author: HOLMAN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Walter BRIDGES, Appellant.
    No. 48899.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.
    Samuel Raban, St. Louis, for appellant.
    ' Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Howard L. McFadden, Asst. Attys. Gen., Jefferson City, for respondent.
   HOLMAN, Commissioner.

Defendant was charged with having “unlawfully and feloniously become addicted to a narcotic drug, to wit: Heroin.” See §§ 195.020 and 195.200 (unless otherwise indicated all statutory references are to RS Mo 1959, V.A.M.S.). He was also charged with two prior felony convictions. See § 556.280. The trial court held a hearing outside the presence of the jury and found that on June 16, 1959, defendant had been convicted in the Circuit Court of the City of St. Louis, Missouri, upon two charges of the felony of carrying a concealed weapon and was sentenced to serve a term of nine months, upon each charge, in the workhouse of the City of St. Louis. At the conclusion of the trial the jury returned a verdict finding defendant guilty of the offense charged. The trial court fixed defendant’s punishment at imprisonment in a “State Correctional Institution” for a period of nine years. See §§ 556.280(1) and 195.200. Defendant has appealed from the ensuing judgment and sentence.

Defendant was arrested on October 13, 1960, by Officers Lloyd G. Altemus and Oscar Farmer who were assigned to the narcotics division of the St. Louis Police Department. At the time of his arrest defendant was apparently awaiting his turn to receive treatment at the Washington University Clinic. Officer Altemus testified that after defendant had been arrested they asked to see his arms, and that he rolled up his sleeves and they inspected both of his arms; that such inspection revealed numerous puncture marks on his arms indicating that a needle had been used to inject something into his arms; that a number of such marks appeared to have been made from 48 to 72 hours prior to that time ; that there was a lump on the left forearm which defendant stated was the result of a broken hypodermic needle which he had broken while administering a,shot of heroin; that defendant was taken to headquarters and booked and was then questioned in the presence of Sergeant Bloss and other officers relative to the marks on his arm; that he then stated that he had been using heroin for the past four or five years. Defendant also stated that he .had last used heroin on October 10 and the next preceding time was on October 8. Officer Farmer was the next witness but his testimony was very similar to that of Officer Altemus and for that reason will not be detailed here.

Dr. William D. Perry testified that he was a physician employed by the police department in administering tests to individuals to determine narcotic addiction; that defendant was brought to his office on October 13, 1960; that he requested that defendant roll up his sleeves and he did so; that there were marks on both of defendant’s arms typical of narcotic use intravenously; that upon being interrogated defendant stated that he had been a user of heroin; that defendant was asked to submit to the Nalline test but he refused and the test was not performed. This witness further testified that heroin is a narcotic which formerly was used in the United States for relief of pain, but that because of its addicting properties it has not been prescribed medically since 1925 and has not been legally available for medical use since that year. In response to hypothetical questions Dr. Perry stated that he was of the opinion that defendant, by the use of the drug over a period of years, would develop a physical tolerance to it, as well as a psychological dependence upon the drug; that in his opinion defendant did not need a narcotic drug for any medical reason at the time he saw him.

Harold Bloss, head of the narcotic division of the police department, testified that defendant was brought to headquarters on October 13, 1960, at which time he inspected defendant’s arms and, “starting approximately at the inner elbow, clear down to the wrist, and back of the hands, were the same puncture marks that we see often on drug addicts. And there were also some red welts, which is indication of recent use, along with black streaks, which are caused from a dirty needle. Q. Following this visual observation by yourself, did you question Walter Bridges? A. I did, sir. Q. What, if anything, did he say concerning the marks that you had seen ? A. They were caused from him using narcotics since 1956. Q. Did you question him specifically as to what kind of narcotics? A. I did. He told me that he was using heroin.”

Defendant offered no evidence. He has not filed a brief in this court so we will consider the assignments in his motion for new trial. In view of the conclusion we have reached we need consider only one of the assignments in defendant’s motion. That assignment is that his sentence of nine years’ imprisonment in a state correctional institution constitutes cruel, unusual and inhuman punishment and violates the Eighth Amendment to the Constitution of the United States. He contends that he is actually being imprisoned for being afflicted with a disease, i. e., narcotic addition; that in enacting § 202.360, the legislature has recognized that such is a disease by making provision for involuntary confinement of drug addicts in state hospitals for insane persons for treatment until such habit is cured. The effect of defendant’s contention is to draw into question the constitutionality of the statutory provision under which he was convicted.

In 1953 § 195.020 -was repealed and reenacted and, as so enacted, reads as follows : “It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter, or to possess any apparatus, device or instrument for the unauthorized use of narcotic drugs.” Laws of Missouri 1953, p. 628. That section was again repealed and re-enacted in 1957, and as so enacted, was the same as the 1953 enactment except that the words “shall be” were changed to “is”, and at the end thereof was added the provision, “or to be or become addicted to any narcotic drug.” Laws of Missouri 1957, p. 682. The punishment for a violation of the provision which proscribed addiction is fixed by § 195.200 at “imprisonment in a state correctional institution for a term of not more than twenty-years, or by imprisonment in a county jail for a term of not less than six months nor i more than one year.” We think it is also of interest that § 202.360 makes provision for the involuntary confinement and treatment of drug addicts as follows: “All residents of this state, except those in the condition of senility, or suffering pain from incurable disease, who are or shall become habitual users of any narcotic drug defined in section 195.010, RSMo, to such an extent as to become what is commonly called or known as ‘dope fiends’ or ‘addicts’, shall be subject to involuntary confinement in the state hospitals for insane persons, under treatment by the medical staffs of such hospitals, for the cure of such habit, for such period of time as shall be necessary to accomplish such cure. Persons so confined shall be entitled to be released when, and not before their appetite for such drug, or drugs, has been thoroughly eradicated, which cure shall, prima facie, depend upon the opinion of the hospital superintendent where the confinement occurs.”

We think the contention of the defendant must be sustained under the authority of the recent decision of the Supreme Court of the United States in Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. In that case the facts were very similar to those in the case at bar and the statute involved made it a criminal offense for a person to “be addicted to the use of narcotics.” Violation was made a misdemeanor punishable by imprisonment in the county jail for not less than 90 days nor more than one year.

In holding the California statute unconstitutional the court stated: “It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare required that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. See State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422. We cannot but consider the statute before us as of the same category. In this Court counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily. We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Robinson v. State of California, 82 S.Ct. l. c. 1420, 1421. Also, at page 1421, it is stated in one of the concurring opinions that “it is ‘cruel and unusual’ punishment in the sense of the Eighth Amendment to treat as a criminal a person who is a drug addict.”

We have had some difficulty in determining the effect of the reference of the court to the fact that there was no requirement of a finding that defendant had used the narcotic drug within the state. However, we have decided that such was not actually a factor in the determination of the question in which we are interested. It would appear that such reference was made in order to make it clear that the court was not condemning a statute which makes the “act” of using a narcotic drug a criminal offense as distinguished from the portion of the statute there (and here) involved which made the “status” of drug addiction a crime. This distinction is particularly emphasized in the concurring opinion of Mr. Justice Harlan. 82 S.Ct. 1426.

In its brief the State asserts that the Robinson case is not controlling because of the difference in the two statutes. The California statute (West’s Ann.Health & Safety Code, § 11721) made it an offense to “be addicted to the use of narcotics.” Section 195.020 makes it unlawful “to be or become addicted to any narcotic drug.” The State contends that our statute does not merely refer to the “status” of being addicted, but that the words “or become” refers to an act or series of acts whereby addiction is established and that such use must be shown to have occurred in this state.

We cannot agree with the argument of the State. There is little, if any, difference in the provisions of the two statutes. One cannot “be” an addict unless he has theretofore “become” an addict. We therefore must conclude that the legislature intended to make the “status” of addiction an offense. If it had intended to proscribe the “act” of using a narcotic in this state it could and should have so stated in clear and express language.

The State, in its brief, has made various other suggestions as to why the Robinson case should not be applied in determining the issue before us. We do not consider it necessary to discuss those attempts to develop distinctions between our statute and the situation in Robinson which we consider to be unsubstantial and which depend upon various constructions which this court might place upon the instant statutory provision. As we understand the Robinson case, the court therein held that a state law which defines as a crime the “status” of drug addiction, and provides imprisonment as a punishment, inflicts cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. The provision in § 195.020, “or to be or become addicted to any narcotic drug,” under any reasonable construction, must be said to define the “status” of drug addiction as a crime, and § 195.200 provides a punishment of not less than six months’ imprisonment in the county jail, nor more than twenty years’ imprisonment in a state correctional institution, thus classifying the offense as a felony. We accordingly hold, upon the authority of Robinson v. State of California, supra, that the portion of § 195.020 heretofore quoted in this paragraph is unconstitutional and void.

There is respectable authority for the view that “contact with narcotic drugs most frequently ‘results from deliberate experimentation with the drug because of association with persons who are already addicted.’ ” Proffit, Missouri Narcotic Drug Laws, 17 Mo.L.R. 252, 276. For that reason it is important that addicts be confined or isolated for the protection of society. However, that may be as effectively accomplished under § 202.360, which provides for involuntary civil confinement and treatment in-a state hospital, as under a statute defining addiction as a crime and providing for imprisonment upon conviction therefor.

Section 1.140, P.P. Vol. 3, V.A.M.S., reads as follows: “The provisions of every statute are severable. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid, unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.” We agree with the final contention of the Attorney General that no part of § 195.020 should be declared invalid except the portion heretofore expressly ruled to be unconstitutional, i. e., “or to be or become addicted to any narcotic drug.” The remainder of the section, is not inseparably connected with or dependent upon the invalid part and it is obvious that the legislature would have enacted “the valid provisions without the void one” because it did so in the 1953 enactment.

The judgment is reversed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    Jacob JESSER Benjamin Rosenberg; Oscar Miller, Joseph Jesser Meyer Perlstein, Charlotte Brownstein, Helen Asher, Norman Asher, and Harry O. Valleau and Angeline Valleau, doing business as Harry O. Valleau & Co., Plaintiffs-Appellants, v. MAYFAIR HOTEL, INC., a corporation, Lennox Hotel Company, a corporation, Heiss Securities, Inc., a corporation, C. Gordon Heiss, C. Gordon Heiss, Executor of the Will of Charles Heiss, Deceased, Defendants-Appellants, William S. Bedal, William C. Connett, J. L. Davis, and Clarence M. Turley, Respondents.
    No. 48586.
    Supreme Court of Missouri, En Banc.
    Sept. 10, 1962.
    Rehearing Denied Oct. 8, 1962.

      Harold C. Ackert, John W. Giesecke, St. Louis, for plaintiffs-appellants.
    Joseph H. Grand, Orville Richardson, St. Louis, for defendants, Mayfair Hotel, Inc., et al.
    R. H. McRoberts, Bryan, Cave, Mc-Pheeters & McRoberts, St. Louis, for said respondents.
   STORCKMAN, Judge.

These cross-appeals are from an order and judgment allowing plaintiffs’ attorneys $80,000 as fees for services and $4,327.77 for expenses incurred in the prosecution of an equity action involving the construction of a voting trust agreement. One ground of defendants’ appeal is that the allowance of attorneys’ fees is excessive by at least $75,000, while the plaintiffs in their appeal assert that the allowance is inadequate in the sum of $60,000. The amounts involved vest jurisdiction in this court. Art. V, § 3, Constitution of Missouri 1945; Section 477.040 RSMo 1959, V.A.M.S.

The history and outcome of the principal litigation is set out in Jesser v. Mayfair Hotel, Inc., Mo., 316 S.W.2d 465, but a brief résumé may be helpful at this point. The voting trust agreement was made as of January 1, 1943, pursuant to a plan of reorganization of Mayfair Hotel, Inc., a corporation, under orders of the U. S. District Court for the Eastern Judicial District of Missouri. Under the reorganization plan, the previous shareholders were wiped out and the income bondholders of the old company, for each $100 bond, received $60 principal amount of new income bonds and a voting trust certificate for one share of the common stock of the new Mayfair Company. The plan and voting trust agreement required the Mayfair Company to issue and deposit with five voting trustees a total of 14,035 shares of its capital stock. The trustees held the legal title and voting trust certificates were issued by the trustees to the persons entitled “evidencing their respective interests in that portion of the capital stock of the Company issued to the Voting Trustees for their benefit.” Specific shares were not set aside or identified as being for the use and benefit of particular certificate holders. The trust agreement further provided that the capital stock so deposited by the Mayfair Company should be held for a period of fifteen years and the powers and duties of the trustees with respect thereto were set out in the trust instrument. Mayfair Hotel, Inc., owned and operated Hotel Mayfair in downtown St. Louis and also owned approximately 75 per cent of the capital stock of Lennox Hotel Company, a corporation, which owned and operated Hotel Lennox, also in downtown St. Louis.

In August 1955, the voting trustees were Charles Heiss, William S. Bedal, William C. Connett, J. L. Davis, and Clarence M. Turley. At that time voting trust certificates had been issued for a total of 13,988 shares of the capital stock held in the voting trust. Charles Heiss and others cooperative with him owned voting trust certificates representing 9,668 shares of the capital stock. Mr. Heiss was one of the voting trustees and had been active in the management of the Mayfair and Lennox hotels for a number of years. The plaintiffs were the owners of voting trust certificates representing 244 shares of the remaining 4,320 shares of stock held in trust. These 4,320 shares or certificates therefore will sometimes be referred to as the minority shares or the minority interest.

On August 5, 1955, C. Gordon Heiss, a son of Charles Heiss, acting on behalf of Heiss Securities, Inc., submitted to the four trustees (excluding Charles Heiss) a written proposal to purchase from the trustees at $90 per share 4,320 shares of Mayfair stock described in the offer as being held by 235 persons in different amounts. Thereupon the four trustees sent out a notice to minority holders of the voting trust certificates describing the offer received and stating that they had agreed to sell their 4,320 shares and would consummate the sale on or before September 9, 1955, unless the holders of voting trust certificates representing not less than 1,440 of these minority shares notified the trustees of their objections prior to August 31, 1955. The trustees recommended acceptance of the offer. Owners of certificates representing 683 shares of stock sent in objections.

On August 25, 1955, the plaintiffs, as beneficial owners of a part of the shares designated, filed a class action in equity for an injunction to prevent the trustees from consummating the proposed sale and for other relief. The defendants, in addition to the five trustees, were Mayfair Hotel, Inc., a corporation, Lennox Hotel Company, a corporation, Heiss Securities, Inc., a corporation, and C. Gordon Heiss, a son of Charles Heiss, and the vice-president of Heiss Securities. While the action was pending, Charles Heiss died and C. Gordon Heiss, executor of the will of Charles Heiss, deceased, was substituted. The trial on the merits in October 1956 was before the court without a jury; the judgment and decree was in favor of the defendants on all of the issues and the injunction sought was denied. The plaintiffs appealed to this court where the judgment was reversed and the cause was remanded with directions to enter a decree enjoining the sale by the voting trustees of the 4,320 shares and dismissing the counterclaim of the defendant trustees at their cost without allowance of attorneys’ fees to the defendant voting trustees; and, the voting trust agreement having expired by its terms, the voting trustees were directed to deliver the stock of Mayfair to the registered holders of the voting certificates in accordance with the provisions of the. voting trust agreement. Jesser v. Mayfair, Mo., 316 S.W.2d 465, loc. cit. 474.

In due time after remand, the plaintiffs filed an amended petition for attorneys’ fees asking an allowance of $140,000 for fees and $4,325.25 for expenses. The court heard evidence and allowed $80,000 for fees and $4,327.77 for expenses. The plaintiffs appealed and so did all of the defendants except the four surviving trustees. The parties have stipulated that in determining the issues presented on these appeals the court may refer to any matter, record, transcript or briefs filed in the supreme court in connection with the previous appeal. To the extent necessary, additional evidence will be referred to in the course of the opinion.

The plaintiffs and their attorneys, Harold C. Ackert and John W. Giesecke, the petitioners in the application for fees and expenses, have filed joint briefs and will be referred to as the plaintiffs. The defendants, Mayfair Hotel, Inc., Lennox Hotel Company, Heiss Securities, Inc., and C. Gordon Heiss, individually, and as executor of the estate of Charles Heiss, deceased, have filed joint briefs as appellants and will sometimes be referred to collectively as Mayfair. The four surviving trustees are respondents and have filed a joint brief as such.

Appellant Mayfair’s first contention is that the trial court had no jurisdiction or power to entertain plaintiffs’ petition for an allowance of attorneys’ fees and expenses because the supreme court reversed the judgment and remanded the cause with directions which were dispositive of all issues raised by the pleadings thereby depriving the circuit court of further jurisdiction to entertain the plaintiffs’ application. Prior to the previous appeal, the trial court by consent of the parties and as a part of its judgment retained jurisdiction to receive and consider an application by any party for allowance of attorneys’ fees and expenses incurred in connection with the litigation.

Considerable stress is placed upon the fact that the opinion dismissed the trustees’ counterclaim at their costs and denied the claim of the trustees for an allowance of attorneys’ fees and expenses. The trustees’ counterclaim and cross-bill, in addition to asking for a construction of the trust instrument, prayed “ ‘(c) that the Court allow these defendants their reasonable attorneys’ fees, costs and expenses in connection with this counterclaim and cross bill, to be charged against the trust estate and to be reimbursed to them by Mayfair Hotel, Inc.; * * *.’ ” In granting the injunction and dismissing the counterclaim, the supreme court was confronted with the proper disposition of the trustees’ claim for attorneys’ fees and expenses which was a part of the counterclaim. The denial of attorneys’ fees to the trustees was ancillary to the court’s determination that the trustees were attempting to act without lawful authority and that they were not entitled to relief under the counterclaim. The per curiam opinion modifying the judgment and overruling the motion for a rehearing states: “Our denial of attorneys’ fees to the voting trustees upon the facts of this case followed on our findings that the voting trustees were acting beyond their powers.” 316 S.W.2d 465, 474.

There was no issue before the supreme court as to the fees and expenses of plaintiffs’ attorneys and such issue was not adjudicated. The directions in the opinion and mandate did not deprive the circuit court of its jurisdiction and power to hear and determine the application for allowances of fees and expenses to plaintiffs’ attorneys. Sprague v. Ticonic Bank, 307 U.S. 161, 168-169, 59 S.Ct. 777, 83 L.Ed. 1184.

One of the contentions urged most strenuously by the Mayfair group is that the plaintiffs and their attorneys are not entitled to an allowance of fees and expenses because plaintiffs’ primary purpose and the object of their suit was to terminate the trust by forcing the sale of all of the Mayfair stock or, in the alternative, to destroy Mayfair by forcing a liquidation of its assets and the distribution of its proceeds and further because the overall result of the suit was a net loss and not of substantial benefit to anyone including the trust beneficiaries and Mayfair. This contention requires a further reference to the cause and character of the injunction litigation and to the previous decision of this court.

The transaction which precipitated the filing of the injunction suit was the attempt by the trustees in August 1955 to segregate and earmark 4,320 of the trust shares and to sell them as shares of the minority interest to the holders of the majority of the voting trust certificates at $90 per share pursuant to the offer of Heiss Securities. There is no evidence that the plaintiffs had any intention of filing any action or attacking the administration of the trust prior to this undertaking. Although the Heiss interests had been negotiating with the trustees since “sometime in the spring” of 1955, the first notice the minority holders had of the purported sale of their interests was upon receipt of the trustees’ letter dated August 5, 1955. The letter stated that the trustees had accepted the Heiss offer and unless the holders of voting trust certificates representing “not less than 1440 shares of stock of the Company” notified the trustees of their objections prior to August 31, 1955, the sale would be consummated. As shown by the letter, the purported sale bore the imprimatur of the trustees. Clearly, the litigation was provoked by the trustees’ threatened sale of assets in violation of the voting trust agreement. The minority holders had twenty-five days or less to investigate and decide what to do. If anything was to be done other than to acquiesce, the need for action was urgent. It is in this background that we must determine whether the plaintiffs on behalf of themselves and other minority holders acted excessively and with an improper motive in filing their suit and conducting the litigation.

The primary and dominant purpose of the plaintiffs must be determined from the record before us. In this regard, the pleadings in the case, the transcript of the record on the previous appeal, the briefs filed, and the opinion of this court are most revealing and persuasive. The first ground of action alleged in plaintiffs’ complaint is that the trustees were without power or authority under the trust agreement or otherwise to sever and sell the 4,320 shares or any part less than all of the shares held in trust. The allegation of this proposition and related matters occupy approximately the first twenty-five pages of the petition as it appears in the transcript on the first appeal. The assertion of grounds for further relief and the prayer make up the last four pages of the petition. Two supplements to the complaint alleged that two additional offers had been received, one for all of the stock, and the other for 4,320 shares, both at prices in excess of the Heiss offer, and asserted that the conduct of the trustees was not designed to and would not secure for the minority beneficiaries the highest possible price for their shares. These supplements again asserted that the plaintiffs and other beneficiaries had an interest in each and every share in the trust which could not be extinguished without a sale of all the stock and that the trustees had no power to sell only a part. The plaintiffs’ first prayer for relief was that the court enjoin the proposed sale of 4,320 shares or set aside the sale if it has been consummated. This as well as other relief sought involved a determination of the authority of the trustees under the trust agreement. The briefs on appeal dealt with the relief sought in approximately the same order and proportion as did the plaintiffs’ pleadings. The space and prominence given these issues in the pleadings are not conclusive, but they give some indication of what was uppermost in the plaintiffs’ minds.

If the dominant purpose of the plaintiffs’ litigation was not squarely before the supreme court on the first appeal, the court’s opinion foreshadowed the proper determination of that issue. The opinion at 316 S.W.2d 467 states: “It was and is the primary position of plaintiffs (appellants) that the voting trustees had no power under the voting trust agreement to sell the stock and thereby extinguish plaintiffs’ interest in the trust in any manner other than by a sale of all the stock of Mayfair.” Emphasis added. The opinion then goes on to say that secondarily and alternatively the plaintiffs alleged that the attempted sale was a breach of trust and in furtherance of a conspiracy between the majority holders and the trustees to squeeze out and eliminate the minority holders illegally and to deprive them of their valuable investment at a fraudulently low and inadequate price. At page 469 of 316 S.W.2d the court again states that the primary and decisive question presented is whether the voting trustees have the power and authority to sell a part of the capital stock of Mayfair. At page 471 of 316 S.W.2d the opinion states that: “Voting trustees have the duty to exercise the voting powers of shareholders for the benefit of the trust, not for the benefit of the majority or minority interests in the trust.” At page 473 of 316 S.W.2d the court concludes that the trustees were not and could not have been “empowered to sell a part of the stock of Mayfair at any price however great without a clear and express provision authorizing them so to do.”

The Mayfair group cite and discuss a number of cases where in general the object of the suit was to have a trust instrument or a part thereof declared invalid or to have it construed in such a way that all or a substantial part of the property would be taken from the trust and vested in the plaintiffs to the exclusion of others, but that is not the situation here. The plaintiffs did not seek to have the voting trust agreement or any part thereof declared invalid. They did not seek to obtain from the trust estate any property other than in accordance with its terms or to obtain for themselves a greater proportionate share than the interest of any other beneficiary. Even the secondary and alternative relief sought by the plaintiffs bore some reasonable relation to the performance of the trust in a manner contemplated by its terms. The trust instrument prescribed conditions under which the trustees might sell all of the stock held in trust and there were provisions relating to liquidation. While the term of the trust was fifteen years, there were conditions under which the trust could properly be terminated sooner. The cases cited are not applicable to the facts of this case.

On the evidence before us and in accordance with the previous opinion we hold that the primary and dominant purpose of the plaintiffs and their litigation was to enjoin the unauthorized and unlawful sale of trust assets or to set the sale aside if it had been consummated, and that the relief requested necessitated a construction of the voting trust agreement. The other relief sought but not obtained did not change the primary and dominant character of the action. From this it follows that the construction of the voting trust agreement was not incidental but was of primary importance.

The Mayfair group further asserts that the litigation was primarily a contest between the majority and minority interests. All voting trust certificate holders were of the same class and the conflict of interests did not arise out of the parties status as beneficiaries of the trust. It resulted because the Heiss group claimed the right to obtain legal title to 4,320 shares, as shares beneficially owned by the minority group, by means of an involuntary sale which the plaintiffs contended the trustees had no power or authority to make. So far as this conflict was concerned, it would have been the same if the prospective purchaser had been a stranger to the trust agreement. In Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 936, this court stated: “In inquiring into the existence of adverseness of interests courts usually, and properly, confine their examinations to the effect of the litigation on the interest common to those who may share in the fund, and refuse to consider hostility of interests peculiar to the situation of particular individuals.’’ Emphasis added. To the extent that hostility of interest existed, it was peculiar to the situation or status of the Heiss interests as prospective purchaser of the shares. The trustees claimed to have the right to sell the shares. They were threatening to violate their duty to exercise the voting powers of shareholders for the benefit of the trust and not for the benefit of the majority or minority interests in the trust. Jesser v. Mayfair Hotel, Inc., Mo., 316 S.W.2d 465, 471. This made the injunction suit necessary. The plaintiffs did not have and did not seek any interest except as beneficiaries of the trust estate.

Where ambiguity exists in a trust instrument resulting in a legitimate controversy as to the proper distribution of the trust fund or administration of the trust, the party instituting an action to construe the instrument is entitled to his fees and expenses even though he may benefit personally by the outcome of the litigation. Hereford v. Unknown Heirs, Mo.App., 306 S.W.2d 648, 650; Coates v. Coates, Mo.App., 316 S.W.2d 875, 878[2]; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157. See also Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 936 [61]. The plaintiffs’ interests as beneficiaries in the fund did not disqualify them from having their attorneys’ fees and expenses allowed.

Mayfair presents in several different ways and places its contention that no allowance of fees and expenses is justified against any of the defendants because the overall result of the litigation was a substantial net loss and of no benefit to anyone concerned. This contention is based largely on the assumption that the sale of the 4,320 shares which was blocked by the injunction would have been a good thing financially for all concerned. The arguments under these points indicate that the Heiss group have never quite accepted the holding of this court that the attempted sale was unauthorized and wrongful.

The Heiss interests cannot be permitted to offset or treat as a loss the benefit or gain they anticipated by acquiring the 4,320 shares at $90 per share and by the elimination of the minority shareholders. A claim of loss cannot be based upon a failure to make a profit out of the wrongful and unauthorized act which would not have been permitted to stand in any event. In re Weed’s Estate, 163 Pa. 595, 30 A. 272, 273, cited with approval in Leggett v. Missouri State Life Ins. Co., involves preferred creditors who had been required to restore the property they had wrongfully received as security. The preferred creditors then objected to the payment of fees out of the common fund. The Supreme Court of Pennsylvania disposed of the objection in this manner, 30 A. 273: “It is argued, however, that they were losers by the litigation, and therefore they are not within the rule recognized and enforced in Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157, and kindred cases. But in what sense were they losers? In the same that he is a loser who fails to acquire what he has no rights to, or who, having unlawfully obtained possession of the property of another, is compelled to restore it to the owners. The equity which the wrongdoer has in consequence of such a loss is not easily discoverable.”

Those minority holders who wanted to sell their voting trust certificates to Heiss Securities were not prevented from doing so. After the suit was filed, Heiss Securities offered to buy voting trust certificates on a voluntary basis at $90 per share and later at $96. This continuing offer was communicated by the trustees to the minority holders although it was not something covered by the trust agreement.

As to the Ossey and Kamm offer, Mayfair asserts that if the plaintiffs’ contention that the shares of stock in trust were “fungible” was correct then the injunction against the sale of the 4,320 shares caused a loss of $60 per share or a total of $259,200 to all of the beneficiaries including the minority holders. One weakness of this argument is that a sale to Ossey and Kamm of 4,320 from the fungible shares would have primarily benefited the purchaser in that the proportionate dilution of the remaining interests would have reduced the Heiss holdings to less than 50 per cent and there would have been no majority control. The 4,320 shares to be sold represented a little less than 31 per cent of the total. If the shares were fungible, the 9,668 majority shares and the 4,320 minority shares would have been proportionately reduced. Thus approximately 2,986 shares would be taken from the majority group and the same proportion, or 1,334 shares, from the minority interests. This would leave the Heiss group with approximately 6,682 shares, Ossey and Kamm would have had 4,320 shares, and the present minority group about 2,986 shares. Ossey and Kamm would have obtained at a minority price 4,320 shares which at the termination of the trust would have taken on their proportion of the total value of all the shares since no one group of shareholders would then have a majority interest. The trust would have been deprived of the shares sold and the loss would ultimately have fallen upon the beneficiaries. The contention that all of the beneficiaries suffered a substantial net loss because the sale was enjoined is without merit.

The result of plaintiffs’ action was to preserve and keep the trust estate intact. We must assume that the voting trust had a beneficial and salutary purpose at its inception or it would not have been ordered as a part of the plan of reorganizing the hotel company. The voting trust agreement recited that the purpose of the voting trust was “to unite the voting power” and to protect the security of the second mortgage income bonds. If it was initially beneficial, it must have continued to be so in 1955 although only a little more than two years of its existence remained. In view of Heiss’s position that the 4,320 shares could be sold by the trustees, it is unlikely that the Heiss group would have had any standing in equity if they undertook to prevent a sale to a stranger who would offer a higher price for the shares. Whether the 4,320 shares were sold to the Heiss interests or to a stranger, it would probably have resulted in the termination of the trust. These 4,320 shares would have been out from under the control of the trustees and free to be voted by the purchaser. The owner would then have been able to elect minority representation on the board of directors. The voting power continued to be united because the injunction suit was filed and the integrity of the trust was preserved.

The injunction issued in the plaintiffs’ action saved the trustees as well as the Heiss interests from the doing of a wrongful act and consummating an unlawful sale of trust assets which might easily have cost more to undo than to prevent. In their counterclaim and cross-bill, the trustees belatedly recognized this and sought a determination of their authority. They set out some of the legal entanglements likely to result if the sale was consummated and subsequently set aside and referred to the liabilities that might accrue in the event they refused to consummate the transaction if they had the authortiy to do so. It was beneficial to have the question determined before the sale was consummated even if no value is placed upon the advantage to all concerned in avoiding a breach of trust.

There was evidence tending to show that the liquidation value of the Mayfair stock was from $250 to $275 per share and that C. Gordon Heiss would not sell the Heiss stock for $270 per share. The Mayfair group says that liquidation value is of no consequence in a continuing business and that the fair market value was at most $90 per share because they were minority shares. Of course, if the shares had been acquired by the Heiss interests, they would have become part of the majority shares and would have taken on added value as such. Although liquidation or asset value is not exclusively determinative, it is an important factor for consideration in ascertaining the fair value of shares of capital stock in a close corporation. Phelps v. Watson-Stillman Co., 365 Mo. 1124, 293 S.W.2d 429, 432 [1], While liquidation value may not tell the whole story of the stock’s value, neither does the offer of $90 or $150 per share. On the previous appeal this court held that “the voting trustees could not lawfully dispose” of the rights of the equitable owners at any price, that the certificate holders were entitled to receive their shares of stock and “to bide their time in exploiting their investments.” 316 S.W.2d 472. The investments might be exploited to better advantage if perchance all of the shares or the corporate assets were sold to one of the large hotel chains, or if by this means or otherwise the securities were to become listed on a stock exchange where the distinction in value between majority and minority shares does not exist. We need not undertake to put a certain value on the shares. It is sufficient for the purpose of this case that the evidence tends to show that the corporate shares had a value substantially in excess of either offer which excess would have been lost to the trust estate and ultimately to some or all of the certificate holders if the proposed sale had gone unchallenged. It follows that the construction of the trust agreement and the prevention of the unauthorized sale was a substantial benefit to the Mayfair corporation and to the beneficiaries of the trust.

Where one goes into a court of equity and takes the risk of litigation on himself and successfully creates, protects, or preserves a fund or brings about the creation, increase, or protection of a fund in which others are entitled to share, those others will be required to contribute their proportionate part of counsel fees and expenses, and the equitable way to apportion these fees and expenses is to allow them against the fund. Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 936 [60-61], and cases and authorities therein cited including Koplar v. Rosset, 355 Mo. 496, 196 S.W.2d 800, Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104, and Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; 14 Am.Jur., Costs § 74, p. 47.

A trust beneficiary who prevents a wrongful disposition of trust assets renders a benefit to the trust estate as much as the one who recovers back property wrongfully disposed of. Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 938; Holthusen v. Edward G. Budd Mfg. Co., D.C., 55 F.Supp. 945; Counsel Fees in Stockholder’s Derivative Suits, 39 Col.Law Rev. 784, 799; State ex rel. Weede v. Bechtel, 244 Iowa 785, 56 N.W.2d 173; Allen v. Chase National Bank, Sup., 40 N.Y.S.2d 245; Abrams v. Textile Realty Corp., Sup., 97 N.Y.S.2d 492; Martin Foundation v. Phillips-Jones Corp., 204 Misc. 120, 123 N.Y.S.2d 222.

In accordance with the opinion of the supreme court and the judgment of the circuit court pursuant thereto, the trustees delivered the shares of Mayfair stock to the registered holders of the voting trust certificates. The circuit court specifically retained jurisdiction of the cause for the purpose of determining plaintiffs’ claim for attorneys’ fees and expenses and for the “determination of the Defendants-Respondents Voting Trustees compliance with the provisions of this decree.” The defendant Mayfair now contends that by reason of the distribution of the shares of stock no trust fund remained and the circuit court was thereafter without the power or authority to allow attorneys’ fees and expenses against the fund or any former beneficiary. Mayfair cites the statement from Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 936, stating that, “The equitable way to apportion the expenses of counsel fees is to allow them against the fund.” Nothing held in Leggett, in Johnson v. United Rys. Co. of St. Louis, 247 Mo. 326, 152 S.W. 362, 374, or in other cases cited by Mayfair, precludes the allowance of fees and expenses in the circumstances of this case.

Practically all questions now urged by the defendants (including this one) were presented in Leggett v. Missouri State Life and determined adversely to the defendants’ present contention. In Leggett the assets of the insolvent company were sold to General American Life Insurance Company under a purchase agreement and the litigation arose on exceptions to the final accounting of General American. The result was the reallocation of the charges and credits in the accounts which General American was required to pay. In Koplar v. Rosset, the counsel fees and expenses were ultimately allowed against Marma-duke Apartments, Inc., the corporation whose stock was held in the voting trust, and this court stated with respect to the retention of jurisdiction by the trial court to make such allowances: * * * we think the corporation as well as other trust certificate holders benefited by this action, therefore the trial court’s action was proper.” 196 S.W.2d 800, 809[11], See also Koplar v. Rosset, 360 Mo. 1201, 233 S.W.2d 1, 3. Cases from other states in which attorney fees have been awarded where there was presently no fund in court are: State ex rel. Weede v. Bechtel, 244 Iowa, 785, 56 N.W.2d 173, cancellation of an improper stock issue; Allen v. Chase National Bank, Sup., 40 N.Y.S.2d 245, termination of voting trust and restoration of voting power to shareholders; Abrams v. Textile Realty Corp., Sup., 97 N.Y.S.2d 492, action to enjoin ultra vires refinancing plan; Martin Foundation v. Phillips-Jones Corp., 204 Misc. 120, 123 N.Y.S.2d 222, action to enjoin payment of,excessive compensation. The leading case of Trustees v. Greenough, 105 U.S. 527, 533, 26 L.Ed. 1157, recognizes that reimbursement may be equitably made “either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts.”

The distribution of the shares of stock did not extinguish the jurisdiction of a court of equity to allow attorneys’ fees and expenses incurred in the construction of the trust instrument and the preservation of trust property. This is especially true in view of the provisions of the voting trust agreement for the payment of the charges and expenses of the trust.

The trust agreement, provides in section 25 that the voting trustees are authorized to incur and pay reasonable expenses and charges including any charges incurred in connection with the voting trust agreement. The expenses and charges incurred by the trustees “if not paid by the Company” could be deducted from the dividends or other income collected by the trustees on the stock deposited or from the distributive proceeds in the event of dissolution or liquidation of the company. It is further provided that the holders of voting trust certificates shall be liable for their pro-rata shares of any and all payments due the voting trustees. This section further provides that Mayfair Hotel, Inc., agrees “to reimburse them [the trustees] for any and all expenses or charges incurred by them hereunder and to indemnify them against any and all proper and necessary liabilities incurred by them directly or indirectly as Voting Trustees hereunder.”

The voting trust was designed and imposed by the federal court for the benefit of the reorganized Mayfair Company and through it for the benefit of the income bondholders, the voting trust certificate holders, and ultimately the shareholders of the company. The provisions of the voting trust agreement disclose an intent that the charges and expenses of operating the trust be paid by the Mayfair Company as a necessary expense for the benefit it received for the operation of its business under the favorable conditions of the voting trust. Plaintiffs’ petition specifically prays for judgment against Mayfair Company. It was within the trial court’s equitable jurisdiction and sound discretion to impose the obligation to pay these expenses and charges of the trust upon the Mayfair Corporation. This is in keeping with the holding in Koplar v. Rosset, 355 Mo. 496, 196 S.W.2d 800, 809[11], and other cases above cited.

The judgment originally provided that the allowance for attorneys’ fees and expenses should be “taxed as costs against all defendants in the proceeding herein.” On motion of the trustees, the judgment was amended so as to tax the allowance as costs against all defendants “other than defendants William S. Bedal, William C. Connett, J. L. Davis and Clarence M. Turley.” The plaintiffs claim the trial court erred in amending the judgment so as to eliminate the trustees. The plaintiffs now concede that they are proceeding against the trustees only in their representative capacity as trustees of the voting trust. The trustees assert that the plaintiffs’ amended petition for attorneys’ fees and expenses does not state a claim or seek a judgment against them and that they are not liable on any theory. The application leaves no doubt that the plaintiffs were seeking to impose a liability on the trust estate for their attorneys’ fees and expenses. Jurisdiction of the circuit court was reserved for this purpose. The prayer of the application seeks the allowance “as an expense of the trust”. The four surviving trustees were trustees of an express trust and as such were proper parties defendants representing all of the beneficiaries of the trust estate. S.Ct. Rule 52.01, V.A.M.R.

The petition was sufficient to support a judgment for attorneys’ fees and expenses against the trustees in their representative capacity as an expense of the voting trust. The claim of liability of the trustees in their representative capacity is consistent with plaintiffs’ pleadings and trial theory and is not repugnant to the prayer for relief. Kemp v. Woods, 363 Mo. 427, 251 S.W.2d 684, 687-688[3-5]; LaPresto v. LaPresto, Mo., 308 S.W.2d 724, 726[2]; Anison v. Rice, Mo., 282 S.W.2d 497, 502[4-6]. The judgment should have run against the four surviving trustees not in their individual or personal capacity but as trustees representing the voting trust estate since the allowance of attorneys’ fees and expenses was proper as a charge or expense of the trust estate. Scott on Trusts, 2d Ed., Vol. Ill, § 271A; Baird v. National Health Foundation, 235 Mo.App. 594, 144 S.W.2d 850, 856[15]; 49 C.J.S. Judgments § 51a(2), p. 121. To this extent the modification of the judgment was erroneous.

The Mayfair group further asserts that the trial court had no jurisdiction to tax plaintiffs’ attorneys’ fees and expenses as costs or to enter judgment for such fees and expenses against any defendant. In Sprague v. Ticonic Bank, 307 U.S. 161, 165, 59 S.Ct. 777, 779, 83 L.Ed. 1184, the court states that sources bearing on the history and development of equity jurisdiction “uniformly support the power not only to give a fixed allowance for the various steps in a suit, what are known as costs ‘between party and party,’ but also as much of the entire expenses of the litigation of one of the parties as fair justice to the other party will permit, technically known as costs ‘as between solicitor and client.’ ” And further, page 166, 59 S.Ct. page 780: “Plainly the foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation.” It is of no consequence by what name the allowances for attorney fees and expenses are designated if the circumstances that justify their assessment are present.

By reason of their interests in the subject matter, all of the defendants were proper parties to the main action although the defendant trustees by reason of holding the legal title were the only ones who could transfer and convey the shares if authority to do so existed. Since they did not prevail, the conventional costs, or the costs between party and party, in the main proceeding were properly taxed against all of the defendants. Expenses of litigation, or costs as between attorney and client, however, are in a different category. We have held that where a person at his own risk protects or preserves a fund, the others entitled to share in that fund will be required to contribute proportionately to the expenses of litigation and that the equitable way to apportion the expenses is to pay them out of the fund or from other sources in which all are proportionately interested. The surviving trustees represented the trust estate and all of its beneficiaries. Mayfair Hotel, Inc., benefited by the action and under the voting trust agreement was the source of funds to pay the charges and expenses of the trust estate. In these circumstances we find no authority or justification for imposing the costs of the litigation upon the defendants other than the trust estate and the Mayfair Company. Accordingly, it was error to render judgment for plaintiffs’ litigation expenses against the defendants Lennox Hotel Company, Heiss Securities, Inc., C. Gordon Heiss, individually and as executor of the will of Charles Heiss, deceased. This is in keeping with the theory of the trustees themselves; in the prayer of their pleadings in the main action, they ask that their reasonable attorneys’ fees, costs and expenses in connection with their -counterclaim and cross-bill “be charged against the trust estate and * * * be reimbursed to them by Mayfair Hotel, Inc.”

The final question presented by the two appeals involves the amount of the award of attorneys’ fees. The plaintiffs and their attorneys claim that “it is demonstrably inadequate”. The defendants, on the other hand, claim that the allowance is excessive.

The services were rendered principally by Mr. Ackert and Mr. Giesecke in St. Louis and four attorneys in Chicago where some of the plaintiffs resided. It is unnecessary to describe the legal services in detail. The nature of the services performed are reflected in the records, briefs, and the decision in the first appeal, Jesser v. Mayfair Hotel, Inc., Mo., 316 S.W.2d 465, supplemented by the testimony of the attorneys. They testified that more than thirty-five hundred hours were expended by the six attorneys who participated on behalf of the plaintiffs over a period of almost three years; that a reasonable hourly charge would be at least $40; and that an allowance of $140,000 for attorneys’ fees would be justified. Four distinguished members of the Missouri Bar practicing in St. Louis who had acquainted themselves with the services rendered and the results of the litigation testified as to the value of the services. They were James M. Douglas, a former member of this court, Jacob M. Lashly, Roberts P. Elam, and John A. Arnold. They all testified that a charge of at least $40 per hour was justified in the circumstances of this case and, based on the time consumed, the nature of the services, and the result accomplished, a fee of at least $140,000 was reasonable.

Mayfair contends that a large amount of time was spent unnecessarily in trying to obtain without success secondary or alternative relief. The possibility of unnecessary work as well as overlapping of efforts will be considered as we are sure it was by the trial court. The Mayfair group also asserts that a reasonable time allowance to investigate, prepare and try the case, and handle the appeal on the question of the trustees’ authority to sell less than all the stock, would be about one hundred hours, and that a reasonable charge for those services would not exceed $5,000. We cannot agree that plaintiffs’ attorneys, or any attorneys, possess the acumen and foresight under the circumstances in this case to select the precise issue upon which they will ultimately prevail and to reject all others, or to adduce the exact amount of evidence needed and no more. The necessity and reasonableness of the time and effort expended must be determined in the light of the circumstances then existing and not in retrospect.

Supreme Court Rule 4.12, V.A.M.R., provides helpful guides in ascertaining the value of legal services. We have considered and applied these standards. The question involved was undoubtedly a novel and difficult one. The pleadings, transcript, and briefs on appeal in the main case bespeak the industrious application of a high degree of legal learning and skill. The opposing lawyers were equally capable and resourceful. We have considered the subject matter and the amount reasonably involved in the controversy and the benefits resulting from the services rendered. Arriving at a proper charge is often difficult for the lawyer; it is hardly less so for the court.

In cases tried upon the facts without a jury, the appellate court reviews both the law and evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, and the judgment shall not be set aside unless it is clearly erroneous. S.Ct. Rule 73.01(d), V.A.M.R.; Section 510.310, subd. 4, RSMo 1959, V.A.M.S.; Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 850[2]. From our independent evaluation of the evidence, we have concluded that the sum of $80,000 is a reasonable allowance for the legal services benefiting the trust estate and chargeable against it. The plaintiffs’ contention that the sum is inadequate as well as the defendants’ claim that it is excessive are both denied.

The Mayfair group further contends that the expense allowance of $4,-327.77 should be disapproved in its entirety because there was no evidence of the amount of expense properly allocable to that portion of the plaintiffs’ effort in which they succeeded. The plaintiffs’ evidence tended to prove that the expenses in the sum of $4,327.77 were reasonable and necessary in connection with the litigation. The defendants did not by evidence or cross-examination establish otherwise. We can do no better. The request that we disapprove the allowance in its entirety is denied.

The judgment of the trial court is affirmed in part and reversed in part in accordance with the foregoing opinion. The finding and allowance in favor of the plaintiffs and their attorneys of $80,000 for legal services and the sum of $4,327.77 for expenses as costs of the injunction litigation and as an expense of the trust estaie are affirmed.

Where a judgment creditor appeals on the grounds of inadequacy from a recovery in his favor, and the judgment is affirmed, he is not entitled to interest pending the appeal. Komosa v. Monsanto Chemical Co., Mo., 317 S.W.2d 396, 398[2]. We deem the application of this rule to be appropriate in the circumstances of this case in spite of the fact that the plaintiffs were successful on one facet of their appeal, and the further fact that the Mayfair Company and other defendants also appealed. Accordingly interest on the amount for which the judgment is affirmed will not be allowed during the pendency of this appeal and will not commence to run until the date this opinion and mandate is filed in the circuit court.

It is further ordered and decreed: that said fees and expenses aggregating $84,-327.77 be allowed and assessed against the defendants William S. Bedal, William C. Connett, J. L. Davis, and Clarence M. Turley, in their representative capacities as trustees under the voting trust agreement (and not personally or individually) as a charge and expense of carrying out the voting trust agreement; that the plaintiffs and their attorneys, Harold C. Ackert and John W. Giesecke, have and recover of the defendant Mayfair Hotel, Inc, the said sum of $84,327.77 as costs of the injunction litigation and as a charge and expense of the voting trust agreement; that the said sum of $84,327.77 so allowed, assessed, and adjudged shall be payable directly and only to Harold C. Ackert and John W. Giesecke and not to the plaintiffs; that if the amount due on the above judgment is not paid by the defendant Mayfair Hotel, Inc, the judgment creditors shall not be deprived of any other remedy they may have under the voting trust agreement or otherwise for the collection of said judgment; that payment to Harold C. Ackert and John W. Giesecke of the sum of $84,327.77 allowed, assessed, and adjudged as costs of the injunction litigation and as a charge and expense of the voting trust agreement shall constitute complete satisfaction and payment in full of all sums allowed and decreed herein; that the claim of the plaintiffs and their attorneys for allowance of said attorneys’ fees and expenses against the defendants Lennox Hotel Company, Heiss Securities, Inc, C. Gordon Heiss, individually and as executor of the will of Charles Heiss, deceased, is denied; and that the conventional costs in this case in the trial court and on appeal are ordered taxed against the defendant Mayfair Hotel, Inc.

The cause is remanded with directions to enter judgment accordingly.

All concur.


author: WESTHUES, Judge.

text:
    STATE of Missouri, Respondent, v. Lonnie Holloway CLARK, Appellant.
    No. 48493.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.
    James Horn, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., O. Hampton Stevens, Special Asst. Atty. Gen., Jefferson City, for respondent.
   WESTHUES, Judge.

The defendant Lonnie Holloway Clark, on June 27, 1960, was convicted by a jury on a charge of robbery in the first degree. The information charged that the offense was committed by the use of “a dangerous and deadly weapon, to-wit: a 38 Cal. Blue Steel, Snub Nose Pistol.” The information alleged further that Clark had previously been convicted of robbery and had served a prison sentence. The trial court so found and assessed defendant’s punishment on the robbery charge of which the jury found him guilty at imprisonment in the penitentiary for a term of 35 years. A motion for new trial was filed and after being overruled by the court, Clark was sentenced. From the judgment, he appealed.

Clark was represented by counsel during the trial and a motion for new trial was filed on his behalf. The attorney also-filed a notice of appeal. On this appeal, Clark was not represented by counsel. However, he filed a four-page memo which was designated as an “Augmented Brief and Bill of Exception in Support of Appellant’s Appeal.” We shall treat this as a brief. In this brief, Clark charges his counsel with lack of diligence. We have examined the record and find the charge made by Clark against his counsel without any support. As the evidence hereinafter reviewed shows, Clark was positively identified as the perpetrator of a robbery with a deadly weapon. Since he had previously served a prison sentence for a like offense, he might well have received a life sentence. The court assessed, as above indicated, a punishment of 35 years’ imprisonment. The point is ruled against appellant.

The evidence in the case justifies the following statement of facts: On the evening of February 6,1960, shortly after eight o’clock, a man entered a grocery store referred to as Moley’s Quik-Chek located at 2301 Lexington Avenue, Kansas. City, Jackson County, Missouri, and at the point of a pistol, he obtained over $100 in cash. That the robbery was committed was not disputed. The dispute at the trial was over the identification of the defendant. Peter Moley, owner of the store, and a Mrs. Richards, a clerk, positively identified Clark as the person who committed the robbery. After the robbery, the police were notified. Moley gave a description to the police, including statements that the person was about 5 feet 6 inches in height, 35 years old, and weighed about 150 lbs. Witness Richards stated to the police that the man was about 35 or 40 years of age. These two witnesses were cross-examined at length on the subject of identification. The witnesses agreed that Clark at the time of the trial had the appearance of being much older. In fact, the record shows that Clark was in the State Penitentiary on robbery charges from April 6, 1928, to December 24, 1959. The witnesses stated that at the time of the robbery Clark had his hat on and it was pulled down so that his hair was hidden. Mrs. Richards explained the discrepancy on cross-examination as follows

“Q Now, did you give a description of this man to the Police Department when they arrived?
“A Yes, sir.
“Q Did you give one to the district officer? That is the uniformed man that first came upon the scene?
“A Yes, sir.
“Q Now will you tell me what that description was ?
“A Well — I—I said that he wasn’t a white man, and—
“Q Wait just a minute, now. You said he wasn’t a white man?
“A He wasn’t a white man.
“Q All right.
“A And I work with Italians and I knew he wasn’t Italian.
“Q Just a moment, I want to know what you told the officer, not what—
“A That is what, I told him.
“Q Oh, all right.
“A I said he wasn’t white, he wasn’t Italian and he wasn’t Spanish, but he ■was kind of a yellowish color, like he might be part Chinese or Japanese, but still that wasn’t the color either, I wasn’t sure, but I knew that he wasn’t —he was of some descent besides American.
“Q And you told this officer there at the scene, Mrs. Richards, that he wasn’t white, didn’t you ?
“A Yes, sir, I did.
“Q Now, did you at the same time give any estimate or guess as to his age, to the officer?
“A Yes, I said around 35 or 40,
but I—
“Q Now, you say around 35 or 40?
“A That is what I estimated, yes, I couldn’t see his hair, I didn’t realize it was white, or very gray, and — with his hat pulled down he didn’t look— he didn’t have his hair showing, and I really didn’t think he was as old as he is.
“Q In other words without looking at his hair you estimate his age would be 35 or 40?
“A Yes.
* ' H= * * * *
“Q Now, Mrs. Richards, I would like you to look at this man and observe him and tell me if after looking at him and seeing him, if you would describe his age as anywhere near 30 to 35 years of age ?
“A Not with his hair showing, now; if he had a hat on I am not sure but what I could still judge him around 35.
“Q With a hat on you would still say his age would be 30 to 35 ?
“A Yes. Well, I know different, but I mean — it could be possible that I would estimate him at that.”

It is apparent that the question of whether Clark was the guilty party was for a jury to decide. Defendant, in his brief, cited the case of State v. Lora, Mo., 305 S.W.2d 452. That case, on the point in question, l. c. 456(9), held that the defendant in that case was entitled to introduce evidence of the description the State’s witness had given to the police of the person the witness claimed had committed the offense. This, the defendant in the case before us, was permitted to do by the State’s witnesses and the police to whom the description had been given. Defendant’s complaints have no merit.

In his brief, defendant complains that the State made use of aliases. The prosecutor, when qualifying the prospective jurors, asked if any one of them knew the defendant by the name stated in the information and under names not mentioned in the information. The record shows that the defendant was using the name of “Roger Smith” when arrested. In such circumstances, it was not error for the Court to permit the prosecutor to make inquiry as to whether the jurors knew the defendant under names not mentioned in the information. See State v. Butler, Mo., 353 S.W.2d 698, l. c. 700(7), and State v. Daniels, Mo., 347 S.W.2d 874, l. c. 878, 879(6).

In the motion for new trial, only two points were presented to the trial court: the first was with reference to the use of aliases. We disposed of that supra. In the second assignment of the motion, defendant says that the trial court erred “in admitting evidence under the habitual criminal act over the objection of the defendant, without substantiation by any testimony of witnesses that the documents offered in evidence were authentic as purported by the State.” The State offered in evidence the duly authenticated copy of the record of the Missouri State Penitentiary showing that Lonnie Clark had served a sentence on a conviction of robbery first degree and that he was discharged on December 24, 1959. This record contained a photograph and finger prints of Lonnie Clark for identification. There was no error in the admission of the evidence. State v. Peterson, Mo., 305 S.W.2d 695, l. c. 697(1-4).

We have ruled on all points made in the motion for new trial as well as those presented by defendant’s brief. We have also examined matters as required by S.Ct. Rule 28.02, V.A.M.R. and find no prejudicial error therein.

The judgment is affirmed.

All concur.


author: HYDE, Judge.

text:
    STATE of Missouri, Respondent, v. James David (J. D.) COX, Appellant.
    No. 48969.
    Supreme Court of Missouri, Division No. 1.
    Oct 8, 1962.

      J. D. Cox, appellant, pro se.
    Thomas F. Eagleton, Atty. Gen., Manuel Drumm, Special Asst. Atty. Gen., Jefferson City, for respondent.
   HYDE, Judge.

Defendant was convicted of assault with intent to kill with a deadly weapon with malice aforethought and given a sentence of eight years in accordance with the verdict of the jury. (See Section 559.180 RSMo, V.A.M.S.) Defendant has appealed hut filed no brief so we consider all assignments made in his motion for new trial in accordance with Supreme Court Rule 27.20, V.A.M.R. (See also Rule 28.02.)

The assignments allege error in rulings on evidence, refusal of an offered instruction and other trial .rulings. There is no contention made (and none reasonably could have been made) concerning the sufficiency of the evidence to make a case for the jury. Therefore, reference to the facts will be made in connection with the rulings challenged, except for the following brief statement of the situation, as shown by the evidence of the State and the evidence of defendant.

Defendant was forcibly ejected from the T.ravelux Tavern (hereinafter referred to as the Tavern) in Jackson County on the night of March 25-26, 1960, by Harry E. Campbell, door man, and other tavern employees, and told not to come back. About 12:25 A.M., March 27th, Campbell with another employee, Beckett, came to the tavern for duty and saw defendant there. Campbell walked to where defendant was standing at which time defendant inquired of Campbell why he (defendant) had been thrown out of the tavern the night before. Campbell replied that the management did not want him there and that defendant would have to go out again. Defendant pulled a pistol out of his right pocket and fired three shots which struck Campbell. Beckett then shot at defendant with a shotgun, his second shot shooting the pistol out of defendant’s hand as he was aiming again at Campbell. Defendant had testimony (from his brother’s wife) that Campbell took hold of his shoulder and said that he had heard that defendant was looking for him. Defendant replied that he wanted to know why they both jumped on him last night and then Campbell hollered out, “Shoot the son-of-a-bitch.” Beckett fired a shotgun from behind the bar, his first shot striking defendant in the right hand, then defendant grabbed his gun with his left hand and tried to shoot back.

Assignments 1 and 6 claim error in permitting reference by the State to the wounding of Karen Routh, who accompanied defendant and others with him to the Tavern on the night of the shooting. Those who came there with defendant were his brother, his brother’s wife, Karen Routh, Bill Allbright and a girl called Nancy. Defendant’s brother and wife and Karen were sitting in a booth when the shooting started and Karen was struck by a bullet, apparently from defendant’s pistol. The first mention of this was in Campbell’s direct testimony when in answering a question he said, after the shooting was over, somebody said “there was a girl shot.” Objection by defendant’s counsel to this was sustained as hearsay but when Campbell was asked: “Did you actually see this girl that had been shot,” there was no objection and he said he did. Likewise, there was no objection to two subsequent questions as to where she was and what he observed. However, when another witness told about Karen being shot, defendant’s counsel objected and asked the court to instruct the jury to disregard alll testimony with respect to shooting of Karen and also asked the court to declare a mistrial. Thereafter, defendant’s counsel objected each time any such .reference was made. However, as we said in State v. Bell, 359 Mo. 785, 788, 223 S.W.2d 469, 471: “This evidence was properly admitted as a part of the res gestae. It did not relate to separate and distinct crimes, but parts of a continuous occurrence intimately connected with the crime for which defendant was being tried.” See also State v. Moore, Mo.Sup., 353 S.W.2d 712, 713, and cases cited. Defendant’s assignment 8 claiming error in allowing endorsement of Karen Routh as a witness at the trial is wdthout merit, in any event, because she was not called as a witness, State v. Johnson, 349 Mo. 910, 163 S.W.2d 780, 783. Assignments 1, 6 and 8 are overruled.

Assignments 2 and 5 claim error in restricting cross-examination of Campbell as to where he was and what he did on the evening of March 26th before he went to the Tavern about midnight and as to previous claimed illegal gambling activities at the Tavern. The court did permit much cross-examination concerning Campbell and Beckett being together at another tavern earlier in the evening and coming together to the Tavern where the shooting occurred, bringing the shotgun with them from Campbell’s home. (Campbell said they brought the shotgun because they heard of threats made by defendant.) Campbell was asked if he ran a dice game at the Tavern and said he did not. Objection to defendant’s counsel thereafter arguing with him about it was sustained as were also objections to his questions about running dice games in other places. No connection of gambling with the events of the night involved appears. “The court is invested with much discretion, and necessarily so, in determining the extent of cross-examination,” State v. Turner, Mo.Sup., 320 S.W.2d 579, 584, especially as to collateral matters. State v. Winn, Mo.Sup., 324 S.W.2d 637; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920. We have carefully read the cross-examination of this witness and the court’s rulings and hold there was no improper restriction of this cross-examination. Assignments 2 and 5 are overruled.

Assignments 3 and 4 involved testimony as to what was done after the shooting by other employees of the Tavern at the hospital, where defendant was taken, to prevent him from getting a blood transfusion; and as to threats received by defendant’s brother’s wife by telephone at home later that night, she having recognized the voice of the person calling. Defendant’s offer of proof as to the threats was that, after defendant’s brother and his wife returned to their home from the hospital where defendant was taken, she received a telephone call from a Tavern employee saying they had already got defendant and were coming to get them. This was a subsequent collateral matter involving a third party not involved in the assault charged, and who did not testify, throwing no light on what occurred at the time of the alleged assault by defendant. See State v. Hannebrink, 329 Mo. 254, 44 S.W.2d 142. Concerning the hospital incident, a deputy sheriff, called as a witness by defendant, testified about occurrences at a hospital to which defendant and Campbell were taken after the shooting. He said there was a fight there and he arrested defendant’s companion Allbright and ordered two Tavern employees (Baer and Wishman) and others out of the hospital. There was no testimony that Baer and Wishman were at the Tavern at the time of the shooting but, after the deputy told about clearing the hospital, defendant’s counsel asked him the following question: “Officer Smith, at the time that you were at the hospital was the plasma needle pulled out of J. D. Cox’s arm?” Objections and rulings were as follows: “MR. GANT: Your Honor, I object to the question, first, on the ground it is certainly leading and suggestive and improper. Secondly, it doesn’t prove or disprove any facts or issues in this case. THE COURT: Sustained. It is too remote. We are concerned with what happened at the Travelux Tavern. MR. COMBS: All of this officer’s testimony is of happenings within one or two hours. THE COURT: The objection is sustained. You are going too far.” Thus it is apparent that no offer of proof was made to show any relation of this claimed incident to the assault or to anyone connected with it or with the Tavern. The court’s ruling was correct on the showing made. Assignments 3 and 4 are overruled.

Assignment 7 restates defendant’s objection to the admission of evidence showing Miss Routh was shot, complained of in preceding assignments, and says the court’s rulings against “any inquiry from the defense about matters before or after the shooting or outside the Travelux premises” were arbitrary, capricious and unfair, arguing these matters were proper as “bearing upon credibility, integrity, turbulence, threats, connivance or defendant’s reason for fear.” We have found no error in the rulings complained of in the preceding assignments concerning occurrences before or after the shooting at other places away from the Tavern. We note that extensive cross-examination of Campbell was permitted to show his height, weight and boxing experience in Golden Gloves competition, his duties as door man at the Tavern, the details of the ejection of defendant on the previous night, and the participation of other employees in it. It was also shown on cross-examination that Campbell had been convicted in Iowa of carrying concealed weapons several years before, that he had previously worked as “bouncer” at another tavern; and that he had one or two beers that evening before he came to work at the Tavern on the night of the shooting. He was asked if he or any other Tavern employees had ever made threats against defendant and answered “no”. Defendant’s sister-in-law, who had once worked as a cook at the Tavern, was permitted to testify that Campbell had the reputation' “of being a bully and wanting to fight”; and that he, with Beckett, Wish-man and Baer, would “gang up” on others. Our view is that the record does not sustain the allegations of Assignment 7 and it is overruled.

Assignment 9 alleges error in refusal of defendant’s requested Instruction A on self-defense. No claim is made that Instruction 5 given by the court on self-defense was incorrect; and it was more favorable to defendant than his offered instruction by stating that he would be justified in acting in self-defense “even if no real danger existed” if he “had reasonable cause to believe and did believe that it existed.” Defendant’s offered instruction commenced by hypothesizing the incident of the previous night, when defendant was ejected by Campbell and other employees, which as set out therein had n'o proper place in determining the issue of self-defense on the occasion of the shooting. The offered instruction also hypothesized acts of Beckett, rather than acts of Campbell, and its effect tended to be argumentative. See State v. Heath, 221 Mo. 565, 592, 593, 121 S.W. 149. Therefore, considering the whole submission, we hold it was not error to refuse it and assignment 9 is overruled. We have examined the record as required by Rule 28.02 and find no error respecting the sufficiency of the information, verdict, judgment and sentence.

The judgment is affirmed.

All concur.


author: BOHLING, Commissioner.

text:
    William MITCHELL, Appellant, v. G. Wilse ROBINSON, Jr., et al., Respondents.
    No. 49123.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.
    Motion for Rehearing and for Transfer to Court En Banc Denied Oct. 8, 1962.
    Arthur C. Popham, Kansas City, for appellant, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    John R. Gibson, William V. North, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondents.
   BOHLING, Commissioner.

' This is the second appeal in an action for malpractice by William Mitchell against Doctor G. Wilse Robinson, Jr., and his associates, a partnership doing business as Robinson and Robinson, and operating a Neurological Hospital in Kansas City, Missouri. Plaintiff asked $40,000 damages, and the instant trial resulted in a verdict and judgment for the defendants. A judgment for plaintiff of $15,000 on a former trial was reversed and remanded because of trial errors. See Mitchell v. Robinson, Mo., 334 S.W.2d 11, 79 A.L.R.2d 1017. The sole issue plaintiff now presents is the admissibility of certain evidence hereinafter set forth.

The parties agree that the facts in the former trial appear in detail in our opinion on that review, and refer thereto. Plaintiff has filed an abbreviated transcript on this appeal, which shows the pleadings upon which the case went to trial; the questioned evidence adduced by defendant; the unanimous verdict for the defendant; the judgment and the usual after-trial proceedings. Defendant also filed an abbreviated supplemental transcript of certain evidence. We refer to the facts in our former opinion but outline certain facts here, quoting in part from our former opinion.

“Mitchell had ‘a rather severe emotional illness,’ process schizophrenia, but he was not mentally incompetent; his illness was characterized by serious depression and rather severe anxiety, complicated by alcoholism. * * * [I]t was the opinion of the doctors that he should have ‘combined electro-shock and insulin subcoma therapy.’ * * * One of the unpredictable results of insulin shock, however, is an unpreventable convulsion and one of the hazards of convulsions, whether from insulin or electroshock, is fractured vertebrae, fractured legs and various other injuries.” (334 S.W.2d 12.)

With the plaintiff explicitly denying and the doctors affirming that they advised the plaintiff of the hazards of shock therapy, we held on the former appeal that “there was a submissible fact issue of whether the doctors were negligent in failing to inform him [Mitchell] of the dangers of shock therapy.” (334 S.W.2d 17-19 [6, 7].)

Mitchell and defendant Dr. DeMott were well acquainted. Dr. DeMott was a specialist in neurology and psychiatry. On the morning of October 20, 1961, Mitchell talked with Dr. DeMott at the Neurological Hospital. Dr. DeMott testified he had Mitchell bring the then Mrs. Mitchell to the hospital; that when Mitchell returned with Mrs. Mitchell he described the electroshock treatment, the insulin treatment, and the possible complications, including the danger of fractures, in detail to them; that he did not ask Mitchell to sign a “consent” or “treatment permit” because Mitchell was in no emotional state at that time to sign anything; that Mitchell gave witness his verbal consent to the treatment, and that Mrs. Mitchell, “in front of Mr. Mitchell,” signed the following “consent,” dated October 20, 1951: “This is to certify that I have been informed of the possible dangers of the shock treatment with curare and electroshock, or -m&fessel, or with insulin in the case of William Mitchell and that I hereby give permission to the Neurological Hospital and staff to administer this treatment and request that this be done. We assume responsibility for any complications or accident resulting from the administration of these treatments.”

Mitchell entered the hospital on October 20th for examination, tests and observations. On October 24th Dr. G. Wilse Robinson, Jr., had a conference with Mitchell at which Dr. DeMott was present. Dr. Robinson informed Mitchell of the electroshock and insulin treatments and of their possible complications, including the possibility of fractures, compressions of the spine, and possible memory defects. He testified Mitchell realized he was going into procedures that might cause serious side effects, but wanted to get better, to get started, and consented to the treatments. Dr. DeMott further testified that in his opinion Mitchell’s mental and emotional state at the time he entered the hospital was such that Mitchell would not in later years have an accurate memory of what took place.

Mitchell received his first electroshock treatment on October 25th and his first insulin shock treatment on October 28th. He suffered a convulsion with the treatment of October 31st, which particular treatment was successfully terminated by an intravenous injection of glucose. Insulin treatments were then reduced to 25 units but increased to 40 units on November 5th. On November 7th, with another insulin treatment of 40 units, Mitchell had “ ‘a hard generalized convulsion,’ a grand mal seizure, which resulted in a compression fracture of the fifth, sixth and seventh dorsal vertebrae. It is to recover damages for these specific injuries that Mitchell instituted this action.” (334 S.W.2d 12, 13.)

Mitchell did not sign a written consent to the treatment. He, however, gave his oral consent; “but, he says, he would not have consented had he been informed of the hazards. * * * Mitchell testified that he did not authorize his wife to sign the consent and that he never heard of it until long after he had been discharged from the hospital and therefore had no notice from the consent of the hazards of the treatment.” (334 S.W.2d 17, and consult pp. 18, 19.) He testified that no member of his family, including his father, came to see him before the first electroshock treatment.

The questioned testimony on direct examination of Dr. DeMott related to a conversation he had with Mitchell’s father, Mr. Harry Mitchell, on October, 22nd, and is as follows:

“Q. When and where did that conversation take place? A. October 22nd, Mr. Mitchell’s father came and visited with him and I talked at great length with his father, went into all aspects of his illness to the best of my knowledge, all aspects of treatments, including possible complications, results—
“Mr. Popham: Just a minute. That was apart from Bill?
“The Witness: That was apart from Bill.
“Mr. Popham: Of course, Your Honor, these people know that the father is dead and can’t deny these statements. It’s hearsay, out of the presence of Mr. Mitchell and certainly not binding upon him. I object to it.
“Mr. Gibson: It’s what this doctor said, Your Honor.
“The Court: Overruled.
“Q. (By Mr. Gibson) You may further describe what you told Mr. Mitchell, if you will, Mr. Mitchell’s father, or was that the substance of the conversation? A. It was a very, very thorough conference that we had, as it was quite difficult for Mr. Mitchell’s father to accept the illness, and I had also known Mr. Mitchell all of my life, the father. But he accepted the things that I told him.
“Mr. Popham: Just a moment. Your Honor, I object to the statement that he accepted the things that he told him.
“The Court: Sustained.
“Mr. Popham: I ask that all of the statements with respect to the father be stricken out because the father is dead and not available as a witness, as the records show and as counsel well know, and because this is purely hearsay, not in the presence of the plaintiff, and could not be binding upon him.
“The Court: Overruled. But your objection is sustained as to the father accepting what the witness said.
“Q. (By Mr. Gibson) Is there anything else that you' told the father at the time, Doctor, or does that conclude that part of your conversation? A. That concludes that.”

Appellant’s sole point in his brief is that the above statements, made in his absence, “were self-serving, in the nature of hearsay, not binding on plaintiff, and highly prejudicial.” Many cases are cited. Respondents, among other things, state the issue that the statements were self-serving was not presented to the trial court and is not for review.

The following are representative of appellant’s cases. In Fishback v. Prock, 311 Mo. 494, 279 S.W. 38, 42 [5], James E. Fishback orally promised defendant Mrs. Prock that if she and her husband would care for him as long as he lived he would give her his farm. Offers of proof by plaintiff that James E. Fishback, prior to his death but after making said contract, made statements to different parties out of the presence of the defendant that tended to show he never made said alleged agreement were properly excluded on the ground they were “self-serving declarations.”

The precise holding in McCarty v. Bishop, 231 Mo.App. 604, 102 S.W.2d 126, 129 [6], as we read the case, does not aid appellant.

Shaw v. Terminal Rd. Ass’n, Mo., 344 S.W.2d 32, 34 [1], stressed by appellant, involved hearsay declarations of a deceased witness against defendant, and not self-serving statements of the plaintiff in that action.

Respondents do not contend that self-serving statements in the absence of an adversary are admissible, or are binding on the opposing party (McLean v. Rutherford, 8 Mo. 109, 114; North Missouri Rd. Co. v. Wheatley, 49 Mo. 136, cases cited by appellant) . They do not question the rulings under the objections made to the hearsay statement in the Shaw case, supra, and the self-serving statements made in the absence of the opposing party, after the event in litigation, to prove specific facts about that event in the cases cited by appellant. Fishback, supra; Wallendorf v. Rensing, Mo., 329 S.W.2d 779, 783 [4]; Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, 429 [13, 14]; Sander v. Callahan, Mo., 351 S.W.2d 691, 695 [3,4]; Keeshan v. Embassy Investment Co., Mo.App., 303 S.W.2d 666, 669 [3]; Johnson v. Thompson, 241 Mo.App. 1008, 236 S.W.2d 1, 8 [9]; Weller v. Weaver, 231 Mo.App. 400, 100 S.W.2d 594, 597 [10].

Assuming, without so holding, that the questioned testimony was self-serving, the authorities sustain respondents’ position that since said issue was not raised below it is not for review here. In Dunn v. Alton R. Co., Mo.App., 88 S.W.2d 224, 228 [1], the appellant contended on appeal that certain testimony was self-serving, its objection at the trial being that it was hearsay. The court said: “It now makes the further objection that such testimony was self-serving, but the lack of such objection at the trial precludes our consideration of it at this late stage of the proceeding.” The same ruling is found in Hermann v. St. Louis Pub. Serv. Co., Mo.App., 345 S.W.2d 399, 405, 406, citing cases. “It is well settled that an objection to the admissibility of evidence must be specific and contain the proper ground of its exclusion, else the trial court will not be convicted of error for overruling it.” Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539 [3-5, 7]. See Williams v. St. Louis Pub. Service Co., Banc, 363 Mo. 625, 253 S.W.2d 97, 104 [9-11]. Any other course would open wide the door to reverse judgments on objections not presented below.

A respondent does not have the burden of establishing the correctness of a judgment. Lakin v. Postal Life & Cas. Ins. Co., Mo., 316 S.W.2d 542, 549 [3], 70 A.L.R.2d 564. “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.” Sup.Ct.R. 83.13(b), V.A.M.R.; Section 512.160 RSMd 1959, V.A.M.S.; Schraedel v. St. Louis Pub. Service Co., Mo.App., 248 S.W.2d 25, 33 [8], The appellant has the burden of establishing reversible error upon appeal. Hardy v. McNary, Mo., 351 S.W.2d 17, 20 [2]; Sorrell v. Hudson, Mo., 335 S.W.2d 1, 6 [10]; Kelly v. Kansas City Pub. Service Co., Mo., 335 S.W.2d 159, 164 [8], citing cases.

Under respondents’ evidence Dr. DeMott on October 20th informed appellant and his wife of the hazards of the electroshock and insulin treatments, appellant orally consenting and his wife signing a written consent for the treatments. On October 22nd, Dr. DeMott had the questioned talk with appellant’s father. Appellant, in the hospital for examination, tests and observation, was again informed on October 24th of the hazards of the treatment, this time by Dr. Robinson, Jr., in the presence of Dr. De-Mott, and again consented and wanted to get started with the treatments. Thereafter, appellant received his first treatment on October 25th.

Appellant’s brief quotes statements from 31 C.J.S. Evidence § 216, p. 952, including: “The rule excluding self-serving declarations is a part of the hearsay rule,” citing Caplan v. Caplan, 83 N.H. 318, 142 A. 121. Said § 216 also states: “Where there is direct evidence as to the same matters as to which a party’s declaration has been admitted in evidence against the objection that it was self-serving, the admission of the declaration, even if technically improper, cannot be regarded as prejudicial error.” (n. 42.)

Wilt v. Moody, Mo., 254 S.W.2d 15, 17 [1], an action involving a collision between automobiles, considered self-serving statements subsequently made by a defendant in the absence of his adversary part of the hearsay rule, also citing the Caplan case, supra.

The Caplan case, supra, an alienation of affections action by a wife against her husband’s parents, considered that talks, verbal acts, between the two defendants and their son in plaintiff’s absence in trying to avert the separation were part of the res gestae within the time involved, were not proof of the facts stated but were admissible to establish whether they tended to cause or avoid the separation, and held evidence of such talks was improperly excluded under an objection they were hearsay and self-serving (142 A. l. c. 127 [25-34].) We need not develop respondents’ citations to sustain their theory that the questioned testimony was a verbal act and admissible as part of the res gestae, among which are: Mash v. Missouri Pac. R. Co., Mo., 341 S.W.2d 822, 827 [4]; In re Thomasson’s Estate, 347 Mo. 748, 148 S.W.2d 757, 763 [10, 11]; Trask v. Davis, Mo.App., 297 S.W.2d 792, 798 [13,14], citing cases; 6 Wigmore, Evidence, 3d ed., §§ 1770, 1766.

With direct evidence of respondents informing appellant on two occasions of the dangers connected with the treatment, the sole issue in the case, self-serving statements to like effect have been regarded as not prejudicial. 31 C.J.S. Evidence § 216, n. 42, quoted supra; Wilmoth v. Hamilton, 3rd Cir., 127 F. 48, 50, 51, 61 C.C.A. 584; McCurtain Cotton Oil Co. v. Guthrie, 146 Okl. 144, 294 P. 133, 135; and see 5A C.J.S. Appeal and Error §§ 1729-1731.

The sole fact issue for determination by the jury was whether the verbal acts of the respondents informed the appellant of the dangers of the treatments (334 S.W.2d 19), a simple and easily understandable issue. Dr. DeMott did not testify that he told appellant’s father he had told appellant the treatments involved hazards of fractured vertebrae, legs and other injuries, and there is no showing in this record that the case was tried on the theory this questioned testimony was binding on appellant. If the questioned testimony was erroneously admitted the burden was on appellant to establish its prejudicial effect. It related to a matter which ought not materially affect the result, did not bring in the fact which would defeat a recovery by plaintiff on the fact issue for determination, and it is not demonstrable from the abbreviated abstract of the record how, with the evidence adduced by appellant and respondents in the case bearing directly on the fact for determination, the jury was mislead in the contested issue for submission to. them.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.