author: G. DERK GREEN, Special Judge.

text:
    STATE of Missouri, Respondent, v. John Vernon DECKARD, Appellant.
    No. 48706.
    Supreme Court of Missouri, Division No. 3.
    April 11, 1968.
    Norman H. Anderson, Atty. Gen., Gary G. Sprick, Asst. Atty. Gen., Jefferson City, attorneys for respondent.
    Marvin Motley, Branson, attorney for appellant.
   G. DERK GREEN, Special Judge.

Defendant, John Vernon Deckard, was convicted of Forcible Rape, a felony, in the Circuit Court of Taney County, Missouri, on October 11, 1960, and sentenced to serve 99 years in the state penitentiary. The Information filed charged the defendant under the Habitual Criminal Act, alleging prior convictions, and the proceedings were in accord with the provisions of that Act.

The defendant was represented in the trial court by counsel of his own choosing. He did not file a Motion for a New Trial, but on March 13, 1961, an appeal was authorized by a special order granted under S.Ct. Rule 28.07, V.A.M.R. This appeal was prosecuted by defendant as a poor person and without counsel representing him on appeal. The appeal was decided on February 12, 1962, the judgment of the trial court was affirmed, and is reported in 354 S.W.2d 886. Following the case of Swenson v. Donnell, 8 Cir., 382 F.2d 248, on April 17, 1967, this Court entered an order setting aside the judgment affirming the conviction of defendant and reinstating the cause on the docket. The Circuit Court of Taney County, Missouri appointed counsel for defendant in accord with S.Ct. Rule 29.01(c). Appointed counsel has prepared and filed brief in the case and appeared before the court in oral argument.

Defendant does not challenge the sufficiency of either the Information filed or the evidence adduced. In this situation, there is no purpose in this opinion in reciting the details of the facts as shown by the evidence. A reading of the transcript reveals ample evidence to support the charge of Forcible Rape as made in the Information. Anyone interested from that standpoint can read a summary of the facts shown by the testimony by referring to the opinion previously written and reported in 354 S.W.2d 886.

In this appeal, the defendant urges two points: (1) That it was error to give Instruction No. 1 because it did not hypothesize the facts stated in the Information to which the Instruction refers; and (2) that the punishment imposed on defendant is exorbitant and grossly excessive. The Information charged that the defendant “then and there, willfully, and feloniously did make an assault upon” the complaining witness (naming her) and “then and there unlawfully, violently, forcibly, and against her will did ravish and carnally know the said” complaining witness. No complaint is made that this is not an adequate and sufficient charge of the crime of forcible rape.

The complained-of part of Instruction No. 1 is as follows: “The court instructs the jury that if they believe and find from the evidence that the defendant, in Taney County, State of Missouri, on or about the 5th day of July, 1960, did make an assault upon the witness (naming her), and did then and there forcibly and against her will, ravish and carnally know her, the said (naming her), then you will find the defendant guilty and as charged in the Information.” In attacking this Instruction, the defendant points out that the Information charges that the defendant “unlawfully, willfully, and feloniously did make an assault” upon the complaining witness and that he did “unlawfully, violently, forcibly, and against her will” ravish and carnally know the said witness while the Instruction did not require a finding that the assault was made unlawfully, willfully and feloniously; also that the Instruction did not require the finding that the forcible rape was done unlawfully and violently, as charged in the Information. It is argued that leaving these words out of the Instruction was error and especially so when the Instruction concluded by directing a finding against the defendant “guilty as charged in the Information.” No precedent is cited for this contention and no case is found so holding, but the defendant’s counsel persuasively argues that by leaving out of the Instruction these designated adverbs and at the same time directing a verdict “as charged in the Information”, the Instruction directed a verdict of guilty on the offense as charged without requiring a finding of. all of the elements of the offense as alleged in the Information.

Respondent urges that this matter should not be considered at this time because appellant did not preserve for review any objection to Instruction No. 1, having filed no Motion for New Trial. Ample authority is cited by respondent to support this view, but the record is not definite as to the exact point at which defendant ceased to be represented by counsel, and it is not clear whether no motion was filed because defendant did not have counsel or because the counsel representing him in the trial court determined that there was no error worthy of bringing to the attention of the Supreme Court on appeal.

To make certain that defendant’s rights were not prejudiced by a lack of representation by counsel, the point raised by him now will be considered. As indicated, we are considering this point on account of the possible lack of counsel or; abandonment of counsel at a material point in the case, but not upon the theory of: “plain error”; that principle is ordinarily not applied to the consideration of trial errors, including instructions. The Information charged and the Instruction required a finding of all of the essential elements of the crime of rape, (1) carnal knowledge, (2)force, (3) against the will or without the consent of the woman. The Information also included other words, e. g. “unlawfully”, “violently”, and “willfully.” Use of these words was unnecessary, surplus-age, superfluous and harmless. They did not affect or change the charge made in the Information, and it was not necessary to include them in the Instruction setting out the essential elements of the crime to be found by the jury in order to warrant a guilty verdict. Their use in the Information was harmless. State v. Herring, 268 Mo. 514, 188 S.W. 169; Supreme Court Rules of Criminal Procedure 24.11; § 545— 030 RSMo 1959, V.A.M.S.; State v. Egner, 317 Mo. 457, 296 S.W. 145; State v. Burns, 351 Mo. 163, 172 S.W.2d 259; State v. Burks, Mo., 257 S.W.2d 919; State v. Cutshall, Mo., 408 S.W.2d 94.

The fact that the Instruction carried the phrase “as charged in the Information” following a proper verdict-directing clause does not in any way prejudice the defendant and cannot be held to be in error. No lesser finding was required of the jury and no greater burden was placed-upon the defendant. In State v. Herring, the Instruction included language that if the jury found that defendant did “unlawfully” and “in the manner set out in the information” they would find the defendant guilty. The Supreme Court held that these words were unnecessary and their use in the Instruction was harmless. The Instruction there, as here, did not refer the jury to the Information for matters not in the Instruction and which were necessary for their consideration in returning a verdict of guilty. To the same effect is State v. Burns, 351 Mo. 163, 172 S.W.2d 259, where the language was “knowingly” and not having the consent, permission or authority. Also, see State v. Ivory, Mo., 327 S.W.2d 870; State v. Burks, Mo., 257 S.W. 2d 919, and State v. Cutshall, Mo., 408 S.W.2d 94. Instruction No. 1 was not erroneous for this reason and the point must be ruled against the defendant.

The next point made is that the punishment imposed upon defendant is exorbitant and grossly excessive. The punishment fixed is within the limits set by the Legislature. Section 559.260, RSMo 1959, V.A.M.S. provides that upon conviction for this offense the defendant “shall suffer death, or be punished by imprisonment in the penitentiary for a period of not less than two years, in the discretion of the jury.” Under the provisions of the Habitual Criminal Act, the prior conviction of the defendant having been determined before submission to the jury, and after the jury’s verdict of guilty, it is the responsibility and duty of the judge of the court to fix the punishment. A great deal could be written about the purpose and the intent of the Legislature in making the change from a fixing of the punishment by jury and requiring that it be done by the judge of the court. Generally, this change is considered to have been to the advantage of the defendant. The law now requires that punishment be fixed by the judge and gives him a wide latitude. He can, and should, consider every facet of the case, the nature of the crime, the defendant’s background, personality and potential, and the needs of society. There is nothing to indicate that the judge in this case did not do so.

To support his contention that the punishment fixed was excessive in this case, the defendant cites a number of cases in which the punishment for rape was either fixed by the jury at a lesser term of imprisonment or was reduced by the trial court. In State v. Greer, Mo., 313 S.W.2d 711, punishment was reduced from 50 years to 35 years by the trial judge. In State v. Turner, Mo., 274 S.W. 35, there was a jury verdict of only 10 years. In State v. Oscar, Mo., 226 S.W.2d 722, a 99-year sentence was reduced to 20 years by the trial court, and in State v. Durham, Mo., 418 S.W.2d 23, the punishment for statutory rape was fixed by a jury at 35 years. In some of these cases the punishment was fixed by the jury and later reduced by the trial court. In those cases, the trial judge had the opportunity of hearing the evidence, seeing the parties, and forming an opinion as to the severity of the circumstances and the character of the accused, including his potential for further commission of crime or for rehabilitation. None of them was under the Habitual Criminal Act as in this case.

To counter the defendant’s citation of cases in which a lesser punishment was fixed, the State cites State v. Brownridge, Mo., 353 S.W.2d 715, where the punishment was fixed at 99 years’ imprisonment under Habitual Criminal Act; State v. McMillian, Mo., 338 S.W.2d 838, where the punishment was fixed by a jury at life imprisonment, and State v. Wolfe, Mo., 343 S.W.2d 10, cert. den., 366 U.S. 953, 81 S.Ct. 1912, 6 L.Ed.2d 1246, where the punishment was fixed at death by the judge, after jury verdict, under Habitual Criminal Act. In each case, the judgment was affirmed and the sentence upheld.

About all that can be said after reviewing these cases, is that the Legislature has provided for a wide range of punishment and judges and juries alike have fixed punishment over this wide range, depending upon the circumstances of each particular case. It was established by proof and admitted by defendant that he had been convicted of the crime of Robbery in the First Degree on November 22, 1950 in Jackson County, Missouri, and served in the state penitentiary on that charge until December 5, 1955. On June 28, 1956, in Greene County, Missouri, he was convicted of the crime and offense of Burglary and served on that charge until June 25, 1960. The present offense was committed within ten days after his release from the penitentiary on this last charge. The record does not reveal what time elapsed after his discharge on December 5, 1955 and the commission of the crime for which he was sentenced on June 28, 1956. It would appear that he was out of custody only a short time before again becoming involved. Exhibits attached to the transcript would indicate that he had also served a sentence in the prison at McAllister, Oklahoma. The trial judge had all of these facts before him and had the additional advantage of observing the defendant’s attitude and demeanor during the trial. He was in good position to determine what would be the proper punishment for the facts of this particular case, considering all of the various facets above mentioned. We cannot now say that the punishment was disproportionate to the offense or that the judgment of the trial judge was erroneous.

The judgment of the trial court should be and hereby is affirmed.

EAGER, P. J., and ARONSON, Special J., concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Gale MIXEN, Carroll Lloyd, and Harold Hanger, Appellants.
    No. 51977.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.
    Norman H. Anderson, Atty. Gen., L. Michael Lorch, Asst. Atty. Gen., Jefferson City, for respondent.
    Lester Watson, Richmond Heights, for appellants.
   HOUSER, Commissioner.

Gale Mixen, Carroll Lloyd and Harold Hanger were jointly charged, each under the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S., with assault with intent to do great bodily harm, with malice. They waived a jury, were tried by the court and found guilty. Punishment of each defendant was assessed at seven years in the custody of the department of corrections. All three appealed.

The alleged victim of the assault, Glen Lodi, a St. Louis police officer, testified that at 1:30 a.m. while he and officer Hack-mann were arresting the trio for a traffic violation Mixen cursed the officers and said, “There is three of us and only two of them, I am tired of them (blanking) with us,” whereupon he struck Hackmann in the chest with his fist, knocking him backwards, and kicked him in the groin as he went down to the ground. Lodi then struck Mix-en in the head with his nightstick. Mixen backed up a bit, then came at Lodi, kicked him, and knocked him down. Lodi got up and struck Mixen again. Then Lloyd and Hanger jumped on Lodi, and then all three were fighting Lodi. At that point two other officers arrived and finally the three men were subdued, handcuffed and taken directly to a hospital. Mixen, seriously hurt, was confined in the hospital for sixteen days. The other two defendants were discharged after a short stay at the hospital, and were then taken to the police station, booked and incarcerated. Lodi, Hackmann and the other two officers were treated at the hospital for injuries. Lodi’s stomach and left hand were injured. Hackmann’s left leg was bandaged for traumatic injuries. A third had a chest contusion. Various aspects of Lodi’s testimony were corroborated by the other three police officers.

Defendants’ version of what happened was entirely different. According to them they were arrested without cause; the truck in which they had been riding was searched without a warrant; they were arrested and handcuffed and thereafter at the scene were physically abused by the officers, who were the aggressors; they were taken directly to the police station (not directly to the hospital), where they were placed in cells, and after sleeping for a while were awakened and again beaten by the officers. An hour after the second beatings they were finally taken to the hospital, according to defendants.

Appellants’ first point is that the court erred by “failing to require the production of hospital records subpoenaed by Defendants.” In their brief appellants state that they caused a subpoena duces tecum to issue for certain hospital records in order to show the exact time of their admission to the hospital, as bearing on the disputed issue whether the police first took defendants to the hospital or first to the police station. They further state that the subpoena was served and a proper return was made to the court but that the records called for in the subpoena were not produced and that the court “failed to grant Defendants sufficient time to obtain said records.” They claim a right as of course to the production of such documents as in their judgment were required to meet the issues and that they were deprived of their statutory right to have the hospital records produced and brought into court.

There is nothing in the transcript to show that appellants caused a subpoena duces te-cum to issue or that one was served and a proper return made. We have only appellants’ statement in the brief for this. That does not establish the fact. If it be conceded that it happened there is nothing in the transcript or brief to substantiate appellants’ theory that the hospital records would show an hour of admission late enough to account for the happenings which appellants claim occurred at the police station before they were taken to the hospital. The only indication in the transcript as to the time of admission to the hospital refutes appellants’ contentions in this respect. The entire record on this, made at the very end of the trial, follows:

“THE COURT: Is that all the evidence ?

“MR. WATSON: Just a minute, please. Your Honor, there is one thing about this hospital record. Of course, I believe it would show the time that the first two men arrived, and I mean Hanger and Lloyd, and it would show when Mixen arrived, and that was the reason I wanted that hospital record.

“THE COURT: When did they arrive? He will agree to that ?

“MR. WATSON: I don’t know whether he can. The arrived about two hours apart.

“MR. WALSH: Well, I don’t know.

“MR. WATSON: I don’t know either.

“MR. WALSH: I really do not know. The only thing I can say is, we have made some effort, by very, very recently to check the same thing, and—

“THE COURT: You can find out and I will let you tell me.

“MR. WALSH: If you will take it as heard and submitted and the records will come in.

“MR. WATSON: To give us an opportunity to get that information.

“THE COURT: All right. I am not going to hold this forever. I will hold it until tomorrow morning.

“MR. WATSON: If I can get it this afternoon, I will go out there and try.

“THE COURT: Is that all ?

“MR. WATSON: Yes.

“(Subsequently, the following information was furnished the Court in regard to the admission of the defendants to the hospital : Defendant Mixen admitted at 2 A.M. September 17, 1965. Defendant Hanger examined at 1:45 A.M., and refused medical attention. Defendant Lloyd was X-rayed and discharged at 1:45 A.M.)”

The only assignment of error in the motion for new trial which conceivably touches this matter is assignment number 7: “That the Court permitted into evidence incompetent, immaterial and irrelevant testimony over the objection of the Defendant.” If this be deemed sufficient to raise the point, we observe that there was no such objection at the trial. The point on appeal now sought to be raised was not raised in the motion for new trial. If in the face of this record we overlook the fact that proper obj ections were not made at the trial, consider that the point was raised in the motion for new trial, and make the broad and unsupported assumption that the hospital records show some different time of admission compatible with their theory, appellants are yet faced with insurmountable difficulties. When counsel for appellants told the court why he “wanted that hospital record” he did not request the court to take any action to enforce the command of the subpoena duces tecum. He did not object to the submission of the case without this evidence, or ask for a continuance. On the contrary he asked for an opportunity to get the records himself, indicating that he would get them that afternoon, if possible. The plain inference is that the information ultimately furnished the court was produced by the efforts of counsel for appellants, and there is no denial that this is what happened.

There is no duty on a court to enforce its process sua sponte. When there has been a failure to respond to a subpoena the party desiring the evidence may apply to the court for an attachment of the body of the witness, § 491.150, RSMo 1959, V.A.M. S., or resort to contempt proceedings, but enforcement of the command of a subpoena in cases of noncompliance is ordinarily initiated by the party in interest and not by the court. Appellants made no effort in this direction, and there was no obligation on the court to act on its own motion under the circumstances.

Appellants’ second point is that the court “erred in permitting into evidence incompetent, immaterial and irrelevant testimony.” This assignment is too general to preserve any evidentiary point for appellate review. State v. Sanders, Mo.Sup., 360 S.W.2d 722, 724 [1],

Appellants’ third point is that the punishment of seven years’ imprisonment “is cruel and inhuman.” No reason is given and no authority is cited for this proposition. The punishment for assault with intent to do great bodily harm with malice is imprisonment “not less than two years.” § 559.180, RSMo 1959, V.A.M.S. The seven-year terms were authorized by the statute, and in view of the gravity of the offenses and the previous criminal records of appellants we cannot say that the punishment is cruel or inhuman.

We have examined the indictment, the judgment of the court finding each of the appellants guilty, and the judgment and sentence as to each appellant. We find these proper in form and substance. Appellants were represented by counsel at all stages of the proceeding from arraignment through argument on appeal. Appellants waived the reading of the indictment, pleaded not guilty, waived trial by jury, submitted their case to the court sitting without a jury, and were present throughout the trial and at the time of judgment and sentence. Allocution was accorded each of them. The punishment is authorized by law.

No error appearing, the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    Walter McDOWELL, Husband of Beatrice McDowell, Deceased, Respondent, v. Terry E. MOHN, Appellant.
    No. 52926.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1968.

      Thurman, Nixon, Smith & Howald, Robert Lee Smith, Hillsboro, for respondent.
    J. Richard Roberts, Dearing, Richeson, Weier, Roberts & Wegmann, Hillsboro, for appellant.
   HENRY J. WESTHUES, Special Commissioner.

Plaintiff, Walter McDowell, filed this suit in the Circuit Court of the City of St. Louis against defendant, Terry E. Mohn, seeking damages for the death of his wife, Beatrice, alleged to have been caused through the negligence of Mohn. A jury trial resulted in a verdict for plaintiff in the sum of $20,000. A motion for a new trial was overruled and defendant appealed.

There was little dispute in the evidence. It was generally agreed that on December 24, 1965, shortly before noon, plaintiff’s wife was driving her car north on Highway 21 in Jefferson County, Missouri. Two of her children were in the front seat and four in the back seat. At the same time, Raymond Niel was driving a car south on Highway 21. Defendant was driving a car on Jefferson Heights Terrace Road which joins Highway 21 from the west, thus making a “T” intersection. Highway 21 extends generally north and south in a straight line from the “T” for about 900 feet or more. A driver of a car, when at the west side of Highway 21 at this “T,” would have a clear view each way for that distance.

The evidence was that defendant stopped his car before entering Highway 21, then drove onto the highway “real quick” and turned north and into the northbound lane. Defendant testified he did not see the McDowell car until he had gone north about a car’s length when he saw the McDowell car on the shoulder of Highway 21 to his right. The evidence was that the McDowell car had slight contact with the front fender of defendant’s car, then swerved onto the highway and collided headon with the Niel car going south. The collision occurred about 129 feet north of the “T” intersection. Defendant testified he had attained a speed of about 20 to 25 miles per hour at the time he first noticed the McDowell car to his right. Mrs. McDowell died in the collision. We shall state other facts as they become necessary in the course of the opinion.

The case was submitted to the jury on failure to yield the right of way and failure to keep a lookout.

Defendant briefed four points seeking a reversal of the judgment. They are:

First, that the court erred in not directing a verdict for the defendant because the evidence was insufficient to support a verdict for plaintiff.

Second, that plaintiff’s instruction number 3 should not have been given since it was not supported by the evidence.

Third, that plaintiff’s instruction number 9-A was an improper definition of the right of way in this case.

Fourth, that the court should have given defendant’s requested instruction C, that it was in proper form, and supported by the evidence.

We shall consider these points in the order stated.

On the question of the evidence being insufficient, defendant cited the case of Graham v. Conner, Mo.App., 412 S.W.2d 193. That case is not in point. There, a small 4-year-old boy was struck by a car. There were no eyewitnesses. Defendant offered no evidence. The case was submitted to a jury on failure to keep a lookout. The Springfield Court of Appeals held there was no evidence to support a failure to keep a lookout and reversed a judgment for plaintiff. Defendant cited Hulse v. Herren, Mo., 357 S.W.2d 154. In that case, the plaintiff drove a truck onto a highway from a private roadway and collided with another truck on the highway. There was a verdict for the defendant. Contributory negligence was the question submitted to a jury. This court held the submission proper. Defendant in the case before us argues that in the Hulse case the evidence established that the truck on the highway was about six or seven truck lengths from the driveway when plaintiff drove onto the road, and that in the case before us there was no evidence at what point on Highway 21 the McDowell car was when the defendant drove his car onto Highway 21. In this, defendant is mistaken. The evidence justifies a finding that the McDowell car was within plain view and in such proximity to the “T” intersection that defendant should not have attempted to enter it. In fact, defendant’s evidence so indicates. Defendant testified that after he entered the highway and turned north, he had gone only about a car’s length when he saw the McDowell car beside his car on the shoulder. Defendant stated he had attained a speed of about 20 or 25 miles per hour, indicating that he was not creeping. Plaintiff’s evidence was that Mrs. McDowell was driving at a speed of about 50 miles per hour, that defendant’s car was stopped at the intersection, and that then the car came quickly onto the road and turned north. Marvin McDowell, 12 years old, sitting in the front seat at the time, testified that when the red car (defendant’s) came across the road, his mother immediately turned onto the shoulder. Note his evidence.

“Q * * * What did your Mama do as soon as this red car pulled out?

“A She went on the shoulder road.”

The evidence justifies a finding that the McDowell car was so close that it was the defendant’s duty to yield the right of way to the McDowell car. Hulse v. Herren, supra.

It is evident from the above statement of facts that defendant’s contention that the evidence did not justify a finding of failure to keep a lookout is without merit. Defendant testified he looked but did not see the McDowell car. However, defendant is charged with having seen what was in plain view and the evidence supports a finding that the McDowell car was in plain view at the time defendant began driving onto the main highway.

What we have said disposes of the second point briefed wherein defendant urges that instruction number 3 should not have been given because the evidence did not support a finding that defendant failed to yield the right of way and failed to keep a lookout.

The third point briefed was not stated clearly in the motion for a new trial nor in the brief. In the brief, the point is stated as follows:

“The trial court erred, to defendant’s prejudice, in giving and reading to the jury Instruction No. 9-A, since said instruction is the improper definition of right of way in this case.” We must go to the argument to determine defendant’s criticism. In the argument defendant contends that instruction 9-A was patterned after MAI 14.05; that the instruction should have been patterned after MAI 14.06 for the reason that Jefferson Heights Terrace Road is a private road; and that MAI 14.05 should be used only in cases where a street or public road intersects with a main public highway. This contention is evidently an afterthought. In the motion for new trial the only statement as to this point reads as follows: “The submission of Instruction No. 9A was improper because the procedure outlined in Missouri Approved. Jury Instructions Volume was not followed * * *.» There js n0 merit in the contention as made in the argument. The evidence did not show that Jefferson Heights Terrace Road in fact was a private road in a legal way. As we understand the evidence two witnesses referred to the road as a private road, not in answer to questions as to whether the road was private or public but to distinguish it from Highway 21. Other evidence offered by plaintiff disclosed Jefferson Heights Terrace Road to be an entrance and exit to a subdivision wherein many houses are located. The record does not establish that the road was in fact private. See Chapter on private roads, 72 C.J.S. pp. 918-951. In 39 C.J.S. Highways § 1, p. 916, it is said that “Designation of a road or highway as ‘private’ does not affect its character if it is in fact a public road or highway.” It is our opinion that instruction 9-A was not improper.

In the last point briefed defendant says rhe trial court erred in refusing to give defendant’s instruction C. This instruction reads as follows:

“Your verdict must be for the defendant whether or not defendant was negligent, if you believe:
“First, Beatrice McDowell either:
failed to keep a careful lookout, or drove at an excessive speed, or passed the automobile driven by defendant on the right; and
Second, Beatrice McDowell’s conduct in any one or more of the respects submitted in paragraph First was negligent ; and
“Third, such negligence of Beatrice McDowell directly caused or directly contributed to cause her death.”

We find no evidence to justify an inference that Mrs. McDowell failed to keep a lookout. In fact, the evidence is to the contrary. Had she failed to keep a lookout, her car probably would have collided wth defendant’s car; had she turned to the left to pass, she would have been confronted with the car coming south. The evidence justifies a finding that Mrs. McDowell fully realized her precarious position and that she chose the only possible avenue of escape. She chose to go to the shoulder of the road about eight feet in width and with a ravine 40 or 50 feet deep to the right of the shoulder of the road. All the evidence indicates that the McDowell car was close at hand when the defendant’s car entered Highway 21.

There being no evidence to support a finding of a failure to keep a lookout on the part of Mrs. McDowell, the court was justified in refusing the instruction.

It is unnecessary to consider other points briefed urging that instruction C should not have been given.

We find no prejudicial error in the record. Hence, the judgment for plaintiff is hereby affirmed.

PER CURIAM:

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the court.

All concur.


author: HIGGINS, Commissioner.

text:
    Arthur GIFFORD, a Minor, by and through Marilyn Orlando, his Mother and Next Friend, Respondent, v. BOGEY HILLS GOLF AND COUNTRY CLUB, INC., a Corp., Appellant.
    No. 52951.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.

      Burton M. Greenberg, St. Louis, for respondent; London & Greenberg, St. Louis, of counsel.
    Dalton & Zollmann, David A. Dalton, Wm. J. Zollmann, III, St. Charles, for appellant.
   HIGGINS, Commissioner.

Action for $20,000 damages for personal injuries for negligently furnishing plaintiff a dangerous golf cart. Verdict and judgment were for defendant, but plaintiff received a new trial for errors in connection with Instruction 8 given at defendant’s request.

Upon oral argument appellant conceded that the court committed error in giving Instruction 8 and thus waived and abandoned that portion of its brief, leaving only its contention that any such error was harmless because it should have had a directed verdict at the close of the evidence for the reason that “the evidence failed (I) to prove any negligence on the part of defendant which was the proximate cause of plaintiff’s injury,” and (II) “to prove any knowledge, actual or constructive of the alleged defect prior to plaintiff’s injury.”

On August 11, 1964, plaintiff, age 14, his stepfather, Joseph L. Orlando, and his stepfather’s brothers, Willie and James Orlando, were at defendant Bogey Hills Golf and Country Club, Inc., for the purpose of playing golf on defendant’s golf course. Joseph Orlando went to the pro shop and paid $22.00 for rental of two golf carts and registration fees for the foursome. When he came from the pro shop two golf carts had been parked there by defendant’s employee, Michael Schwieghauser. No warning was given to plaintiff or the other members of the foursome of any defective brakes on either cart. Willie and James Orlando paired on one cart and plaintiff rode with his father driving the other, which was designated number 5 by defendant. Plaintiff’s cart was a Laher electric golf cart, Number 6192MP, equipped with mechanical brakes. It had been used at another country club for three years prior to its purchase by defendant May 5, 1964. Although Orville Hahn, defendant’s greenskeeper, said that he checked the brakes on number 5 and found them all right when it was purchased, and that he lubricated and inspected it as a regular procedure about every two weeks, defendant, in answer to an interrogatory, stated no “maintenance, mechanical work, repair jobs or replacement of parts” had been performed by defendant on number 5 between the date of its acquisition and August 11, 1964.

It was Mr. Hahn’s duty to maintain golf carts for defendant and they, including number 5, were in service five days a week; however, he had never adjusted the brakes on number 5, did not check its brakes August 11, 1964, and, upon driving number 5 when returned after the accident, admitted that its brakes “could use an adjustment.”

Michael Schwieghauser was 14 or 15 years of age on August 11, 1964. He “helped the pro in the pro shop and cleaned up and stuff like that.”' As to golf carts he “would just bring them down in the morning.” He drove number 5 from the shed to the point where it was delivered to Mr. Orlando. The brakes stopped the cart but he had no occasion to attempt an emergency-type stop. He knew of no check made of the brakes on that morning and he had never adjusted brakes on any of the carts. He was instructed to return carts to the shed if brakes were not working properly.

Joseph Orlando drove cart number 5 until the fifth hole of the first nine. During that time he found that the brakes would not lock the wheels of the cart and would only bring it to a “rolling stop.” He had no occasion to make a hard or emergency application of the brakes.

Plaintiff requested permission from his father to operate the cart at the fifth hole. His father asked him to demonstrate his ability to operate the cart which he did to his father’s satisfaction. Plaintiff had previous experience with tractors, power mowers and electric carts at amusement parks which were brake-accelerator operated like the golf cart. Plaintiff began driving at the fifth hole and continued until the third hole of the second nine. During the play on that fairway one of plaintiff’s uncles lost a golf ball at the bottom of a hill. Plaintiff remained seated on the cart while the others of the foursome looked for the ball. The cart was parked or stopped with the brake fully depressed when it started rolling downhill. Plaintiff removed his foot a bit and then pushed down on the brakes several times with no result. The cart did not stop and crashed through a barbed-wire fence at the bottom of the hill, causing plaintiff to be severely injured.

James Orlando returned cart number 5 to the clubhouse and, in the course of driving it, found there were no operative brakes. He applied the brakes at least three times and, on each occasion, the pedal went to the floor and the brakes gave no resistance. He called this to the attention of Orville Hahn. Mr. Hahn “did go over and attempt to apply the brakes and I don’t recall his statement but it was either that there was no brakes or the brakes were bad or the brakes were faulty, something like that.”

The brakes were not adjusted in any way following the accident and, on August 13, 1964, Joseph O’Toole, Jr., an investigator for plaintiff, drove the cart and determined that the pedal “went possibly within an inch of the floor,” and at no time while he was operating the cart did the brakes lock the wheels or completely stop the cart.

On August 19, 1964, Otto Swyers, Jr., of Auto Damage Appraisers, employed by defendant, tested the brakes on the cart and found “they may have needed an adjustment.” He found the cart to have some brake pedal and he skidded its wheels on an asphalt surface.

On August 18 or 19, 1964, Orville Hahn brought the cart to a stop on the hill where plaintiff’s accident occurred.

Edward Bilhorn, a consulting engineer, was called as an expert witness by plaintiff. He stated the braking mechanism on the cart in question to be readily accessible for inspection, and that inspection is a simple procedure requiring about two minutes to perform. The function of the mechanical brakes is to lock the wheels of the cart. In answer to a hypothetical question, he stated his opinion that within reasonable engineering certainty the brakes on the cart were improperly adjusted and that this defect had existed for several weeks and could have been determined by an inspection.

Plaintiff made his case on the most favorable view of this evidence, and it was for the jury to say whether the golf cart furnished plaintiff by defendant had inadequate brakes which rendered the cart dangerous; whether defendant knew, or in the exercise of ordinary care should have known, of such dangerous condition; whether plaintiff did not know, in the exercise of ordinary care, of the dangerous condition ; whether defendant failed to warn of such condition; whether defendant was thereby negligent and plaintiff thereby injured and damaged, all as submitted by Instruction 3 (MAI 26.01).

Spelky v. Kissel-Skiles Co., Mo.App., 54 S.W.2d 761, is close in point to plaintiff’s case. Plaintiff charged that defendant leased an automobile to one Hoffman and that while riding with Hoffman she was injured as a result of defendant’s negligence in furnishing an automobile with defective brakes and a defective accelerator which would stick and cause the automobile to “race.” In affirming the award of a new trial to plaintiff after verdict and judgment for defendant, the court observed that “While the evidence is very conflicting, and it may be that the weight is strongly on the side of the defendant, there was enough in the case to submit the question to the jury. * * * There was evidence tending to show that the accelerator did become ‘stuck,’ and that the accident happened by reason of the car plunging forward, instead of stopping. A clear inference could be drawn that if an inspection had been made to see whether the accelerator was free, that this injury would not have occurred. In other words, the whole case, stripped to the bare bone on this point, is that the plaintiff sought to instruct the jury that it was the duty of the renter of the car to exercise ordinary care in furnishing a safe car, and that the failure to inspect would be some evidence that such care was not exercised, and for that reason * * * the court properly changed its mind on the motion for new trial in holding that the instruction should have been given. * * * the law is that the bailor must use ordinary care to furnish a safe automobile * * 54 S.W.2d 1.c. 762[3-5]. Slagle v. Singer, Mo., 419 S.W. 2d 9, is also similar to plaintiff’s case. Defendants Singer and Dabney submitted as a defense plaintiff’s contributory negligence in having tires on the car which he let defendant Singer use which “had worn down,” thereby making it dangerous. There was evidence from plaintiff that the tires, although worn, were in usable condition, and evidence from defendant that they were “slick.” Plaintiff said nothing to Singer about the tires and she had had no trouble with tires on previous occasions when using plaintiff’s car. The submission was proper under such evidence and on the same theory employed by plaintiff Gifford. 419 S.W.2d 1.c. 12[1], citing Spelky v. Kissel-Skiles Co., supra. See also Standard Oil Co. of Ind. v. Leaverton, 239 Mo.App. 284, 192 S.W.2d 681, 682[2], and Anno: 131 A.L.R. 846n; 170 A.L.R. 652n; 46 A.L.R.2d 414n, 444n.

Appellant’s argument of failure to show proximate cause is that Mr. Bilhorn, upon whom plaintiff relied to show proximate cause, “testified as to three possible causes for the alleged brake failure, thereby being void of any reasonable degree of certainty to the negligence submitted.”

After a comprehensive hypothetical question concerning the brakes on the cart in question, Mr. Bilhorn was asked: “* * * do you have an opinion, within reasonable engineering certainty, as to what defects, if any, there were on this cart? * * *

THE WITNESS: Yes, sir.

“Q What was that defect? A Improper adjustment, primarily. Q You say ‘primarily’ — there is an inference that there is some secondary defect. A Lack of lubrication is another example or— Q (interrupting) Lack of lubrication ? A (continuing) — improper adjustment. Q Improper adjustment— A (interrupting) Yes. Q (continuing) — is your primary ? A Yes. Q And lack of lubrication— A (interrupting) Could be another cause for the malfunction.

“Q Any other cause? A An actual disconnecting or a parting of the linkage between the foot pedal and the brake. Q Now, within reasonable engineering certainty, how long would a defect of this kind have existed? A I would say probably several weeks.

“Q Now, is that with reference to the improper adjustment? A Yes. Q And lack of lubrication? A Yes. Q And the actual parting of the linkage between the brake pedal and the brake ? A I would exclude the latter. * * *

“Q Now, with reference to the improper adjustment and lack of lubrication, how could those defects have been determined? A By inspection. Q Now, with reference to this particular cart, what is involved in an inspection of that kind? A Either of two things- — one is to set in the seat and depress the pedal and see whether you have a tight pedal. You can push the pedal all the way and lock the wheels. The other would be to raise the rear deck and the cable and the brake backing plate are available within reach. * * * Q How long would it take, in terms of time, to make such an inspection? A Not over two minutes.”

This extract demonstrates with reasonable certainty and without resort to guesswork or speculation that the defect in the brakes on the cart was “improper adjustment” which Mr. Bilhorn characterized as the “primary” defect. He specifically “excluded” parting of the linkage between brake pedal and brakes as any part of his opinion on causation, and his evidence on discovery of defect by simple inspection related only to improper adjustment.

Appellant’s citations do not support his argument because in Phillips v. Carroll, Mo.App., 413 S.W.2d 583, 586, the testimony of the expert “was in substance that there were numerous things that could cause * * * a rim to explode, off of an inflated tire,” without supporting any of them with an opinion to a reasonable degree of certainty which, of course,'was “not of sufficient probative value as to amount to substantial evidence of improper seating of the rim,” 413 S.W.2d 1.c. 587[3] ; and in Kane v. Chicago B. & Q. R. R. Co., Mo., 271 S.W.2d 518, 520, “Plaintiff produced no medical evidence whatsoever tending to show the cause of the death of deceased nor in any way tending to connect it with his alleged injury * * * or the claimed failure to render him prompt medical treatment * *

Appellant’s second argument against sub-missibility of plaintiff’s case is that since there was no evidence that defendant had actual knowledge of any defect, plaintiff had the burden and failed to prove “that a reasonable inspection would have discovered the defect and that Defendant failed to make such a reasonable inspection.”

The extract from Mr. Bilhorn’s testimony demonstrates not only the primary defect of the cart, improper adjustment of its brakes, but also that it had existed “several weeks,” certainly time enough to warrant an inference that routine inspection would have revealed the defect had inspection been performed in the simple manner described by Mr.- Bilhorn. Appellant emphasizes his argument by directing attention to testimony from which the jury could find that defendant did regularly inspect its carts; however, in a view of the evidence most favorable to plaintiff, there was evidence from which the jitry could infer lack of inspection for a period of time in which, had inspections been made, the improper adjustment of the brakes could have been noted and corrected.

Appellant’s citations to this argument also are distinguishable. In Lowes v. Union Electric Co., Mo.App., 405 S.W.2d 506, plaintiff’s case failed because his expert “gave no opinion as to the cause of the fire,” liability for which plaintiff sought to fasten on defendant. In Orr v. Shell Oil Co., 352 Mo. 288, 177 S.W.2d 608, there was no evidence that defendant’s employee knew or should have known of the toxic quality of Shell’s chemical to which plaintiff was exposed and therefore no case was made against the employee who directly furnished the chemical' to plaintiff. In Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, the only question relevant to this case was the sufficiency of a hypothetical question which was determined to be proper. Oliver v. Oakwood Country Club, Mo., 245 S.W.2d 37, simply affirmed the directed verdict for defendant because the evidence did not warrant a conclusion that defendant’s caddie master knew that prospective caddies were shooting an air gun on the golf club premises, as grounds for holding the club liable to a boy who was shot.

Judgment affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM:

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

All concur.


author: HENLEY, Presiding Judge.

text:
    Melvin SHEETS, Plaintiff-Appellant, v. Robert K. KURTH, Defendant-Respondent.
    No. 52807.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.
    P. J. Grewach, Hungate & Grewach, Troy, for appellant.
    Norris H. Allen, Anderson, Gilbert, Wol-fort, Allen & Bierman, St. Louis, for respondent.
   HENLEY, Presiding Judge.

This is an action against a surgeon for $50,000 damages for the alleged wrongful removal of a testicle during surgery for repair of an inguinal hernia. Verdict and judgment were for defendant. Plaintiff appeals. We affirm.

Plaintiff briefs two points. The first charges error in sustaining defendant’s objections to questions propounded by plaintiff on grounds not stated in the objection; the second, error in continually overruling his objections to allegedly leading and suggestive questions propounded to three defense witnesses. During oral argument counsel for plaintiff abandoned the first point briefed, frankly admitting that the trial court did not err in that respect. As to the second point, counsel candidly agrees “* * * that the use of leading questions is pretty well within the discretion of the court * *

A brief summary of the testimony of plaintiff and three defense witnesses will present sufficient facts for an understanding of the case. Plaintiff, married, age 58 when the operation was performed, testified that a routine physical examination in October, 1963, disclosed he had an inguinal hernia; that he consulted defendant who also found a “* * * recurring small inward inguinal hernia, just starting to protrude * * and recommended surgery for its repair; that he had had surgery three times before for repair of hernias in this area; that he entered the hospital on January 3, 1964, signed a form requesting “* * * performance of the required operation and * * * such additional work as seems necessary or advisable * * and the surgery was performed the next day; that on the day following the operation defendant told him that in repairing the hernia he had removed the left testicle, that while “* * * it wasn’t necessary to remove * * * it * * *, [it] might be in his estimation a matter of time when it would be necessary * * that the doctor did not tell him before,the operation that it might be necessary to remove a testicle ; that had the doctor so informed him he would have required consulation with and the opinion of another doctor before agreeing to this operation; that removal of the testicle has adversely affected his capacity for sexual intercourse and his previously happy home.

Dr. Kurth, defendant, testified, in substance, that he operated on plaintiff for a recurrent left inguinal hernia, repaired' it and removed the left testicle; that this was plaintiff’s fourth hernia operation in this area and he found considerable scar tissue present as a result of the three prior operations; that the spermatic cord was in and adhering to this mass of scar tissue; that in his judgment these conditions required removal of the testicle during this operation for the future welfare of the patient; that he had, indeed, discussed with plaintiff before the operation the possibility of the necessity of removing the testicle; that one normal testicle is adequate and plaintiff’s remaining testicle is normal.

Dr. Charles H. Nicolai testified on behalf of defendant that his speciality is urology and urological surgery; that it is his opinion, based on his physical examination of plaintiff and the detailed history and knowledge acquired from his discussion with plaintiff, that he has had a complete recovery from the surgery and is capable of and does have and engage in normal sexual reactions and relations with his wife. In response to a question apparently hypothesizing all facts pertaining to plaintiff’s condition known before and acquired by defendant during the operation, Dr. Ni-colai stated that in his opinion Dr. Kurth exercised that degree of skill, and learning ordinarily used under the same or similar circumstances by members of his profession in good standing practicing in that locality. Apropos of the proof by way of the hypothetical question, there was no evidence to the contrary.

Dr. Dean Sauer expressed generally the same opinion as that given by Dr. Nicolai.

During defendant’s direct examination (recorded on fifteen pages of the transcript) fourteen questions propounded to him were met by the general objection that the question was leading, or leading and suggestive. As stated, each objection was overruled. Direct examination of Dr. Nico-lai (twenty-one pages) brought the same objection to ten'questions and the same ruling. Direct examination of Dr. Sauer (thirteen pages) brought the same objection to four questions and the same ruling. Plaintiff’s one point relied on for reversal relates to alleged error in the court’s ruling on these twenty-eight questions. We have carefully examined and studied each; while many are not as artfully phrased as counsel, in retrospect, would no doubt desire, we find only seven which may be said to be obj ectionable for the reasons given.

Both parties cite Pritchard v. Thomas, Mo., 192 S.W. 956, 957 [9], and State v. Sawyer, Mo., 367 S.W.2d 585, 588 [5], as their first two authorities in support of their respective positions. The long accepted and followed general rule stated in those cases is that the “* * * approval or disapproval of leading questions is largely discretionary with the trial court and will not constitute reversible error unless discretion is abused.” Harrison v. St. Louis-San Francisco Railway Co., 339 Mo. 821, 99 S. W.2d 841, and State v. Todd, Mo., 372 S. W.2d 133, cited by plaintiff, are to like effect.

Assuming, arguendo, that all the questions referred to by plaintiff were leading and suggestive, we cannot say (considering them in context with prior questions and answers and considering the fact that these were highly intelligent witnesses unlikely to be influenced by leading questions • suggesting answers) that any one question, or all, collectively, produced error prejudicial to plaintiff. It is evident that the trial court, with its opportunity to reconsider and review this contention on after trial motion, did not deem these questions objectionable or, if objectionable, that they prejudiced plaintiff. Plaintiff has not demonstrated that the court abused its discretion. We find no abuse.

The judgment is affirmed.

STORCKMAN, J., and HOLT, Sp. J., concur.

SEILER, J., not sitting.


text:
    KANSAS CITY POWER & LIGHT COMPANY, a Corporation, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
    No. 53145.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.
    Thomas M. Sullivan, Downey, Sullivan, McCormick & Fitzgerald, Kansas City, for respondent.

      Herbert C. Hoffman, City Counselor, Ned B. Bahr, Associate City Counselor, Richard W. Mason, Jr., Associate City Counselor, Kansas City, for appellant.
   HOUSER, Commissioner.

Kansas City Power & Light Company filed a petition in two counts against Kansas City, Missouri. The first count is to quiet title to Lot 8 of Hawthorn Plantside Addition, a subdivision in that city, and for a decree adjudging that plaintiff is the fee simple owner of the land, subject only to an easement for levee purposes. The second count is for an accounting of all monies, rentals and crops received by defendant in its use of the land, under certain lease and rental arrangements alleged to have been made.

The case was tried to the court on both counts. The judgment entered, responsive to the issues drawn on Count I, did not dispose of or refer to the issues framed on Count II. The court did not specifically designate the judgment as a final judgment for the purposes of appeal. Defendant, appealing from the judgment, complains only of the action of the court in quieting title in fee simple in plaintiff.

As indicated, the record shows that the case was tried to the court on both counts. In opening statement counsel for plaintiff, after referring to the fact that a dispute arose as to the ownership of this tract of ground, stated “There were people who had used part of it to raise some crops, and they had paid some money to Kansas City, Missouri, and they had paid formerly to the Power and Light Company, the Plaintiff. So when this dispute arose, it was reduced to and resulted in a lawsuit.” Plaintiff’s counsel during the presentation of evidence at first suggested that Count II be “left in abeyance,” but then indicated that plaintiff did not want to waive its claim under Count II and proceeded to introduce evidence showing the amount of the rents collected. The full transcript on this phase of the case follows:

“MR. SULLIVAN: There is one other thing we ought to clear up. We joined a count for collecting the rents and not accounting. I think Mr. Bahr and I have always believed that it would depend solely upon the determination of Count I so that can just be left in abeyance by the Court altogether.
“MR. BAHR: I believe so, Your Hon- or.
“MR. SULLIVAN: I don’t want to waive the right — ■
“MR. BAHR: No. We don’t want you to waive that either.
“MR. SULLIVAN: But there is no sense in going into it in detail at this time until we get Count I straightened out.
“THE COURT: Depending on the ruling on Count I, wouldn’t that—
“MR. SULLIVAN: More or less the amount is pretty well determined by this time.
“MR. BAHR: I believe the amount is less than a thousand dollars, Your Honor.
“MR. SULLIVAN: Nine hundred twenty-seven, whatever the interest—
“MR. BAHR: I don’t think either side is going to pursue that. They may.
“MR. SULLIVAN: Your Honor, while we are waiting, I just might read that into evidence from the interrogatories to the defendant.
“I will offer in evidence Interrogatories 1(a), 1(b), 1(c), and 1(d), without reading them in detail, from the Plaintiff to the Defendant, which asked if there had been any rentals collected, and the answers were made that there had been a lease with Mr. Carl Parretta and Mr. Dominick Parretta, and that the total sums collected under that lease by the Defendant City was $827.38, as shown on the interrogatories, and I will just, with that statement of the evidence of that, let it ride
“MR. BAHR: No objection on that, Your Honor.”

In the judgment entry the court recited that plaintiff “adduced. evidence in support of its Petition and that the Defendant has adduced evidence in support of its Answer [which admitted leases and rental arrangements; admitted that defendant had not accounted to plaintiff for crops and rentals; denied plaintiff’s right to an accounting thereof and denied any indebtedness to plaintiff for crops or rentals], and the Court having examined thé pleadings and having heard the evidence and the statements of counsel, and being fully advised herein, DOES ENTER ITS JUDGMENT * * ” (finding the issues for plaintiff and against defendant and that plaintiff is the owner in fee simple of the land (described) ; that defendant has an easement for levee purposes; that defendant has no other right, title or interest in the real estate and is barred, precluded and estopped from claiming and asserting any other right, title and interest therein, and assessing the costs .against defendant).

A court, ever mindful of its jurisdiction, must determine whether or not a final judgment has been appealed from, regardless of whether the issue has been raised by the parties. Deeds v. Foster, Mo.Sup., 235 S.W.2d 262, 265[4]; Hance v. St. Louis-San Francisco R. Co., Mo.App., 283 S.W.2d 879, 880. The right of appeal is purely statutory and when the statutes do not give such right, no right exists. Dudeck v. Ellis, Mo.Sup., 376 S.W.2d 197, 204[2]; Civil Rule 82.01, V.A.M.R.; § 512.020, RSMo 1959, V.A.M.S. Section 512.020, RSMo 1959, V.A.M.S., provides for an appeal “from any final judgment in the case” and from certain other orders and judgments not here pertinent. Section 511.020, RSMo 1959, V.A.M.S., defines a judgment as “ * * * the final determination of the right of the parties in the action.” In Dudeck v. Ellis, supra, 376 S.W.2d, l.c. 204, this Court said: “For the purposes of an appeal a judgment must be a final judgment and it must ordinarily dispose of all parties and all issues in the case, unless the trial court has ordered a separate trial of any claim or issue, or has specifically designated the particular judgment as a final judgment for the purposes of appeal. Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695[2], 34 A.L.R.2d 972; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614, 616; Supreme Court Rules 74.01 and 82.06; § 511.020 RSMo 1959, V.A.M.S. If no such final appealable judgment has been entered by the trial court the appeal is premature and must be dismissed. Deeds v. Foster [Mo.Sup., 235 S.W.2d 262]. Our statute does not allow parties to appeal piecemeal, nor does it permit them to bring up only part of the issues in a case while all other issues remain undecided. There is an exception to this rule, however, as stated, where the trial court has expressly ordered a separate trial of a particular claim or issue.

“Since it appears from the record presented in this case that the trial court did not order a trial of the quiet title counts separate and apart from all of the other counts stating causes of action in ejectment and for trespass to real estate, the judgment entered on the quiet title counts is not a final appealable judgment. In such case the trial judge should have held the verdicts of the jury on the quiet title counts in abeyance until a final judgment could be entered disposing of the whole case, including the other counts stating causes of action.”

No order for separate trials of Counts I and II was made. No order specifically designating the judgment entered a final judgment for the. purposes of appeal was entered. The issues under Count II remain unresolved. The appeal is premature and must be dismissed.

This situation is not novel. It arose recently in Dudeck v. Ellis, supra, and in Bays v. Lueth, Mo.Sup., 323 S.W.2d 236. In Dudeck v. Ellis plaintiff brought suit in seven counts, two of which stated causes of action to quiet title, others of which were in ejectment. The judgment disposed of the quiet title counts but did not dispose of the counts in ejectment. The appeal was dismissed as premature. In Bays v. Lueth the petition was in two counts, (1) to quiet title and (2) in ejectment. Both counts were tried to the court in one hearing and a judgment responsive to Count I but ignoring Count II was entered. We stated the rule that for a judgment to be final and appealable it must dispose of all parties and all issues and leave nothing for future determination; that the purpose of the general rule is to prevent the piecemeal presentation of cases on appeal, or in detached portions; that there is an exception where separate final judgments are expressly ordered, and quoted from Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, l.c. 380, as follows: “With regard to non-jury trials, the rule clearly gives the court discretion to order a separate judgment on the separate non-jury trial of a claim and provides such separate judgment shall be deemed a final judgment for the purposes of appeal. Carr, Missouri Civil Procedure, Vol. II, Sec. 860, p. 47. The discretion to ‘order a separate judgment’ is a discretion to be exercised by the trial court and not by the appellate court. * * * ” The court concluded as follows, 323 S.W.2d, l.c. 237: “Since the record presented here fails to show a judgment disposing of the issues presented by the second count of the petition or any order of the court for a separate trial of the first count, no final, appealable judgment has been entered in the cause and defendant’s appeal is premature and must be dismissed [citing four cases].” That portion of Rule 3.29 referred to in Pizzo has been amended. The pertinent portions of the amended rule, renumbered 82.06, follow: “When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined. In any case (jury or nonjury) when a separate final judgment is entered the court may stay its enforcement until other or all final judgment in the cause are entered and may prescribe such conditions as are necessary to secure and protect the relative rights of all parties; provided, however, any such stay shall not affect the right of appeal.” In this case there was no separate trial “of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case” and there was no separate trial “of an entirely separate and independent claim unrelated to any other claims stated or joined in the case.” Nor was there any order specifically designating the judgment entered as final for the purposes of appeal. No exception to the general rule that a judgment to be final .and appealable must dispose of all issues in the case is to be found here and therefore the appeal is dismissed as premature.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Then Civil Rule 3.29.


author: WELBORN, Commissioner.

text:
    Joel Grady SMITH and Ledia Ann Smith, Respondents (Plaintiffs), v. O. D. McCLARD and Stella McClard, Appellants (Defendants).
    No. 52940.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.
    Paul McGhee, Dexter, for respondents.
    Claude Arnold, Dexter, for appellants.
   WELBORN, Commissioner.

This case involves an action in two counts. Count I was in ejectment and for damages. Count II sought an injunction against the locking of a gate which barred plaintiffs from access to their land. A jury’s verdict was for plaintiffs on Count I, with damages assessed at $50.00. The court found for plaintiffs on Count II and entered an injunction. After the motion for new trial had been overruled, defendants appealed. On this appeal, appellants state that this court has jurisdiction because title to real estate is involved within the meaning of § 3 of Article V, Constitution of Missouri, 1945, V.A.M.S. According to appellants, the appeal is from “(1) a judgment based upon a verdict of the jury involving title to a strip of ground * * * on Count I of respondents’ Petition wherein they claim a ‘recovery of said premises,’ while defendants claim title to said strip of land by adverse possession as set forth in their First Amended Answer * *

Respondents, in their brief, point out that neither the petition nor the answer sought an adjudication of title and that the judgment does not, on its face, purport to adjudicate title. Respondents suggest that in view of the nature of the relief sought and the judgment entered, this court may not have jurisdiction of this appeal. We must first resolve this question.

Count I was in ejectment in conventional form. It alleged ownership by plaintiffs of the disputed premises and sought recovery of the premises and damages. Count II alleged that defendants had locked a gate across a bridge by which plaintiffs gained access to their land. The petition alleged that plaintiffs had the lawful right to use the bridge and that the locked gate constituted a nuisance to plaintiffs. The prayer of Count II was for an injunction “to abate said nuisance” and to enjoin defendants “from maintaining said nuisance and obstruction.”

Defendants’ answer denied generally the allegations of Count I of the petition. The answer further alleged that defendants were the owners of the premises in dispute by reason of adverse possession. The answer to Count I also asserted that the actual boundary line between the property of plaintiffs and defendants was a fence which partially bounded the land in dispute. The answer to Count II admitted that defendants had locked the gate, but alleged that the gate was located exclusively on defendants’ land, asserting title by adverse possession, and denied that plaintiffs had any right to use the gate or bridge. The answer asked generally for judgment for defendants on both counts of the petition.

The case was tried to a jury as to Count I, which returned a verdict in favor of plaintiffs, assessing plaintiffs’ damages at $50.00. As shown by the transcript, the court entered judgment in favor of plaintiffs by reciting the jury’s verdict. No judgment for possession was entered. On Count II, the court found for plaintiffs “and grants the injunction for and sets Su-persedeas Bond at $500.00 for delay in injunction pending trial motions * *

For a case to involve title to real estate within the meaning of § 3 of Article V, conferring appellate jurisdiction on this court, the judgment sought or rendered must directly affect or operate upon title to real estate so as to determine it adversely to one litigant and in favor of another. Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 2 S.W.2d 771. Prior to 1936., this court considered an action in ej ectment to involve title to real estate within the jurisdictional grant to this court, because it was “necessary for the court to determine which party had legal title to the real estate in order to determine which was entitled to possession.” Williams v. Maxwell, Mo.Sup., 82 S.W.2d 270, 272-273. In 1936, in the case of Ballenger v. Windes, 338 Mo. 1039, 93 S.W.2d 882, the court concluded that an action for ejectment in which neither party sought a judgment adjudicating title and in which the only judgment entered was for possession did not adjudicate a title controversy and therefore an appeal in such case was not within the jurisdiction of the Supreme Court. See also Gibbany v. Walker, 342 Mo. 156, 113 S.W.2d 792. Such has been the rule followed since 1936. Townsend v. Lawrence, Mo.Sup., 262 S.W.2d 55; City of St. Charles v. De Sherlia, Mo.Sup., 303 S.W.2d 32, 34-35 [2-4]; Luttrell v. State Highway Commission, Mo.Sup., 367 S.W.2d 615, 618[3],

Appellants have not seen fit to suggest any reason why such rule should not be applied in this case. The only case cited in their jurisdictional statement, Moss v. James, Mo.App., 403 S.W.2d 661, was for an injunction to enjoin a trespass in which the defendant filed a counterclaim, asserting ownership of the land involved, and sought an adjudication of his title, which the trial court did determine in favor of the defendant. As the court pointed out, the “judgment both sought and rendered directly involved title to real estate in an appellate jurisdictional sense.” 403 S.W.2d 662[2, 3]. If such were the case here, no problem of jurisdiction would be presented to us. Obviously, such is not this case. In this case, the appellants sought no affirmative adjudication of their asserted ownership, the trial court’s judgment did not by its terms pass on the issue and, although they do say that the judgment should have been in their favor on their defense of adverse possession, appellants assert no error by reason of the trial court’s failure to adjudicate title in them.

Respondents have advanced theories on which they suggest that the jurisdiction of this court might be based, e.g., the parties impliedly tried the issue of title and this court can amend the judgment to decide the issue. However, we cannot acquire jurisdiction by an amendment of the judgment below, if our jurisdiction must depend upon either the judgment entered or the relief asked. See Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142; Albi v. Reed, Mo.Sup., 281 S.W.2d 882, 884-885.

Respondents also suggest that inasmuch as in the answer to Count II, appellants asserted title to the land on which the gate had been erected, title to real estate is involved in that count. Boas v. Cliffdale Land & Farm Co., Mo.Sup., 193 S.W. 806, cited by respondents, is a pre-Ballenger v. Windes case in which an action for injunction was held to involve title in the same manner as an action for ejectment. Ballenger v. Windes established new principles for the determination of this question. Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, and Bunyard v. Turley, Mo.App., 410 S.W.2d 706, involved actions to establish an easement and for an injunction to prevent interference therewith. An action to establish an easement as distinguished from a mere action to enjoin interference with a claimed easement does involve title to real estate within our jurisdictional limit. Kansas City Power & Light Company v. Riss, Mo.Sup., 312 S.W.2d 846; Judge v. Durham, Mo.Sup., 274 S.W.2d 247.

Although not advanced by either of the parties here, the suggestion has been made that in Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471, the theoretical basis of the holdings of Ballenger v. Windes and Gibbany v. Walker, supra, has been destroyed. See “The Allocation of Original Appellate Jurisdiction in Missouri,” W.U. L.Q., Vol. 1964, No. 4, p. 425, § 5.070, Actions in Ejectment, pp. 546-550; Eckhardt, “Work of the Missouri Supreme Court for 1949 — Property,” 15 Mo.L.Rev. 376, 383. The essence of the holding of Ballenger was that ejectment was only a possessory action, a judgment in which did not bar a subsequent action to determine title. Therefore, ejectment was held not to involve title within the constitutional limitation of the Supreme Court’s jurisdiction.

In Cantrell v. City of Caruthersville, supra, 221 S.W.2d 479, this court concluded that under the 1943 Rules of Civil Procedure: “The judgment rendered [in an ejectment action] should, we think, be binding upon the parties and their privies” [as to all claims of title upon which the right of possession depends].

The Cantrell case was an action to quiet title. The issue before the court was not one of jurisdiction. The actual issue was the effect of a judgment in an ejectment action as a bar to a subsequent action between the same parties to quiet title. In Cantrell, note was taken of the jurisdictional status of appeals in ejectment actions. Reference was made to Ballenger and Gibbany, supra, without intimation that, on the matter of appellate jurisdiction, they were no longer to be followed. Insofar as we find, no subsequent case has considered that Cantrell produced new standards for the determination of questions of appellate jurisdiction. Cantrell was cited in support of the Supreme Court’s denial of jurisdiction in Luttrell v. State Highway Commission, Mo.Sup., 367 S.W.2d 615, 618[3], an action for ejectment. See also City of St. Charles v. De Sherlia, Mo.Sup., 303 S.W.2d 32, 34[2-4], where Cantrell was cited in support for denial of jurisdiction of an action in ejectment.

We are of the opinion that jurisdictional matters must be determined according to the principles laid down in the Nettleton Bank, Ballenger and Gibbany cases, supra. The judgment sought or rendered must be the decisive factor. To hold otherwise would necessitate inquiry, in a case such as this, as to what issues were or might have been determined. Here, defendants did assert title by adverse possession, but they also asserted an issue as to the actual location of the boundary line between plaintiffs’ and defendants’ property. Examination of the transcript would be required to determine what issue was actually litigated and the issue may or may not, in fact, have been one of title. See Albi v. Reed, supra.

Since neither party sought, and the judgment does not purport to grant, an adjudication of title, this court does not have jurisdiction of this appeal. The cause is ordered transferred to the St. Louis Court of Appeals.

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.