author: SEILER, Judge. DONNELLY, Judge,

text:
    KANSAS CITY, Missouri, Appellant, v. JOHN DEERE COMPANY, Respondent.
    No. 59902.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.
    Rehearing Denied March 13, 1979.
    Aaron A. Wilson, City Atty., George L. DeBitteto, Asst. City Atty., Kansas City, for appellant.
    Howard C. Wright, Jr., City Atty., Larry A. Woodward, Asst. City Atty., Springfield, for amici curiae.
    Thomas J. Wheatley, William H. Bates, Stuart W. Conrad, Kansas City, for respondent.
   SEILER, Judge.

In this direct appeal by the city of Kansas City, we are presented with the question whether the city can constitutionally make a distinction between the way it arrives at the occupational license tax for a new business starting during the year and the way it arrives at it for an existing business.

The city filed suit against respondent John Deere Company, classified as a merchant, to collect alleged occupational license tax deficiencies for the years 1966 to 1970, inclusive. The city’s occupational license tax ordinance in force during those years fixed the annual license tax for already established merchants at the rate of $1.00 per $1,000 of annual gross receipts in the preceding year. As to new merchants (those commencing business during the year), it provided for a preliminary license issued as of the date of beginning business and valid for the remainder of the calendar year, at the same $1.00 rate, but calculated, through adjustments at the end of the preliminary license period, on the basis of the actual gross receipts during the balance of the year. Then, for the first full year’s license of the new merchant, the city used a formula of multiplying by twelve the average monthly gross receipts for the time during which the new merchant operated in the prior year. Thereafter, the annual license for the “new” merchant is computed on the annual gross receipts for the preceding calendar year.

John Deere filed a motion for summary judgment, contending that under the ordinance the tax was not uniform on all merchants in Kansas City, thus violating Mo. Const, art. X, § 3, which provides, in part, that “[tjaxes may be levied and collected for public purposes only, and shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax”. The trial court agreed and entered judgment for defendant, relying on City of Cape Girardeau v. Fred A. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040 (1940).

The city maintains the ordinance does not violate the uniformity requirements of the constitution; rather, it makes a subclassifi-cation of merchants into those which are newly starting into business and those already in business and the tax imposed on each subclass is uniform within itself. The former are issued preliminary licenses, with the final tax being calculated at the end of the year on the gross receipts for the portion of the year for which they were in business, with the next year’s license being based on annualization of the monthly average gross receipts for the partial year. The latter are issued annual licenses based on the gross receipts for the preceding year. The general rule regarding the classification of subjects for taxation is stated in 84 C.J.S. Taxation § 36:

“[Wjithin constitutional limitations, the state has power to classify persons or property for purposes of taxation, and the exercise of such power is not forbidden by the constitutional requirement that taxation be uniform and equal. So the legislature may arrange and divide the various subjects of taxation into distinct classes and impose different rates on the several classes, or tax one class to the exclusion of the others, without violating the requirement of equality and uniformity, and it may exercise wide discretion in selecting and classifying the subjects of taxation, providing the tax is uniform on all members of the same class, and providing the classification of the subjects of taxation is reasonable and provided the classification of the subjects of the taxation, as has been held, is not arbitrary . . . [T]he legislature, in making a classification for tax purpose, is not required to make meticulous adjustments in an effort to avoid incidental hardships . . . [A]ny substantial and reasonable basis of classification is allowable and a classification will be held valid if not palpably arbitrary . . . ”

In Springfield City Water Co. v. City of Springfield, 353 Mo. 445, 182 S.W.2d 613, 617 (1944), we said: “We think it clear under Sec. 3, Art. X of the State Constitution that a City has the power to sub-classify by ordinance the subjects of taxation enumerated in a general taxing statute if there is a reasonable basis for doing it and nothing in the statute forbids.”

And in Ex parte Asotsky, 319 Mo. 310, 5 S.W.2d 22, 27 (banc 1928): “The question of the propriety of a classification, measured by section 3, art. 10, is largely one for the Legislature. The courts may not declare a particular classification unreasonable and violative of said section . . . unless the classification made cannot be justified on any reasonable grounds . . . ”

And in Barhorst v. City of St. Louis, 423 S.W.2d 843, 846 (Mo. banc 1968): “It is not necessary that the court perceive the precise legislative reason for the classification, and the legislature is not required to preamble or label its classification for tax purposes, or disclose the principles on which they are made. It is sufficient if the court, on review, may find them supported by ‘justifiable reasoning.’ ”

We think that the ordinance is supported by justifiable reasoning.

The end the ordinance seeks is the raising of revenue based on gross receipts. The gross receipts system of licensing and taxing merchants is a workable method of raising municipal revenue, in wide use among Missouri towns and cities, as we see from the briefs of amici curiae herein. When it is used there necessarily must be a way devised to apply it to the new businesses, which have start-up expenses and do not have a prior history of gross receipts, as well as to the existing business or merchant. There are several ways to do this and the method used by Kansas City is one.

What Kansas City has done is to make a subclassification of its merchants: one subclass consists of the established merchants, the other subclass consists of the merchants newly starting into business. Calculating an occupational license tax at a rate of $1.00 per $1,000.00 of gross receipts, but using the gross receipts for the preceding calendar year for established businesses and gross receipts for the balance of the current year for newly starting businesses may well have been considered by the city council a logical way to treat the two fairly and equitably; it allows the established business to know exactly at the beginning of the year what its current license will cost, it puts the new merchant in that position at an early date, and it is a reasonable and sensible method of assuring that there will be no unlicensed merchant in the city and that no merchant, new or old, will be able to avoid some fee based upon gross receipts.

There has to be a starting point for every business. No new business has a record of gross receipts for the preceding calendar year, but this ought not to prevent the city from basing the amount of the license tax on gross receipts for new as well as for old businesses. The treatment of the new merchant is the same as that given the established merchant when he first began operations. One new merchant is treated the same as another new merchant. One established merchant is treated the same as another established merchant. The ordinance thus applies equally to merchants in like conditions and there is an equality of burden among the members of each subclass.

We thus conclude that the subclassification which Kansas City used is a legitimate exercise of the legislative prerogative in determining how best to raise and collect revenue. The classification is reasonably and rationally designed fairly to capture a percentage of gross receipts as license fees and distinguishes between the subclasses of new versus old businesses only to the extent required by the differences between these classes.

We are unable to agree with the trial court’s conclusion that City of Cape Girardeau v. Fred A. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040 (1940) is controlling. In the Cape Girardeau case, the city adopted an ordinance which listed some forty-odd occupations and businesses upon which would be levied a license tax for the privilege of engaging therein within the city limits. One such business was “Automobile Dealers.” No distinction or classification in the definition of “Automobile Dealer” was made between automobile dealers already in business and those who commenced business during the year. The license fee was set on a graduated scale — where the gross receipts of the applicant for the preceding calendar year from the business exceeded $5,000, the tax was $11.25 for the first $5,000 and $2.25 per $1,000 thereafter.

To obtain a license the applicant was required to file a verified statement showing the amount of his gross receipts during the preceding year. But as to any applicant who had not been engaged in business during the preceding calendar year, the city clerk was to estimate the annual gross business for the applicant during the first fiscal year and set the license fee accordingly. Then, at the end of the year for which the license was issued, the licensee was required to furnish the sworn statement called for by the ordinance and a readjustment of the license tax for the year would be made on the basis of the actual gross receipts.

The court pointed out that the first section of the ordinance specifically defined the classes of subjects affected. Among these were “Automobile Dealers.” The court further pointed out that in the section which listed the forty-odd occupations or businesses to be licensed and taxed, there was no subclassification into those who had been and those who had not been “ ‘engaged in such business during the preceding calendar year’ in said city; but so far as any classification provisions of the ordinance are concerned, placed all in the same class for license tax purposes irrespective of the time they first engaged in such business within said city.” Id. at 1043.

The court stated that “[ejonsistent therewith Sec. 2-A of Art. 2 imposed a graduated rate or measure of the license tax upon all subject to the tax. Section 6, however, prescribed a different rate or measure of the license tax for those specifically named in Sec. 1 of Art. 2 who had not been engaged in such business within the city ‘during the preceding calendar year.’ ” Id.

The court declined to make its own sub-classification of the forty-odd subjects named in the section listing the businesses and occupations to be taxed, saying to do so “smacks of judicial legislation and classification.” Id. Since the city council had placed all automobile dealers in one class for the purpose of the license tax, the section which prescribed a rate or measure of the tax for some automobile dealers differing from that prescribed for other automobile dealers violated the uniformity clause of the constitution. This, of course, was sufficient to decide the ease and made further discussion unnecessary.

However, the court in Cape Girardeau went on to add, in dicta, that even if there were a subclassification of the class into those who had been and those who had not been “engaged in such business during the preceding calendar year”, the subclassification could not be sustained, that the difference between the ordinance provisions and the hypothesized subclassification was one of degree and not principle under the uniformity requirement, that there is no natural and substantial difference inhering in the subject matter between dealers who have been engaged in business for a number of years and those who have been engaged in such business for less than a year which would justify any distinction for purposes of taxation for revenue. It compared such classification to a classification of men by color of their hair or other individual peculiarities.

In support of the foregoing the court cited four cases: Ex parte French, 315 Mo. 75, 285 S.W. 513, 514 (banc 1926); Lige v. Chicago, B. & Q. R. Co., 275 Mo. 249, 204 S.W. 508, 510 (1918); State v. Julow, 129 Mo. 163, 31 S.W. 781, 783 (1895); State v. Miksicek, 225 Mo. 561, 125 S.W. 507, 510 (1910).

While these cases contain statements of well settled principles that classification for legislative purposes must be reasonable, not arbitrary, and must bear a just relation to the act or class in respect to which the classification is proposed, they do not, in our opinion, support the proposition that a sub-classification of the type made in the case at bar is void for lack of uniformity. Ex parte French involved a statute which made it a misdemeanor for the bank commissioner or any of his deputies to disclose information obtained in the examination of a bank to any person, except that they could, without penalty, reveal such information to federal examiners or state clearing house examiners. This classification was held to be irrational and unconstitutional. In the Lige case, the statute made it a misdemean- or for any person to enter a passenger train in an intoxicated condition and also made it the duty of the conductor under penalty of a misdemeanor to report to the prosecuting attorney the name of any such person and also the witnesses. The statute provided, however, that it did not apply to dining cars or private cars. This was held to be unconstitutional as an unreasonable classification. In the Miksicek case, the defendant was charged with violation of a statute prescribing the ventilating conditions for bakeries. This was ruled unconstitutional because it applied only to biscuit, bread or cake bakeries, but did not apply to bakeries making pies, pastry, crackers or confection-aries and thus was said to be an arbitrary classification. In the Julow case, defendant was convicted of violating a statute making it unlawful for an employer to prohibit an employee from joining, or to require an employee to withdraw from, a labor union. This was held to be an arbitrary classification, as it did not relate to all working men as a class, so that a non-union man could be discharged for any reason, but a union man could not be if his discharge rested on his being a member of the union.

We do not believe that the cases relied upon by the court in the Cape Girardeau case to support its dicta about the invalidity of a subclassification into those who had or had not done business during the preceding calendar year are analogous to the situation in the case at bar, because as we have discussed, supra, the city had a valid and logical reason for distinguishing between old and new businesses. Additionally, the Cape Girardeau ordinance used a calendar year basis for old dealers and a fiscal year basis for new dealers and then called for a readjustment on the basis of actual gross receipts “[a]t the end of the year for which [the] license was issued”, so that old dealers were using the preceding calendar year and the new dealers a fiscal year, a confusing and illogical basis for comparison which is not found in the Kansas City ordinance.

We hold that the Kansas City ordinance is valid. To the extent that City of Cape Girardeau v. Fred A. Groves Motor Co. is inconsistent herewith, it is no longer to be followed.

Judgment is reversed and the cause remanded for further proceedings consistent herewith.

MORGAN, C. J., and BARDGETT, RENDLEN, SIMEONE, JJ., and FINCH, Senior Judge, concur.

DONNELLY, J., dissents in separate dissenting opinion filed.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

DONNELLY, Judge,

dissenting.

On December 28,1970, the City of Kansas City filed suit against John Deere Company for collection of Occupational License Tax deficiencies for the years 1966 to 1970, inclusive, pursuant to Chapter 21 of the Code of General Ordinances of Kansas City. John Deere Company is classified, for the purposes of this appeal, as a merchant doing business in Kansas City. On February 25, 1976, John Deere filed a motion for summary judgment on the ground that Kansas City’s taxing ordinance, as applied to defendant’s class, imposed non-uniform rates of tax on the class, thus violating Mo.Const. Art. X, § 3. On April 2, 1976, plaintiff moved for summary judgment on this issue. The trial court granted summary judgment for defendant, and plaintiff appealed.

The alleged unconstitutionality of appellant’s taxing scheme arises out of § 21.8 of the Code of General Ordinances, which provided, during the period in question:

“Sec. 21.8. Classification, duration, pro-ration.
All licenses, except as otherwise specifically provided for by ordinance, shall be due on and issued as of January first of the current year and shall expire on December thirty-first of such year. They shall be known as annual licenses and no license shall be issued for more than one calendar year, provided that in the case of a business or occupation newly established at a particular location within the city after the first of a calendar year, a license, to be known as a preliminary license, may be issued as of the date of the beginning of such business or occupation and for the remainder of the current year, upon payment of the fee, or the original portion thereof as herein provided, and upon compliance with other requirements of this chapter, provided that the annual fee, including minimum fees, shall be prorated and paid for the number of months remaining in such calendar year, including the month during which such business or occupation started operations; and provided further, that no such preliminary license may be prorated for less than two dollars ($2.00); and provided further, that in cases in which the preliminary license fee is based on gross annual receipts, or gross annual business, such preliminary license may be issued, as the licensee may elect, for the minimum preliminary license period, or the preliminary license fee may be estimated on the basis of anticipated business and adjusted at the end of the preliminary license period on the basis of the actual gross receipts, or gross business done during such period.”

Defendant-respondent asserts that the use of one tax base to calculate the tax due from a new merchant and a different base to calculate the tax due from an existing merchant violates Mo.Const. Art. X, § 3, which provides:

“Taxes may be levied and collected for public purposes only, and shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. All taxes shall be levied and collected by general laws and shall be payable during the fiscal or calendar year in which the property is assessed. Except as otherwise provided in this constitution, the methods of determining the value of property for taxation shall be fixed by law.”

The trial court held § 21.8 violative of Art. X, § 3 because the tax was not uniform on all merchants within Kansas City’s territorial taxing jurisdiction, relying on City of Cape Girardeau v. Fred A. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040 (1940), which held an almost identical taxing scheme unconstitutional.

Appellant maintains that § 21.8 does not violate Art. X, § 3 because § 21.8 subclassi-fied merchants into those which are new and those which have been in existence for more than one year. This subclassification is achieved, according to appellant, via the issuance of “preliminary” licenses to those merchants who have done business for less than one year and the issuance of “annual” licenses to those merchants with on-going businesses. Kansas City thus maintains that since the tax imposed on each of these separate classes is uniform, there is no constitutional violation.

The general rule regarding the classification of subjects for taxation is stated in 84 C.J.S. Taxation § 36:

“[WJithin constitutional limitations, the state has power to classify persons or property for purposes of taxation, and the exercise of such power is not forbidden by the constitutional requirement that taxation be uniform and equal. So the legislature may arrange and divide the various subjects of taxation into distinct classes and impose different rates on the several classes, or tax one class to the exclusion of the others, without violating the requirement of equality and uniformity, and it may exercise wide discretion in selecting and classifying the subjects of taxation, provided the tax is uniform on all members of the same class, and provided the classification of the subjects of taxation is reasonable and provided the classification of the subjects of the taxation, as has been held, is not arbitrary.”

While there is no precise method of determining the reasonableness of a classification, the classification cannot be “palpably arbitrary.” Barhorst v. City of St. Louis, 423 S.W.2d 843 (Mo. banc 1968). There can be no discrimination between taxable subjects which properly belong to the same class. State v. Metropolitan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225 (banc 1955).

Thus, the issue on this appeal is whether it is reasonable for § 21.8 to classify merchants into those doing business for less than one year and those conducting businesses for a longer period of time.

In Pratt & Whitney Aircraft Corp. v. Unemployment Compensation Commission, 354 Mo. 1017, 198 S.W.2d 1 (bane 1946), this Court upheld the constitutionality of an unemployment compensation statute which provided for varying contributions by employers depending on the length of time each had been engaged in business. In Pratt, the statute in question provided for three classes of employers: (1) those employers who had payrolls in 1939, 1940 and 1941; (2) those employers who did not commence business prior to the 1939-1941 period, but who did commence business before 1941; and (3) those employers who had not been in business two full calendar years prior to 1943. Each of these groups was required to pay a different rate of unemployment compensation contribution. This Court upheld the classifications against an attack which alleged that the statute improperly used the time of commencing business as the sole basis for classification, because the classes were designed to carry out the entire purpose and scheme of the section, which was the assessment of contributions based on employment experience. The classifications were held to be fair and reasonable because:

“[T]he date fixed was not arbitrarily chosen without any just relation to the intended objects of this amendment; . the classifications were not based solely upon the time element; . . . the basis was the dividing line between normal prewar peacetime economy and abnormal war economy.”

Unlike the situation in Pratt, the basis here for Kansas City’s attempted classification of businesses into those which have been doing business for more than one year and those which have been doing business for less than one year is the time element and the administrative convenience which such classification based on time involves. A distinction based solely on length of time doing business is unreasonable where no other distinguishing feature separates a natural class. Cf. Elder v. Smith, 188 Ga. 65, 2 S.E.2d 670 (1939). As stated in City of Cape Girardeau v. Fred A. Groves Motor Co., supra, 346 Mo. at 771-72, 142 S.W.2d at 1045:

“[A]ll automobile dealers within the ordinance definition of automobile dealers are engaged in precisely the same business. There is no natural and substantial difference, inhering in the subject matter with respect to localities, persons, occupations or property, between the automobile dealers who have been engaged in business for a number of years and those who have been engaged in such business for less than a year within a given city justifying any distinction for the purposes of taxation for revenue. . . . Broadly put, constitutional class legislation must include all who belong and exclude all who do not belong to the class. Legislative departments of governmental authorities may not split a natural class and arbitrarily designate the dissevered factions of the original unit as distinct classes and enact different rules for the government of each.”

Since Kansas City’s attempted classification of merchants based on length of time in business is unreasonable as splitting a natural class, the classification fails. Section 21.8 is unconstitutional because the tax it imposes is not uniform on all subjects within the same class.

I respectfully dissent.

      . We have no such problem in the case at bar.
      The city council of Kansas City has made its own subclassification of merchants: new merchants and already established merchants.


source: Caselaw Access Project

author: FINCH, Senior Judge. DONNELLY, Judge, SEILER, Judge,

license: Public Domain

text:
    Bernard PASSER, Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY, and Robert L. Shirkey, Appellants. and Jennie McCLEAN, Appellant, v. Bernard PASSER, Respondent.
    No. 60608.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.
    Rehearing Denied March 13, 1979.

      Robert L. Shirkey, pro se.
    Jack B. Robertson, Kansas City, for appellants.
    William H. Pickett, Pickett & Midkiff, Kansas City, for respondent.
   FINCH, Senior Judge.

This consolidated appeal was ordered transferred under Mo.Const. art. V, § 10, after opinion by the Missouri Court of Appeals, Western District. It involves two cases concerned with Bernard Passer’s claim that he was entitled to a statutory attorney’s lien under § 484.140 in connection with his representation of Jennie McClean on her claim for personal injuries. Although we reach a result different than that reached by the court of appeals, we use portions of its opinion (without quotation marks) in stating the facts.

On June 4, 1966, McClean suffered serious injuries when an automobile in which she was a passenger and which was driven by Charles Gallipeau was involved in a collision. She was taken to Kansas City General Hospital. She knew Passer, having done some secretarial work for him, and the next morning she got in touch with him and asked him to come to the hospital. Passer did so and McClean asked him to help her in being transferred to Research Hospital. Passer said that in order to assist her he would have to become her counsel. McClean agreed to this. Passer produced a form contract of employment which McClean executed, thereby employing Passer to represent her and prosecute her claim against Gallipeau and the driver of the other vehicle, Houchins, on a 50% contingent fee basis.

Passer wrote to Gallipeau on June 10, 1966, as follows:

“Dear Mr. Gallipeau:
“This is to advise you that I have been retained by Miss Jennie McClean to represent her in her claim against you for personal injuries received as a result of an automobile accident in which you were involved with another car driven by Clifford Houchins on or about June 3 or 4, at or near Seventh Avenue and Wyandotte Street.
“I will appreciate your forwarding this letter on to your carrier so that they will have a record of this lien.
“Thanking you, I remain,
Sincerely,
Bernard Passer”

As suggested in the letter, Gallipeau forwarded the letter to United States Fidelity & Guaranty Company (U.S.F.&G.) his insurer, which acknowledged receipt of the letter. Passer then contacted U.S.F.&G. and expressed an interest in settlement. U.S. F.&G. made payment on McClean’s medical expenses under the medical expense coverage of its policy with Gallipeau and on August 17 offered Passer $4,500 in settlement. Passer refused the offer, demanding $45,000 from both U.S.F.&G. and Houchin’s insurance carrier. Passer continued to deal with U.S.F.&G., assisting McClean in obtaining medical payments as late as November 10. He continued to refuse the $4,500 settlement offered by U.S.F.&G.

According to Passer, McClean wanted to settle her case, but she agreed that the $4,500 offer was wholly inadequate and did not complain to him about his efforts in her behalf. Passer planned to visit his children in school in the east over the Thanksgiving holiday. Before he left, he dictated a petition to be filed which McClean was to type and have ready for filing upon Passer’s return.

Instead of preparing the petition, McClean wrote a letter to Passer, dated November 25, 1966, as follows:

“On June 3rd, 1966, I was involved in an automobile accident, at which time you were kind enough to help me and advise me as to what steps should be taken in regard to this matter. At that time I retained you to represent me in this matter.
“At the present time, I am rather confused about my case and feel that I must seek advice in addition to that which you have given me. I realize that you have been acting in my best interests and I do appreciate all that you have done for me in this regard. However, since I do feel that I need additional advice, this letter will serve as written notice to terminate your services as my counsel, effective this date.
“At this time and prior hereto, I have explained to you that I do not wish to file suit in this matter. I am sure that you can appreciate why I have taken the above measures.
“When I have retained the services of another attorney, you will be contacted immediately in regard to monies due you for work done to this point and arrangements will be made to take care of this matter.
“Our business association for the past year has been a pleasant one and one which I have enjoyed and appreciated.
“Thanking you for all that you have done for me, I remain,
“Very truly yours,
“[/s/] Miss Jennie McClean”

McClean then contacted Robert L. Shir-key and requested that he handle her case. Shirkey recognized the problem presented by McClean’s contract with Passer. He wrote Passer that McClean was interested in employing him and discussions and correspondence between Passer and Shirkey over a division of the fee followed. McClean got in touch with Mr. Arthur Stoup, President of the Kansas City Bar Association, and sought his assistance. Stoup attempted to mediate the differences between Shirkey and Passer.

On March 9, 1967, McClean signed an agreement to employ Shirkey in the matter on a contingent fee of 50% of the first $6,500 of recovery and one third of the balance of any recovery. Shirkey advised Passer of the arrangement and offered to divide any fee equally between them. Passer demurred and correspondence between the two continued until as late as July, 196S, without resolution of the problem.

In the meantime, in June, 1967, Shirkey filed suit on behalf of McClean in the Jackson County Circuit Court, seeking $50,000 damages against Gallipeau and Houchins. Gallipeau forwarded the petition and summons to U.S.F.&G. U.S.F.&G. had previously been in touch with Passer about his withdrawal from the case. Passer wrote U.S.F.&G. that Shirkey had become an associate in the case and would assume control of it. Memos in U.S.F.&G. files on dates of June 7 and 9, 1967, noted that Passer wanted his name on all checks or drafts.

McClean’s case came to trial in April, 1970, with Shirkey handling the matter, and resulted in a verdict in favor of McClean and against Gallipeau for $27,500. On May 15, 1970, Shirkey wrote Roy A. Larson, Jr., attorney for U.S.F.&G., and told him that McClean was willing to settle her claim for the amount of coverage Gallipeau had. A copy of the letter went to Gallipeau and on June 1, 1970, he wrote Larson, requesting that the offer of settlement within his policy limits of $25,000 be accepted.

Larson forwarded the letter to U.S.F. &G., with a comment that the verdict in excess of the policy limits raised a question of how to post an appeal bond and that Gallipeau’s demand increased U.S.F.&G.⅛ “exposure” an additional $2,500. On July 27, Larson advised U.S.F.&G. that their motion for new trial had been overruled on July 24 and that notice of appeal would have to be filed by August. Larson again noted the problem that the verdict in excess of policy limits presented with regard to the appeal bond.

A notice of appeal was filed but negotiations between Shirkey and Larson resulted in an agreement to settle McClean’s claim for $23,000. On September 3, 1970, Larson wrote Shirkey, confirming the settlement agreement, but noting that a problem existed because of Passer’s interest. Larson stated that, in view of Passer’s lien letter received by U.S.F.&G., “any payment made to Miss McClean must protect the lien of Mr. Passer unless he releases the same in writing * * * ” Larson asked for suggestions as to how the matter should be handled.

Shirkey informed Larson that McClean was unwilling to accept any settlement which involved Passer’s name appearing on the check. Shirkey and Larson worked out an arrangement whereby Shirkey would file a declaratory judgment action to determine what fee, if any, Passer was entitled to. Shirkey agreed that he and McClean would enter into a written agreement to indemnify U.S.F.&G. against any loss by reason of payment of the settlement. Shir-key requested payment by draft payable to McClean and himself. Larson, however, wanted payment by U.S.F.&G. to be made to the circuit court. A draft payable to the circuit clerk was obtained. On September 16, 1970, Shirkey and Larson met at the courthouse in Independence. A draft for $23,000, payable to the circuit clerk, was presented to the clerk who endorsed it to Shirkey and McClean. Satisfaction of the judgment was entered and the indemnity agreement was executed by Shirkey and McClean and delivered to Larson. Shirkey deposited the check and after deducting expenses of $1,796.90, disbursed $10,601.55, one half of the balance, to McClean and placed the remaining $10,601.55 in a trust account pending determination of the fee matter.

According to Passer, he was aware of the verdict in the case and knew that an appeal was filed but he was not informed of the settlement arrangement when it was made. He said that he met Shirkey from time to time and asked how the case was coming along and Shirkey replied “fine” but that was all that was said. On about January 10, 1971, he ran into Shirkey, asked about the case and was told that it had just been settled. Passer suggested that they go to Shirkey’s office and settle the fee matter. Shirkey said he was busy and suggested Passer call the next week. Passer did so, but Shirkey put him off. Finally, after a week, Passer saw Shirkey in his office and Shirkey told him “You have nothing coming. You don’t have a contract with Jennie.”

On January 20, 1971, Passer wrote Shir-key, expressing dissatisfaction with Shir-key’s failure to inform him of the settlement. He demanded $4,208.33 as his share of the fee. He made a similar demand of U.S.F.&G. Larson replied on behalf of U.S. F.&G., enclosing a copy of the indemnity agreement and suggesting that any obligation with respect to Passer’s fee must be borne by Shirkey and McClean. Larson also addressed a letter to Shirkey and McClean, demanding that they resolve the differences with Passer in accordance with the terms of the indemnity agreement.

On January 29, 1971, Shirkey filed a declaratory judgment action on behalf of McClean against Passer, seeking a declaration as to what attorney’s fee, if any, was due from McClean to Passer. Shortly thereafter Passer filed his suit against U.S. F.&G. and Shirkey. Count I thereof sought to enforce a statutory attorney’s lien under § 484.140 against U.S.F.&G. Count II, which Passer ultimately elected not to submit to the jury, sought recovery for interference with economic relations arising from the contract between Passer and McClean. Count III sought actual and punitive damages against both defendants for an alleged conspiracy to deprive Passer of his statutory attorney’s lien.

Passer’s action was tried first and resulted in a directed verdict in his favor against U.S.F.&G. for $10,601.55 on Count I of his petition. Count III, the conspiracy charge, was submitted to the jury and resulted in a verdict of $5,300 actual damages against U.S.F.&G. and Shirkey, plus punitive damages of $25,000 against U.S.F.&G. and $2,000 against Shirkey. Upon overruling defendants’ post-trial motion, the trial court reduced the recovery under Count I to $5,300, the amount of the actual damages fixed by the jury on Count III, and ordered only one satisfaction of that amount. Judgment on the verdict was entered accordingly and U.S.F.&G. and Shirkey appealed.

After judgment had been entered in Passer’s suit, the declaratory judgment action came on for trial. Counsel for Passer informed the court that his client was seeking no money from McClean under his contract with her. The trial court then found that said concession constituted a covenant by Passer not to sue McClean, leaving nothing to adjudicate with reference to McClean’s obligation to Passer. Judgment was entered accordingly and McClean appealed.

PASSER v. U.S.F.&G. AND SHIRKEY COUNT I

In this case Passer sought to recover from U.S.F.&G. on the basis that his letter of June 10,1966, to Charles Gallipeau created a statutory attorney’s lien which was applicable to the amount paid by U.S.F.&G. to McClean in satisfaction of her judgment for personal injuries. The answer of U.S. F.&G. admitted receipt by it of said letter but denied that it gave Passer a statutory lien on the money paid by U.S.F.&G. It also pleaded various other defenses, none of which we need consider in view of the disposition we reach.

Sections 484.130 and 484.140 relate to compensation of attorneys for representation of clients and to liens therefor. Section 484.130 is a general section which grants a lien from the time of commencement of a suit or counterclaim to cover compensation pursuant to an agreement, express or implied, which is not restrained by law. Section 484.140 is a special statute which is restricted to contingent fee contracts whereby compensation of an attorney is limited to a portion or percentage of recovery and is contingent on successful resolution of the client’s claim by either settlement or suit. Passer did not file suit on behalf of McClean and does not assert a claim under § 484.130. We are not concerned with that section in this case.

Passer’s claim is based on § 484.140 which provides:

“In all suits in equity and in all actions or proposed actions at law, whether arising ex contractu or ex delicto, it shall be lawful for an attorney at law either before suit or action is brought, or after suit or action is brought, to contract with his client for legal services rendered or to be rendered him for a certain portion or percentage of the proceeds of any settlement of his client’s claim or cause of action, either before the institution of suit or action, or at any stage after the institution of suit or action, and upon notice in writing by the attorney who has such agreement with his client, served upon the defendant or defendants, or proposed defendant or defendants, that he has such an agreement with his client, stating therein the interest he has in such claim or cause of action, then said agreement shall operate from the date of the service of said notice as a lien upon the claim or cause of action, and upon the proceeds of any settlement thereof for such attorney’s portion or percentage thereof, which the client may have against the defendant or defendants, or proposed defendant or defendants, and cannot be affected by any settlement between the parties either before suit or action is brought, or before or after judgment therein, and any defendant or defendants, or proposed defendant or defendants, who shall, after notice served as herein provided, in any manner, settle any claim, suit, cause of action, or action at law with such attorney’s client, before or after litigation instituted thereon, without first procuring the written consent of such attorney, shall be liable to such attorney for such attorney’s lien as aforesaid upon the proceeds of such settlement, as per the contract existing as herein provided between such attorney and his client.” (Emphasis supplied)

Section 484.140 serves two purposes. It authorizes contingent fee contracts whereby an attorney agrees to furnish legal services “for a certain portion or percentage of the' proceeds of any settlement of his client’s claim or cause of action * * * Second, it provides that under certain circumstances the service of notice of that contract shall cause the agreement to operate as a lien which shall have the effect spelled out in the section. In providing for such lien the statute states that upon service on defendant or defendants by the attorney of a written notice “that he has such an agreement with his client, stating therein the interest he has in such claim or cause of action * ⅞ * ” the agreement shall operate as a lien.

What does this second portion of § 484.140 mean? Does it require, as contended by U.S.F.&G., that the notice specify that the attorney has a contingent fee contract and the percentage or amount of the fee? If so, Passer’s letter to Gillipeau of June 10, 1966, was insufficient. It merely stated that he had been retained to represent Miss McClean. Or does it mean, as Passer asserts, that a letter or notice advising that the attorney has been employed is sufficient to comply with § 484.140 and to establish a lien? This is what Passer’s letter of June 10, 1966, stated.

The briefs on behalf of appellants and respondent cite various cases in support of their respective interpretations of § 484.140. None have dealt specifically with the issue of whether the statute requires that the notice specify that the attorney has a contingent fee contract for a specific percentage or amount of the recovery. Passer’s brief recognizes this, saying: “There is * * no case law to this effect, and the question would appear to be a matter of first impression in this state.”

We agree. There has been no definitive ruling on this precise question. Several cases have involved factual situations wherein the attorney had given notice which included information as to the terms of his contingent fee contract. These include Wait v. Atchison, T. & S. F. Ry., 204 Mo. 491, 103 S.W. 60 (1907); O’Connor v. St. Louis Transit Co., 198 Mo. 622, 97 S.W. 150 (1906); Brookshire v. Metropolitan Life Insurance Co., 56 S.W.2d 817 (Mo.App.1933); Abbott v. United Rys. Co., 138 Mo.App. 530, 119 S.W. 964 (1909). Hence, these cases did not present for decision the question of whether the notice must include such information.

In other cases no notice of any kind was given and the cases were decided on that basis. These include Orr v. Mutual Benefit Health & Accident Association, 240 Mo.App. 236, 207 S.W.2d 511 (1947); Passer v. Berkenmaier, 183 S.W.2d 150 (Mo.App. 1944); Hull v. Phillips, 128 Mo.App. 247, 107 S.W. 21 (1908). It should be noted, however, that in the latter two cases the court indicated in dicta that the notice of lien must give information as to the attorney’s percentage. In Passer the court said at 152: “If a percentage agreement exists and notice be given as required by said section, then such agreement operates as a lien from the date of the service of such notice. Notice in writing must be given by the attorney that he has such an agreement with his client, stating therein the interest he has in his client’s cause of action.” In Hull the court said, 107 S.W. at 22: “[W]e find the record does not show that such attorney ever notified plaintiff that he had a contract for a certain per cent, of what was recovered, as is required he should do by section 2, Laws 1901, p. 46 [Ann.St.1906, § 4937-2].”

In Fein v. Schwartz, 404 S.W.2d 210 (Mo. App.1966), the attorney had a contingent fee contract for 5% of the total received by the property owner for property to be taken by the redevelopment authority. The contention was made that the notice served by the attorney was insufficient because it failed to state the interest in the client’s claim or cause of action. It stated that the contract was “for a professional fee in a very substantial amount (approximately $15,000).” In overruling that contention the court said at 227: “While the exact amount found to be due was $14,600, we think the interest as shown in the attorney’s lien notice is a sufficient statement of the interest had by attorney and sufficiently complies with the requirements of § 484.-140.” This case at least inferentially recognized that the statutory notice is to recite the attorney’s interest in the claim.

In Simpson v. Federal Lead Co., 187 S.W. 1123 (Mo.App.1916), the opinion recited that the attorney had contracted with his client on a contingent fee basis. In considering whether notice sufficient under the statute had been given the court said at 1124: “On the following day, to wit, June 17, 1913, plaintiffs wrote a letter to defendant company advising defendant that they represented Pomerko. This letter, however, did not purport to comply with the terms of the statute respecting the written notice required to be given thereunder.” The court went on to note that subsequently defendant was furnished a signed copy of the contingent fee contract. This was held to have given defendant sufficient notice under the statute. Again, the court’s discussion indicates a recognition that § 484.140 calls for information which informs defendant of the attorney’s interest under his contingent fee contract.

Since there are no cases resolving this question, we look to the language of the statute for the requirements as to what the notice shall contain. Section 484.140, in speaking of the notice, says that it shall state “that he has such an agreement with his client.” The preceding portion of the section deals exclusively with contingent fee contracts. Hence, when it then speaks of such agreement, it necessarily refers back to a contingent fee contract discussed and authorized in the preceding language. Thus, the statute says that the notice shall state that the attorney has a contingent fee contract with his client. Next, the section goes on to provide that the notice shall state “the interest, he has in such claim or cause of action.” This obviously calls for something in addition to the statement, already required, that the attorney has a contingent fee contract. That additional something, consisting of the attorney’s interest in his client’s claim, is the percentage or amount which the contingent fee contract gives him. This is the clear meaning of the language. As previously noted, dicta in several earlier cases has so recognized.

This interpretation of § 484.140 is supported by the interpretation the Illinois courts have given their comparable attorney’s lien statute, Ill.Ann.Stat. ch. 13, § 14 (Smith-Hurd), which requires attorneys to state in their notice “the interest they have in such suits, , claims, demands or causes of action.” In Mayer v. Yellow Cab Co., 247 Ill.App. 42 (1927), an attorney had a contingent fee contract to pursue a personal injury claim for Vs if the suit was settled, and ½ if it went to trial. The lien letter stated that he had been hired as an attorney and that he claimed a lien on the cause of action. The court found the notice defective because “it did not state the interest which petitioners had in the damage suit in question.” Id. at 47. In Cazalet v. Cazalet, 322 Ill.App. 105, 54 N.E.2d 61 (1944), the court declined to pass directly on the sufficiency of the notice because it concluded it was not properly served. However, in dicta the court said: “The purported notice contains neither a notice of the amount of the fee contracted for, which is one of the express provisions of the statute, nor of any claim for lien, as provided in and required by said section.” 54 N.E.2d at 64.

We hold that Passer’s letter of June 10, 1966 did not fulfill the requirements of § 484.140 for a notice to defendant of the attorney’s lien because it failed to advise that he had a contingent fee contract for 50% of the recovery.

Passer suggests that even if his letter of June 10, 1966, was insufficient notice under § 484.140 to create a lien in his favor, U.S.F.&G. and Shirkey by their conduct waived or are estopped to assert any defects therein. Both estoppel and waiver are affirmative defenses. Rule 55.08 V.A.M.R. Passer did not plead such defenses and they are not before us for consideration.

Finally, Passer says that if the court holds that § 484.140 requires that a notice of lien thereunder state that the attorney has a contingent fee contract and the per cent or amount thereof, such interpretation should be held to be prospective only. While not clearly expressed, Passer apparently is saying that we should simply announce that the statute shall be so construed in the future but that it does not apply to his letter.

We reject this request. In the first place the cases which he cites do not support the suggestion made. They hold that the attorney’s lien statute (now § 484.140) will not operate to create a lien where the contracts on which the liens are based were entered into before the date on which the act was passed. They are not authority for holding that when a statute is interpreted the statute as so interpreted operates prospectively from the date of the interpreting decision. Generally, a statute becomes effective when it has been adopted and approved by proper authority unless it provides otherwise. State v. Kirby, 163 S.W.2d 964 (Mo.1942). Section 484.140, as we interpret it, was applicable to Passer’s effort to create a statutory attorney’s lien.

It follows that the trial court erred in overruling U.S.F.&G.’s motion for directed verdict on Count I and erred in directing a verdict for plaintiff. The judgment on Count I is reversed.

COUNT III

As previously noted Count III sought recovery of actual and punitive damages from U.S.F.&G. and Shirkey for conspiring to settle McClean’s case without honoring Passer’s statutory attorney’s lien. Maintenance of such a cause of action presupposes existence of evidence sufficient to justify submission to the jury of the issue of whether Passer had such a lien. We have held with reference to Count I that Passer’s notice did not comply with § 484.140 and as a consequence he did not have a statutory lien. That being true defendants could not be found guilty of conspiring to defeat enforcement of a non-existent statutory lien in favor of Passer. Accordingly, the judgment on Count III is reversed.

McCLEAN v. PASSER

In this declaratory judgment action McClean alleged the execution of a contingent fee contract on June 10, 1966, alleged the claims being asserted thereunder by Passer, asserted that there was a controversy as to whom, if anyone, McClean was indebted to under said contract and asked the court to declare the rights and duties of Passer under said contract. In his answer Passer asked that he be awarded a judgment of $4,208.33. In answers to McClean’s request for admissions, Passer denied a proposed admission that he was not entitled to any sums from McClean under the contingent fee contract and denied a proposed admission that McClean was not indebted to him for any services rendered. Thus, in both his answer and in his responses to requests for admissions, Passer asserted that McClean was indebted to him for an attorney’s fee.

The case came on for trial before a jury. After the jury panel had been sworn, counsel for Passer, in proceedings in chambers, indicated to the court that Passer was not seeking monetary relief from McClean and he would not seek a judgment against her in the future. However, after considerable colloquy between counsel and the court the attorney for Passer said:

“I believe for the record, it should be made clear that I did not say that Miss McClean was not legally indebted to Mr. Passer. I said that Mr. Passer does not look to Miss McClean for any monies arising out of any contractual relationship he has ever had with Miss McClean. I did not state on behalf of my client that she is not legally obligated under that particular contract.”

Subsequently, the court entered this judgment memorandum:

“COUNT I
“On the basis of the Defendant's statement made in open court on the record, which the Court interprets as a covenant on his part not to sue the plaintiff on the alleged contract, without finding whether the plaintiff may or may not be legally obligated under the contract, on the basis of his covenant not to sue, finds that plaintiff is not indebted to the defendant on the contract because there is a solemn covenant not to sue. Since the defendant could have, and has, in the Court’s opinion, and the record will demonstrate, has made a covenant not to sue plaintiff, plaintiff has no obligation — there is nothing to declare for the Court as far as any obligation or not of the plaintiff to the defendant or defendant to the plaintiff.
“COUNT II — Plaintiff voluntarily dismisses Count II with prejudice.
“Dated 6-11-75
“FILED June 11. 1975
/s/ Robert A. Mevers
Judge”

McClean filed a motion to amend the judgment and for a new trial which the court overruled. McClean then appealed and now takes the position that under the pleadings there is a justiciable controversy which the court should have decided. She argues that she has funds from her personal injury settlement and that Passer has claimed an interest therein to the extent of $4,203.33. She points out that Shirkey is in possession of the questioned funds and that she is entitled to that money if Passer has no right to it. That question, she argues, should be resolved.

We conclude that McClean is entitled to have her declaratory judgment action decided. The trial court expressly avoided deciding the issue by holding that the verbal statement by counsel for Passer amounted to a covenant not to sue. “A covenant not to sue is nothing but a contract, and should be so construed.” 66 Am. Jur.2d 679. See also 76 C.J.S. Release § 3, p. 630. A covenant not to sue requires a consideration for such promise. Since there was no such consideration, there was no binding covenant not to sue. Counsel’s statement did not resolve the issue raised by McClean’s petition, nor did the judgment entered decide the issues. Accordingly, the judgment is reversed and remanded.

MORGAN, C. J., BARDGETT, J., and SIMEONE, Special Judge, concur.

DONNELLY, J., dissents in separate dissenting opinion filed.

RENDLEN, J., dissents and concurs in separate dissenting opinion of DONNELLY, J.

SEILER, J., dissents in separate dissenting opinion filed and concurs in separate dissenting opinion of DONNELLY, J.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

DONNELLY, Judge,

dissenting.

The principal opinion holds that a verdict should be entered for defendant on Count I. Its basis for this holding is “that Passer's letter of June 10, 1966 did not fulfill the requirements of § 484.140 for a notice to defendant of the attorney’s lien because it failed to advise that he had a contingent fee contract for 50% of the recovery.” In so doing, the principal opinion ignores the ultimate and determinative fact on the question of notice: the repeated acknowledgment by U.S.F.&G. of Passer’s lien.

I respectfully dissent.

SEILER, Judge,

dissenting.

I concur with Judge Donnelly in his dissent, agreeing that USF&G had notice of Passer’s lien.

I respectfully add that this case was tried, by all parties, on the theory that both USF&G and Mr. Shirkey had, by their conduct, treated Passer as having a valid and subsisting lien. The whole object of what USF&G and Shirkey did was to avoid having to include Passer in the settlement despite his lien. There is no evidence, as far as I can determine, to support the proposition that either USF&G or Shirkey ever questioned Passer’s lien on the ground that Passer’s lien letter failed to state what his percentage was. In fact, as the principal opinion notes, USF&G’s attorney expressly acknowledged the existence of the lien in his letter of September 3, 1970 to Shirkey. The trial judge, in pre-trial rulings in chambers prior to impaneling the jury, characterized the claim that the lien letter was not sufficient as an “afterthought.”

The trial judge stated as follows:
“I think this also tells the parties, as these documents will show, was such that everybody assumed that he did have a lien. In much of the dealings between the plaintiff and the insurance company, between the plaintiff and defendant Shir-key, and between Shirkey and the insurance company, nobody ever questioned whether or not he had a valid lien. This apparently, that the letter wasn’t sufficient, is an afterthought. I think certainly with all the dealings that there were among the three entities here involved, the plaintiff and two defendants, that it would be grossly unfair at this stage to say, ‘Well, we decided that your letter wasn’t sufficient.’
“I feel quite sure that the plaintiff would be protected against such a conclusion or such a result by some equitable principle, such as estoppel or laches.
[T]he refusal to honor the plaintiff’s lien had nothing to do, even in the final analysis — had nothing to do with whether he stipulated the percentage. . . . The insurance company did it because they could save four thousand dollars on the judgment, and because they got Mr. Shir-key’s indemnity. . . . They were aware — the documents show that they were aware, that they hesitated to go ahead with it, and when Shirkey said, T will indemnify you,’ they said, ‘That is okay. That solves our problem.’ . They didn’t refuse to honor it because of the insufficiency of the notice. “. . . They didn’t care what the percentage was. They simply weren’t going to acknowledge it, and, so, they are not in position to claim that they didn’t have adequate notice.”

There was no objection to the court’s ruling by counsel for USF&G. The only objection made by counsel for defendant Shirkey was not on the ground that Passer had failed to file a reply pleading waiver or estoppel. The objection was that the court’s remarks assumed that Passer had a valid contract, which counsel said was “highly disputed.”

It seems to me, therefore, that Passer is entitled to assert in this court that the defendants are estopped from asserting or have waived any claim that the lien letter was insufficient on the ground now contended. Certainly defendants, under the record before us, were in no way mislead or prejudiced by Passer’s failure to plead waiver and estoppel in a reply. I would apply rule 55.33(b), which provides: “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” In fact, rule 55.33(b) provides further that amendments of the pleadings to conform to the evidence in such instances may be made at any time, even after judgment, but even if not done, such failure shall not affect the result of the trial of such issues.

I would affirm the judgment on Count I, and then would deal with Count III on the merits.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . Wait v. Atchison, T. & S. F. Ry., 204 Mo. 491, 103 S.W. 60 (1907); O’Connor v. Transit Co., 198 Mo. 622, 97 S.W. 150 (1907); Imboden v. Renshaw, 102 Mo.App. 173, 76 S.W. 701 (1903).

      . Count II was a claim by McClean against Passer for stenographic services for which payment allegedly had not been made. We are not concerned with it in this appeal.


author: BARDGETT, Judge.

text:
    STATE of Missouri, Respondent, v. Rondel Alfred DUNN, Appellant.
    No. 60578.
    Supreme Court of Missouri, En Banc.
    March 13, 1979.

      W. Morris Taylor, Jerry L. Suddarth, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Jeffrey Schaeperkoetter, Jefferson City, for respondent.

      . The opinion should not have been published because of the transfer to this court.

   BARDGETT, Judge.

Defendant appealed to the Missouri Court of Appeals, Eastern District, from his conviction of stealing a motor vehicle and the resultant five-year sentence. The court of appeals by opinion transferred the case here for the purpose of reexamining the law with reference to the propriety of asking a defendant on cross-examination whether he has committed a particular crime as contrasted to whether he has been convicted of a particular crime. The court of appeals opinion is reported in State v. Dunn, 561 S.W.2d 694 (Mo.App.1978), and will be utilized in part in this opinion.

The defendant first contends the evidence was insufficient to support the verdict. We have reviewed the record and agree with the court of appeals holding that the evidence was sufficient. See Dunn, supra, at 695[1]. The point is overruled.

Defendant's remaining contention is that the trial court erred in failing to sustain defendant’s objection to a question asked of him on cross-examination and in failing to declare a mistrial. The question, objection, court ruling, and answer were as follows:

“Q. Mr. Dunn, on February the 17th, 1975, did you steal property from an automobile in St. Louis County.
“Mr. Taylor (defense counsel) I am going to object to that, your honor. That is completely improper. I am going to ask for a mistrial. That is an improper question about some other crime.
“The Court: Overruled.
“Q. (By Mr. McConnell) (Prosecutor) You may answer sir.
“A. No, sir, I did not.”

The state contends the question was permissible as it tends to show intent, absence of mistake or accident and common scheme or plan — three of the exceptions to the general rule precluding evidence of other crimes. State v. Reed, 447 S.W.2d 533 (Mo. 1969).

The court of appeals rejected this contention and stated its reasons with which we agree and adopt. See Dunn, supra, at 696[2].

The statement of the point on which the court of appeals transferred this case and the rationale underlying its belief that it was error to allow, over objection, the cross-examination of the defendant, as set forth above, is as follows (561 S.W.2d 696):

“The State further contends that the question was permissible to attack defendant’s credibility pursuant to State v. Foster, 349 S.W.2d 922 (Mo.1961). We are reluctantly constrained to agree. Defendant attempts to distinguish this case from State v. Foster, supra, State v. Williams, 492 S.W.2d 1 (Mo.App.1973) and State v. Summers, 506 S.W.2d 67 (Mo.App.1974) on the basis that each of those cases involved cross-examination of witnesses, not the defendant. The law is clear, however, that a defendant who testifies in his own behalf may be impeached in the same manner as any other witness. State v. Williams, 525 S.W.2d 395 (Mo.App.1975); State v. Massa, 512 S.W.2d 912 (Mo.App.1974); Secs. 491.050, 546.260, R.S.Mo.1969.
“It appears to us that the more serious vice is the holding of State v. Foster, supra, that while arrest, charges or investigations of criminal conduct may not be inquired into, it is permissible to inquire of a witness whether he has committed a crime, even though no conviction has resulted. That holding was based upon Wendling v. Bowden, 252 Mo. 647, 161 S.W. 774 (1913). Wendling, however, was decided at a time when it was permissible to attack a witness’ credibility by showing his general bad character and it is largely upon this basis that the holding relied upon in Foster was made. In 1935 in State v. Williams, 337 Mo. 884, 87 S.W.2d 175 (1935), the Supreme Court reversed its prior decisions and prohibited impeachment of a witness through a showing of general bad character. It is questionable, therefore, that the Wen-dling case, supra, provides a strong base for the Foster decision.
“It is difficult to allow an inquiry such as that posed in the present case and yet condemn inquiries into arrests, charges and investigations. Section 491.050, R.S. Mo.1969 permits examination only on prior convictions, and State v. Massa, 512 S.W.2d 912 (Mo.App.1974) precludes direct reference to prior arrests. To allow the prior arrest to be established under the guise of searching for an admission effectively destroys the intent of the act — to limit examination to prior convictions. Furthermore, it is apparent that it is not the answer which prejudices the defendant, it is the question that carries the poison. A general question of whether the witness has ever committed a crime may have little effect on a jury. Where, however, the question contains detailed information such as date, location, victim, or nature of the crime, the jury must, as reasonable persons, conclude that the question is based upon information known to the questioner. A negative answer can have little or no effect on this basic conclusion, and a jury is inevitably left with a belief that the witness has committed the inquired of crime, and is a person of bad character. This is true whether the question has support in fact or not.
“We would if the matter were one of first impression hold the question improper and reverse the case and remand for new trial. We are bound, however, by State v. Foster, supra, and its progeny, and must, pursuant to that authority, affirm. We transfer the matter, however, to the Supreme Court for reexamination of the law.”

It cannot be discerned whether the court of appeals is urging an absolute rule which would forbid all questions put to any witness, defendant or not, with respect to prior misconduct (other than conviction), or if the court of appeals believes it is foreclosed from considering the prejudicial impact of the disputed inquiry by Foster, supra, and is thereby required to overrule the point.

The history and cases relating to the cross-examination of a witness, including defendants, as to prior convictions, acts of misconduct, and putting on testimony of overall bad reputation for morality, truth and veracity, and other specific traits of character, are explored in State v. Williams, 337 Mo. 884, 87 S.W.2d 175 (1935), and a two-part article entitled “Impeachment and Rehabilitation of Witnesses by Character Evidence in Missouri” by Arthur N. Bishop, Jr., found in 20 Mo.L.Rev. No. 2, p. 142, and 20 Mo.L.Rev. No. 3, p. 273 (1955), and an article by Professor Edward H. Hunvald, Jr., at 27 Mo.L.Rev. 544 (1962), “Criminal Law in Missiouri—Evidence of Other Crimes”.

In State v. Miller, 485 S.W.2d 435 (Mo. 1972), a prosecution witness was asked on cross-examination, “You are a practicing homosexual * * * ?” The prosecutor objected and the objection was sustained as against the contention that the question was proper as impeaching credibility in view of sec. 563.230, RSMo 1969, V.A.M.S., making homosexuality — the abominable crime against nature — a criminal offense. This court overruled defendant’s contention saying, inter alia, the trial court could have sustained the state’s objection on the belief that homosexuality had no relationship to the witness’s credibility and also on the ground that the court could have sustained the objection “where the answer might expose him [witness] to a criminal charge”, and affirmed the conviction.

It is noted at this point that the question in the instant case would have, if answered in the affirmative, exposed the defendant to a criminal charge of stealing. The cases note this problem but answer it by saying a witness may refuse to answer on self-incrimination grounds and cannot be compelled to answer over such objection. If a witness, not the defendant, makes such an objection to a question which may incriminate him, it can at least be said that the witness will not be convicted because of his refusal to answer the question. If a defendant is testifying, however, the situation is markedly different. In the instant case had the defendant refused to answer the question as to whether he stole something out of an automobile a few months prior to the theft of the car — the matter on trial— can it be reasonably believed the jury would not think the defendant’s refusal to answer on self-incrimination grounds indicated he did steal from the car in arriving at their verdict? Or suppose the defendant denies the theft, as he did here, nevertheless the phrasing of the question is such that the detail itself would lead one (the jury) to think the prosecutor knows the defendant did steal from the car. The fact that it is the defendant who is being cross-examined is a factor a court can and should consider in ruling upon an impeaching question as presented here. As noted, the jury could not utilize such a question and whatever answer, or refusal to answer on self-incrimination grounds, when the witness is not the defendant, to penalize or convict the witness for he is not on trial. Even so, questions put to a defendant’s witness to discredit such witness and which deal with purely collateral matters can prejudice a defendant and cause the reversal of a criminal conviction.

In State v. Spencer, 472 S.W.2d 404 (Mo. 1971), the state was allowed by the trial court to cross-examine the defendant’s wife about her having two illegitimate children before marrying the defendant to discredit her as a witness and thereby severely weaken the defendant’s position. The state agreed it was error to impeach a witness’s credibility by showing her “general character is bad” but contended the defendant was not prejudiced. However put, the questions were directed to alleged specific acts of misconduct (having two illegitimate children) and on appeal it was held to have prejudiced the defendant.

Where the witness is the defendant, the prejudice is more immediately apparent. In State v. Taylor, 473 S.W.2d 385 (Mo.1971), the defendant was charged with murder second degree and testified in his own defense. The prosecutor, over objection, cross-examined the defendant by asking a number of questions about his job as a desk clerk in a hotel. The questions specifically implied the defendant assisted prostitutes in plying their trade, even though complicity was denied by the defendant. The court in reversing and remanding stated at 388:

“It is not necessary to go into the general rules as to the impeachment of witnesses, (RSMo 1969, secs. 491.050, 546.260, V.A.M.S.) convictions for violations of city ordinances, proof of separately charged offenses (40 Am.Jur.2d Homicide, sec. 310, p. 579; State v. Hyde, 234 Mo. 200, 136 S.W. 316) or proof of specific acts of misconduct to impeach a witness or a party. These questions were all directed to the defendant on trial for murder, they plainly implied that he was guilty not only of moral misconduct but of some offense connected with prostitution — even that he, in addition to other offenses relating to prostitution, was a pimp. This line of cross-examination was not only immaterial and irrelevant it was designedly and manifestly prejudicial, plainly an infringement of a fair trial for which the only remedy is a new trial.” (Emphasis added.)

Thus, it is seen that although a defendant testifying in his own defense may, as a general proposition, be impeached the same as any other witness, nevertheless, a court should, on objection being made, limit certain cross-examination of a defendant where the cross-examination is technically purely collateral as to general credibility and the nature is such as to impair the defendant’s right to a fair trial on the charge brought against him. This does not apply to prior convictions of criminal offenses.

There is little doubt as to why the question in issue here was asked on cross-examination. The state has strongly urged that the inquiry “was proper as an attempt to elicit evidence of another crime which would have a legitimate tendency to directly establish the appellant’s guilt of the charge for which he was on trial.” The state thereby acknowledges the use it expects the jury to make of the information and that is precisely why, in this case, it was error to allow the inquiry. Cf. State v. Reed, supra.

The extent of cross-examination rests largely in the discretion of the trial court and an appellate court will not interfere unless the discretion is abused. State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492 (1948). Cross-examining a defendant as to alleged prior acts of misconduct, particularly where details are stated and the acts are somewhat similar to the case on trial, as here, lends itself to the creation of substantial prejudice even though the answers are in the negative. The cases of State v. Foster, supra, State v. Williams, supra, and State v. Summers, supra, noted in the excerpt from the court of appeals opinion, do not require a trial court to permit all cross-examination of a defendant as to prior acts of misconduct and do not preclude an appellate court from determining that the specific questioning was erroneous and constituted prejudicial error.

The court of appeals believed the trial court erred in overruling the objection to the question and that defendant was prejudiced thereby. This court agrees.

The judgment is reversed and the cause remanded for a new trial.

MORGAN, C. J., DONNELLY, REND-LEN, SEILER, JJ., WELBORN, Special Judge, and FINCH, Senior Judge, concur.

SIMEONE and WELLIVER, JJ., not participating because not members of the court when cause was submitted.


text:
    Cloyd Samuel RICHARDSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 60824.
    Supreme Court of Missouri, En Banc.
    March 13, 1979.

      Theodore Guberman, Mary K. Wefelmeyer, Asst. Public Defenders, 22nd Judicial Circuit, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Appellant Cloyd Samuel Richardson appealed to the Missouri Court of Appeals, Eastern District, from an order entered in the circuit court of the City of St. Louis dismissing, without an evidentiary hearing, his motion to vacate judgment and sentence pursuant to Rule 27.26, V.A.M.R. Appellant was convicted of murder in the first degree on February 11, 1972, and was sentenced to death. On appeal the conviction was affirmed; however, the sentence was reduced to life imprisonment. See State v. Richardson, 515 S.W.2d 557 (Mo. banc 1974). For reversal appellant argues that the trial court erred in dismissing his Rule 27.26 motion without an evidentiary hearing because: (1) he was denied due process of law by the use for impeachment purposes of prior convictions which are void for failure to afford him the right to counsel and (2) the trial court’s finding is clearly erroneous in that it is not supported by the record.

The court of appeals affirmed, and on motion of appellant this court ordered transfer. The court of appeals opinion noted that the appellant attacked the validity of only three of the thirteen prior convictions but the 27.26 motion rather clearly alleged appellant contended he had been impeached with thirteen invalid prior convictions. The court of appeals affirmed holding the use of the three allegedly invalid prior convictions was harmless error. Believing the difference between three and thirteen prior convictions might be substantial, we ordered transfer. Subsequently, the court of appeals corrected its opinion to note “that appellant has attacked the validity of only thirteen (including eleven counts of forgery, grand larceny and illegal use of credit card) of the nineteen prior convictions used for impeachment purposes.” Having granted the transfer, we will decide the case and will utilize portions of the court of appeals opinion without the use of quotation marks.

On March 24, 1976, appellant filed a pro se motion to vacate his judgment and sentence pursuant to Rule 27.26. Appellant has had appointed counsel in the trial court and on appeal. Appellant alleged as his ground for relief, among others not at issue here, that his due process rights had been violated because he had been impeached by the disclosure of thirteen prior convictions which had been obtained without representation of counsel. Appellant did not raise this point at trial or on direct appeal and presented it for the first time in the motion to vacate.

The trial court found that appellant’s allegations were not the proper subject matter of a post-conviction relief motion, that appellant’s allegations were conclusory, and that appellant at the time of his appeal knew of the allegations and either did or could have presented them at that time.

The allegation concerning the un-counseled prior convictions was not decided on direct appeal, State v. Richardson, supra ; they are not merely conclusory, and they can be the subject of post-conviction relief. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).

Some of the convictions were brought out by defendant’s trial counsel, a strategy oftentimes used to blunt the effect of the prior convictions. As such there may have been a deliberate bypass or waiver. Some were brought out on cross-examination to affect the credibility of the defendant. If those brought out on cross-examination were invalid convictions, they should not have been used at all. Loper v. Beto, supra; Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). They may have been valid although obtained without counsel. Gerberding v. State, 433 S.W.2d 820, 823-824 (Mo.1968). Even if the convictions were invalid and the use thereof be erroneous, nevertheless, the error may be harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Howard, 540 S.W.2d 86, 87 (Mo. banc 1976); and, in particular, see Gilday v. Scafati, 428 F.2d 1027, 1030-1031 (1st Cir. 1970), and Grant v. White, 579 F.2d 48, 49 (8th Cir. 1978).

Loper v. Beto, supra, was a plurality decision. In Loper there had been an evidentia-ry hearing held by the U.S. District Court and findings made thereon, so the record of the hearing was available to the U.S. Court of Appeals. In that posture, Mr. Justice White, in a concurring opinion, observed that there remained issues unresolved by the Court of Appeals as to whether the challenged prior convictions were legally infirm and, if so, their legal significance. Mr. Justice White suggested these issues be resolved by the lower court and “if the case is ultimately to turn on whether there was harmless error or not, I would prefer to have the initial judgment of the lower court.”

The procedure outlined by Mr. Justice White is called for by our Rule 27.26 in the instant case. An appellate court ought not to proceed further without an evidentiary hearing in the trial court with findings entered as to contested facts and issues. That is what was ordered in Gerberding v. State, supra, 433 S.W.2d at 824-825, and Garrett v. State, 459 S.W.2d 378, 382 (Mo.1970), with reference to the validity of prior convictions used to apply the second offender act and that is appropriate here.

On remand the evidentiary hearing should be afforded with respect to all issues raised in the motion or in an amended motion.

The judgment of the circuit court is reversed and the cause is remanded for proceedings in conformity with this opinion.

MORGAN, C. J., and DONNELLY, SEILER, SIMEONE, and WELLIVER, JJ., concur.

RENDLEN, J., concurs in result.


author: BILLINGS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respomdent, v. John Wilton WILLIS, Defendant-Appellant.
    No. 10872.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 31, 1979.
    Rehearing Denied Feb. 13, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven Clark, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Kirby W. Patterson, Springfield, for defendant-appellant.
   BILLINGS, Presiding Judge.

Defendant John Wilton Willis was convicted of rape and two counts of first degree robbery by a Greene County jury and sentenced by the court under the Second Offender Act, § 556.280, RSMo 1969. His only point in this appeal is that the in-court identification of him by his three victims was unconstitutionally tainted by a suggestive lineup conducted by the police in which he was identified as the perpetrator of the felonies. He argues that the trial court erred in overruling his motion to suppress identification testimony because the procedure at the pretrial identification confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of constitutional due process of law. We disagree with defendant and affirm the judgment.

Kimberly, Carla, Patricia and another young woman shared a Springfield apartment. Shortly after midnight, while the fourth young woman was away from the apartment, Kimberly awoke, having heard someone in the apartment. A black man, holding a towel over the lower portion of his face with one hand and with a knife in his other hand, entered Kimberly’s bedroom. At knife point the man forced Kimberly into the bedroom occupied by Carla and Patricia. He raped Kimberly and robbed Carla and Patricia.

Defendant was arrested by police shortly thereafter and taken to the Springfield police station. Later in the day, with an attorney present, defendant and three other black men were placed in a lineup. The foursome were independently viewed by the three women and each identified defendant as the man they had seen at their apartment and who had committed the crimes. Again, at trial, each of the victims identified defendant.

The thrust of defendant’s contention is that the lineup was unduly suggestive and unfair because: (a) there were only four individuals in the lineup; (b) two of the four were taller than the defendant; (c) defendant’s coveralls were lighter in appearance than the coveralls worn by the other three lineup participants; (d) defendant had a more noticeable Afro haircut than the other three men; (e) some of the participants had more facial hair than defendant.

The standard of admissibility applied to identification testimony subsequent to a pretrial identification is “fairness” as required by the Due Process Clause of the Fourteenth Amendment. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The court looks at the totality of the circumstances surrounding the out-of-court identification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Each case is judged on its own facts, and convictions based on eyewitness identification at trial following a pretrial identification will be set aside only if the pretrial identification procedure was so im-permissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, supra. That is to say, even if the pretrial identification procedure is determined to be unnecessarily suggestive, the conviction can still stand if, under the totality of the circumstances, “the out-of-court identification possesses certain features of reliability.” Manson v. Brathwaite, supra, 432 U.S. at 110, 97 S.Ct. at 2251, 53 L.Ed.2d at 151.

We have viewed a copy of the black and white photograph taken at the lineup and closely examined the testimony of the three identifying witnesses, and we cannot agree with defendant that the lineup was either suggestive or unfair. Defendant makes no contention, and the record negates, that any suggestive comments were made to the three women prior to their identification of defendant at the lineup. Differences in appearances and clothing of lineup participants do not necessitate a finding of suggestiveness. State v. Davis, 530 S.W.2d 709 (Mo.App.1975), State v. Dayton, 535 S.W.2d 479 (Mo.App.1976). Neither do differences in height [State v. Bivens, 558 S.W.2d 296 (Mo.App.1977)], nor the amount of hair or lack thereof [State v. Ealey, 519 S.W.2d 314 (Mo.App.1975), 515 S.W.2d 778 (Mo.App.1974)), nor the number of participants or distinguishing height and weight characteristics [State v. Carson, 501 S.W.2d 503 (Mo.App.1973)], compel findings of improper lineup procedures.

As was said in United States v. Lewis, 547 F.2d 1030 (8th Cir. 1976), cert. denied 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977) at 1035: “There was nothing imper-missibly suggestive about the clothing of the men in the lineup. All were Negro males. While appellant was the shortest of the six men, he was not significantly so; none of the men was unusually tall and all were within a range of about four inches. While appellant was of lighter complexion than the others and had a more receding hairline, we do not think these differences were enough to make the identification procedures impermissibly suggestive. Cf. United States v. Sanders, 156 U.S.App.D.C. 210, 479 F.2d 1193 (1973). Police stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required.”

We hold the lineup procedures met Constitutional standards and, further, that the in-court identification of the defendant by his victims was based upon a source independent of the lineup procedure. State v. Davis, supra at 713. Each of the three victims had an opportunity to view the defendant, notwithstanding the limited lighting in the apartment. The towel was away from defendant’s face most of the time during the rape of Kimberly. Both Carla and Patricia were facing defendant when they handed money to him and could see the uncovered portion of his face and head. Kimberly, Carla and Patricia were positive, certain and unequivocal in identifying defendant, both at the lineup and at trial.

The transcript filed in this appeal totals 600 pages. Contrary to and in violation of Rule 28.08 and Rule 81.14, V.A.M.R., the reporter included page after page of matters that are not authorized. After judgment, trial counsel was relieved of further representation of the defendant. The court then made a finding of indigency, appointed defendant’s present attorney to prosecute this appeal, and directed the reporter to prepare the transcript. The reporter’s certificate of cost of preparing the transcript shows a charge of $667.70, payable by Greene County.

As we did in State v. Jennings, 555 S.W.2d 366 (Mo.App.1977), we direct the trial court to allow the reporter as costs only those matters which are properly included in the transcript pursuant to the aforesaid rules.

The judgment is affirmed.

HOGAN and MAUS, JJ., concur.