author: DOERNER, Commissioner.

text:
    CHANDEYSSON ELECTRIC COMPANY, a Corporation, Plaintiff-Appellant, v. Robert R. WOLLWEBER, Defendant-Respondent.
    No. 32047.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    Armstrong, Teasdale, Roos, Kramer & Vaughan, Bruce E. Woodruff, John P. Emde, Charles E. Dapron, Fred Leicht, Jr., St. Louis, for plaintiff-appellant.
   DOERNER, Commissioner.

Plaintiff’s action is on'an alleged debt of $933.35, denied by defendant, who counterclaimed for $2530.53 on the same theory. The jury returned a verdict for defendant on plaintiff’s cause of action and for plaintiff on defendant’s counterclaim. Only plaintiff has appealed. After plaintiff’s brief had been filed defendant advised his trial counsel by letter, which was filed with us, that he did not desire to expend the money necessary for the filing of a brief or for representation by counsel.

It appears from the pleadings and the evidence that the respective claims for indebtedness with which we are concerned arose out of plaintiff’s employment of defendant for the period from July 5, 1960 to July 18, 1961. Plaintiff alleged in its petition that it had loaned the defendant the sum of $1,-000 on June 24, 1960, and an additional $713.53 on September 12, 1960, on defendant’s promise to repay such loans; that defendant made a partial payment of $688.53 on or about December 31, 1960; that at the time defendant’s employment was terminated there was due him $91.65 for three days salary, which plaintiff applied and credited on defendant’s indebtedness; and that the sum of $933.53, together with interest, remained due, for which it prayed judgment. As stated, defendant in his answer denied that he owed plaintiff any money, and in his counterclaim pleaded that plaintiff was indebted to him for various expenses total-ling $430 growing out of an employment which began in 1958. However, defendant’s own evidence disclosed that these expenses were incurred in connection with his employment by a firm other than plaintiff and the trial court ruled that plaintiff’s alleged oral assumption of such indebtedness was violative of the Statute of Frauds and that defendant could not introduce evidence relative to them. Since defendant has not appealed the merits of the court’s action is not before us. In the remaining part of his counterclaim defendant alleged that on or about July 1, 1960, plaintiff “⅛ * * agreed to pay defendant for defendant’s expenses in coming to St. Louis from St. John, Quebec, and for defendant’s family moving expenses, and for settling expenses * * These expenses defendant itemized as: $688.53 for moving his furniture; $171 for his flights between St. John, Quebec and St. Louis; $333 for his meals from July 5, 1960 to July 30, 1960; $150 for the rental of a car during that period; and $300 expended by his family until August 17, 1960. Defendant further alleged that in addition to employing him, at a salary of $11,-000 per year, plaintiff also agreed to pay him an additional two weeks termination pay, but that upon his discharge plaintiff failed to do so, for which $458.00 was due him. Plaintiff, in turn, by its reply denied that it was indebted to defendant in any amount.

Plaintiff asserts that the trial court abused its discretion in refusing to grant it a new trial because the verdict against it on its claim was contrary to the overwhelming weight of the evidence; and that certain instructions given on behalf of defendant were prejudicially erroneous. The first complaint requires a review of the evidence.

Robert R. Lamkin, plaintiff’s president, testified that on its behalf he employed defendant in June, 1960, as its plant superintendent, at a salary of $11,000 per year; that defendant asked for an advance on his salary, and on defendant’s promise to repay, plaintiff loaned defendant $1,000; that defendant had his furniture shipped from St. John’s, Quebec to St. Louis, at a cost of $688.53, and insured it, the premium being $25, which sums plaintiff paid on the defendant’s promise to reimburse it; that defendant paid plaintiff the $688.53 for the freight, but never repaid any part of the $1,-000 loaned him or the $25 for the insurance; and that defendant’s employment, which began on July 5, 1960, was terminated on July 18, 1961, at which time three days salary totalling $91.53 was due defendant, for which he was given credit. Lamkin identified and there was introduced in evidence plaintiff’s check to defendant for $1,000, dated June 24, 1960, as well as the invoices for the freight and insurance premium. In his cross-examination, as well as in his rebuttal, Lamkin denied that he had promised defendant to pay any of the expenses arising out of defendant’s move to St. Louis, and also denied that he had agreed to pay defendant two weeks termination pay. Called by plaintiff, William J. Sturm, a partner in the firm of Haskins & Sells, certified public accountants, testified that in connection with its audit of plaintiff’s books as of December 31, 1960, it obtained a written confirmation from defendant, identified and introduced, that as of that date he owed plaintiff the sum of $1025.00

In his own behalf defendant related the negotiations with Lamkin which culminated in the agreement that plaintiff would employ him at a salary of $11,000 a year. His only testimony regarding any promise by Lamkin to pay his expenses was that Lam-kin wanted him to move to St. Louis as promptly as possible and that: “ * * * I had to ask for expenses and I have to fly to Canada, I have to fly back, I have to go get my family again, drive my car down here, have everything moved, he says, ‘Don’t worry about anything, we will take care of you, you have to trust somebody, don’t worry about that, that will be taken care of.’ ” Defendant stated that his expense in flying back and forth between St. Louis and Canada was roughly $171; that his expenses for lodging and meals in St. Louis until his family arrived were about $333; that during the same period he rented an automobile at a cost of $150; that the expense of flying to Quebec and driving his family to St. Louis was about $300; and that the cost of moving his furniture was $688.53. He also testified that he did not receive any severance pay when he was discharged, but a careful and repeated search of the record fails to disclose any testimony by defendant or anyone else that Lamkin or plaintiff had ever agreed to pay defendant any severance pay. On cross-examination defendant admitted receiving the $1,000 from plaintiff but explained that it was an advance by plaintiff towards his various expenses incurred in moving to St. Louis. He conceded that he had signed the confirmation slip given Haskins & Sells but stated that it must have been among other papers he frequently signed as plant superintendent and that he signed it without reading it.

There is no merit in plaintiff’s argument that the trial court abused its discretion in overruling its motion for a new trial because the verdict against plaintiff on its claim was against the overwhelming weight of the evidence. The vital issue in plaintiff’s claim was whether the $1,000 admittedly paid to defendant was a loan, which defendant was obligated to repay, as Lamkin testified, or whether it was an advance against the defendant’s various expenses incurred in moving to St. Louis, as defendant testified. Thus as to that issue there was a sharp conflict in the evidence. Plaintiff deprecates the defendant’s testimony regarding the defendant’s expenses, and refers to it as feeble, obscure and self-contradictory. The weight of such testimony, however, was initially a matter for the jury, and subsequently a matter for the trial court in passing .on plaintiff’s motion for a new trial. While an appellate court does have the power in an action at law to grant another trial on the weight of the evidence if the trial court has abused or arbitrarily exercised its discretion by refusing to do so, Sapp v. Key, Mo., 287 S.W.2d 775; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458, it is clear that the appellate policy in law cases is to abide by rulings of trial courts on weight of evidence' assignments. Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S.W.2d 698; Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481; King v. Kansas City Life Ins. Co., supra. In view of the sharp conflict in the evidence as to the reason the $1,000 was paid defendant it is obvious that the trial court did not abuse or arbitrarily exercise the discretion vested in it. Gould v. M. F. A. Mut. Ins. Co., Mo.App., 331 S.W.2d 663.

However, plaintiff is on firmer ground in its complaints that defendant’s instructions numbered 2 and 3 were preju-dicially erroneous. By Instruction No. 2 the jury was told that if it found that plaintiff had agreed to pay, “the moving expenses of the defendant and his family from Canada to St. Louis, Missouri, and other incidental expenses mentioned in the evidence, and further, to pay two (2) weeks termination pay if released,” then it should find in favor of defendant on his counterclaim” and against the plaintiff Chandeysson Electric Company, a corporation.” In the first place, as we have pointed out, there was no evidence that plaintiff had agreed to pay any termination pay. The giving of an instruction which is not supported by the evidence is erroneous as misleading and confusing. Samuels v. Klimowicz, Mo., 380 S.W.2d 418; Switzer v. Switzer, Mo., 373 S.W.2d 930. Furthermore, the reference to the expenses which defendant claimed the plaintiff had agreed to pay, particularly in the use of the phrase, “ * * * and other incidental expenses mentioned in the evidence * * was too general and abstract to furnish any guide to the jury in determining the nature and extent of plaintiffs alleged agreement, and in reaching a verdict. Baerveldt & Honig Const. Co. v. Szombathy, 365 Mo. 845, 289 S.W.2d 116; McAlpine Co. v. Graham, Mo.App., 320 S.W.2d 951; Phillips v. Todd, Mo.App., 180 S.W. 1039. What expenses were meant by that phrase, and the basis for the submission that plaintiff had agreed to pay them, is far from clear. The only reference to the words “incidental expenses” was by defendant in detailing the tips and charges for limousine service which he had paid on his flights to and from Canada. Defendant, however, in using that term may have had in mind the cost of meals and living expenses for himself and his family after reaching St. Louis (what he described in his petition as “settling expenses” as distinguished from “moving expenses”), for a reference to such expenses is made in his Instruction No. 3. If that was defendant’s theory as to plaintiffs agreement (and assuming, without deciding, that defendant’s testimony regarding what Lamkin promised would have justified such a submission), the jury should have been required to find that fact by language more specific and definite than the phrase employed. Such words gave the jury a roving commission to speculate as to the terms of the claimed agreement. Green v. Ralston Purina Co., Mo., 376 S.W.2d 119. Lastly, the concluding phrase that the jury should find in favor of the defendant on his counterclaim and against the plaintiff was confusing and misleading. It did not limit the jury to a finding in favor of defendant and against plaintiff on defendant’s counterclaim, and may well have been understood by the jury as a direction that if it found for defendant on defendant’s counterclaim it should find against the plaintiff on plaintiff’s cause of action.

By defendant’s Instruction No. 3 the jury was told that if it found for the defendant on his counterclaim it might allow him such sums as it found from the evidence he had incurred in moving himself and his family from Canada to St. Louis, “ * * * for the expense incurred by defendant and his family in St. Louis” and “for two weeks termination pay in the amount of $458.00 * * * minus the sum of $1,000.00 advanced to defendant.” We have already pointed out that defendant’s Instruction No. 2 did not require the jury to find that the plaintiff agreed to pay the “settling” expenses incurred by defendant and his family in St. Louis, and Instruction No. 3 was therefore erroneous in assuming that such damages might be allowed. Roberts v. Emerson Electric Mfg. Co., Mo., 338 S.W.2d 62. Also, as was true of Instruction No. 2, there was no evidentiary support for the allowance of termination pay. And lastly, the direction to the jury to subtract from the amount allowed defendant, “ * * * the sum of $1,000.00 advanced to defendant” assumed that the $1,000 had been paid to defendant as an advance against his expenses, without requiring the jury to find that such was the fact, Whether that sum had been paid as a loan to defendant or as an advance against his expenses was, as we have noted, a highly controverted and material issue. The assumption of a controverted, material issue is prejudicial error. Watt v. St. Louis Public Service Co., Mo., 354 S.W.2d 889; Roberts v. Emerson Electric Mfg. Co., supra.

It will be recalled that the jury’s verdict was m favor of plaintiff on defendant’s counterclaim. Had defendant’s instructions confined the issues therein submitted to defendant’s counterclaim plaintiff would be in no position to complain of any errors in defendant’s instructions. For the rule is that a party may not complain about his adversary’s instructions when the jury’s verdict on the issues submitted by the instructions were decided in the complaining party’s favor. Logan v. Field, 192 Mo. 54, 90 S.W. 127; Robbins v. Robbins, Mo., 328 S.W.2d 552. But as we have pointed out, defendant’s Instruction No. 2 in effect directed a verdict against plaintiff on its cause of action as well as for defendant on his counterclaim. In such a case the rule has no application and the complaining party is entitled to relief. Dawley v. Hoy, Mo., 341 S.W.2d 111.

It is therefore obvious that the judgment against plaintiff on its cause of action must be reversed and a new trial granted it on its claim. Since defendant did not appeal it is equally apparent that the judgment against him on his counterclaim has become final; but this is not to say that on a retrial of plaintiff’s claim the defendant, if so advised, may not interpose by way of defense his contention that the $1,000 was paid him as an advance against those expenses he claims plaintiff agreed to pay.

The judgment should be reversed and the cause remanded for a new trial on plaintiff’s claim, and the verdict in favor of plaintiff and against defendant on defendant’s counterclaim should be held in abeyance pending the determination of plaintiff’s claim; and upon such determination one final judgment should be entered disposing of the rights of both parties.

PER CURIAM.

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

Accordingly, judgment is reversed and cause remanded to the court with directions to grant plaintiff a new trial on plaintiff’s claim and to hold in abeyance the verdict in favor of plaintiff and against defendant on defendant’s counterclaim until the determination of plaintiff’s claim; and upon such determination to enter one final judgment disposing of the rights of both parties.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


source: Caselaw Access Project

author: BRADY, Commissioner. BRADY, Commissioner.

license: Public Domain

text:
    Daniel W. WITT et al., Plaintiffs-Appellants, and St. Louis County, Missouri, et al., Intervenors-Plaintiffs, v. CITY OF WEBSTER GROVES et al., Defendants-Respondents.
    No. 32124.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 30, 1965.

      Smith, Spalding & Crowe, Benjamin B. Tepper, Clayton, for plaintiffs-appellants.
    Donald J. Stohr, County Counselor, Clayton, for intervenors-plaintiffs.
    H. Jackson Daniel, Husch, Eppenberger, Donohue, Elson & Cornfeld, Wilbur B. Jones, Shulamith Simon, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

This appeal arises out of a class action filed by thirteen residents of an area annexed to the City of Webster Groves, Missouri, seeking a declaratory judgment invalidating the annexation. At the trial level St. Louis County intervened as a party plaintiff. At the conclusion of plaintiffs’ evidence the trial court sustained the city’s motion for judgment. The individual plaintiffs filed this appeal but were not joined therein by St. Louis County. The appeal was originally taken to the Supreme Court of this state, which held that the county’s failure to join deprived that court of jurisdiction and the cause was transferred to this court. See Witt v. City of Webster Groves, Mo., 383 S.W.2d 723. We will refer to the City of Webster Groves as “the city”; to St. Louis County as “the county” ; and to the plaintiffs by their designation in the trial court. Webster Heights will sometimes be referred to by that name and sometimes as the annexed area.

The plaintiffs advance two allegations of prejudicial error. These are that the trial court erred in sustaining defendants’ motion for judgment offered at the close of plaintiffs’ case for the reason that the City of Webster Groves did not comply with § 71.015, RSMo 1959, V.A.M.S., a part of an act governing certain annexations and commonly known as “the Sawyers Act”, and because the trial court erred in holding the proposed annexation to be reasonable. The facts bearing upon these allegations are as follows: In February of 1960 the City Council of Webster Groves, a constitutional charter city, adopted an ordinance providing for an amendment to the city’s charter by extending the corporate limits to include the area here involved and known locally as “Webster Heights.” Upon submission of this amendment to the qualified voters of the city it was approved and the city has been exercising jurisdiction of this area since April 5, 1960. Webster Heights consists of an area of approximately 69 acres. Prior to the annexation it was an unincorporated area entirely surrounded by incorporated communities; Brentwood lay to the north of it, Rock Hill to the west, and the city to the south and east. It contained a total of 226 structures, twelve of which were vacant. Of the remaining 214 nine were devoted to commercial use. A survey made just prior to the annexation showed that in the south end of this unincorporated area 20 per cent of the buildings were substandard while 60 per cent of the buildings were substandard in the northern end of it. In 1950 and again in 1956 the city rejected annexation requests by the residents of the annexed area on the ground that the extension of services to the area involved would cost the city a great deal more than it might recover from the area in benefits. In 1958 the city undertook a land clearance for redevelopment project under which the city would have to pay only one-third of the cost of the renewal project. A portion of the redevelopment area adjoined Webster Heights and Webster Groves was advised that there would be difficulty in obtaining financing for structures within the land clearance project and within the then city limits due to the conditions in Webster Heights with regard to open dumps, raw sewage disposal, and trash heaps. Another problem which the redevelopment authority encountered was that of trying to construct a satisfactory street along Bell Avenue. As it existed, Bell was basically nothing but a mud street with some traces of asphalt left on it. It forms part of the eastern boundary of Webster Heights and one-half of the street is in Webster Heights and the other half in the City of Webster Groves with the result that the city could only construct one lane of pavement along Bell Avenue. The city also had other street pattern problems where their streets connected with streets in Webster Heights. There was testimony that the city had caused an investigation and survey to be made which, among other things, indicated that more than one-third of the employed people living in the area worked in Webster Groves and that 80 per cent of the families living in the annexed area considered themselves a part of Webster Groves. The county performed only routine maintenance work on the streets in Webster Heights. It did no street rebuilding or construction work. The streets were “low grade” and “very lightly surfaced.” Only some of them had markings.

Prior to the annexation this area was served by the Police Department of St. Louis County. There was extensive testimony as to the personnel training and equipment of that department which need not be more fully developed here. It is sufficient to state that the annexed area was not regularly patrolled and lay some four miles from the nearest unincorporated area policed by the county. However, the county police did serve other localities under contract which lay closer to the Webster Heights area than four miles. It was testified that it was difficult for the county police to serve the Webster Heights area. During the time the county police serviced this area they had a working agreement with the city’s police department whereby the city would handle the emergency calls for them.

Webster Heights had an organized volunteer fire department. It had a building and one 1940 fire truck equipped with 1200 feet of hose of various diameters, water tanks and fire extinguishers. The testimony was that it was staffed by volunteers. There had been fatal fires caused by inadequate fire protection or by the inadequacy of fire hydrants.

When this area was unincorporated, it was also served by the St. Louis County Health Department. The services provided by that department are also provided to incorporated cities lying within the county on a contractual basis and at the date of this annexation the city had such a contract. The member of that department assigned to work in the city was assigned for a forty-hour period but there was no member of the county health department assigned to the annexed area. The testimony was that at the date of trial the city also had its own board of health commissioners and full time employees. From the standpoint of the county health department the annexed area was “* * * definitely a problem area * * *.”

There was further testimony that there had been no attempt to enforce the County Minimum Housing Standard Ordinance in the Webster Heights area. When asked the reason for this failure, the testimony was as follows: “We have made some surveys based on the Minimum Housing Standard Ordinance and according to the findings that we made several years ago, we did not feel that the area was appropriate because of the sanitation deficiencies found for enforcement of the minimum code. * * ⅞ Well, the minimum standard code is designed to rehabilitate blighted housing that is structurally in condition or good enough I should say to be rehabilitated. If you find a very high percentage of housing that is blighted to the extent that the cost of rehabilitation would exceed fifty per cent of the value of the property, it has been the consensus of opinion among authorities in rehabilitation programs that it should not be enforced in the area and some other means of improving the area might be utilized. For this reason, we did not enforce the code in the area.” The fly problem which resulted from improper sanitation facilities and outdoor toilets existed both in the Webster Heights area and those areas of the city abutting the Webster Heights area.

There is no merit to the plaintiffs’ contention that the trial court erred because the city did not follow certain procedures required by “the Sawyers Act” and in particular § 71.015, supra. The plaintiffs never requested a restraining order. This annexation was consummated on April 5, 1960. At that time the law clearly was that the Sawyers Act did not apply to constitutional charter cities. Emerson Electric Mfg. Co. v. City of Ferguson, Mo.App., 376 S.W.2d 643, 1. c. 646, [2], and cases there cited. In 1963, the legislature amended the Sawyers Act by including, among other additions and changes, a new section now known as § 71.860, RSMo 1959, V.A.M.S. (See Laws of Mo., 1963, p. 126, Sec. A, (1).) That section specifically provides for the application of § 71.015, supra, to constitutional charter cities located in St. Louis County with an exception not pertinent here. We cannot understand the plaintiffs’ attempt to establish the Sawyers Act as applicable to a 1960 annexation by a constitutional charter city. That matter has been settled adversely to plaintiffs’ contention. Surely the passage of the 1963 amendment can have no effect upon a 1960 annexation.

The five other allegations of error set forth in plaintiffs’ brief, given a fair reading, amount to a restatement in different forms of the same contention. It is that the trial court erred in holding that the reasonableness of the annexation was a fairly debatable question. In this same connection it is to be gathered from the plaintiffs’ argument that they consider the burden of showing the city’s action to be reasonable to be on the city. They are mistaken. It is true that in cases involving annexations by cities to which the Sawyers Act applies, it has been repeatedly held that the effect of the act was to shift the burden as to showing the reasonableness of the annexation from those opposing it to the municipality. Sec. 71.015, supra, and eases cited note 3; City of Olivette v. Graeler, Mo., 369 S.W.2d 85. As stated earlier herein, at the time this annexation took place the Sawyers Act did not apply to constitutional charter cities. It was the provisions of the act that changed the burden and it follows that where the act does not apply the burden has not been changed. In the case of State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762,1. c. 774, it was specifically held that with regard to constitutional charter cities, “[t]he passage of the ordinance and its approval by the electorate makes a prima facie case of reasonableness and the burden of proving unreasonableness rests on those asserting it. * * * And the courts resolve any doubt as to reasonableness of such an ordinance in favor of its reasonableness. * * * ” The issue to be resolved in the instant case is whether or not the plaintiffs bore their burden of establishing that the action of the city was unreasonable. In considering whether or not that issue is to be resolved in favor of the plaintiffs we note that in the North Kansas City case, at the citation above, it was said that if the question of the reasonableness of the proposed annexation is fairly debatable, then the decision as to reasonableness was for the city’s officials and electorate and not for the court.

The evidence was that the annexed area constituted an unincorporated island containing such a large percentage of substandard buildings that the county’s minimum housing ordinance was totally ineffectual and no attempt was made to enforce it; that there was no regular employee of the county health department assigned to cover the annexed area in which trash heaps and open dumps abounded; that the annexed area was not patrolled' at regular intervals; that its fire fighting force was not composed of full-time paid employees but was on a volunteer basis; that Webster Heights had “low grade” streets, some of which connected with the city’s streets to carry the large percentage of the population of the annexed area to work in the city; and that the city abutted this annexed area on two sides and some of these conditions had already spread over into the abutting areas of the city. In addition there was proof that the city’s efforts to eliminate slum and blighted areas within its boundaries would be thwarted had the annexed area been allowed to continue as before. We think these undisputed facts would weigh heavily with any reasonable city official and amply illustrate that the question of reasonableness was, at the very least, debatable.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

ANDERSON, Acting P. J., RUDDY, J., and JAMES D. CLEMENS, Special Judge, concur.

On Motion for Rehearing

BRADY, Commissioner.

The motion for rehearing contains only one matter requiring comment. In this opinion we hold the provisions of § 71.860, RSMo 1959, Laws of Missouri, 1963, p. 126, Sec. A(l), inapplicable to this annexation. The plaintiffs contend this ruling is in direct conflict with that handed down on June 14 of this year in the case of City of Kirkwood, a Municipal Corporation v. Allen et al., 399 S.W.2d 30, by the Division No. 2 of the Supreme Court of this state. The Kirkwood case has been transferred to the Supreme Court en Banc where it is now pending with the result that there is presently no final ruling by that court upon this matter. However, we do not wish to dispose of plaintiffs’ motion for rehearing on that ground, as there are at least two other grounds upon which the inapplicability of Kirkwood, supra, can be shown and either of these would be sufficient. The first of these arises from the fact that in the instant case we are dealing with a constitutional charter city. Kirkwood, supra, did not involve such a city. The main issue before the court in Kirkwood was the constitutionality of the 1963 act, House Bill 21 of the 73rd General Assembly, which now appears as § 71.860 to § 71.920 of the Revised Statutes; that issue was never before this court. Regardless of the outcome of the Kirkwood case, it can have no application to that now before this court. In the event the court en Banc holds the 1963 act unconstitutional then obviously that act could have no application to the instant case and plaintiffs’ contention is without merit. On the other hand, even if the Supreme Court en Banc upholds the divisional opinion as to that issue, still Kirkwood does not rule the instant case so as to require a change in our original decision. This for the reason that the specific question before the court in Kirkwood was the application of Sec. A(2), of the 1963 act, now § 71.870, RSMo 1959, V.A.M.S. The court in Kirkwood did not rule upon the applicability of § 71.860, supra, as that section was not there involved.

Another reason Kirkwood, supra, does not rule the instant case is illustrated by the care which we took in the opinion in the instant case to point out that the annexation here involved became effective on April 5, 1960 and that nothing thereafter remained to be done to consummate the annexation. We were cognizant that in Kirkwood, supra, the divisional opinion deals at length with the fact that other actions were required to consummate that annexation and that these would necessarily have to take place after the effective date of the 1963 act, October 13, 1963. It is largely on that basis that § 71.870, supra, was held applicable to the City of Kirk-wood. In the instant case it is undisputed that this annexation was complete and final for over three years prior to the effective date of the 1963 act.

Since the date of the filing of the motion for rehearing, Division No. 1 of the Supreme Court of this state has handed down an opinion which squarely meets the issue of the applicability of § 71.860, supra, to constitutional charter cities which lie within the boundaries of St. Louis County. See St. Louis County, Missouri, and Lawrence K. Roos, Supervisor; and Theodore Glauert et al. v. City of Florissant, Mo., No. 51,204, December 14, 1965. It was therein held that the provisions of § 71.860, supra, were applicable to the City of Floris-sant, a constitutional charter city. Motions for rehearing or for transfer of that divisional opinion are still pending. However, again it should be noted that the annexation involved in the Florissant case had to be consummated after the effective date of § 71.860, supra, 1963 amendment. The election calling for the amendment to Florissant’s charter and providing for the annexation was held on January 14, 1964. There is nothing in Florissant, supra, to indicate the 1963 act is applicable to an annexation completed in April of 1960.

The motion for rehearing must be overruled. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The motion for rehearing is overruled.

ANDERSON, Acting P. J., RUDDY, J., and JAMES D. CLEMENS, Special Judge, concur.


author: L. F. COTTEY, Special Judge.

text:
    The CITY OF ELVINS, (Plaintiff) Respondent, v. Oran DE PRIEST, (Defendant) Appellant.
    Nos. 31687, 31776.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    Roy W. McGhee, Jr., Piedmont, for appellant.
    E. L. McClintock, Jr., Flat River, for respondent.
   L. F. COTTEY, Special Judge.

The City of Elvins has an ordinance levying an annual tax on locally owned motor vehicles, the payment of which is to be evidenced by a sticker which “must be displayed on the lower right hand side of the windshield, as near the lower right hand corner as possible.” Whoever shall fail to comply with the provisions of the ordinance “shall be deemed guilty of a misdemeanor, and upon conviction shall be fined.” Appellant paid the prescribed tax, obtained the sticker and attached it to the windshield of his car, but admittedly not “as near the lower right hand corner as possible.” For that infraction he was arrested and fined in city court. He appealed to the circuit court, was again convicted and fined $1.00 and again appeals.

The decisive question in the case is whether the prosecution was initiated and conducted in substantial compliance with the Rules of the Supreme Court regulating the procedure to be followed in municipal courts in cases of this kind. V.A.M.R., 37.-01 et seq. These facts frame the issue: The city marshal, upon discovery of appellant’s dereliction, issued to him one copy, and filed with the police judge a duplicate, of a partly printed, partly handwritten “ticket” in the following form, the handwritten portions being italicized:

NOTIFICATION OF TRAFFIC VIOLATION
You Must Report To
The Police Judge
No. 352
Date 3-17-62
Time 9-A M Elvins, Mo., March 3-16,1962 State License Number AS-4660
Name Orren DE-Preast
Address Elvins Mo
Location Frount St.
Time 2 30 PM
YOU ARE CHARGED WITH
not Displaying City Licens one are in corriecf Place on winshield of his car You will report to the office of the Police Judge at City Hall, Elvins, on this date and at the time shown above or a Warrant of Arrest will be issued.
This notice is given to you in lieu of immediate issuance and service of warrant for arrest and for your convenience. Please cooperate in the enforcement of these safety measures. No officer or any individual can take care of this ticket for you. You must attend to it yourself.
Officer Henry Harris, City Marshal.

When appellant failed to appear in response to that notice, the police judge summarily issued a warrant for his arrest and his trial ensued without further formality.

Pointing to the fact that no complaint or information was ever filed in the case, appellant insists that his conviction in the city court was a nullity, violative of Rules 37.06, 37.07, 37.08 and 37.18, and that his motion to dismiss the prosecution in the court below should, consequently, have been sustained. Respondent concedes the omission but argues, in the language of Rule 37.28, that in this case it “does not tend to the prejudice of the substantial rights of the defendant upon the merits” because the notice, as supplemented by the recitations of the warrant itself, adequately informed appellant of the nature of the charge against him; hence, that no actual prejudice could have resulted, citing City of St. Louis v. Page, Mo.App., 259 S.W.2d 98.

We may dispose of the authority on which that proposition rests by observing that it turned on a special provision of the Code of the City of St. Louis which finds no counterpart in the record before us, and was decided some seven years before the effective date of the Rules- which were designed to supplant local regulations on the subject. Whatever independent merit the proposition may have must be found in the light of the settled principle that “a prosecution for violation of a municipal ordinance is a civil proceeding with quasi-criminal aspects,” Kansas City v. Martin, Mo.App., 369 S.W.2d 602, 608; and among those “aspects” is the requirement of “a written accusation of crime preferred by a public prosecuting officer,” State v. Noell, 220 Mo.App. 883, 295 S.W. 529, 530. In criminal cases the prosecutor’s formal charge is the indispensable basis of the court’s jurisdiction; without it “[tjhere can be no trial, conviction, or punishment.” 42 C.J.S. Indictments and Informations § 1, p. 833. We find nothing in the Rules to indicate that the framers intended to abrogate that requirement in municipal court cases. On the contrary, the Rules seem to have been devised with an eye alike to the traditional rights of the accused and the orderly administration of justice; and the requirement of a formal, official charge is essential to both. Its dual purpose is to inform the accused “of the essential facts constituting the offense charged,” Rule 37.18, and at the same time protect the courts from the harassment of trials which offer no reasonable prospect “that a case against the accused can be made,” Rule 37.08. Accordingly, the plan contemplates that where the prosecution originates upon the complaint of a private person, it shall proceed no further until the prosecutor, either with or without the preliminary investigation which Rules 37.07 and 37.08 encourage him to make, has satisfied himself that the accusation is not the product of misinformation or malice, and that a trial will not be a mere exercise in futility at public expense.

We conclude, thereforé, that there can be no substitute for the prosecutor’s “plain, concise and definite written statement of the essential facts constituting the offense charged,” Rule 37.18; that such a statement is just as indispensable in municipal prosecutions as it is in criminal eases, and for the same reasons; and that without it, as the Noell case says, supra, 1. c. 530, “[n]o system of jurisprudence could afford a fair trial.” It would serve no useful purpose to list the half score of obvious reasons why the marshal’s notice in this case, even as aided by the somewhat improved syntax of the warrant itself, cannot qualify as an exception to the rule. Both of appellant’s convictions are nullities. The judgment is accordingly reversed.

WOLFE, P. J., and ANDERSON, J., concur.


author: CLEMENS, Commissioner.

text:
    Adrian ARTMAN and Jean Ann Artman, Plaintiffs-Respondents, v. Richard J. O’BRIEN and Esther M. O’Brien, Defendants-Appellants.
    No. 32102.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.

      John Torrey Berger, Jr., of Lewis, Price, Tucker, Allen & Chubb, Clayton, for appellants.
    Elmer J. Meyer, Ferguson, for respondents.
   CLEMENS, Commissioner.

This case presents a problem ever-present .at real estate closings: “Who will pay the taxes?” Here, the parties’ solution to the problem did not stand the test of time. The plaintiffs-purchasers sued the defendants-vendors to recover the amount of real estate taxes accrued against the real estate on the date of transfer. Plaintiffs paid the taxes and then sued defendants, claiming it "was the defendants’ obligation. Judgment was for the plaintiffs, and the defendants appeal. Plaintiffs base their claim on the parties’ original sales contract. Defendants contend their original obligation was modified by a subsequent closing agreement and, also, was extinguished by the warranty deed which consummated the original sales contract. Plaintiffs contend here that the closing agreement and the warranty deed were executed under a mutual mistake of fact as to the amount of the taxes.

The cause was submitted to the trial court upon cross-motions for summary judgment, by which motions the parties concede that there is no genuine dispute as to any material fact. The motions admit execution of the original sales contract and of the subsequent closing agreement and warranty deed. We now relate the substance of these three instruments and the facts as to taxes.

The defendants were in the business of building houses, and they owned a vacant homesite in St. Louis County. In April of 1962, they agreed by the written sales contract to build a dwelling on the lot and convey it to the plaintiffs within one year. Thereby, the plaintiffs promised to pay the defendants $27,340 plus other expenses “as per usual closing practices,” including title costs, survey, recording fees, etc. As to taxes, the sales agreement said: “ * * * general taxes * * * to be prorated and adjusted to date of closing; general tax year to run from January 1st; * * It is this clause that gives rise to plaintiffs’ claim.

A year later the house was finished and on April 1, 1963, the sale was closed. A closing statement was prepared, read, accepted and executed by the parties, whereby the defendants agreed to do some repair work desired by plaintiffs; and they charged the plaintiffs with the purchase price plus title charges, survey expense, and certain construction “extras” which plaintiffs had ordered during construction. And, by the closing statement, the defendants gave plaintiffs credit for their down-payment, for the proceeds of a purchase loan, for some furnishings the plaintiffs had supplied, and “general taxes for year 1963, $60.00, prorated for 3 months, $15.00.”

Also on April 1,1963, the defendants executed and plaintiffs accepted and recorded, a general warranty deed to the premises. The defendants thereby warranted title “* * * excepting, however, the general taxes for the calendar year 1963 and thereafter, * *

General taxes on the premises paid by defendants for the' previous year of 1962 were $60. The amount of general taxes for 196J was not known to the parties when they closed their transaction on April 1, 1963. That amount could not then be known for several months, until the property had been assessed, the rates of levy of the various taxing bodies had been declared, and those rates had been extended onto the tax books. (See Chapter 137, RSMo 1959, V.A.M.S.) Taxes for the year 1963 were eventually levied in the amount of $485.41,-which plaintiffs paid. They contend that the defendants should be charged with one-fourth of that amount, $121.35, instead of one-fourth of the 1962 taxes, $15. Their petition asks for the difference, $106.35.

As said, the case was submitted to the trial court on cross-motions for summary judgment; and when judgment was rendered for plaintiffs for $106.35, the defendants appealed. Defendants contend that their own motion for summary judgment should have been granted. We are compelled to agree.

Defendants contend that the sales contract was modified and superseded by the closing agreement. The sales contract was an executory agreement, the essence of which was the ultimate exchange of title and purchase price. An adjustment for credits and charges for items not intially ascertainable was inherent in the sales contract. The parties thereafter executed a new contract by executing the closing agreement, which modified the original sales contract by substituting new obligations. The warranty deed was then executed and accepted in accordance with the modified agreement. Absent fraud or mistake, the terms of the modified contract were binding on the parties. 91 C.J.S. Vendor and Purchaser §§ 113, 119; Davis v. Culmer, 221 Mo.App. 1037, 295 S.W. 803 [3-6]; Rice v. Provident Life & Accident Ins. Co., 231 Mo.App. 560, 102 S.W.2d 147 [6].

Defendants further contend that the obligations of the original sales contract were discharged by and merged into the warranty deed accepted by the plaintiffs. This doctrine of merger is stated in 2 Devlin on Deeds (3d Ed.), p. 1570, § 850a: “* * * ‘No rule of law is better settled than that where a deed has been executed and accepted as performance of an executory contract to convey real estate, the contract is functus officio, and .the rights of the parties rest thereafter solely on the deed.’ ” The doctrine was applied in the early case of MacLeod v. Skiles, 81 Mo. 595, where plaintiff relied on a sales contract to recover taxes which were later excluded by the terms of the deed executed in pursuance of the contract. At loc. cit. 604, the court said:

“ * * * The covenant in this deed especially saves and excepts the taxes of 1877. The party cannot accept a deed with such a covenant and escape its force and effect by verbal protestations and stipulations to the contrary. If he does not like the deed with such a limitation he had the right, and it was his plain duty, not to accept it at all. He was not compelled to do so. By its acceptance he abandoned and waived the prior written agreement which called for a general warranty. This prior written agreement, it may be remarked, was executory in its character and the delivery and acceptance of the deed in question abrogated the prior agreement, and thereafter the rights and liabilities of parties are measured and determined by the contracts and covenants in the deed so delivered and accepted. [Citing cases.] ⅜ * * »

For later applications of the doctrine of merger, see numerous cases listed in 10A Mo.Dig., Deeds, ®=>94. For this further reason, plaintiffs may not rely on the abandoned provisions of the sales contract.

The plaintiffs do not deny these general defenses of modification and merger. They seek to avoid them by arguing that they do not apply here because there was a mutual mistake of fact. They say that at the time the closing statement was executed, both parties “thought they were adjusting the taxes in accordance with the sales contract”; and that all parties assumed that “the taxes for 1963 would be $60.00.” To support the legal basis of this contention, plaintiffs cite five cases: “Bubach vs. Musick, 256 S.W. 116 (Mo.App., 1923); Barger vs. Healy [276 Mo. 145], 207 S.W. 499 (Mo., 1919); Employers Indemnity Corp. vs. Garrett [327 Mo. 874], 38 S.W.2d 1049 (Mo., 1931); Regan [Ragan] vs. Schreffler, 306 S.W.2d 494 (Mo., 1957); Smith vs. Gethens [Githens], 271 S.W.2d 374 (Mo.App., 1954).” These cases merely acknowledge that the principles of modification and merger are applicable in the absence of fraud, accident or mistake; but not one grants relief on the ground of mutual mistake, as plaintiffs urge us to do here.

A mutual mistake is one common to both contracting parties, wherein each labors under the same misconception as to a past or existing material fact. See 17 C. J.S. Contracts, § 144a; Oakley v. Duerbeck Company, Mo., 366 S.W.2d 430 [2]; and Jennings v. Metropolitan Life Ins. Co., Mo. App., 166 S.W.2d 339 [2-5], for these further qualifying words: “ * * * But a mutual mistake in prophecy or opinion may not be taken as a ground for rescission where such mistake becomes evident through the passage of time. What is today only a conjecture, an opinion, or a guess, might by tomorrow, through the exercise of hindsight, be regarded then as an absolute fact. * * * ”

To bring plaintiffs within the ambit of the exception of mutual mistake, there are before us only the facts we have stated at the outset of this opinion and the argument in plaintiffs’ brief that the parties were mutually mistaken as to the amount of taxes for 1963. In oral argument here, plaintiffs’ counsel says that mutual mistake may be inferred from record. However, mutual mistake is an affirmative issue, and proof thereof must be clear and convincing. 17A C.J.S. Contracts § 584a; Psinakas v. Magas, 161 Mo.App. 19, 142 S.W. 1086 [1]; and Lemp Hunting & Fishing Club v. Hackmann, 172 Mo.App. 549, 156 S.W. 791 [4]. The record here does not meet that standard.

At the time of closing, on April 1, 1963, the amount of the current taxes could not be ascertained; so it was impossible to conclude the sale precisely as agreed upon in the sales contract. Instead of solving the problem say by an escrow agreement or by a warranty in the deed, the parties chose to do so by a new agreement, using the amount of the previous year’s taxes as the basis for concluding their executory contract of sate. No facts appear to support plaintiffs’ contention that all the parties then “thought they were adjusting the taxes in accordance with the sales contract,” or that all parties assumed “the taxes for 1963 would be $60.00.” The record here simply does not support a finding of mutual mistake, as that term has been defined above; so we must deny plaintiffs’ contention of mutual mistake. That finding leaves unchallenged the defendants’ meritorious contentions as to modification and merger, and it follows that they should prevail.

The judgment should be reversed and the cause remanded with instructions to enter judgment in favor of the defendants.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court.

Accordingly, the judgment is reversed and the cause is remanded with instructions to enter judgment in favor of the defendants.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: TOWNSEND, Commissioner.

text:
    The BOLLING COMPANY, a corporation, Plaintiff-Respondent, v. The BARRINGTON COMPANY, a corporation, Defendant-Appellant.
    No. 32033.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.

      Flynn, Parker & Badaracco, St. Louis, for appellant.
    Richard O. Funsch, Carter, Bull, Baer, Presberg, Lee & Stanard, St. Louis, for respondent.
   TOWNSEND, Commissioner.

In 1955 the parties hereto entered into a contract in which defendant appointed plaintiff its exclusive agent in the procuring of programs to be broadcast over a radio station operated by defendant. Compensation of plaintiff was stated in terms of a percentage of “the net amount of all national business accepted and carried by us originating in the United States” with the exception of “Business originating from the State of Missouri” and “Business which is currently under contract to us.” The agreement provided for automatic renewal from year to year unless one of the parties gave the other written notice of cancellation ninety days before October 1 of any particular year.

Plaintiff’s amended petition alleges the non-payment of commissions due from defendant over the period expiring with January, 1961, of $8,193.55, for which amount with interest judgment was prayed. Upon the trial of the action plaintiff’s only witness testified from plaintiff’s Exhibit B; defendant objected to the admission of such exhibit and to the witness testifying therefrom. The exhibit to which objection was made included an accounting period beyond that specified in the petition, namely, from January, 1961, to September, 1961; the whole of the account as shown by the exhibit charged commissions earned of $10,-853.31. Deducting from the latter sum the amount of certain admitted payments, namely, $500, $1000 and $4580.87, the exhibit shows a balance of $4,772.44 due from defendant. The jury returned a verdict of $4,772.44 for the plaintiff.

By the terms of the contract defendant agreed to remit by the 25th of each month all commissions due plaintiff on cash received, together with a detailed statement of all national business done under the terms of the agreement in the preceding month. After differences as to the balance owed by defendant had developed, in May, 1961, defendant wrote to plaintiff enclosing the payment of $1000 heretofore noted. In the same letter defendant requested plaintiff to send a copy of “your records for the years 1959 and 1960 and also the monthly breakdown for the named years.” Plaintiff complied with this request.

Defendant’s president testified that defendant had not been able to locate either letters of confirmation sent by plaintiff or contracts with certain sponsors or the compilation sent by plaintiff in response to defendant’s request of May, 1961. The witness explained that his office had been moved twice, once within the city of St. Louis and then to Columbia, Missouri and that in the course of such moves all records of transactions with plaintiff had been lost or placed in storage in some unknown depository.

The testimony on the point is unprecise, but it appears that the method of placing an order for a particular program was as follows: Plaintiff would call upon an advertiser or an advertising agency and “sell” the advertiser a schedule or campaign, quoting the rate previously published by defendant. Plaintiff would then communicate with defendant’s president and secure approval of the rate and the time of broadcast. Thereafter plaintiff would confirm the sale of the time by a letter form of confirmation. Two copies of such confirmation letters were sent to defendant, one bearing a notation “Return Now! Approved date-. By -.” The latter copy would be returned to plaintiff after it had been ini-tialled by defendant’s officer and the other copy retained for defendant’s files.

Plaintiff’s Exhibit B consisted of a sheaf of sheets, each denominated Monthly Statement and showing, by months, programs broadcast by WEW together with the gross billing therefor and plaintiff’s commission thereon. Plaintiff’s witness testified that “These are a recapitulation of the monthly statements that we sent to The Barrington Company, WEW, for monies owed us.” At another point plaintiff’s witness stated that “these records” were made up in response to defendant’s letter of May 10. And “we even tried * * * be helpful, to make up the records from our book * * * We went to our books and records. We got every single account that had been broad-casted on WEW and capitulated them, wrote them down.” Q: “Did you have records at your company that, showed the amount of time that was in fact covered by The Barrington Company?” A: “Yes.” Q: “Where did you get these records?” A: “From the confirmations that Mr. Bar-rington signed.”

From this testimony it is impossible to determine the exact sources from which the offered information contained in Exhibit B was derived; one can only speculate. One portion of the testimony might lead to the conclusion that plaintiff rendered monthly statements to defendant and that Exhibit B is simply a compilation of copies of such statements so rendered. Another bit of plaintiff’s testimony might indicate that the exhibit came into existence only after May 10, 1961, and that each sheet therein was a summary of transactions with WEW for a particular month, the'source of which was the various advertisers’ accounts found in plaintiff’s books. Another speculative venture might lead one to the belief that the exhibit was simply a recapitulation of the letters of confirmation initialled by defendant’s officer and returned to plaintiff. It is evident that the sheets of Exhibit B are either copies of some anterior records or that the entries on each such sheet are derived piecemeal from other records. In any event they are not original records.

It is clear that the exhibit in question was not made admissible by the Uniform Business Records as Evidence Act. (Section 490.680, RSMo 1959, V.A.M.S.). Being copies or summaries of antecedent records the various sheets of the exhibit were not made in the regular course of business and obviously they were not made at or near the time of the various acts, events or conditions which they purport to record.

Throughout the presentation of plaintiff’s case defendant objected to the admission of Exhibit B and to any testimony based thereon and was repeatedly overruled. Defendant maintains that the best evidence rule required the rejection of Exhibit B and any testimony based thereon and that error was committed by the trial court in permitting its admission.

While the term “best evidence” may have anciently embodied a broader concept, modern authorities have found that at the present time, except for some infrequently found fringe areas, the term comprehends on the whole a very restricted area — but one highly pertinent to the instant case. Thus, Wigmore, in reviewing the uses to which the term has been put historically, says: “(1) Chiefly, and usually, the phrase [‘producing the best evidence’] was employed for the rule that the terms of a document must be proved by the production of the document itself, in preference to evidence about the document. This is the use that has longest survived, and its illustrations are too numerous to need citation.” 4 Wigmore Treatise on Evidence, Section 1174 (Emphasis that of the author). And McCormick concludes that “The only actual rule that the ‘best evidence’ phrase denotes today is the rule requiring the production of the original writing.” McCormick, Handbook of the Law of Evidence 409.

Both the ancient character of the rule and its modernity are well illustrated by Miller v. John Hancock Mut. Life Ins. Co., Mo.App., 155 S.W.2d 324, 326, where it is said: “It has been a uniform rule of evidence and so announced by our Supreme Court as early as the year 1830 in the case of Benton v. Craig, 2 Mo. 198, that ‘A witness cannot testify to the contents either of a record or of any written instrument, unless its absence be accounted for.’” The occasions and the methods by which the absence of the writing may be accounted for are limited and the established standards are strict. Thus, if the original writing has been lost, secondary evidence as to its contents is admissible. Scrivner v. American Car and Foundry Co., 330 Mo. 408, 50 S.W.2d 1001; Triplett v. Wyatt, Mo.App., 360 S.W.2d 386. Or, if the writing has been destroyed, such secondary evidence is proper. Nibler v. Coltrane, Mo., 275 S.W.2d 270, 274 (but with a caveat if destruction was by the party seeking to use secondary evidence. See In re Estate of McCollum, Fla., 88 So.2d 537). Likewise, if the writing is outside the jurisdiction and not within the possession or control of either party, testimony as to its contents is proper. Thurman v. St. Louis Public Service Co., Mo., 308 S.W.2d 680; Fuller v. Robinson, 230 Mo. 22, 130 S.W. 343; Schwall v. Higginsville Milling Co., 195 Mo.App. 89, 190 S.W. 959; Locke v. Woodman, Mo.App., 225 S.W. 352. Or if by the laws of the other jurisdiction the writing may not be removed from that state, the proponent may so prove its contents. Citizens State Bank v. Ferson, Mo.App., 208 S.W. 136.

Where records or accounts are lengthy and complicated and the original records are in the courtroom, an accountant or auditor may testify as to summaries of the pertinent items which he has prepared. Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43; State ex rel. Sullivan County v. Maryland Casualty Co., 334 Mo. 259, 66 S.W.2d 537; Masonic Mut. Benefit Society v. Lackland, 97 Mo. 137, 10 S.W. 895; State v. Findley, 101 Mo. 217, 14 S.W. 185. And see Berthold-Jennings Lumber Co. v. St. Louis, I. M. & S. R. Co., 80 F.2d 32, 102 A.L.R. 688 (C.C.A. 8th) ; State ex rel. State Highway Commission v. Cone, Mo., 338 S.W.2d 22.

Here, the Court put to plaintiff’s president the question: “Do I understand your original records are in your office in New York City?”, to which the witness responded: “That’s correct.” Therefore we do not have here a situation where the absence of the originals is appropriately “accounted for”. They have not been lost or destroyed. The fact that the originals are outside the state has no significance here; the pursuing party has for its own reasons, perhaps of convenience, deliberately chosen not to put them into evidence and seeks to make its case with a type of evidence which plainly is not the best evidence, although: it has unfettered control over such best evidence — the originals. Plaintiff is not aided by the rule relating to summaries of voluminous and complicated records. The originals were not made. available to defendant for the purpose of cross-examination. More importantly, plaintiff’s own testimony leaves uncertain the identity of the original records from which Exhibit B was compiled and so leaves unsatisfied the requirement that, in any event, to make secondary evidence admissible the proponent must show that the asserted originals would have been competent evidence. Here the best evidence rule was honored in the breach. We hold that Exhibit B was not admissible.

Plaintiff’s final defense of Exhibit B is in essence a claim that defendant waived its objection to the exhibit because defendant, after its objection had been overruled, adverted to some portions of the exhibit in the course of defendant’s testimony. The circumstances were these: A controversy clearly existed as to whether plaintiff was entitled to compensation for certain programs broadcast by defendant; defendant contended that these programs were not “commissionable” under the terms of the contract. In addition, defendant denied the liability alleged in Exhibit B for programs broadcast after defendant’s sale of the station. Deducting the charges made in Exhibit B in respect of such disputed programs and assuming the correctness of the balance of the exhibit up to January, 1961, defendant would admit a balance owing by it of $668.21. But the basis of any such qualified admission is made clear by the witness’ statement that “This is based on a calculation on the figures which plaintiff has submitted and reconciling any claims that we have.” Explaining the $668.21 amount at a subsequent point, defendant’s witness stated that, in arriving at such amount, “We started with the amount that claimant is making at the present time and we deducted from that the sums” that were charged in the exhibit for the controverted programs and those for a period after defendant sold the radio station in January, 1961. These statements of defendant’s president were obviously based upon the hypothesis that if the charges shown on Exhibit B are correct (after de-; ducting the controverted programs and period) a certain balance is owed by defendant. But the computations by which defendant arrived at such result were purely contingent and based upon the validity of the assumption that the charges were correct. Defendant’s utilization of certain portions of Exhibit B solely for the purpose of making such contingent computations cannot be regarded as an acceptance of the rest of the account shown by Exhibit B. Not having the original records before it, defendant had no way of checking the accuracy of the charges made. Under such circumstances, we do not regard defendant’s references to Exhibit B as a waiver of its objection. At another stage, defendant’s counsel asked defendant’s only witness the amount of commission charged in Exhibit B in respect of each controverted program. The witness thereupon stated his computation as to each. From this it is difficult to see how defendant adopted any part of Exhibit B as its own. As that exhibit was going to the jury, this testimony simply pointed out the inclusion therein of alleged liability for items which was otherwise disputed by defendant. Confronted by a fact and not a theory, defendant simply called attention to that inclusion.

For the reasons stated it is clear that judgment must be reversed and the case remanded. Hence alleged errors in instructions to the jury need not be here considered; they will no doubt have the close attention of counsel upon a retrial of the case.

Judgment reversed and case remanded.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is reversed and the case remanded.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: BRADY, Commissioner.

text:
    Marion JOHNSON, Plaintiff-Respondent, v. H. Sam PRIEST, Russell L. Dearmont, Kenneth Teasdale, Alphonse G. Eberie, Members of the St. Louis Metropolitan Board of Police Commissioners, and Raymond R. Tucker, Ex Officio Member, Defendants-Appellants.
    No. 31668.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    Thomas F. McGuire, City Counselor, St. Louis, Eugene P. Freeman, Associate City Counselor, for defendants-appellants.
    James J. Rankin, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This is an appeal from a judgment of the circuit court reversing an administrative determination by the Board of Police Commissioners of the City of St. Louis dismissing the respondent from the Police Department for cause. We will refer to the respondent by that designation and to the Board of Police Commissioners as “the board.”

The circuit court’s judgment was responsive to plaintiff’s petition for review. The record brought to the circuit court from the board consists of the following: the charges and specifications made by the department against the plaintiff; the transcript of the testimony of witnesses appearing at the board’s hearing; documentary evidence in the form of the plaintiff’s “daily activity sheet,” the “Police Manual,” and the Police Department’s report file relating to the plaintiff’s record while with the department; and the board’s decision which consisted of written findings of fact and conclusions of law and the order entered based thereon. The “Police Manual” provides for the government and discipline of officers of the department. Certain of the rules contained in the Police Manual govern the conduct in the performance of duty by officers of the department. Other rules regulate the procedures to be followed in hearings before the board involving a contested disciplinary proceeding relating to violation of department rules. These require that a formal pleading containing the charge or charges of one or more violations of a rule and a specification of facts which allegedly supporting each charge must be filed to commence a contested disciplinary proceeding. In the instant case all of the charges and the facts related in the specifications filed in support thereof arose from the same occurrence.

The specific charges made against the plaintiff were as follows: Charge I was an alleged violation of Rule IS, Section 2, relating to “conduct unbecoming an officer” ; Charge II was a violation of Rule 7, Section 2, Subsection K, which provides that an officer “fsjhall not take part or be concerned, either directly or indirectly, in making or negotiating any compromise or arrangement with any person whatsoever, the purpose or object of which may be to permit one accused of wrongdoing to escape the penalty of the law * * and Charge III alleged a violation of Rule 27, Section 6, which provides that “[n]o member of the Department shall accept, directly or indirectly, from any person liable to arrest or complaint or in custody, or after discharge * * * any reward or gift whatsoever.” Each of these charges was supported by a detailed specification.

The findings of fact as made by the board were: that on the occasion out of which the charges arise the plaintiff was a member of the Police Department and assigned to duty in the Ninth District; that on the date of the occurrence out of which the charges arise he was on duty in a one-man patrol motor vehicle being the only unmarked black patrol vehicle present in the Ninth District at that time; that at approximately 3:00 a. m. on the date of this occurrence the plaintiff, while alone, stopped, detained and accused Jessie Jackson of operating a motor vehicle without a lawfully required driver’s license and of failing to obey the signal of an electric traffic control device located at the intersection of Cass and Grand Avenues in the city; that during the course of talking to and questioning Jackson and Charles Archie, a companion of Jackson, the plaintiff was found to have learned that Archie was in charge and control of the motor vehicle and had permitted Jackson to operate it; that the plaintiff threatened to take Jackson into custody and to conduct him to the Ninth District station house but did not do so after requesting and accepting a bribe from the said Archie and Jackson in the form of $17.00; that upon receipt of this amount he permitted these two persons to remain at liberty without any charges being placed against them. The last two paragraphs of the board’s written findings of fact should be set out in full and are as follows: “6. That the said patrolman, through his testimony before this Board, denying the occurrence of the above facts, falsely testified and is not believed by this Board; 7. That the two witnesses, Archie and Jackson, have not been shown to have any motive for charging Patrolman Johnson with commission of the foregoing facts, other than normal outrage at being blackmailed by an officer of the law; and their credibility upon testifying is considered reliable and truthful.”

It further appears after the occurrence described in the findings of fact two other police officers noticed Archie and Jackson “hanging around” a phone booth located on the premises of a filling station at Cass and Spring Avenues. The officers deemed this suspicious and interrogated these men. Archie then told the officer of the bribe and stated he was attempting to call police headquarters. These officers took Archie and Jackson to the Ninth District Station where their story was repeated.

In the instant case the briefs and the transcript disclose that there is no dispute with regard to the presence of evidence sufficient to support the findings of fact made by the board. The respondent did not contend before the circuit court, nor does he contend now, that the testimony of Jackson and Archie, if believed, is insufficient to support the findings made. As is apparent from the petition for review filed with the circuit court and from his brief before this court the plaintiff bases his entire case upon the allegation that Archie and Jackson were unworthy of belief. That is the issue presented for our decision. The plaintiff’s position is summed up by this following allegation from the petition for review: “* * ⅜ This testimony would leave no reasonable assumption other than that these men were lying and it was unreasonable and arbitrary and capricious on the part of the Board to ‘rubber stamp’ so to speak the testimony of these men wholly in disregard of the testimony of Officer Marion Johnson who had served fifteen years as a police officer without a blemish on his record.” In this connection it must be borne in mind that the circuit court was not authorized to reverse the board’s decision merely because the testimony of Archie and Jackson was weakened by contradictions. Since he does not contend their testimony, if believed, was insufficient to support the board’s decision, to prevail the plaintiff must show that Jackson and Archie were completely and utterly unworthy of belief. This is so due to the limitations of the review that can be given in such matters by the circuit court and upon appeal to this court. See § 536.140, RSMo 1959, V.A.M.S. It is too well settled to require citation that neither the trial court nor this court may substitute its judgment on the evidence for that of the board. The inquiry by the circuit court and that of this court is limited to ascertaining whether the board could have reasonably made its findings and reached its result upon consideration of all the evidence before it and whether the board’s decision was clearly contrary to the overwhelming weight of the evidence.

The plaintiff. attempts to bear this burden by setting out certain testimony given by Archie and by Jackson which he characterizes as “totally contradictory.” Reference to the transcript does indicate that there was some contradiction and confusion between Archie and Jackson as to several matters. For example, Jackson consistently maintained that Archie picked him up at his home whereas, Archie, after first agreeing with this version, testified the meeting place was at a tavern. However, Archie explained that apparent contradiction later in his testimony by stating that he confused a statement made by Jackson as to where he would be. Another example relates to the testimony of these witnesses with respect to where the parties were when the money was passed to the officer, on the sidewalk or in the police car. Other alleged contradictions involved whether Archie and Jackson violated the electric traffic signal at Grand and Cass Avenues and where the parties were positioned when the initial contact with the officer took place. A careful search of the transcript discloses that there is little, if any, variation in the testimony of Archie and Jackson on these matters and it is unnecessary to burden this opinion with a minute and detailed examination of the evidence with reference to them. What little variation does exist was not of such consequence as to authorize the board to completely disregard the clear and unequivocal testimony of these witnesses on the essential issue; i. e., did the plaintiff accept a bribe of $17.00 in return for allowing Archie and Jackson to escape being charged with the violations the officer who accosted them had observed or had discovered during his interrogation of them.

There are at least two other matters to which Archie and Jackson testified without contradiction and which certainly bear upon the issue of whether their testimony is worthy of belief. The first of these was the fact that both witnesses gave a detailed description of the unmarked black police vehicle the officer who solicited and accepted their money was operating. There was only one such vehicle in the entire Ninth Police District and it was being operated by the plaintiff. Such a vehicle is totally different from the standard police equipment, and it was admitted this vehicle was being operated in the general area by the plaintiff during the time when this occurrence allegedly took place. These witnesses described this vehicle prior to the time they knew the name of the officer who stopped them.

The second fact is that Archie gave a detailed physical description of the officer who stopped them prior to his later identification of plaintiff from a line up of police officers. There was never any claim that this description did not correspond to the plaintiff’s physical characteristics. Plaintiff seeks to dilute the effect of this testimony by relying on Archie’s admission he had seen the plaintiff prior to the date of this occurrence. He couples this with the fact that when Archie and Jackson first told their story of the bribe they were being interrogated by another officer whose interest had been aroused by actions by Archie and Jackson which he termed “suspicious.” Plaintiff’s argument is based upon the assumption that Jackson and Archie made up this story to explain away their suspicious behavior near a filling station and in doing so Archie described an officer he had previously seen. That inference might be drawn from this combination of facts but equally available was the inference that they had indeed been attempting to contact police headquarters by use of the telephone. The finders of the fact did not draw the inference the plaintiff now urges upon us. Perhaps this was because there was nothing in the record to raise any inference that Archie and Jackson had any activity in mind other than that stated. In any event we cannot substitute our judgment on the facts for that of the board.

We are not to be understood as ruling this case upon any decision of our own as to the credibility of Jackson and Archie or as to whose story should be believed. We mention the evidence which supports the view that these men were worthy of belief merely to show that their stories were not so completely and patently false as to entitle the trial court or this court to totally disregard them and to illustrate that a decision based upon their testimony could not be held to be contrary to the overwhelming weight of the evidence. That being so, the issue presented to the board simply was who to believe, Jackson and Archie or the plaintiff. As stated in findings 6 and 7 as set out earlier in this opinion, they chose to believe Jackson and Archie and to disbelieve the plaintiff. It has repeatedly been stated that, in reviewing matters of this nature, the circuit court, and this court, should adhere to the rule of deference as to findings involving the credibility of witnesses appearing before the administrative board. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; State ex rel. Bond v. Simmons, Mo.App., 299 S.W.2d 540.

In view of the narrow issue upon which this case must have turned when presented to the board; i. e., who to believe, the rule of deference is decisive of this appeal provided that the board’s decision was not clearly contrary to the overwhelming weight of the evidence. As has been indicated, we do not so find it. The rule of deference compels us to reverse the circuit court’s judgment and to remand this cause to that court with directions that it enter its judgment affirming the decision of the Police Board of the City of St. Louis.

PER CURIAM.

The foregoing opinion by BRADY, C, is adopted as the opinion of this court. The judgment is reversed and the cause remanded to the circuit court with directions to enter its judgment affirming the decision of the Police Board of the City of St. Louis.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Harold FRIEDMAN, Appellant.
    No. 32205.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.

      William J. Hough, Clayton, Alfred I. Harris, Charles L. Moore, St. Louis, for appellant.
    Daniel V. O’Brien, Pros. Atty., Jack E. Koslow, Richard E. Crowe, Barbara Kurtz, Asst. Pros. Attys., Clayton, for respondent.
   DOERNER, Commissioner.

The defendant in this case was charged with having, with intent to defraud, given a check to C. Hamlin Short, drawn upon a bank in which defendant knew he had no funds, an offense made a felony by Section 561.450, RSMo 1959, V.A.M.S. Defendant waived a jury and the case was tried to the court. Supreme Court Rule 26.01(b), V.A. M.R. At the conclusion of all the evidence the court found the defendant guilty of violating Section 561.460, which makes it a misdemeanor to draw and deliver, with intent to defraud, a check upon a bank when the drawer knows he has insufficient funds in or credit with such bank for the payment of the check in full. The sentence imposed was a year in the county jail and a fine of $1,000. Defendant appealed to the Supreme Court, which on motion of the Attorney General transferred the appeal to this court, where appellate jurisdiction is vested. State v. Bradley, Mo.App., 247 S.W.2d 351, 353. After the appeal was transferred the Prosecuting Attorney did not enter his appearance or participate in the hearing, and we have not had the benefit of a brief from him.

It is not necessary to relate the evidence since the defendant has not made any attack on that feature of the case. In fact, the sole and only point raised by the defendant on appeal is one of law. As succinctly stated in defendant’s brief it is: “ * * ⅜ Can a defendant charged under Section 561.450 be found not guilty of that charge and under the information charging therewith be found guilty under Section 561.-460 ? * * * ” In contending for a negative answer to the question he propounds defendant asserts that the verdict was erroneous, first, because it was not resporfsive to the charge made by the information and was not so sufficient, definite and certain as to constitute a bar to further prosecution for the same offense; and second, that the offense made a misdemeanor by Section 561.460 is not a lesser included offense to that under Section 561.450.

As to defendant’s first contention, if the offense charged in the indictment encompasses a lower degree or lesser included offense, which is submitted, a verdict of guilty of the lower degree or included offense is responsive to the charge pleaded. State v. Wilson, Mo., 34 S.W.2d 98; State v. Baublits, 324 Mo. 1199, 27 S.W.2d 16; State v. Bragg, Mo.App., 220 S.W. 25. And contrary to defendant’s argument, a verdict of guilty of a lower degree than that charged or of a lesser included offense is in effect an acquittal of the greater offense pleaded in the indictment or information, and would constitute a bar to the further prosecution of the same offense. State v. Brannon, 55 Mo. 63; State v. Ball, 27 Mo. 324; State v. Grimes, 29 Mo.App. 470; State v. Bragg, supra.

A more difficult question is presented by the second part of defendant’s argument, that the offense made a misdemeanor by Section 561.460 is not a lesser included offense under Section 561.450. Since the latter section specifies and prohibits various methods of cheating and defrauding, State v. Scott, Mo., 230 S.W.2d 764, with only one of which we are here concerned, defendant’s query should be restated and restricted to the issue of whether the offense under Section 561.460 of giving a check on a bank in which the drawer knows he has not sufficient funds or credit for the pay-' ment of such check, a misdemeanor, is a lesser included offense of that part of Section 561.450 which makes it a felony for a drawer to give a check on a bank in which he knows he has no funds.

Paragraph (c) of Rule 27.01 of our rules of criminal procedure provides that, “The defendant may be found guilty of an offense necessarily included in the offense charged * * In State v. Amsden, Mo., 299 S.W.2d 498, 504, it was said that this provision does not change the principle embodied in the former governing statute, Section 556.230, which, in pertinent part provided: “ * * * and in all other cases, whether prosecuted by indictment or information, the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him.” As to the test to be applied in determining whether an offense is a lesser crime necessarily included in the greater offense charged the court quoted with approval the following test given in 27 Am.Jur., Indictments and Informations, Sec. 194, p. 739:

“ * * * -The statement of the general rule necessarily implies that the lesser crime must be included in the higher crime with which the accused is specifically charged, and that the averment of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser, to sustain a conviction of the latter offense. If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.”

In accordance with these principles it has been held that a defendant charged with murder may be convicted of an assault with intent to kill, State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42, or with manslaughter, State v. Wilson, Mo., 34 S.W.2d 98; one indicted for assault with malice may be found guilty of an assault without malice, State v. Bryant, Mo., 375 S.W.2d 122; and a charge of rape is held to include the lesser offense of assault with intent to rape, State v. Wells, Mo., 305 S.W.2d 457, or of common assault, State v. Famber, 358 Mo. 288, 214 S.W.2d 40.

Tested by the principles laid down in State v. Amsden, supra, we have reached the conclusion that the offense of giving a check on a bank knowing that one has insufficient funds in or credit with such bank to pay the same in full, prohibited by Section 561.460, is not a necessarily included lesser offense of the crime of giving a check upon a bank knowing that one has no funds therein, proscribed by Section 561.450. It is true that the gravamen of both offenses is the intent to cheat and defraud. State v. Mastin, 277 Mo. 495, 211 S.W. 15; State v. Kaufman, Mo.App., 308 S.W.2d 333. It is also true that other legal and factual elements are common to both crimes, such as the obtaining of money or property from the person defrauded, the misrepresentation, the victim’s reliance thereon, the making and delivery of a check, and the drawer’s knowledge regarding the worthlessness of the check. State v. McWilliams, Mo., 331 S.W.2d 610; State v. Griggs, Mo., 236 S.W.2d 588; State v. Robinson, Mo., 255 S.W.2d 811; State v. Kaufman, supra; State v. Euge, Mo.App., 359 S.W.2d 369, cert. den. 372 U.S. 960, 83 S.Ct. 1014, 10 L.Ed 12. And it would seem obvious that a drawer who knows that he has no funds in the bank when he issues a check must of necessity know that his funds therein are insufficient to pay the same in full.

However, the test approved in State v. Amsden, supra, requires that to be a necessarily included lesser offense it is essential that the greater offense include all of the legal and factual elements of the lesser ; and the concluding part of the rule provides that, “ * * * ‘if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.’ * * *” (299 S.W.2d S04). In this case the necessary element which is included in Section 561.460, and which is not included under Section 561.450, is to be found in the words, “ * * * or credit with, such bank”, which form a part of the former. What is meant by the word “credit” is made clear by Section 561.480, which reads: “The word ‘credit’ as used in sections 561.460 to 561.480, shall be construed to mean an arrangement or understanding with the bank or depositary, for the payment of such check, draft or order.” In order, therefore, to draft an acceptable charge under Section 561.460 it must be alleged not only that the drawer of the check knew that he had insufficient funds in the bank, but also that he knew that he had no credit with such bank for the payment in full of such check; and an indictment or information which fails to contain allegations as to both of these elements is fatally defective. State v. Vandenburg, 9 W.W. Harr. 498, 39 Del. 320, 198 A. 701; Commonwealth v. Bandy, 291 Ky. 721, 165 S.W. 337; State v. Mondry, 48 S.D. 189, 203 N.W. 468. Furthermore, the element of the drawer’s knowledge of his lack of credit must not only be charged, but, as we said in State v. Kaufman, Mo.App., 308 S.W.2d 333, 338-339:

“It was the duty of the State to prove that defendant had insufficient funds in his account and knew it, and also to prove defendant did not have sufficient credit with the bank for payment of the check and knew it. Section 561.460 requires the State to prove that defendant knew ‘at the time of such making, drawing, uttering or delivering, that the maker or drawer, has not sufficient funds in or credit with, such bank, * * *, for the payment of such check, * * * in full, upon its presentation, * * *.’ (Emphasis supplied.) This section of the statute makes it an offense to make and deliver a check with intent to defraud, if the defendant knew he had insufficient credit to pay the check in full. * * ”

To the same effect see State v. Campbell, 70 Idaho 408, 219 P.2d 956; Dailey v. Commonwealth, Ky.App., 248 S.W.2d 425; State v. McCutchan, 219 Iowa 1029, 259 N.W. 23; People v. Owens, 57 Cal.App. 84, 206 P. 473; People v. Bercovitz, 163 Cal. 636, 126 P. 479, 43 L.R.A.,N.S., 667. And since the defendant’s knowledge of his lack of credit is an additional element which must be pleaded and proven in a prosecution under Section 561.460, but not under Section 561.450, it follows that the former is not a necessarily included lesser offense under the latter.

The judgment should be reversed and the defendant discharged. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment is reversed and the defendant discharged.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.