text:
    Andrew C. KOENIG and Eunice T. Koenig, Appellants, v. Jerry SKAGGS, G. O. Skaggs, Marion Mackey and Frank Mackey, Respondents.
    No. 51098.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 14, 1966.

      Paul E. Williams, Bowling Green, for appellants.
    Charles Clayton, Clayton & Mattern, Clarksville, Philip Schaper, Jr., Bowling Green, for respondents.
   HENLEY, Judge.

Plaintiffs appeal from a judgment (1) for all defendants on plaintiffs’ petition for damages for cutting timber on land plaintiffs claim to own, and (2) for defendant, Marion Mackey, on his counterclaim to quiet title in him to the land from whieh the timber was cut.

Plaintiffs’ petition alleges that they are owners of a 40 acre tract of land described as the southeast quarter of the northeast, quarter of section 36, in township 53 north, of range 1 east, in Pike County, located in what is known locally as the Annanda bottoms south of Clarksville; that on or about June 17, 1963, the defendants, Jerry and G. O. Skaggs and Frank Mackey, as agents and employees of defendant, Marion Mackey, willfully and forcibly entered upon and cut and removed timber from plaintiffs’ land, and in doing so damaged other standing timber; that the cutting and damaging of this timber was malicious and in wanton disregard of plaintiffs’ rights. Plaintiffs prayed for actual damages of $2,900 and punitive damages of $50,000. Defendants’ answer was a general denial coupled with a counterclaim by defendant, Marion Mackey, in two counts. The first count is in ejectment alleging that this defendant is entitled to the possession of a 40 acre tract of land adjoining and lying immediately south of plaintiffs’ land, defendant’s land being described as the northeast quarter of the southeast quarter of section 36 “as far north as an east and west line that is formed by Schaeffers’ lev[ee].” The second count is to quiet title to the land last described in Marion Mackey. The issues made by plaintiffs’ petition, the answer and count 1 of the counterclaim were tried before a jury. At the close of all the evidence the court sustained plaintiffs’ motion for a directed verdict as to count 1 of the counterclaim and overruled the motion as to count 2, holding that the issues raised by this count are “a matter for determination by the Court rather than the jury.” The issues made by plaintiffs’ petition and the answer were submitted to the jury and resulted in a verdict for defendants. After entering judgment for defendants in accordance with this verdict, count 2 of the counterclaim was submitted to the court, without a jury. The result of that submission was a judgment quieting title to the land last described in the defendant, Marion Mackey. Plaintiffs’ motion for new trial was overruled and, as stated, they appeal from the judgment.

This court has jurisdiction because the amount in dispute, to-wit: $52,900, exceeds the sum of $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S. § 477.040, RSMo 1959, V.A.M.S.

It appears from plaintiffs’ brief (and during oral argument in this court the parties agreed) that plaintiffs are the owners of the north 40 acres described as the southeast quarter of the northeast quarter and that defendant, Marion Mackey, is the owner of the south 40 acres described as the northeast quarter of the southeast quarter; that the primary issue for determination by the jury was the location of the boundary line between their respective tracts. The area in question is approximately 600 feet long north and south for the full width, east and west, of the respective 40 acre tracts. There is no claim of title to this area by adverse possession by either plaintiffs of defendants, each apparently claiming only to the true line.

The evidence is conflicting as to the location of the boundary line between the two tracts. Plaintiffs contend that their south boundary line is established by running a line due west from a stake or pipe found at what they claim to be the southeast corner of their 40 acre tract. Defendants contend that this pipe is 600 feet south of the true corner; that the boundary line between the two tracts is established by an east-west levee known as Schaeffer’s levee located approximately 600 feet north of the line claimed by plaintiffs.

James Fleming, a registered and licensed surveyor, testified that he and his assistant suryeyed this area at plaintiffs’ request in late August, 1963, for the purpose of locating plaintiffs’ south boundary line; that Aaron Hemphill pointed out to him a stake or pipe claimed by plaintiffs to be the southeast corner of their tract and, after checking this pipe against an aerial photo of the area, he ran the line due west to establish plaintiffs’ south boundary; that he could not find a government corner marker from which to start his survey; that the pipe pointed out to him by Mr. Hemphill was his starting point; that he did not make a physical measurement of the land itself to verify this corner, but relied on the aerial photograph to verify what Mr. Hemphill had told him. Aaron Hemphill testified that he had been acquainted with this general area and the boundary line of various tracts of land in the area since about 1931; that the southeast corner of plaintiffs’ land was fixed by a pipe driven in the ground in 1941 or 1942 as a result of a survey; that the purpose of that survey was to establish the north boundary line of an 80 acre tract he owned approximately three-fourths of a mile east of plaintiffs’ land; that he participated in that survey; that he could not find this pipe when he went to the area in August, 1963, because treetops and brush were piled up in the area, but that he did point out to the surveyor, Fleming, the general area where the pipe should be found. Others, some of whom also participated in the 1941 or 1942 survey, testified that the pipe referred to by plaintiffs and Fleming was the southeast corner of plaintiffs’ land; that there were signs of an old strand or strands of barbed wire attached to trees west of the pipe indicating a previous marking of this as the south boundary line; that this wire was sunk into the trees indicating growth around the wire; that a part of the recent timber cutting by defendants was north of this line.

Joe Tadlock testified that he surveyed this area in June, 1963, for defendant, Marion Mackey, for the purpose of determining the north line of the 40 acre tract owned by Mr. Mackey; that he has been familiar with the area since 1929; that he has been a surveyor since 1933, and has a civil service rating as such with the federal government, but is not registered with or licensed by the State of Missouri as a surveyor; that the point of beginning of his survey was the northeast corner of section 36, which corner he located by reference to “a huge established post” on a line with a stone previously determined by the county surveyor to be on the north line of section 36; that a fence on a line with this post and stone has been accepted by property owners in that area as the north line of section 36; that he measured on the ground from his starting point to a point one-half mile south, turned due west and ran his line to the county road west of the southwest corner of plaintiffs’ land where he found recognized corner markers coinciding with the east-west line he had run; that these markers were an old elm tree and Schaeffer’s east-west levee; that on the evening before trial he returned to the line he had established and walked south to a point where timber had recently been cut; that this point was about 300 feet south of the line; that the line he established is approximately 600 feet north of the line fixed by surveyor Fleming. Luther Schamback testified that he had been familiar with this area since 1923; that Schaeffer’s levee corners at the southwest corner of the Koenig land and runs generally east and west; that recent timber cutting in that area was south of the levee line. William Beauchamp, who had known the lands now owned by plaintiffs and defendant, Marion Mackey, since about 1900, and Mike Guber, the owner of other land in section 36, and K. C. Patton, former owner of both tracts testified that the boundary line between the two tracts is Schaeffer’s levee. Defendants testified that they did not cut timber north of the line established by surveyor Tadlock, but had in fact stopped approximately 300 feet south of that line.

Plaintiffs assign as error (1) the admission of evidence, (2) the giving of an instruction, (3) failure to grant a new trial on the ground of newly discovered evidence, and, (4) that the verdict was against the weight of the evidence.

The primary issue in this case was the location of the boundary line between plaintiffs’ land and Marion Mackey’s land. Practically all efforts of the parties at the trial were directed toward proof establishing the line at a point consistent with their respective beliefs as to its true location. As stated above, the evidence on this issue was conflicting. There was substantial evidence from which the jury could find that the line was delineated by Schaeffer’s levee, approximately 600 feet north of the point at which plaintiffs’ evidence indicated the line was located. The jury’s finding on this evidence is conclusive. Armstrong v. Batterton, 303 Mo. 220, 260 S.W. 80, 83 [2]; McDaniels v. Cutburth, et al., Mo., 270 S.W. 353, 360; Gee v. Sherman, et al., 221 Mo.App. 121, 293 S.W. 789, 790 [7, 8],

The first point briefed by plaintiffs is that the court erred in the admission of testimony of the witnesses, Joe Tadlock, one of the surveyors, and Marion Mackey, one of the defendants. Plaintiffs contend that Joe Tadlock was not qualified to testify as an expert and should not have been permitted to give an opinion as an expert, because he was not registered with and licensed by the State of Missouri as a surveyor. In this point they assert that: “The mere fact of his offering himself as an expert witness, i. e., a surveyor was a misdemeanor under the law of Missouri * * See § 344.020, RSMo 1959, V.A.M.S. We note that plaintiffs’ objection at the trial was: “ * * * I will object to this witness’ testimony as a surveyor.” The court’s ruling was: “All right. We will let the jury pass on the weight to be given his testimony.” Immediately prior to this objection, the witness Tadlock had testified to facts pertaining to his education, training and experience as a surveyor, and his knowledge of the area, from which the court, in its discretion, could determine that he was qualified to aid the jury in forming its opinion as to the location of the boundary line. The jury of course had the right to believe or disbelieve his testimony. Considering the witness’ testimony as to his qualifications, we are of the opinion the court did not abuse its discretion in permitting him to testify. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 606-607 [7-11]; Christian v. Jeter, Mo., 287 S.W.2d 768, 770 [4, 5] ; McDaniels v. Cutburth, et al., supra, 270 S.W. l. c. 360 [6]; Gee v. Sherman, et al., supra, 293 S.W. l. c. 790 [6], Merely because Tad-lock was not licensed by the state as a surveyor did not disqualify him from relating to the jury what he had found, through the use of his specialized training and experience, to be the location of the true boundary line. See Von Eime v. Fuchs, 320 Mo. 746, 8 S.W.2d 824, 826-827 [9].

Plaintiffs contend that the court erred in permitting the defendant, Marion Mackey, to testify as an expert without qualifying him as such. The testimony to which plaintiffs have reference is Mackey’s identification and location on plaintiffs’ exhibit 4 (an aerial photograph) of an area of plaintiffs’ land the witness hadl said he knew to have been logged within the past 25 years. Earlier in his testimony-he had identified and located on the aerial photograph, without objection, portions of his own land that had been logged. Plaintiffs’ objection (if in fact it be an objection) was: “I would say that counsel is; leading the witness and asking for an expert conclusion without laying a foundation.” This objection or remark was made after the witness had identified and located on the photograph the area in question; no motion was made to strike the testimony or to instruct the jury to disregard it; the witness was permitted to continue to identify and locate other landmarks on the photograph without objection. The court did not err in admitting this testimony. Whether to permit this witness to identify and locate the area in question was within the sound discretion of the trial judge. We hold that he did not abuse that discretion.

Plaintiffs’ next point is that the court erred in giving instruction No. 6 which told the jury that if the alleged trespass of defendants was not characterized by wanton and malicious acts their verdict should be for defendants on the issue of punitive damages. For obvious reasons we need not further describe the instruction or relate their objections to it. The jury returned a verdict for defendants and, of course, did not reach the question of actual or punitive damages. There can be no recovery of punitive damages if there are no actual damages. Adelstein v. Jefferson Bank and Trust Co., Mo., 377 S.W.2d 247, 252 [4], Error, if any, in this instruction on punitive damages was not prejudicial to plaintiffs, the jury having found for defendants on the question of liability. Frank v. Wabash Railroad Co., Mo., 295 S.W.2d 16, 23 [16].

The last point briefed is that the court erred in refusing to grant plaintiffs a new trial on the ground of newly discovered evidence. We quote the assignment in their motion for new trial on ■ which this point is based: “Since the rendition of verdict and judgment in this case there has been discovered additional and more reliable corner markers and check points by the same surveyor.” In the argument portion of their brief plaintiffs state that this evidence was given to the trial judge; that “the availability of the evidence is demonstrated by letters from witness surveyor Fleming in the file and although not startlingly different from the testimony produced by him at the trial more significant and convincing check points and corner markers have been discovered by witness Fleming since the trial.”

We need not set out all the principles governing the granting of new trials because of newly discovered evidence. They are defined and clearly discussed in Womack v. McCullough, Mo., 358 S.W.2d 66, 68-69 [2-6] and cases therein compiled, and Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107, 111-113, [5-7], and cases therein compiled. Among those principles are these: (1) that it was not owing to the want of due diligence that the evidence was not secured sooner; (2) that it is so material that it would probably produce a different result if the new-trial were granted; (3) that it is not cumulative only; and, (4) that the affidavit of the witness himself should be produced, or its absence accounted for. This assignment of their motion is devoid of even a bare suggestion that they used any diligence to discover this new evidence ; there is not even the suggestion that it might possibly produce a different result if a new trial were granted. There is no allegation in the motion that it is not cumulative only; on the contrary, the words of the assignment and the above-quoted portion of their argument clearly disclose that it is in fact cumulative only. The motion is not verified, nor is it supported by affidavit of the witness or its absence accounted for. The new evidence plaintiffs state was “given” to the trial judge does not appear in the record before us. Plaintiffs have not brought themselves within the requirements laid down for granting a new trial because of newly discovered evidence.

The matter of granting a new trial on the ground of newly discovered evidence rests to a large extent within the sound discretion of the trial judge and his ruling on that issue should not be disturbed, except for clear abuse. No abuse of discretion appears in this record.

The judgment is affirmed.

All concur.

      . This is not an action for treble damages under § 537.340, KSMo 1959, V.A.M.S.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Willie Mary MURPHY, Widow, and John Edward Murphy, Richard Malcolm Murphy, Charles Allen Murphy, Anna Marie Murphy, George Dale Murphy, Jerome Donald Murphy, Melvin Eugene Murphy, Elizabeth Murphy, Margaret Murphy and Katherine Murphy, Minor Children and All Dependents of Lee Murphy, Deceased, Claimants-Appellants, v. KINGSLAND INVESTMENT COMPANY, a Corporation, Employer-Respondent, and Zurich Insurance Company, a Corporation, Insurer-Respondent.
    No. 51380.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Hubert I. Binowitz, St. Louis, for claimants-appellants.
    F. X. Cleary, Paul S. Brown, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondents.
   BARRETT, Commissioner.

In their amended claim under the Workmen’s Compensation Act, Willie Mary Murphy and her ten minor children sought an award of $16,500 (RSMo 1959 Supp. § 287.-240, V.A.M.S.) for the accidental death of her husband and their father, Lee Murphy, on July 9, 1962. In the language of the claim Mr. Murphy was “working on hanging scaffold, supported by weights on roof of building, when one end of the scaffold came loose” and he fell forty feet onto a concrete alley. He was working on a three-story, six-family apartment building at 1231 Hamilton Avenue, owned one half by Kingsland Investment Company and one half by P & M Bank Investment and Realty Company, and at the time managed by the latter’s brokerage department, the Preston Bank Realty Company. Kingsland admittedly and for the purposes of this opinion all owners were minor employers under the act. The Industrial Commission in affirming on review an award by a workmen’s compensation referee found that Lee Murphy was not a statutory employee of the Kingsland Investment Company (including in effect its co-owner or manager) and specifically that “he falls within the exclusionary provisions of § 287.040(3),” insofar as material here: “3. The provisions of this section shall not apply to the owner of premises upon which improvements are being * * * repaired by an independent contractor * * The circuit court affirmed the award and upon this appeal by the dependent claimants the sole question is whether “there was not sufficient competent evidence in the record to warrant the making of the award.” RSMo 1959, § 287.490, subd. 1(4); Johnson v. Simpson Oil Company, Mo.App., 394 S.W.2d 91, 93.

The parties have briefed and argued two principal points or theories, one under what may be designated as the affirmative provision of the statute, whether at the time of the occurrence Mr. Murphy was, in the appellant’s language, “performing a function which was in the usual course of the owner’s business.” The language of the statute is: “1. Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer * * RSMo 1959, § 287.040(1). Typical cases turning on the construction and application of this particular provision are Kennedy v. J. D. Carson Co., Mo.App., 149 S.W.2d 424; Rucker v. Blanke Baer Extract & Preserving Co., Mo.App., 162 S.W.2d 345; Cummings v. Union Quarry & Const. Co., 231 Mo.App. 1224, 87 S.W.2d 1039; Viselli v. Missouri Theatre Bldg. Corp., 361 Mo. 280, 234 S.W.2d 563. The other and' perhaps negative or exclusionary theory is whether, as the commission found, Mr. Murphy at the time of the fatal accident was engaged, again in the language of the appellant’s brief, in “a maintenance function, and not in the function of * * * repair,1’ a paraphrase of the above quoted third paragraph of the statutory provision. It is not deemed necessary to a disposition of this appeal to consider the first point and determine whether the work Mr. Murphy was doing, was an operation of the usual business of the owners. This appeal may be disposed of under the narrower point of whether Mr. Murphy was engaged in a “maintenance function,” compensable under the act, or whether owners’ improvements were being “repaired” by him as an independent contractor, not compensable under the act. And, as with the determination of whether particular work is in the usual course of an employer’s business, there is no general test or formula for determining whether particular work is “maintenance” or “repair,” each case presents its own peculiar difficulties and must be determined upon its particular circumstances. Viselli v. Missouri Theatre Bldg. Corp., 361 Mo. l. c. 284, 234 S.W.2d l. c. 566.

In this background of rules and statutes the evidence was that Kingsland’s office is at 815 Chestnut Street and its primary business is the purchase of real property for resale for the obvious basic purpose of making a profit. The location of Preston Bank Realty or its affiliate was not established but both consist of Mr. Preston Bank of Creve Coeur who had no employee except sharing a janitor with Kingsland. Preston Bank Realty had managed the 1231 Hamilton property for two years and its function was to collect rent and take care of complaints of tenants. A representative of Kingsland and Mr. Bank both visited the property to observe the work in progress but they exercised no supervision over Mr. Murphy' or those working for him. Kings-land had three employees, a bookkeeper, a secretary, and at the apartment building the shared janitor, but the janitor did no painting and no concrete work. Neither of the owners of the building own any tools or equipment for concrete work or for painting, including a scaffold. Over the years Murphy had done several jobs on other properties for these owners hut he did not do all of their work, they often let jobs by competitive bidding and sometimes employed other contractors or builders who specialized in the type of work necessary to improve property to attract buyers or renters or simply to maintain and. preserve the buildings. There were many more details as to the nature of the respondents’ business and their various activities, as to the particular property involved here and numerous other matters, but they need not be set forth here.

Lee Murphy was also known as L. C. Cobbs and transacted his business as “L. C. Cobbs.” His business letterhead reads:

“L. C. Cobbs Contractor Plastering-Tuckpointing-Brickwork-Painting 5554 Cabanne Avenue St. Louis 12, Mo.”

Mrs. Murphy testified that her husband’s occupation was “maintenance” which included “painting, papering, and painting” and she said that he was in business for himself and had been for nine years. She said that he owned a panel-body truck, four ladders, painting equipment, tuckpointing tools, concrete tools and a scaffold. She testified that her husband had employees working for him, Mr. Bursie and at least four of his adult sons. Mr. Murphy worked along with the men but he paid them all on an hourly basis but he was paid “(b)y the the job,” not by hourly or daily wage, furnishing all tools and equipment.

There was a great deal of oral testimony as to the particular work Mr. Murphy was engaged in on July 9 but on June 7, 1962, he submitted to the respondents on his business letterhead this statement or proposal:

“For repairing all loose and broken concrete on porches and balconies and sidewalks at 1231 Hamilton, 1241 Hamilton, 5904 Julian and 1230-32-34 Oakley furnishing all labor for the sum of . $300.00
“For painting exterior stucco masonry and windows at 1231 Hamilton, 1241 Hamilton, 5904 Julian, and balconies (front windows only) furnishing all equipment and labor for the sum of . $750.00
(ALL PAINT TO BE FURNISHED BY OWNER)
TOTAL JOB CONTRACT . $1050.00”

This written proposal was accepted by the owners and it was pursuant to the proposal that Mr. Murphy and his employees for about three weeks were engaged in doing the specified work on the four noted properties. On July 9 Mr. Murphy had mixed the paint and he and Bursie were “scaffolding up to paint.” Murphy walked “out on the scaffold to tie it up” when “all of a sudden I saw the lookout pole kick up” and he was thrown headlong onto the concrete. They had painted most of the building and that day were going to paint its west side, including the windows, removing loose putty, pulling nails and re-puttying glass and nail holes.

The appellants have seized upon the fact that under the contract the respondents furnished the paint and that on July 9 Murphy was immediately engaged in the process of painting the west wall which they say is a compensable “maintenance function.” It may be that in connection with buying, selling, renting and managing apartments or houses certain paint jobs would constitute “maintenance” as contrasted with “repair.” Meyer v. Wells Realty & Inv. Co., Mo., 292 S.W. 17. And here apparently painting comprised the greater part of the work to be done but the argument ignores the fact that in addition to painting the proposal called “(f)or repairing all loose and broken concrete” on porches, balconies and sidewalks and they had repaired and replaced concrete on stairways, porches and walks and Mr. Bank said, “There still was some concrete work to he done, yes.” It is not necessary to elaborately set forth all the details and indicate the permissible inferences, the noted evidence and circumstances support the commission’s finding that the work as an entirety constituted repairs by an independent contractor and therefore fell within the exclusionary provision of subsection 3 of the statute, § 287.040. While some of the cases involved “usual business” operations they furnish persuasive analogies for this conclusion. State ex rel. Long-Hall Laundry & Dry Cleaning Co. v. Bland, 354 Mo. 97, 188 S.W.2d 838; Gholson v. Scott, Mo.App., 130 S.W.2d 216; Tokash v. General Baking Co., 349 Mo. 767, 163 S.W.2d 554; Rucker v. Blanke Baer Extract & Preserving Co., supra; Kennedy v. J. D. Carson Co., supra. Those in a sense were major repairs, requiring specialized skills of the sort the owners were not equipped to make and did not make — they were at least general repairs. 1 Larson, Workmen’s Compensation Law, Sec. 49.12, p. 727.

The appellants’ argument also ignores the fact of the commission’s finding and the force of the award in favor of the respondents as indicated by the cases upon which they rely in which the awards were in favor of the claimants — as Kennedy v. J. D. Carson and Viselli v. Missouri Theatre Bldg. Corp., supra. And this is not to say that in no event could similar work in other circumstances not constitute “maintenance” or as to some employers become “an operation of the usual business” they may carry on, it is only to say that the briefly noted evidence is sufficient to illustrate that the commission’s finding and award is supported — it is not clearly contrary to the overwhelming weight of the evidence — and therefore the judgment of the circuit court is affirmed. Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 1166, 200 S.W.2d 55, 62; Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    Drew W. COTTON, Respondent, v. Arthur Ray PYLE, Appellant, and Lee-Way Motor Freight, Inc., a Corporation, Respondent.
    No. 51427.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.

      William C. Bland, Springfield, Edward V. Sweeney, Monett, for plaintiff-respondent, Drew W. Cotton.
    Daniel, Clampett, Ellis, Rittershouse & Dalton, B. H. Clampett, Ransom A. Ellis, Jr., Donald W. Jones, Springfield, Tom B. Hembree, Joplin, for defendant-appellant, Arthur Ray Pyle.
    Glenn A. Burkart, Robert W. Schroff, Mann, Walter, Burkart, Weathers & Schroff, Springfield, for respondent, LeeWay Motor Freight, Inc.
   PRITCHARD, Commissioner.

Two points are presented by appellant, Pyle, by which he seeks reversal and new trial of respondent Cotton’s claim for personal injuries, and on his own cross-claim for personal injuries against respondent Lee-Way Motor Freight, Inc. The first point is that the trial court erred in refusing to declare a mistrial because of a claimed prejudicial question asked Police Officer Wells upon cross-examination by counsel for Lee-Way: “Q. (By Mr. Burkart) You issued a ticket to Mr. Pyle, didn’t you?” The second point is that the trial court erred in refusing to give appellant’s Instruction “A”, relating to contributory negligence of respondent Cotton, a passenger in appellant’s automobile at the time of the occurrence in question.

Judgment upon verdicts was for respondent Cotton and against appellant for $11,-000; and for respondent Lee-Way on appellant’s $51,900 cross-claim against it. The amount in dispute being more than $15,000, we have appellate jurisdiction. Const.Mo. 1945, Art. V, § 3, V.A.M.S.

The sufficiency of the evidence to support submission of the case to the jury on behalf of any party is not contested. A brief statement of the facts will therefore suffice. On November 12, 1962, at about 4:45 a. m., while it was still dark, appellant was driving his automobile south on Grant Street in Springfield, Missouri. With him were two passengers, Polston Bolton who was sitting In the center of the front seat, and respondent Cotton who was sitting on the right side of the front seat. The three were enroute to Bull Shoals Lake for fishing. Appellant approached the intersection of Chestnut Street Trafficway with Grant Street, which was protected in its center by a hanging signal, which flashed red to the north and south and yellow to the east and west. Grant Street was about 37 feet wide and Chestnut Street Trafficway was about 35 feet wide. On his approach, appellant was first driving about 25 miles per hour and then reduced his speed to about 15 to 20 miles per hour, and on arriving at the intersection he stopped two or three feet north of the curb line and looked both ways, first to the east and then to the west. Although appellant did not depend upon his two passengers altogether, he asked them if everything was clear, to which one or both of them answered “Yes”. Appellant saw no vehicles or lights approaching on Chestnut Street Trafficway, so he started across the intersection. As appellant reached a point three-fourths of the distance across the intersection, Lee-Way’s tractor with a tandem-wheel van 39 feet long coming from the west collided with appellant’s automobile. The driver of Lee-Way’s tractor-trailer and Mr. Bolton were killed, and both appellant and respondent Cotton were injured.

Immediately after the asking of the above cross-examination question of Officer Wells, who was the first witness, the following occurred:

“MR. ELLIS: I’m going to ask for a mistrial at this point, Your Honor. That is clearly prejudicial to this defendant and inadmissible in evidence.
THE COURT: It is inadmissible, that’s for sure.
MR. ELLIS: It is highly prejudicial.
THE COURT: Well, I’m not going to declare a mistrial, but don’t mention it any more.
MR. ELLIS: Just a moment. I’d like to ask the Court for a mistrial in view of the prejudicial statement which was made and no comment by the Court at this point could possibly correct the damage which has been done here and our only remedy would be a mistrial.
THE COURT: I’m afraid you are right. I don’t think that anything I’d say to the jury would remove it from their minds.
MR. BURKART: I will withdraw the question if the Court thinks it is improper.
THE COURT: That would simply reemphasize the thing to the jury.
MR. SWEENEY: On behalf of the plaintiff I would ask the Court to admonish the jury to disregard that as being highly improper and to reprimand counsel for what he knows is a flagrant abuse of the rules of evidence.
THE COURT: Do you want me to admonish the jury? I am not going to declare a mistrial.
MR. ELLIS: Well, Your Honor, admonishing the jury is not going to solve the problem at this point. If your Honor decides to go ahead, the least that could be done to cure the error that has been committed here would be to admonish the jury to disregard it completely and that they will not take that statement into consideration whatsoever, that it is improper, but I cannot agree that any remedy, other than a mistrial, would be appropriate.
THE COURT: I’m afraid you are right. I will let the case go ahead and we will see where we wind up. If you want me to admonish the jury, I will do it.
MR. ELLIS: I am not going to suggest that you do it. I’m standing on my motion for a mistrial.
THE COURT: Are you suggesting that I do that?
MR. SWEENEY: I would like to suggest it to the Court.
THE COURT: Very well.
(Whereupon the proceedings returned to open court)
THE COURT: (To the jury) Ladies and gentlemen of the jury, I want to admonish you as seriously as I can that you are to utterly disregard the question, the last question asked by Mr. Burkart which was ‘You issued a ticket to Mr. Pyle, didn’t you ?’ — that has nothing to do with this case, it has no bearing on the case and, in all kindness, I wish to say that it should not have been asked, but these things just happen. I’m not criticizing Mr. Burkart except that the question should not have been asked and it has nothing to do with the case. I am instructing you as strongly as I may that you are to disregard the question. There will be no answer. Do you understand that ? All right.”

Appellant cites a number of cases holding that questions of this type are improper, to which we agree. Respondent, Lee-Way, concedes that the question should not have been asked. The issue is, then, whether there was such prejudice that the effect of the question, tending to suggest that appellant was at fault on the issue of his liability, could not be removed by the court’s instruction to the jury to utterly disregard it.

The numerous cases cited and relied upon by appellant involve different factual situations than this case where there was but the single, improper question, and where the trial court promptly and strongly admonished the jury to disregard the unanswered question and that it had nothing to do with the case. In State v. Rose, 178 Mo. 25, 76 S.W. 1003, 1006, counsel for the state called as a witness a justice of peace, and asked him in the presence of the jury, “I wish you would turn to your docket, ‘State of Missouri vs. John Rose, for larceny.’ ” The offense, under the evidence, was minor — stealing property worth less than $3.00 from the person of another in the nighttime, which carried a penalty upon conviction of 3 months imprisonment in the county jail to 7 years imprisonment in the penitentiary. The court held that the punishment assessed, 2 years imprisonment, under the evidence, at least tended to indicate that the prejudices of the jury were so aroused (by reason of the very damaging statement of counsel) as to interfere with a calm and dispassionate consideration of the evidence alone pertinent to the issues before them. It is significant in the Rose case that “Nothing was said to the state’s counsel or to the jury to destroy any injurious effects of such a statement.” (Loc. cit. 76 S.W. 1006.) In Harris v. Williams, Mo.App., 363 S.W.2d 51, 53, plaintiff was cross-examined: “Q. Do you recall a little matter of being arrested?” Although the objection was sustained the court took no action on the request that the jury be instructed to disregard the question, and the request for mistrial was denied. In Myers v. Moffett, Mo., 312 S.W.2d 59, there were continued, persistent improper questions (a cumulative, prejudicial effect), asking conclusions of the witness, after the court had sustained the objections and told counsel outside the hearing of the jury to refrain from asking such questions. In Holden v. Berberich, 351 Mo. 995, 174 S.W.2d 791, 149 A.L.R. 929, the trial court upon motion for new trial specified as the ground for his order of new trial (affirmed on appeal) an improper question to and answer by plaintiff’s principal witness that he had been indicted in connection with the Holden death on a charge of driving while intoxicated. So far as appears from the opinion, there was no request made that the jury be instructed to disregard the improper matter.

There are, of course, circumstances in which it is clear that an attempt to remove by instruction to the jury the prejudicial effect of incompetent testimony, or questions improperly put by counsel, would be ineffective to remedy the error. Spears v. Schantz, 241 Mo.App. 879, 246 S.W.2d 399, 410 [14], Much is left to the discretion of the trial court in determining whether corrective action is appropriate and sufficient, Hoffman v. Illinois Terminal Railroad Company, Mo.App., 274 S.W. 2d 591, 595 [9], and the trial court is in a much better position to determine whether a verdict has been obtained through “sharp practice,” Hollenbeck v. Missouri Pac. Ry. Co., 141 Mo. 97, 38 S.W. 723 (affirmed, Banc, 41 S.W. 887). See also Stutte v. Brodtrick, Mo., 259 S.W.2d 820, 825 [4-9]. In view of the testimony of eyewitness, Keith Southard, that Lee-Way’s truck was clearly visible as it approached the intersection, and that of appellant that he looked (but did not see the truck), there was ample evidence to support the verdict without any consideration by the jury of counsel’s improper question to Officer Wells. Compare Cammarata v. Payton, Mo., 316 S.W.2d 474, 480, where it was said, “While liability and the plaintiff’s right to recover [were] dependent for the most part on the jury’s persuasion as to credibility, this was a simple case involving simple issues and in point of fact the question of negligence was not so close as to leave doubt as to the propriety of the jury’s final verdict or to leave the lurking suspicion that the jury may have been unduly inflamed and influenced by improper extraneous evidence and argument.” The fact that here the trial court first remarked that anything he would say to the jury would not remove the improper question from their minds is not binding, and immediately after conference with counsel he did take prompt, definite and decisive action in admonishing the jury to disregard the matter, that “the question should not have been asked and it has nothing to do with the case.” Under the evidence and circumstances that the matter arose and was disposed of during the trial, and that it was considered by the trial court on motion for new trial, we do not perceive prejudicial error. Appellant’s first point is overruled.

The refused contributory negligence instruction “A” submitted that if the jury found that respondent Cotton failed to see the approaching eastbound tractor-trailer, and failed to warn appellant of its approach, that he could have seen it and could have warned appellant of its approach, when he still had enough time so that he could have avoided the collision by either stopping, slackening his speed, or swerving, and that in failing to see the approaching tractor-trailer unit, and failing to warn appellant, respondent Cotton failed to exercise ordinary care for his own safety and was thereby negligent, he was not entitled to recover. Respondent Cotton testified: That appellant brought his car to a stop at the intersection before starting across; that he (Cotton) looked to the east and west, and that was the last thing he remembered— he didn’t see anything because he didn’t remember anything — “My memory just stops there, it stops.” Appellant testified that he could not say for sure who it was in the car who said “Yes” in answer to his question, “Is everything clear?” Appellant was looking himself, and he did not depend upon his passengers altogether because he was looking — he was doing the driving. He did not know whether it was Cotton who said “Yes”.

The rule concerning the duty of a guest passenger in this state is well stated in the case of Happy v. Blanton, Mo., 303 S.W.2d 633, 638 [8] : “A guest passenger in an automobile is required to exercise only ordinary care for his own safety. State ex rel. Alton Railroad Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233, 238; Toburen v. Carter, Mo.Sup., 273 S.W.2d 161; Ketcham v. Thomas, Mo.Sup., 283 S.W.2d 642. A guest may not entrust his safety absolutely to the driver regardless of the impending danger or apparent lack of ordinary caution on the part of the driver, but the guest is not required to exercise the same vigilance as the driver, nor does he have the same obligation to look for danger. Smith v. St. Louis-San Francisco Railway Co., 321 Mo. 105, 9 S.W.2d 939; Fann v. Farmer, Mo.App., 289 S.W.2d 144, 147. Tn the absence of visible lack of caution of the driver or known imminence of danger, a guest may ordinarily rely upon a driver who has exclusive control of the vehicle.’ Toburen v. Carter, supra [273 S.W.2d 164]; Ketcham v. Thomas, supra; Fann v. Farmer, supra.

In this case there was no evidence of any lack of care or vigilance upon the part of appellant in stopping two or three feet north of the curb line on Grant Street in obedience to the flashing red signal for traffic thereon. There is nothing about the facts or circumstances surrounding the operation of appellant’s car which would charge respondent Cotton with knowledge that anything was amiss. On the contrary, the evidence shows that prior to starting up and driving into the intersection, appellant was exercising care commensurate with his own safety and the safety of his passengers. There is no evidence that respondent Cotton saw the approaching Lee-Way truck so as to place upon him the duty timely to warn appellant of its presence. Respondent Cotton, as a guest passenger, was under no duty to maintain a constant lookout or to warn. Jenkins v. Wabash Railroad Company, Mo., 322 S.W.2d 788, 798 [14, 15]. There was here no evidence that had respondent Cotton actually seen the approaching Lee-Way truck, that a warning to appellant would have effectively prevented the collision. Respondent Cotton’s conduct must be judged primarily with reference to his driver’s conduct and his own ability to control the driver. Fann v. Farmer, Mo.App., 289 S. W.2d 144; Adair v. Cloud, Mo., 354 S.W.2d 866, 870. There was thus a failure of proof of any facts which would justify the giving of an instruction upon contributory negligence of respondent Cotton. Appellant’s second point is overruled.

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.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Bennett Marsh CLARK, (Plaintiff) Respondent, v. QUALITY DAIRY COMPANY, a Corporation, and William D. Kostedt, (Defendants) Appellants.
    No. 51242.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.

      A. H. Hamel, Clayton, for respondent.
    Robert Nagel Jones, Gentry, Bryant & Sheppard, Arnot L. Sheppard, St. Louis, for appellants.
   WELBORN, Commissioner.

This is an action for $26,457.00 damages for personal injuries and property damage, arising out of an automobile accident. A jury returned a verdict for defendants. The trial court, on its own motion, ordered a new trial. Defendants appeal from such order.

The issues here presented require only a brief statement of facts. On August 23,. 1961, plaintiff was driving east on Route 30, in the vicinity of Murphy, in Jefferson County. He overtook and started to pass a delivery truck of defendant Quality Dairy Company operated by its employee, defendant Kostedt. As plaintiff started to pass the truck, Kostedt started to make a left turn. Plaintiff swerved his vehicle and ran into a ditch on the left side of the roadway, his vehicle overturning several, times, resulting in injury to plaintiff.

Plaintiff’s submission to the jury submitted as negligence Kostedt’s failing to keep a careful lookout, failure to signal intention to turn, failure to give way to the right in favor of plaintiff’s overtaking vehicle on plaintiff’s audible signal, or by moving the truck from its proper driving lane when such movement could not be made in safety. Defendants submitted plaintiff’s contributory negligence in driving at an excessive speed or failing to signal properly his intention to pass the truck. The only eyewitnesses to the occurrence were plaintiff and Kostedt. Each testified to facts to support the respective submission of plaintiff and defendants. Appellants, by their brief and by their counsel on oral argument, concede that plaintiff’s testimony made a submissi-ble case on the issue submitted by plaintiff.

The trial court ordered a new trial on the grounds that the verdict in favor of defendants “is against the evidence and the greater weight of the evidence and the law under the evidence * * Acceding to appellants’ contention that the only substantial basis of the trial court’s ruling was the finding that the verdict was against the weight of the evidence, we are called upon by appellants to re-examine the long-established standard of appellate review of an order such as that here under attack. Appellants acknowledge that “the present holdings of this Court and other courts of appeal in Missouri” warrant plaintiff’s argument that “in determining the question whether the trial court (in granting a new trial to plaintiff on the ground the verdict was against the weight of the evidence) was acting in the exercise of its judicial discretion, the appellate court will endeavor to ascertain if there was sufficient substantial evidence to sustain a verdict for plaintiff, the party to whom the new trial was granted.” Madsen v. Lawrence, Mo. Sup., 366 S.W.2d 413, 416 [5, 6]. Appellants argue that the appellate court’s position is based upon policy, not upon lack of jurisdiction, and that such policy should be re-examined because it is logically and reasonably indefensible. According to appellants, the trial court can exercise sound discretion in granting a new trial as such provided only if the evidence was insufficient to warrant the verdict. “Whether or not the evidence was sufficient to establish the use of sound discretion as the basis for the order, depends upon the character of evidence involved. To make this determination necessarily demands a review of the evidence.” However, since appellate courts uphold the trial court’s exercise of discretion if plaintiff made a submissible case, “ * * * there can never be a determination of whether or not a trial court abused its discretion under the circumstances here involved. * * * Therefore, the present policy creates a duty upon this Court to determine whether or not the new trial was granted on the basis of the use of sound discretion by the trial judge; and at the same time makes it impossible for it to perform that duty.”

Early in our state’s judicial history, the appellate courts laid down the policy of declining to weigh the evidence in cases before them on appeal. An early exposition of the policy and the reasoning behind it is found in Garneau v. Herthel, 15 Mo. 137, decided in 1851. There, the court stated:

“The only questions submitted for our consideration are, whether the Court of Common Pleas erred in refusing to grant the defendant a new trial, on the ground that the verdict was against the weight of evidence; and in overruling his motion in arrest of judgment. The court has become entirely satisfied that the exercise of the power of revising the actions of the different courts of original jurisdiction, upon motions for a new trial, on the ground that the verdict is against evidence or against the weight of evidence, would often produce great injustice. All persons, familiar with trials, must know that it is utterly impossible to bring before this court, upon paper, a real representation of the trial as it took place. The manner, the temper, the character of witnesses as known to the jury, cannot be spread upon paper; and the words of a witness, in whose testimony neither the jury nor the court had the slightest confidence, will read as well, and appear entitled to the same consideration when written upon the record, as would the language of the most impartial upright witness in the world. We cannot suppose that the courts, trying causes, are deficient in the firmness necessary to set aside verdicts when they are found, either under the influence of prejudice, or are opposed to the weight of the evidence. We have the confidence which the law entertains, that the judges, attending to the trials as they progress before them, will freely apply the remedy of granting a new trial, in every case where injustice is done by a verdict, found either without evidence or contrary to the weight of evidence. From these considerations, this court will decline interfering with a judgment, upon the ground, that the court rendering it, has granted or refused a new trial, because of the verdict’s being against evidence, or against the weight of evidence.”

In Reid v. Piedmont & Arlington Life Ins. Co., 58 Mo. 421, decided in 1874, Judge Wagner stated (1. c. 429-430) :

“Defendant has filed its motion for a re-hearing in this case, on the ground that the verdict of the jury was unsupported by the evidence and in direct conflict with it. It is needless to repeat what has been so often said, that this court will not undertake to weigh the evidence. Such a course would be entirely inappropriate in an appellate tribunal. The opportunity for judging of the credibility of witnesses is entirely denied to us. Hence, when there is any evidence to support the verdict we cannot interfere. The evidence may be slight, and it may be contradictory, but we cannot tell the proper credit that should be attached to it. * * *

“But in this connection, it is well enough to make another remark. Constant complaints are reaching us that in some of the Circuits the rule adopted here is followed, and that the judges consider themselves bound thereby. But this is founded in an entire misapprehension. The trial courts have opportunities which we have not. In witnessing and presiding over the trial, they are put in possession of facts which we cannot possibly attain. They see the witnesses ; can form an opinion respecting their veracity; can observe whether they are biased or prejudiced; can notice their willingness or unwillingness, and a great many other circumstances which it is impossible to transfer to paper. They can also form a correct conclusion as to whether any improper influences operated on the jury in producing the verdict. All these considerations render it peculiarly proper that the question of granting new trials, on account of the verdict being against the weight of testimony, should be exclusively exercised by the court trying the cause, and where the trial court is of the opinion that the verdict is not supported by the evidence, or is against the weight of evidence, it should never hesitate in exercising the power and giving the aggrieved party a new trial.”

After the amendment of the practice action in 1891 (Laws of Mo., 1891, p. 70) making an order granting a new trial an appealable order, appeals from orders awarding a new trial on the grounds that the verdict was against the weight of the evidence became frequent. The appellate courts adhered to the policy previously announced in cases of denial of the motion. In Haven v. Missouri R. Co., 155 Mo. 216, 55 S.W. 1035, (l. c. 1038-1039), Judge Marshall, in speaking of the appellate court’s function under that statute, stated:

“ * * * [T]he majority opinion in Thompson v. [Metropolitan St.] Railway Co., 140 Mo. 125, 41 S.W. 454, seems to proceed upon the theory that on appeals under the acts of 1891 and 1895 this court will treat the case just as it formerly did cases that came here after final judgment, and will not interfere with discretionary rulings of the trial court, and will not weigh conflicting evidence, but will reverse the judgment if there is no substantial evidence to support it, or if errors of law were committed by the trial court; while, on the other hand, the opinions in Candee v. [Kansas City & I. Rapid Transit] Railway Co., 130 Mo. 142, 154, 31 S.W. 1029, and Ittner v. Hughes, 133 Mo. 688, 34 S.W. 1110, hold that this court, on such appeals, will not ‘indulge the presumptions which obtained prior to its enactment’ (referring to the acts of 1891 and 1895), ‘and which do not at all consist with its express terms,’ and that the prerogative and obvious duty of this court in such cases is to review the action of the trial court, ‘and determine from the law and the facts of the case whether the circuit court exercised a sound judicial discretion.’ In other words, the first theory applies the appellate practice, while the second theory gives this court all the powers of a circuit court, including its discretionary powers in passing on a motion for a new trial, and authorizes and requires this court to do what the circuit court ought to have done. Under the first theory the labors of this court would be very much reduced, and its duty very simple, while under the second theory a greater burden is cast upon this court than rests upon the trial court, for this court is necessarily compelled to study the whole case, and pass upon facts, without seeing the witnesses, all of which was familiar to the trial court. The original purpose of the acts of 1891 and 1895 was to remedy inconveniences arising in partition cases, injunction cases, in arrest of judgment, and the granting of new trials in cases where no verdict in favor of the party at whose instance the new trial was granted could ever be allowed to stand. Prior to the passage of these acts no appeals were permitted until final judgment, and, if a new trial was granted by the trial court, the only way open to the losing party in the motion to have the ruling of that court reviewed was to save proper exceptions, abandon his case, permit final judgment to go against him, and then appeal; in other words, to risk his whole case upon the soundness of his judgment with respect to the ruling of the court on the motion for a new trial. It was, inter alia, to remedy this hardship, that these acts were passed. There is no intention expressed in these acts to require this court to treat such appeals taken before final judgment any differently from the practice that obtained in this court with respect to such matters before the act was passed. The evident purpose was to enable the losing party in the motion to obtain a ruling from an appellate court upon the judgment of the trial court on the motion, before there was a final judgment in the cause, and to relieve the losing party to the motion of the necessity of standing on the ruling, and permit judgment to go against him in order to secure the opinion of the appellate court. Under the old practice this court applied the appellate practice, and refused to weigh conflicting evidence, or to reverse the ruling below on discretionary matters, and interfered only for errors of law, or where, conceding everything that was stated or pointed out by the party in whose favor a new trial had been granted, that party was not entitled to a verdict. * * * The acts of 1891 and 1895, as above shown, only bring the ruling of the trial court on the motion for new trial to this court for review before final judgment, instead of af-terwards, as was formerly the case. No other change in procedure is expressed or contemplated by those acts. The case is here on appeal, and the usual and immemorial appellate practice must obtain. It is here for review on matters of law, not on the weight of the evidence, nor for this court to substitute its discretion for the discretion of the trial court.”

Extensive citation of the cases wherein the policy here under attack has been applied would avail little. They may be found under various headings of the Missouri Digest. See 3 Mo.Digest, Appeal and Error, 22 Mo.Digest, New Trial, 72. Appellants cite and we find no case in which the policy has been questioned. We have recognized that the basis of the appellate court’s attitude in such cases is policy, not lack of jurisdiction. King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458, 464 [8], The policy is founded upon the fundamental inappropriateness of appellate courts’ endeavoring to weigh evidence. We have only the cold transcript before us which reveals very few of the numerous factors to be considered in weighing evidence. As appellants point out, weighing evidence is not simply a matter of quantitative analysis, but is primarily a qualitative analysis. While we might well determine which litigant produced the larger quantity of evidence, our position is far inferior to that of the trial court in analyzing the quality of the evidence. Consequently we must rely upon the trial court’s proper exercise of the discretion entrusted to it in such matters.

■ Appellants state that some twenty jurisdictions follow the rule or policy which they contend should be applied here. Although we do not find that all of the authorities cited by appellants support their contention (Scott v. Scott, 75 Ariz. 116, 252 P.2d 571, for example, dealt with the appellate court’s attitude toward a contention in that court that appellant should have been granted a new trial because the verdict was against the weight of the evidence), several of the authorities cited do support the proposition here urged that the appellate court should reverse an order for a new trial whenever there was substantial evidence to support the verdict. Among such authorities are Dyer v. Hastings, 87 Ohio App. 147, 94 N.E.2d 213; Board of County Road Commissioners v. Bera, 373 Mich. 310, 129 N.W.2d 427; Biggs v. Gottsch, 173 Neb. 15, 112 N.W.2d 396; Hamre v. Senger, N.D., 79 N.W.2d 41; Braatz v. Continental Casualty Company, 272 Wis. 479, 76 N.W.2d 303; Bronson v. Riffe, et al., 148 W.Va. 362, 135 S.E.2d 244; Commonwealth v. McNeely, 204 Va. 218, 129 S.E.2d 687; Redwing Carriers, Inc. v. Helwig, Fla.App., 108 So.2d 620.

On the other hand, the Vermont Court, in Dashnow v. Myers, 121 Vt. 273, 155 A.2d 859, cited hy appellants, followed what appears to us to be the same practice as is followed in Missouri. We note that several jurisdictions do follow the same policy as the Missouri appellate courts. See Thomas v. Moore, 146 Cal.App.2d 59, 303 P.2d 624, 626 [1, 2-6]; Downie v. Brunton, 147 Cal.App.2d 43, 304 P.2d 1028, 1031 [1, 2]; Johnson v. City of Ilwaco, 38 Wash. 2d 408, 229 P.2d 878; Wood v. Hallenbarter, 12 Wash.2d 576, 122 P.2d 798; Spaziano v. Raponi, 65 R.I. 163, 13 A.2d 810, 812 [2-4]; Buckeye Irrigation Co. v. Askren, 45 Ariz. 566, 46 P.2d 1068; Mooney v. Carter, 114 Colo. 267, 160 P.2d 390; Chisom v. Woodward Iron Co., 265 Ala. 212, 90 So.2d 816.

In any event, the long-established policy of the appellate courts of this state upon the review of an order such as that here involved has a valid and substantial basis in the historic distinction between the proper role of trial and appellate courts. We decline appellants’ urging' to apply a different policy in this and future cases. We reject the appellants’ contention that since approved pattern instructions (which were followed in this case although it was tried prior to the mandatory use of such instructions) now require the jury to “believe” the hypothesis necessary to warrant a verdict for plaintiff (see M.A.I. No. 3.01), the question of burden of proof and weight of the evidence is no longer the same as it was when the policy here followed was adopted and that, for that reason, the policy should be reexamined. Adoption of the approved pattern instructions has not changed the rule as to sufficiency of the evidence.

Appellants object to the trial court’s order granting a new trial on the further grounds that the trial court did not properly inform appellants of its intention to act upon its own motion and afford them opportunity to be heard in relation thereto. The jury’s verdict was returned on November 16, 1964. On December 7, 1964, more than IS days after the date of the verdict and therefore beyond the limits of time for filing such motion (Civil Rule 78.02, V.A.M.R.), plaintiff filed a motion wherein he requested the court, on its own motion, to grant him a new trial on numerous grounds, those which ultimately formed the basis for the trial court’s action as well as trial errors.

On December 11, appellants filed a motion to strike plaintiff’s motion for new trial as untimely. On December 14, defendants’ motion to strike was, according to the court’s minutes, argued, submitted, and sustained. The court’s order also included the following: “The Court advises the parties that it is considering acting on its own motion on the judgment of 11/16/64, and if any action is taken by the Court, it will be done on 12/14/64 or 12/15/64.” On December 15, 1964, the court entered its order granting plaintiff a new trial. Civil Rule 75.01, V.A.M.R.

A trial court must, before taking the action here under review, give the party in whose favor the judgment to be set aside stand's reasonable notice and afford reasonable opportunity to be heard. Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 23 A.L.R.2d 846.

Appellants here do not deny that they received the notice shown by the court’s entry of December 14. They contend, however, that the notice was insufficient because it fails to inform the parties “that any action will be taken or what it may be,” or “any notice of the grounds for such possible action.” There being no express requirement as to the length or form of notice required in these circumstances, the law requires only such notice “as may fairly and properly be expected or required in the particular circumstances.” State ex rel. Murphy v. Aronson, Mo.App., 330 S.W.2d 140, 144 [4]. Here the notice was adequate to advise appellants in advance that the court was contemplating the action which it finally took. It was sufficient to bring the court’s consideration of the matter to their attention and to afford an opportunity to them to seek to present their views to the court if they saw fit. The appellants do not assert that upon receipt of the knowledge they took unavailing action to communicate with the court and request a hearing before the court acted. Insofar as appears, the appellants took no further action upon receipt of knowledge of the court’s thinking.

In our opinion, the notice which the court here gave and which appellants received was reasonable under the circumstances. We see no basis for the appellants’ complaint that the notice failed to specify what action it intended to take and the grounds therefor. The only reasonable inference from this notice was that the court was considering the action which it took. To have advised appellants what action was to be taken might well have been considered to show that the court had already made up its mind, making a hearing futile. Here the court apparently was retaining an open mind, hut action was required promptly because of the 30-day limitation on the court’s action. Appellants were undoubtedly aware of the time factor. Having refrained from any further action upon receipt of the notice, appellants have no present basis for complaint. Hoppe v. St. Louis Public Service Co., supra; State ex rel.. Murphy v. Aronson, supra; Baker v. Baker, Mo.App., 274 S.W.2d 322.

The judgment is 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: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Henry Eugene WEBB, Appellant.
    No. 51524.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.

      Norman H. Anderson, Atty. Gen., Gerald L. Birnbaum, Asst. Atty. Gen., Jefferson City, for respondent.
    No attorney for appellant.
   FINCH, Judge.

Defendant was charged with burglary, second degree, stealing, and with five prior felony convictions. He was found guilty by the jury of stealing property of the value of over $50.00 and the trial court found that he had been convicted of five prior felonies. He was sentenced to imprisonment for six years, and on appeal the judgment was affirmed. State v. Webb, Mo., 382 S.W.2d 601. The details of the evidence are recited in that opinion.

Subsequently defendant filed in the Circuit Court of the City of St. Louis a motion to vacate sentence and judgment pursuant to Rule 27.26 (all references to rules are to Supreme Court Rules and V.A.M.R.). Two grounds were asserted. First, it alleged that there was an unlawful search and seizure in obtaining articles from the home of defendant, which were then used as evidence against him, and second, that the information was insufficient to inform defendant of the nature of the charge against him. The claim seems to be that it charged possession of stolen property but not stealing. Defendant then asserts that neither the information nor the evidence will support the conviction of stealing property of the value of over $50.00. It is claimed that defendant’s constitutional rights were thus infringed. The trial court overruled the motion to vacate sentence and judgment without a hearing, and this is an appeal from that order. We review the matter de novo. Rule 28.05.

It is clear that if the trial court is satisfied that defendant is entitled to no relief, he may overrule the motion to vacate the judgment and sentence upon a review of the motion, files and records without hearing evidence. State v. Kitchin, Mo., 300 S.W.2d 420, cert. den. 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429; State v. King, Mo., 380 S.W.2d 370, cert. den. 379 U.S. 979, 85 S.Ct. 681, 13 L.Ed.2d 569; State v. Kackley, Mo., 391 S.W.2d 350.

Defendant filed a motion to suppress in the trial court which sought to suppress as evidence certain bottles of whiskey, gin, vodka and beer and a black suitcase containing cartons of cigarettes, all of which were seized in the home of defendant in a search which followed immediately after his arrest in his home on the burglary and larceny charge. This fact is disclosed by the transcript filed herein and by a transcript of the hearing which was held on the motion to suppress evidence in the original case, which transcript was forwarded by defendant and lodged in the files of this proceeding.

This court has held on several occasions that a claim of illegal search and seizure is not such a matter as may be raised in a collateral attack upon a judgment of conviction. State v. Engberg, Mo., 391 S.W.2d 868; State v. Kackley, supra; State v. Durham, Mo., 386 S.W.2d 360; State v. Howe, Mo., 364 S.W.2d 546, cert. den. 373 U.S. 943, 83 S.Ct. 1552, 10 L.Ed.2d 698. The proper procedure is to raise this question in the trial court, preferably by motion to suppress, and that was done in this case. If defendant was dissatisfied with the ruling thereon, he should have raised the question on the appeal from his conviction. This he did not do. Actually, when the exhibits in question were offered in evidence, no objection thereto was made and counsel for defendant stated specifically that he had no objection thereto. We have ascertained this from the transcript on file in this court in his original appeal. We take judicial notice thereof. State v. Johnstone, Mo., 350 S.W.2d 774, cert. den. 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280; State v. Durham, supra. The question of the alleged illegal search and seizure is not preserved and it will not be reviewed under defendant’s motion filed pursuant to Rule 27.26

We also rule against defendant’s contention that the information was not sufficient to advise him of the charge of stealing and that the information and evidence did not support his conviction of stealing property of a value in excess of $50.00.

This court, on appeal from the judgment of conviction discussed the information and held it to be sufficient. 382 S.W.2d 601, 605. We have examined it again and reaffirm that conclusion. After charging defendant with prior convictions and with burglary, it charges defendant with feloniously and burglariously stealing certain described property with intent to deprive the owner of the use thereof and convert same to his own use. The property is described as 33 half pints of whiskey worth $33.00 and 4 cases of beer worth $8.00, the property of Thomas Lee Floyd, doing business as Floyd’s Bar, and 41 cartons of cigarettes worth $112.70, the property of Guy Vending Company, Incorporated, in the care and custody of Thomas Lee Floyd, doing business as Floyd’s Bar. This was a charge of stealing, not of possession of stolen property, as defendant asserts. The information contained all necessary allegations to comply with the statute and sufficiently conformed to informations previously held good by this court. State v. Woolsey, Mo., 324 S.W.2d 753; State v. Zammar, Mo., 305 S.W.2d 441; State v. Robinson, Mo., 325 S.W.2d 465; State v. Edmonds, Mo., 347 S.W.2d 158. Defendant also seems to complain that the information improperly combined charges of stealing from Floyd and stealing from Guy Vending Company, Incorporated, and that the language about the latter property being in the “care and custody” of Floyd was vague and insufficient. This contention also is without merit. One is guilty of stealing if he takes property from the person who has charge and control thereof. In the information the ownership may be charged to be either in the one rightfully in possession or the actual owner. State v. Nicoletti, 344 Mo. 86, 125 S.W.2d 33; State v. Nichols, Mo., 130 S.W.2d 485; State v. Flowers, 311 Mo. 510, 278 S.W. 1040; State v. Stinson, Mo., 379 S.W.2d 545. The information in this case alleged both the actual ownership and the constructive ownership of the one in possession and clearly advised defendant with what he was charged.

The opinion which affirmed defendant’s conviction on appeal (382 S.W.2d 601) reviewed the evidence to determine if it would support the conviction and held it did. Defendant, by his motion under Rule 27.26, seeks a second review of that issue. We have ruled previously that a motion to vacate and set aside a judgment and sentence may not be used in lieu of an appeal to review trial errors or to question the sufficiency of the evidence to support a conviction. State v. Thompson, Mo., 324 S.W.2d 133.

The order of the trial court overruling the motion to vacate sentence and judgment is affirmed.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Seibert Ray MEDLEY, Appellant.
    No. 51335.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Motion for Rehearing and Transfer to Court En Banc Denied March 14, 1966.
    Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen. Jefferson City, for respondent.
    Morris M. Hatchett, St. Louis, for appellant.
   STOCKARD, Commissioner.

Upon trial by jury for the offense of robbery in the first degree by means of a dangerous and deadly weapon defendant was found guilty, and as an habitual offender (the evidence established and the trial court found five previous convictions of a felony) his punishment was assessed by the trial judge at life imprisonment. He has appealed from the ensuing judgment, but has filed no brief in this court. We review the assignments of error in the motion for new trial in accordance with Supreme Court Rule 27.20, V.A.M.R.

A jury reasonably could find from the evidence that on June 3, 1964, defendant entered a Kroger Company store at 3908 South Grand Avenue, St. Louis, Missouri, and pointed a pistol at Nick Kuehn, the store manager, and after making threats of immediate violence to the person of Nick Kuehn he took approximately $1,500 in cash (the amended information alleged $200) belonging to the Kroger Company which was in the custody of Nick Kuehn.

The first two assignments of error in the motion for new trial, in their entirety, are as follows: “1. That the verdict was against the evidence,” and “2. That the verdict was against the weight of the evidence.” These assignments do not preserve anything for appellate review. State v. Adams, Mo., 380 S.W.2d 362.

The third assignment of error is that the trial court erred “in overruling the defendant’s motion to suppress evidence which was obtained by a search of defendant’s garage * * * [because] such search was without authority and [was] illegal as contended by the defendant.” This assignment does not “set forth in detail and with particularity * * * the specific grounds or causes” for the alleged errors. The fact that evidence was obtained by “a search of defendant’s garage” does not of itself demonstrate error, and the statements that the search was “without authority” and was “illegal” are mere conclusions which do not prove themselves and which present nothing for appellate review. State v. Lord, Mo., 286 S.W.2d 737, 740. In addition, in in the assignment of error defendant does not identify the evidence which he contends was obtained by a search of his garage. An appellate court is not to become the advocate of the defendant, and it should not, in the circumstances of this case, be expected to search the record in an effort to discover some reason why it can be held that an improper search occurred. We would be justified in overruling the assignment of error, and probably should do so, without further comment. However, as we did in State v. Hepperman, 349 Mo. 681, 162 S.W. 2d 878, 879, we shall indicate why there was no error in overruling the motion to suppress and in admitting the evidence.

The legality of a seizure of property is to be determined by a motion to suppress the evidence, State v. Lord, supra, and “the burden is on the defendant to offer evidence and affirmatively demonstrate the illegality of the search and seizure. The motion does not prove itself.” State v. Hepperman, supra, 162 S.W.2d at p. 887. The evidence on the motion to suppress is contained in the transcript, and the following facts were developed. A few days before the robbery a Mr. Molz had “rented” the east portion of a three-car garage to the defendant. The terms of this rental agreement were not shown. On the evening of the robbery the police were notified that an automobile was in the east portion of the garage which met the description of the automobile used by defendant in leaving the scene of the robbery. Two police officers went to the garage, and Mr. Molz unlocked the door of the garage and admitted them. They did not then touch or open the automobile but they saw “the butt of a revolver under the front seat” and saw in the automobile some clothing of the color worn by defendant during the robbery. The officers at the time had an arrest order for defendant and were looking for him. With the permission of Mr. Molz the two officers waited in the garage, and when defendant subsequently entered and started to open the automobile he was arrested and the automobile was then searched.

In his argument to the trial court on the motion to suppress, counsel indicated that he did not contend that an unlawful search of the automobile occurred, apparently because the automobile admittedly did not belong to defendant. See State v. Worley, Mo., 383 S.W.2d 529, 534. (In fact the automobile had been stolen that morning.) The assignment of error in the motion for new trial is limited to the contention that there occurred “a search of defendant’s garage.” However, the fact, standing alone, that defendant had “rented” from Mr. Molz the east portion of the garage did not necessarily mean that Mr. Molz, the owner, did not have the right to enter the garage. Defendant’s evidence showed that he had a key, that he unlocked the door, and that he gave the officers permission to enter. We cannot assume that Mr. Molz acted wrongfully. The burden of showing an illegal search was on defendant, and he failed to meet that burden. We also note that no property was seized until later when a lawful arrest was made of defendant and the automobile was searched as an incident of that arrest. The trial court correctly overruled the motion to suppress evidence. In addition, as pointed out in State v. Hepper-man, supra, “After the motion [to suppress] is overruled the defendant keeps the question alive by timely objection * * The items obtained from the automobile and mentioned in the motion to suppress, which were subsequently offered and admitted into evidence, consisted of a pistol, a straw hat, a “sweater jacket,” and a pair of trousers. When these items were offered and admitted in evidence, defendant entered no objection whatever on the basis that they were obtained by an unlawful search and seizure. This also disposes of defendant’s fourth assignment of error which is that “the court erred in admitting into evidence the fruits of such search.”

The remaining two assignments of error, in their entirety, are as follows: “5. That the closing argument of the Circuit Attorney was inflammatory and a commentary of the defendant’s failure to testify,” and “6. That the cumulative effect of the errors cited denied the defendant a fair and impartial trial.” These general assertions preserve nothing for appellate review. See State v. Farris, Mo., 243 S.W.2d 983; State v. Wilson, Mo., 248 S.W.2d 857; State v. Murray, Mo., 280 S.W.2d 809; State v. Mathews, Mo., 328 S.W.2d 642; State v. Doepke, Mo., 361 S.W.2d 689.

The record discloses that defendant was present throughout the trial with his counsel. We have examined those parts of the record designated by Supreme Court Rules 28.02 and 28.08, V.A.M.R., and find them to be proper and free from error.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Presiding Judge.

text:
    Murray N. WINDLE and Ruth Windle, (Plaintiffs) Respondents, v. Jolene LAMBERT and James Lambert, (Defendants) Appellants.
    No. 51172.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.

      Robert C. Frith, Chillicothe, for appellants.
    Don Chapman, Chapman & Chapman, Chillicothe, for respondents.
   HOLMAN, Presiding Judge.

This suit involves a strip of land located in Chillicothe, Missouri, SO feet wide and 300 feet long. It is the vacated portion of McNally Street (sometimes referred to as McAnally Street) lying north of Irving Avenue. The first count of plaintiffs’ petition was in ejectment and the second count sought a decree adjudging that plaintiffs owned the land in fee simple. Defendant, James S. Lambert, in his pleading sought a judgment to the effect that he owned a portion of said land and a 4^-foot strip off the west part of certain abutting lots. A trial before the court (after a change of venue to Linn County) resulted in a judgment for plaintiffs on both counts of their petition and against defendant on his claim for affirmative relief. The defendant appealed and has died while his appeal was pending. Upon motion we have ordered Jolene Lambert and James Lambert substituted as defendants and appellants. For convenience we will continue to refer to James S. Lambert as defendant.

Respondents have filed a motion to dismiss the appeal because appellant’s brief is said to violate Civil Rule 83.05, V.A.M.R., in a number of respects. Although there is considerable merit in the motion we have decided, in the exercise of our discretion, to overrule it and to decide the appeal on its merits.

In February 1892 the plat of Mrs. Bryan’s Second Addition to the City of Chillicothe, Missouri, was filed. Thereby, McNally Street, 50 feet wide, was dedicated to the public use. However, McNally, north of Irving Avenue, was never improved nor used as a street. It was fenced in and used by the owners of the Chillicothe Business College until they sold the college in 1956. In about the year 1935, members of the Moore family who owned the business college built a building 40 feet wide and 80 feet long in the south end of the portion of McNally here involved. It' fronted on Irving Avenue. The portion of the street on which the building was constructed is bordered on the east by Lots 6 and 7, Block 26, of Mrs. Bryan’s Second Addition and on the west by a tract of ground which has not been platted.

In 1955 plaintiffs purchased all of the land abutting on each side of the block of McNally with which we are here concerned. There was testimony indicating that the Moore family sold the land, properties, and business of the Chillicothe Business College to Belin University and that shortly thereafter Belin became insolvent and was adjudged a bankrupt. While there is no conveyance in evidence, and no very specific testimony'on the subject, it may be inferred that in June 1958 defendant bought the physical assets of Belin University from the trustee in bankruptcy, including whatever interest it may have had in the building heretofore mentioned. Defendant at that time went into possession of said building. However, on January 20, 1958, plaintiffs had filed a petition for an order to vacate the block of McNally north of Irving and that proceeding culminated in the passage, on April 28, 1958, of an ordinance vacating that part of McNally. Thereafter, by reason of the vacation proceedings, and their ownership of the abutting land, plaintiffs claimed to own the land herein-before described.

Plaintiff Murray Windle, in addition to some of the facts heretofore stated, testified that prior to the time defendant purchased the property of Belin University from the trustee in bankruptcy he told defendant that he was going to file proceedings to vacate the part of McNally where the building was located and thus obtain the building, and suggested that defendant not include the building in his bid for the Belin assets; that later he requested possession of the building from defendant, and defendant told him that he had “exhausted every means he could and that he just might as well turn it over”; that defendant removed his property from the building and delivered possession to the plaintiffs; that about three weeks thereafter he went to the building and discovered that there were padlocks on the doors and a sign on the building which read, “Keep out, private property, James Lambert.” He stated that defendant continued to retain possession of the building, which resulted in plaintiffs filing this suit on September 28, 1959. This witness conceded upon cross-examination that one of his motives for instituting the proceedings to vacate the street was to get title to the building that had been erected thereon.

Ralph L. Moore testified that he and Allen Moore, III, had operated Chillicothe Business College prior to the sale to Belin University; that prior thereto the college had been operated by his father, Ralph Moore, and his uncle, Allen Moore, II; that when the building heretofore described was constructed they intended to build it in McNally Street; that they never claimed any title to that part of the street nor claimed any right to build the building in the street; that when they sold the college they conveyed whatever interest they had in that part of McNally Street by quitclaim deed; that he was familiar with Lots 6 and 7 of Block 26 of Mrs. Bryan’s Second Addition which had formerly been owned by Charles DeLorme, and that they had never claimed that any part of the building was on said lots and had made no claim of title to any part of those lots.

Defendant did not testify. However, he presented the testimony of Maurice Dornay who stated that he was a land surveyor and, in February 1961, had made a survey of Lots 6 and 7 of Block 26 of Mrs. Bryan’s Second Addition; that as a result of that survey he found that the east 4½ feet of the building here involved was constructed on the west 4½ feet of Lots 6 and 7 of said Block 26.

In rebuttal the plaintiffs offered the testimony of L. J. Shobe, a professional engineer and surveyor, who testified that he made a survey of the area in question; that his survey showed that all of the building in question was located entirely in the vacated portion of McNally Street and that no part of the building was located on Lots 6 and. 7.

Plaintiffs also presented the testimony of R. A. Garvey, County Surveyor of Linn County, who testified that he had gone into the area here involved and had made a check of the survey of Mrs. Bryan’s Second Addition, particularly in regard to McNally Street north of Irving Avenue; that according to his measurements no part of the building was located on Lots 6 and 7 but that the entire building was on the vacated portion of McNally Street.

There was extensive cross-examination of each of the three surveyors in an effort by attorneys to test the accuracy of their surveys, but we can see no purpose to be gained in attempting to set out said cross-examination in our statement of facts herein.

There is no controversy about the fact that since 1955 plaintiffs have owned the record title to all of the land abutting the vacated portion of McNally Street. There is also no contention that either plaintiffs or the city failed to comply with the requirements of the city ordinance in the vacation proceedings which resulted in the enactment, on April 28, 1958, of an ordinance vacating the portion of the street heretofore described. It may also be stated that defendant does not claim to have acquired any title by adverse possession to the land dedicated as McNally Street. His claim, as we understand it, is that the east 4½ feet of the building was located on the west 4½ feet of Lots 6 and 7, and that he and his predecessors had been in the actual, open, notorious, hostile, exclusive and continuous possession of the building for more than the statutory period and had acquired title to the west 4½ feet of Lots 6 and 7; that since that strip abutted McNally Street he acquired title to the east 25 feet (half) of that portion of the street upon which the building was located upon the vacation of that part of McNally; and that he therefore owned the land upon which the east 29½ feet of the building was located after the vacation proceedings had been completed.

The first point we will consider is defendant’s contention, in effect, that the court erred in failing to adjudge that he was vested with the title to a portion of said land by adverse possession in accordance with the theory outlined in the preceding paragraph. We have concluded that there are two factual deficiencies which would preclude the entry of a judgment for defendant upon that theory. In the first place there was no evidence that the possession prior to 1956 was adverse and hostile, i. e., under an unequivocal claim of ownership. The evidence, in fact, was to the contrary. Mr. Moore testified that they intended to build the building in the street and never made any claim of title either to the street or to any part of Lots 6 and 7. It therefore is clear that there was no adverse possession for the statutory period prioi to the date this suit was filed in 1958. Secondly, we find from the evidence that no part of the building was constructed on Lots 6 and 7 and therefore, for that reason, defendant could not have acquired title by adverse possession to any of the land upon which the building was constructed.

Defendant has also briefed the alternative contention that the “vacation proceedings were null and void as there was no public purpose to be served in the vacation of the street; that the sole intent, purpose and effect was to serve the private interest and result in the unjust enrichment of respondent merely to secure title to the building to which otherwise he had or would have no right, title or interest.” Although we have held that defendant was not an abutting owner, we think he had a sufficient interest to permit an attack on the vacation proceedings because if such were invalid plaintiffs could not prevail in this action and defendant (as against the claim of plaintiffs) could retain possession of the building.

In support of this contention defendant has cited City of St. Joseph v. St. Joseph Terminal R. Co., 268 Mo. 47, 186 S.W. 1080, and Ray v. City of Chicago, 19 Ill.2d 593, 169 N.E.2d 73. The St. Joseph case involves a question of equitable estoppel and has no application to the question here presented. The Chicago case does hold that where the city vacated a heavily traveled street the court, under the applicable Illinois statute, could “examine the record to see if any public use or interest is subserved in vacating a street or alley, and if it appears as a fact that the purported vacation is for a purely private purpose the ordinance will be declared void. People ex rel. Foote v. Kelly, 385 Ill. 543, 53 N.E.2d 429. On the other hand, if there is any substantial showing that the public interest will be served by vacating the street or alley, the ordinance is within the power of the city council, no matter how much private parties may be benefited thereby.” 169 N.E.2d 76.

In this state “The general rule is that courts will not inquire into the motives of Legislatures where they possess the power to act and it has been exercised as prescribed by law. This rule is especially applicable to purely legislative acts of municipal corporations.” Kansas City v. Brown, 286 Mo. 1, 227 S.W. 89, 95. Some of our cases, however, have indicated that an ordinance to vacate a street may be invalidated for fraud. Glasgow v. City of St. Louis, 107 Mo. 198, 17 S.W. 743; Knapp, Stout & Co. v. City of St. Louis, 153 Mo. 560, 55 S.W. 104. However, in the Knapp case plaintiff relied on an allegation (as does defendant here) that the ordinance to vacate was not passed for a public purpose but for the purpose of giving an abutting property owner the vacated street. That allegation was held not to be a “sufficient allegation of fraud to rebut the presumption that the mayor and assembly were actuated by due regard for the public welfare of the city in passing the ordinance to vacate * * *.” 153 Mo. 575, 55 S.W. 108. It should also be noted that there is no evidence in this case concerning the essential element relating to the intent of the city council in passing the ordinance. It follows that the pleading and proof are insufficient to support a finding or judgment that the ordinance in question was invalid.

It should also be mentioned that this is an effort to collaterally attack the ordinance. Since the contention here does not involve an absence of jurisdiction, or a failure to comply with an essential step in the vacation proceedings, we think the ordinance is not subject to collateral attack but that any review thereof must be in a direct proceeding in which the city is a party. See Haysler v. Butterfield, 240 Mo.App. 733, 218 S.W.2d 129, and 64 C.J.S. Municipal Corporations § 1672b, p. 50.

It follows from what we have heretofore said that defendant’s alternative contention cannot be sustained.

The judgment is affirmed.

All concur.