author: ANDREW JACKSON HIGGINS, Special Judge. ROBERT R. WELBORN, Special Judge,

text:
    Nathaniel GOLSTON (and) Reatha Golston, minors, by their next friend and aunt, Gladys J. Martin, (and) Billy J. Golston (and) Gladys J. Martin, Plaintiffs-Respondents, v. LINCOLN CEMETERY, INC., a corporation, (and) Lawrence A. Jones Mortuary, Inc., d/b/a Lawrence A. Jones & Sons Funeral Chapel, (and) Douglas Investment Company f/k/a Lincoln Investment Company, Defendants-Appellants. Gladys J. MARTIN, Plaintiff-Appellant, v. LAWRENCE A. JONES MORTUARY, INC., d/b/a Lawrence A. Jones & Sons Funeral Chapel, and Douglas Investment Company, f/k/a Lincoln Investment Company, Defendants-Respondents.
    Nos. KCD 29015, KCD 29016 and KCD 29283.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 13, 1978.
    Application to Transfer Denied Dec. 18,1978.

      Gordon N. Myerson and Morris, Larson, King, Stamper & Bold, Kansas City, Mo., for Gladys J. Martin, appellant and Nathaniel Golston, Billy Golston and Reatha Gol-ston, respondents.
    Thos. J. Conway, Popham, Popham, Conway, Sweeny & Fremont, P. C., David M. Harding, Terrell, Van Osdol & Magruder, Kansas City, for Lawrence A. Jones Mortuary, Inc.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action (Circuit Court 767,511) by children and sister of Eva Jane Parker, deceased, for actual and punitive damages for improper burial of decedent. Plaintiffs dismissed as against Lincoln Cemetery, Inc.; and, upon defendants’ motion, the court dismissed the aunt as a plaintiff without prejudice, in favor of the Golston children as closest next of kin. The children each had a verdict for $15,000 actual damages against the undertaker and the cemetery, and $2,000 punitive damages against the undertaker and $10,-000 punitive damages against the cemetery. Upon remittitur as ordered by the court, judgment was entered for each child for $6,000 actual damages against both defendants, and which let stand their awards of punitive damages.

Action (Circuit Court CV76-2978-F), subsequently instituted by the sister of Eva Jane Parker, deceased, against the undertaker and cemetery for actual and punitive damages for improper burial of decedent, was dismissed on motions of defendants.

Appeal 29,015 by Douglas Investment Company, the cemetery, consolidated with appeal 29,016 by Lawrence A. Jones Mortuary, Inc., the undertaker, both from the judgment in 767,511, and appeal 29,283 by Gladys J. Martin from dismissal of her petition in CV76-2978-F. Upon joint motion of plaintiffs Golston and defendant Douglas Investment Company, which advised that the judgment in 767,511 “against Douglas Investment Company has been fully satisfied by the payment of a sum certain plus the agreement of Douglas Investment Company to dismiss its Appeal, No. 29015 and plus the agreement of plaintiff Gladys Martin to dismiss her Appeal No. 29283 as to defendant Douglas Investment Company only,” and requested dismissal accordingly, this court dismissed appeal 29,015 of Douglas Investment Company and appeal 29,288 of Gladys Martin as against Douglas Investment Company. The issues thus remaining go to Jones’s liability to plaintiffs Golston, 29,016, and the dismissal of Gladys Martin’s petition as against Jones, 29,283. 29,016 affirmed; 29,283 reversed and remanded.

On November 5, 1971, Eva Jane Parker, mother of Nathaniel, Reatha, and Billy J. Golston, minors, died in Kansas City, Missouri. Her sister, Gladys J. Martin, and her son Billy made arrangements for burial of Mrs. Parker with Lawrence A. Jones Mortuary, Inc., d/b/a Lawrence A. Jones & Sons Funeral Chapel. The arrangements were embodied in a memorandum dated November 6, 1971, executed by Carolyn A. Carruthers on behalf of the undertaker and Billy J. Golston and his aunt, Gladys J. Martin on behalf of the family. The arrangements covered a funeral service for Mrs. Parker and included by item and price a casket, two-piece sectional concrete “vault box liner urn,” and grave in Lincoln Cemetery, for a total price of $1,019.77. The memorandum also recited the availability of Social Security benefits and a John Hancock Insurance policy as credits with which to pay for the arrangements.

As part of the arrangements, Billy and Mrs. Martin were taken to Lincoln Cemetery to select a grave site. They chose a site, the cost of which was included in the memorandum.

On November 8, 1971, Jones ordered a two-piece box from Wilbert Vault Company for delivery to Lincoln Cemetery for placement at the direction of cemetery personnel for the burial of Mrs. Parker on November 10, 1971. Wilbert’s records indicated that the box was delivered to Lincoln Cemetery and that it was placed in a grave as indicated by cemetery personnel November 10, 1971. Cemetery records indicated that three graves were opened November 10, 1971. Jones paid Wilbert for the box charged in the arrangements. Jones does not look into graves to check presence of burial vaults but depends upon the vault man to deliver them and the cemetery man to direct their placement. Graves are dug by cemetery employees.

A form, “Funeral Arrangements,” prepared by Jones, showed that Mrs. Parker was survived by five brothers and two sisters in addition to her three children and sister Gladys.

On November 10, 1971, funeral services for Mrs. Parker were conducted at Jones’s chapel and at the selected grave site. The grave was covered by a carpet of artificial turf and a lowering device. Upon completion of the service, the family members were returned by cars to the funeral chapel.

The insurance policy was payable to Billy J. Golston. Gladys Martin subsequently procured a part of the proceeds of the policy and used it to pay the balance remaining on the price of the funeral after application of the Social Security benefit.

Mrs. Martin also ordered a headstone with delivery delayed at least six weeks before placement on the new grave. On February 20, 1972, Mrs. Martin, accompanied by her nephew, deceased’s son Nathaniel Golston, and her brother Dorsey Golston, went to Mrs. Parker’s grave site to pay respects and to see if the headstone had been placed. She saw an open hole in the grave site, and could see her sister’s body, particularly the left side of her face, with dirt on it. She could also see a hand from about the waist up. Subsequent investigation determined that the grave was, at its deepest depth, thirty-one inches. Heavy machinery driven over the grave had struck the top of the casket, thus exposing the body. There was evidence of erosion; there was no vault. Lawrence Jones conceded Mrs. Parker had not been buried in the box or vault ordered for her, and its location was never discovered.

Mrs. Martin was upset by her discovery and called the police who referred her to the sheriff’s office. Deputy Kane visited the grave site and viewed the exposed body. Charles Golston, a brother of Mrs. Parker, was then present, and Mrs. Martin drove a sister who expressed disbelief to the grave site to see the exposed body. Mrs. Martin also called lawyers and the Channel 9 Action Reporter. A number of still and moving pictures were taken showing, among other things, the condition of the grave and persons present. The body was subsequently disinterred by Watkins Brothers Funeral Home and reburied in the original casket at Blue Ridge Cemetery.

Billy J. Golston was present for the funeral November 10, 1971; he was with the Air Force in Korea in February, 1972. Upon learning of the discovery, disinterment and reburial, he felt bad and took some time off from his duties. Nathaniel Golston was present on both occasions and the incidents in February, 1972, caused him to feel bad and upset. He has thought about them since. He stayed in the car at the reburial. Reatha Golston, a teenager, did not testify. She lived with Mrs. Martin after her mother died, and Mrs. Martin stated that she, as herself, Billy, and Nathaniel, was up late at night and could not sleep as a result of these incidents.

The jury was directed on behalf of each of the plaintiffs by Instructions 3, 4, and 5, in form MAI 17.01 and 19.01 modified:

“Your verdict must be for plaintiff _ and against defendant Lawrence Jones Mortuary if you believe:
“First, defendant Lawrence Jones Mortuary failed to see that Eva Jane Parker was buried in the two-piece vault, and
“Second, defendant Lawrence Jones Mortuary was thereby negligent, and
“Third, such negligence either directly caused damage to plaintiff_or combined with the acts of defendant Douglas Investment Company, d/b/a Lincoln Cemetery, to directly cause damage to plaintiff-”

The jury was instructed as to actual damages by Instruction 11, in form MAI 4.01.

The jury was instructed as to punitive damages by Instruction No. 12, in form MAI 10.03 modified:

“If you find the issues in favor of plaintiff, and if you believe that the conduct of one or more of the defendants as submitted in Instruction Number — showed complete indifference to or conscious disregard for the emotional well being of plaintiffs, you may assess punitive damages in addition to any damages assessed under Instruction Number-
“If punitive damages are assessed against more than one defendant, the amounts assessed against such defendants may be the same or they may be different. The amount of punitive damages assessed against any defendant may be such sum as you believe will serve to punish that defendant and to deter him and others from like conduct.”

Appellant Jones contends that it should have had a directed verdict, asserting that plaintiffs (Golston) failed to adduce evidence to support a claim against it for damages for mental anguish in absence of proof of wanton, willful or malicious acts by Jones; that the submission, Instructions 3, 4, and 5, was erroneous in permitting the jury to award compensatory damages for mental suffering with physical injury even if defendant’s actions were negligent, and that the submission of punitive damages, Instruction 12, was erroneous in absence of proof of wanton, willful or malicious acts or “conscious disregard for the safety” of plaintiffs.

Appellant argues that its failure to see that Mrs. Parker was buried in the two-piece vault was “at its best * * * only negligence”; and that the general Missouri law is that in the absence of malice, bad motive, or willful or wanton conduct, mental anguish, unaccompanied by physical injury, is not compensable.

Early Missouri cases established the rule “that, in the absence of evidence of an unlawful invasion of one’s rights under circumstances of malice, wilfulness, wantonness, or inhumanity, there is no recovery for fright, terror, anxiety, mental distress, or nervousness, unless these are accompanied by some physical injury.” Gambill v. White, 303 S.W.2d 41, 43 (Mo.1957). See also Trigg v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 147, 153 (1881); McCardle v. George B. Peck Dry Goods Co., 271 Mo. 111, 195 5.W. 1034, 1036 (1917).

In the circumstances of this case, plaintiffs’ mental anguish was a natural and probable result of defendant’s failure to see that their mother was buried in the vault, which, as part of complete funeral services, they had purchased from defendant. “While damages for mental anguish are ordinarily not recoverable unless connected with some physical injury, the trend of modern authority is not to apply such restriction in the case of interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it.” Crenshaw v. O’Connell, 235 Mo.App. 1085, 150 S.W.2d 489, 493 (1941). See Wilson v. St. Louis & S. F. R. Co., 160 Mo.App. 649, 142 S.W. 775 (1912), where a widower recovered damages for mental anguish from a common carrier on account of damage to a box containing the body of his wife, and the court recognized, l.c. 779, “that the rule requiring bodily injury, in order to warrant a recovery for mental suffering in cases of negligence, has no application to wanton or intentional wrong, or where the mental distress was incident to or a natural consequence of some actionable wrong”; Patrick v. Employers Mut. Liability Ins. Co., 233 Mo.App. 251, 118 S.W.2d 116, l.c. 122 (1938), where the court recognized, “The damages recoverable in such a case are not for the injury done to the dead body, but are for the wrong or trespass on the * * * right to the undisturbed possession and control of the body, measured by the mental anguish and suffering of the plaintiff occasioned thereby”; and Koerber v. Patek, 123 Wis. 453, 102 N.W. 40, 43 (1905), where the court could “imagine no clearer or dearer right in the gamut of civil liberty and security than to bury our dead in peace and unobstructed; none more sacred to the individual, nor more important of preservation and protection from the point of view of public welfare and decency; certainly none where the law need less hesitate to impose upon a willful violator responsibility for the uttermost consequences of his act.” See also Wall v. St. Louis & S. F. R. Co., 184 Mo.App. 127, 168 S.W. 257 (1914).

In addition to the negligence attributed to defendant, plaintiffs also submitted that such conduct showed complete indifference to or conscious disregard for their emotional well being. See Sharp v. Robberson, 495 S.W .2d 394, 397 (Mo. banc 1973), where “an act or omission, though properly characterized as negligent, may manifest such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted. * * * Or, there may be conscious negligence tantamount to intentional wrongdoing, as where the person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury. * * * In either case punitive damages are allowable for resulting injury”; and Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566, 568 (Mo.1965), citing 64 A.L.R.2d 100, that “the attitude toward recovery for emotional distress has tended to become somewhat more liberal,” and its acceptance of 1 Restatement of Torts 2d, § 46, p. 71, that a right of action exists for damages for severe emotional distress, intentionally and recklessly caused, by “extreme and outrageous conduct.” See also Nelson v. Grice, 411 S.W.2d 117 (Mo.1967); Warrem v. Parrish, 436 S.W.2d 670 (Mo.1969); Hood v. Naeter Bros. Pub. Co., 562 S.W.2d 770 (Mo. App.1978); Kuehner v. Denny Loan Corp., 518 S.W.2d 94 (Mo.App.1974).

Generally, the case [of extreme and outrageous conduct causing severe emotional distress] is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “ ‘Outrageous!’ ” Restatement, supra, l.c. 73. See Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976), where plaintiff’s petition was against a mortician for damages for mental distress allegedly suffered as a result of the reckless manner in which the mortician dealt with the body of plaintiff’s deceased father and conducted burial services. The court applied the provision in 2 Restatement of Torts 2d, § 500, p. 587; “The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” As applied to the type of action here concerned, “the above standard would refer to an unreasonable risk of severe emotional distress rather than only to physical harm.” Meyer v. Nottger, supra, 241 N.W.2d l.c. 919.

Appellant Jones complains that use in Instruction 12 of indifference to or conscious disregard “for the emotional well being of plaintiffs” is an improper deviation from MAI.

The language of MAI 10.03, indifference to or conscious disregard “for the safety of others,” does not fit plaintiffs’ case. The Committee’s Comment to the MAI 10.-00 series cites Nichols v. Bresnahan, 357 Mo. 1126, 212 S.W.2d 570, 575 (1948), which approved an instruction requiring a finding that defendant’s conduct exhibited “a disregard or conscious indifference to the consequences.” Appellant would require this pre-MAI language to the exclusion of other permissible modifications of MAI 10.03 to fit plaintiffs’ case. The Committee’s suggestion, albeit satisfactory for this case, says no more or less than the modification employed; and it too has the sanction of case law in these circumstances. Meyer v. Nottger, supra.

Appellant Jones complains particularly of the submission, Instructions 4 and 12, concerning Reatha Golston, “in that said plaintiff in failing to testify at trial failed to prove she sustained any damages on her part.”

It is reasonable to believe under the evidence in this case that all three children sustained and shared similar bad experiences in the knowledge, however acquired, that their mother had been improperly buried. Counsel for Jones so conceded in closing argument. True, Reatha did not testify, but her brothers described their feelings and her aunt stated that all of the family was upset, up late at night, and could not sleep. Cf. Tapia v. Zarb, 70 S.W.2d 464 (Tex.Civ.App.1934), where the trial court ruled a widow failed to make a submissible case on evidence by a third party that the widow “looked sick” which was explained to mean “she looked to him grieved.”

Instruction 2 contained the language, “The burden is upon plaintiffs to cause you to believe the propositions necessary to support their claim against defendants.” Appellant Jones argues this was prejudicially misleading, asserting that “claims” should have been used to reflect multiple plaintiffs asserting separate claims in one trial.

This asserted error, if so, was rendered harmless by the totality of instructions given, particularly the separate verdict-directing instructions and forms of verdict for each plaintiff’s damages. Penn v. Columbia Asphalt Co., 513 S.W.2d 679 (Mo.App.1974). The total charge was not confusing or misleading; the jury followed such instructions and forms and rendered separate awards for each plaintiff.

Appellant Jones charges the hypothesis “failed to see that Eva Jane Parker was buried in the two-piece vault” in Instructions 3, 4, and 5, was vague and unintelligible without further definition or detail.

Rule 70.01(a) requires that “all instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed eviden-tiary facts.” Compliance with respect to Instructions 3, 4, and 5 is demonstrated by another quotation from Jones’s counsel in closing argument: “All Judge Meyers is telling you, the only claim that plaintiffs have against Lawrence Jones is that he failed to see this Eva Jane Parker was buried in this two-piece vault.”

Instruction 11 on damages authorized an award to plaintiffs for any damages “sustained as a direct result of the occurrences mentioned in the evidence.” Appellant Jones charges the use of “occurrences” violated the directions on use of MAI 4.01, that “occurrence” should be used unless the injury was caused by more than one occurrence. Gant v. Scott, 419 S.W.2d 262 (Mo. App.1967).

“Occurrences” was proper in this case. The case went to the jury against defendant Jones, Instructions 3, 4, and 5, on the hypothesis “failed to see that Eva Jane Parker was buried in the two-piece vault,” and against defendant Douglas Investment Company, Instructions 6, 7 and 8, on the hypothesis in Instructions 3, 4, and 5, and the additional hypothesis “or buried Eva Jane Parker in an unreasonably shallow grave.” Instructions 3 through 8 also authorized the jury to find for each plaintiff if the jury believed that each defendant’s negligence either directly caused or combined with the acts of the other defendant to cause damage. See Homm v. Oakes, 453 S.W.2d 679 (Mo.App.1970); Jurgeson v. Romine, 442 S.W.2d 176 (Mo.App.1969).

Appellant Jones charges that Instruction 14 with respect to the form for awarding actual damages was erroneous because it omitted the word “only.”

Although “only” appears in MAI 36.12, the total direction in No. 14 on the forms for awarding damages, actual and punitive, taken from MAI 36.05, 36.08, and 36.12, demonstrates the absence of confusion or misdirection, viz.:

The jury was further instructed by No. 14 in the same manner with respect to plaintiffs Reatha and Billy Golston.

Appellant Jones contends the court permitted counsel “to incorrectly instruct the jury as to the law applicable to actual damages” by this argument: “ * * * and again, you don’t have to award the same amount of punitive damages. You just don’t have to. You must award some actual damages. You have to award a dollar if nothing else. Our laws—it’s a technicality; there’s got to be some monetary award—

“MR. CONWAY [for defendant Jones]: If your Honor please, that is not a proper statement of the law, and instructions. I think that’s misquoting. THE COURT: The jury understands it’s counsel’s argument,

“MR. MYERSON [for plaintiffs]: Monetary damages, actual damages doesn’t just mean loss of money. It means if you get in a car accident and you are upset and pain and suffering, that’s all actual damages. But in any event, you must award actual damages. You must award a sufficient amount of money to deter these defendants from doing this again and to stop other cemeteries and funeral homes from doing this again.”

The foregoing demonstrates that defendant’s objection interrupted plaintiffs’ argument which, when completed without objection, comported with the law contained in Instruction 14: “YOU MAY NOT AWARD PUNITIVE DAMAGES AGAINST ANY DEFENDANT UNLESS YOU HAVE ALSO AWARDED ACTUAL DAMAGES AGAINST THAT SAME DEFENDANT.”

Appellant Jones contends the court should have granted defendants a new trial for the reason that juror Foy failed to disclose a 1970 negligence suit in which he was plaintiff, even though the entire panel was specifically asked about such matters during voir dire.

Foy’s posture as plaintiff in a damage suit in 1970 was presented by affidavits of counsel for defendants. The affidavits contain no facts indicative of prejudice and there was no evidence that Foy was guilty of intentional concealment of his prior status or that such prejudiced the verdict in this case. In such circumstances, the court’s refusal to set aside the verdict was within the discretion accorded the trial court. Beggs v. Universal C. I. T. Credit Corporation, 387 S.W.2d 499 (Mo. banc 1965).

Exhibit 15 was a moving picture film of the exhumation of the casket of Eva Jane Parker. Appellant Jones claims its admission was erroneous for the reasons that it was not relevant, did not tend to prove any issue, depicted a scene not witnessed by all plaintiffs, and served only to inflame and prejudice the minds of the jurors.

Admission of evidence calls for an exercise of the trial court’s discretion. None of appellants’ charges demonstrate an abuse of that discretion. As a depiction of consequences of defendants’ conduct, the film bore on the issue of damages, verified presence of witnesses, and corroborated descriptions of the grave site, its depth and location.

Appellant Jones contends it was error to submit the issue of punitive damages absent proof of net worth of defendants.

Net worth of a defendant is admissible on the issue of punitive damages, State ex rel. Kubatzky v. Holt, 483 S.W.2d 799 (Mo.App.1972). As conceded by appellant, however, no case has been found which requires such a showing, and appellant Jones makes no suggestion that the $6,000 total punitive damages award against it was excessive.

The issue in Mrs. Martin’s appeal is whether her petition states a cause of action against defendant Lawrence A. Jones Mortuary, Inc., d/b/a Lawrence A. Jones & Sons Funeral Chapel.

As against defendant Jones, Mrs. Martin pleaded: that she is the sister of Eva Jane Parker who died November 5, 1971; that on November 6, 1971, she, acting with and on behalf of Mrs. Parker’s family, made arrangements with Jones for the embalming, funeral services, and purchase of a casket and two-piece box; that on November 10, 1971, Mrs. Parker was buried in Lincoln Cemetery by Jones; that Jones, negligently and with complete indifference and conscious disregard for the emotional well-being of plaintiff, did not assure that the two-piece box was delivered to Lincoln Cemetery for placement in her sister’s grave, and negligently and with complete indifference to and conscious disregard for the emotional well-being of plaintiff failed to assure that the deceased was buried in a grave of sufficient depth; that when plaintiff thereafter discovered the exposure, mutilation, and desecration of the remains of her sister, she was profoundly and severely outraged, shocked, and caused great and lasting mental distress, anguish, pain, and did suffer and became sick in mind; that defendant knew or could have known by exercise of reasonable care that deceased’s body would be exposed and desecrated and that plaintiff would be outraged and injured as aforesaid; that as a result of the foregoing and the negligent and outrageous conduct of defendant, plaintiff sustained damages of $100,000; that in doing the things alleged, defendant acted so as to show a complete indifference and a conscious disregard for the emotional well-being of plaintiff, and by reason thereof, plaintiff asks exemplary and punitive damages of $500,000; that defendant Jones (and Douglas Investment Company) represented to plaintiff that her deceased would be properly buried in a casket, two-piece box, and grave of sufficient depth, all to protect deceased’s body; that said representations were false, fraudulent, and malicious, and said defendants neglected to provide the two-piece box; that plaintiff was thereby damaged and asks actual damages of $100,000 and exemplary and punitive damages of $500,000 against defendants Jones and Douglas.

Neither defendants’ motions to dismiss nor the court’s order of dismissal contained a ground for the dismissal.

Plaintiff’s petition pleads the same cause of action which afforded relief to her nephews, children of the deceased, affirmed supra, and states a cause of action for the reasons there stated under 1 Restatement of Torts 2d, § 46.

Respondent argues, however, that Mrs. Martin lacks standing to bring her action because she was not entitled to disposition of her sister’s body. A sister of deceased was so limited with respect to suit for an unauthorized autopsy where the deceased was survived by her husband and mother in Trammell v. City of New York, 193 Misc. 356, 82 N.Y.S.2d 762 (N.Y.Sup.1948); Gost-kowski v. Roman Catholic Church, 262 N.Y. 320, 186 N.E. 798 (1933), found it “inconceivable” that each member of a family could maintain a separate action for mental anguish resulting from desecration of a grave, and dismissed such cause as brought by an infant son of deceased where the husband had recovered in his separate action for such damages; and the reported cases involving interference with a dead body have been brought by the next of kin, e. g., Wall v. St. Louis & S. F. R. Co., supra (son); Patrick v. Employers Mutual, supra (widow); Wilson v. St. Louis & S. F. R. Co., supra (widower); McClellan v. Highland Sales & Investment Co., 484 S.W.2d 239 (Mo.1972) (widow).

Such authorities are not persuasive in preclusion of Mrs. Martin’s action under 1 Restatement 2d, § 46, pp. 71-72:

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
“(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm ⅝ * ⅜ yt

In Restatement of Torts, § 868 (tentative draft 1970, p. 168), The American Law Institute “expresses no opinion as to whether there may not be situations in which members of the immediate family of the deceased who are not entitled to the disposition of the body may recover damages for emotional distress * ⅜ *. No case has been found allowing recovery as stated in the Caveat. There are cases in which more than one person has recovered, where there are multiple children of equal rank, but in all of them there would appear to have been equal right of disposition. The Reporters, Advisers and Council would like to leave it open. Suppose the widow, who in all states is the first person entitled to disposition, is unable to attend the funeral. When somebody dumps the corpse out of the coffin at the feet of the daughter, who is present. It makes little sense to say that the widow can recover for her mental distress when she hears about it, but the daughter has no cause of action.” Prosser, The Law of Torts, §§ 41-43 (4th Ed. 1971), reasons that the tort of outrage is not based on any quasi property right as frequently permeates actions for violation of the right to disposition of a dead body, but lies, instead, in favor of those persons to whom the emotional distress was inflicted, subject only to the limitations of proximate cause and foreseeability.

Plaintiff’s pleading shows not only that she was a sister of the deceased, but that she was also the member of the family who stepped forward to make and to assist deceased’s minor children to make arrangements for the deceased sister’s burial. As such she qualified as a member of the deceased’s “immediate family” to join in or bring an action of the nature envisioned by 1 Restatement of Torts 2d, § 46. See the discussion of “immediate family” in Fisher v. Hodge, 162 Conn. 363, 294 A.2d 577, 579-580 (1972). See also Blanchard v. Brawley, 75 So.2d 891 (La.App.1954), where the mother and each of the brothers and sisters of the deceased were permitted to recover for mental anguish caused by mutilation of the corpse of the deceased.

Judgment in 29,016 affirmed; judgment of dismissal in 29,283 reversed and cause remanded.

PRITCHARD, J., concurs.

ROBERT R. WELBORN, Special Judge, concurs in part and dissents in part in separate opinion filed.

ROBERT R. WELBORN, Special Judge,

Presiding, concurring in part and dissenting in part.

I concur in the opinion of Judge Higgins except insofar as it affirms the judgment for punitive damages against the appellant Jones. In my opinion, the act charged against the appellant, i. e., the failure “to see that Eva Jane Parker was buried in the two-piece vault * * * ” did not amount to a showing of “complete indifference to or conscious disregard for the emotional well being [of plaintiffs] * * *The conduct charged did, in my opinion, amount only to negligence, insufficient to justify an award of punitive damages. Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596, 603—604[15—19] (Mo.1968).


source: Caselaw Access Project

author: SHANGLER, Presiding Judge. WASSERSTROM, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Judy Irene ROGERS, Appellant.
    No. KCD 29113.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 13, 1978.

      Joe Hamilton Scott, Public Defender, 5th Judicial Circuit, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Nannette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The defendant Judy Rogers was convicted of the second degree murder of one Sandra Beam and was sentenced to a term of life imprisonment. The murder was shown as an act of revenge. The victim had encouraged the defendant to attend a party where she was set upon and raped by the male company. The sufficiency of the evidence to convict is not in question, therefore we forgo the sordid narrative.

The circumstances of the crime are best described as a debauchment which commenced when victim Sandra Beam allowed her pubic hairs to be shorn and thereafter was subjected to forced ingestions of vodka, gin, nail polish and other harmful substances. In the course of this bacchanalia, which extended over two days, the victim alternately passed out, was revived by relays of those present, disgorged, was forced to ingest again, and was battered and abused until she died. These events were at the residence of one Gloria Sowards who kept the defendant Irene Rogers and another, Karen Sharp, as house guests. The women and victim Sandra Beam were acquainted as enrollees at the Excelsior Springs Job Corps Center. They were joined at the residence in the early morning of June 8, 1976, by three men, McDaniel, Russell and Henderson. Later that day, that company was joined by one Stanley Swope. Each of them, at one time or another, joined to restrain and abuse the hapless Sandra Beam. The defendant Irene Rogers commenced that course when she denuded the victim of pubic hair in the presence of the men and on their wager. The defendant also forced her to drink more, struck her repeatedly, first with a belt and whiffle ball bat and then beat her head upon the floor. The evidence was sufficient to support the conviction.

The police came to the Sowards residence in response to a telephone call to the dispatcher at about five p. m. that the dead body of one Sandra Beam was at that address. At about five-thirty p. m. Officers Taff and McGaughy knocked at the front door of the premises and saw two men take flight from the rear. They gave chase and caught McDaniels, but the other escaped. By this time, two other officers, Funk and Lopez arrived on the premises and were let in by a small child [the infant daughter of Gloria Sowards]. These officers found a young woman laid out on a recliner chair in the front room, covered with a blanket. It was the body of Sandra Beam already dead. They summoned an ambulance and then went to the front yard of the house where they began to question the small crowd of people gathered there. In the course of this investigation, Judy Rogers and Karen Sharp were arrested as they stood on the sidewalk outside the house in the crowd. An hour or more later Gloria Sowards arrived and was met by police officers outside the house. She entered her home, identified the body of Sandra Beam as her babysitter and was arrested also. In the interim, three additional police officers, who had arrived at about five-thirty that evening, began to search the premises. No warrant had been issued for that purpose. Search of the front room disclosed a rope behind the heater [used to bind the victim to the chair] and an extension cord. Search of the trash in the kitchen discovered bottles of gin and vodka and a bottle of fingernail polish, among other miscellany; and from the cabinets of the kitchen were seized a bottle of alcohol and a bottle of liquid silver polish.

The defendant Rogers brought formal motion under § 542.296 to suppress from evidence these and other items seized by the police on the Sowards premises on the ground that they were taken without authority of warrant. The motion was submitted on a stipulation by the parties of facts which include those we have recited. The trial court overruled the motion and admitted the evidence. The State justifies the police entry and search of the premises on the exigent circumstances exception to the warrant requirement which accords validity to a warrantless search of the scene of a homicide or of a serious personal injury with likelihood of death where there is reason to suspect foul play. Davis v. State, 236 Md. 389, 204 A.2d 76 (1964); Patrick v. State, 227 A.2d 486 (Del.1967); People v. Sutton, 65 Cal.App.3d 341, 134 Cal.Rptr. 921 (1977). The entry and investigation of emergency, however, must be without accompanying intent to search or arrest. United States v. Barone, 330 F.2d 543, 545[4] (2d Cir. 1964). Thus, the doctrine treats the search which follows as merely an extension of the investigative entry [State v. Oakes, 129 Vt. 241, 276 A.2d 18, 24[5—6] (1971)] and strictly circumscribed by the nature of the emergency to which it responds. Mincey v. Arizona,-U.S.-, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290 (1978).

Missouri has given effect to the doctrine to receive evidence of crime taken, without warrant, from premises to which the police were called by a victim in the throes of death from gun wounds., The State contends that in the circumstances the evidence taken from the Sowards residence without authority of warrant was from a lawful entry in prompt response to the report of a dead body and during the course of a continuous investigation which never relinquished official control of the premises. Thus, the State discards the contention that the search without warrant was unreasonable even though there was ample time to resort to the judicial process for such authority — on the rationale that an entry onto private property in response to an emergency imports reasonableness ipso facto so long as the official action is prompt and the investigation which yields the evidence continuous.

The United States Supreme Court has recently reaffirmed that searches outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, and in the course of decision, rejected the doctrine that the mere fact of homicide creates an exigent circumstance that will justify a warrantless search under the Constitution. Mincey v. Arizona,-U.S.-, 98 S.Ct. 2408, 57 L.Ed.2d 290 (adopted June 21, 1978). The Court did not question the duty of the police to respond to an emergency, nor the right of an officer at a homicide scene to make a prompt warrantless search of the area for other victims or the presence of the killer, nor the right to seize evidence in plain view during legitimate emergency investigation, but concluded that the mere claim of exigency — without showing that evidence would be destroyed or lost during the time required to obtain a search warrant — does not justify the sacrifice of privacy entailed by an unlimited search of premises. The Court thus declared that a true emergency will justify police entry upon private premises to give immediate aid, and in cases of homicide, to find victims and seek out killers, but will not justify a search unless there be apt cause for concern that evidence would be lost, destroyed or removed before a search warrant could be obtained.

The facts, both as stipulated and as supplemented by witnesses, show circumstances which, by the Mincey rationale, do not justify the search into the trash bin, the kitchen cabinets and behind the heater in the front room, as incidents to an investigation of a homicide emergency. Nor did the emergency entry justify the seizure of any evidence other than that found in plain view. At the time the search by officers began, the premises were known to be clear of occupants and were secure. There was no threat to the contents of the residence and no cause for search without a warrant. The first officers at the scene, Taff and McGaughy, arrived at five-thirty p. m., and as they approached saw two men flee from the rear, gave chase and captured McDaniel. They returned, but by that time, Officers Funk and Lopez had arrived, were let in by a frightened Sowards child, discovered the dead Sandra Beam, summoned an ambulance and placed the two Sowards infants with a next-door neighbor. The premises were then empty. Another relay of officers arrived at about five-fifty p. m., and ten minutes later, Detective Pasley took charge of the investigation and all three commenced a thorough search of the interior premises. The search continued until about nine-thirty p. m. and was joined by other officers and the prosecuting attorney. Thus, a concerted search activity extended over three and one-half hours after the premises were secured by Officers Funk and Lopez for evidence in hidden places, and no reason appears why a formal warrant was not obtained by judicial process before the privacy of the household was disrupted. [Cf. State v. Dayton, 535 S.W.2d 469, 486[6-8] (Mo.App.1976)]. It was a simple matter to protect against theft or destruction of the evidence by a posted guard during the procedure for a warrant. The body had been found and the house searched for sources of potential danger or other victims. The search went beyond the exigency to investigate the report of a dead body which justified the initial entry, and so was illegal. Mincey v. Arizona, supra, 1. c. 2413[4]; Terry v. Ohio, 392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Nor was the search incident to lawful arrest. The purpose of such a search is to protect the officer who arrests from harm and to prevent the destruction of evidence — and so may not validly go beyond that proximity within which the arrested person might reach for a weapon or gain access to the evidence. Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Peterson, 525 S.W.2d 599, 604[5] (Mo.App.1975). The arrests of all those accused of the murder except for Gloria Sowards — were made outside the residence. McDaniel, upon capture from flight, and Karen Sharp and Irene Rogers on the sidewalk within the vicinity of the house. The State cannot — and does not — contend that the residence was within the ambit of search incident to a sidewalk arrest. Commonwealth v. Robinson, 218 Pa.Super. 49, 269 A.2d 332 (1970). Nor is there evidence that any arrestee made a dash for the house interior for a weapon or to destroy incriminating evidence. Nor is there claim that the search of the interior of the Sowards residence was incident to her arrest within the premises. The stipulated evidence shows that her presence within the house was momentary, only to identify the body of Sandra Beam, and then to be taken in arrest there and promptly removed. No exigency attended that action to justify systematic search of her home and, in fact, by that time, the search had already progressed for more than an hour. The stricture of Chimel, supra, that the area of legitimate search incident to arrest is described by the reach by the arrestee for a weapon or evidence, applies with equal validity where the arrest is made on private property. 1 Varron, Searches, Seizures and Immunities, p. 200 (2d ed. 1974). The arrest of Gloria Sowards presented no exigency to allow exception to the requirement for a search warrant.

Most recently, the Missouri Supreme Court in State v. Epperson, 571 S.W.2d 260 (Mo.banc adopted September 12, 1978), reaffirmed the continued effect of the emergency doctrine to allow police warrantless entry upon premises to investigate a dead body. The police were prompted to this action by reports from members of the family that the married daughter and children had been missing several days, by the stench of decomposed flesh detected in the house and by other circumstances which led to a reasonable conclusion that the daughter and children may have been victim to criminal injury or death. The police made entry on that exigency, discerned a covered human form on the bed and discovered the dead bodies of the daughter and children, one of them with a cord tied around the neck, others with heads covered with plastic bags, and another with a sock near the face. [Later autopsy detected chloroform in the vital organs of the victims and also determined that they had been struck with a blunt instrument.] These instrumentalities of the crime were seized by the police. After the bodies were removed, a further cursory investigation of the rest of the house discovered a five gallon can of gasoline in the nearby hallroom, a chisel and bottle of chloroform on the cabinet in the kitchen. This evidence was also seized. The question arose as to the legality of a search into the house areas, other than the bedroom where the bodies were discovered, when the police had already determined there were no other victims and the killer was not to be found. The court answered that in the circumstances the exigency continued and so the “limited superficial search” which discovered the chloroform and chisel in plain view, were within the temporal and spatial compass of the emergency entry and search rule. The decision rested this point on the authority of Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) where the exigency was a fire and the warrantless entry was by firemen into a furniture store and the evidence seized were items in plain view which suggested the blaze was set deliberately. The United States Supreme Court in Tyler validated the evidence as taken in the course of the exigency: entry without warrant to extinguish the fire, determine the cause and prevent its recurrence. Epperson — where the evidence taken also was in plain view— distinguished its facts from the four-day search in Mincey into closed drawers, closets and cabinets by officers who entered the premises following the wounding of a narcotics agent — and so found Mincey irrelevant as a precedent.

One constant rationale underlies each of these cases: when the emergency which validates the original warrantless entry ceases, further investigation may not proceed without authority of warrant. That is, the emergency warrantless search “must be ‘strictly circumscribed by the exigencies which justify its initiation.’ ” Min-cey, l.c. 2413[4]; Terry v. Ohio, 392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Tyler and Epperson the exigency continued when the evidence in plain view was taken. In Mincey the emergency had run its course and, in any event, did not justify the systematic search into hidden places. The circumstances before us are more consonant with those before Mincey and we are controlled by that decision. As in Mincey, and unlike Tyler and Epperson, the emergency which prompted and justified the initial entry had run its course when the evidence was discovered — the premises were clear of persons, victims or killers so that there was no longer danger to the police or threat of loss of evidence. As in Mincey, and unlike Tyler and Epperson, the evidence taken was not found in plain view incident to an emergency investigation, but in hidden places incident to deliberate and systematic search after the excuse of exigency had passed.

That is merely to say again that, as a matter of constitutional principle, the emergency doctrine is not just another means to justify a warrantless search but for entry onto private premises to respond to urgent need for aid or protection, promptly launched and promptly terminated when the exigency which legitimates the police presence ceases. [McDonald v. United States, 335 U.S. 451, 454-6, 69 S.Ct. 191, 93 L.Ed. 153 (1948); People v. Roberts, 47 Cal.2d 364, 303 P.2d 721, 722 (1956); Fischer, Search and Seizure, pp. 233-235 (1970)]. The entry must be without accompanying intent to search or arrest [United States v. Barone, supra] and the investigation must be only as broad as the exigency to which it responds. [Mincey, supra, l.c. 2414]. Where the exigency is a homicide, the entry is justified to find the victims and perpetrators by a scan of the premises, and in the absence of other unusual circumstances, ends there. [Mincey, supra, l.c. 2414]. Those items in plain view to the police in the course of their legitimate emergency activity may be taken as evidence. That which is in open view when taken is not the product of a search. Patrick v. State, su pra, l.c. 489[10, 11]. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974). And that evidence may be used to convict a person against whom the charge is brought. The competency of such evidence rests on the principle that what a person voluntarily exposes to the public view, even in his own home, does not come under the protection of privacy of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Mascolo, Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buffalo Law Review 419, 425 et seq. (1972-3).

We conclude that the evidence found from the search of the kitchen cabinets and trash bin and concealed behind the front room heater was not lawful evidence under the emergency doctrine as expounded by the Supreme Court of Missouri or United States Supreme Court precedents. The trial court erred in the denial of the motion of defendant Rogers to suppress those items from proof of the offense charged.

The Fourth Amendment, however, protects persons not places. Katz v. United States, supra. The earlier premise that property interests, alone, determine status to question the legality of police intrusion and search has given way to recognition that the Fourth Amendment protects the reasonable expectation of privacy of a person. Jones v. United States, 362 U.S. 257, 265, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); In re J.R.M., 487 S.W.2d 502, 505[2] (Mo.banc 1972). The question whether defendant Rogers was victim of an illegal search, and thus had status to complain of the police search of the Sowards premises which yielded evidence used to convict her, therefore, depends upon her relationship to those premises. State v. Dodson, 556 S.W.2d 938, 949[20, 21] (Mo.App.1977).

The United States Supreme Court in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) accorded per se status to contest the validity of a search or seizure to a defendant who [l.c. 228] (1) was legitimately on the premises at the time of the police conduct (2) or who had a proprietary or possessory interest in the premises (3) or who was charged with an offense, an essential element of which was possession of the goods seized. The defendant Rogers was not present when the police entered the Sowards premises, or thereafter during the prolonged search, nor was she charged with a crime which involved the possession of the items taken in the search. Her status to claim exclusion of the evidence rests, if at all, on her expectation of privacy from her possessory interest as a continued occupant of the Sowards premises.

The agreement of facts between the defendant and the State on the motion to suppress the evidence taken in the search stipulates that the defendant Rogers arrived at the Sowards house on January 6, 1976, with two suitcases of personal belongings and remained there as the guest of Gloria Sowards until the arrest of the defendant on January 9, 1976. This evidence imports that although defendant Rogers was not present at the time of the police entry she continued as an occupant of the Sowards premises and her expectations to that privacy were not abandoned by temporary absence. The evidence shows also that during the occupancy defendant Rogers had free run of the house: she slept on a divan in the living room, used the bathroom facilities and the kitchen as well. Her expectation of freedom from governmental intrusion, therefore, extended into the areas of actual search to which she continued to have regular access and use. The right to use premises is alone sufficient to vest status to contest the legality of a search. Spinelli v. United States, 382 F.2d 871, 879[4, 5] (8th Cir. 1967); In re J.R.M., supra, l.c. 509.

The evidence before the trial court required judgment for the defendant Rogers on her motion to suppress State Exhibits 10, 11, 12, 14, 15, 16 and 17 taken in the illegal search of the Sowards premises and used to convict the defendant. The express provisions of § 542.296.6 place “the burden of going forward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled.” This statute, enacted by the Laws of 1974 [p. 922, § 8], discards the earlier practice which cast both the procedural and substantive burdens upon the defendant to prove the motion by a preponderance of the evidence. State v. Holt, 415 S.W.2d 761, 764[1, 2] (Mo.1967). The stipulated facts that after Officers Funk and Lopez entered the Sowards premises and removed the two infants to a house next door and that, then, only the dead Sandra Beam and the officers remained in the building [that is, that the premises were secure] sufficiently prove the contention of the motion that search thereafter without warrant was unlawful. There was no evidence in contradiction of this intendment of the stipulated fact and so the State failed to show by a preponderance of the evidence that the motion to suppress should be overruled. [The proof at the trial merely corroborated the inference of the stipulation that the Sowards premises were neither a source of danger to the investigators nor vulnerable to the loss of evidence by the time the warrantless search for evidence began.]

There remains the question of consent. The permission to search premises or effects may be given validly by any person with common authority over or sufficient relationship to the property. The common authority which endows a power to consent “rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, 415 U.S. 164, 172 n. 7, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); United States v. Green, 523 F.2d 968, 971[1] (9th Cir. 1975). A consent to the search by Gloria Sowards, by these principles, would have bound the defendant Rogers who assumed the risk of any such permission by her host, but by the stipulated facts, neither Sowards nor Rogers gave the police consent to entry, nor were they asked, nor were they present.

Another contention by the defendant requires response for guidance to the parties and court upon the eventual retrial. Police Officers McGaughy and Funk were allowed to testify, over objection, that when Karen Sharp confronted the defendant Rogers in the company of the mingled crowd near the Sowards premises they heard Karen Sharp say to defendant Rogers: “Judy, you are the one that dumped alcohol down her”—to which the defendant made no response. The defendant Rogers complains that the admission of the statement infringed her right against self-incrimination and prejudiced the verdict. The State contends the statement was admissible as a tacit admission.

The operation of the tacit admission rule as employed in Missouri presupposes three conditions: (1) that the statement was made in the presence and hearing of the accused (2) that the statement was sufficiently direct as would call for a reply (3) that the statement was not made at a judicial proceeding or while the accused was in custody or in arrest. State v. Samuel, 521 S.W.2d 374, 375[1] (Mo.banc 1975). There is no dispute but that the first two requirements were met. The defendant contends, rather, that when the statement was uttered to her she was then “in constructive, if not actual custody and under arrest.”

The evidence shows that a small crowd had gathered outside the Sowards house shortly after the relays of police appeared. Karen Sharp and Judy Rogers mingled among them. Officers McGaughy and Funk made inquiries of those present. McDaniel [who had fled the premises and was captured by Officers McGaughy and Taff] pointed out the defendant Judy Rogers to McGaughy. McGaughy then went over to Officer Funk “to tell him something that McDaniel had told [him].” Officer Funk was then talking to Karen Sharp in the midst of a crowd. Although there is intimation that McGaughy intended to tell Funk that McDaniel had told him Judy Rogers “was also involved,” that response was disallowed as hearsay on the objection of defense counsel. McGaughy beckoned to Judy Rogers to “come up here” [into the presence of Officer Funk and Karen Sharp] and as Judy Rogers in the company of McGaughy came within a couple of feet of Funk and Sharp, Karen Sharp stated to the defendant: “Judy, you are the one that dumped alcohol down her.” At this, Officer Funk promptly advised Sharp not to say anything else and read her the Miranda warnings. The defendant Rogers made no response to accusation by Karen Sharp. Judy Rogers was placed in arrest shortly thereafter.

The record shows no competent evidence to indicate that the suspicion of the police had focused on any role Judy Rogers had in the death of Sandra Beam at the time of the statement by Karen Sharp. There had been no formal arrest nor do the circumstances allow inference of any restraint, actual or tacit, on the movements of Judy Rogers. There are vague intimations that the McDaniel conversation with Officer McGaughy in the police car may have aroused police suspicion of involvement by Rogers, but that is a speculation not supported by the police conduct. Karen Sharp, not Rogers, was advised not to say anything more. Then each woman was separately administered the Miranda warnings. At the time of the statement Sharp, and not Rogers, was the focus of suspicion. Only after the statement by Sharp did Rogers also become a subject of suspicion. Nor does the evidence support the alternative contention of the defendant that her arrest followed the statement by Sharp so shortly as to prevent or discourage her response. The evidence of the statement was admissible under the rule of State v. Samuel, supra.

The two contentions of error which remain: that the trial court abused its discretion by failure to discharge the jury panel because of certain responses during the voir dire and by failure to grant a continuance— need not be answered. The order for retrial renders these questions moot.

There was no contention at the trial, nor does our review disclose, that the evidence without the exhibits we have ruled inadmissible was not sufficient for conviction. These exhibits corroborate the testimony, and thus the credibility of eye-witnesses McDaniel, Swope and Russell, as to these instrumentalities of death and thus the verity of the fact of the crime. We cannot say confidently beyond a reasonable doubt, therefore, that the illegal evidence did not bear on the verdict of the jury. Accordingly, the judgment of conviction is reversed and remanded for a new trial.

SWOFFORD, C. J., concurs.

WASSERSTROM, J., concurs in separate opinion filed.

WASSERSTROM, Judge,

concurring.

I concur in the conclusion of the principal opinion but differ slightly in theory. The sole purpose of this concurrence is to expound that difference.

The principal opinion stresses that the emergency exception does not justify the seizure of any evidence other than that found in plain view. It in effect limits the emergency doctrine to giving an excuse for entry, without affording any justification for a search. According to the reasoning of the principal opinion, a search and seizure of evidence can be justified, if at all, only under the separate plain view doctrine.

My reading of Epperson and Mincey leads to a broader interpretation of the emergency exception and convinces me that this doctrine does in fact authorize a limited type of search and affords a basis for seizure of evidence independent of the plain view doctrine. This would seem the plain meaning of Epperson, which pointedly distinguishes the two doctrines at p. 268: “. . . the bodies, plastic bags and chloroformed socks and Venetian blind cord were discovered in the bedroom and admissible under the plain view doctrine and the evidence from the other part of the house (i. e., the gasoline can, chisel, bottle of chloroform and certain of the photographs) were within the scope of the emergency exception.” The importance of the distinction so drawn can be fully appreciated only by remembering that Epperson had already held (at p. 266): “The admission of evidence from rooms of the house other than the bedroom . . . cannot be justified under the plain view doctrine . . . ”

Nevertheless, the emergency exception did not extend to permit seizure of the evidence challenged here. Epperson acknowledges that a search under the emergency exception must be one of “limited intensity” and ruled that the search there involved was so limited and was therefore distinguishable from the one held unjustified in Mincey v. Arizona. As pointed out in the principal opinion, the search here was an intensive one, including the deliberate and systematic search into hidden places. Because of this feature, the present case is like Mincey and unlike Epperson. So, the search in this case was unconstitutional, and the evidence seized should have been suppressed.

      . The doctrine also goes by the designations, among others, of “emergency exception” [Stevens v. State, 443 P.2d 600 (Alaska 1968)], “murder scene exception” [State v. Duke, 110 Ariz. 320, 518 P.2d 570 (banc 1974)] and “exceptional circumstances exception” [Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1947).

      . State v. Sutton, 454 S.W.2d 481 (Mo.banc 1970). It is not altogether clear from the Sutton majority opinion whether the victim, who had called for an ambulance and was concerned about the delay, actually requested the police. They appeared, in any event, and searched the premises although by that time the victim had been removed (See dissent of Finch, J., pp. 489 et seq.). The majority held that the search in response to an emergency justified the entry and no further consent was required for the search which yielded incriminating evidence to convict the wife of the homicide of the victim who eventually died of the wounds. The continued efficacy of the doctrine in Missouri was recognized in State v. Wiley, 522 S.W.2d 281, 293[27] (Mo.banc 1975) and State v. Miller, 486 S.W.2d 435, 436 (Mo. 1972). It should be noted that on the habeas corpus proceeding in the federal court to determine anew the validity of the search and seizure of the Sutton premises, the Eighth Circuit of the United States Court of Appeals concluded that the emergency doctrine was misapplied under the facts in Sutton. Root v. Gauper, 438 F.2d 361 (8th Cir. 1971).

      . Our opinion does not mean to hold that mere report to the police of a dead body, without basis for reasonable belief that the death was unnaturally caused, will justify police entry onto private premises under the emergency doctrine. See, State v. Epperson, 571 S.W.2d 260, 1. c. 264 (Mo.banc 1978); Patrick v. State, supra, 1. c. 489[3 — 9]; Root v. Gauper, supra, 1. c. 364[8j. The evidence by stipulation, as supplemented by the testimony of dispatcher Officer Elliott, shows only a report by Karen Sharp to the police of the dead body of Sandra Beam at the Sowards address. That report made no intimation of an illicit cause of death. We do not confront the question whether the police entry was on reasonable belief of a homicide and thus within the operation of the emergency doctrine because the defendant [p. 33 appellant’s brief] concedes the initial entry was lawful “in order to give aid and emergency assistance to Sandra Beam.”


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roy RAMSEY, Defendant-Appellant.
    No. KCD 29397.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 13, 1978.

      Philip H. Schwarz, McMullin, Wilson & Schwarz, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals his conviction by a jury of the offense of anal sodomy committed by defendant, a prisoner in the Jackson County Jail, upon the person of another prisoner in the same jail.

Defendant asserts error in the admission of a writing by the victim to the jail authorities concerning the victim’s fear of sexual attack and error in the admission of a letter from the defendant written to his legal representative concerning the case. The judgment is affirmed.

The facts are simple. Sullivan, the complaining witness, was forced by defendant and another prisoner to submit to an act of anal sodomy performed by the defendant. The defendant and his accomplice were armed with an iron bar. They had obtained access to the victim during the night hours because of some malfunction of the locking mechanism on the individual cells which permitted all the prisoners in a group of cells to have access to the common area, or tank, and thus to the individual cells after “lock up” time when there was no surveillance by the jail personnel. The offense was brought to light because of an investigation launched by the jailers upon receiving a note from the victim written before the offense which related the victim’s fear of the attack and sexual abuse.

The defendant claims that the admission of the victim’s note to the jailers asserting his fear of sexual attack is error because it bolsters the evidence given by the victim at the trial. Defendant cites State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972), and State v. Kinne, 372 S.W.2d 62 (Mo.1963).

It must first be noted that the message was very brief and gave no details. The defendant is not identified, nor, for that matter, is anyone else; the note refers only to “they” as the potential assailants. The actual sexual abuse perpetrated is not specified in the note. The note crudely refers to a fear of both anal and oral sodomy on the part of the prisoner-pathic. Thus, cases which involve the condemnation of the use of prior consistent statements containing details of an offense such as the recent case of State v. Askew, 570 S.W.2d 798 (Mo.App.1978) [filed August 28, 1978, and not yet officially reported] and State v. Degraffenreid, supra, are not controlling. State v. Kinne, supra, holds only that prior inconsistent statements may not be admitted under the guise of impeachment of a hostile witness when the State is not surprised by the direct testimony. The note in the instant case is more analogous to the fact of complaint which is admissible. It is a settled rule that the fact that a victim of a rape complained is admissible. State v. Lee, 404 S.W.2d 740 (Mo.1966); State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956 (1942). At least in part, such recitals of the fact of a complaint tend to negative the possibility of fabrication in a sexual crime which is often dependent for proof upon the participants’ testimony without more.

This particular evidence, unrelated to the defendant, is also analogous to the situation where a police officer is permitted to explain how or why the police launched an investigation. State v. Tash, 528 S.W.2d 775 (Mo.App.1975); State v. McRoberts, 485 S.W.2d 70 (Mo.1972). In the instant case, the victim’s note was the catalyst which precipitated the investigation and subsequent prosecution. Under all the circumstances, the admission of the victim’s note, which related the generalized fear of a sexual attack and which contained no details which corroborate the later testimony, is not error.

During the cross-examination of the victim, defense counsel asked him if he had written a letter to anybody saying that he would be willing to testify in this case in return for lenient treatment in his own case. The victim admitted writing a letter but denied making that offer. Subsequently, during the defendant's case, a law intern, who was then representing the victim, testified that a letter had been written to that office by the victim offering to testify against defendant if it would help the victim in his own case. During the cross-examination of the law intern, the prosecutor requested, over defendant’s objection, that the witness read the victim’s letter into the record. The letter indicated that the victim was asking his then counsel to obtain a parole on his pending charge because he was afraid of what might happen to him in the jail or in the penitentiary because he had testified against the defendant.

The defendant claims the admission of this letter was error since it contained statements to the effect that defendant was going to punish the victim for testifying, a subject which had not been opened up previously.

Defendant’s counsel admitted that the law intern’s testimony was elicited to and did contradict the statement previously made by the victim. The contradiction was made by the testimony that the victim offered to testify in return for the “deal” on his own case. The letter itself makes no such contradiction. The letter was a plea to his then counsel to obtain a sentence which did not involve confinement because of the victim’s fear of reprisal for the testimony already given against the defendant.

This is not the normal rehabilitation situation, but the State should be given an opportunity to explain or clarify any seemingly contradictory statements by showing the exact contents of the letter when its witness has been impeached by someone who, in effect, testified as to the contents of the letter. See State v. Griffin, 497 S.W.2d 133, 135-136 (Mo.1973); State v. Rantz, 546 S.W.2d 200, 201 (Mo.App.1977).

The letter was also admissible to impeach the testimony of the law intern who was a defense witness. Impeaching witnesses may themselves be impeached by the usual methods. 98 C.J.S. Witnesses § 478, p. 362 (1957). Furthermore, the introduction of writings as part of cross-examination of a witness who has testified concerning the writing is within the sound discretion of the trial court. 98 C.J.S. Witnesses § 406, pp. 208-209 (1957).

The only irrelevant evidence contained in the letter concerned the nature of the victim’s own case, and its admissibility did not prejudice the defendant.

Conviction affirmed.

All concur.


author: CLEMENS, Judge.

text:
    Daniel Joseph CISSELL, Respondent, v. Gloria Kennedean CISSELL, Appellant.
    No. 39442.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 3, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Wayne L. Millsap, Pamela S. Wright, Clayton, for appellant.
    Morris W. Taylor, Clayton, for respondent.
   CLEMENS, Judge.

Appellant-wife (hereafter “defendant”) contests the provisions of a dissolution of marriage decree concerning child custody, maintenance and attorney fees.

First, the custody issue whereby defendant contends the plaintiff’s temporary custody impinges on her right to give the children religious training.

The court awarded plaintiff-husband temporary custody of the parties’ eight- and five-year-old children three weekends a month from Saturday morning to Sunday evening, four continuous weeks during the summer, on the children’s birthdays, every Christmas Eve and on alternate national legal holidays.

Plaintiff is a Catholic and by agreement the two children were baptized in that faith. Two years before separation defendant joined and has become active in the Jehovah Witness faith. She contends the temporary custody provisions prevent her from determining the children’s religious training. She testified she and the children do “door-to-door religious work” twice a week and on Saturdays, for an hour or two; attend two-hour midweek evening church meetings and attend church Sunday mornings and have a one-hour book study session Monday evenings in the home.

Defendant-mother asks us to alter the temporary custody provision, contending the trial court erred in granting plaintiff the described temporary custody because it impinges on her right under § 452.405 providing that “the custodian may determine the child’s upbringing, including his . religious training.”

Plaintiff-father does not challenge the defendant-mother’s right to give the children religious training, but he counters by relying on the further provision of that statute declaring the court may consider whether by “a specific limitation of the custodian’s authority the child’s . emotional development [would be] impaired.” He contends the children’s emotional development would be impaired without his shared custody. Plaintiff further relies on § 452.400, VAMS, granting him reasonable visitation rights, to be restricted only if that endangers the children’s emotional development; and he also relies on § 452.375, VAMS, declaring the trial court shall consider the wishes of both parents and their interrelationship with the children.

Defendant-mother has the burden of showing the children’s best interests are not served by the father’s decreed temporary custody. The decree will not be disturbed unless clearly erroneous and the children’s welfare requires some other disposition; the contending parties’ personal rights are of secondary importance. Northrup v. Sieve, 517 S.W.2d 470[1-5] (Mo. App.1974).

Considering the cited statutes together we find them consistent with pre-ex-isting case law. Courts encourage the continued interests, love and affection of divorced parents for their children and strive to afford maturing children ample opportunity for close contact with both parents, (Northrup, supra, [8, 9]), and hold that where both parties are proper parents, as here, each has the right to reasonable access to the children. In re Marriage of Powers, 527 S.W.2d 949[3-5] (Mo.App.1975). In Rogers v. Rogers, 430 S.W.2d 305[8] (Mo.App.1968), the court held it was error to omit making provisions for visitation by a parent who was not shown to be an unfit custodian.

Although the defendant-mother does not contend plaintiff-father has no right of access or visitation, she is asking this court to alter the temporary custody provisions, which the trial court believed to be in the children’s best interests. She claims her right to determine the children’s religious upbringing is superior to the father’s temporary custody rights. We hold neither right is superior to the other; both are important to the children’s welfare. Our review is determined by this principle and we are convinced that since the mother has admitted the father loved the children, was a good father and was loved by the children, and where nothing indicates the husband would be an unfit custodian, the trial court properly made a specific provision for temporary custody by the father. Compare Rogers, supra. In short we find the trial court did not abuse its discretion in granting the challenged temporary custody.

The court granted defendant $300 a month for child-support but she contends the failure also to grant her maintenance is against the weight of the evidence and in violation of § 452.335, RSMo. Under that statute the court must determine the wife’s reasonable needs, that she has insufficient property to meet those needs and that she is unable to support herself through appropriate employment. Brueggemann v. Brueggemann, 551 S.W.2d 853[6] (Mo.App. en banc 1971). Defendant showed her reasonable needs were in the range of $190 a month. She receives a monthly $200 social security payment and $40.00 a month from her share of the marital property. She therefore has sufficient funds to meet her existing needs.

Defendant and the children live with her parents and she uses her father’s car. She is unemployed but young and in good physical and mental condition. From the date of separation to the date of trial, about ten months, she made no effort to obtain employment. At trial she indicated she does not desire to do so since that would limit her time with the children and with her religious activities. This does not establish an inability to support herself through appropriate employment. Pursuant to the scope of our review under Murphy v. Carrón, 536 S.W.2d 30[l-3] (Mo. banc 1976), we find nothing in the record demonstrating an abuse of discretion in the court’s denial of maintenance.

Defendant’s final point is that the disparity of the parties’ financial resources requires an award of attorneys’ fees greater than the $1400 allowed because her attorney charged her $2950. The test under § 452.355, RSMo., is whether an attorney fee is unreasonable. In re Marriage of Powers, 527 S.W.2d 949[19] (Mo.App.1975). In Beckman v. Beckman, 545 S.W.2d 300[9] (Mo.App.1976) we held: “courts are themselves experts on the question of attorney’s fees and the judge who personally tries a case and is acquainted with all the issues involved is in a position to fix the amount of attorneys’ fees (even) without the aid of evidence.” Here, the trial court within its discretion determined $1400 was a reasonable fee for services rendered defendant. We find no abuse of discretion.

Decree affirmed and cause remanded to the trial court to rule on defendant’s motion for attorney fees relevant to her appeal.

REINHARD, P. J., and GUNN, J., concur.


text:
    Robert MATTHEWS, Appellant, v. Archibald LEDBETTER et al., Respondents.
    No. 39879.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 10, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      David M. Johnson, Clayton, for appellant.
    James M. Daly, St. Louis, for respondents.
   CLEMENS, Judge.

Robert Matthews (hereinafter plaintiff) has appealed an order which dismissed his amended petition for administrative review on the ground it failed to state a claim upon which relief could be granted. We affirm.

Plaintiff sued the Village of Breckenridge Hills police chief and board members alleging: He was employed as a parttime police officer; the board voted to dismiss him on or before October 22, 1973; he was ordered to turn in his badge and other equipment July 30, 1974; § 80.420, RSMo. 1969 governs his removal and requires “[a] wanton neglect of duty”; he was never so charged. Plaintiff sought review under § 536.150, RSMo.1969.

The parties agree that on a motion to dismiss for failure to state a claim the facts alleged are to be liberally construed and taken to be true. Trotter v. Sirinek, 515 S.W.2d 67[1] (Mo.App.1974).

Plaintiff would restrict the village board’s authority to § 80.420, which empowers it to “instantly remove” him for “any wanton neglect of duty.” Defendants contend they discharged plaintiff under the more general authority of § 80.240, VAMS, which without restriction empowers it to remove “officers, servants and agents” from office.

Assuming arguendo that § 80.420 limits the board’s discharge authority granted by § 80.240, plaintiff’s contention must fail because he was not “instantly removed.” So, it is of no consequence that there was no allegation of plaintiff’s “wanton neglect of duty.”

Both parties cite Karzin v. Collett, 562 S.W.2d 397 (Mo.App.1978). There, in upholding the denial of that plaintiff’s action for reinstatement and backpay after discharge as a village policeman, we held he was an employee at will who had not been “instantly removed” and had not been charged with wanton neglect of duty. So it is here.

Plaintiff’s petition shows he was not instantly removed. The resolution was passed October 22,1973 yet his employment was not terminated until nine months later. Since plaintiff was not “instantly removed” but simply discharged, the determination of the adequacy of the grounds for his discharge is not subject to judicial review because, as an employee-at-will, he could be discharged for any reason or no reason. Karzin, supra, at [3].

Granting plaintiff all favorable inferences, we hold his petition fails to state a claim upon which relief could be granted.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE of Missouri ex rel., STATE HIGHWAY COMMISSION OF MISSOURI, Respondent, v. Aubrey D. MILNES et al., on Exceptions of Donna Sue Milnes et al., Appellants.
    No. 40007.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 10, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.
    Hulen, Hulen & Tatlow, C. M. Hulen, Jr., Moberly, for appellants.
    Thomas E. Cheatham, Bruce A. Ring, Jefferson City, for respondent.
   CLEMENS, Judge.

Defendant Donna Sue Milnes has appealed the trial court’s dismissal of her condemnation exceptions for failure to prosecute. The record:

Plaintiff Highway Commission instituted condemnation proceedings against defendant on April 6, 1967. By her attorneys, C. M. Hulen, Sr. and C. M. Hulen, Jr., defendant filed exceptions the same day and plaintiff did so on May 8.

Eight years later defendant directed interrogatories to plaintiff, who filed partial objections along with a notice to call up the objections for a hearing. No hearing has been held.

One of defendant’s attorneys, the late C. M. Hulen, Sr., became ill in February 1975. After repeated hospital confinements and a stroke in September 1975 he died. His son and partner, C. M. Hulen, Jr., assumed the responsibility of representing defendant.

At the trial judge’s request, the circuit court clerk wrote both parties’ counsel March 4, 1977 stating the court’s intention to dismiss the case July 25,1977 if no action was taken by then. On July 26,1977 plaintiff filed a motion to dismiss for failure to prosecute. A hearing was held and the motion was granted December 14,1977; the court dismissed both parties’ exceptions for failure to prosecute. Defendant has appealed. She contends the trial court abused its discretion by granting the motion to dismiss, that the delay was excusable due to the death of her attorney and because opposing counsel agreed to continue the case.

Dismissal of an action for want of prosecution is generally discretionary, since “a trial court has the inherent power to dismiss for failure to prosecute with due diligence.” Sehreck v. Parker, 388 S.W.2d 538[1—4] (Mo.App.1965). The dismissal will not be disturbed unless shown to be an abuse of discretion. City of Jefferson v. Capital City Oil Co., 286 S.W.2d 65[2] (Mo. App.1956). In making its decision to dismiss, the trial court may consider not only the length of delay, but attendant circumstances. Schreck, supra. A fair test is whether the moving party had reasonable opportunity to bring the action to trial.

Defendant apparently fails to realize the trial court’s authority to make discretionary rulings based on all attendant facts and circumstances. After the unexplained eight-year delay, the senior Mr. Hulen died in November 1975. Dismissal was granted in December 1977, over two years later. There was reasonable opportunity for another member of the firm to bring the case to trial.

Furthermore, the trial court was not bound by the alleged but disputed agreement between counsel to further continue the case. A party is not justified in assuming a ease will be continued merely because he so agreed with his opponent. State Highway Commission v. Herman, 546 S.W.2d 488[8] (Mo.App.1976). Granting a continuance is discretionary with a trial court, so defendant’s contention that the trial court abused its discretion in dismissing the action because of the parties’ alleged continuance agreement is unsound.

Kasper v. Helfrich, 421 S.W.2d 66[1-3] (Mo.App.1967) sets the standard of review for abuse of discretion, saying: “. appellate courts will interfere with the trial court’s exercise of discretion only when it has been manifestly abused; that discretion is abused only when the trial court’s ruling runs against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice.”

This standard of review limiting interference by this court has not been met. The responsibility rests with a moving party to prosecute a case with reasonable diligence; we cannot say defendant did not have a reasonable opportunity to bring her case to trial. State Highway Commission v. Graeler, 495 S.W.2d 741[1-4] (Mo.App.1973). Considering the attendant facts and circumstances, the trial court could properly have found defendant failed to do so.

Affirmed.

CRIST, P. J., and GUNN, J„ concur.


author: STEPHAN, Judge.

text:
    Raymond HUNT, Appellant, v. ST. LOUIS HOUSING AUTHORITY, a Municipal Corporation, Respondent.
    No. 39411.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 31, 1978.

      Michael U. Bastían, Legal Aid Society, St. Louis, for appellant.
    Edward C. Cody, Klutho, Cody & Kilo Attorneys, Inc., Warren W. Friedman, St. Louis, for respondent.
   STEPHAN, Judge.

This is an appeal from an order sustaining defendant’s motion to dismiss plaintiff’s petition, which sought actual and punitive damages under § 290.140, RSMo 1969, Missouri’s “service letter statute”. Plaintiff’s petition alleged that he had been an employee of defendant St. Louis Housing Authority, that upon his discharge he requested a service letter pursuant to the statute, that the letter issued to him by defendant failed to state the true reason for his dismissal and that such failure prevented him from obtaining similar employment and thereby caused him great mental and emotional distress. As noted, defendant’s motion to dismiss this petition was sustained, on the grounds that § 290.140 does not permit a service letter suit to be brought against a municipal corporation.

Section 290.140 provides that: “Whenever any employee of any corporation doing business in this state shall be discharged or voluntarily quit the service of such corporation, it shall be the duty of the superintendent or manager of said corporation, upon the written request of such employee to him, if such employee shall have been in the service of said corporation for a period of at least ninety days, to issue to such employee a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee has quit such service; and if any such superintendent or manager shall fail or refuse to issue such letter to such employee when so requested by such employee, such superintendent or manager shall be deemed guilty of a misdemeanor, and shall be punished by a fine in any sum not exceeding five hundred dollars, or by imprisonment in the county jail for a period not exceeding one year, or by both such fine and imprisonment.”

Although the statute recites criminal sanctions for its violation, it was recognized early that it created a civil cause of action in favor of an employee entitled to its protections and injured by its breach. When the statutory violation is accompanied by legal malice, the employee may obtain punitive as well as actual damages. Cheek v. Prudential Ins. Co. of America, 192 S.W. 387, 390 (Mo. 1917). See also Cheek v. Pru dential Ins. Co. of America, 223 S.W. 754, 756 (Mo.App.1920).

The threshold question which we address is whether the defendant St. Louis Housing Authority is a “corporation doing business in this state” as that term is used in the statute. For reasons hereinafter stated, we have concluded it is not and affirm the judgment of the trial court.

Defendant St. Louis Housing Authority was created in 1939 by the Housing Authorities Law, now §§ 99.010 to 99.230, RSMo 1969. The purpose of the Authority is to clear and rehabilitate areas of substandard housing by planning and developing subsidized housing projects for low-income families, §§ 99.030 and 99.080. Such projects are not to compete with private enterprise, § 99.030, nor may they be constructed or operated for profit or as a source of revenue, § 99.090. By legislative declaration and judicial definition, defendant constitutes a municipal corporation as that term is used in its broader sense to include public and quasi-corporations which act as arms of local government and exercise essential governmental functions. Section 99.080 and Laret Investment Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65, 68 (banc 1939). See also State ex rel. Housing Authority of St. Louis County v. Wind, 337 S.W.2d 554, 557 [1] (Mo.App.1960). The Missouri Supreme Court, in St. Louis Housing Authority v. City of St. Louis, 361 Mo. 1170, 239 S.W.2d 289 (banc 1951), practically erased the distinction between the terms “municipality” and “municipal corporation”, as applied to defendant, by holding defendant a municipality within the meaning of a statute which authorized municipalities and other political subdivisions of the state to cooperate with one another for public improvements. The court there stated that:

“By both judicial recognition and common usage ‘municipality’ is a modern synonym of ‘municipal corporation’. ‘Municipality’ is all embracing. It includes, of course, cities of all classes, as well as towns, but it includes also a non-profit agency, such as plaintiff, which is authorized to exercise public and essential governmental functions.”
⅝: ⅛ ¡⅜ # * ⅜
“Municipality now has a broader meaning than ‘city’ or ‘town’, and presently includes bodies public or essentially governmental in character and function and distinguishes public bodies, such as plaintiff, from corporations only quasi-public in nature. . . . But the two terms (municipality and municipal corporation) are often interchangeably used.” Id. 294-295.

In this view, a municipal corporation such as defendant is simply a branch or department of the local government which created it.

Our Constitution and statutes consistently recognize the difference between private business corporations and municipal corporations. We have found no instance — and plaintiff has cited us to none — where the word “corporation” alone in a constitutional provision or in a statute is clearly intended to refer to, or include, a municipal corporation. Indeed, it has been judicially noted that a “well settled distinction exists between the two” terms. In re East Park Dist. of Kansas City, 361 Mo. 829, 237 S.W.2d 118, 120 (banc 1951). In City of Webster Groves v. Smith, 340 Mo. 798, 102 S.W.2d 618 (1937), the court was called upon to determine whether a statute imposing an excise tax on corporations selling water service included the plaintiff city in its purview. In holding the statute inapplicable to a municipal corporation, the court used language which we consider dispositive of the issue at hand, and we quote at some length from pages 619 and 620:

“In definition and legal classification and terminology a well-settled distinction exists, and is recognized generally, between a ‘corporation’ and a ‘municipal corporation.’ Each term has a distinct and commonly accepted meaning. . . . Municipalities are variously referred to in our Constitution as cities or towns and municipal corporations. ‘In common parlance, towns, cities and other municipal organizations are not known as corporations.’ . . . Reverting to statutory language in this state, the term ‘corporation’ is used and refers to private and business corporations and the statutes relating to such corporations are assembled under the designation or classification of ‘corporations.’ . . . Likewise where the term ‘corporation’ is used in our Constitution it uniformly refers to private or business organizations of individuals. Neither by the language of the Constitution nor statutes is the term ‘corporation’ so used as to apply to and include a municipality or municipal corporation and where a city or town is referred to, in the sense of being a corporate entity, the term ‘municipal corporation’ is used. . In view of the foregoing considerations, the meaning commonly ascribed to the word ‘corporation’ both in popular usage and legal nomenclature and absence of language indicating a legislative intent to use it in a different sense we must assume it was used in its ordinary and commonly understood meaning and the assumption legitimately follows that had the Legislature intended to include a municipality in the act it would have done so by specific language to that effect. It is our conclusion that the word ‘corporation’ as used does not include a municipality and therefore a municipality is not within the act.”

Our examination of current constitutional provisions and statutes reveals no change in the “meaning commonly ascribed” to the terms in question.

Seeking a conclusion contrary to that reached here, plaintiff relies primarily on several statements in Cheek v. Prudential Ins. Co., 192 S.W. 387, 391, 392 (Mo.1917) to the effect that the service letter statute applies to “all corporations” doing business in the state. From these references, plaintiff argues that municipal corporations are necessarily included. We do not so read that case. The language relied on by plaintiff was addressed to the argument made by the defendant therein, a foreign insurance corporation, that the statute was discriminatory class legislation. The court merely underscored the uniform applicability of the statute as among business corporations. Applicability to a municipal corporation was not an issue in Cheek, and we do not regard that case as instructive in this situation.

For the reasons previously stated, we hold that the defendant St. Louis Housing Authority is a municipality and, as such, not bound by § 290.140 to issue “service letters” as contemplated by that statute.

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.

      . Other stages of this litigation are reported as follows: Cheek v. Prudential ins. Co. of America, 209 S.W. 928 (Mo.1919); Prudential Insurance Company of America v. Cheek, 252 U.S. 567, 40 S.Ct. 343, 64 L.Ed. 719 (1920); and Prudential Insurance Company of America v. Cheek, 259 U.S. 530, 42 S.Ct. 516, 66 L.Ed. 1044 (1922).

      . As originally enacted, the “Housing Authorities Law” created such municipal corporations only in cities and counties having a population of 600,000 or more and provided that such authorities were not to exercise the powers granted to them until the proper local governing body declared the need for the authority within its boundaries. Laws 1939, p. 488. Subsequently, the population requirement for cities was reduced to 5,000, Laws 1941, p. 455. The requirement was ultimately removed entirely so as to permit housing authorities in “any city, town or village in the state.” Laws 1963, p. 156; § 99.020(4), RSMo.