed a second operation on the left knee, removed a bone fragment therein and reattached the ligament below the left knee by stainless steel wire. There has been satisfactory healing of the wound and fracture. According to Dr. Tietjen, the fractures of the right foot caused it to be a half inch shorter with a higher arch, necessitating the wearing of a different size shoe. Arthritis could be expected in the feet and knees because of injury to the joints, which would never be normal. On April 4, 1966, his examination revealed that Berry had 50% loss of motion of the right knee, 75% to 100% of the usual motions of the right and left ankles. Berry was totally disabled at the time of trial and would remain so for three more months. Considering him as a whole man, he sustained permanent partial disability, being 60% to 70% of the man he was before he was injured.

The medical expenses were: Dr. Klebba $400; hospitalization $1,082; Dr. Bowe $112; pain pills $3; Dr. Tietjen $495; and ambulance $15. It was estimated that future medical expenses would be $200, totaling $2,307. As a life insurance salesman for United Life Assurance Society, Berry drew a weekly advance of $100, without deduction for income taxes or social security taxes. Such advance was to be charged against commissions to be earned. He drew the advance from July 29, 1965 until the date of trial, April 12, 1966, forty-six weeks, totaling about $4,600, which he testified was to be charged against commissions and future commissions. He earned no commissions during the course of his disability after the collision. There was no evidence to show what commissions Berry was earning at the time of his injury so as to determine with some certainty the net amount which would normally be due his employer. In other words, what part of the $4,600 total advance was lost because of Berry being unable to earn commissions. In view of the seriousness and permanency of his injuries, however, the earnings loss need not be considered in affirming this $40,000 award in accordance with the rule of reasonable conformity therewith. Johnson v. Missouri-Kansas-Texas Railroad Company, Mo., 374 S.W.2d 1, 6 [8, 9].

The cases cited by defendant in support of his contention that the verdict is excessive are not precedent for injuries suffered by plaintiff Berry. Boehm v. St. Louis Public Service Company, Mo., 368 S.W.2d 361, involved a trial court award of $32,500, remitted in this court to $25,000, for a leg injury to an eleven-year-old girl, with no other member or organs of plaintiff being injured (but with two months’ hospitalization, emerging therefrom with a permanently damaged and distorted leg and a permanent limp). In Statler v. St. Louis Arena Corporation, Mo., 388 S.W.2d 833, the plaintiff was forty-seven-years old, had $3,000 special damages, one-third permanent partial disability because of a fracture to his left ankle, and with impaired peripheral-vascular disease of both lower extremities (a condition probably pre-exist-ing), which condition was slightly more severe on the left side. Affirmed, after remittitur of $6,500, was a judgment for $16,000. Kiger v. Terminal Railroad Association of St. Louis, Mo., 311 S.W.2d 5, six years before Berry’s injury, affirmed $20,000 after $10,000 remittitur for a temporary compression injury in the cervical vertebrae, with permanent scar tissue in the neck and shoulder muscles, with probable partial herniation of a disc in the low back, with prognosis of arthritic changes in some years, to a thirty-year-old plaintiff. A $20,000 award, said to be liberal, was affirmed in Moss v. Courtaway, Mo., 400 S.W.2d 160, for fracture to the left knee of a forty-six-year-old woman, with no medical expenses being submitted, and there was no loss of income. Each of these cases involves injuries to only one limb, with less disability, or the injuries proved are not comparable (as in the Kiger case).

In the 1958 case of Johnson v. Flex-O-Lite Manufacturing Corporation, Mo., 314 S.W.2d 75, a $30,000 award to a thirty-nine-year-old man was affirmed for a com-minuted fracture of the right femur and also of the head of the left tibia, both of which required extensive surgery with pins, screws and bolts to hold the parts in place. There was also a severe concussion, with lacerations and contusions over other parts of his body. The permanent disability was set by medical experts at 75%. He was in the hospital on four different occasions for a total of 116 days, with special damages over $4,000, and loss of earnings over $6,000. In Hahn v. Terminal Railroad Association of St. Louis, Mo., 355 S.W.2d 867, there was $25,000 special damages to a forty-five-year-old man who suffered severe injury to his right lower leg, and a $65,000 award (voluntarily remitted $25,-000 and in compliance with the trial court’s order, a further $10,000, from a $100,000 verdict) was affirmed.

Considering Berry’s youth, the extent of his permanent disability, the hospitalization and operations required, the award is not manifestly excessive, certainly it is not grossly so. See and compare the collected cases for injuries to both lower extremities, 16 A.L.R.2d 3, 254 (Sec. 107), and 2 A.L.R. 2d, Later Case Service, p. 640, covering fracture injuries to both legs.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

EAGER and DONNELLY, JJ., FINCH, P. J., and STUBBS, Special Judge, concur.


author: BARRETT, Commissioner.

text:
    Cornell TRIPP and Beatrice K. Tripp, Respondents, v. Wendell CHOATE and Bruce Larkins, a Partnership, d/b/a Larkins and Choate, Appellants.
    No. 52310.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Joslyn & Josyln, Charleston, for respondents.
    Dwight Crader, Sikeston, for appellants.
   BARRETT, Commissioner.

In this action for the wrongful death of their son Ronnie Tripp, age 16, while employed by the appellants, Choate and Lar-kins, a jury awarded the parents, Cornell and Beatrice Tripp, $25,000.00 damages. The charge and submission of negligence and liability was that his employers knowingly used Parathion DDT, a poisonous chemical, as a corn spray and directed Ronnie’s mixing of the chemical with water but “failed to provide reasonably safe protective devices” resulting in Ronnie’s death.

Since 1958 Wendell Choate and Bruce Larkins have successfully specialized in the production and marketing of sweet corn. The particular part of their large commercial enterprise involved in this action is a partnership in 250 acres of land near Do-rena in Mississippi County. This phase of the operation was immediately directed by Larkins with three employees, Willmor Caldwell, a supervisor with eight years’ experience in growing sweet corn, Pete Smith, a laborer, and for ten days in June 1964 Ronnie Tripp, also a laborer.

From the beginning of their sweet corn operation Choate and Larkins employed Parathion DDT as an insecticide. The dictionary definition of parathion is an “insecticide * * * of extreme toxicity to mammals as well as insects.” Webster’s Third New International Dictionary. To apply the chemical on this 250-acre tract they employed two “Hi-boys,” three-wheeled machines for “high clearance spraying” of eight rows of corn at a time. Mounted on each hi-boy was a 200-gallon tank with necessary motors to propel the machine and spray its contents. The corn was sprayed more than once a season but during a spraying operation Caldwell said they sprayed 10 to 70 to 100 acres a day. A 200-gallon tank emptied every 30 to 35 minutes and so had to be refilled twice an hour or for the two machines four times in an hour. The Parathion DDT came in 55-gal-lon drums and it was Ronnie’s job to draw the chemical from the drums and mix it with water in the 200-gallon tanks, three and one-half gallons of chemical to 200 gallons of water. At the end of the field there was a one-thousand-gallon water tank with a twelve-foot hose, the machines stopped near the water tank and Ronnie would insert the hose in the top of the spray tank, start the water running, draw from the “spring-load bung” of the drum 3½ gallons of Parathion DDT in a fiber glass container with a spout, reach up “shirt-pocket high” and pour the chemical into the tank and close its lid. He withdrew the hose from the spray tank and replaced it on the water tank. Mr. Larkins was of the opinion that 55 gallons of Parathion DDT were used each day and that the spray tanks were filled approximately 15 times each day. He said that from reading the labels on the drums he had learned that Parathion DDT was “poison, that’s one thing, for sure, I can remember. It does say they are poison.” And during his spraying operations over the years he had had employees who became ill from the chemical and he had taken them to doctors and hospitals for treatment. The supervisor, Caldwell, said that the chemical had a distinct odor and he knew that it was dangerous and “believed it would” kill human beings.

Larkins said that he was not present when Ronnie started to work and he left it to Caldwell to instruct Ronnie as to his duties and to warn him of the dangers incident to the tasks. But he had personally instructed Caldwell and others “to be careful with the DDT and Parathion. To be careful of the machines because they would turn over. Be careful and cautious and if he did spill any of the chemical on him to wash it off if it was on his skin. If it was on his clothes, to go home immediately and change clothes and take a bath. Not to smell any of the vapor, always park the machines and stay on the upwind side of them.” Caldwell said that he instructed Ronnie “whenever he was handling it, to wash his hands and never to go down through a field that has been sprayed, and if he was running the machines and one of his nozzles happened to stop up, not to attempt to unstop it to reach the end, and if he got any on him, to go home and change clothes and wash it immediately, and I always told him to smoking a cigarette, to catch it with two fingers and take the bottom side up to smoke it.” And he “was always told to stay on the upwind side.” This was the extent of the warning to Ronnie and the extent of Choate’s and Lar-kins’ instructions to employees.

The conspicuous label in black and red type on yellow paper, together with skull and crossbones, had this warning in capital letters: “WARNING. POISONOUS IF SWALLOWED, INHALED OR ABSORBED THROUGH SKIN.” Beneath the warning in capital letters were these further warnings and specific instructions (emphasis supplied): “Rapidly absorbed through skin. Wear natural rubber gloves, protective clothing and goggles. Do not get on skin or in eyes or clothing. In case of contact remove clothing, wash thoroughly with soap and water * * *. Do not breathe spray mist or vapors. Wear a mask or respirator of a type passed by U. S. Department of Agriculture for Parathion protection. Keep all unprotected persons and animals out of operating area or vicinity where there may be danger of drift. * * * Wear clean clothing daily. Wash all contaminated clothing with soap and hot water before re-use. Wash hands, arms and face thoroughly with soap and water before eating or smoking.”

Choate, Larkins and Caldwell had all read that label and despite its specific instructions no gloves, goggles, respirators or protective clothing were furnished. Caldwell said that he followed the instructions of Choate and Larkins but he never knew that these protective devices were required and as to the label he said, “I had read it but slipped my remembrance.” Choate and Larkins had two respirators but they were never used or offered to employees. Choate remembered some of the instructions on the label but he said that there was “Not that I know of” any specific direction to wear rubber gloves. As to protective clothing or goggles he said, “If there is, I don’t remember.” Larkins knew that Parathion was “poison, that’s one thing for sure” but he could only remember the directions as to washing “if you spill any on you,” he did not remember about gloves, goggles and protective clothing.

On the tenth day of his employment, Sunday, about 2:45, “when we wound up with the spraying,” Ronnie complained of feeling bad and Caldwell asked if he wanted to go to a doctor but Ronnie said “ ‘No,’ he think he drank some water on an empty stomach” and so Caldwell took him home. His mother said that he got out of Caldwell’s car about 4 o’clock and after he bathed and changed clothes was too sick to eat supper. His father first saw Ronnie at 4 o’clock in a few minutes he went to the back door vomiting, he came back in laid on the floor a few minutes went outside vomiting again and had an involuntary bowel movement. His father and mother bathed him again but “his head was hurting and he was sick to his stomach.” His “eyes looked funny” and they drove him seventeen miles to East Prairie and he was ill again in the automobile and Dr. Weaver made arrangements for Ronnie to be admitted to the hospital in Sikeston. About 6:30 Ronnie was taken by ambulance to Sikeston and by then “white foamy stuff was rolling out of his nose and mouth” and he did not respond to his parents’ talk. At 10:20 on June 21, 1964, Ronnie died, the death certificate reciting that death was caused by “chemical poisoning toxic corn spray.”

In this background the appellants Choate and Larkins’ liability to Ronnie, now to his parents, rests upon the most elemental of tort obligations, illustrated by Reickert v. Hammond Packing Co. (1909), 136 Mo.App. 565, 118 S.W. 525, an employee injured by caustic soda while cleaning his employer’s iron meat trees, and Marsanick v. Luechtefeld, Mo.App., 157 S.W.2d 537. In the latter case the plaintiff suffered burns from muriatic acid while cleaning his employer’s brick walls. Against his employer plaintiff pleaded failure to warn and that he “was directed to wash said walls with a brush dipped into muriatic acid, without being furnished gloves or a mask, or other covering to protect his hands, arms, and face from being burned, when defendant knew, or by the exercise of ordinary care could have known, that in doing said work without such protection plaintiff was likely to be burned by said acid”. Briefly as to the fundamental rules applicable here the court said, “an employer is bound to exercise reasonable precaution against injury to his servant while employed in his service. Not only must the master provide suitable and safe instruments and means with which the servant may carry on his work, but the master must warn the servant of all dangers to which he will be exposed in the course of the employment * * Peculiarly applicable here is the herbicide case of Holladay v. Chicago, B. & Q. R. Co., D.C., 255 F.Supp. 879, in which a switchman suffered peripheral neuritis from contact with sprayed weeds. The court pointed out that the railroad was not an insurer of the safety of its employees but was liable only for negligence which included foreseeable harm. See also for the general rules 53 A.L.R. 392 “Master’s liability for injury to servant by disinfectant or similar substance,” and 12 A.L.R.2d 436, injury upon spraying crop, and 74 A.L.R.2d 1029 “Master’s liability for servant’s condition or injury resulting in dermatitis,” and Evinger v. Thompson, 364 Mo. 658, 265 S.W.2d 726.

The appellants do not directly challenge the applicability of these fundamentals; they contend that their motions for judgment should have been sustained because they say there was no evidence that their failure to furnish gloves, goggles, masks or protective clothing “directly caused or directly contributed to cause the death of Ronnie Earl Tripp.” To precisely understand this general assignment it is necessary to turn to the argument section of their brief where the subject is fully explored and expounded. They say that Dr. Sarno, the attending physician in Sikeston, said that Ronnie’s symptoms were similar to sunstroke, that there was some doubt in his mind as to the nature of his illness and\ he could not say with medical certainty that gloves, goggles and protective clothing “would have prevented exposure” and most important “he could not say with reasonable medical certainty how the exposure came about in the case of Ronnie Earl Tripp.” The point is repeated, “Respondent’s only medical witness could not say with reasonable medical certainty how the exposure came about, therefore, Respondents failed to make a submissible case against Appellants.” In support of their argument the appellants rely upon James v. Sunshine Biscuits, Inc., Mo., 402 S.W.2d 364, in which the employee died of food poisoning — food that she had bought outside the plant. The charge of negligence, which in itself distinguishes the cases, was failure “to obtain prompt medical attention for such employee.” The circumstances need not be detailed here, the court concluded “it is apparent from the facts previously detailed that plaintiff failed to produce substantial medical evidence that delayed medical care caused or contributed to cause the death.”

It was in anticipation of this particular assignment that the facts surrounding Ronnie’s working conditions and the course of his illness were set forth in some detail. And without ponderous demonstration these circumstances unquestionably show Ronnie’s exposure to the very dangerous and toxic chemical Parathion DDT. Dr. Sarno saw Ronnie wheeled into the hospital and he said, “When I first saw him, he was cyanotic or blue, couldn’t breathe. He had a thick jelly-like mucus coming from his nose and from his mouth. His eyes were watering. He smelled as though his bowels had been moving and he had a diarrhea. He was unconscious, could not talk. His muscles were very rigid, and when you touched him, he just went into convulsions and spasms and his muscles seemed to be twitching all over. Dr. Sarno’s diagnosis was that “this boy-had died of a chemical poisoning when I heard the history of the type of work he had been doing, and it was obviously a case of parathion poisoning, insecticide poisoning.” On cross-examination the doctor said that Ronnie “had some of the symptoms” of sunstroke but he repeated the symptoms and again said “there is no doubt in my mind that this boy died of parathion poisoning.” Rather than like death from sunstroke the doctor said that Ronnie’s death was “very similar to a type of death like from taking strychnine or in World War I it is related to the type of gases that were used in World War I, particularly phosgene gas is an aniline and derivative of the same type of chemicals as parathion.”

Dr. Sarno did say on cross-examination that he did not “know what caused his exposure, whether it was gloves. That would have been one portal of entry. Whether or not that was the portal of entry in his case, I could not say.” He noted particular symptoms of parathion poisoning, “his eyes were very, very full of tears, watery substance similar to tears” but whether it was due to exposure of the eye mucous membrane to the parathion he could not say. He did say that if gloves or clothes were contaminated “He would be continually exposed.” He said that the chemical had a “cumulative effect” meaning “it accumulates in the body” and “(i)t is very rapidly absorbed by the skin.” As to how parathion enters the body, Dr. Sarno said, “It can enter in several ways. It can enter by contact with the skin, direct exposure of the skin or mucous membranes to the insecticide. It can enter by breathing it in. It can enter by swallowing it or getting it in your eye.” Caldwell said that on occasion in handling the materials some parathion had gotten on him and when asked whether Ronnie had “occasion to do the same” replied “I imagine he did.” Dr. Sarno said of Ronnie “His lungs were completely filled as though he had died from drowning. * * * That is very typical of deaths from this cause.” And while the doctor could not say “what type of exposure he had” he said, “Certainly he had some of the type(s) of exposure, if not all of them, but just which one, it would be difficult to say.” And again he said, “this boy died of parathion poisoning” and the poison enters the body “through the tissues. * * * it had to be absorbed in one of those three ways. There is no other way.”

La Plant v. E. I. Du Pont De Nemours & Co., Mo.App., 346 S.W.2d 231, was an action for damages for the death of plaintiff’s cattle from eating willows sprayed with the defendant’s brush killer Ammate X. One of Du Pont’s three-part defenses was that its motions for directed verdicts should have been sustained “because the evidence was insufficient to permit a finding that any of plaintiff’s cows ingested sufficient nitrates to cause death.” The court carefully reviewed the entire record and concluded “No useful purpose could be served by our reviewing and repeating, sifting and sorting, elucidating and elaborating upon, the facts hereinbefore detailed. Suffice it to say that we are satitfied that, upon the record presented, the issue as to whether plaintiff’s cows died of nitrate poisoning from eating the sprayed willow leaves was for the jury and may not be ruled as a matter of law.” If upon the record in that case it was a fair and permissible inference that plaintiff’s cows had ingested sufficient quantities of willow leaves and brush killer to result in their deaths, a fortiori the facts and circumstances detailed here support the inference and finding that Ronnie Tripp ingested lethal quantities of Parathion DDT either by inhalation or by absorption through the skin or the membranous tissues of the eyes or, as Dr. Sarno said, “if not all of them.” See also Holladay v. Chicago, Burlington & Quincy R. Co., and Evinger v. Thompson, supra.

The appellants’ other assignments of error relate to the damages and the measure of damages instruction. It is urged that Instruction 4 upon the measure of damages for the death of a minor child (M.A.I. 5.03) is erroneous because, they say, it permitted the jury to consider “exemplary or punitive damages” which were “improper elements” and, further, did not “compute the parents’ damages as the value of the child’s services during minority less the expense of raising the child to maturity.” In the argument portion of their brief it appears that the objection is to that part of the instruction submitting the “aggravating circumstances attending the wrongful act, neglect or default resulting in such death.” RSMo 1959 Supp. § 537.090, V. A.M.S.; M.A.I. Inst. 5.93. From their citation of cases, particularly Boyd v. Missouri Pacific Ry. Co., 236 Mo. 54, 139 S.W. 561, it appears that the basis of their complaint is that there was no evidence warranting the submission of “aggravating circumstances.” But referring specifically to appellant’s assignment, while as the Boyd case says “aggravating circumstances” may not be submitted except in circumstances of “wilfulness, malice, wantonness, reckless, or conscious negligence or wrong intent” all the equivalent of permitting exemplary damages, there is in point of fact no reference in Instruction 4 to punitive or exemplary damages and there was no testimony on the subject. And there is no requirement in M.A.I. 5.03 that a specific formula be applied in computing the damages, the M.A.I. direction is “such sum as you believe will fairly and justly compensate them for the damages which you believe plaintiffs sustained, (and are reasonably certain to sustain in the future) as a direct result of the death of their child and which can reasonably be measured in money.” In Richeson v. Hunziker, Mo., 349 S.W.2d 50, there were no eyewitnesses to the collision of motor vehicles other than the deceased and the defendant who did not testify, nevertheless, the court after examining the circumstances and reviewing all the rules under § 537.090 concluded that “the issue of aggravating circumstances was for the jury.” In May v. Bradford, Mo., 369 S.W.2d 225, the court examined the circumstances of an automobile-truck collision resulting in the death of plaintiff’s wife and concluded, 369 S.W.2d 229, “The jury could reasonably have found from the evidence that the conduct and acts of the defendant Bradford were reckless and wanton and in gross disregard of the rights and safety of the occupants of the Buick automobile and others on the highway. * * This and other evidence tended to show aggravating circumstances within the meaning of the statute and the court did not err in giving Instruction No. 2.” It would serve no useful purpose to analyze certain of the circumstances detailed here and characterize the conduct of the parties, it is sufficient to say that if aggravating circumstances were a jury question in the Richeson and May cases it follows as a matter of course that this record likewise warrants their inclusion and submission.

The appellants’ final point is that they “are entitled to a new trial because the verdict in the sum of $25,000.00 is so grossly excessive as to be conclusive evidence of the fact that it was the result of passion and prejudice on the part of the jury.” The only authority cited in support of this assignment is § 537.090 which since 1955 (Laws of Mo. 1955, p. 778) permits the jury to award surviving parents not to exceed $25,000.00 “as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such ■ death” and, when supported, the attendant aggravating circumstances. It is surprising that this particular assignment of error would be repeatedly urged, under this statute, as well as in other instances and cases, this particular assignment is addressed, in the absence of manifest abuse of discretion, to the trial court. “The trial court was entitled to weigh the evidence and infer bias and prejudice from the size of the verdict alone.” Hartz v. Heimos, Mo., 352 S.W.2d 596, 604; Brewer v. Rowe (en banc), 363 Mo. 592, 252 S.W.2d 372, 376. The fact that a verdict is very large, even excessive, does not in and of itself demonstrate passion and prejudice, and it is the established practice in this jurisdiction to cure the error of excessive verdicts by enforced remittiturs. Joice v. Missouri-K.-T. Railroad Co., 354 Mo. 439, 453, 189 S.W.2d 568, 576, 161 A.L.R. 383.

Cornell Tripp, age 42, is a part-time day laborer and sharecropper in twenty acres of cotton and in addition to his wife and Ronnie has six children. Ronnie, age 16 and in his first year of high school, had “worked out” other summers-, the defendants were paying him $75.00 a week and Mrs. Tripp said that he always brought his money home and gave it to her and she “would keep it to help buy groceries and buy school clothes for him and the other six kids.” And here as in Brewer v. Rowe, ’supra, in which maximum recovery was permitted for the death of a boy eleven years old, and in Hartz v. Heimos, involving a daughter eighteen, also awarded the maximum, it may not be said that this verdict is manifestly excessive and therefore subject to remittitur in some definite amount. “There can be no substantial evidence as to the probable net value of his future service to his parents. In such a case, we deem it to be the expressed intent of the Legislature that the jury, not the trial or appellate court, fix the amount of the award ‘as they may deem fair and just.’ And too we think the jury is more able and likely to arrive at a fair and just award than the reviewing court. This, for the reason that the jury in most cases sees the parents and learns something of their station in life and the surrounding circumstances under which the child lived and was being reared.” (252 S.W.2d l. c. 377).

For the reasons indicated the judgment is affirmed.

STOCKARD and PRITCHARD, CC., 'concur.

PER CURIAM.

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

EAGER and DONNELLY, JJ., FINCH, P. J., and STUBBS, Special Judge, concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Roy KIMES, Appellant.
    No. 52678.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.

      Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
    Roy Kimes, pro se.
   WELBORN, Commissioner.

This is an appeal from a judgment denying a motion to vacate sentence under Missouri Supreme Court Rule 27.26, V.A.M.R.

Three informations were filed in the McDonald County Circuit Court, charging Roy Kimes with three offenses. In Case No. 2545, he was charged with burglary, on March 18, 1960, of the post office at Powell, Missouri. In Case No. 2547, he was charged with burglary of the post office at Jane, Missouri, on March 18, 1960. Case No. 2561 charged appellant with breaking custody and escaping from the McDonald County jail on September 4, 1961.

On September 15, 1961, the appellant appeared in the McDonald County Circuit Court and pleaded guilty to the charge in each of the three informations. In Case No. 2545, burglary of the Powell post office, the sentence imposed was a term of imprisonment of eight years, in 2547, burglary of the Jane post office, five years, and in 2561, escape, two years. The transcript of the proceedings at the time of the entry of the pleas and the sentencing shows that the court stated to the appellant: “All sentences here entered against you are to run consecutively.”

The judgment and sentence in Case No. 2545 recited that the eight-year term of imprisonment was “to run consecutively with Case 2547, to commence on the 15th day of September, 1961.” In Case No. 2547, the language employed was that the five-year sentence there imposed should “run consecutively with Cases 2545 and 2561, to commence on the 15th day of September, 1961.” In the third case, No. 2561, the sentence was for a term of two years “to run consecutively with Cases 2545 and 2547, to commence on the 15th day of September, 1961.”

By his motion to vacate the appellant alleged that the sentences imposed upon him are ambiguous insofar as the court purported to make them run consecutively. According to the petition, “[wjith all three sentences commencing on September 15, 1961 * * * the sentences could not be served consecutively, but would be served concurrently.” The trial court denied relief on the grounds that a motion to vacate, under Criminal Rule 27.26, V.A.M.R., must be confined to an attack upon a single judgment and a motion attacking more than one judgment is improper.

The conclusion of the trial court finds support in State v. Engberg, Mo.Sup., 391 S.W.2d 868, and State v. Crump, Mo.Sup., 412 S.W.2d 490. However, it has also been held that a single motion may be employed to attack judgments entered simultaneously and involving related offenses. State v. Macon, Mo.Sup., 403 S.W.2d 630. Without discussion the court in State v. Fleshman, Mo.Sup., 399 S.W.2d 56, considered an attack upon consecutive judgments in a single motion under Criminal Rule 27.26, V.A.M.R. In view of the nature of the question necessarily presented in a proceeding attacking the sufficiency of judgments imposing consecutive sentences, we are of the opinion that the rule stated in Engberg and Crump is not here applicable and that the rule stated in State v. Macon would properly permit the attack here made in a single motion. However, even if we do not accept the trial court’s basis for its dismissal, if the judgment of the trial court may properly be sustained on other grounds, its judgment must be affirmed.

The issue presented by the appellant’s motion is identical with that presented in State v. Testerman, Mo.Sup., 408 S.W.2d 90. The sentences there were imposed by the same court as those here involved. The sentences in Testerman were stated to be consecutive, but the court fixed the same date for the commencement of the sentence in each case. The court also used the language “consecutive with” with reference to the related cases.

In State v. Testerman, supra, it was held that the fact that the judgments purported to state the date of commencement of the sentence did not preclude the three sentences from properly being considered as consecutive. It was there pointed out: “ ‘The law and not the judgment fixes the date his punishment shall commence.’ ” 408 S.W.2d 92(1, 2). See State v. Runyon, Mo.Sup., 411 S.W.2d 69, 71 [3-5].

In the present case, appellant was clearly advised at the time of sentencing that judgments were to run consecutively. The inclusion of the same date for commencement of the sentences in each case is not sufficient to overcome the otherwise clearly expressed intention of the trial court that the sentences should be consecutive and not concurrent. State v. Tester-man, supra. Nor does the use of the language “consecutive with” import a different intention from that expressly stated and appearing in the sentence. State v. Jenkins, Mo.Sup., 411 S.W.2d 441.

Therefore, the judgment of the trial court refusing the relief requested was proper and should be affirmed.

Judgment affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ervin King COSTELLO, Appellant.
    No. 52324.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Clyde Burch, Sp. Asst. Atty. Gen., Kirksville, for respondent.
    Richard Daly, Robert J. O’Hanlon, St. Louis, for appellant.
   HOLMAN, Presiding Judge.

Defendant was charged with the offense of robbery in the first degree. See §§ 560.-120 and 560.135 (statutory references are to RSMo 1959, V.A.M.S.). It was also alleged and proved that defendant had been convicted of four prior felonies. See § 556.280. The jury found defendant guilty of the offense charged and the court fixed his punishment at imprisonment for a term of five years. He has duly appealed from the ensuing judgment.

Defendant was charged with taking $1.00 and a television set from Mrs. Clara Banks on January 26, 1966. The evidence showed that Mrs. Banks, who was 77 years old, was :u her living room watching television at about 7:30 p. m. on the date in question. Someone knocked on the door and upon Mrs. Banks’ inquiry stated that he was a policeman. When she opened the door the man (later identified as defendant) rushed into her apartment with the announcement that he was looking for a prowler. After going through each room several times he came back into the living room, put both fists near her face, demanded money, and when she replied that she had none he said, “Yes you do, I’ll kill you.” Mrs. Banks further testified that defendant then took $1.00 from her purse, which was the only money she had, and made her go into the bathroom; that when she came out four or five minutes later, defendant was gone and her portable television set was missing; that she immediately called the police; that the next morning, on her way to the grocery store, she saw defendant emptying garbage into a garbage can at the rear of a nearby apartment building; that she went back to her home and called the police and reported defendant’s whereabouts; that after he was arrested she identified him in a lineup at the police station. Mrs. Banks also identified defendant, a young Negro, at the trial.

Defendant did not testify or offer any other evidence at the trial.

The first point briefed is that the court erred in refusing to give Instruction A (offered by defendant) which reads as follows:

“The law does not impose upon a defendant the duty of producing evidence on any issue and a defendant has a right to rely upon a failure of the prosecution to establish beyond a reasonable doubt any essential element of the offenses charged, if such failure in fact be found by the jury.”

The only case cited by defendant in support of that contention is State v. Engberg, Mo.Sup., 377 S.W.2d 282, which contains an excellent discussion as to the necessity of giving converse instructions that may be offered by a defendant. We do not think that case has any application here because Instruction “A” is not a true converse instruction. It would appear to be more correctly classified as a cautionary instruction.

We have not been able to find any case decided by this court which has considered the propriety or necessity of giving an instruction such ás “A.” The closest analogy we have found are the cases wherein we have held that the court did not err in refusing to give a cautionary instruction requested by defendant relating to defendant’s failure to testify. See State v. Perkins, Mo.Sup., 382 S.W.2d 701 [10], and State v. Barker, Mo.Sup., 399 S.W. 2d 1 [2], More closely relating to the question, however, is the following: “It has been held proper to refuse an instruction that the failure of accused to call available evidence is not to be considered against him; and where the jury were fully instructed as to the burden of proof on the prosecution, the court may properly refuse to give a requested instruction that it was not the duty of accused to make any defense.” 23A C.J.S. Criminal Law § 1266, p. 655. See also the case of State v. Coburn, 122 Vt. 102, 165 A.2d 349, wherein it was held that the court did not err in failing to give an instruction to the effect that the defendant had “no duty whatever to produce any witness on (or?) any evidence as the burden of proof in a criminal case is entirely on the State,” and the case of Lawson v. United States, 101 U.S.App.D.C. 332, 248 F.2d 654, which holds that the court did not err in refusing a requested instruction that it was not the duty of defendant to make any defense. In view of the authorities cited, we rule this contention against defendant.

The remaining contention of defendant is that the court erred in overruling his objections (and motions for a mistrial) to the circuit attorney’s repeated statements in argument that the testimony of prose-cutrix was “uncontradicted, undisputed and undenied, for the reason that such arguments were comments on defendant’s failure to testify.” The transcript discloses that on four occasions during the argument of the assistant circuit attorney statements were made to the effect that no evidence was offered by defendant and that there was nothing in the evidence to rebut the testimony of prosecutrix. On each of those occasions the defendant’s attorney made (and the court overruled) the following objection: “Mr. Daly: Object to that, ask it be stricken and the jury be instructed to disregard it and a mistrial be declared.”

Relying on State v. Shuls, 329 Mo. 245, 44 S.W.2d 94, defendant contends that since the evidence indicated that only prosecutrix and defendant were present at the time of the alleged robbery the argument that the testimony of prosecutrix was uncontradicted was an indirect reference to the fact that defendant did not testify. In a number of cases this court has held that arguments similar to those involved herein did not violate the provisions of § 546.270 and S.Ct. Rule 26.08, V.A.M.R. See State v. Dunlap, Mo.Sup., 408 S.W.2d 4, and the cases discussed therein. However, since the argument was repeated several times in the case at bar we consider it appropriate to refer to the caveat in State v. Varner, Mo.Sup., 329 S.W.2d 623, 633, to the effect that those cases “do not necessarily mean that state’s attorneys are licensed to hazard those borderline arguments with impunity.”

We have concluded that we will not rule the instant contention on its merits because it has not been properly preserved for review. As shown by the one heretofore quoted, the defendant did not at any time indicate in his objections any reason therefor. We can readily understand that defendant’s attorney would not want to plainly state in the hearing of the jury that he was objecting on the ground that the argument was a reference to defendant’s failure to testify. He could have objected, however, out of the hearing of the jury, or could have made some statement even within the hearing of the jury which, by innuendo, would have apprised the court as to his reason for objecting. See State v. Shuls, supra. We realize that the trial judge may have correctly assumed the reason the defendant’s attorney had in his mind, but we cannot announce a rule of law approving general objections to statements in argument on the theory that the judge will always understand the undisclosed reason the attorney may have in his mind. In the case of State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 32, we ruled a similar contention by saying that “[t]he objection interposed, not stating the grounds upon which the remarks were objectionable, was insufficient. State v. Allison, (Mo.Sup.), 300 S.W. 1069, 1071 [8], and cases cited; State v. Hulbert, (Mo.Sup.), 228 S.W. 499, 502 [7]; State v. White, 299 Mo. 599, 612(b), 253 S.W. 724, 728 [11]; State v. Napoli, Mo.Sup., 44 S.W.2d 55, 56 [3].” This point is accordingly overruled.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


text:
    Mabel EPPERLY, as Administratrix CTA of the Estate of Edna A. Lore, Deceased, Plaintiff, v. MERCANTILE TRUST AND SAVINGS BANK OF QUINCY, ILLINOIS et al., Defendants-Respondents, and The Attorney General, Norman H. Anderson, Defendant-Appellant.
    No. 52369.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.

      R. Leroy Miller, Trenton, John F. Carmody, Moberly, Jack Lukehart, Brunswick, Don C. Carter, Sturgeon, for respondents.
    Norman H. Anderson, Atty. Gen., Richard C. Ashby, Asst. Atty. Gen., Jefferson City, for appellant.
   PRITCHARD, Commissioner.

Appellant, the Attorney General of Missouri, seeks to reverse the ruling of the trial court that a charitable trust provision in the last will and testament of Edna A. Lore, deceased, is invalid and void, and the further finding “that the same is indefinite, uncertain and so remote as not to be enforceable and practical in operation.” As succinctly put in the May issue of the Missouri Bar, “Courts & CLE Bulletin,” the question is: “Does a devise in trust to unspecified Protestant churches and religious organizations ‘to save souls * * ’ create a valid, public charitable trust ? ”

Mrs. Lore died on September 9, 1964, leaving her will which devised the bulk of her estate, consisting of residual personal property and approximately 422.5 acres of land in Scotland County, two tracts, 10 and 80 acres, in Chariton County, a lot in Mar-celine, Missouri, about 40 acres of land in Randolph County, and a lot in the City of Kirksville, Missouri. The personal property was inventoried at a value of about $14,755.50, and the real estate has a value of about $39,000.00, according to the stipulation of facts by the parties.

The Mercantile Trust and Savings Bank, Quincy, Illinois, was named as trustee in the will. Other defendants are the heirs of Mrs. Lore, some of whom join with plaintiff asking for a declaratory judgment as to the validity of the trust provision under § 527.040, RSMo 1959, V.A.M.S.

The charitable trust provisions of the will are in part as follows:

“Article Third: Believing that a Higher Power has helped me to accumulate what land and property I now own, I make the following provisions: All of the rest and residue of my estate, both real, personal and mixed and wheresoever located, I give, devise and bequeath to my Trustee, hereinafter named, IN TRUST nevertheless, to hold and manage and pay over the net income thereof as follows:
“I leave to the discretion of my Trustees the distribution of the income to Protestant churches and religious organizations but direct that the gifts be used to save souls and not to build buildings or to improve existing buildings.”

Article Fourth describes the real estate owned by Mrs. Lore and in largely preca-tory words specifies how it and personal property shall be managed by her trustee.

Appellant says that “The court erred in finding that Articles III and IV are indefinite, uncertain and so remote as not to be enforceable and practical in operation whereas, in fact, the will creates a valid, public charitable trust dedicated to the propogation of Christianity by protestant churches and is capable of being executed by a trustee under the supervision of the court.”

The rules regarding requisite certainty and definiteness of the provisions of public charitable trusts are variously stated. In 2 Rest. Trusts 2d, § 396, it is said, “A charitable trust is valid, although by the terms of the trust the trustee is authorized to apply the trust property to any charitable purpose which he may select and the trustee is able and willing to make the selection.” This rule is followed in Missouri. In Howe v. Wilson, 91 Mo. 45, 3 S.W. 390, the will contained the provision, “If there should be a remainder after such sums are provided for after the death of my said wife, I direct said Wilson to divide said remainder among such charitable institutions of the city of St. Louis, Mo., as he shall deem worthy.” At 3 S.W. 392, it is said, “[I]f the general objects of the bequest are pointed out, or if the testator has fixed a means of doing so by the appointment of trustees with that power invested in them, then the gift must be treated as sufficiently definite for judicial cognizance, and will be carried into effect.” See also Powell v. Hatch, 100 Mo. 592, 14 S.W. 49; Barkley v. Donnelly, 112 Mo. 561, 19 S.W. 305; Sappington v. Sappington School Fund Trustees, 123 Mo. 32, 27 S.W. 356; Buchanan v. Kennard, 234 Mo. 117, 136 S.W. 415, 37 L.R.A.,N.S., 993; Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150; St. Louis Union Trust Co. v. Little, 320 Mo. 1058, 10 S.W.2d 47; Standley v. Allen, 349 Mo. 1115, 163 S.W.2d 1012; Gossett v. Swinney, 8 Cir., 53 F.2d 772 [affirming the Loose will decisions of Kansas City, Irwin v. Swinney (D.C., W.D., Mo.), 44 F.2d 172], These latter cases are all cited in Altman v. McCutchen, Mo., 210 S.W.2d 63, where a trust provision which testator wanted devoted “to the charitable and other institutions devoted to alleviation of human suffering and want, which I have been devoted, and in which I am interested. I give him unlimited discretion to dispose of such proceeds * * * among those charitable institutions in such amount and proportions as he sees fit.” (Loe. cit. 64.) In the Altman case, which upheld the trust provision (“nevertheless the will does state the object of the proposed charity generally, to wit, those charitable institutions devoted to the alleviation of human suffering and want), the same cases were relied upon by appellant as do respondents here: Board of Trustees of Methodist Episcopal Church, South, v. May, 201 Mo. 360, 99 S.W. 1093; Hadley v. Forsee, 203 Mo. 418, 101 S.W. 59, 14 L.R.A.,N.S., 49; and Jones v. Patterson, 271 Mo. 1, 195 S.W. 1004. In St. Louis Union Trust Company v. Little, 320 Mo. 1058, 10 S.W.2d 47, the May, Forsee and Patterson cases were again relied upon as authority for declaring the trust provision invalid. The quote is made therefrom in the Altman case: “‘While the foregoing Missouri decisions do not, in our opinion, sustain appellants’ contention, yet there are decisions in this state which clearly uphold the validity of the trust in question. * * * In the instant case the testatrix appointed a trustee who was able and willing to accept and discharge the responsibility of the trust. The objects are designated with certainty and constitute a definite class, to wit, “poor, homeless children.” Under the Missouri authorities cited, this is a valid charitable trust, and the chancellor did not err in so holding.’ ” (210 S.W.2d at page 67)

Jones v. Patterson, supra, relied upon heavily by respondents, was not followed in the Altman case or in Gossett v. Swinney, supra. It has been distinguished many times, and in Carlock v. Ladies Cemetery Association, Mo., 317 S.W.2d 432, the court quoted from that case (loc. cit. 195 S.W. 1005 [4]), “‘Notwithstanding the permissibility of a general declaration, if the charity does not by its own terms fix itself on a well-defined object or is not susceptible of such interpretation by the courts, but is general and indefinite, it must fail.’ ” The court then critically stated, “It has been considered Jones v. Patterson may have misapplied the law. Irwin v. Swinney, D.C., 44 F.2d 172, 183, affirmed Gossett v. Swinney, 8 Cir., 53 F.2d 772, 782; 2 A Bogert, Trusts and Trustees, 76 § 371, nn. 79-81.” The court in Gossett v. Swinney, supra, loc. cit. 53 F.2d 783, said, “With respect to the charge that this bequest is too general and indefinite, the ruling in Jones v. Patterson, and the dictum in Wentura v. Kinnerk, are expressly bottomed upon a misapprehension of the holding in Morice v. Bishop of Durham, supra.” (9 Vesey, Jr.Ch.R. 399, 403, “‘But this doctrine does not hold good with regard to trusts for charity. Every other trust must have a definite object. There must be somebody in whose favor the Court can decree performance. But it is now settled, upon authority which it is too late to controvert, that where a charitable purpose is expressed, however general, the bequest shall not fail on account of the uncertainty of the object; but the particular mode of application will be directed by the King in some cases, in others by this court.’ ” [Loc. cit. 53 F.2d 782])

Where, as here, a trust provision gives to the trustee discretion in applying the trust property to the specified charitable purpose, the rules in Jones v. Patterson, supra, and other cases cited by respondents, should not be followed. Although there is conflict in the decisions, the weight of authority is that a charitable trust such as this trust is valid. Annotations, 22 A.L. R. 697 and 115 A.L.R. 1135, covering trusts for religious purposes; 163 A.L.R. 784, “Charitable Gifts-Definiteness”; 168 A.L. R. 1350, “Charitable Gift-Discretion of Trustee”; Rest. Trusts 2d § 396; Bogert, Trusts and Trustees, 2nd Ed., § 376, p. 130 et seq. The class of religious organizations is here sufficiently certain: Protestant churches and religious organizations to be selected in the discretion of trustees. When so selected by the exercise of the trustee’s discretion, such class will become fixed and definite, and certainly the purpose “to save souls” is that of Protestant religious organizations and is charitable, Glidewell v. Glidewell, 360 Mo. 713, 230 S.W.2d 752. The objects of the trust are uncertain — i. e., innumerable persons who may be benefitted. Such is an essential requisite of a charitable gift. 14 C.J.S. Charities §§ 38, 39, pp. 473, 474; Buckley v. Monck, Mo., 187 S.W. 31, 33 [1], While a court of equity cannot undertake to specify what Protestant churches are to be selected, it may compel the trustee to exercise that discretion, and may restrain a diversion or threatened diversion from the religious purpose, and enforce its orders by removal of the trustee. 14 C.J.S. Charities § 49, p. 508; Sandusky v. Sandusky, supra, loc. cit. 177 S.W. 394 [3]; Howe v. Wilson, supra.

Although the matter is not here raised, it is noted that the named trustee in Mrs. Lore’s will is a foreign corporation which is incapable of receiving the trust property under § 456.120, RSMo 1959, V. A.M.S. There is nothing in Mrs. Lore’s will indicating an intention that her named trustee only administer the trust. The court may appoint a qualified Missouri trustee, able and willing to act, to take, hold and administer the real and personal property of the trust. Rest. Trusts 2d, § 397; Carlock v. Ladies Cemetery Association, supra, loc. cit. 317 S.W.2d 440 [5]; Buckley v. Monck, supra.

Article Fourth of Mrs. Lore’s will is:

“It is my desire that my Trustees shall not sell any of my real estate (except the lot in Kirksville, Missouri, if they desire) but shall operate as I have done during my lifetime. I devise that they should hire a farm laborer and allow him to live in the tenant house and operate the farm or farms. As near as possible, all of my machinery of which I may die the owner should be kept and used. If my Trustees desire, I would like for them to have Clayton Ely, Edina, Missouri, and Mabel Epperly, Clifton Hill, Missouri, to help them look after the property in Knox and Scotland County, Missouri. If possible the income from the farms should be kept in the Citizens Bank of Edina, Missouri. I prefer the Trustee to keep a hired hand on the above described property, or if that cannot be done, that the land be rented out on a share crop basis. I prefer that the Trustee keep cattle, hogs and sheep and have them managed either by the farm hand or if that is not possible, that they be kept on a share basis. Nothing herein contained, shall be construed to compel my Trustee to distribute all of the net income when received as I direct that my Trustee shall accumulate funds so that it would not be necessary to borrow to operate the farms. In the event it is necessary to rent the land and keep the cattle, hogs and sheep on a share crop basis, they are not to have as a tenant any person who owns land adjoining mine. My Trustee shall not sell my Mitchell car nor the farm machinery previously owned by my husband or my father, but may sell or trade my machinery if necessary. In that regard, the Trustee shall not sell my machinery or any of the livestock at public sale on any of the above real estate. In choosing a farm hand or tenant farmer, my Trustee shall choose some person who is not mean to livestock.
“If my Trustee is desirous, they may have Will Richeson assist them in the management of the land in Chariton and Linn County, Missouri and the house in Marceline, Missouri. If possible, I desire that the income from these properties be placed in the Bank of Rothville, Rothville, Missouri. Further, if my Trustees desire, they may have Mabel Epperly assist them in the Management of the land in Randolph County, Missouri.
“If any of the persons mentioned above assist the Trustee in the management of the real estate, they are to be paid a reasonable amount for their services and if they cannot serve, then the Trustee may find a substitute and pay the substitute a reasonable amount for his or her services.”

Article Fourth is not a condition upon the absolute grant of her estate made to her trustee. See Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13, 16 [6, 7], “When an estate in fee is granted by a deed or will, such an estate cannot be cut down to a lesser estate by a repugnant provision. To do so, the subsequent clause must be equally as clear as the granting clause, so that all clauses in the deed can be harmonized.” See also Clark v. Ferguson, 346 Mo. 933, 144 S.W.2d 116, 118 [6-8]. The precatory provisions of Article Fourth are merely limitations as to control and management of the trust, distinguished from either conditions precedent or subsequent, and which afford grounds for a court of equity, upon petition, to enforce proper administration thereof. See 14 C. J.S. Charities § 44, p. 497.

The rule against perpetuities has no application to a public charitable trust such as this. Newton v. Newton Burial Park, 326 Mo. 901, 34 S.W.2d 118, 121 [5, 6]; Ervin v. Davis, 355 Mo. 951, 199 S.W.2d 366, 368 [1, 3]. “‘Absent provisions to the contrary, a gift to a charity is forever. It is on such premises that the general rule is deduced that when lands have been donated to charity and the title is vested absolutely in trustees for charitable uses * * * they are inalienable for other purposes.’ ” So also with an alleged invalid restraint upon alienation, Lackland v. Walker, 151 Mo. 210, 52 S.W. 414, 426. Upon no asserted grounds, or specified by the trial court, is this trust invalid.

The judgment is reversed.

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.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. L. X. BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    June 2, 1967.
    Robert F. Matthews, Atty. Gen., H. C. Smith, Special Asst. Atty. Gen., Dept, of Highways, Frankfort, Eugene H. Clark, Paul L. Madden, Dept, of Highways, Manchester, for appellant.
    Walter B. Early, Joe S. Feather, G. G. Teague, Jr., Williamsburg, for appellees.
   CLAY, Commissioner.

In this highway condemnation case which involves two tracts of land the Commonwealth appeals on the ground that the jury’s awards of damages are palpably excessive and not sufficiently supported by evidence of probative value.

The property is located in Williamsburg. The larger tract of 5½ acres fronts on the south side of Twelfth Street. On this property is a handsome residence and another substantial dwelling house. In addition there are a garage and other outbuildings, and many fine trees and shrubs. There is no doubt that before the taking this was a fine, secluded residential estate and there is little dispute that it had a market value in the neighborhood of $50,000.

The Commonwealth took about half an acre consisting of a 10-foot strip along Twelfth Street in front of the residence and a wedge-shaped strip on the east side, 370 feet along the south side of Twelfth Street and tapering to 20 feet at the rear of the property. Little damage is attributed to the loss of the 10-foot strip in front of the residence but the landowners claim the wedge taken on the east side, which will bring a new road much closer to the improvements, substantially impaired the value of the remaining property. The landowners’ expert witnesses testified the difference in value was $14,000 to $16,000, and the jury awarded $14,000.

The Commonwealth’s argument is in substance that it is not reasonable, rational or logical that the taking of about 10 percent of the property, leaving the major improvements, would reduce the value of the remainder 30 percent. It is pointed out that the residence was only 50 feet from Twelfth Street and it will be farther than that from the new road on the east. However, it is clear that the new road will effectively box in the improvements in the eastern corner of the tract.

The witnesses for the landowners were qualified and competent. In their opinion the proximity of the new road very materially impaired the value of this fine estate. The circumstances are unusual and we cannot substitute our judgment of values for theirs. This was a very liberal award but it does not strike us as palpably excessive or unsupported by evidence of probative value.

The other tract involved is a vacant residential lot fronting on the north side of Twelfth Street 100 feet, with a depth of 200 feet. It is admitted the taking of about half of this lot practically destroyed its value. The issue was its reasonable market value before the taking. The Commonwealth’s witnesses fixed this at $1,500, whereas one of the landowners’ expert witnesses fixed it at $6,500. The jury awarded $5,500.

The Commonwealth contends that the comparable sale used by one of the landowners’ witnesses was not shown to be comparable, but the witness’ testimony indicates that in his opinion the other $6,000 sale properly could be so considered. The Commonwealth’s witnesses referred to other comparable sales at a much lower figure, but it was for the jury to determine the credibility of the witnesses’ valuations. This may be a high price for a small lot, but here again we are not in a position to substitute our judgment for that of the qualified appraisers and the jury.

The judgment is affirmed.

WILLIAMS, C. J., and STEINFELD, MILLIKEN, OSBORNE, PALMORE, and HILL, JJ., concur.


text:
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, a Corporation, Appellant, v. Maylissa Jane CHAPPELLE and Corbin Deposit Bank & Trust Company, Appellees.
    Court of Appeals of Kentucky.
    June 2, 1967.

      Logan E. Patterson, Robert B. Berger, Pineville, for appellant.
    Lohren F. Martin, Sutton & Martin, Corbin, for appellees.
   CLAY, Commissioner.

This controversy involves the condition in which appellant is required to restore leased premises upon the termination of two leases. The interests of the two appellees are similar and a judgment was entered in their favor upon consolidation of their claims. The amount of damages was stipulated.

Appellant rented space in two adjoining buildings from the two appellee lessors. The first lease was entered into in 1928, and as time went on, new leases were executed periodically, the last one being dated 1960. During this period appellant needed more and more space and finally ended up occupying the entire second floor of both buildings. From time to time both appellant and appellees made many material alterations in the premises and part of the wall between the buildings was taken out. In addition, partitions, bathroom fixtures, doors and other structural portions of the buildings were altered or removed.

In the leases preceding 1947, while appellant was authorized to make interior alterations, additions and improvements, it was required on the termination of the lease to restore the premises “to the condition they were in when received” by it. In 1947 appellant changed the form of its printed lease and the following provision was substituted:

“Upon the termination of this lease, Lessee shall deliver possession of the leased premises to Lessor as changed or altered in the same condition as when received or as changed or altered, ordinary wear, tear and deterioration and damage by the elements or unavoidable casualty excepted.” (Emphasis added.)

This provision appears in the leases under consideration.

All of the leases contained the customary provision that:

“Lessee agrees to maintain said premises in as good condition as when received * *

Appellees contend, and the trial court found, that the last two quoted provisions created an ambiguity and, construing the lease most favorably to the lessors, appellant was required to restore the property to the same condition it was in before any alterations were made. The court also pointed out in its memorandum opinion that the last lease made by appellee Chappelle described the premises as consisting of “ten rooms on the second floor”, the dimensions of the rooms being given. As we read the record, those ten rooms were not in existence at the time the 1960 lease was made because of the prior alterations made by both the lessors and the lessee. As a matter of fact, no major alterations were made in the premises after the execution of this last lease.

We find no ambiguity in the leases. The obligation to maintain the premises “in as good condition as when received” is obviously qualified by the right of appellant to make alterations and its obligation to return the premises “as changed or altered”. This language is too plain to be ignored. There is just no way to construe it out of the lease, and effect must be given all provisions thereof. Aetna Oil Co. v. Robertson, Ky., 258 S.W.2d 464.

Appellant is willing to restore the premises “in as good condition as when received”. In 1960, at which time all substantial alterations had theretofore been made, the fact that the description of the Chappelle premises was in terms of rooms (which was not an accurate physical description of the premises leased) did not change the rights and obligations of the parties under the specific provisions of the lease relating thereto. We believe the trial court carried too far the principle of construing an instrument against the party who drew it up.

The judgment is reversed.

All concur.