author: HYDE, Judge.

text:
    STATE ex rel. GREAT AMERICAN INSURANCE COMPANY, Relator, v. Honorable Douglas L. C. JONES, Judge of the Circuit Court of St. Louis County, Missouri, Respondent.
    No. 51434.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1965.
    Rehearing Denied Dec. 13, 1965.

      Francis L. Kenney, Jr., Bernard A. Rein-ert, St. Louis, for relator, Great American Ins. Co., Kenney, Reinert & Hespen, St. Louis, of counsel.
    John A. Biersmith, Charles J. Fraas, Jr., Kansas City, for respondent, Rafter, Biers-mith, Miller & Walsh, Kansas City, of counsel.
   HYDE, Judge.

Relator seeks mandamus to require respondent Judge to set aside an order entered March 17, 1965, quashing service, dissolving attachments and garnishments and dismissing relator’s action against Louis Lesser Enterprises and D & L Construction Company and to reinstate said cause so it may proceed on its merits. Respondent has stayed this order until this court rules on the petition for mandamus. Both parties have filed motions in this Court for judgment on the pleadings.

Relator’s petition against Lesser and D & L (foreign corporations based in California) alleged they were engaged in a joint venture to build housing at Fort Leonard Wood and that Clarence W. Franks was a subcontractor whom they owed $82,348.38; that relator (qualified to do business in this state), having furnished Franks’ performance bond, completed his work at an additional cost of $151,172.71; and that relator was the owner of this claim in the total sum of $233,521.09 by subrogation and assignment. Relator’s petition, in a second count, stated a claim for the same amount based on fraud.

On garnishment proceedings, Emerson Electric Company disclosed it was obligated to Lesser for monthly rents and taxes on real estate, which it appears is $4,125.00 per month and annual taxes, totaling more than $33,000.00 in rentals at the time the case was heard in this court. Notice of commencement of suit by attachment and garnishment was given to both defendants by registered mail and also such notice was served on Lesser in California by a deputy sheriff. Both defendants, appearing specially, by the same counsel, filed motions to dismiss, which the court sustained. Respondent’s brief summarizes the grounds of the motions as follows: “(1) Lack of in rem jurisdiction as the present Relator had previously caused exactly the same property purported to be attached herein to become subject to the process of the District Court for the Western District of Missouri; (2) a lack of in personam jurisdiction because of invalid service; (3) lack of venue; (4) a multiplicity of suits between the same parties concerning the same subject matter; (5) failure to provide security for costs; (6) absence of the real party in interest; (7) failure to join other indispensable parties; (8) forum non conveniens; and (9) failure to state a claim on which relief could be granted.”

Respondent’s first contention is that whether the dismissal was right or wrong relator’s only remedy is by appeal. However, there is no final appealable judgment in this case because the order of dismissal entered by the court on March 17, 1965, was by order made the next day, March 18, 1965, stayed until April 2, 1965, to allow relator time to apply to an appellate court for an appropriate writ. Thereafter, on April 1, 1965, when relator’s petition for mandamus had been filed in this court, the stay of the dismissal order of March 17, 1965, was “extended until the Supreme Court of Missouri rules on said petition for a writ of mandamus.” All this is admitted in respondent’s return and thus it is clear that the order of dismissal has not been entered as a final judgment but only amounts to an indication of the ruling and judgment respondent has decided to enter. To be final a judgment must operate in praesenti. Thompson v. Hodge, Mo.App., 348 S.W.2d 11, 14; Stone v. Boston, Mo.App., 218 S.W.2d 783, 787; see also 30A Am.Jur. 241, Judgments, Sec. 122; 49 C.J.S. Judgments § 11, p. 35; Barlow v. Scott, Mo.Sup., 85 S.W.2d 504, 519. As stated, 49 C.J.S. 35: “[A]n interlocutory judgment is one which reserves or leaves some further question or direction for future determination.” Therefore, we must hold the judgment of dismissal in this case to be interlocutory and not a final judgment; and that relator does not have a right of appeal at this time. In that situation, we consider the only matter before us is the question of jurisdiction, which is the principal issue briefed and the one to which the writ of mandamus is directed.

Thus the next question is whether mandamus is available as a remedy under the circumstances of this case. We have held mandamus is an appropriate remedy when the court dismisses a case on the ground that it does not have jurisdiction as a matter of law and not depending upon the determination of any facts. State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. Foraker v. Hoffman, 309 Mo. 625, 274 S.W. 362. In the Fielder case, as here, jurisdiction of a foreign corporation was obtained by garnishment of sums due it by corporations doing business in this state. It was contended that the situs of the indebtedness was in the domicile state of the foreign corporation and that the attachments of the funds of the foreign corporation (a railroad not operating in Missouri) “would violate the commerce clause of the United States Constitution by imposing an unreasonable burden on interstate commerce.” We overruled these contentions saying: “Let it be borne in mind the creditor must be a non-resident of this state or attachment will not lie. Both garnishees are in this state subject to process. The indebtedness under our decisions was here subject to attachment and garnishment, and was conceded both as to liability and amount.” We find that to be the situation in this case and hold mandamus to be a proper remedy to determine respondent’s claim of lack of jurisdiction.

This claim is that garnishment herein does not give the court jurisdiction because the property (amounts due Lesser) “has been at the instance of this same plaintiff (relator) been brought into the custody and control of the U. S. District Court for the Western District of Missouri prior to the institution of this proceeding by subsisting order of such court.” Respondent cites 14 Am.Jur. 446, Courts, Sec. 251, that “property in the possession of one court is not liable to seizure on process from another court”; and that “where property has been seized under process from a Federal court and is in the custody of the marshal, the right to hold it is a question for the determination of the Federal court under the process of which it was seized, and possession cannot be interfered with by a state court.” However, in this same section it is stated: “Where one of the courts has thus secured possession or dominion of specific property, the suit in the co-ordinate jurisdiction to affect the same property should be stayed until the proceedings in the court which first obtained jurisdiction are concluded or until ample time for their termination has elapsed.” In 1 C.J.S. Actions § 133, p. 1411, it is stated: “Where, however, the action is in rem or quasi in rem, that court, whether state or federal, which first takes possession or control, actual or potential, of the res, will exercise its power to completion and the other court should stay proceedings before it pending the determination in the other court.”

The pendency of an action (either personal or in rem) in either a state or a federal court does not entitle the defendant to abatement of a like action in the other; although in actions in rem “the court first acquiring jurisdiction of the res retains it until the authority of the court is exhausted or the action dismissed.” 1 Am.Jur.2d 58, Abatement, Survival and Revival, Sec. 18. “[W]here an action, involving the custody, possession, or title of specific property, is pending in a state court, without the custody or control of the property being taken, such action cannot, because of the difference of jurisdiction, be pleaded in abatement of a subsequent similar action in a federal court, and vice versa, the proper practice in such cases being merely to stay proceedings in the subsequent action until determination or disposition of the first action (Actions § 133).” 1 C.J.S. Abatement and Revival § 67, p. 104. “In the case of a prior garnishment of the same claim, it seems clear that the court which first acquires jurisdiction has the power to determine the rights thereto as between the parties. The practice employed in some cases is to suspend the second garnishment proceedings until the liability of the garnishee in the prior proceedings is finally determined or until it is determined whether the funds are exhausted. It is said that the fact that prior garnishment proceedings are pending against the garnishee is not ground for discharging him in the subsequent proceedings, since he may not eventually be charged in the prior proceedings to the full extent of his indebtedness to the defendant or may not be charged at all.” 6 Am.Jur.2d 819, Attachment and Garnishment, Sec. 369. Furthermore, it appears there are additional garnishees in this case and it seems likely that there are amounts garnisheed even from Emerson that were not under garnishment in the federal court case now on appeal.

On this subject of jurisdiction, the United States Supreme Court said in Penn General Casualty Co. v. Commonwealth of Pennsylvania ex rel. Schnader, Attorney General, 294 U.S. 189, 55 S.Ct. 386, 390, 79 L.Ed. 850: “While it is often said that, of two courts having concurrent jurisdiction in rem, one first taking possession acquires exclusive jurisdiction, see Peck v. Jennes, [Jenness], supra, pages [612] 624, 625 of 7 How., 12 L.Ed. 841; Wabash R. Co. v. Adelbert College, supra, [38] page 54 of 208 U.S., 28 S.Ct. 182 [52 L.Ed. 379]; Harkin v. Brundage, supra [36], page 43 of 276 U.S., 48 S.Ct. 268 [72 L.Ed. 457], it is exclusive only so far as its exercise is necessary for the appropriate control and disposition of the property. The jurisdiction does not extend beyond the purpose for which it is allowed, to enable the court to exercise it appropriately and to avoid unseemly conflicts. See Leadville Coal Co. v. McCreery, supra [475], page 477 of 141 U.S., 12 S.Ct. 28 [35 L.Ed. 824]. The other court does not thereby lose its power to make orders which do not conflict with the authority of the court having jurisdiction over the control and disposition of the property. Yonley v. Lavender, 21 Wall. 276, 22 L.Ed. 536; Heidritter v. Elizabeth Oil-Cloth Co., 112 U.S. 294, 304, 5 S.Ct. 135, 28 L.Ed. 729; Byers v. McAuley, 149 U.S. 608, 13 S.Ct. 906, 37 L.Ed. 867.” See also State ex rel. Koeln v. Motlow, 336 Mo. 50, 76 S.W.2d 421, affirmed 295 U.S. 97, 55 S.Ct. 661, 79 L.Ed. 1327, in which the United States Supreme Court held there was no merit “in the contention that the state court was without jurisdiction to enforce the liens for taxes because the property was in custodia legis” under a federal court judgment of forfeiture when state court proceedings where begun, the property later being released by the federal court. Suspension as to the garnishment proceedings herein involved certainly would be proper since the federal court case in which prior garnishments were made was (as respondent’s suggestions state and exhibits filed show) dismissed and the attachments dissolved by the judgment of the United States District Court for the Western District of Missouri, although appeal therefrom is pending in the Eighth Circuit Court of Appeals.

Apparently the court’s view was that it did not have jurisdiction because of the prior attachment and garnishment in the federal court case still pending on appeal. As noted that is the argument made in the briefs filed for relator and we have held this does not deprive the court ci ju... diction in this case. Nevertheless, respondent argues other grounds of his motion for dismissal as reasons for holding proper the order of dismissal, or at least for ruling relator’s only remedy is by appeal. However, since we have held there is no final appealable judgment, it is unnecessary to consider now whether other grounds asserted in the motion to dismiss would be sufficient to authorize a final judgment of dismissal. It would be pertinent to say that jurisdiction does not depend on personal service but on the garnishment, which would be released “upon the defendant entering his appearance and filing his answer to the merits of the case” unless the plaintiff within ten days files bond. (Sec. 521.-010(1), Civil Rule 85.01(1); Sec. 521.050, Civil Rule 85.04; statutory references are to RSMo and V.A.M.S.)

Stay of proceedings is not a matter of right but involves the exercise of some discretion by the trial court as to granting and as to duration; but it would be an abuse of discretion to refuse a stay properly required by the circumstances. 1 Am.Jur.2d 624, Actions, Sec. 97; 1 C.J.S. Actions § 133, pp. 1410-1412; Ryan v. Campbell Sixty-Six Express, Inc., 365 Mo. 127, 276 S.W.2d 128; Rohrback v. Mutual Life Ins. Co. of New York, 8 Cir., 82 F.2d 291, 293. Therefore, we cannot order the trial court to grant a stay but only can hold that it has jurisdiction to do so and direct it to determine this issue and enter an order in accordance with its decision. Thereafter the court may proceed to determine the other grounds stated in the motion.

It is ordered that our peremptory writ of mandamus be issued for that purpose.

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Betty BAKER, Respondent, v. Charles F. KIRBY, Jr., Appellant.
    No. 51031.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.
    Motion to Transfer to Court En Bane or for Rehearing Denied Dee. 13, 1965.

      Bollow, Crist & Bollow, Shelbina, for respondent.
    Carstarphen, Harvey & Wasinger, Hannibal, for appellant.
   BARRETT, Commissioner.

Betty Baker claimed $25,000 damages for personal injuries sustained in a collision of motor vehicles. By a ten-to-two vote a jury returned a verdict in favor of the defendant, Charles F. Kirby, Jr. The trial court sustained plaintiff’s motion for a new trial “for the reason that the Court erred in giving Instruction No. 6, because there was no substantiated evidence to support the submission of same” and the defendant has appealed. As appellant the defendant contends that his motions for judgment should have been sustained because the plaintiff was guilty of contributory negligence as a matter of law and in any event that Instruction 6 was not erroneous because it was supported, he says “proved by the evidence of plaintiff and defendant.”

The collision of automobiles occurred at 11:40 a. m., on August 28, 1961 on a curve, said to be about 250 feet in distance, on a graveled county road near Kendall in Shelby County. On the outside of the curve there was a ridge or windrow of gravel 16 to 18 inches high and about 12 inches wide, Betty’s husband said that, most unusual, the road had been graded that morning. The parties and witnesses all lived in the neighborhood and were most familiar with the road and the curve. The plaintiff, Betty Baker, was driving a 1958 Edsel automobile. She was on her way to the home of her brother-in-law traveling west around the curve at a speed of 15, 20 or 25 miles an hour. The defendant, Charles F. Kirby, Jr., was driving a 1958 Chevrolet-automobile, traveling south and east around the curve at a speed of 15 to 20 miles an hour on his way from home to the store at Kendall. There was an undergrowth of brush on his side of the curved road that “prevented me from seeing her” until he was but “four or five car lengths away from her” (and he defined a car length as “approximately” eighteen feet). Both parties claimed and testified that the other one drove his or her automobile over the center of the road. Kirby said that as he was “rounding the curve east of Shelby Schweiter’s house there was a car coming on my side of the road and we collided.” Betty said that she was driving her Edsel on “my side on the north side of the road” and was in the process of rounding the curve when she saw Kirby’s car coming over the hill, “it appeared to be on his side of the road” and “I wasn’t alarmed.” Consequently she did not turn either to the right or the left. “Q. When were you apprised of the fact that there might be a collision ? A. I heard gravel and I saw his car sliding toward me. Q. Alright. And did it slide across the centerline? A. Yes, sir. Q. And how far would you say across? A. Well, I don’t know. Maybe a foot and a half or two feet, something like that.” Betty said that it was too late to “take any evading action” after she heard the gravel and after he crossed the centerline and that the collision, a sideswiping “behind the back door” occurred after she was “three-quarters of the way around the curve or so because I hadn’t straightened up completely.” The sheriff of Shelby County had notes relating to statements of both drivers. As to Betty “She looked up and seen car coming and didn’t believe it would hit except for car number 1 (Kirby) applying brakes.” As to Kirby, he testified, “The statement of the driver of car number 1 which was the Kirby car ‘Driver states both cars in the middle of the road.’ ”

Thus plainly the really controverted and essential issue was which of the parties operated his or her motor vehicle over the unmarked center line of the graveled and freshly graded roadway. The plaintiff, Betty Baker, submitted this theory of her case and the defendant Kirby’s liability by Instruction 2 in this language: “And if you further find from the evidence that the Defendant, Charles 5\ Kirby, Jr., failed to drive on the right or south and west one-half of said highway, but instead drove onto the other, or north and east, one-half of said highway at a time when said Edsel automobile was approaching in the said north and east one-half of said highway so closely as to constitute an immediate hazard of collision and came into collision with said Chevrolet.” The appellant met the challenge and issue presented by that instruction with his Instruction 5, the substance of which is “yet if you further find and believe from the evidence, that the plaintiff Betty Baker was also negligent in the operation of her motor vehicle northwardly and westwardly in the north bound lane of the highway and at the curve described in the evidence, in that said Betty Baker negligently and carelessly failed to have her motor vehicle under proper control to keep the same to the right side of the highway under the conditions shown in the evidence, that is, to keep her motor vehicle in the north bound lane of the highway, if so, and thus brought about a collision with the Kirby automobile on said curve.” Thus whether by way of a converse instruction or as a contributory negligence instruction the plain issue of negligence or contributory negligence in operating a motor vehicle over the center line or wrong traffic lane of the highway was submitted to the jury. Cluck v. Snodgrass, Mo.App., 381 S.W.2d 544.

This is not to say that either of the parties may not have been negligent or contributorily negligent in some other or further respect, but recurring again to the noted circumstances it is evident that the plaintiff Betty Baker was not guilty of contributory negligence as a matter of law as urged by the appellant in “(a) not looking up as she drove, (b) following the plain and visible gravel row too closely to her left, (c) following in the three tracks that cut the blinded corner and (d) waiting until she heard gravel to look up.” As indicated, it may have been a jury question as to some of these matters but there was no contributory negligence as a matter of law. The circumstances of this case are totally unlike those cited and relied on by the appellant, multiple vehicular collisions at street intersections, wagons and pedestrians at railroad crossings or climbing over a train blocking a crossing. Adkins v. Boss, Mo., 290 S.W.2d 139; Fletcher v. Atlantic & Pacific R. Co., 64 Mo. 484; Sissel v. St. L. S. F. R. Co., 214 Mo. 515, 113 S.W. 1104; Hudson v. Wabash Western R. Co., 101 Mo. 13, 14 S.W. 15. The case does not involve any problem with which this appeal is concerned but the case similar on its facts is Byrd v. McGinnis, Mo., 299 S.W.2d 455.

In addition to these issues the court gave Instruction 6 which the appellant urges is a correct and supported instruction on Betty’s contributory negligence in another respect “in that said Betty Baker negligently and carelessly failed to keep a careful and vigilant lookout in the operation of her motor vehicle on the highway.” The appellant points to two pieces of evidence, his statement that Betty was four or five car lengths away (80 feet at most) when he saw her and her testimony that she was “apprised” of the possibility of a collision when “I heard gravel and I saw this car sliding toward me” and contends that this testimony supports the instruction. He urges that while “looking is usually not susceptible of ready affirmative proof but in a proper case it may be inferred from the attending surroundings and circumstances” (See v. Kelly, Mo.App., 363 S.W.2d 213, 216) and that the noted circumstances meet this test. Factually, the difficulty with the contention is that the plaintiff Betty testified that she was looking and saw Kirby all the time — even as he came over the hill — but that she was not alarmed and there was no danger until she heard gravel and “saw his automobile sliding toward me,” a foot and a half or two feet over the center line of the highway, too late for her to do anything by way of avoiding a collision. And plainly from his own account of his inability to see Betty’s automobile until the vehicles were but 75 to 80 feet apart traveling at speeds of 20 to 25 miles an hour, there is no circumstance from which it is either a fair, reasonable or permissible inference, as he hypothesized in Instruction 6 that she “negligently and carelessly failed to keep a careful and vigilant lookout.” Thus again the case and circumstances are unlike those relied on by the appellant, rear-end collisions, attempting to pass left turning vehicles and inter-sectional collisions. Goldman v. Ridenour, Mo., 383 S.W.2d 539; Highfill v. Brown, Mo., 340 S.W.2d 656; Dean v. Jackson, Mo.App., 370 S.W.2d 716; Myers v. Searcy, Mo., 356 S.W.2d 59. On the contrary the case is governed by and falls within Zalle v. Underwood, Mo., 372 S.W.2d 98, 102. “It was reversible error to give Instruction No. 3 for the reason that there is not substantial evidence in this record to support a reasonable finding that the party charged with contributory negligence ‘had the means and ability to have so acted that a collision would have been avoided.’ * * * It was not shown that Mr. Underwood saw, or could have seen, the gap or the Zalle automobile at any given time after which, by the application of the brakes, he could have taken effective precautionary action. It was not shown that he did not see the Zalle automobile at the earliest possible moment.” The Zalle case follows O’Neill v. Claypool, Mo., 341 S.W.2d 129, 135, “The only evidence on that question (failure to maintain a lookout) is that she looked both ways, saw nothing, entered the intersection, and then saw the Pontiac after she had turned into the intersection” and it was then too late “to take effective precautionary action.” A case more nearly in point on its facts is Chandler v. Mueller, Mo., 377 S.W.2d 288, in which the defendant appellant “had no direct proof of Chandler’s failure to maintain a lookout” and in which it was held after setting forth the relevant testimony that it was “not a fair, reasonable or permissible inference from this testimony that plaintiff Chandler at any time, certainly not after approaching the parked automobile and the point of collision, failed to keep or maintain a proper lookout and as of course it was prejudicial error to give an instruction submitting that hypothesis as a ground of contributory negligence thus defeating the plaintiff’s right of recovery.”

For the reasons indicated the judgment is affirmed and the cause remanded.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    Wallace GLICK, by his Guardian and Curator, Bessie McGinty, and Bessie McGinty, individually, Appellants, v. BALLENTINE PRODUCE INCORPORATED, Charles James Harris, C. J. Harris, Alice J. Reed, Administratrix of the Estate of William Claire Reed, Deceased, Tom Joseph Jones, and Miller Chevrolet Company, Respondents.
    No. 51298.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 13, 1965.

      Elwyn L. Cady, Jr., Kansas City, for appellants.
    John R. Caslavka, Kansas City, for respondents, Charles James Harris and C. J. Harris, Shughart, Thomson & Kilroy, Kansas City, of counsel.
    E. E. Thompson, Kansas City, for respondent Alice J. Reed, Admx. of Estate of William Claire Reed, Deed., Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    Morris H. Kross, Rogers, Field & Gentry, Kansas City, for respondent, Ballentine Produce Inc.
   EAGER, Presiding Judge.

In this rather unusual action Wallace Glick, a minor, sues for the death of his father, Marvin Glick, and Bessie McGinty, his mother, sues for the deaths of two other minor sons, Philip Glick and Robert Glick. We shall disregard entirely one unrelated claim against Allstate Insurance Company stated in Count II of the amended petition; that is not shown to have been disposed of, but the judgment was rendered without a jury and it was expressly made a final judgment for the purpose of appeal. See Rule 82.06, V.A.M.R. In Count I the minor plaintiff and his mother seek recovery, respectively, for the deaths as at common law, the minor praying a recovery of $162,000 damages for his pecuniary loss, and his mother asking $100,-000 for the death of each of her two deceased minor sons. Bessie McGinty, as guardian and curator, was substituted in this count for the next friend who initially sued for Wallace Glick. In Count III Wallace Glick, adopting the facts stated in Count I (to be related), seeks recovery under § 537.080 of our death statute for the death of his father (the widow obviously not having sued within six months) but prays a recovery of $162,000 as compensatory damages and $100,000 as exemplary damages. In Count IV Bessie McGinty, likewise, seeks recovery under that statute for the deaths of each of her deceased minor sons, but prays a recovery of $100,000 plus $100,000 as “exemplary” damages for the death of each son. In each of the last two counts it is alleged that the negligence of the defendants was of an “aggravated nature amounting to wanton disregard for life or limb.”

The appeal has been dismissed by stipulation as to two of the original defendants, Joseph Jones and Miller Chevrolet Company. The claims of Bessie McGinty for the death of her sons, common law and statutory, include Ballentine Produce Incorporated, as a defendant; those of Wallace Glick do not All such claims, however, include defendants Charles James Harris, C. J. Harris, and Alice J. Reed as Admin-istratrix of the estate of William Claire Reed.

The facts alleged in the petition are, as briefly as they may be recited: that Marvin Glick and his three sons were driving south on U. S. 71 By-Pass on October 14, 1962, at a point about 1.3 miles south pf the Clay-Jackson County line; that their car was struck by a truck of Ballentine Produce Incorporated, driven by one William Riley Mason, and that sundry specified negligence of that driver (primary and humanitarian) “contributed” to the cause of the collision; that as a direct result of this collision the father and two of the sons (now deceased) were thrown to the pavement of the highway being “mortally wounded by impact to each and every tissue and cell of their bodies”; that “following in time by a few minutes” the defendant Charles James Harris (as agent for C. J. Harris), defendant Tom Joseph Jones (as agent of Miller Chevrolet Company), and (original) defendant William Claire Reed, all traveling north, collided with the persons of the three Glicks “as they lay on the roadway,” and that the negligence of each such driver, primary and humanitarian, stated in sundry specified particulars, “contributed to the cause of said collisions” and that as a direct result of the collisions by such subsequent (following) drivers with the three persons “each and every tissue and cell of the bodies of said persons sustained injury which contributed to their respective deaths * * *.” It was also alleged that defendant Reed was a resident of Clay County; he subsequently died and his Administratrix was substituted. Ballentine is an Arkansas corporation; the Harrises were residents of Kansas. Reed was served personally, Ballentine and the Harrises under the “Long-Arm” statutes (§§ 506.200-506.320, RSMo 1959, V.A.M.S.).

All defendants attacked the petition by motions: Ballentine by motions to dismiss for lack of jurisdiction and improper venue, and because the amended petition failed to state a claim on which relief could be granted to either plaintiff with respect to any of the claims; the Harrises by motions to quash and to dismiss because of lack of jurisdiction and improper venue; defendant Reed, Administratrix, by motion to dismiss for failure to state a claim against her in any count upon which relief could be granted. Jones and Miller Chevrolet also filed motions which need not be specifically described. The grounds of the motions attacking jurisdiction and venue were that no valid, joint cause of action was stated against Reed, the only resident defendant, that the claim against him (and his Admin-istratrix) was colorable, and that he was fraudulently joined for the purpose of establishing jurisdiction and venue under § 508.010(3). On October 12, 1964, the court sustained the motions to dismiss of all such defendants and entered an order dismissing the first amended petition as to each such defendant; it was also provided in the order that it should be deemed a final judgment as to such parties for the purpose of appeal. The order did not state the ground or grounds upon which the motions were sustained, — i. e., whether on the merits for failure to state a cause of action against each defendant, or for lack of jurisdiction and improper venue. Normally, we would thus assume that the order was on the merits, but since the Harrises only raised the questions of jurisdiction and venue the contrary seems to be indicated here.

We first inquire therefore whether, on this record, the court had jurisdiction of the persons of the defendants and if the venue was proper under § 508.010(3). In order to establish the venue the plaintiff must, of course, state a cause of action against the resident defendant, but nevertheless if it appears to be clear from the records, pleadings, and facts adduced that the resident defendant cannot be held liable on any reasonable ground or theory, and that plaintiff must be presumed to have known this, the joinder cannot be justified and the cause should be dismissed. Diehr v. Carey, 238 Mo.App. 889, 191 S.W.2d 296; Lichterman v. Crockett, Mo., 331 S.W.2d 607. On the other hand, if it appears that plaintiff had reason honestly to believe on the facts that he had a joint cause of action against the resident defendant, along with the others, and if he has stated such a cause of action, the case should not be dismissed as based upon a fraudulent joinder. Such motions are presented (or should be) under Rule 55.31; the movant carries the burden of persuasion and, if proof be necessary, the burden of proof. The cases last cited recognize that a plaintiff may not succeed merely by stating a paper case against the resident defendant and that the court may and should, if need be, look into the facts. If this can be accomplished by affidavits, well and good; if not, the court may hear evidence.

The real gist of the contention concerning jurisdiction and venue boils down to the effect of the allegation of the amended petition, stated or adopted in all three counts, that after the first collision with Ballentine the father and the two sons, thrown to the pavement by that impact, were “mortally wounded.” This, defendants argue, means that they were dead and that Reed, the resident defendant (and presumably the others), could not have been liable even for contributing to cause any of the deaths; also that plaintiffs are bound by the allegations of their petition. Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644; M.F.A. Mutual Ins. Co. v. Hill, Mo., 320 S.W.2d 559. Counsel also say that the allegation just mentioned is so inconsistent with the later allegations regarding contribution to the deaths, that it nullifies the later allegations. While, from the standpoint of the plaintiff, the use of the term “mortally wounded” would seem to have been very inept, we do not construe it as the equivalent of “dead.” We do construe it to mean that these persons had been injured to such an extent that they would eventually die from the injuries; but, even so, if life still existed there remained a right not to be injured further (with an immediate termination of life) by others. Herke v. St. Louis & S. F. R. Co., 141 Mo.App. 613, 125 S.W. 822. In this we do not infer the actual existence of any negligence on the part of the subsequent drivers; but such negligence is alleged. The law recognizes that where “‘the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, he may recover damages of either or both and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury.’ 1 Thompson on Negligence, § 75.” Berryman v. People’s Motor-bus Co. of St. Louis, 228 Mo.App. 1032, 54 S.W.2d 747, loc. cit. 749. See also: Willey v. Fyrogas Co., 363 Mo. 406, 251 S.W.2d 635; Layton v. Palmer, Mo., 309 S.W.2d 561, 66 A.L.R.2d 1242; Domitz v. Springfield Bottlers, 359 Mo. 412, 221 S.W.2d 831; Brantley v. Couch, Mo.App., 383 S.W.2d 307. As stated in the last case at loc. cit. 310: “ ‘ * * * According to the great weight of authority, where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other tort-feasor, and the injured person may at his option or election institute suit for the resulting damages against any one or more of such tort-feasors separately, or against any number or all of them jointly. The injured person is not compelled to elect between the tort-feasors in invoking a remedy to obtain compensation. * * * ’ ” In Willey, supra, it is pointed out that liability is not defeated by the fact that the negligence of one defendant may precede or follow that of another in point of time. The facts of Berryman, supra, are particularly analogous here. See, also, generally, Thompson v. Louisville & N. R. Co., 91 Ala. 496, 8 So. 406; Micelli v. Hirsch, Ohio, 83 N.E.2d 240. There is also a close analogy between this situation and certain of the accident insurance cases which hold that if an accident is the immediate cause of death there is liability, and that it is immaterial what diseases or physical conditions might have been present, even if they would eventually have caused death acting alone. Roberts v. Woodmen Accident Co., 233 Mo.App. 1058, 129 S.W.2d 1053; Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459, 97 Am.St.Rep. 560; Mutual Benefit Health & Accident Ass’n v. Francis, CA 8, 148 F.2d 590. If that principle is to be applied to insurance companies, we see no reason why it should not also apply generally. We note here that the brief of appellants has not been too helpful to us on this point.

Thus, the amended petition on its face does not fail to state a joint cause of action against Reed’s Administratrix. So far as the facts are concerned, counsel for Jones &nd Miller Chevrolet attached to their motions his affidavit verifying all the allegations upon information and belief. In so far as these related to our present inquiry, they were (ignoring obvious conclusions) that plaintiffs had no “proof, witnesses or evidence proving or tending to prove” that the acts of Reed caused or contributed to cause any of the deaths. Plaintiffs’ counsel subsequently filed his affidavit, stating that he had personally undertaken the investigation and that in his opinion there was admissible evidence tending to prove that the negligence of Reed and of Jones and Miller Chevrolet contributed to the deaths; also, that plaintiffs had a photograph, taken by the first law enforcement officer at the fatal scene, “showing the bloody Reed car very.*, shortly after it had been lifted by wrecker from the body of one of the decedents.” These affidavits are somewhat sketchy and conclusionary; however, on the present record we hold that defendants have not shown that the joinder was pretensive or fraudulent and that plaintiffs did not in good faith join Reed. On this record the jurisdictional motions should have been overruled.

Since the case is thus to be remanded, we proceed to the other points. Plaintiffs have attempted to allege common law actions for the deaths in Count I of the amended petition. The defendants, naturally, assert that there is no such existing right and we agree. Plaintiffs’ counsel attacks vigorously the validity of the English nisi prius decision in Baker v. Bolton (1808), 1 Camp. 493, 170 English Reports 1033. In that case the court said in part (the action . being one for the death of plaintiff’s wife) : “ * * * the jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife’s society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution. In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff’s wife, must stop with the period of her existence.” Counsel now insists that this was dicta; however, the courts of England admittedly followed the decision, and Lord Campbell’s Act was enacted in 1846, with a preamble which recited that there was then no cause of action at law for death by wrongful act. That act has generally been accepted as a parliamentary recognition of the pre-existing rule, and it has also served as the model for all subsequent statutory rights of recovery for death by wrongful act. We do not intend to be led into the fruitless task of attempting to upset all the law on this subject, English and American, since 1808. Counsel cite textwriters, Bar Journal articles and even a speech by a judge to the general effect that the rule of Baker v. Bolton was “barbarous,” that no satisfactory reasons were given or authority cited, and that the whole rule is simply wrong. Origin of Rule in Baker v. Bolton, 32 L.Q.Rev. 431, by W. S. Holdsworth; 48 ABA Journal 877, Arthur John Keeffe; Tiffany, Death by Wrongful Act, 2nd Ed., Ch. 1; Burdick, Law of Torts, 4th Ed., 290 et seq., speech of Judge Frantz of Colorado on May 8, 1963. The only Missouri case cited, James v. Christy (1853), 18 Mo. 162, has been discussed and distinguished in Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, loc. cit. 922.

To the effect that there is no common law right of action in Missouri for wrongful death see the following: Barker v. Hannibal & St. Joseph R. Co., 91 Mo. 86, 14 S.W. 280; Allen v. Dunham, 188 Mo.App. 193, 175 S.W. 135; Clark v. Kansas City, St. Louis & C. R. Co., 219 Mo. 524, 118 S.W. 40; Jordan v. St. Joseph Ry., Light, Heat & Power Co., 335 Mo. 319, 73 S.W.2d 205; Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920; Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504; Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17; Nelms v. Bright, Mo., 299 S.W.2d 483; Frazee v. Partney, Mo., 314 S.W.2d 915. Other cases might also be cited. We decline to overturn this Missouri law of well over a century’s duration on the strength of scattered voices of protest and criticism-. Even if there had been a common law right of action for death in Missouri prior to our first statutory enactment, the statute itself, when enacted, precluded that right and encompassed the whole field. There is no common law right of action for wrongful death in Missouri. Count I of the amended petition stated no claim on which relief could be granted to either plaintiff.

The next point is whether Counts III and IV stated causes of action under the death statute. The position of plaintiff’s counsel here brings to mind the statement of the court in the companion case of Glick v. Ballentine Produce, CA 8, 343 F.2d 839, 844, that: “* * * they [plaintiffs’counsel] obstinately refused the opportunity to amend their complaint to state a cause of action. Perhaps they are more desirous of attemping to establish a new principle.” We do not have an affirmative record here of leave to amend, but neither do we have an indication of any attempt or request to amend in the particulars attacked. Counsel apparently seeks to state claims under § 537.080, which gives the right to sue for a wrongful death, but ignores the limitation upon the amount of recovery fixed by § 537.090. He apparently recognizes the binding effect of § 537.070, which describes and limits the persons who may sue and the limitations in time, both under that (penalty) section and under § 537.080. Counsel’s position seems to be that the limitation in § 537.090 upon the amount of recovery is unconstitutional. He cites again and quotes a speech of Judge Frantz of the Supreme Court of Colorado to the effect that under the Bill of Rights the courts shall be open to all people, a remedy afforded for every injury, and that the courts must provide a remedy to enforce constitutional mandates where none already exists. In that speech it was also supposedly stated (which, of course, merely becomes here an argument of counsel) that “there is no due process of law in a wrongful death statute which provides inadequate damages * * Counsel cite: In re French, 315 Mo. 75, 285 S.W. 513, 47 A.L.R. 688, and Neely v. St. Francis Hospital & School of Nursing, Inc., 192 Kan. 716, 391 P.2d 155. The first case is so wholly different on its facts that it does not merit discussion. In the second, the Kansas Court held that a statute exempting nonprofit hospital coporations from attachment and garnishment, except on obligations to the state or its subdivisions or on contract claims, contravened the Bill of Rights, in that it denied a remedy to some creditors and not others. The court had previously renounced its doctrine of charitable immunity and the new legislation was apparently intended as an answer to that ruling. We do not consider that opinion as persuasive here.

Counsel deals in the utmost generality with this point, relying on the principle of the right to a remedy for every injury (Art. I, § 14, Mo.Const.), due process (§ 10) and the equality of rights under the law (§ 2). We find nothing in plaintiffs’ citations or arguments which indicate any constitutional infirmity in a limitation on the amount of recovery in a death action. The legislature created the right of action where none existed before, and it may condition the right as it sees fit. It is worthy of note that we have not been cited to a single case, nor have we found any, where this limitation on the recovery has ever been questioned in Missouri as unconstitutional. We note that § 537.070, sometimes called the “penalty” section, also carries its own limitation. The amounts so provided in the two sections have been increased from time to time since our first enactment in 1855 (R.S.Mo.1855, Vol. 1, pp. 647-649). The legislature has thus indicated a specific intent that the pecuniary limitations included should be an integral part of the act, and it has never evidenced any intent that such limitations were separable and could be held invalid without destroying the entire act. Our Workmen’s Compensation Act has been held constitutional against sundry attacks; it has been held not to constitute a special law or an arbitrary classification, not a denial of equal protection, and not violative of due process. Waterman v. Chicago Bridge & Iron Works, 328 Mo. 688, 41 S.W.2d 575; DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640; Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620, 104 A.L.R. 339; and this, despite the fact that it constitutes a complete substitution for the common law remedies (with specific exceptions). Sheets v. Hill Bros. Distributors, Inc., Mo., 379 S.W.2d 514. Counsel sought to distinguish that situation by the argument that there the legislature gave something to claimants. True, it gave to some a limited recovery for injury by accident occurring without negligence; but, at the same time, it limited the recovery of all those employees injured by negligence who would otherwise have had a common law right of action against their employers for the wrong. We see no difference in principle, and the limitations of our act do not infringe any constitutional rights. These plaintiffs had a valid, enforceable remedy under the act, like all other similar claimants; they may certainly not seek to use parts of the act and ignore a vital, integral and inseparable limitation. We have noted, more specifically, that in Richards v. United States, CA 10, 285 F.2d 521, at p. 525, the court said: “A right of action for wrongful death exists by statute in Missouri. Nelms v. Bright, Mo., 299 S.W.2d 483. * * * And at the time of such airplane crash, it was further provided by statute in Missouri that damages not to exceed $15,000 might be awarded for wrongful death. R.S. Mo.1939, § 3654. No limitation in respect to amount of damages is provided by statute in Oklahoma. But in creating the statutory right of action for wrongful death, it was competent for Missouri to fix the maximum amount of damages recoverable in an action under such statute.” This was affirmed at 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492.

Finding thus that the pecuniary limitations are constitutional, we must still determine whether plaintiffs have stated causes of action in Counts III and IV. The defendants insist that by refusing to abide by the damage limitations of the act and by claiming exemplary damages as separate items, they have failed to bring themselves within the act and do not state a cause of action in either count. Various Missouri authorities hold that in order to recover under the act one must bring himself strictly within its provisions. Nelms v. Bright, Mo., 299 S.W.2d 483; Barker v. Hannibal & St. Joseph R. Co., 91 Mo. 86, 14 S.W. 280; Clark v. Kansas City, St. Louis & C. R. Co., 219 Mo. 524, 118 S.W. 40; Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504; Martin v. Southwestern Bell Telephone Co., 344 Mo. 83, 125 S.W.2d 19; Fair v. Agur, 345 Mo. 394, 133 S.W.2d 402. Generally speaking, these cases deal with questions concerning the presence or absence of a necessary party or parties and the necessary allegations concerning the existence or nonexistence of certain relatives, as well as the time of filing suit. Such things are vital, not only to a recovery but often to the very stating of a cause of action. We have found only one case where a plaintiff has been so bold as to sue under the statute for excessive amounts. Perkins v. Wilcox, 294 Mo. 700, 242 S.W. 974. There a widow pleaded, and the trial court submitted, a claim for $10,000 actual damages and $15,000 punitive damages, for the death of her husband. The judgment recovered was for $10,000 actual and $10,000 punitive damages. This court reversed on the merits, holding that there was insufficient evidence of causation, but we note that the court did rule the case as one constituting an action under the statute. It said in part, loe. cit. 976: “This case seems to bave been tried by the court and counsel for respondent in utter disregard of either the statute or common law. There could be no recovery in a death case under the latter, for the obvious reason that a personal right of action dies with the person. Considered as a suit under the statute, the maximum amount of recovery in a death case is $10,000, and yet the plaintiff sued for $25,000, and the court actually permitted a judgment to be entered for $10,000 as compensatory damages, and a like amount for exemplary damages. The death of plaintiff’s husband occurred on April 8, 1919, and we will dispose of the case as a statutory action, under sections 5426, 5427, R.S.1909 (now sections 4218 and 4219, R. S.).” We hold that the mere presence of a statement of and a prayer for excessive damages does not prevent the petition from stating a claim for relief under the statute, if it is otherwise sufficient. No points are briefed here of insufficiency in parties or time of filing suit. Counsel for plaintiffs would certainly be well advised to amend his petition in the respects indicated, if he is subsequently given the opportunity. Of course, the trial court may always control the extent of recovery at the submission of the case. We are not favorably impressed with the persistency of counsel in thus flouting our statutes and our adjudicated cases.

There is no recovery in a death case for punitive damages, as such. Such a petition may plead, and appropriate instructions may submit, the question of “mitigating or aggravating circumstances,” if the evidence justifies it. Williams v. Excavating & Foundation Co., 230 Mo.App. 973, 93 S.W.2d 123, 127; Hertz v. McDowell, 358 Mo. 383, 214 S.W.2d 546. While added damages because of “aggravating circumstances” may, in a sense, be considered as punitive in nature, they are not to be submitted as such nor are they to be submitted separately, nor is any total verdict and judgment to exceed the statutory limit. Within that total limit the jury may exercise a broad discretion. Hertz, supra; Huffman v. Mercer, Mo., 295 S.W.2d 27. Defendants insist that plaintiffs may not amend so as to state a claim after the passage of the one year period of limitation. Forehand v. Hall, Mo., 355 S.W.2d 940. We have held that the amended petition does state a claim, though very ineptly. And in so holding we may state that we have kept primarily in mind the interests of the plaintiffs themselves, feeling that they should not be penalized by the failure or refusal of their counsel to follow the long established guidelines of the law.

The judgment of dismissal as to defendants Ballentine Produce Incorporated, Charles James Harris, C. J. Harris, and Alice J. Reed, Administratrix of the Estate of William C. Reed, deceased, is reversed. That judgment had no reference to Count II against Allstate Insurance Company, and the present appeal was dismissed as to defendants Jones and Miller Chevrolet Company. The reversal of the judgment leaves pending the motions of defendants Ballentine, Harris and Reed. On the record as it now stands those motions should all be overruled as to Counts III and IV, and the trial court is directed to so order, unless in its discretion it determines to hold a factual hearing before or at trial on the questions raised concerning the alleged fraudulent joinder of the defendant Reed; in that event, an appropriate order may follow the hearing. We have discussed that question sufficiently to state our views rather clearly. Assuming a determination of the foregoing questions, and if the court retains jurisdiction, all motions to dismiss should be sustained as to Count I which properly raise the point that such count does not state a claim on which relief can be granted. If proper application is made for leave to amend Counts III and IV, as it is indicated herein that they should be, such leave should be granted, within reasonable limits.

The judgment is reversed and the cause remanded for further action in accordance with this opinion.

All of the Judges concur.

      . All statutory references will be to that revision, unless otherwise stated.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Don McDodd OLINGER, Appellant.
    No. 51158.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, David Dempsey, Special Asst. Atty. Gen., Clayton, for respondent.
    J. William Blackford, Kansas City, for appellant, Blackford & Wilhelmsen, Kansas City, of counsel.
   STORCKMAN, Judge.

The defendant, Don McDodd Olinger, was charged by information with the offenses of second-degree burglary and stealing. Sections 560.070 and 560.156, RSMo 1959, V.A.M.S. At a hearing out of the presence of a jury, the court found that the defendant had been previously convicted of three felonies as charged in the amended information. Section 556.280. The defendant was found guilty by a jury of the charge of stealing property of the value of more than $50 but was acquitted on the burglary charge. A motion for a new trial was filed, considered by the trial court and overruled. The defendant was sentenced to imprisonment for a term of five years and he has appealed. He was represented at the trial as he is here by counsel of his own choice.

The sufficiency of the evidence to support the conviction is not challenged and a brief statement of the evidence will suffice. On Saturday night, July 28, 1962, Harry Baker, manager of the Great Atlantic and Pacific Tea Company store in Lexington, Missouri, closed the place of business and saw that everything was locked before leaving. The next morning he came to the store at about 9 o’clock and noted that a number of cartons of cigarettes were missing from the place they were kept at a check-out counter near the front of the store. Further investigation disclosed that an opening, about 30 inches by 30 inches, had been made in a wall of the building at a point where there was a lean-to shed on the outside that housed heating and cooling equipment. The manager checked his inventory and ascertained that about 250 cartons of cigarettes having a value between $500 and $600 were missing. The manager called the sheriff and, among other things, told him that the cigarettes could be identified by the name A&P marked on them together with store number 154.

In the course of repairing the wall, a billfold was found under the pile of bricks' and mortar that had been taken from the wall. In the billfold was $14 in cash, a General Mills “work slip”, a driver’s license issued to the defendant Don Olinger and other papers. The defendant lived and worked in Kansas City. He was arrested with the assistance of members of the Kansas City Police Department. Two hundred and thirty-two cartons of the cigarettes bearing the A&P mark and the store number were found in a crawl space under the defendant’s house. These were identified by the manager as the cigarettes taken from the store. The defendant made numerous statements to the sheriff and his deputy after he was arrested and while he was in jail which implicated him in the offenses charged.

The defendant asserts that he was entitled to have his case tried and submitted under the provisions of § 552.030, RSMo 1963, Cum.Supp., V.A.M.S., pertaining to mental disease or defect excluding responsibility for criminal conduct. This section which was enacted by the general assembly as one of several statutes relating to the mental condition of persons accused or convicted of crime became effective on October 13, 1963. Laws of Missouri 1963, pp. 4 and 674.

Section 552.030, insofar as pertinent to our present inquiry, provides as follows:

“1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law.
“2. Evidence of mental disease or defect excluding responsibility shall not be admissible at trial of the defendant unless the defendant at the time of entering his plea to the charge pleads not guilty by reason of mental disease or defect excluding responsibility, or unless within ten days after a plea of not guilty or at such later date as the court may for good cause permit, he files a written notice of his purpose to rely on such defense.”

The offense charged was committed on July 28, 1962, and an information was filed October 15, 1962. On the same day the defendant accompanied by his counsel was arraigned, waived the reading of the information and “enters a plea of Not Guilty to the charge of Burglary and Stealing.” A trial was had and on October 3, 1963, a jury found the defendant guilty of second-degree burglary and stealing. On January 20, 1964, the defendant’s motion for a new trial was sustained on the ground of improper remarks of the prosecuting attorney made during the opening statement.

On April 3, 1964, the defendant filed a written notice of his intention to rely on the defense that at the time of the alleged offense, as a result of mental disease or defect, he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of the law. In his written notice, the defendant also moved that the court order the defendant committed to a state mental institution pursuant to paragraph 1 of § 552.040, RSMo 1963, Cum.Supp., V.A.M.S., covering an acquittal on the ground of mental disease or defect excluding responsibility. On April 13, 1964, the prosecuting attorney filed his reply refusing to accept the defense and requested a mental examination and report pursuant to paragraph 4 of § 552.030. The court appointed Dr. E. C. Kepler of the Division of Mental Diseases of State Hospital No. 1 at Fulton to make the examination. On June 10, 1964, Dr. Kepler filed his report of the psychiatric examination of the defendant which concluded with the finding that the defendant was competent to stand trial and was not suffering from any mental disease or defect. On July 20, 1964, the case was called, both the state and defendant announced ready, and the trial began which resulted in the present conviction.

The defendant did not testify but medical evidence offered in his case tended to show that in November 1962 the defendant became a patient of Dr. Albert Preston, Jr., a doctor of medicine specializing in psychiatry. Based on an electroencephalogram and other examinations, the doctor made a diagnosis of involutional depression or melancholia and testified there were “suggestions of an epileptic equivalent”, and that in such an episode or epileptic fugue a person loses consciousness or his memory is blurred and at the time he cannot control his actions. The defendant was treated and improved under medication. In answer to a question whether the defendant was “suffering from any mental impairment” when “he dug a hole in this wall and took these cigarettes and shoved them up under his house”, Dr. Preston gave an opinion that the defendant’s acts were “incompatible and inconsistent with normal behavior” and the defendant did not have “full possession of his mental faculties” at the time of such conduct. However, the doctor’s testimony was so speculative, vague, and contradictory that it lacked the certainty necessary for probative value with respect to the issue on which it was offered. See Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647 [6, 8], On the whole record, there is no substantial evidence that at the time of the burglary and stealing on July 28, 1962, the defendant was afflicted with a mental disease or defect of such nature that he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of the law. The evidence was insufficient to invoke the provisions of § 552.030, and the court did not err in refusing to submit that defense. State v. Brizendine, Mo., 391 S.W.2d 898, 903 [6], The respondent urges additional reasons why § 552.030 was not applicable such as the statute operating prospective only and that defendant had not taken proper steps to invoke the statute even if it were otherwise applicable. But these contentions of the respondent need not be considered in view of the ruling we have made.

Because of the nature of the evidence offered by the defendant, the contentions made at the trial and the nature of the issues submitted, we have, in the exercise of our discretion, also considered the evidence as bearing on the defense of insanity as it existed prior to the enactment of § 552.030. See State v. Goodwin, Mo., 352 S.W.2d 614, 619 [1]. On the entire record we find that the evidence was not sufficient to require a submission of this issue. State v. Brizendine, Mo., 391 S.W.2d 898, 903 [6]; State v. Hutchin, Mo., 353 S.W.2d 701, 703 [7]. The issue of insanity was submitted to the jury but the defendant would have no standing to complain since the submission was more favorable to him than warranted by the evidence and therefore not prejudicial. State v. Harper, Mo., 386 S.W.2d 353, 355 [6, 7].

The defendant undertakes to assign error in three instructions given for the reasons among others that the instructions failed to require a finding that the defendant stole the property described in the information, that it was the property of the A&P Company, and that the instructions assumed the defendant had made statements and confessions and commented on the fact. The respondent asserts we are precluded from considering these and other assignments of error because the motion for new trial was out of time and preserves nothing for review. The transcript is equivocal as to whether the verdict was returned on July 20 or July 21, 1964, hut it is clear that the motion for new trial was not filed until August 1 and there was no extension of time. In either event, the motion for new trial was not filed within the period of ten days after verdict as provided by S.Ct. Rule 27.20(a), V.A.M.R. See also § 547.030, RSMo 1959, V.A.M.S.

The filing of the motion after the time allowed is a nullity and preserves nothing for review. State v. Kenton, Mo., 298 S.W.2d 433, 434 [1]; State v. Pedockie, Mo., 391 S.W.2d 255, 257 [5]. The defendant counters with the request that we review the assignments in the motion for new trial under S.Ct. Rule 27.20(c) which provides that plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not preserved for review “when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

The transcript discloses that the defendant by statements amounting to judicial admissions sought to prevent the state from proving the facts relating to the commission of the offense and the defendant’s criminal agency and sought to confine the issue solely to the mental responsibility of the defendant. Prior to the opening statements of counsel, the attorney for the defendant advised the court that: “Inasmuch as it is admitted that the burglary occurred and the defendant here was the perpetrator thereof the defendant interposes the fact the only defense is the plea of insanity and defendant objects to any rehashing of the facts themselves * * During his opening statement, defendant’s counsel referred to the subject several times stating in substance that at the time the defendant committed the acts charged his mental condition was such that he was not criminally responsible and that at the end of the trial the defendant would ask for a verdict of not guilty because of his mental difficulty. After the opening statements had been made, the defendant moved for a mistrial on the ground that “the prosecuting attorney has for the purpose of prejudice only outlined to the jury facts concerning this crime as committed by this defendant and such facts are not at issue here.” During the trial the defendant objected to an exhibit on the ground that the only issue in the case was “the mental condition of the defendant at the time of the commission of this act.” The defendant’s closing argument to the jury was of the same nature. His counsel stated for example that the defendant “did it and we never said anything else” and that “this man [the defendant] burglarized the A&P store and took some cigarettes”. Counsel concluded his argument to the jury with a request that they find the defendant not guilty by reason of insanity. Even the motion for a new trial set out in the transcript states that the facts of the burglary and stealing charged were admitted.

When a defendant makes a voluntary judicial admission of fact before a jury, it serves as a substitute for evidence and dispenses with proof of the actual fact and the admission is conclusive on him for the purposes of the case. State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 323; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077, 1082; State v. Brooks, 99 Mo. 137, 12 S.W. 633, 634; 22A C.J.S. Criminal Law § 733, p. 1061. In the circumstances of this record, plain error has not been demonstrated in giving the instructions complained of.

The defendant also contends that we should review under the “plain error” rule his assignment that the court erred in failing to instruct on good character. See § 546.070(4) and S.Ct. Rule 26.02(6). As previously stated, the only evidence offered by the defendant related to his mental condition. In rebuttal the state put the defendant’s foreman on the stand who testified to the kind of work that the defendant did and the manner in which he did it. This evidence was offered to counter defendant’s evidence bearing on mental capacity. There was evidence that he was a homeowner and perhaps a depositor in a bank and paid taxes. On this record it has not been demonstrated that “plain error” under S.Ct. Rule 27.20(c) has been committed in failing to instruct on good character.

The defendant also contends that the verdict is not in proper form and is not responsive to the issues. This is a matter which we are required to consider under Rule 28.02 without an assignment of error respecting its sufficiency. The defendant was acquitted of the burglary charge but convicted of stealing. The jury’s verdict on the latter charge reads: “We, the jury, find the defendant guilty of stealing property of the value of more than fifty (50) dollars.” The defendant contends the verdict was defective in that it did not find that the defendant stole the cigarettes or property of the Great Atlantic and Pacific Tea Company and did not use the words “as charged in the information” and thus did not contain all of the elements of the crime of stealing. In support he cites State v. Cacioppo, Mo.App., 373 S.W.2d 479, and State v. Saussele, Mo., 265 S.W.2d 290. In the Ca-cioppo case, the Kansas City Court of Appeals held a verdict which did not refer to the indictment and which omitted elements of defendant’s knowledge that the goods received were stolen and of intent to defraud the owner was fatally defective. We need not discuss the Cacioppo case further since it relies on Saussele, an opinion of this court en banc which is controlling.

The verdict in the Saussele case did not refer to the indictment, and the court held that the words “as charged in the indictment” or “as charged in the information” are not essential to a general verdict although the better practice is to add such words to assure the verdict being construed as a general verdict. Further, the Saussele case holds that the verdict in a criminal case must be responsive to the charge made by the indictment and certain as to the offense intended; that it must contain either in itself or by reference to the indictment or information all essentials of the crime; and that it should be given a reasonable intendment and construction and is not to be avoided unless it is evident that it will work a manifest injustice. 265 S.W.2d at pages 293-294 [4-10], These holdings of the Saussele case have been consistently followed by this court. See State v. Kennebrew, Mo., 380 S.W.2d 293, 295, and State v. Malone, Mo., 382 S.W.2d 679, 681.

We find that the verdict in the instant case is responsive to the charge made by the information and is definite and certain as to the offense intended and a judgment entered thereon will bar further prosecution for the same offense. State v. McCarthy, Mo., 336 S.W.2d 411, 417-418; State v. Ward, 356 Mo. 499, 202 S.W.2d 46, 47 [1, 2]. The claim of error is denied.

We have also examined the other parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08, V.A.M.R., and find them to be in proper form and free from error.

The judgment is affirmed.

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri ex rel. JACKSON COUNTY LIBRARY DISTRICT, Respondent, v. Harry L. TAYLOR, County Treasurer, Appellant.
    No. 51600.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1965.
    Motion for Rehearing or for Stay of Mandate Denied Dec. 13, 1965.
    Thomas E. Deacy, Jr., Joseph A. Sherman, Deacy & Deacy, Kansas City, for respondent.
    John E. Kelley, County Counselor, William D. Cosgrove, Asst. County Counselor, for appellant.
    Thomas F. Eagelton, Atty. Gen., amicus curiae, C. B. Burns, Jr., Asst. Atty. Gen., Jefferson City, for amicus curiae.
   HENLEY, Judge.

This is a mandamus proceeding instituted in the Circuit Court of Jackson County to compel appellant to honor and pay a warrant drawn by respondent on its funds in the hands of appellant. We will refer to the parties as follows: relator, Jackson County Library District, respondent on appeal, as the Library District; respondent, Harry L. Taylor, the Treasurer of Jackson County, appellant on appeal, as the Treasurer.

By this proceeding the Library District seeks to compel the Treasurer to honor warrant number 23,744, dated May 13, 1964, for $100,000, payable to the First National Bank of Independence, Missouri, drawn by the Library District on the County Library Fund deposited with the Treasurer. The case was submitted to the trial court on the pleadings. Judgment was for the Library District and the peremptory writ of mandamus issued. Civil Rules 94.01 et seq., and § 529.010 et seq. From this judgment, the Treasurer appealed to the Kansas City Court of Appeals. That court permitted the Attorney General of Missouri to file a brief as amicus curiae. The court of appeals reversed the judgment. The Library District’s motion for a rehearing in that court or, in the alternative, to transfer to this court, was overruled. On application of the Library District, we ordered that the case be transferred to this court.

The petition of the Library District alleges: (1) that it is a body corporate organized pursuant to § 182.010 with power to sue and be sued; (2) that the Treasurer is the duly elected and acting Treasurer of Jackson County; (3) that there is, and was at all times material, funds on deposit in the County Library Fund in the hands of the Treasurer sufficient to pay this warrant; (4) that the warrant, in proper form as required by law, was issued and properly authenticated by action of the board of trustees of the Library District; (5) that the warrant was presented to the Treasurer for payment and payment refused; (6) that the Library District is entitled to have funds from the County Library Fund disbursed upon presentation of its properly authenticated warrant to the Treasurer; (7) that the Treasurer’s duty to disburse funds from the County Library Fund upon presentation of the warrant is ministerial, not discretionary, and that his refusal to honor and pay the same was improper, illegal and invalid.

The return of the Treasurer to the alternative writ of mandamus admits the issuance of the warrant, its presentment for payment and his refusal to honor and pay it. The return further alleges that in March, 1964, the Library District adopted a resolution authorizing the investment of $461,000 of its funds in the First National Bank of Independence; that the Library District drew a warrant for that amount upon its funds which he refused to pay because the law (1) required that all funds of the Library District be deposited in the county treasury and (2) did not authorize the board of trustees of the Library District “to invest surplus or operating funds in interest bearing investments for the benefit of the County Library Fund.” The return further alleges “that he is forbidden by law to pay [this] warrant unless it clearly appears that the proceeds thereof shall be used for normal operating expenses and not for the investment in interest bearing securities” ; that the petition for the writ does not allege (1) that this money is not to be invested in such securities, and (2) that it is to be used for operating expenses; that he has honored and paid other warrants for normal operating expenses; but that $100,-000, “would be an unusual operating expense.”

To this return the Library District directed a motion for judgment on the pleadings. For the purpose of considering the motion, all averments of fact sufficiently well pleaded in the return will be taken as admitted, eliminating conclusions of law and matters not well pleaded the truth of which this motion does not admit. State ex rel. Wheeler v. Adams, 161 Mo. 349, 61 S.W. 894[1]; State ex rel. Drainage District No. 8 of Pemiscot County v. Duncan, 334 Mo. 733, 68 S.W.2d 679, 681 [1, 2]; Ingle v. City of Fulton, Mo.App., 268 S.W.2d 600, 603[1]. Thus, we eliminate from consideration the conclusion of the return that the Treasurer, for the reasons alleged therein, is forbidden by law from paying the warrant, as well as the redundant and irrelevant averments pertaining to the resolution adopted by the Library District, his refusal to pay a prior warrant and reasons therefor, and that he has paid warrants for normal operating expenses but that this would be an unusual operating expense. The result is that the allegations of the alternative writ and those of the Library District’s petition stand admitted. State ex rel. Bliss v. Grand River Drainage District of Livingston and Linn Counties, 330 Mo. 360, 49 S.W.2d 121, 124[1].

The Treasurer states in his brief that this case does not embrace nor present for determination the broad question of whether the law permits the transfer of county library funds to another depository after those funds have been deposited in the county treasury. The Treasurer agrees that the pleadings do not embrace this question. The Library District, in its brief, agrees with this statement and the effect of the pleadings. As is indicated above, we agree, and so hold. Thus, the sole, narrow question presented and decided is whether mandamus will lie to compel the Treasurer to pay this warrant.

As indicated, the return admits the allegations of the alternative writ and those of the petition thereto attached. Briefly, those allegations are: (1) that this warrant, properly authenticated by the county library board, was issued and presented to the Treasurer for payment; (2) that there are sufficient funds in the county library fund with which to pay it; and (3) that the Treasurer refused payment.

The Library District and Board were organized and exist by virtue of Chapter 182, RSMo 1959, V.A.M.S. Section 182.020, paragraph 2, provides: “The proceeds of the levy [taxes authorized to be levied by section 182.010 and paragraph 1 of section 182.020] * * * shall be deposited in the treasury of the county and be known as the ‘county library fund’, * * * and disbursed by the county treasurer only upon the proper authenticated warrants of the county library board.” Section 110.240 provides : “It shall be the duty of the county treasurer, upon presentation to him of any warrant drawn by the proper authority, if there shall be money enough in the depositary belonging to the fund upon which said warrant is drawn and out of which the same is payable, to draw his check as county treasurer upon a county depositary in favor of the legal holder of said warrant, * * This court has held: “ * * * It is the well-settled doctrine of this state that county treasurers are simply ministerial officers, and can be compelled to perform their duties. * * * ‘There is no doubt of the jurisdiction of this court by mandamus against county treasurers who refuse to pay claims properly audited.’” State ex rel. Wheeler v. Adams, supra, 61 S.W. l. c. 897 [2], and cases there cited. “ * * * A ministerial act, as applied to a public officer, is defined to be an act or thing which he is required to perform by direction of legal authority upon a given state of facts, independent of what he may think of the propriety or impropriety of doing the act in the particular case. * * * ” State ex rel. Jones v. Cook, 174 Mo. 100, 73 S.W. 489, 493.

The admissions of the pleadings and the clear mandate of the statutes made it the duty of the Treasurer to honor and pay this warrant.

The attorney general, as amicus curiae, contends in his brief that the court erred in issuing the peremptory writ because the return alleges, and the motion for judgment on the pleadings admits, that the proceeds of the warrant are not to be used for library expenses but are to be used for investment in the bank; that the issuance of the warrant was, for those reasons, unauthorized and illegal; that the Treasurer may not be compelled to pay an unauthorized and illegal warrant and. therefore, mandamus will not lie. He adds, however: that if the return did not allege such facts sufficiently the court should have permitted the Treasurer to so amend his return. We held, and say again for emphasis, that the issue or question raised by the attorney general was not raised by the pleadings and is not in the case. The parties agree that this question is not embraced within the pleadings and is not for decision. The Treasurer did not request leave to amend his return. An amicus curiae may not inject issues into a case not presented by the pleadings and the parties. Gem Stores, Inc. v. O’Brien, et al., Mo., 374 S.W.2d 109, 118[10].

For the reasons stated the judgment of the circuit court of Jackson County is affirmed.

All concur.

      . All references to rules and statutes are to rules of the Supreme Court of Missouri and V.A.M.R., and RSMo 1959 and Y.A.M.S., respectively.


author: HOLMAN, Judge.

text:
    Woodrow F. FERGUSON, (Plaintiff) Respondent, v. Enoch S. KINDLE and Flossie E. Kindle, Boyd Shinn and Frances V. Shinn, (Defendants) Appellants.
    No. 50851.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    James A. Rahm, L. Stanley Braton, Hensley, Rahm & Braton, Warrensburg, for respondent.
    Lamm, Barnett, Crawford & Barnes, Se-daba, Max O. Bagby, Kansas City, for appellants.
   HOLMAN, Judge.

In this action plaintiff sought a decree of specific performance of a contract dated June 9, 1960, for the sale of a 247-acre farm lying partially in Benton County and partially in St. Clair County. He also prayed that a deed dated September 30, 1960, whereby defendants Enoch and Flossie Kindle conveyed the farm to defendants Boyd and Frances Shinn, be set aside. A trial resulted in a decree in favor of plaintiff. All of the defendants have duly appealed. We have appellate jurisdiction since title to real estate is directly involved. For convenience we will hereinafter use the word “defendant” in referring to Enoch Kindle.

Defendant and his wife lived at Edwards, Missouri, in Benton County. They owned the farm in question and desired to sell it. In the spring of 1958 defendant talked with plaintiff about the sale of the farm and plaintiff told him that if he would wait until he sold his cattle in the fall he would buy the farm for $6,000. When plaintiff sold his cattle he told defendant he did not get enough money to buy the farm. Again in 1959 plaintiff told defendant he would buy the farm after he sold a certain farm he had for sale. He later told defendant that he had sold the farm but didn’t have enough money to buy his land. However, in early June 1960, plaintiff again agreed to buy the farm for $6,000 and the parties met on June 9 and signed a written contract to that effect. The contract was prepared by Robert Drake at the office of the Petts Abstract Company in Warsaw.

The contract recited that plaintiff paid the $6,000 at the time of signing the contract by depositing with the abstract company a check in that amount drawn on the Farmers Bank of Lincoln, Missouri, and payable to defendant. It further provided that taxes for the calendar year in which the deed was delivered should be prorated. It contained provisions for furnishing an abstract, the examination thereof, curing title defects, transfer of insurance, and delivery of a warranty deed for the buyer at the office of the abstract company. It also recited that “time is of the essence in this contract.” At the time the contract was signed plaintiff told the Kindles and Drake that he did not have the money in the bank to pay the $6,000 check but that he would have it by the time the abstract was “run up.” The abstracts were brought up to date by June 20 and Mr. Drake advised plaintiff that they were ready for examination.

Defendant testified that he and his wife went to Warsaw about July 9 for the purpose of making the deed and closing the transaction; that he left his wife at the abstract office and went to look for plaintiff and found him in the rear of the post office; that he told plaintiff the abstract was ready and asked him if he was ready to finish the deal and that plaintiff replied, “The title is good, but I haven’t got the money”; that plaintiff then “turned around and walked off and left me.” Plaintiff’s version of the conversation in the post office was that it took place on July 6, 1960; that defendant asked if he would meet him at the abstract office on July 9 and that he replied that he would probably be out of town — “and he said he wanted to complete the deal, and I said, ‘You don’t need me, I don’t need to be there. Go and do what you have to do, because I will probably be out of town.’ ”

Plaintiff and defendant agree that the conversation in the post office was the last talk they had about the sale of the farm.

About July 15 defendant consulted Attorney Frank Brady in regard to his obligations under the contract with plaintiff, and on September 30, 1960, defendant and his wife conveyed the property to the Shinns for a consideration of $5,000.

Plaintiff testified that he lived in Warsaw where he was a rural mail carrier; that he owned 2,000 acres of land, a portion of which joined the Kindle farm; that he particularly wanted to buy that farm because it greatly simplified his fencing problem; that about July 15, 1960, he placed a water tank and salt trough on the farm and put 16 goats in a pasture near the buildings and two horses in another pasture; that these animals were removed several weeks later but the tank and trough remained on the farm; that he had contacted Mr. Jobe at the Farmers Bank of Lincoln and had made arrangements for the check he had delivered to the abstract company to be paid if it were presented; that he had arranged for a loan and signed a note and left it with Mr. Jobe. He stated that in 1960 his net worth was approximately $150,000.

On cross-examination plaintiff stated that he had had a lawyer examine the abstract to the farm and was advised that the title was good; that he did not know that Mr. Shinn had rented the farm and that the house thereon had been occupied for several years after Shinn had purchased it.

The substance of plaintiff’s testimony indicates that he thought he had done all that was required of him and that he assumed that the deal had been closed and that he had purchased the land; that he thought Robert Drake would accept the deed and record it and hold it for him until he needed it. His testimony is to the effect that he did not thereafter contact defendant or Drake or the bank to determine what had been done about closing the deal. He stated that he first learned in November 1962 that the farm had been sold to the Shinns and that he then employed an attorney and this suit was filed in March 1963. In regard to the taxes he stated that he did not know whether or not he had paid any taxes on this farm; that he had paid some taxes but didn’t check to see whether or not his receipts covered this farm.

Billie Mac Jobe testified that in 1960 he was President of Farmers Bank at Lincoln. He stated that plaintiff had arranged with him in June 1960, before the contract was signed, to borrow $6,000 to purchase the Kindle farm; that he signed a note and the witness agreed to pay the check for the purchase price when it came in. On cross-examination this witness stated that no loan was actually made and plaintiff’s account was not credited with the $6,000; that if the check came in the plaintiff was to come to the bank, after title passed, and give a deed of trust to secure the note; that he was no longer connected with the bank but that he had kept the note until he returned it to plaintiff about six months before the trial. He stated that he could have withdrawn the commitment to make the loan but that he would not have done so.

Two of plaintiff's neighbors testified that they saw the goats on the Kindle farm for a period of three or four months in the summer and fall of 1960.

In addition to the facts heretofore stated defendant testified that he had not made a deed to plaintiff because plaintiff had told him he did not have the money to pay for the land and therefore he did not obtain possession of the check and had not presented the check at the bank. He further testified that in 1958 Boyd Shinn had tried to buy the farm from him; that at that time he told Shinn that plaintiff was trying to buy it and that if plaintiff did not get the money he would give him a chance to buy it. He stated that in September 1960 he wrote Mr. Shinn to the effect that plaintiff had failed to raise the money and that he would try to sell the farm to him; that Shinn came to see him and offered him $5,000 for the farm and that he sold it to him for that price.

Robert Drake testified that he was an abstracter at Warsaw and had drawn the contract in question; that at the time the contract was signed plaintiff had said, “I don’t have the money now, but I will try and get the money by the time the abstract is completed.” He stated that the $6,000 check plaintiff left with him had never been out of his possession. This witness produced the check and the original of the contract at the trial and they were admitted in evidence.

At trial time Karl Kroenke was president of the bank at Lincoln. He testified that he did not know about the note plaintiff had signed but that Mr. Jobe had told him that if plaintiff’s check for the purchase of the farm were presented he was to contact Jobe. Mr. Kroenke also produced the record of plaintiff’s bank account. The account showed that from May 1960 until March 1961 plaintiff never had a balance of more than $2,300, and that on a number of occasions the account was overdrawn.

Boyd Shinn testified concerning his purchase of the farm and further stated that his cousin, Bob Shinn, rented the farm and moved into the house in the fall of 1960 or early spring of 1961; that he remained in the house for about a year and a half, and then Boh rented the house to Buck Miller who occupied it for about a year; that Bob had raised about 30 acres of corn and beans on the farm in each of the years 1961, 1962, and 1963. This witness also stated that he had paid the taxes on the farm each year after he purchased it.

Buck Miller testified that he did not farm the land but had lived in the house on the farm in question (part of the time with Bob Shinn) from about October 1962 until July 1963. On cross-examination he stated that the field where the corn and beans had been planted could not be seen from the public road.

Defendants also presented the testimony of Harold Price, a farmer and banker of Warsaw, who stated that he had known plaintiff for 15 years and that his reputation for truth and veracity in the neighborhood was bad. On cross-examination this witness stated that he had had a disagreement with plaintiff over some ASC matters.

There was considerable testimony adduced concerning the issue as to whether defendants Boyd and Frances Shinn had learned of facts which would constitute notice to them that plaintiff might have some contractual right to purchase this farm at the time they bought it from the Kindles, but we have not related that testimony because our view of this case is such as to make it unnecessary to determine that issue.

In this equity case, “while we give due deference to the findings of the trial chancellor, we cannot escape the duty and reponsibility placed upon us to arrive at our own conclusions as to the weight and value of the evidence and determine the facts accordingly.” Cruwell v. Vaughn, Mo.Sup., 353 S.W.2d 616, 624. We think it is important to first determine the facts concerning the conversation between plaintiff and defendant at the post office. We cannot defer to the trial judge in that regard. This for the reason that he evidently did not determine those facts since he expressed the view that “it was immaterial which one of these parties was telling the truth about the conversation over at the Post Office.”

It -is definitely our view that the true facts concerning that conversation are as stated by defendant, i. e., that plaintiff said, “the title is good but I haven’t got the money,” and then turned and walked away. The subsequent conduct of both of said parties strongly supports that finding. It is contrary to the common experience of mankind that defendant would proceed to sell his farm to the Shinns for $5,000 if plaintiff continued to be ready, willing, and able to comply with his contract and pay him $6,000 for it. It is undisputed that defendant was anxious to sell his farm, and it is obvious that something occurred which convinced him that plaintiff (for the third time) had decided that he did not have the money to buy the land. Defendant testified that he “didn’t want any trouble” so he went ahead and sold the farm to Shinn.

Plaintiff’s conduct also supports the conclusion that he repudiated and abandoned the contract. We reject as untrue his testimony that he thought (until November 1962) that he had purchased the farm and was the owner thereof. His conduct was repugnant to any such conclusion. He did not advise Mr. Drake that the title was satisfactory and that he was authorized to deliver the check to defendant upon delivery of the deed. He did not contact Drake at any time after July 9 and inquire if the sale had been consummated, and did not take possession of the deed and abstract nor offer to pay for the recording of the deed. Both of these men lived and worked in Warsaw (a small city which we judicially know had a population of slightly more than 1,000 people) and must have seen each other frequently. If plaintiff thought Drake had closed the deal in his absence he surely would have mentioned the matter at some time during the subsequent months.

Also, we do not think plaintiff believed that the bank had actually made him a loan of $6,000 and had paid the check for the purchase price out of his account. The agreement was that if he bought the farm he would give the bank a deed of trust on the land to secure the loan. There was never any request that he sign such an instrument and he did not do so. That fact alone should have indicated to him that the loan had not been made. Moreover, two years elapsed and he never was asked to pay any interest. That should have been a further indication that he did not owe the bank $6,000.

It is also evident from plaintiff’s conduct in regard to the farm that he did not think he owned it. It is true that he had some livestock on the farm for two or three months, but it is significant that after he removed them in the fall of 1960 he apparently never rented the farm or used it in any manner from that time until he learned of Shinn’s ownership two years later. During that period he did not pay taxes on the farm, or insure the buildings, and apparently paid no attention to it. Since his land adjoined the farm in question it is difficult to understand why he did not learn that the house was occupied and the land was being farmed by a tenant. Such indifference and lack of interest in an alleged $6,000 investment from a man with sufficient business ability to accumulate an estate of $150,000 is difficult to understand. It is a familiar axiom that “actions speak louder than words.” We think plaintiff’s actions and omissions, considered as a whole, clearly indicate that he knew he had not purchased the Kindle land.

“Courts of equity do not enforce specific performance of a contract where circumstances have arisen which makes its performance inequitable, or where there has been delay amounting to laches on the part of the plaintiff, and, as a general rule, will not grant a decree of specific performance in favor of a party who has himself once refused to perform the contract or who has been guilty of such conduct as amounts to a refusal to- perform it. The reason for the rule is that one who asks a court of equity to compel the specific performance of a contract must show that he has performed, or has been able and willing to perform, all the essential terms of the contract devolving on him. The rule is based on the principle that he who seeks equity must do equity. A party cannot be permitted to violate his contract and wait until he sees that his bargain will be profitable, and then invoke the aid of a court of equity to have it executed.” 49 Am.Jur. Specific Performance § 78, p. 95. See also Restatement, Contracts, § 318, p. 475, and Anno. 2 A.L.R. 416, together with the cases cited therein.

We rule that the statement and conduct of plaintiff when defendant called on him at the post office, and his subsequent acts and omissions heretofore described, constitute both a repudiation and an abandonment of the contract and he therefore is not entitled to enforce specific performance thereof.

Plaintiff has raised the point that questions concerning repudiation and abandonment cannot be considered on appeal because such were not mentioned in the motion for new trial. There is no merit in that contention. The motion for new trial specified that the decree was not supported by the law or the evidence. Although containing various other complaints, the words “repudiation” and “abandonment” do not appear therein. In this equitable case we consider the motion sufficient. Moreover, in a case of this nature, under Civil Rule 73.01(d), V.A.M.R., “[t]he question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court.” It is necessary for us to consider matters relating to repudiation and abandonment in order to determine whether the evidence was sufficient to support the judgment. As indicated, this contention is overruled.

The judgment is reversed and cause remanded with directions to enter a new judgment in favor of defendants.

All concur.