author: BARDGETT, Judge. HENLEY, Judge

text:
    Lawrence K. EPPLE, Jr., et al., Respondents, v. WESTERN AUTO SUPPLY COMPANY et al., Appellants.
    No. 59683.
    Supreme Court of Missouri, En Banc.
    March 14, 1977.
    Dissenting Opinion April 11, 1977.
    Rehearing Denied April 11, 1977.

      Paul S. Brown, St. Louis, for appellants.

      Alan G. Kimbrell, St. Louis, for respondents.
   BARDGETT, Judge.

This case involves a suit brought by plaintiffs-respondents to recover damages arising from the death of their parents who were killed in a head-on collision of the parents’ car with a truck owned by defendant-appellant, Western Auto Co., and being operated by defendant-appellant Davis. The case was submitted to the jury under the humanitarian negligence doctrine on the failure of Davis to stop, slacken speed, or swerve, and the jury returned a verdict for plaintiffs and awarded $100,000 in damages. The Missouri court of appeals, St. Louis district, en banc, reversed (three judges dissenting) and ordered the trial court to enter judgment for defendants because it found that plaintiffs failed to make a submissible case on any of the theories presented. On application of plaintiffs-respondents, we transferred this case pursuant to Art. V, see. 10, Mo.Const. Much of the following opinion is taken from the dissenting opinion in the court of appeals of Gunn, J.

The defendants raise four grounds for reversal on this appeal: 1) the trial court erred in denying their motion for directed verdict because the plaintiffs failed to make a submissible case; 2) the court erred in instructing the jury on the plaintiffs’ theory of the case because these instructions were not supported by the evidence and did not conform with MAI; 3) the court erred in failing to define the term “negligence” as used in the instructions to the jury; and 4) the court erred in allowing certain questioning by plaintiffs’ counsel on voir dire examination of the jury panel.

The defendants assert that the plaintiffs failed to make a submissible case under the humanitarian doctrine. In determining whether a submissible case was made, the evidence is considered in the light most favorable to the plaintiffs, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to plaintiffs the benefit of all favorable inferences that reasonably may be drawn from such evidence. Vaeth v. Gegg, 486 S.W.2d 625 (Mo.1972); Houghton v. Atchison, Topeka & Santa Fe R. Co., 446 S.W.2d 406 (Mo. banc 1969); Joggerst v. O’Toole, 513 S.W.2d 722 (Mo.App.1974). From a review of the record, we find that the plaintiffs did make a submissible case.

The head-on collision occurred during the mid-afternoon of July 24, 1969, on Route 87 near Eldon, Missouri. In the vicinity of the accident, Route 87 is a narrow, rolling and winding, paved two-lane highway. The width of the pavement varied between 19½ and 20½ feet, and there were no shoulders on either side of the road. There were ditches along both sides of the pavement. The Epple car, a 1969 Ford station wagon, was northbound and the Western Auto truck, a 45-foot-long tractor trailer, was southbound. The impact occurred in a curve — a curve to the right for the Epple car and a curve to the left for the truck. At the approximate apex of the curve, a gravel road fed into the southbound lane at an angle, forming a “Y” intersection. The two vehicles came together with tremendous force in the southbound lane. The front right portion of the Epple station wagon came in contact with the right front tire of the tractor trailer. At the moment of impact, the left front tire of the Epple car had entered onto the gravel road which was in the line of travel of the Epple car. The station wagon came to rest facing southwardly, having been turned around and pushed some 27 feet south of the point of impact. The truck came to rest on its side in a ditch on the east side of the road after having jackknifed. Five of the seven occupants of the Epple car, including plaintiffs’ parents were killed, and Davis suffered a fractured skull.

At trial, the factual circumstances involved in this accident were elicited primarily from defendant Davis who was the sole surviving eyewitness. Due to the head injuries he suffered, however Davis’s memory was somewhat unclear as to what actually transpired and therefore some areas of his in-court testimony were inconsistent with previous statements he had made. These previous statements were introduced into evidence by the plaintiffs as admissions of a party opponent. In determining whether a submissible case was made, the court need look only to those aspects of Davis’s account of the accident that were most favorable to the plaintiffs and which the jury could have found to be true. Wells v. Goforth, 443 S.W.2d 155 (Mo. banc 1969); Young v. Kansas City Southern Railroad Co., 374 S.W.2d 150, 153 (Mo.1964).

Davis testified that as he approached the curve in Route 87, he was traveling at 40 m. p. h. He first saw the station wagon as it crested a hill at the opposite end of the curve. Although he could not recall how far away the car was, he estimated that it was 200 feet from the point of impact. A plat of this section of Route 87 that was introduced into evidence shows that the crest of the hill is between 250 and 350 feet from the point of impact. When he saw the Epple car crest the hill, Davis noticed that it was at least partly in the wrong lane. Sensing that something was wrong, Davis believed that he applied his brakes as a “reflex” action and began to slow down to a speed of 20-30 m. p. h. He stated that he could see the car at all times after it had crested the hill and that it traveled in a straight line, angling more and more into the southbound lane until the collision occurred. The car did not diminish its speed as it approached the point of impact. As to his own actions, Davis testified that after slowing down to between 20 and 30 m. p. h., he began to down-shift to prevent his engine from dying. He claimed that the purpose of the shift was to have more control over the truck in case he had to quickly maneuver it to avoid an accident. But, under the evidence, the jury could have found the down-shifting could have been for the purpose of gaining power to go negotiate the hill in disregard of the oncoming Epples. Davis also stated that he could not shift and brake at the same time and thus took his foot off the brake when beginning the shift. The accident occurred before the shift could be completed. The right front wheel of the tractor trailer came in contact with the right front of the Ford station wagon. When the vehicles collided, the left front wheel of the station wagon had entered the gravel road. Davis testified that he was familiar with this section of Route 87, having driven it at least once a week for the last one and one-half to two years. He knew of the existence of the gravel road and, at the time of the accident, was aware of the fact that it might serve as an escape route for the Epple car.

Testimony was also produced from Officer Temmens of the Missouri Highway Patrol who came to the scene thirty-five minutes after the accident. He found and measured skid marks. He stated that there were skid marks 100 feet long leading back to the south from the point of impact. The skid marks began with the left tire about one foot over the center line and led straight to the point of impact. At the point of impact the skid marks made by the right tire were about four feet over the center line. The officer also testified that he found skid marks made by a dual-wheeled vehicle leading to the point of collision from the north. These marks were 78 feet in length and stopped short of the debris. The marks were in the southbound lane and they turned towards the center line as they came to an end. Photographs of all the skid marks were introduced into evidence.

The plaintiffs also produced as a witness a line foreman for Missouri Utilities who was driving a dual-wheeled truck southbound on Route 87 some distance behind the dual-wheeled truck driven by Davis. The witness testified that as he approached the curve in question he saw that the road was blocked due to the accident and was forced to apply his brakes strongly to prevent colliding with the vehicles obstructing the road. He did not know whether he laid down any skid marks.

Also called as a witness was Reverend Ryan who testified that he was driving northbound on Route 87 behind the Epple station wagon for some two to three miles up to the point of the accident. He stated that the Epple ear was traveling between 50-55 m. p. h.

In a humanitarian case, as well as in other actions, the burden is on the plaintiff to establish every essential element of his theory of submission by substantial evidence of probative value or by inferences reasonably deducible therefrom. Yarrington v. Lininger, 327 S.W.2d 104, 109 (Mo.1959); Martin v. Sherreli, 418 S.W.2d 209, 214 (Mo.App.1967). The plaintiff must remove his case from the realm of speculation, conjecture or surmise. Yarrington v. Lininger, supra; Burks v. Wilson, 356 S.W.2d 121, 128 (Mo.App.1962); Farmer v. Taylor, 301 S.W.2d 429, 433 (Mo.App.1957). Under a humanitarian submission, the plaintiff must establish the following five elements: 1) the plaintiff was in a position of immediate danger; 2) the defendant was aware or should have been aware of the plaintiff’s position of peril; 3) after receiving such notice, the defendant had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; 4) the defendant failed to exercise the requisite care to avert such impending injury; and 5) by reason thereof, the plaintiff was injured. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482 (banc 1924).

The first step in establishing liability under the humanitarian doctrine is demonstrating that the plaintiff came into a position of immediate danger. This position is commonly defined by the Missouri courts as that position of danger to the plaintiff, whether or not the plaintiff was negligent in getting there, in which by reason of the then existing circumstances, if unchanged, injury to the plaintiff is reasonably certain and not a mere possibility. The peril must actually be imminent and may not be merely remote, uncertain or contingent. Clifton v. Crider, 486 S.W.2d 274, 277 (Mo. banc 1972); Yarrington v. Lininger, supra, at 109. A bare possibility of injury is not sufficient to create a position of immediate danger. McClanahan v. St. Louis Public Service Co,, 363 Mo. 500, 251 S.W.2d 704, 707 (banc 1952).

A determination of when a plaintiff has entered a position of immediate danger must be made in light of the facts and circumstances of each particular case. Todd v. Presley, 413 S.W.2d 173, 176 (Mo.1967); Hood v. Heppler, 503 S.W.2d 452,457 (Mo.App.1973). The question of when and where a plaintiff comes into a position of immediate danger is a jury question. Yarrington v. Lininger, supra, at 109; Nelson v. O’Leary, 291 S.W.2d 142, 148 (Mo.1956); Welch v. McNeely, 269 S.W.2d 871, 876 (Mo.1954). However, there must be substantial evidence from which the jury can make this determination. Clifton v. Crider, supra, at 278; Burks v. Wilson, supra, at 128.

In light of the facts and circumstances of this case, could the jury have determined at what point the station wagon entered into a position of immediate danger without resorting to speculation or conjecture? The plaintiffs assert that their parents first came into a position of immediate danger when they were first seen by Davis cresting the hill in the wrong lane. But that was not the point of immediate danger. Simply because the Epple car was in the wrong lane at this point does not place the occupants in a position of immediate danger, for Davis had the right to assume, absent some indication to the contrary, that the approaching vehicle would obey the rules of the road and return to its own side of the road. Nolte v. Childress, 387 S.W.2d 569, 573 (Mo.1965); Nelms v. Bright, 299 S.W.2d 483, 489-490 (Mo. banc 1957); State ex rel. State Highway Commission v. Daigh, 464 S.W.2d 524, 526 (Mo.App.1971). At the time the station wagon crested the hill there was nothing in the reasonable appearances of the circumstances from which Davis could have or should have believed that it would not return to its proper lane. Absent any reason to believe that the Epple car would not return to its lane, a consideration of the location and speeds of the respective vehicles indicates that at the time the station wagon crested the hill the danger of collision was not immediate, impending or certain. The car was between 250 and 350 feet from the point of impact as it came over the hill and was traveling at a speed of 50-55 m. p. h., or approximately 73-80 feet per second. Thus, as it crested the hill, it would take between three to five seconds for it to reach the point of impact. Davis was traveling at a speed of 40 m. p. h., or approximately 60 feet per second, when he first saw the station wagon. Thus, he was between 180 and 300 feet from the scene of the accident at that time. The total distance separating the two vehicles when Davis first saw the Epple car was between 430 and 650 feet. Under the time span and the distances involved, the danger of collision was not certain or immediate when the station wagon crested the hill, for there was ample time and space for the Epple car to return to its lane. Nolle v. Childress, supra. Thus, the plaintiffs’ parents were not in a position of immediate danger when they first came into view.

Although the plaintiffs’ parents were not in a position of immediate danger when first seen by the defendant, it is apparent that the Epples did enter into such a position when under the circumstances it would reasonably appear that the station wagon was not going to alter its angular movement across the center line and into the path of the oncoming tractor trailer. From the evidence the plaintiffs presented, specifically that dealing with the speed and movement of the station wagon, it was reasonably inferable that Dr. Epple, the driver of the car, realizing his position of peril, determine that his only route to safety was to cross over the southbound lane and escape onto the gravel road. Thus, at a minimum, the plaintiffs’ parents came into a position of immediate danger when the path of their vehicle became physically transfixed in the direct path of the oncoming tractor trailer as they were bee-lining towards their only avenue of escape — the gravel road. The jury could have concluded that this fixed movement commenced when the station wagon’s course began to angle over the center line with an increasing portion of the vehicle entering the southbound lane. From the evidence adduced at trial, specifically the skid mark path left by the car, this occurred at least 100 feet from the point of impact. The conclusion here reached as to when the Epples entered into a position of immediate danger is buttressed by a consideration of the physical characteristics of Route 87 at the scene of the accident. The road is extremely narrow, at some points it is 19½ feet wide while at other points it is 20½ feet wide. The road had no shoulders and, in fact, the land on both sides of the road was ditched. Route 87 curved at the scene of the accident and photographs of the highway introduced in evidence indicate that the curve was not banked. It should also be noted that Davis testified that his truck was between 7 and 8 feet wide. Thus, assuming Davis was driving in the center of the southbound lane, his truck would be approximately 12 inches from the center line. From the above facts it can easily be inferred that it would be extremely difficult and hazardous to maneuver a ear or change its direction, especially at high speeds. Thus, in light of these circumstances, it would reasonably appear that once the station wagon commenced its fixed course across the southbound lane it would not be able to successfully alter its course to avoid the impending disaster without remedial actions by Davis in the time and space remaining.

Having determined that the Epple station wagon entered into a position of immediate danger at least 100 feet from the point of the collision, reference is now made to the second element of a humanitarian cause of action: that the defendant knew or should have been aware of the plaintiffs’ position of peril. “Whether and when one becomes chargeable with notice that another is in a position of imminent peril depends upon the reasonable appearances of the situation confronting him.” Lane v. Wilson, 390 S.W.2d 943, 947 (Mo.App.1965). The record reveals that the plaintiffs have satisfied this requirement. It should first be noted that when Davis first saw the car crest the hill in the wrong lane he sensed that something might be wrong and therefore applied his brakes as a reflex action. Thus, from first seeing the car, Davis was aware that a perilous situation might be developing. Davis testified that he could see the car at all times after it crested the hill and was aware as the two vehicles came closer together that the car was traveling in a straight line, angling more and more into his lane. Davis further testified that he knew of the existence of the gravel road and in fact viewed it as a possible escape route for the oncoming station wagon. Thus, from the reasonable appearances of the situation confronting Davis, the jury could have found that he was or should have been on notice of the transfixed movement of the car across his path towards the gravel road — that the Epple car was in a position of immediate danger.

Next, a determination must be made whether the plaintiff produced sufficient evidence to show that once the defendant was placed on notice that the station wagon was in a position of immediate danger, he had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others. Since the plaintiffs submitted their case under three theories of humanitarian negligence, the question can better be stated as follows: Once the station wagon entered into a position of immediate danger, could Davis have averted the collision without injury to himself or others by slackening his speed, stopping or swerving?

If plaintiffs made a submissible case on any one of the theories submitted, then defendant is not entitled to an outright reversal. We now consider the submission of failure to slacken speed. This submission has been used in a number of instances which have become known as “almost escaping” cases. The essence of an “almost escaping” case is the fact that a plaintiff needed only a fraction of a second to emerge from the position of immediate danger, Burns v. Maxwell, 418 S.W.2d 138 (Mo.1967), and if the defendant had taken the slightest action to avoid the collision then no injury would have occurred. Keithley v. St. Louis Public Service Co., 379 S.W.2d 149, 152 (Mo.App.1964); Woods v. Kurn, 183 S.W.2d 852 (Mo.App.1944). In establishing an “almost escaping” case the plaintiff must produce evidence, direct or circumstantial, that in the time and space available, the defendant’s speed or movement could have been sufficiently altered to enable the plaintiff’s escape. Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918, 924 (Mo.1959); Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 698 (1952).

This court in a number of cases has recognized that a plaintiff may make a submissible case under the humanitarian doctrine where there has been presented an “almost escaping” situation. In Schmitt-zehe v. City of Cape Girardeau, supra, a collision occurred when the plaintiff’s car entered an intersection passing directly in front of the defendant’s car which was entering the intersection from a cross street. The right front of defendant’s vehicle struck the right rear wheel of plaintiff’s car. Under these circumstances the court held the plaintiff made a submissible case because the jury could have found that a slight slackening of speed or swerve by the defendant would have prevented the accident. The court termed this an “almost escaping” case. See also Burns v. Maxwell, supra; Quigley v. Sneed, 367 S.W.2d 637 (Mo.1963), and Stith v. Public Service Co., supra. In many cases, the plaintiff can meet his burden by letting the facts speak for themselves. “[I]t is . recognized that there are many situations where the facts speak for themselves without the aid of expert evidence, as where the evidence shows that the plaintiff’s vehicle had but barely failed to get in the clear before the occurrence of the collision, so that only the least additional time would have enabled the plaintiff to make his escape.” Woods v. Kurn, supra, at 856.

When viewed in the light most favorable to the plaintiffs, their evidence shows that the station wagon needed a mere fraction of a second to completely get onto the gravel road and out of the defendant’s path. The right front tire of the tractor trailer came in contact with the right front portion of the station wagon. When the two vehicles collided, the left front tire of the station wagon had already entered the gravel road. Furthermore, the plaintiffs introduced into evidence as admissions of a party opponent, previous testimony of Davis in which he admitted that he was aware that the gravel road was an avenue of escape for the station wagon. He also stated that as he watched the station wagon approach he believed that there was ample space for the car to actually clear his path and escape onto the gravel road. Although Davis was incorrect in believing the Epple car had ample space to escape, his statements give rise to the inference that the Epples almost escaped the collision.

This inference is buttressed by the following evidence. Under Reverend Ryan’s testimony the jury could find the Epple car was traveling 50-55 m. p. h. when it crested the hill. Davis testified he saw the Epple car as it crested the hill and that it did not diminish speed as it approached the collision point. At 50-55 m. p. h., a car travels 73 to 80 feet per second. The evidence as to the positions of the vehicles at impact would support a jury finding that the Epples needed only a car length, or between 15 to 20 feet forward along its line of travel to clear the path of the truck. To cover this distance at the speed they were traveling, the Epples needed approximately one-fourth second. There was ample evidence from which the jury could conclude that Davis was not applying his brakes. Davis himself testified that after his initial “reflex” action of braking when he first saw the Epple car, he took his foot off the brake and attempted to down-shift. He stated that he could not shift and brake at the same time. The lineman for Missouri Utilities, who was driving a dual-wheeled truck behind Davis, testified that as he came upon the scene of the accident he was forced to make a quick and sudden stop. Although he did not know whether he had laid down skid marks, the jury could have inferred that the skid marks were made by this sudden stopping. This conclusion is buttressed by the testimony of Officer Temmens who stated that the skid marks stopped short of the debris. Thus, consistent with its verdict, the jury could have found that by applying his brakes, rather than attempting to down-shift, and thereby slacken his speed the slightest bit, Davis could have avoided the accident and the station wagon would have passed safely onto the gravel road. Consistent with this, the jury could have and did in fact find that the defendant was negligent in failing to slacken his speed to allow the Epples the one-fourth second they needed to emerge from this position of immediate danger, and that this negligence caused the deaths of the plaintiffs’ parents.

For the above reasons, the court holds that the plaintiffs made a submissible case under the humanitarian doctrine for failure to slacken speed.

Because we have found the plaintiffs made a submissible case under this theory and because this case must be remanded for a new trial on another issue, it is unnecessary to determine whether plaintiffs made submissible cases on their other theories. The court of appeals found, and we agree that on the record as it stands, plaintiffs failed to make a submissible case under the humanitarian doctrine on failure to stop or swerve. We will not detail the evidence again or further expound on that determination here because the cause must be reversed and remanded anyway for error in plaintiffs’ verdict-directing instructions 2 and 3 as set forth infra.

The defendants assert that the trial court also erred in giving the plaintiffs’ verdict-directing instructions (instructions 2 and 3) in that they materially deviated from MAI 17.15. Since both instructions are virtually identical, only instruction 2 is set forth:

“Your verdict must be for plaintiffs whether or not Dr. Lawrence K. Epple was negligent if you believe:
“First, plaintiffs were the surviving minor children of Dr. Lawrence K. Epple, deceased, and
“Second, Dr. Lawrence K. Epple was in a position of immediate danger of being injured and was injured, and
“Third, defendant, James Harvey Davis, knew or by using the highest degree of care could have known of such position of immediate danger, and
“Fourth, at the moment when defendant first knew or could have known of such position of immediate danger, defendant still had enough time so that by using the means available to him and with reasonable safety to himself and all others and by using the highest degree of care, he could have avoided injury to Dr. Lawrence K. Epple by stopping, or slackening his speed, or swerving, and
“Fifth, defendant failed to so stop, slacken his speed or swerve, and
“Sixth, as a direct result of such negligence, Dr. Lawrence K. Epple died.”

Defendants contend that this instruction materially deviates from MAI 17.15 in that it omits the word “negligently” from the fifth paragraph. Accordingly, the fifth paragraph should have read: “defendant negligently failed to so stop, slacken his speed or swerve . . .

Our research has not revealed any case dealing specifically with the omission of the word “negligently” from MAI 17.15. We are, therefore, guided by the general rules relating to deviations from MAI. In Murphy v. Land, 420 S.W.2d 505, 507 (Mo.1967), we stated: “All deviations from the straight and narrow path prescribed in MAI will be presumed prejudicially erroneous unless it is made perfectly clear that no prejudice has resulted. The requirements of MAI are mandatory. The burden of establishing nonprejudice is on the proponent of the instruction.” It should be recognized though that it is still the duty of the courts to determine the prejudicial effect of erroneous instructions.

In the instant case the plaintiffs have failed to make a clear showing that no prejudice resulted from the omission of the word “negligently”. Furthermore, we are of the opinion that its absence gave the jury the opportunity to find for the plaintiffs if they found defendant Davis merely failed to stop, slacken his speed or swerve, rather than finding he negligently failed to do the above acts. Because this omission was prejudicial, this case must be reversed and remanded for a new trial.

Next the defendant claims the court erred in failing to define the term “negligence” as used in the instructions to the jury. -We express no opinion as to whether this constituted prejudicial error. It should be noted, however, that the better practice is to include such a definition where the term negligence appears in any of the instructions. Carter v. Consolidated Cabs, Inc., 490 S.W.2d 39 (Mo.1973).

The case is reversed and will be remanded for retrial. However, before actually remanding the case to the circuit court, we have determined that it is appropriate in this case to consider whether, as has been suggested from time to time, Missouri should adopt some form of comparative negligence. See concurring opinion of Donnelly, J., in Anderson v. Cahill, 528 S.W.2d 742, 749 (Mo. banc 1975). Hence, we are docketing the case for further briefing and argument on comparative negligence only at the September 1977 Session. Meanwhile, counsel shall have the right to file motions for rehearing with respect to this opinion according to the standard timetable following the filing of this opinion. Subject to the possibility of a change resulting from action on any motion for rehearing, the court will hear arguments in September on whether, on remand, some form of comparative negligence submission should be utilized. A supplemental opinion will be issued.

SEILER, C. J., FINCH and DONNELLY, JJ., and DIXON and TURNAGE, Special Judges, concur.

MORGAN and RENDLEN, JJ., not sitting.

HENLEY, Judge

(dissenting).

I am inclined to agree that plaintiffs did not make a submissible humanitarian case on failure to stop or failure to swerve, but cannot agree that plaintiffs made a submis-sible case on failure to slacken speed.

The evidence is that the right front portion of the braking-slowing station wagon and the right front tire of the tractor came into collision when only the left front tire portion of the station wagon was out of the tractor’s lane of the highway. There is no evidence of the speed of the station wagon at any point on the highway within the 100 feet of the point of collision. We know that it was less, and became progressively less, than 50-55 miles per hour, because that was its speed before it started laying down 100 feet of tire marks. Nor is there any evidence of the speed of the tractor at any given point of distance from the point of collision during the period of time it took the station wagon to travel this 100 feet. In these circumstances a conclusion that any slackening of the tractor’s speed would have permitted the station wagon to escape would be the result of speculation and conjecture. These facts do not, in my opinion, present an “almost escaping” case.

For these reasons, I withdraw my concurrence and respectfully dissent.


source: Caselaw Access Project

author: HENLEY, Judge.

license: Public Domain

text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION, Respondent, v. Robert H. SCOTT and Lula Mae Scott, Appellants.
    No. 59457.
    Supreme Court of Missouri, En Banc.
    March 14, 1977.
    Rehearing Denied April 11, 1977.

      James L. Muller, Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellants.
    Charles F. Crews, Crews, Milliard & South, Kansas City, for respondent.
   HENLEY, Judge.

This is an appeal by Robert H. Scott and his wife, Lula Mae (hereinafter defendants), from judgments in favor of Federal National Mortgage Association (hereinafter plaintiff or Fannie Mae) on plaintiff’s unlawful detainer action and defendants’ counterclaim for a declaratory judgment. We affirm.

On July 25,1962, Richard E. Largent and his wife purchased a house and lot in Kansas City and executed a deed of trust to secure the payment of their purchase money note for $10,650 payable to the Federal Housing Commissioner in 300 monthly installments of $63.90 each. The deed of trust contained a power of sale clause providing, in part, as follows:

“NOW, THEREFORE, * * * if default be made in the payment of said note herein provided, * * * then the whole of said note and interest thereon to date of foreclosure shall become due and payable and this deed shall remain in force; and said Trustee or his successor as hereinafter provided for, at the request of the legal holder of the aforesaid note, may proceed to sell the property hereinbefore conveyed, or any part thereof, at public vendue at the front door of the Court House in the * * County of Jackson and State of Missouri, to the highest bidder for cash, first giving twenty days public notice of the time, terms and place of sale and of the property to be sold by advertisement in some newspaper published in said Jackson County, Missouri, and upon such sale shall execute a deed conveying the property so sold to the purchaser thereof.”

On June 30, 1963, the note and deed of trust were assigned by the payee to plaintiff.

On July 3, 1968, Richard E. Largent and his wife sold and conveyed this property to defendants. The deed recited that the conveyance was subject to the deed of trust given to secure payment of the note above described which these defendants assumed and agreed to pay.

Defendants failed to pay the installment due November 1, 1972, and each monthly installment due thereafter through January 1,1974. On January 14,1974, a successor to the trustee named in the deed of trust mailed a letter to defendants notifying them that the holder of the note had elected to declare the entire principal balance due and payable, made demand for payment thereof, and further notified defendants that foreclosure of the deed of trust had commenced that day.

After publication of notice pursuant to the above-quoted power of sale, a public sale was held February 14, 1974, at which the property was purchased by plaintiff for $9,119.97, for which the successor-trustee delivered his deed.

Approximately one month later plaintiff commenced this unlawful detainer action seeking judgment for possession of the property and for damages of $150 per month until delivery of possession. . By their counterclaim defendants sought a judgment declaring sections of our statutes relative to the foreclosure of deeds of trust under power of sale unconstitutional and the trustee’s deed based thereon void, on the ground those sections violate the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. Those sections are said to have denied due process, because they operated to deprive defendants of their property without affording them a “legally sufficient notice and a meaningful opportunity for a prior hearing, and without [defendants] having voluntarily, intelligently, and knowingly waived such due process rights ⅜ * ⅜ a

The case was tried before the court without a jury. Upon request of defendants, the court made and filed its findings of fact and conclusions of law, as follows:

“FINDINGS OF FACT

1. The defendants, Robert H. Scott and Lula Mae Scott, are husband and wife and citizens and residents of Kansas City, Jackson County, Missouri, and on July 3, 1968, purchased and by Warranty Deed recorded * * * in the office of Recorder of Deeds of Jackson County, Missouri, at Kansas City became the owners in fee simple to certain real property more particularly described as follows: [description omitted] said property being subject to a Deed of Trust dated July 25, 1962, executed by Richard E. Largent and Colleen G. Largent, husband and wife to James D. Corbin, Trustee for Neal J. Hardy as Federal Housing Commissioner, the same having been filed for record on the 6th day of August, 1962, in the office of Recorder of Deeds of Jackson County, Missouri, * * * which the defendants assumed and agreed to pay.

2. Plaintiff, Federal National Mortgage Association, a United States Government-sponsored private corporation duly organized and existing under Title III of the National Housing Act of 1968, 12 U.S.C. Section 1716 et seq. as amended, acquired and became the legal holder of the Note secured by the Deed of Trust * * *.

3. Thereafter, the defendants defaulted in their payments on the promissory note secured by the Deed of Trust held by the plaintiff, and continued to be in default to the date of the hearing, the last payment having been made on the promissory note by defendants in October of 1972.

4. On May 3, 1972, plaintiff appointed Charles F. Crews as Successor-Trustee under said Deed of Trust by an Appointment of Successor-Trustee which was recorded * * ⅜ in the office of Recorder of Deeds of Jackson County, Missouri, at Kansas City on January 2, 1974.

5. The defendants have never contended otherwise and the Court finds that Charles F. Crews is an attorney at law licensed to practice in Missouri and engaged in the private practice of law in Kansas City, Jackson County, Missouri, and is not an agent, employee or servant of either the Government of the United States of America, including any agency thereof, or the Government of the State of Missouri, including any agency or subdivision thereof.

6. Thereafter on January 14, 1974, the Successor-Trustee caused to be deposited in the United States Mail a letter, marked Certified Mail, Deliver to Addressee Only, Return Receipt Requested, postage prepaid, * * * addressed to the defendants and Richard E. Largent and Colleen G. Largent, at the last known address of each, all of which letters were returned to the Successor-Trustee on February 1, 1974, as unclaimed, said letters advising the defendants and Richard E. Largent and Colleen G. Largent of the default in payment of the Note, accelerating the Note, stating that foreclosure proceedings were being commenced, and enclosed with each said letter was a true copy of the information required to be published advertising the foreclosure sale.

7. On January 17, 1974, the Successor-Trustee commenced advertisement of said sale in The Daily Record, a newspaper of general circulation published in Kansas City, Jackson County, Missouri, and continued said advertisement through February 14, 1974, the date on which the Trustee’s Sale was held, and the property was sold to the plaintiff for the sum of Nine Thousand One Hundred Nineteen and 97/100 Dollars ($9,119.97), and conveyed by Trustee’s Deed Under Sale * * all in accordance with the terms of the power of sale contained in the Deed of Trust and applicable provisions of the Statutes of Missouri.

8. On February 19, 1974, plaintiff caused to be served on defendant Robert H. Scott a demand for possession of the premises occupied by defendants which demand was refused and defendants continued to occupy the premises to date.

9. The reasonable rental value of the premises occupied by the defendants is One Hundred Fifty and No/100 Dollars ($150.00) per month.

CONCLUSIONS OF LAW

Upon the above findings, the Court concludes the law applicable to the instant case to be as follows:

1. That the non-judicial foreclosure by plaintiff was pursuant to the power of sale clause in the Deed of Trust and was contractual in nature. Federal National Mortgage Association v. Howlett, 521 S.W.2d 428 (Mo. Banc 1975).

2. Defendants purchased the real property subject to the prior Deed of Trust of the plaintiff and knowingly and voluntarily assumed and agreed to pay the same. The defendants are deemed to have notice of all recorded instruments and the recitals therein lying within their chain of title to the real property. Section 442.390 RSMo.1969, V.A.M.S.; Gross v. Watts, 104 S.W. 30, (Mo.1907).

3. That defendants were competent to contract and did purchase the real property subject to the prior Deed of Trust of the plaintiff and volüntarily and with itelligent [sic] appreciation and knowledge did assume ⅛‡ obligations and recitals contained in the Deed of Trust and understood the duties imposed upon them; and that by assuming the obligations and recitals contained in the Deed of Trust did waive any right to a judicial foreclosure proceeding or notice not provided for by the Deed of Trust or not provided by the Revised Statutes of Missouri, particularly Section 443.-325 RSMo.1969, V.A.M.S.

4. The plaintiff’s non-judicial foreclosure was in strict accordance and compliance with all relevant sections of the Revised Statutes of Missouri and the power of sale clause contained in the Deed of Trust.

5. The plaintiff’s non-judicial foreclosure was a private action of a private plaintiff that had its origin in the Deed of Trust which defendants assumed and agreed to pay, involving no federal or state judicial process, no federal or state authority, no federal or state officials, and, therefore, no ‘federal government action’ exists to invoke the due process clause of the Fifth Amendment of the Constitution of the United States and no ‘state action’ exists to invoke either the due process clause of the Fourteenth Amendment of the Constitution of the United States or the due process clause of Article I, Section 10 of the Missouri Constitution. Federal National Mortgage Ass’n v. Howlett, 521 S.W.2d 428 (Mo. Banc 1975); Bryant v. Jefferson Federal Savings & Loan Association [166 U.S.App.D.C. 178], 509 F.2d 511 (D.C.Cir.1974).

6.That since the Court has determined no state action exists, and that the defendants have effectively waived any rights they may have had to notice other than the notice provided for by the Deed of Trust and the Revised Statutes of Missouri, it is not necessary to reach the question of the alleged procedural defects of said statutory provisions.”

The judgments entered by the court from which defendants appealed are, in substance: (1) that plaintiff have restitution of the premises unlawfully detained, and recover from defendants (a) $150 per month as rent from February 14, 1974, to February 3, 1976, the date of the judgment; (b) $300 per month (double the sum found to be the rental value) from the date of the judgment until restitution is made; and (c) the costs; (2) that defendants recover nothing on their counterclaim.

In Federal National Mortgage Association v. Howlett, 521 S.W.2d 428 (Mo. Banc 1975), this court was presented with the issue of whether the statutory provisions relating to the foreclosure of deeds of trust under a power of sale are unconstitutional on the basis that they violate the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, § 10 of the Missouri Constitution. The same basic issue is presented again in this case with the additional issue of whether those sections violate the due process clause of the Fifth Amendment.

In Howlett, supra, the court held that the power of a trustee to foreclose a deed of trust that specifically authorized extrajudicial foreclosure is derived, not from these statutes or the state as contended by defendant Howlett, but from the contractual right of the parties expressed in the power of sale provisions of the deed of trust; that a foreclosure under such authority could not be deemed action by the state to which application of the Fourteenth Amendment due process clause is limited. We also held in Howlett that the fact that the statutory provisions relating to extrajudicial foreclosure recognize and authorize, and thus possibly encourage, use of the procedure authorized by contract, or the fact that a purchaser at such a foreclosure sale may use the state courts to enforce rights to possession thereby acquired, does not render the foreclosure proceedings such significant “state action” as is required to make the Fourteenth Amendment due process clause applicable.

The Fourteenth Amendment questions presented in this case are essentially the same as those presented in Howlett. The holding in Howlett that extrajudicial foreclosure which has been authorized by agreement expressed in the security instrument does not involve significant state action, notwithstanding applicable statutory provisions, supplies the answer to all of defendants’ Fourteenth Amendment due process questions. The foreclosure of the deed of trust on defendants’ property was pursuant to power expressly granted by that instrument and not to any power authorized or encouraged by state law.

The due process clause of the Fifth Amendment provides, in part, as follows: “No person shall be * * * deprived of * * * property without due process of law * * The due process clause of this Amendment establishes a limitation on “federal government action”; not on action of individuals. Defendants contend that plaintiff, a federal government-sponsored corporation, is a federal instrumentality; that its action in foreclosing the deed of trust was the action of the federal government and, therefore, was subject to the due process clause of the Fifth Amendment.

We have reviewed and considered the legislative history of Fannie Mae, the statutes and Code of Federal Regulations applicable thereto, and the decisions of federal courts cited by the parties as bearing on the question presented. From this we conclude that while prior to 1968 it was a government-owned corporation, it was transferred in that year to private ownership unendowed with any functions or powers of a governmental nature. We hold that plaintiff is not a federal instrumentality and that its action in foreclosing the deed of trust was not federal action, but was the action of a private individual. In this connection we adopt the views and reasoning of the United States Court of Appeals, Sixth Circuit, expressed in Nor-thrip v. Federal National Mortgage Association, 527 F.2d 23, 30-33[6-8] (1975).

In their last point defendants charge that the court erred in awarding plaintiff $300 per month, double the rental value of the premises, from the date of the judgment until restitution pursuant to § 534.330, on the ground that that section, as applied to them, is unconstitutional in that it violates the equal protection and due process clauses of the Fourteenth Amendment. Plaintiff, in its brief, has consented to a modification of what we have designated above as part (l)(b) of the judgment to allow damages for rental value at the rate of $150 per month from the date of the judgment until restitution is made. In view of this consent, we do not reach the constitutional questions defendants raise. The judgment should be, and is, modified in accord with plaintiff’s consent.

As modified, the judgment is affirmed.

SEILER, C. J., and MORGAN, BARD-GETT, FINCH and DONNELLY, JJ., concur.

RENDLEN, J., not participating, because not a member of the court when cause submitted.

      . Sections 443.290, 443.310, 443.320, 443.325, 443.380 and 443.410, RSMo 1969. References to sections of statutes will be to this revision.

      . See § 534.330, RSMo 1969.

      . However, there is no claim in this case of violation of the due process clause of the state constitution; our concern here is only with the issues involving the federal constitution.


author: MORGAN, Judge. SEILER, Chief Justice,

text:
    STATE ex rel. Allen LOCKE, Relator, v. The Honorable Glenn A. BURKART, Judge, Circuit Court, Greene County, Division IV, and his Successors, Respondent.
    No. 59896.
    Supreme Court of Missouri, En Banc.
    March 15, 1977.
    Rehearing Denied April 11, 1977.
    Theodore A. Strecker, Springfield, for relator.
    Ben K. Upp, Springfield, for respondent.
   MORGAN, Judge.

Relator, Allen Locke, is charged in the Circuit Court of Greene County with the capital murder of one Ronald Max Ray under the provisions of §§ 559.005 and 559.-009, RSMo Supp.1975. His motion to dismiss the information against him, based on the alleged unconstitutionality of said sections, was overruled by the trial court.

Thereafter, this court, upon the petition of relator, issued its provisional rule in prohibition; arguments were made; and, the cause was submitted.

The court now having concluded that prosecution may be had under § 559.005 with punishment as specified in § 559.011, for the reasons delineated in State of Missouri v. Duren, Mo., 547 S.W.2d 476 (No.59763) handed down this date, our provisional rule herein should be quashed.

It is so ordered.

BARDGETT, HENLEY, FINCH, DON-NELLY and RENDLEN, JJ., concur.

SEILER, C. J., concurs in part and dubi-tative in part in separate opinion filed.

SEILER, Chief Justice,

concurring in part and dubitative in part.

This case being governed by State v. Duren, Mo., 547 S.W.2d 476, No. 59763, handed down this date, I take the same position in this case as I did there and adopt by reference the opinion I filed therein.


text:
    HORIZONS WEST PROPERTIES, a Missouri Limited Partnership, Plaintiff-Appellant, v. George C. LEACHMAN, Tax Collector of the County of St. Louis, Missouri, Defendant-Respondent.
    No. 59708.
    Supreme Court of Missouri, En Banc.
    April 11, 1977.

      Simon Rapoport, St. Louis, for plaintiff-appellant.
    George W. Lang, II, Associate County Counselor, Clayton, for defendant-respondent.
   HENLEY, Judge.

This is an action by Horizons West Properties (hereinafter plaintiff) against George C. Leachman in his capacity as Collector of Revenue of St. Louis County (hereinafter the Collector) to recover 1975 real estate taxes paid under protest. The Collector’s motion to dismiss was sustained and the action dismissed. Plaintiff appealed. The appeal involves construction of a revenue law of this state, § 137.180, RSMo 1969 in particular. We affirm.

The petition is in two counts. The allegations of Count I, omitting formal parts and the prayer, are as follows:

“6. On or about January 3, 1975 the plaintiff received a notice from the St. Louis County Department of Revenue, Division of Assessment, which notice stated in part that its 1975 real estate assessment of a certain building owned by plaintiff in St. Louis County had been increased from Two Hundred Fifty Thousand One Hundred Dollars ($250,100) to Three Hundred Eighty-One Thousand Dollars ($381,000) or an increase of One Hundred Thirty Thousand Nine Hundred Dollars ($130,900). This notice of increase in assessment which is incorporated herein by reference as Exhibit A stated in part:

‘If you are not in agreement with the new assessment, you may call at.the Assessor’s Office, Third Floor, St. Louis County Government Center, in Clayton, before May 15 of this year to have your assessment reviewed.’

The notice further stated:

‘This assessment may be appealed to the St. Louis County Board of Equalization, which will meet on the first Monday in June and continue until the last Saturday in July of this year. Your appeal must be filed before July 15 of this year.’

7. On or about February 19, 1975, after arranging a meeting with the St. Louis County Assessor's Office as provided in the notice which it received, plaintiff’s general partner and building manager met with Richard Tegethoff, an agent and representative of the St. Louis County Assessor, Frank J. Antonio, to protest the increase in assessed value of plaintiff’s building which increase was unreasonably high and totally disproportionate to the value of commercial real estate in the vicinity of plaintiff’s building. At this meeting, Mr. Tegethoff, on behalf of the St. Louis County Assessor’s Office informed the taxpayer that the St. Louis County Assessor’s Office would review the new assessment and would advise the plaintiff of the outcome of this review. By these statements and actions, plaintiff was led to believe that the assessment of its property would be substantially reduced.

8. In good faith, plaintiff relied upon the representations made by the St. Louis County Assessor’s Office that the assessor was reviewing the increase in assessment of plaintiff’s real estate; and, consequently, did not file an appeal to the County Board of Equalization.

9. Plaintiff was notified after the time for appeal to the County Board of Equalization had passed that the St. Louis County Assessor’s Office had not reviewed the assessment of plaintiff’s real estate and that no adjustment would be made to the assessed value of plaintiff’s property.

10. The failure to timely notify the plaintiff that the St. Louis County Assessor’s Office would not review or change the assessed value of plaintiff’s property after this office had agreed to such a review violated Section 137.180 R.S.Mo. 1969, since plaintiff did not have notice of the final assessed value placed on its property as required by the foregoing statute.

11. On the 3rd day of December, 1975, plaintiff paid under protest Eleven Thousand Two Hundred Ninety-eight Dollars and Twenty-seven Cents ($11,298.27) for certain real estate taxes extended against its real estate to the Collector of St. Louis County, Missouri.

12. At the time of paying such taxes, plaintiff filed with the collector a written statement setting forth the grounds on which its protest was based, together with the law including any applicable statutes and facts on which it relied in stating its protest, a copy of which statement is incorporated herein by reference as Exhibit B.

13. That said collector has rejected this protest and has failed to return the tax money paid under protest, though often requested to do so.”

The allegations of Count II, omitting formal parts and the prayer, are as follows:

“2. Plaintiff reasonably relied upon the actions and the statements of the St. Louis County Assessor’s Office that the assessed value of its property was being reviewed and that the assessment would be substantially reduced. By virtue of this reliance, plaintiff failed to take its appeal to the County Board of Equalization because it reasonably believed that the St. Louis County Assessor’s Office was still reviewing the protest which it filed concerning the value of its property.

3. The St. Louis County Assessor’s Office by its actions and statements to the plaintiff represented that the assessed value of plaintiff’s property would be reduced and, for this reason, plaintiff did not believe it would be necessary and did not in fact take an appeal to the County Board of Equalization.

4. Failure of the county assessor to notify the plaintiff of the outcome of this review of the protested assessment denied plaintiff its right and opportunity to appeal the assessment to the County Board of Equalization and, if necessary, to the State Tax Commission all in violation of Section 137.180 R.S.Mo. 1969. Said failure to notify also violated the Due Process and Assessment Clause[s] of the Missouri Constitution because the amount of the assessment was so disproportionate and unreasonable that it resulted in a deprivation of plaintiff’s property without due process of law. (§ 10 Mo. Const, art. I, and § 3 Mo. Const, art. X).

5. By virtue of the actions of the St. Louis County Assessor’s Office in representing to the plaintiff that the assessed value of its property would be reviewed and reduced, St. Louis County is estopped to defend this claim on the basis that plaintiff should have appealed its assessment to the County Board of Equalization or to claim that the notice which plaintiff received was adequate under the terms of Section 137.-180 R.S.Mo. 1969.”

The ultimate question presented is whether the notice of increase in assessment admittedly given plaintiff by the assessor is the notice required by § 137.180. If it is not, as plaintiff contends, the court erred in dismissing his action on defendant’s motion. John Calvin Manor, Inc. v. Aylward, 517 S.W.2d 59, 65[6] (Mo.1974). Plaintiff contends the notice does not meet the requirements of that section and is, in effect, no notice and therefore void for the following reasons: (1) the notice contained an invitation to meet with the assessor for review of the assessment if plaintiff did not agree with it; (2) in response to the invitation, plaintiff’s agent met with the assessor’s agent, sought reduction in the assessment, was told that it would be reviewed and plaintiff notified of the result thereof; (3) plaintiff was led to believe “by these statements and actions” that the assessment would be substantially reduced; (4) the assessor did not notify plaintiff that the assessment would not be reduced until too late for plaintiff to appeal to the county Board of Equalization.

Section 137.115 requires the assessor between January 1 and June 1, annually to make a list of all real property taxable in his county and assess the same at 33⅛% of its true value in money. Section 137.180 requires that when he increases the valuation of real property the assessor shall forthwith notify the owner of the increase and of his right to a review thereof by the county Board of Equalization. Section 137.375 requires the assessor to make and deliver his assessment book to the county court annually not later than May 15. Section 137.385 provides that any person aggrieved by an assessment of his property may appeal to the county Board of Equalization by filing a notice of appeal on forms furnished by the county clerk. Subsection 2 of § 138.340 provides for an appeal to the State Tax Commission from an order of a local Board of Equalization.

The court did not err in dismissing Count I of plaintiff’s petition. The system provided by our statutes for determination of the assessed value of real property for tax purposes, notice to the landowner of any increase in assessed valuation, and his right to appeal with an opportunity to be heard thereon, is a full, complete and orderly procedure which does not permit of any other action or proceedings by agents of the state and county or the landowner binding on the state. The landowner in this case was given the full notice required by the statute where there has been an increase in assessed value; however, the notice given was broader than authorized or required in that it suggested the assessor would review his act of increasing the assessment if the landowner did not agree with it. There is no statutory requirement that the assessor review his assessment upon request of the landowner; nor is there statutory authority for such procedure, or authority in the assessor to reduce his assessment once made. The only local body authorized to reduce such assessment is the Board of Equalization.

Plaintiff recognizes that there is no statutory requirement for review by the assessor “after * * * notice of an increase in assessment is sent to the taxpayer.” However, he argues that since the assessor provided for such review and invited application therefor it was his [the assessor’s] obligation to inform plaintiff of the result of such review in time for an appeal to the Board of Equalization. His argument ignores the fact that there is no statutory authority for a review by the assessor of an increase in an assessment, or such authority in the assessor to reduce an assessment once made. The only function of the assessor after increasing an assessment is to notify the landowner of that fact and of his right to seek review by the Board of Equalization. And, as stated, only that Board has authority to reduce an assessment. It was the landowner’s obligation to take action within the time provided by statute for an appeal to the Board; it had no legal right to rely upon statements of an assessor’s agent, because those statements were contrary to the revenue laws of this state.

What we have said is sufficient to answer plaintiff’s additional point relative to Count II: that the allegations of Counts I and II of its petition “were sufficient to raise substantive due process and estoppel issues in that the actions of the assessor’s agents deprived [it] of the right to a hearing, and an appeal of its * * * assessment.” Plaintiff’s point, as we understand it, is that it had a right to rely on statements of the assessor’s agent; that those statements were that the assessor would review the assessment, would reduce it substantially, and plaintiff would be notified in time to appeal to the Board of Equalization; that since plaintiff did rely on these statements and, relying thereon, did not appeal to the Board, (1) plaintiff was denied a hearing before the Board in violation of Mo.Const. Art. I, § 10; and (2) the Collector and other taxing authorities are estopped from asserting as a bar to recovery the defense that plaintiff failed to exhaust its administrative remedy of appeal to the Board.

Plaintiff’s theory is, in a nutshell, based on the premise that it had a right to rely on statements of the assessor’s agent and therefore had no obligation to follow the statutes providing for review by the Board or the procedures by which to seek that review. The premise is false. Plaintiff had no legal right so to rely and had the obligation to follow the statutes. The court did not err in dismissing Count II.

The judgment is affirmed.

All concur.

      . Section 137.180 is as follows:
      “Whenever any assessor shall increase the valuation of any real property he shall forthwith notify the record owner of such increase, either in person, or by mail directed to the last known address; every such increase in assessed valuation made by the assessor shall be subject to review by the county board of equalization whereat the land owner shall be entitled to be heard, and the notice to the landowner shall so state.”


author: PINCH, Judge.

text:
    CONCERNED PARENTS et al., Appellants, and State Board of Education, Intervenor-Appellant, v. CARUTHERSVILLE SCHOOL DISTRICT 18 et al., Respondents.
    No. 59626.
    Supreme Court of Missouri, En Banc.
    April 11, 1977.

      Robert J. Goodwin, Caruthersville, for appellants.
    Karen M. Iverson, Asst. Atty. Gen., Jefferson City, for intervenor-appellant.
    Byron D. Luber, Caruthersville, for respondents.
   PINCH, Judge.

This is an appeal from an order of the circuit court dismissing plaintiffs’ petition with prejudice on the ground that it failed to state a claim for relief. The principal question to be resolved is whether public school districts in Missouri are constitutionally prohibited from charging registration fees and course fees as prerequisites to enrollment and to participation by school age children in classes offered for academic credit by the district. Plaintiffs contend that the district’s policy of charging registration and course fees, plus requiring students to furnish certain supplies in courses offered for academic credit, violates Mo. Const, art. IX, § 1(a), which requires that free public schools be maintained for the gratuitous instruction of all children of school age, and the equal protection clauses of Mo.Const. art. I, § 2, and U.S.Const. amend. XIV. Since issues of constitutional construction are involved, we have jurisdiction. Mo.Const. art. V, § 3. We reverse and remand.

In the petition herein, filed November 26, 1975, plaintiffs are Concerned Parents, an unincorporated association of 18 people (14 of whom have children in the school district), six parents who have children attending schools in the district and 13 children who are attending said schools. Defendants named in the petition are the Caruth-ersville School District 18, its superintendent of schools and members of the board of education of the district.

The petition is in four counts. Count I seeks declaratory relief, Counts II and III injunctive relief, and Count IV recovery of sums paid as registration and course fees since December 1, 1972.

The petition challenges the following practices which defendants are alleged to employ:

(1) charging a registration fee for all children enrolled in school. These fees were $2.80 for grades 1 through 6, $3.80 for grades 7 and 8 and $6.50 for grades 9 through 12;

(2) charging fees in certain courses offered for academic credit. Examples alleged include $15.00 for driver education, $3.00 for art, and $2.00 for typing, home economics or band;

(3) requiring students to furnish certain supplies in some courses offered for academic credit;

(4) penalizing students by withholding grade reports and diplomas for non-payment of registration fees and course fees; and

(5) penalizing students by reducing grades and reducing participation in class for failure to furnish certain supplies in courses offered for academic credit.

On February 10, 1976, plaintiffs filed a motion asking the court by order to permit them to maintain this suit as a class action pursuant to Rule 52.08(b)(1) and (2). The trial court never acted on that motion. It was still pending on June 8, 1976, when the petition was dismissed for failure to state a claim.

After plaintiffs took an appeal from the order dismissing their petition with prejudice, the State Board of Education was granted leave to intervene as appellants and it has filed a brief. In addition, the American Civil Liberties Union was granted leave to and- has filed a brief amicus curiae.

Do plaintiffs have standing to maintain this action?

Before proceeding to consider whether the petition states a claim for relief, we consider first the contention, advanced in defendants’ brief, that the trial court did not err in dismissing the suit because plaintiffs lack standing or capacity to maintain this action. They argue that the mandatory requirements of Rule 52.08 governing maintenance of class actions have not been met and that the allegations in the petition are insufficient to authorize a class action.

We conclude that this contention that the court was correct in dismissing the suit because plaintiffs lack standing is without merit. Plaintiffs brought this suit on behalf of themselves individually as well as seeking to maintain it on behalf of certain classes. They are entitled to proceed with the action in their individual capacities, even if they do not qualify to act on behalf of a class. Kansas City Terminal Ry. v. Industrial Commission, 396 S.W.2d 678 (Mo.1965). Since the trial court did not consider or act upon the request that this case proceed as a class action and we act herein as a court of review, there is no issue before us as to whether the action may be maintained as a class action. That will be for consideration by the trial court on remand. In any event, standing of plaintiffs to maintain this action does not depend on the outcome of such request.

In further support of their argument that plaintiffs lack standing, defendants assert that the adult plaintiffs have not been appointed as next friends for the minor plaintiffs as required by Rule 52.02(a) and, hence, may not act in that capacity. Even if true, this would not mean dismissal of this case. Rule 52.02(m) provides that failure to appoint a next friend for a minor shall not invalidate the -proceedings if the court finds that the interests of the minor were adequately protected. The adult plaintiffs are the natural guardians of their minor children and we can expect that they will protect the interests of their minor children. See State ex rel. Missouri Pac. R. R. v. Cox, 306 Mo. 27, 267 S.W. 382 (banc 1924); Jones v. Steele, 36 Mo. 324 (1865); Baker v. Mardis, 221 Mo.App. 1185, 1 S.W.2d 223 (1928). In any event, the adult plaintiffs are entitled to maintain the suit on their own behalf and the petition cannot be dismissed on the basis that no minor plaintiff has standing to maintain the action.

Do defendants’ alleged practices of charging registration and course fees violate the requirement in Mo.Const. art. IX, § 1(a) that free public schools providing gratuitous instruction be established and maintained?

On a motion to dismiss for failure to state a claim for relief, we accept as true the facts properly pleaded, giving the aver-ments a liberal construction, and making those reasonable inferences fairly deducible from the facts stated. Scheibel v. Hillis, 531 S.W .2d 285, 289 (Mo. banc 1976). Thus, we test the sufficiency of the petition herein on the premise that defendants did charge and plaintiffs paid registration fees for students attending public schools, that plaintiffs also paid course fees and furnished materials in courses offered for academic credit, and that on some occasions students and parents were penalized for non-payment of registration or course fees or failure to furnish materials by having grade reports withheld or grades reduced.

Do these practices, admitted for purposes of this review, violate Mo.Const. art. IX, § 1(a)?

The words “free public schools for the gratuitous instruction” of all children of school age were not included in the section on schools and education of Missouri’s first constitution. In art. VI, § 1, of the Constitution of 1820, after providing that “[s]chools and the means of education shall forever be encouraged in this state”, the legislature was required to establish township schools “as soon as practicable and necessary, where the poor shall be taught gratis”. The constitution contained no directive to establish free public schools for all school children. It was later that the state accepted the Jeffersonian concept that education is fundamental to democracy and that the state should assume the primary educational role. From time to time thereafter, the legislature enacted various laws designed to encourage education but it was not until 1865, when a new constitution was adopted, that the state had a constitutional provision which required the legislature to “establish and maintain free schools for the gratuitous instruction” of all persons between 5 and 21 years of age. Mo.Const. art. IX, § 1 (1865). That same provision was repeated in the subsequent constitutions of 1875 and 1945, the only difference being that the 1875 constitution specified instruction between 6 and 20 years of age and the 1945 constitution called for such education for persons within ages specified by law but not to exceed 21 years.

We are concerned in this case with determining the meaning of the language “establish and maintain free public schools for gratuitous instruction”. The key words therein are “free” and “gratuitous”.

It is well established that in construing a constitutional provision, “words are to be taken in accord with their fair intendment and their natural and ordinary meaning”. Theodoro v. Department of Liquor Control, 527 S.W.2d 350, 352-353 (Mo. banc 1975); State ex rel. Heimberger v. Board of Curators of University of Missouri, 268 Mo. 598, 188 S.W. 128, 130 (banc 1916). When-language is plain and unambiguous, no construction is required. Rathjen v. Reorganized School District R-II, 284 S.W.2d 516, 523 (Mo. banc 1955). Applying these rules of construction, it is proper to look first at dictionary definitions. State ex inf. Danforth v. Cason, 507 S.W.2d 405, 409 (Mo. banc 1973).

Webster’s Third New International Directory (1965) defines “free” as meaning “not costing or charging anything * * * given or furnished without cost or payment” and gives as an example “a free school”. The word is defined in the Oxford English Dictionary (1961) as follows: “Given or provided without páyment, costless, gratuitous. Of persons: (Admitted, etc.) without payment. * * * Free school: ‘a school in which learning is given without pay’.”

“Gratuitous” is defined in Webster’s Third New International Directory (1965) as meaning “costing the recipient or participant nothing: FREE”. The Oxford English Dictionary (1961) defines the term as “Freely bestowed or obtained; granted without claim or merit; provided without payment or return; costing nothing to the recipient; free”.

Applying the foregoing definitions, it seems perfectly clear that the language in art. IX, § 1(a) provided that the legislature must establish schools to which admission is without charge and that instruction was to cost the students nothing. The use of both terms emphasized and underscored the intention that these schools were to provide free public education.

The only case in Missouri in which an appellate court has considered the meaning of language similar to that contained in art. IX, § 1(a) supports the foregoing analysis and conclusion. State ex rel. Roberts v. Wilson, 221 Mo.App. 9, 297 S.W. 419 (1927). In that case, an original proceeding in mandamus in the court of appeals, a parent sought to compel school officials to deliver to her daughter her graduation “certificate of attainment” and to release her grades which they had withheld because she had not paid a $20.00 tuition charge. Holding that the school board could not lawfully make the charge or penalize the student for non-payment thereof, the court said:

“The right of children ... to attend the public school established in their district for them is not a privilege dependent upon the discretion of any one, but is a fundamental right, which cannot be denied, except for the general welfare.
“The law, of course, contemplates that the money necessary for the maintenance of a public school come from the revenue provided by law; that is, by taxation. . [If the school is public in character] . . . then neither the principal nor the directors had any lawful right to exact of relator the tuition demanded. . [N]o right existed in the board, or any one, to require payment of a tuition fee by relator.” 297 S.W. at 420.

There are many cases in other states which consider the validity of registration fees, course fees, fees for textbooks and course materials and rules which require students to furnish various kinds of materials and equipment. Many of these decisions are discussed and analyzed in Note, 16 Washburn L. Journ. 439 (1977); Annot., 41 A.L.R.3d 752 (1972); and Note, Wis.L.Rev. 971 (1971). Not all states have constitutional provisions comparable to the one which we are called upon to interpret. As a matter of fact, one author has observed that twenty-two states do not have a constitutional mandate for free schools. Note, Washburn L. Journ. at 448. Obviously, it is not feasible or necessary that we undertake in this opinion to discuss all of these out-of-state cases. We will make reference to a few to illustrate the varying results reached.

In Dowell v. School Dist. No. 1, 220 Ark. 828, 250 S.W.2d 127 (1952), the court considered a case wherein it was contended that a registration fee established by the school district was prohibited by art. 14, § 1 of the Arkansas constitution which provided as follows:

“Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.”

That provision is remarkably similar to our own art. IX, § 1(a). The court concluded that plaintiffs could not maintain the action because one of them had no child in school and the other two had never paid the registration fee and their children had attended school and received books the same as other children. Even so, the court went on to state that under the foregoing provision for free schools providing gratuitous instruction, no registration fee could be charged.

Paulson v. Minidoka County School District No. 331, 93 Idaho 469, 463 P.2d 935 (1970), involved interpretation of Ida.Const. art. IX, § 1, which provides as follows:

“The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.”

The school district required students to pay an annual $25 textbook and activity fee. Students were permitted to attend school and to graduate even if they did not pay the fee, but payment was required as a condition to receiving a transcript of courses studied and grades received. The court held that the fee contravened the constitutional provision for free common schools. Textbooks were considered to be necessary elements of the school’s activity, indistinguishable from such things as teachers’ salaries and building maintenance.

In Bond v. Public Schools of Ann Arbor School District, 383 Mich. 693, 178 N.W.2d 484 (1970), plaintiffs sought to have students enrolled without paying fees for “books and supplies”. The court held that as used in the constitutional provision requiring “a system of free public elementary and secondary schools”, the word “free” “clearly means without cost of charge and must have been so commonly understood by the people”. 178 N.W.2d at 487. The court then considered “whether books and supplies are necessary to a system of free public elementary and secondary schools”. Id. Reviewing the Paulson case and recognizing the test adopted therein, the court invalidated the fees, saying:

“Applying either the ‘necessary elements of any school’s activity’ test or the ‘integral fundamental part of the elementary and secondary education’ test, it is clear that books and school supplies are an essential part of a system of free public elementary and secondary schools.” Id. at 488.

Montana had a constitutional provision which provided for a system of “public, free common schools”. Mont.Const. art. XI, § 1 (1889). In Granger v. Cascade County School Dist. No. 1, 159 Mont. 516, 499 P.2d 780 (1972), parents attacked fees and charges for various materials as well as a requirement that students furnish certain supplies and equipment of their own. In resolving the issues, the court said:

“We believe that the controlling principle or test should be stated in this manner: Is a given course or activity reasonably related to a recognized academic and educational goal of the particular school system? If it is, it constitutes part of the free, public school system commanded by Art. XI, Sec. 1 of the Montana Constitution and additional fees or charges cannot be levied, directly or indirectly, against the student or his parents. If it is not, reasonable fees or charges may be imposed.
“In this manner a degree of flexibility is insured. The school district may thus define its own academic and educational goals and the courses and activities that will carry credit toward graduation within the limits provided by law. At the same time, the individual student has a freedom of choice, within the limits of
the educational framework so established, to pursue a course of study directed toward business, a trade, college preparatory, commercial, secretarial, or some other goal without regard to his financial ability to pay additional fees or charges.” 499 P.2d at 786.

In Board of Education v. Sinclair, 65 Wis.2d 179, 222 N.W.2d 143 (1974), the court considered whether certain fees were permissible under a constitutional provision that “schools shall be free and without charge for tuition”. Wis.Const. art. X, § 3 (as amended 1972). In this instance, it was the school district suing the parent for the fees for the use of books and incidental educational supplies. The court concluded that the schools may charge such fees if authorized by statute, saying, “We are persuaded that when the framers of our constitution used the phrase ‘free and without charge for tuition to all children . . .,’ the word ‘free’ meant without cost for physical facilities and equipment; ‘without charge for tuition’ meant there should be no fee charged for instruction;”. 222 N.W.2d at 145. In so concluding, the court, in addition to looking at dictionary definitions and the plain meaning in the context in which used, looked at the practices in existence which they could reasonably presume were known to the framers in 1848 when the constitutional provision was framed and adopted.

In so holding, the Wisconsin court adopted the reasoning employed in Hamer v. Board of Education of School Dist. No. 109, 47 Ill.2d 480, 265 N.E.2d 616 (1970), in construing a constitutional provision which provided for “free schools, whereby all children of this state may receive a good common school education”. Ill.Const. art. VIII, § 1 (1870).

See also Marshall v. School Dist. Re #3 Morgan County, 553 P.2d 784 (Colo. banc1976); Vandevender v. Cassell, 208 S.E.2d 436 (W.Va.1974); Chandler v. South Bend Community School Corp., 312 N.E.2d 915 (Ind.App.1974).

We are not persuaded by any of the cases decided in other states that we should interpret art. IX, § 1(a) as directing other than that there must be public schools in Missouri for which there is no admission charge (whether called tuition, registration fee or some other name) and no charge for instruction, which means no course fees. The clear meaning of the words used in art. IX, § 1(a), their relationship to each other and the language of the introductory portion of the section all indicate that this is the meaning intended. We have adopted in Missouri the rule of construction applied in Board of Education v. Sinclair, supra, to the effect that the court “should undertake to ascribe to words the meaning which the people understood them to have when the provision was adopted,” State ex inf. Danforth v. Cason, 507 S.W.2d at 408, but nothing has been suggested to indicate that the framers of this constitutional provision intended the words to mean other than as we have interpreted them. Accordingly, we hold that art. IX, § 1(a) prohibits a school district from charging registration fees or fees in courses for which academic credit is given.

Defendants urge as another basis for upholding the fees charged in this case the proposition that the statutory history of Missouri indicates that the free public school provision in art. IX, § 1(a) is not absolute. In support of that contention, they cite various statutory provisions which authorize school districts to charge tuition. They cite §§ 162.940, RSMo Supp.1975, 167.121, RSMo Supp.1975, 167.131, RSMo Supp.1975, and 167.151, all of which authorize a school district in certain situations to charge tuition but none support defendants’ position in this case. Sec. 162.940, RSMo Supp.1975, permits boards of education of special school districts to charge tuition to resident students who are over 21 years of age and to students who are not residents of the district. Sec. 167.121, RSMo Supp. 1975, permits a county superintendent to assign a student to another school district if a school in the latter is more accessible for the public. When that is done, the non-resident tuition charged for the student is paid by the school district in which he resides. Sec. 167.131, RSMo Supp.1975, obligates a school district which does not operate a high school to pay tuition for its high school age students to attend high school in another district. Finally, § 167.151 authorizes a school board to admit pupils who are not entitled to free education and to charge them a tuition fee. No one of these sections is inconsistent with art. IX, § 1(a) as we have construed it. Under them, school districts only charge tuition for nonresident students, who are not the obligation of that district, and students who are not entitled to the benefits of the free education directed by art. IX, § 1(a). For example, they are over 21.

The other sections cited by defendants, viz., 167.181, RSMo Supp.1975, 167.211 and 167.231, RSMo Supp.1975, relate to immunization of students, school lunch programs and transportation of students. None conflict with our ruling that defendants may not charge registration fees or course fees in courses for which academic credit is given.

As still another basis for sustaining the fees charged by defendant district, it is urged that the registration fees and course fees charged are reasonable and that they are so small as to be de minimus. On that basis, it is argued that they do not violate art. IX, § 1(a). We reject this argument. The issue is not whether the fees are reasonable. It is whether they are permissible, and we have held that they are not. Nor can we sustain them on the theory that they are de minimus. Plaintiffs’ petition alleges that the fees collected between December 1, 1972, and the date this suit was filed amount to $35,000. This is not de minimus. Even if they could be so described, that would not excuse a violation of art. IX, § 1(a). As a three judge court said in United States v. Texas, 252 F.Supp. 234, 254 (W.D.Tex.), aff’d, 384 U.S. 155, 86 S.Ct. 1383, 16 L.Ed.2d 434 (1966), in declaring a poll tax unconstitutional:

“If the State of Texas placed a tax on the right to speak at the rate of one dollar and seventy-five cents per year, no court would hesitate to strike it down as a blatant infringement of the freedom of speech. Yet the poll tax as enforced in Texas is a tax on the equally important right to vote.”

The foregoing language was noted with approval in Harper v. Virginia State Board of Elections, 383 U.S. 663, 665 n. 2, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).

Having held that the registration and course fees charged by defendants are prohibited by Mo.Const. art. IX, § 1(a), we need not and do not reach or decide plaintiffs’ contention that the fees also violate the equal protection clause of Mo.Const. art. I, § 2 and U.S.Const. amend. XIV.

Does defendants’ alleged practice of requiring students to furnish certain materials and equipment for use in classes and activities violate Mo.Const. art. IX, § m?

Plaintiffs’ petition alleges that certain of the minor defendants have been required to furnish steno pads for a shorthand course, notebooks for an English course and gym clothing for a gym class. It is plaintiffs’ position that art. IX, § 1(a) requires that such materials be furnished without charge.

We have concluded not to undertake to resolve this question on this appeal. Since we already have held that the petition states a claim for relief as to registration fees and course fees, it is not necessary, as a condition to deciding whether the petition was dismissed erroneously, to decide whether a claim is stated on the basis of students being required to furnish materials and equipment. Under such circumstances it is better that we postpone for determination on a record after trial the question of the right to require students to furnish materials and equipment for courses in which they are enrolled.

Some of the decisions in other states from which we have quoted disclose that some states have held that books and school supplies are as much a part of providing schools as teachers and buildings. Others have distinguished between fees for enrollment or instruction and materials and equipment, holding that a constitutional requirement of free schools does not require that such things as textbooks, supplies and equipment be furnished. Some states, as previously noted, have based this determination on whether such items were considered to be a part of free schools when the constitutional mandate therefor was adopted. Postponing a decision with reference to supplies and equipment will enable the parties to offer proof as to the kind and character of such materials and equipment furnished and whether they are an integral part of free public schools in which there is gratuitous instruction. They can offer such proof as may be available as to whether at the time the constitutional requirement was adopted, the people drafting and adopting the provision understood the language to encompass such things as materials and equipment. If, after the case is tried, it is determined that art. IX, § 1(a) permits the defendants to require students to furnish materials and equipment, the court can determine whether as to any plaintiffs such requirement would result in a denial of equal protection under the state or federal constitutional provisions.

Defendants’ contention on appeal that the individual defendants are immune from suit.

Defendants make the point in their brief that,

“The trial court did not err in sustaining defendants’ motion to dismiss as to the individual defendants because school board directors are immune from personal liability in the absence of malice or bad faith and no such charge is made.”

The transcript on appeal clearly shows that defendants filed no motion seeking a dismissal of this case as to the individual defendants. No contention that they were immune to suit appears anywhere in the transcript. The trial court did not dismiss the petition as to individual defendants. Hence, this point by defendants, consisting of less than a half page of discussion in their brief, is not before us on this appeal.

Count IV of the petition $eeks recovery of fees paid since December 1, 1972. Recovery is sought from all defendants, including the school district. Defendants’ brief makes no contention that Count IV does not state a claim against the school district. Under these circumstances, the trial court was not justified in dismissing it for failure to state a claim.

The question of whether plaintiffs state a claim for relief against the individual defendants is not before us and we do not decide it on this appeal. On remand, that issue can be raised and if a judgment is obtained by plaintiffs, defendants will have the right to contest whether plaintiffs state and whether they prove a claim against the individual defendants.

Reversed and remanded.

All concur.

      . Defendants argue that the petition does not allege sufficiently any denial of a free education and does not allege that there has been any denial of the benefits of education or the imposition of other penalties for non-payment of fees. Rather, says defendants, they allege only on information and belief that report cards and records are withheld and that grades are reduced and such allegations are asserted to be insufficient allegations of fact required by Rule 55.05.
      This contention overlooks various allegations not stated on information and belief. In several paragraphs the petition specifically alleges that certain of the minors involved have had grades reduced or a final grade report withheld or other penalties. This is true in paragraphs 28, 29 and 35 of the petition.

      . All references to rules are to Missouri Rules of Court. V.A.M.R.

      . On remand, steps can be taken to have plaintiff parents appointed as next friends for their respective children in accordance with the rule.

      . Mo.Const. art. IX, § 1(a), provides in pertinent part as follows:
      “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free pub-lie schools for the gratuitous instruction of all persons in this state within ages not in excess of twenty-one years as prescribed by law.

      . 1 D. March, History of Missouri 724-725 (1967).

      . Id. at 720-733.

      . Mo.Const. art. XI, §§ 1 and 3 (1875).

      . Mo.Const. art. IX, § 1(a).

      . In § 160.051 RSMo 1969, the legislature has specified that such gratuitous instruction shall be for persons between 6 and 20 years of age.

      . Actually, the case considered the language of Mo.Const. art. XI, § 1 (1875), but the words therein as to free public schools and gratuitous instruction were the same as in art. IX, § 1(a) of the 1945 constitution.

      . In addition to this case, there were two opinions by the Attorney General, No. 269 to Hon. Joseph W. Hill dated December 1, 1972, and No. 66 to Dr. Arthur L. Mallory dated March 7, 1973. These opinions discussed various items including course fees, registration fees, and requiring students to furnish various materials. Both opinions reached the conclusion that art. IX, § 1(a) requires free public schools in which registration and course fees may not be charged, so long as the course is one for which academic credit is given, and that if materials such as materials in a home economics or art class are in a course for which academic credit is given, the student may not be required to furnish them.

      . Mich.Const. art. VIII, § 2 (1963).

      . We do not have before us and do not consider whether course fees would be permissible in classes or programs offered which are entirely optional and for which no academic credit is given.

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