author: BARDGETT, Judge. DONNELLY, Judge, SEILER, Judge,

text:
    Paul J. WENGLER, Respondent, v. DRUGGISTS MUTUAL INSURANCE COMPANY, and Dicus Prescription Drugs, Inc., Appellants.
    No. 60442.
    Supreme Court of Missouri, En Banc.
    June 27, 1979.
    Rehearing Denied July 17, 1979.

      Ralph C. Kleinschmidt, Gerre S. Langton, Evans & Dixon, St. Louis, for appellants.
    John W. Reid, III, Schnapp, Graham & Reid, Fredericktown, for respondent.
   BARDGETT, Judge.

The issue on this appeal is whether the provision contained in section 287.240, RSMo Supp.1976, which affords a conclusive presumption of dependency to a widow for obtaining workmen’s compensation benefits for the death of her spouse but requires a widower to prove actual dependency to receive reciprocal benefits, offends the equal protection clause of art. 1, sec. 2, Mo.Const., and amendment 14, U.S.Const.

Plaintiff-respondent Paul J. Wengler’s wife Ruth was killed in an accident while working for defendant-appellant Dieus Prescription Drugs, Inc., and plaintiff made a claim for workmen’s compensation death benefits under sec. 287.240(2). It is stipulated that plaintiff was not actually dependent for support, in whole or in part, upon the wages of his wife at the time of the injury, nor was he mentally or physically impaired from wage earning. In order for a widower to obtain periodic death benefits under 287.240(4) and (4)(a) upon the work-related death of his wife, the widower must either be (1) mentally or physically incapacitated from wage earning, or (2) must prove actual dependency for support, in whole or in part, upon his wife’s wages. However, if the husband dies in a work-related accident, the surviving widow is conclusively presumed to be totally dependent upon her husband’s wages for support. She does not need to prove actual dependency. Sec. 287.240{4) and (4)(a). A child under age 18 is also conclusively presumed to be totally dependent upon his parent under 287.240(4)(b).

The workmen’s compensation referee denied plaintiff benefits because no dependency on his wife’s wages was shown. On review, the Labor and Industrial Relations Commission adopted the referee’s award and denied compensation. The circuit court reversed and held that because sec. 287.240 affords a conclusive presumption of total dependency to a widow upon her husband’s work-related death, it constitutes a denial of equal protection under art. 1, sec. 2, Mo.Const., and the fourteenth amendment, U.S.Const., to require a widower to prove dependency and to deny that same presumption to a husband whose wife dies in a work-related accident.

The employer and insurer appealed. This court has jurisdiction. Art. 5, sec. 3, Mo. Const. Our decision upholding the constitutionality of sec. 287.240(4) and (4)(a) renders other issues on the cross-appeal moot.

The workmen’s compensation act is considered substitutional for common-law tort remedies. Sheets v. Hill Bros. Distributors, Inc., 379 S.W.2d 514 (Mo.1964). Its primary purpose is to ameliorate, in the interest of working people and the public welfare, losses sustained from accidental injuries received by the working person in the course of employment, Reed v. Kansas City Wholesale Grocery Co., 236 Mo.App. 402, 156 S.W.2d 747 (1941), and is to be liberally construed with a view to the public welfare. Sec. 287.800, RSMo 1969.

The act was first adopted by the legislature in 1925 (Laws of Mo.1925, p. 375), and upon being referred to a vote of the people it was approved at the November 1926 election (Laws of Mo.1927, p. 490).

Section 21 of the original act provided for compensation upon the death of an employee. The definition of “dependent” in sec. 21(d) has continued to the present unchanged and is now sec. 287.240. The conclusive presumption of dependency of “a wife upon a husband legally liable for her support” was part of the original act, as was the provision which results in a nondis-abled husband being required to show actual dependency, in whole or in part, to receive compensation upon the work-related death of his wife.

Workmen’s compensation is not, in the main, financed by taxes and the payment of compensation is not a governmental obligation but rather the obligation of the employer.

The plaintiff contends that because of the differential in treatment of husbands and wives in claims under sec. 287.240 is gender based, it violates the equal protection clause of art. 1, sec. 2, Mo.Const., and the fourteenth amendment, U.S.Const.

To withstand scrutiny under the equal protection clause, classification by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Califa no v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977).

In Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), the court upheld the constitutionality of a Florida statute which, since 1885, granted all widows an annual $500 tax exemption as against an equal protection attack brought by a widower. The court said there could “be no dispute that the financial difficulties confronting the lone woman in Florida or in any other State exceed those facing the man. Whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs.” Earning statistics, cited in Kahn, of men as compared with women from 1955 to 1972 showed in 1972 that a woman working full time had a median income which was only 57.9% of the median for men — six points lower than in 1955. The court observed at 354, 94 S.Ct. at 1737, “While the widower can usually continue in the occupation which preceded his spouse’s death, in many cases the widow will find herself suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer.” It was also noted at 355, footnote 7, 94 S.Ct. at 1737: “It is still the case that in the majority of families where both spouses are present, the woman is not employed. A. Ferriss, Indicators of Trends in the Status of American Women 95 (1971).”

Kahn v. Shevin, supra, distinguished Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), on the basis that the denial to service women of procedural and substantive benefits granted service men was “solely ” for administrative convenience and served no important governmental objective; whereas, in Kahn, widows were found to be at an economic disadvantage to widowers. The court thereupon held the Florida statute rested upon a ground of difference that had a fair and substantial relation to be the object of the legislation.

Likewise, in Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977), the court upheld a gender-based difference which benefited women by requiring fewer number of elapsed years to qualify for certain old-age insurance benefits for women than for men. This, the court held, was a justifiable difference to correct a long history of discrimination against women by a male-dominated culture and an inhospitable job market.

However, in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), the court held a gender-based distinction created by a provision of the social security act violated the due process clause of the Fifth Amendment. The provision in question allowed a widow to receive benefits based upon the earnings of her deceased husband without showing actual dependency, but required a widower to prove he was receiving at least one-half of his support from his deceased wife to qualify for benefits upon his working wife’s death. The court, following Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), said 430 U.S. at 206-207, 97 S.Ct. at 1027:

“. . . Wiesenfeld thus inescapably compels the conclusion reached by the District Court that the gender-based differentiation created by § 402(f)(1)(D)— that results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of men — is forbidden by the Constitution, at least when supported by no more substantial justification than ‘archaic and overbroad’ generalizations, Schlesinger v. Ballard, supra, 419 U.S. 498, at 508, 95 S.Ct. 572, at 577, 42 L.Ed.2d 610, or ‘old notions,’ Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 1377, 43 L.Ed.2d 688 (1975), such as ‘assumptions as to dependency,’ Weinberger v. Wiesenfeld, supra, 420 U.S. at 645, 95 S.Ct. at 1231, that are more consistent with ‘the role-typing society has long imposed,’ Stanton v. Stanton, supra, 421 U.S. at 15, 95 S.Ct. at 1378, than with contemporary reality.”

The court also found the provision in violation of equal protection for essentially the same reason, saying 430 U.S. at 208, 97 S.Ct. at 1027:

“Prom its inception, the social security system has been a program of social insurance. Covered employees and their employers pay taxes into a fund administered distinct from the general federal revenues to purchase protection against the economic consequences of old age, disability and death. But under § 402(f)(1)(D) female insureds received less protection for their spouses solely because of their sex. Mrs. Goldfarb worked and paid social security taxes for 25 years at the same rate as her male colleagues, but because of § 402(f)(1)(D) the insurance protection received by the males was broader than hers.”

But in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the court upheld the denial of social security benefits to a woman applying for mother and daughter benefits on the basis of a provision in the act defining “widow” and “child” excluded surviving wives and stepchildren who had their respective relationship with the deceased wage earner for less than nine months prior to his death. Quoting from the earlier ease of Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the court said 422 U.S. at 769, 95 S.Ct. at 2468-2469:

“‘In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730 .. . .’ ”

Other cases where the United States Supreme Court has invalidated statutes of various states on “invidious discrimination” grounds are: Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the Oklahoma law allowed females to buy beer at age 18 but denied males 18-20 the same right; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Idaho statute which gave preference to males as administrators of decedents’ estates; Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975), Utah law that made age of majority for females 18 but 21 for males.

In Frontiero v. Richardson, supra, a federal statute which allowed a serviceman to obtain an allowance for dependent housing if married, but did not allow a servicewoman to obtain dependency allowance for housing unless her husband was dependent upon her for more than one-half of his support, was held unconstitutional. It is noted that under the statute struck down in Frontiero the servicewoman was foreclosed from obtaining any benefits even though she may have supported the husband 49%; whereas, under the workmen’s compensation provision in the instant case, a husband will receive benefits in accordance with the actual degree of support afforded him by his working spouse.

Three state courts have recently applied these principles to invalidate proof-of-dependency requirements imposed on widowers under their workmen’s compensation statutes. Arp v. Workers’ Comp. Appeals Bd., 19 Cal.3d 395, 138 Cal.Rptr. 293, 563 P.2d 849 (Bank 1977); Passante v. Walden Printing Co., 53 A.D.2d 8, 385 N.Y.S.2d 178 (1976); Tomarchio v. Township of Greenwich, 75 N.J. 62, 379 A.2d 848 (1977). In Arp, supra, the California Supreme Court found the conclusive presumption of dependency of widows to be violative of equal protection. The court held that the statute favors the male wage earner over the female wage-earner because of the disparity of protection accorded to their respective spouses. In Passante the court noted that death benefits are derived from the employment relationship itself, but a married woman has less security than a married man because of the conclusive presumption of dependency accorded to the widow but not the widower. Similarly, in Tomarehio, the New Jersey Supreme Court invalidated the dependency requirement of widowers as the court held the conclusive presumption accorded to widows denied women equal protection.

In summary, several jurisdictions have found statutory schemes similar to ours unconstitutional as perpetuating an outmoded standard which by its nature discriminates against those (women) whom it purports to protect.

The New York Supreme Court, Appellate Division, in Passante and the Supreme Court of California in Arp adopted a “strict scrutiny” standard of review for gender-based statutory schemes. As noted supra, in Frontiero the United States Supreme Court held a “dependency” provision invalid; however, only four justices adopted the “strict scrutiny” standard. Subsequent cases of the United States Supreme Court reinforces the concept that the “strict scrutiny” standard is inappropriate in these cases. See Craig v. Boren, supra. We decline to follow the approach utilized by New York and California, believing the “substantial relationship” test is more appropriate.

The social security cases of Califano v. Goldfarb, supra, and Weinberger v. Wiesenfeld, supra, are also distinguishable. Although the issues dealt with dependency benefits, the social security scheme is generally based upon mandatory contributions from past wage earnings of the employee. The legislative history of the social security act makes it clear that survivorship benefits are in the form of “social insurance”. Weinberger v. Wiesenfeid, 420 U.S. at 644, 95 S.Ct. 1225.

The purpose of the workmen’s compensation act was not to provide for blanket “social insurance”. It is substitutional to the common law creating rights and remedies in favor of the injured employee or dependents for accidents in the course of employment. See Todd v. Goostree, 493 S.W.2d 411 (Mo.App.1973). The employer is the sole contributor to the fund, as opposed to the social security scheme of mandatory employee contributions (taxes) based on an income scale. See sec. 287.290, RSMo 1969. Therefore, the United States Supreme Court cases of Weinberger v. Wiesenfeid, supra, and Califano v. Goldfarb, supra, are not controlling in the case at bar.

Of some interest is the differing results reached in New York and New Jersey vis-a-vis California. In New York and New Jersey the court applied the “conclusive presumption” to widowers and thus extended benefits not provided for in the legislation. In California the court refused to extend benefits to widowers by using the “conclusive presumption” but rather denied that presumption to widows, thus withholding from widows the benefits of the legislation by requiring both widows and widowers to recover benefits only in proportion to proven dependency.

It appears from the opinions of the United States Supreme Court and the state courts in cases dealing with the same or similar matters, the courts have invalidated statutes by accusing Congress or state legislatures of “invidious discrimination” or of enacting statutes based upon “archaic and overbroad generalizations” which have “little relationship to present reality” or of casting female wage earners in a light which denigrates their economic contributions to their families’ support. In most instances the opinions do not rely upon evidence or empirical data to arrive at these self-serving conclusions.

On the other hand, the opinions which uphold statutes which, on their face, evidence different treatment and “discrimination” in favor of women utilize statistical data and speak of the legislation as serving the purpose of correcting past abusive discriminatory attitudes toward women.

On its face, sec. 287.240(4)(a) appears to favor a woman (widow) rather than discriminate against her, in that it affords the widow death benefits on her husband’s com-pensable death without further proof of dependency. At the time the law was first adopted we can be reasonably certain equal protection contentions were not as prevalent as today, yet it seems apparent that the purpose of the presumption was to favor widows, not to disfavor them. The data available to the general assembly at that time no doubt supported the concept that a widow was more in need of prompt payment of death benefits upon her husband’s death without drawn-out proceedings to determine the amount of dependency than was a widower. It seems reasonably certain that during the 1920’s and 1930’s it was more difficult than now for a woman to obtain employment with substantial pay and very difficult for her when, upon her husband’s death, she was suddenly thrust into the job market. It seems rather obvious therefore that the purpose of the conclusive presumption of dependency was to satisfy a perceived need widows generally had, which need was not common to men whose wives might be killed while working.

None of the cases cited by the parties in briefs, or by the court in this opinion, holds that there was no important governmental objective to be served by the conclusive presumption provisions when they were enacted. The governmental objective was to require employers to alleviate the economic hardship resulting from a working spouse’s death. This hardship was seen by the legislatures as more immediate and pronounced on women than on men. The statistics cited by the United States Supreme Court in Kahn v. Shevin, supra, appear to bear this out even today, and the claimant here has not shown any evidence or presented any empirical data to the contrary.

We do not believe the cases of Arp, Passante and Tomarehio, supra, articulate a sound basis for declaring the statute in this case violates the equal protection clause of either the Missouri or United States constitutions and therefore we decline to follow them. In so doing, we recognize the legislature must strike a delicate economic balance in deciding the amounts of compensation it will require employers to pay upon injury to or death of employees.

The widower is not deprived of death benefits upon the compensable death of his wife but is entitled to the same upon proof of dependency. In our opinion, the substantive difference in the economic standing of working men and women justifies the advantage that sec. 287.240(4)(a) administratively gives to a widow.

The judgment of the circuit court is reversed and the cause is remanded to the circuit court with directions to enter judgment affirming the decision of the Industrial Commission.

MORGAN, C. J., RENDLEN, J., and FINCH and HOUSER, Senior Judges, concur.

DONNELLY, J., concurs in result in separate opinion.

SEILER, J., dissents in separate dissenting opinion.

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

DONNELLY, Judge,

concurring in result.

Judges of state courts are bound to follow the “supreme Law of the Land” (Art. VI, Constitution of the United States). The “supreme Law of the Land” is only what the Supreme Court of the United States says it is. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); North Carolina v. Butler, - U.S.-, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

The issue on this appeal is, in part, whether § 287.240, RSMo Supp.1976, offends the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. The essential problem, as I see it, is that no identifiable “supreme Law of the Land” exists by which we may adjudicate a claim of alleged gender-based discrimination. Cf. Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977).

In this circumstance, I would turn to the issue whether § 287.240, RSMo Supp.1976, offends Art. I, § 2 of the Missouri Constitution.

In Poe v. Ullman, 367 U.S. 497, 542, 543, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), Mr. Justice Harlan, in dissent, speaking of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, expressed the view that “it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.” He then declared that “the liberty guaranteed by the Due Process Clause * * * is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints * * *, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. * *

In Missouri, “all political power is vested in and derived from the people” (Mo.Const. Art. I, § 1), and the power granted by the Constitution “is intended to promote the general welfare of the people” (Mo.Const. Art. I, § 2); but “all persons * * * are entitled to equal rights and opportunity under the law” (Mo.Const. Art. I, § 2). These provisions represent a balance which Missouri has struck between “the demands of organized society” and the entitlement of individuals to “equal rights and opportunity under the law.” In simplistic terms, it is the primary function of the legislative department to address “the demands of organized society,” and the primary function of the judicial department to assure individuals “equal rights and opportunity under the law * * Mr. Justice Harlan’s view would involve “particularly careful scrutiny of the state needs asserted to justify” a denial of “equal rights and opportunity under the law. * * Mr. Justice Harlan’s approach is not permissible in Missouri. The judicial department may not exercise any power properly belonging to the legislative department. (Mo.Const. Art. II, § 1).

The determination of a question whether “the demands of organized society,” as reflected by a particular statute, are sufficient to justify an abridgment of a right reserved to the people is an appropriate exercise of a governmental function by the legislative department and is entitled to considerable deference.

The determination of the extent to which a right reserved to the people may be abridged by a statute, if at all, is an exercise of the judicial function, and should be conclusive on the question of the constitutionality of that statute. The judicial department is the ultimate protector of the rights of individuals.

The problem of determining the extent to which a right reserved to the people may be abridged by a statute, if at all, is a difficult one. The “demands of organized society” are probably not relevant to the judicial inquiry. The protection of individual rights from abridgments by statute does not lend itself easily to the construction and application of a formula. Hopefully, the Bench and Bar will address the problem. Historically, in Missouri, gender-based discrimina-tions are held to be matters for legislative determination that cannot be considered by the courts. Brawner v. Brawner, 327 S.W.2d 808, 815 (Mo. banc 1959). In my view, the law should be changed so that, as a minimum, if a statute, which purports to satisfy the demands of organized society, invidiously discriminates between male and female persons, those demands and perceived needs should yield and the statute should be declared unconstitutional. King v. Swenson, 423 S.W.2d 699, 705 (Mo. banc 1968); Cf. Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

It is worth noting that “exclusive appellate jurisdiction in all cases involving the validity of * * * a statute or provision of the Constitution of this State” is in this Court (Mo.Const. Art. V, § 3). Until a formula evolves, the people of Missouri have a right to expect that the judges of this Court would not “draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function.” Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 208-209, 96 L.Ed. 183 (1952); see Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921).

In final analysis, “[e]ach new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed.” Poe v. Ullman, supra, 367 U.S. at 544, 81 S.Ct. at 1777 (Harlan, J., dissenting).

I concur only in the result.

SEILER, Judge,

dissenting.

I respectfully dissent. I would hold the statute unconstitutional as violative of the equal protection clause of both the Missouri and federal constitutions and would require death benefits be awarded surviving husbands on the same basis as they are presently awarded widows. I think the matter is well put in Passante v. Walden Printing Co., 53 A.D.2d 8, 11-12, 385 N.Y.S.2d 178, 180-81 (1976), as follows:

“[I]t is clear that the statute before us discriminates against the married woman whose employment contributes to the economic well-being of her family; whereas the working man, as a benefit of employment, is given the security of knowing that in the event of his work-related death; his widow, and therefore in most cases his family, will not suffer the loss of his entire income, the working woman is given no such guarantee .
“. . The disadvantage is most apparent in the present case, where Mr. and Mrs. Passante each earned approximately $200 per week. Had Mr. Passante died in a compensable circumstance, his family, through his widow, would have received, in addition to benefits payable on behalf of minor children, at least $156 per month . . . But because Mrs. Passante was the unfortunate victim, the family’s resources will be less by the aforementioned amount, simply because the statute arbitrarily classifies the husband as breadwinner and consequently categorizes the wife’s work as unimportant.”

The point is made in Arp v. Workers’ Compensation Appeals Board, 19 Cal.3d 395, 138 Cal.Rptr., 293, 563 P.2d 849, 855 (1977) in these words: “. . .On balance, the employed woman is short-changed. While her male colleagues are assured- that in the event of a fatal industrial accident their widows — even fully self-supporting widows — will receive a financial cushion, the employed woman can provide her husband with no such security. He will receive benefits only [to] the extent that he can prove dependency, and if he is himself employed he may be eligible for no supplemental death benefit whatever.”

The majority distinguishes Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Arp v. Workers’ Compensation Appeals Board, 19 Cal.3d 395, 138 Cal.Rptr. 293, 563 P.2d 849, and Passante v. Walden Printing Co., 53 A.D.2d 8, 385 N.Y.S.2d 178, on the basis that they adopt a strict scrutiny standard. Instead, the majority applies a “substantial relationship” test. It then goes on to hold that since more women than men are dependent on their spouses for support, the legislature was justified in requiring widowers of working women to prove support, but not widows of working men.

There are several flaws in this argument. First, while in Frontiero only four members of the court concurred that sex is a suspect classification, four other members of the court concluded that the discrimination presented in that case could not pass even a more lax standard. Frontiero, 411 U.S. at 691-92, 93 S.Ct. 1764. Thus, in Frontiero eight members of the court concluded that the statutory scheme was in violation of the equal protection clause because of the discrimination against women it permitted. As the description of Frontiero contained in the majority opinion makes clear, the discrimination present in that case and this one are remarkably similar. There, as here, the wife was entitled to benefits automatically while the husband would be entitled only upon proof of dependency.

Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) and Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), are distinguished on the basis that they dealt with the social security act and thus with a form of social insurance. However, in Weinber-ger the court stated:

“The gender-based distinction made by § 402(g) is indistinguishable from that invalidated in Frontiero v. Richardson . . . Schiesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 60 (1975), explained: ‘In . Frontiero the challenged [classification] based on sex [was] premised on overbroad generalizations that could not be tolerated under the Constitution . . . . [T]he assumption . . . was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not.’ Id., at 507, 95 S.Ct. at 577. A virtually identical ‘archaic and overbroad’ generalization, id., at 508, 95 S.Ct. at 577, ‘not tolerated under the Constitution’ underlies the distinction drawn by § 402(g), namely, that male workers’ earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families’ support.” 420 U.S. at 642-43, 95 S.Ct. at 1230-1231.

The majority states at the conclusion of its opinion:

“It seems rather obvious therefore that the purpose of the conclusive presumption of dependency was to satisfy a perceived need widows generally had, which need was not common to men whose wives might be killed while working.
“The widower is not deprived of death benefits upon the compensable death of his wife but is entitled to the same upon proof of dependency. In our opinion, the substantive difference in the economic standing of working men and women justifies the advantage that sec. 287.-240(4)(a) administratively gives to a widow.” (emphasis added).

The quoted portions of Weinberger make clear that the Supreme Court has rejected just such reasoning as that advanced by the majority in support of the result reached. Regardless whether the standard to be applied is one of strict scrutiny or substantial relationship, administrative convenience and overbroad characterizations of the male as the primary breadwinner cannot serve to counterbalance or justify “a gender-based distinction which diminishes the protection afforded to women who do work.” Weinberger at 648, 95 S.Ct. at 1233.

      . “(4) The word ‘dependent’ as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his wages at the time of the injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee and any death benefit shall be payable to them to the exclusion of other total dependents;
      (a) A wife upon a husband legally liable for her support, and a husband mentally or physically incapacitated from wage earning upon a wife; provided, that on the death or remarriage of a widow or widower, the death benefit shall cease unless there be other total dependents entitled to any death benefit under this chapter. In the event of remarriage, a lump sum payment equal in amount to the benefits due for a period of two years shall be paid to the widow or widower. Thereupon the periodic death benefits shall cease unless there are other total dependents entitled to any death benefit under this chapter in which event the periodic benefits to which said widow or widower would have been entitled had he or she not died or remarried, shall be divided among such other total dependents and paid to them during their period of entitlement under this chapter;”.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TWENTY-FIRST JUDICIAL CIRCUIT, BAR COMMITTEE, Movant, v. Brian J. FAHEY, Respondent.
    No. 61410.
    Supreme Court of Missouri, en banc.
    June 29, 1979.

      Thomas Cummings, Clayton, for movant.
    Mary Fiser, Clayton, for respondent.
   PER CURIAM.

This is an original proceeding and hearing on an Order to Show Cause why Brian J. Fahey should not be held in contempt of court for failing to comply with a subpoena issued by this court. The court finds respondent Fahey guilty of contempt of court.

At the request of the Bar Committee of the Twenty-First Judicial Circuit of Missouri, the court issued a subpoena dated February 5, 1979 wherein respondent Fahey was ordered to appear before the committee on the 28th day of February 1979 and was further ordered to: “produce in evidence any and all documents relating to the case of Bedwell v. A. J. F. Industries.”

In response to our Order to Show Cause, the respondent filed a return admitting that he “failed to appear before the Bar Committee of the Twenty-First Judicial Circuit on the 28th day of February, 1979 at the designated hour and place specified in the subpoena and as an excuse therefore stated that he did not believe that the Bar Committee of the Twenty-First Judicial Circuit was going to afford him the confidentiality he felt he was entitled to have under the rules of this court.”

Respondent appeared before our court in person and by counsel and the Bar Committee appeared by counsel. Oral arguments were heard. No briefs were filed or requested.

Respondent’s counsel conceded that there were numerous ways that respondent could have obtained a court ruling on any question of confidentiality which was in his mind. It is clear that the rules governing disciplinary proceedings before a Bar Committee do not limit an individual’s “right to seek any remedy afforded by law.” Rule 5.25. We note that Disciplinary Rule 4-101 of the Code of Professional Responsibility deals with attorney-client confidences (Rule 4) and Rule 5.22 governs the confidentiality of the investigations and formal hearings conducted by a circuit bar committee.

In In re West, 348 Mo. 30, 152 S.W.2d 69 (1941), this court was faced with a similar problem. Attorney Harvey T. West admitted his failure to appear before a bar committee in response to a subpoena and tried to excuse himself on the grounds that the testimony elicited from him might have incriminated him. The court stated that: “The disobedience of a lawful order of a court is such an interference with the administration of justice as to constitute a contempt.” Id. at 70.

After pointing out that the privilege against self-incrimination does not relieve a witness of the obligation to appear in answer to a subpoena, the court went on to say,

West, as a lawyer, must know this well established rule. His failure to obey our subpoena was highly improper, even more so because he is an officer of this court in his capacity as lawyer. The obligation upon a lawyer to respect the process of the court is certainly greater than that of a layman. Even a layman is under the strongest public duty, whenever he is properly summoned, to aid as a witness in the administration of justice. Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979. Furthermore, West violated his professional obligation of fairness to this court. Id. at 71.

The return indicated that on June 19, 1979, respondent had communicated with the chairman of the committee that he would now comply with the subpoena and would appear and produce all documents requested. It is regrettable that this offer of compliance came after the Order of this Court to Show Cause.

For the reasons stated, the court finds the respondent Brian J. Fahey guilty of contempt of the Supreme Court of Missouri and assesses fine in the amount of Five Hundred Dollars together with costs.


text:
    STATE of Missouri, Respondent, v. David Franklin EUELL, Appellant.
    No. 60583.
    Supreme Court of Missouri, En Banc.
    June 29, 1979.

      Robert Schwarz, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Appellant David Franklin Euell’s (hereinafter defendant) conviction of murder in the second degree and thirty-year sentence was affirmed by the Missouri Court of Appeals, Eastern District, after which we sustained defendant’s motion to transfer. Art. 5, sec. 10, Mo.Const., Rule 83.03.

Defendant does not challenge the sufficiency of the evidence. Only the facts necessary to resolution of the three points on appeal will be set forth.

Defendant and Eleanor First were married in 1968, had one child, and were separated in 1974, but not divorced. Eleanor lived in an apartment with one Lavina Williams. Eleanor had been dating Arthur Marty Carroll, the deceased, and this relationship caused several arguments and altercations between defendant and Carroll.

On February 15, 1974, the defendant went to Eleanor’s apartment. Carroll was' there, as was Eleanor, Lavina Williams, and the three-year-old son of the defendant and Eleanor. The testimony differs as to what preceded the shooting; however, defendant fired one shot which missed the deceased and then fired another shot which struck Carroll, killing him.

Prior to trial the state moved for disqualification of the judge of Division Six before whom the case was pending. The motion was sustained and the cause was transferred to Division Eight, Judge Hoester. A trial in Division Eight resulted in a hung jury and mistrial. Prior to the beginning of the instant trial, the defendant moved for disqualification of Judge Hoester, which was sustained, and the cause was then transferred to Division One, Judge Cran-dall.

One of the principal witnesses against defendant was Eleanor First. Eleanor and the defendant were still married at the time of the homicide but were divorced prior to trial. The question of Eleanor’s competency as a witness under sec. 546.260, RSMo 1969, against defendant arose before Judge Crandall prior to trial. The judge indicated he would sustain defendant’s objection to the appearance of Eleanor as a witness against defendant. The state then moved or requested Judge Crandall to disqualify, which he did, and the cause was transferred to Division Fourteen, Judge Ruddy, before whom the trial took place. Defendant made no objection to the transfer of the case to Judge Ruddy. Eleanor appeared and testified against defendant over the objection that she was not a competent witness under sec. 546.260.

The conference in Judge Crandall’s chambers was not recorded and the foregoing account pertaining thereto is derived from statements by the attorneys and Judge Ruddy during a hearing on post-trial motions.

I.

Defendant’s first point is that the state was not entitled to a second change of judge under rule 30.12 and because Judge Crandall disqualified himself at the request of the state defendant should have a new trial.

There was no objection to Judge Crandall disqualifying himself or to the transfer of the cause to Judge Ruddy. It is correct that a party is entitled to only one change of judge as of right, but any judge may, at the suggestion of a party, or on his own motion, disqualify himself if he believes himself to be in “anywise interested or prejudiced.” Rule 30.12. The point is overruled.

II.

Defendant’s second point is the court erred in allowing Eleanor First, who was married to defendant at the time of the homicide, but divorced at trial time, to testify against him under sec. 546.260, RSMo 1969.

In support of this point the defendant principally relies upon State v. Kodat, 158 Mo. 125, 59 S.W. 73 (1900). Mr. Kodat was charged with assault with intent to kill one Josephine Kritsch. Mr. and Mrs. Kodat were married and separated but not divorced at the time Mrs. Kodat witnessed the shooting. They were divorced prior to trial. The state called Mrs. Kodat as a witness and she testified over her former husband’s objection. This court put the issue on appeal as: “Is a divorced wife a competent witness against her husband in a criminal prosecution against him for an assault upon a third party, when the alleged assault occurred during their marriage?” That, of course, is the same issue as in the instant case.

The court in Kodat reviewed the common-law disabilities and the Missouri modifications thereof as exemplified by Rev. St. 1889, sec. 4218 (now sec. 546.260, RSMo 1969). The court said, “It is perfectly obvious . . . that, Mrs. Kodat would not have been a competent witness against him if she had remained his wife at the time she was offered as a witness against him.” With this statement, as will be seen, we agree. The court then went on to hold that she remained an incompetent witness after the divorce the same as if the marriage had never been dissolved and reversed the judgment. As will be seen, we disagree with this holding.

In overruling this point, the court of appeals relied principally upon State v. Frazier, 550 S.W.2d 590 (Mo.App.1977), and State v. Damico, 513 S.W.2d 350 (Mo.1974). The quotation used from Frazier is:

“A spouse is now a competent witness against a defendant spouse in any criminal proceeding if the witness spouse willingly testifies; the option of doing so belongs to the witness spouse; and a witness spouse is permitted, but may not be compelled, to testify in any criminal proceeding against a defendant spouse as to any relevant and admissible matter save confidential communications between spouses.”
And the quotation used from Damico is: “While at common law a wife was incompetent to testify against her husband that complete legal disqualification was removed by the enactment of the statute, now sec. 546.260, RSMo 1969, V.A.M.S.”

This court agrees that Eleanor was a competent witness against the defendant because they were not married at the time she testified and her testimony did not involve confidential communications. This case was transferred because we have concluded the basis upon which the court of appeals overruled the point is incorrect. That basis is found in the quotation from Frazier, supra, which is, in part, incorrect, and unless corrected promptly will contribute to error in the trial of criminal cases. The quotation from Damico, supra, seems to be receiving an overbroad interpretation and is likely to lead to error.

At common law a husband or wife was not a competent witness to testify either for or against the other spouse, nor was one spouse allowed to divulge confidential communications arising out of the marriage relationship. The rationale from which these rules evolved was twofold: the rule against the spouse testifying protected the marriage relationship and the confidential corn-munications rule encouraged full disclosure and trust between the parties to the marriage. A defendant spouse could waive the protection of the common law by failing to object at the time the other spouse was called upon to testify. These common-law rules relating to privileged communications between husband and wife have been codified in virtually all states and these statutes are usually merely declaratory of the common-law rule. 81 Am.Jur.2d, secs. 148,149; 38 ALR2d 570, 573.

Section 546.260, RSMo 1969, removed the common-law disability by permitting one spouse to testify on behalf of the other “at the option of the defendant spouse” in a criminal case; but the statute specifically retains the confidential communications privilege, “provided, that in no case shall husband or wife, when testifying under the provisions of this section for a defendant, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.”

Other statutory provisions have modified the common-law rule which precluded a spouse from testifying for or against each other even in civil cases. In Missouri, sec. 491.020, RSMo 1969, removes that disqualification completely in civil cases, retaining only the confidential-communication privilege.

A comparison between sec. 546.260 (criminal) and sec. 491.020 (civil) demonstrates the incompetency to testify is completely removed in civil cases so that the spouse may testify for or against the other spouse during marriage, but the criminal statute removes the disqualification only so as to allow the spouse to testify “at the option of the defendant . in his behalf” in a criminal case. Both statutes retain the confidential-communication privilege.

Federal courts recognize the distinction between the capacity of a spouse to testify against the other, or the incompetency of a wife to testify against her husband on the one hand, and the privilege of confidential-marital communications on the other. See: Annotation — Marital Communications Privilege, 95 L.Ed. 309. In so doing, while universally upholding the privilege as to confidential communications during the term of the marriage and beyond, it is recognized that the confidential nature of a communication between husband and wife is destroyed where it is made in the presence of third persons who are capable of understanding it. Anno., supra. Even after divorce, the confidential-communication privilege continues because of the policy underlying the rule, which is that confidence is essential to the marriage relationship and, therefore, the fear or concern of future disclosure must be removed. This is done by extending the privilege beyond the termination of the relationship. An act performed by one spouse in the presence of another can also constitute a confidential communication depending upon the circumstances in which the act took place. See: Annotation — Acts As Confidential Communications, 10 ALR2d 1389.

In Hawkins v. United States; 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), the United States Supreme Court held that it was prejudicial error to permit the government, over defendant’s objection, to use the defendant’s wife as a witness against him, even though she was a “voluntary” or “willing” witness. In its opinion, the court noted that Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933) rejected the disqualification excluding testimony by spouses for each other, and went on to say, 358 U.S. at 76, 79 S.Ct. at 138:

“The Funk case, however, did not criticize the phase of the common-law rule which allowed either spouse to exclude adverse testimony by the other, but left this question open to further scrutiny. 290 U.S. at page 373, 54 S.Ct. at page 212; Griffin v. United States, 336 U.S. 704, 714-715, 69 S.Ct. 814, 818-819, 93 L.Ed. 993. More recently, Congress has confirmed the authority asserted by this Court in Funk to determine admissibility of evidence under the ‘principles of the common law as they may be interpreted * * * in the light of reason and experience.’ Fed.Rules Crim.Proc., 26,18 U.S. C.A. The Government does not here suggest that authority, reason or experience requires us wholly to reject the old rule forbidding one spouse to testify against the other. It does ask that we modify the rule so that while a husband or wife will not be compelled to testify against the other, either will be free to do so voluntarily. Nothing in this Court’s cases supports such a distinction between compelled and voluntary testimony, and it was emphatically rejected in Stein v. Bowman, supra, a leading American statement of the basic principles on which the rule rests. 13 Pet. [209,] at page 223 [, 10 L.Ed. 129]. Consequently, if we are to modify the rule as the Government urges, we must look to experience and reason, not to authority.
“While the rule forbidding testimony of one spouse for the other was supported by reasons which time and changing legal practices had undermined, we are not prepared to say the same about the rule barring testimony of one spouse against the other. The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake was a belief that such a policy was necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well. Such a belief has never been unreasonable and is not now. Moreover, it is difficult to see how family harmony is less disturbed by a wife’s voluntary testimony against her husband than by her compelled testimony. In truth, it seems probable that much more bitterness would be engendered by voluntary testimony than by that which is compelled. But the Government argues that the fact a husband or wife testifies against the other voluntarily is strong indication that the marriage is already gone. Doubtless this is often true. But not all marital flare-ups in which one spouse wants to hurt the other are permanent. The widespread success achieved by courts throughout the country in conciliating family differences is a real indication that some apparently broken homes can be saved provided no unforgivable act is done by either party. Adverse testimony given in criminal proceedings would, we think, be likely to destroy almost any marriage.”

While Hawkins is not controlling precedent in Missouri, we believe it is sound and comports with most of our cases and the meaning of sec. 546.260.

However, a different question is presented where, as here, there has been a divorce between the time of the occurrence for which the defendant is on trial and the time the spouse is called upon to testify. In such instance, there is no longer any marital relationship or family peace which might be protected by excluding the former spouse from appearing as a witness for the prosecution. Most of the statutes which have been enacted regarding the competency of a spouse to testify appear to refer to the status of the parties, vis-a-vis each other— husband, wife — as of the time of the trial. Hence, where the marriage is dissolved at the time of the trial, and they no longer occupy that status, no reason appears why one should not be allowed to testify against the other. There is no longer any marriage that could be affected. (See, Annotation, 38 ALR2d at 575.)

The holding of State v. Kodat, supra, that even after divorce a former spouse may effectively object to the other former spouse testifying as to matters not within the confidential-communication privilege simply because of the former marriage is overruled.

The holding or pronouncement in State v. Frazier, supra, that during the marriage a spouse may testify for the prosecution, over the objection of the defendant spouse, if the testifying spouse does so voluntarily, is incorrect and should no longer be followed. Nor is it correct to say that a former spouse may, after divorce, refuse to testify solely on the ground that the event happened during the marriage.

In the instant case the marriage had terminated by divorce prior to the trial. The testimony of Eleanor First Euell did not involve confidential communications between her and the defendant. The trial court was correct in overruling defendant’s objection to his former wife testifying. The point is overruled.

III.

As his third and final point, defendant asserts the trial court “erred in giving paragraph 3 of Instruction 8, as the defense raised therein was not substantiated by the evidence and interjected a false issue . .” The record shows the instruction was requested by defendant. The point has no merit. Rule 26.06 and sec. 545.030, subd. 1(16), RSMo 1969.

The judgment is affirmed.

MORGAN, C. J., RENDLEN and SI-MEONE, JJ., and PINCH, Senior Judge, concur.

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

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

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

DONNELLY, Judge,

dissenting.

In State v. Kodat, 158 Mo. 125, 127, 129, 130, 59 S.W. 73, 74, 75 (1900), the Court posed the question: “Is a divorced wife a competent witness against her husband in a criminal prosecution against him for an assault upon a third party, when the alleged assault occurred during their marriage?”

The Court answered its question as follows:

“It is the policy of the law that these things which are privileged during the marriage relation shall remain forever inviolable, whether the relation has ceased by reason of death or divorce; and the divorced wife, from reasons of public policy, is incompetent to testify against her husband to the same extent that she would have been had the marriage relation never been dissolved. And such, we think is the overwhelming weight of authority.”

In my view the holding in Kodat was sound in 1900 and is sound today. I would not overrule it.

I respectfully dissent.

SEILER, Judge,

dissenting.

I respectfully dissent. The record shows that the state first moved for disqualification of Judge Ferriss in Division 6. This motion was sustained. This was change of judge number one for the state. Then, when the case was pending before Judge Crandall in Division 1, and after learning that Judge Crandall would rule against the state on a question of evidence, the state again filed a motion to disqualify the judge. This motion was also sustained. This was change of judge number two for the state. I find this set forth in the record by Judge Ruddy, who during the hearing on the motion for new trial, said: “The State of Missouri by the Prosecuting Attorney filed a motion to disqualify the Judge of Division Number One who was Judge Crandall and although his signature is not dated that motion was SUSTAINED by Judge Cran-dall and that cause was sent to Division Number Fourteen [Judge Ruddy’s division] and the trial commenced, of course, on March the 1st, 1976 . .” Both sides agreed this was the correct history. The respondent’s statement of facts is to the same effect.

Rule 30.12 states “Only one such affidavit [referring to an affidavit of disqualification of judge] may be filed by the same party in the same case and such affidavit shall be made as to only one of the judges of said court.”

Apparently the proceedings before Judge Crandall were in chambers with no reporter present and no record made. The state asserts defendant’s counsel made no objection at the time. I find this difficult to accept in the absence of a record to that effect, because what was happening to the defendant was that he was, by virtue of the state making an unauthorized affidavit for a second change of judge, about to be deprived of a judge who had indicated he was going to rule on an important evidence question in defendant’s favor, a ruling which probably would have meant the state would fail to convict defendant.

All the record shows on what occurred before Judge Crandall as to objection by defendant is the prosecutor’s statement at the hearing on the motion for new trial that “[I]t is my recollection, discussion arose and I stand corrected if I’m wrong, but Mr. Schwartz did not make an objection to Crandall’s disqualification at that time.” This is a rather equivocal statement.

Unfortunately, at that point in the hearing on the motion for new trial the court said, “Let’s go off the record” and when the court returns to the record, the next statement made is merely that the motion for new trial has been presented and argued. I do not believe it can be said on this record that Judge Crandall’s disqualification was made on his own initiative. On the contrary, it is quite clear that the state, contrary to rule 30.12, sought and obtained two disqualifications of judge in the same case. It is by no means clear, however, whether or not. defendant stood by in silence and acquiesced, as the state now contends. As said, it is hard to believe defendant would acquiesce in the state’s obtaining an unwarranted second change of judge where the second judge was going to rule an important evidence question in defendant’s favor. I would remand this case for an evidentiary hearing on the point with findings of fact to be made by the trial court and the cause then returned to this court before we decide the issues and permit the state baldly and unblushingly to violate rule 30.12.

      . “546.260. Defendant may testify in own behalf — husband and wife for each other. — No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a codefendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; provided, that in no case shall husband or wife, when testifying under the provisions of this section for a defendant, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.”


author: RENDLEN, Judge.

text:
    Clarence E. MUELLER et ux., Appellants, v. Franklin Oliver STORBAKKEN et al., Respondents.
    No. 60606.
    Supreme Court of Missouri, En Banc.
    June 29, 1979.

      John C. Milholland, Harrisonville, for appellants.
    Jack G. Beamer, Lee E. Wells, Kansas City, for respondents.
   RENDLEN, Judge.

This appeal turns on whether the so-called “rear-end collision doctrine” was available as a theory for the defense and if so whether defendants’ verdict-directing instruction, MAI 17.16 modified, properly submitted the “doctrine.”

Plaintiffs Mueller, husband and wife, sought damages from defendants Franklin Storbakken and the Land Construction Co. for injuries sustained when the front of the Mueller automobile struck the rear of the Land Construction Co. vehicle operated by defendant Storbakken. Judgment was entered on the jury’s verdict favorable to both named defendants and plaintiffs appealed. Plaintiffs first filed their notice of appeal in this Court contending that MAI 17.16 changed the substantive law in violation of art. V, § 5, of the Missouri Constitution. We transferred the cause to the Court of Appeals, Western District, for the reason no construction of the constitutional provision was required. The Court of Appeals reversed the judgment of the trial court and following that decision the case was transferred for consideration here as though on original appeal, art. V, § 10, Mo.Const.; Rule 83.09. We affirm.

The evidence, taken most favorably to the defendants’ verdict, fairly shows the following: The defendant Land Construction Company, owner of the lead vehicle involved in the collision, was the prime contractor to resurface and widen the shoulders on the westbound dual lanes of the four-lane divided U.S. Highway 50 for twenty-two miles in western Missouri and defendant Storbakken was the project superintendent. Though general work on the project had been temporarily halted, signs warning of construction ahead, flagman, and one-way travel, remained in place. The construction required drilling the asphalt for test core samples at several points and in the performance of that task defendant Storbakken arranged for one Taylor, a subcontractor’s employee, to drive a pickup truck with the core drill in tow to the sites designated for bore operations. As Taylor stopped to drill each core sample, Storbak-ken, following in an El Camino passenger pickup, stationed himself on the highway as flagman some three hundred feet behind.

Taylor had concluded the second of the test bores on the crest of a small hill or rise and was proceeding westwardly toward the next site on U.S. Highway 50 when trouble developed with the hitch on the rig he had in tow, causing him to stop his truck in the northernmost westbound lane some three hundred feet west of the hill crest where he had just drilled. Because the next site was some distance away, Storbakken, also westbound and some distance to the east, did not know Taylor had stopped on the highway until the pickup and drill rig came into Storbakken’s view as he reached a point about seventy-five feet east of the crest of the rise. Storbakken commenced to slow and as he topped the rise, moved slowly toward the Taylor vehicle standing in the lane ahead. About the time Storbakken saw Taylor stopped on the highway, he saw another westbound car two or three hundred feet behind him swerve south from the northernmost lane around his El Camino to avoid impact and continued to the west. Storbakken for the first time then observed the Muellers’ automobile which had been following about one hundred feet behind the intervening car. He saw the Mueller car apply its brakes and approach the rear end of his vehicle in a skid. It occurred to Storbakken to accelerate or take other evasive action, but concern for the safety of Taylor ahead and other traffic dissuaded him. The Mueller car, making 126 feet of skid marks, collided with the rear of Stor-bakken’s El Camino at a point about 150 feet west from the crest of the rise and about 150 feet east of Taylor’s truck and drill rig. Defendant Storbakken contended his vehicle was moving at the time of collision but Clarence Mueller testified he was stopped.

The testimony of plaintiff Clarence Mueller was that he was driving up the hill at a speed between 60 and 65 miles per hour though the investigating officer related that Mueller told him his speed was then between 65 to 70 miles per hour. In either case, however, Mueller was within the 70 mile per hour limit then in effect. Before he ascended the hill, Mueller was overtaken on the left by the other westbound vehicle which, still on the up slope of the small rise, re-entered the northernmost westbound lane about 125 to 150 feet ahead of the Mueller car. Plaintiff further testified he remained about that distance behind the other car and when the other car reached the top of the hill, he saw its tail lights flash and watched it swerve into the left lane. Mueller then saw the Storbakken truck for the first time and applied his brakes with all force in an attempt to stop. Storbakken and Mueller both testified that neither had a view of the other until the westbound car between them swerved.

The rear of the Storbakken car was equipped with four-way flasher lights which were in operation at the time of these events. Line of sight tests conducted by the officer at the scene disclosed that the flasher tail lights on an El Camino of the sort driven by Storbakken positioned at the point of impact could be seen for 324 feet from the east or 174 feet east of the crest of the rise as one proceeded westward.

At the close of the evidence, the court submitted as defendants’ contributory negligence instruction the “rear-end doctrine” as embodied in MAI 17.16.

The fountainhead of the “rear-end collision doctrine” in Missouri has been said to be Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914 (1942). See Doggendorf v. St. Louis Pub. Serv. Co., 333 S.W.2d 302, 305 (Mo.App.1960). Central States did not announce its holding as new “doctrine,” nor was it the first case in which the rear-end theory was discussed. See Hollensbe v. Pevely Dairy Co., 38 S.W.2d 273, 276 (Mo.App.1931); Jones v. Austin, 154 S.W.2d 378, 381 (Mo.App.1941). However, Central States apparently is the first instance in which a plaintiff submitted the “rear-end doctrine” in a verdict-directing instruction.

Originally the cases, including Central States, distinguished the rear-end “doctrine” from res ipsa loquitur, insisting that the “doctrine” submitted specific as contrasted with general negligence. Central States, 164 S.W.2d at 918; State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, 70-71 (banc 1948). In recent cases, however, the “doctrine” has been interpreted more broadly and it has been said, “A rear-end submission may be justified in automobile collision eases under circumstances warranting an inference of defendant’s negligence. As said in Lichtenberg v. Hug, 481 S.W.2d 527, 529 (Mo.App.1972), ‘. . . the doctrine approaches — if it does not reach — that of res ipsa loquitur in that under the circumstances in Jones [v. Central States Oil Co.] the fact of collision bespeaks the defendant’s negligence.’ ” Barlow v. Thornhill, 537 S.W.2d 412, 421 (Mo. banc 1976).

It follows from the recent development of the rear-end “doctrine” that its applicability is determined at trial in much the same manner courts approach the use of res ipsa loquitur in other situations. The court determines from all the evidence, taken in the light most favorable to the proponent of the theory, that the collision with the rear of the lead vehicle may be found to have occurred under circumstances which the court believes would permit the jury to draw an inference of negligence without proof of what action or omission comprised the negligence by the driver of the following vehicle. Such negligence can arise in relation to a plethora of duties imposed on a driver as he approaches hills or moves in the same direction as other vehicles; the situation existing from moment to moment determines the nature of those duties, which our law describes simply as the “care that a very careful and prudent person would use under the same or similar circumstances.” MAI 11.01. Thus a person has a duty not to follow a preceding vehicle too closely, Matthews v. Mound City Cab Co., 205 S.W.2d 243, 249 (Mo.App.1947); Binion v. Armentrout, 333 S.W.2d 87 (Mo.1960), a duty not to ascend a hill at too great a speed, Lyon v. Southard, 323 S.W.2d 785 (Mo.1959), and a duty to keep a lookout when approaching the crest of a hill, Hutson v. Highley, 384 S.W.2d 278 (Mo.App.1964); but a driver is not required to anticipate every danger which he may come upon over the crest of a hill, Scherffius v. Orr, 442 S.W.2d 120 (Mo.App.1969). Such general rules neither exhaust the duties of a driver in any particular situation nor admit of easy application after an accident has occurred. The rationale of the rear-end “doctrine,” when the evidence taken favorably to its proponent allows its submission, is simply that the party in the vehicle behind has a view of what is in front and can better explain why his vehicle struck the rear of the car ahead; the proponent is not required to identify in the verdict-directing instruction the act constituting the breach of duty or the particular duty breached.

In the case at bar, the circumstances relevant to the submission of the rear-end theory begin from the moment the auto in front of the Muellers flashed its brake lights and swerved into the left lane to avoid the Storbakken vehicle. This revealed the Muellers to be in line behind Storbakken and both drivers testified that was the moment each first saw the other. The evidence most favorable to Storbakken, as proponent of the theory, indicates that Mueller, when three to four hundred feet behind Storbakken, was traveling 60 to 65 miles per hour and Storbakken was moving forward slowly with his four-way flashers operating. The Mueller vehicle left 126 feet of skid marks, indicating it traveled 174 to 274 feet during the time Mr. Mueller reacted and chose his course of action before the skid. Assuming three-fourths of a second for reaction time, Koogler v. Mound City Cab Co., 349 S.W.2d 233, 237 (Mo.1961), at 60 m. p. h. the Mueller vehicle traveled 66 feet while he reacted, and 108 to 208 feet remained within which Mueller could have acted to avoid the collision before his vehicle started its skid. This 108 to 208 feet expressed as time based on a speed of 60 m. p. h. is roughly one and one-fourth to two and one-third seconds, representing the time available to Mr. Mueller to act in avoiding the Storbakken vehicle ahead, exclusive of the time it took to recognize the danger and the time his vehicle actually skidded. From this view of the evidence we cannot say it was error to submit the rear-end collision “doctrine” as a theory for the defense.

Appellants next attack the validity of MAI 17.16 on which defendants’ verdict-director was based, asserting that it changes substantive law in contravention of the limits of this Court’s rulemaking power under art. V, § 5 of the Missouri Constitution. As submitted, the challenged instruction reads:

Your verdict must be for defendants on Count I and Count III if you believe: First, plaintiff Clarence Mueller’s automobile came into collision with the rear of defendants automobile; and
Second, plaintiff Clarence Mueller was thereby negligent; and
Third, such negligence of plaintiff Clarence Mueller directly caused or directly contributed to cause any damage plaintiff . Clarence Mueller may have sustained. [MAI 17.16 (modified) and 32.01 (modified).]

Appellants vigorously contend this Court’s cases have established two elements of the rear-end “doctrine” which MAI 17.16 erroneously fails to embody. The first is that the proponent of the theory be found to have been operating his vehicle with the highest degree of care. In other words, according to plaintiffs-appellants, the proponent of the doctrine (here the defendant) has the burden of proving his freedom from negligence and that element should have been included in defendants’ main verdict-director. However, the two cases on which appellants rely announce no such requirement. In Central States, this Court ruled adequate plaintiff’s pre-MAI verdict-director which (paraphrased to omit unnecessary verbiage) required the jury to find the following in order to render a verdict for a rear-ended plaintiff:

1. Plaintiff was driving in his lane on a two-lane highway. [In the case sub judice, the presence of a divided four-lane highway neither diminished the following ear’s duty nor increased that of the lead car.]
2. Defendant was driving behind plaintiff in that lane.
3. Defendant “carelessly and negligently caused, allowed and permitted [his vehicle] to run into, strike and into collision [sic] with the rear end” of plaintiff’s vehicle.
4. The collision caused plaintiff’s injuries.

164 S.W.2d at 916-17. In view of the contributory negligence instructions submitted by defendant in Central States, the court there added the following proviso at the end of the verdict-director: “provided you further find . . . the plaintiff . was exercising the highest degree of care in driving and operating the said pickup truck hereinbefore mentioned.” Id. Central States is misconstrued if the last-quoted proviso is read as a necessary element of plaintiff’s case. Plaintiffs-appellants also point to later language in Central States which reads:

Instruction No. 1, here, did require a finding of plaintiff’s position in a place where he had the right to be, operating his car properly as required by the highest degree of care, together with his environment and other facts of the situation which showed he could not have been negligent, and then required the finding of the affirmative act by the defendant of driving its truck into that part of the highway and against the rear end of plaintiff’s car.

164 S.W.2d at 920. This quoted language does not set forth the instruction but instead attempts to explain the instruction’s meaning. The holding of the case that the instruction was adequate did not elevate the proviso added at the end as to the “highest degree of care” to the status of a necessary element of the plaintiff’s case on which plaintiff was required to bear the burden of persuasion.

Appellants also cite Rosenfeld v. Peters, 327 S.W.2d 264, 269 (Mo.1959), in which plaintiff’s vehicle turned left onto a highway in front of the defendant’s auto which then struck the plaintiff’s vehicle in the rear. The holding in Rosenfeld, however, concerned defendant’s pre-MAI “sole cause” instruction which countered plaintiff’s humanitarian theory of recovery. The court’s opinion that plaintiff’s proposed rear-end “doctrine” instruction was properly refused by the trial court entered the case only as guidance to the court below on retrial. Explaining why the proposed rear-end instruction was wanting, the court merely quoted the attempted explanation from Central States, 164 S.W.2d at 920 (quoted last above) that appellants in this case have relied on; no other explanation was offered for the opinion. Considering that this portion of Rosenfeld did not tie Central States to the instruction there approved, Rosenfeld cannot be read as authoritative precedent for appellants’ argument. Appellants cite no other cases for this particular point. Hence it cannot be said from the cited cases that MAI 17.16 fails to embody an essential element of the rear-end “doctrine” because it does not expressly submit the proponent’s duty to exercise the highest degree of care.

The second attack appellants make on MAI 17.16 is the same in effect as that we have just discussed. The argument is that paragraph “First” does not require a finding that the proponent’s vehicle was “in a place where [it] had the right to be.” Central States, 164 S.W.2d at 920. This language comes from the same portion of Central States we quoted above and significantly even the pre-MAI instruction there at issue did not include it. The phrase urged as necessary by appellants, requiring the front vehicle to be “in a place where [it] had the right to be,” can be taken at least two ways: it may express in a different set of words that the lead driver must prove he was exercising the highest degree of care, in which case our previous discussion disposes of the claim, or it may express the positional aspect of the rear-end “doctrine,” which appellant asserts would require there be an examination and recital of the facts in the instruction as to the respective positions of the vehicles. If plaintiffs-appellants are referring to this second meaning, their contention fails because the position of the automobiles is but one, albeit an important one, of the evidentiary matters to be considered by the judge in determining as a matter of law whether the case may properly be submitted under the rear-end collision theory. The judge must decide whether the circumstances as shown by the evidence most favorable to the proponent of the rear-end instruction “bespeak negligence.” Lichtenberg v. Hug, 481 S.W.2d 527, 529 (Mo.App.1972), quoted in Barlow v. Thornhill, 537 S.W.2d 412, 421 (Mo.banc 1976). Hence MAI 17.16 properly does not include such language.

Appellants rely on the language in the Central States and Rosenfeld opinions discussed above relative to the first attack on MAI 17.16, and contend that language also supports this, their second attack on the instruction. Appellants further rely on Clevenger v. Walters, 419 S.W.2d 102, 105-06 (Mo.banc 1967), for their argument that MAI 17.16 changed the substantive law by failing to submit whether the front vehicle was “in a place where [it] had the right to be.” Clevenger v. Walters held, as appellants correctly state, that the rear-end “doctrine” did require such an element be submitted to the jury. However, Clevenger handed down September 11, 1967, was not controlling law when MAI 17.16 was approved May 20, 1964, effective January 1, 1965. At the time MAI 17.16 became effective, it did not change the controlling substantive law as we have interpreted it from the Central States case, the “fountainhead” and oft-cited authority for subsequent cases. It is more correct to view Clevenger as a change in the substantive law of the rear-end “doctrine.” In any case, MAI 17.-16 cannot be held to have changed existing substantive law based on its failure to include a requirement laid down in a subsequent decision and Clevenger thus does not help appellants’ constitutional claim. We hold that MAI 17.16 represented (and still represents) a correct expression of the substantive law and that to the extent Clevenger v. Walters and other cases hold differently they are no longer to be followed, and we approve the trial court’s submission under MAI 17.16 in this case. We subscribe to the comment of the Court of Appeals in Warriner v. Eblovi, 485 S.W.2d 700, 703 (Mo.App.1972), referring to MAI 17.16: “The spirit and purpose of MAI in submitting only ultimate issues is complied with in [MAI 17.16].”

Though the contributory negligence instruction, MAI 17.16 as modified, was directed only against Clarence Mueller’s claims for his own injuries (Count I) and his loss of consortium (Count III), appellants assert that giving the instruction also led to error in regard to Marie Mueller’s claim for her injuries (Count II). They contend that under MAI 17.16 counsel for defendants was erroneously permitted to argue to the jury that Mrs. Mueller’s conduct as well as Mr. Mueller’s was negligent, notwithstanding that the instruction submitted only the contributory negligence of Clarence Mueller. Insofar as appellants contend that the alleged defects of MAI 17.16 allowed such argument and thus caused the alleged error, our approval of MAI 17.16 disposes of the contention. Insofar as appellants may be understood to assert that the argument should not have been allowed regardless of whether MAI 17.16 was defective or not, their claim is foreclosed from consideration by their failure to object to the allegedly erroneous argument at the time it was made. Blevins v. Cushman Motors, 551 S.W.2d 602, 615-16 (Mo.banc 1977). Appellants have not sought review of this point as “plain error.”

Finally appellants claim that the rear-end “doctrine” cannot be submitted as a contributory negligence instruction. Were appellants correct in their argument that the element of the proponent’s own freedom from negligence must be submitted to the jury, this conclusion could follow. But in light of the rationale here-inabove discussed and our disposition of their prior contentions, it must be rejected.

The judgment of the circuit court of Cass County is affirmed.

MORGAN, C. J., BARDGETT, DONNELLY and SEILER, JJ., SIMEONE, Special Judge, and FINCH, Senior Judge, concur.

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

      . Defendants’ main verdict director combined in modified form MAI 17.16 and 32.01.

      . In most other states where such cases have arisen, a Missouri “rear-end doctrine” case is submitted under other theories of specific negligence (failure to maintain a reasonable distance ahead, etc.). 2 D. Blashfield, Automobile Law and Practice §§ 113.12 — . 17 (3d ed. 1965). In appropriate cases, res ipsa loquitur is used. Compare 11 id. § 417.2 n. 69 and § 418.2 n. 49 (rev. 3d ed. 1977) with 11 id. § 418.3 n. 78. See also Jacobson, The Rear-End Collision Doctrine

        as a Theory of Negligence in Kansas, 28 U.M.K. C.L.Rev. 41, 51-52 (1960) (comparing Kansas and Missouri law).

      . In making this determination the trial court should be guided by appellate decisions as to when the rear-end “doctrine” is available, insofar as the decisions do not conflict with this case. Compare, e. g., Todd v. Presley, 413 S.W.2d 173 (Mo.1967) (not submissible when car ahead turned left onto highway and was followed by defendant only 100 feet), and Co-sens v. Smith, 528 S.W.2d 772 (Mo.App.1975) (not submissible when defendant was struck in rear and propelled into plaintiff ahead), with Witherspoon v. Guttierez, 327 S.W.2d 874 (Mo.1959) (submissible when car ahead deviated only slightly from straight forward course), and Wagoner v. Hurt, 554 S.W.2d 587 (Mo.App.1977) (submissible when car ahead turned to right onto highway and was followed by defendant more than 100 yards).

      . The trooper’s line-of-sight experiment revealed that Storkbakken’s flashers could be seen 324 feet from the rear of the point of impact. However, Storbakken testified he moved forward some fifty feet further down the rise after he first noticed the Mueller vehicle before he was struck. The trooper’s measurement thus is corroborative or at least not in conflict with Storbakken’s estimate of the distance between himself and the Muellers.

      . 60 miles per hour is the equivalent of 88 feet per second.

      . Art. V, § 5, read in part as follows prior to the amendment effective January 2, 1979: “The supreme court may establish rules of practice and procedure for all courts. The rules shall not change substantive rights, or the law relating to evidence, the oral examination of witnesses, juries, the right of trial by jury, or the right of appeal.”
      Acting under the authority of art. V, § 5, this Court promulgated the Missouri Approved Instructions (MAI), including MAI 17.16 (later amended on a point not material in this case), on May 20, 1964, and on the same date amended Rule 70 to mandate their use. Missouri Supreme Court Committee on Jury Instructions, Missouri Approved Jury Instructions xxxi (2d ed. 1969).

      . The language of the instruction as quoted in Central States read, “And further find from the evidence that on said second day of May, 1940, between seven and eight o’clock A.M., the said plaintiff was driving said pickup truck in a • southerly direction on said Federal Highway No. 63 and on the west and right hand side of the pavement on said highway and west of the centerline thereof, if you so find, at a point on said highway north of Axtel, Macon County, Missouri, if it was, mentioned in the evidence, and further find and believe from the evidence that on said May 2, 1940, and at said time and place, if you so find, the defendant was driving and operating a motor vehicle, to-wit, the motor oil transport mentioned in the evidence, southwardly on said Federal Highway No. 63 behind the said pickup truck plaintiff was driving, if you so find, and further find and believe from the evidence that on said day and at said time and place on said highway hereinbefore mentioned, the defendant carelessly and negligently caused, allowed and permitted said transport truck, if you so find, to run into, strike and into collision with [sic] the rear end of the said pickup truck plaintiff was driving, if you find from the evidence that it did so, and further find and believe from the evidence that as a direct and proximate result thereof plaintiff was injured, * * * then your verdict will be for plaintiff, provided you further find and believe from the evidence that at the time of and prior to said collision, if you so find, the plaintiff, Burley Jones, was exercising the highest degree of care in driving and operating the said pickup truck hereinbefore mentioned.” (Deletion in original.)

      . The use of “sole cause instructions” has been prohibited since January 1, 1965, the effective date of the Missouri Approved Instructions. MAI 1.03.

      . The majority in Clevenger relied on the following language of a certain passage in Central States which attempted to explain how the rear-end theory represented specific negligence: “Here the ultimate fact, ‘negligently caused’ the transport truck ‘to run into * * the rear end of the pickup truck,’ is no doubt stated in a way that would be too general if it stood- alone. But when the requirements are added that it must be further found that the transport truck was being driven behind plaintiff’s car, and that his car was ‘west of the center line’ when struck, then a rather narrow and simple issue was presented. This [issue] was: Did defendant’s driver run its truck into the rear end of plaintiff’s car while plaintiffs car was being properly driven in the part of the highway where it should have been and was entitled to be? This meant: Did defendant’s driver so carelessly guide its truck that he drove it against the rear end of plaintiff’s car, in attempting to drive around it as he said he intended to do? Surely this was an issue which the jury could understand as well as excessive speed or any of the matters of omission suggested as submissible by defendant.” 164 S.W.2d at 918. We are persuaded that the true meaning of the instruction at issue in Central States is contained in the sentence, “Did defendant’s driver so carelessly guide its truck that he drove it against the rear end of plaintiffs car, in attempting to drive around it as he said he intended to do?” This sentence expresses for Central States the rear-end theory which present MAI 17.16 embodies. Cleven-ger, however, was based on the immediately preceding sentence in the passage quoted above, “Did defendant’s driver run its truck into the rear end of plaintiff’s car while plaintiff’s car was being properly driven in the part of the highway where it should have been and was entitled to be?” Just as with the language from Central States earlier examined, this formed no part of the instruction approved in Central States. Clevenger also relied on the passage from Rosenfeld v. Peters examined above and on Snyder v. Hedges, 381 S.W.2d 376, 380 (Mo.App.1964). Snyder and other cases cited in it ultimately rest on the language from Central States we have discussed.

      . Marie Mueller filed no claim for loss of consortium.

      . In a case where the proponent is the defendant, the jury’s finding of his freedom from negligence would mean plaintiffs would lose aside from any contributory negligence on their part. Thus the instruction would be mere surplusage.


text:
    STATE of Missouri, Respondent, v. Edmund J. BRANSTUDER, Appellant.
    No. 29685.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.
    James W. Fletcher, Public Defender, Platte City, for appellant.
    John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge, Presiding.

Appeal from judgment on convictions by a jury of burglary, first degree, and assault with intent to kill with malice aforethought. The questions are whether the court erred in failure to suppress statements made by defendant; and whether the court committed reversible plain error in failure to conform the verdict-directing instruction on burglary to MAI-CR 7.20. Affirmed.

On March 21,1977, at approximately 7:30 p. m., Alvin R. Meadows, 82, was alone in his home in Riverside watching television. The house was unlighted; the doors were locked. He heard a noise at the rear of his house and went to investigate. As he approached the rear dining room door, it was kicked open and two men entered. He saw the two men as they stood in the kitchen by “the lights from the picture show sign” nearby. One of the men rushed him, hit him in the face, and knocked him to the floor. As he lay on the floor, one of the men hit him in the back and he felt severe pain. Both men disappeared; and, after waiting a few minutes, Mr. Meadows crawled to the telephone and called his son who, in turn, called the Riverside police. Mr. Meadows “couldn’t identify the boys at all” except that they were taller than he at five feet, six inches.

Officer William Trotter responded to the call for help and went to the Meadows home and was met at the door by Mr. Meadows. Mr. Meadows complained of pain in his back, and examination revealed a knife sticking out of his back. The handle of the knife was missing from the blade. Officer Trotter administered first aid during which he noted a second knife wound. Mr. Meadows was sent by ambulance to the North Kansas City Hospital where the knife blade was removed. Officer Trotter recovered and preserved the blade as evidence after it was removed at the hospital.

Officer William Zerbe also responded to the Meadows home. He observed a knife handle on the kitchen floor which he preserved as evidence. It appeared to have been broken off the blade in the victim’s back. Mr. Meadows had no knives with similar handles. Officer Zerbe recalled seeing a knife “which was very much in resemblance to the knife that was taken from the Meadows resident, approximately a month prior [February 23, 1977] in the apartment of Richard Logan” at 5129 Karen in Riverside, about an eighth or a quarter of a mile north of the Meadows residence. Officer Zerbe communicated this information to other Riverside officers, particularly to Captain Jerry Wingo.

Captain Wingo interviewed Mr. Meadows in the hospital shortly after the assault and obtained a description of his assailants as “two men in their late teens or early twenties,” and “approximately three hours after the stabbing, we went to the residence and arrested Mr. Richard Logan for investigation of felonious assault and battery.”

Captain Wingo learned that George and Edmund Branstuder were staying with Logan, and he returned to the Logan apartment at 11:30 a. m. the following morning, March 22, 1977. He found Edmund J. Branstuder, 19, and his brother George, 25, and arrested them for investigation of subject felonious assault and burglary. He also noted the presence of a jacket with blood on the front of it. Captain Wingo advised defendant of his “Miranda rights” at the Logan apartment and again prior to interrogation at the police station. Defendant stated that he understood the Miranda rights, and he was then interrogated from 12:07 P.M. to 12:31 p. m. Captain Wingo told defendant he probably would be requested to participate in a line-up for view by Mr. Meadows. “At that time he asked me again what condition Mr. Meadows was in. I informed him * * * that Mr. Meadows was listed in serious condition, but was expected to live. At that time Mr. Branstuder stated that he and his brother [George] had broken into Mr. Meadows’ home * * * to obtain some copper wire from the electrical fixtures. * * * He stated that he had knocked Mr. Meadows down * * * [and] that he did stab Mr. Meadows.” Captain Wingo recorded defendant’s statement on tape and had it transcribed. He played the recording for defendant and showed him the typed statement. Defendant advised him that “he could not read very well.” Captain Wingo explained that the statement was the same as the recording, went over its substance with defendant, and asked him if it was correct. Defendant signed both its pages and initialed the Miranda warnings.

Defendant took the stand to deny stabbing Mr. Meadows and to state that he was under the influence of drugs at the time of his arrest and interrogation and did not remember making or signing any statements. He named his brother and Richard Logan as the parties who broke into the Meadows home.

George Branstuder testified that he broke into the Meadows home with Richard Logan and that Logan stabbed Mr. Meadows. He repudiated prior statements which implicated defendant. Among these was the recitation of facts upon his guilty plea in which defendant was named as coactor in the burglary and stabbing. Officer Zerbe stated that George Branstuder told him that defendant had stabbed Mr. Meadows.

Appellant contends the court erred in its failure to suppress his oral and written statements “in that any such statements were tainted fruit of * * * unlawful arrest * * * and the statement * * obtained one and one half hours after * * arrest * * * was a direct result of * * arrest.” Appellant’s thesis is that his war-rantless arrest was unlawful because made without probable cause, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); that but a brief interval passed between his arrest and thus tainted statement, Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and that presence of Miranda warnings did not dissipate the taint, Brown v. United States, supra, 422 U.S. 603, 95 S.Ct. 2254. See also Davis v. Mississippi, 394 U.S. 721, 726, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

Appellant’s thesis does not provide a basis for reversal of his conviction.

Appellant recognizes that police officers may rely on information from other officers to supply probable cause for an arrest, Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); and that the question of probable cause is to be determined upon all the evidence bearing on the question, State v. Hohensee, 473 S.W.2d 379, 380 (Mo.1971).

Probable cause for a warrantless arrest exists “when the facts and circumstances within the arresting officer’s knowledge of which he has reasonably trustworthy information are sufficient to warrant a belief by a man of reasonable caution that the person to be arrested has committed a crime.” State v. Abbott, 571 S.W.2d 809, 813 (Mo.App.1978). See also State v. Wiley, 522 S.W.2d 281, 287[l-3] (Mo. banc 1975).

The test was satisfied in this case by the following factors: At the time defendant was arrested, the police knew that the burglary and assault had been committed by two “boys” or young men, more than five feet six inches tall; that a knife similar to the assault weapon had been seen a month earlier in Richard Logan’s nearby apartment on an occasion of his arrest; that defendant and his brother were staying at the Logan apartment; that some fifteen hours after the burglary and assault, defendant and his brother were at Logan’s apartment; and that a jacket with blood on it was present.

If, arguendo, defendant’s arrest was considered unlawful, his statements were not per se inadmissible because:

“Although under Wong Sun v. United States [supra] incriminating oral statements by an accused may be so intimately connected with the circumstances of an illegal arrest as to become tainted and inadmissible in evidence, that case does not hold that ‘all oral statements are the fruit of the “poisonous tree” simply because they would not have been made but for the illegal actions of the police. * * the Court in Wong Sun * * * indicates the view that a statement which is shown to have been freely and voluntarily made without coercion, either physical or psychological, may be thereby purged of any stigma of illegality and the statement is admissible.’ ” State v. Newell, 462 S.W.2d 794, 797 (Mo.1971), quoting from United States v. Close, 349 F.2d 841, 851 (4th Cir. 1965).

See also State v. Johnson, 530 S.W.2d 690, 693 (Mo. banc 1975).

The record demonstrates that defendant’s statements were made voluntarily without coercion. He was advised of his constitutional rights. There was no exploitation of the arrest; nor was there any showing of coercion. There was some evidence of spontaneity of statement prior to interrogation. See State v. Johnson, supra.

Appellant contends the court committed plain and reversible error under Rule 27.20(c) by Instruction No. 6 on burglary, first degree, “insofar as the said instruction was given in improper form and [thus] * * * was prejudicial and denied appellant a fair trial.”

Instruction No. 6 was in form MAI-CR 7.20, but it omitted the converse paragraph: “However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.”

The suggested error was cured in this case under Rule 20.02(e) because the court gave, at defendant’s request, a converse instruction in form MAI-CR 3.06, directed specifically to the burglary charge. State v. Knox, 529 S.W.2d 455, 463 (Mo.App.1975).

Judgment affirmed.

All concur.