author: DONALD L. MASON, Special Judge.

text:
    STATE of Missouri, Respondent, v. Ronald SHEETS, Appellant.
    No. KCD 29403.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Ronald Sheets, pro se.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SOMER-VILLE, J., and MASON, Special Judge.
   DONALD L. MASON, Special Judge.

As a result of a jury trial in the Circuit Court of Bates County, appellant was sentenced to six months imprisonment and a $500.00 fine for the offense of criminal trespass and two years for the offense of kicking a highway patrolman in the performance of his duties.

We are initially confronted with the State’s Motion to Dismiss the appeal for failure of the defendant to comply with Rule 84.04, V.A.M.R. Appellant having proclaimed a religious distrust and bias toward lawyers and the organized bar, and questioning their ethics and morals, represented himself throughout. Although a lawyer was appointed by the trial court to assist him, the defendant steadfastly refused to take advantage of this professional assistance. Were it not for the trial error which is dispositive of this appeal, we could agree with the State that defendant’s brief “violates every proscription to be found in Rule 84.04.” However, that error was adequately preserved and the State’s Motion is overruled. This trial error was brought to the trial court’s attention in the Motion for New Trial, Rule 27.20, V.A.M.R., State v. Perryman, 520 S.W.2d 126[15] (Mo.App.1975), and adequately briefed and brought to our attention, Rule 84.04, V.A.M.R., Sherwood Medical Industries, Inc. v. Building Leasing Corporation, 527 S.W.2d 407 (Mo.App.1975). Only a brief resume of the facts is necessary.

On June 2, 1976, defendant and many of his religious compatriots occupied the building housing the religious group known as the Church of Christ at Zion’s Retreat for the professed purpose of holding a prayer meeting. Prior to 1973 defendant and- his friends had been members of this sect, but an internal squabble touching upon philosophy and theology led to a Vernon County Circuit Court ordered dissolution and division of the church property with the church building being granted to the above named religious group. Defendant and his faction built their own church building across the road, 80 feet away, and adopted the name of Church of Our Christian Heritage. Apparently, the court action, even though by agreement, did not lessen the tension. On seeing defendant and his friends in the church building, Duane Gayman, the pastor and the president of the corporation which owned the church property, called the church lawyer, who, in turn, called the Vernon County Sheriff’s office. This precipitated the arrival of a multitude of law enforcement officers, including the sheriff, deputy sheriffs, state highway patrolmen and the prosecuting attorney. The prosecutor asked defendant and his friends to leave, as did Mr. Gayman. Their refusal prompted a somewhat forceful eviction. As defendant refused to abide by the repeated requests to vacate the church building, one of the law enforcement officers grabbed defendant and started to pull him from the pew. In being evicted defendant kicked a highway patrolman in the groin. There being no allegation that the evidence was insufficient to support the jury verdicts, this is an adequate synopsis of the background information which gave rise to the criminal charges filed against the defend-, ant and, also, represents an overview of the facts the jury could have found from the evidence adduced.

Subsequently, defendant was charged in the Vernon County Circuit Court with the misdemeanor offense of trespass under Section 560.447(1), and in a separate Information with the felony offense of assaulting a police officer in the performance of his duty under Section 557.215. Thereafter, with the consent of the defendant, an amended Information was filed which charged the defendant with the same offenses in a two count Information. By agreement venue was changed to Bates County. A jury drawn from the citizenry of that county' found the defendant guilty of both charges and assessed his punishment at six months in the County Jail and a $500.00 fine on the misdemeanor charge and two years at the Missouri Division of Corrections on the felony charge. Judgment was in accordance with the verdict. This appeal followed. Despite defendant’s declaration both ways, this Court does have jurisdiction of this appeal, Section 3, Article V, Missouri Constitution, as amended.

As stated, in both his Motion for New Trial and brief defendant mentions the cross-examination permitted of his witness concerning the religious beliefs of the Church of Our Christian Heritage and peripherally alludes to the prejudice resulting from that cross-examination. The extent and impact of that cross-examination can best be understood by setting it forth verbatim.

“Q Did you think it seemed strange for somebody to preach the eradication of Negroes and Jews in the name of Christianity?
MR. SHEETS: I object, your Honor.
THE COURT: That will be sustained unless there is some showing, Mr. Sanders.
Q (By Mr. Sanders) Does the Church of Our Christian Heritage and the Church of Christ at Zion’s Retreat, do you all share the same religious philosophies and theological beliefs?
A We used to.
Q Do you now?
A We share many of them, yes.
MR. SHEETS: I object, your Honor. He is trying to badger my witness.
THE COURT: Overruled.
Q (By Mr. Sanders) What does the Church of Our Christian Heritage believe in regard to Negroes? Do you share philosophies as to Negroes with the Church of Christ?
A Will you be specific?
Q What?
A Can you be more specific? I don’t know what you mean.
Q Does the Church of Our Christian Heritage believe Negroes have a soul?
MR. SHEETS: I would like to object on the grounds it is irrelevant and immaterial, your Honor.
THE COURT: This is cross examination. He is entitled to cross examine the witness, so your objection is overruled.
Q (By Mr. Sanders) Do you believe that?
A You asked me if I believe the Negro has a soul?
Q Has a soul. Is the Negro a person who can receive salvation through Jesus Christ the same as you? ⅞
A Well, in order to answer that question correctly, I would have to give some background.
Q Do you believe that they do or that they don’t?
A You put me in a difficult position.
Q Do you have a belief one way or the other?
A Yes, I do.
Q What is that belief ?
A It is that they are not of Adam and, therefore, they don’t have a soul.
Q How about Jews?
A Jews are not of Adam; therefore, they don’t have a soul. Now, if your meaning of a soul is the same as mine, that is like I said, without some preparation to answer a question like that might be stepping off in an abyss.
o* What is a soul?
<1 We are talking about whether the person was created with a body and mind or a body.
THE COURT: Excuse me. Mr. Sheets, that lady has to be quiet or she will be removed from the courtroom. If she wants to write notes to you, that is fine, but the Court will not tolerate any noise.
MR. SHEETS: Yes, sir. We beg your pardon.
THE COURT: You may proceed. Restate your question, Mr. Sanders.
<© (By Mr. Sanders) Is it your belief that to kill a Negro is essentially the same as killing a cow then?
<¡ No.
o* Do you feel that Negroes are God’s children then and should be treated better than animals and should be treated like people?
A You asked me two questions. Which one do you want me to answer first?
<y Answer them both.
< First one, do I think that they should be treated better than animals?
G* Yes.
<1 Yes, because they are created above animals. Second question, what was that again, please?
o* Should they be treated like other people?
A They should be treated like other people like themselves are.
O* Should they be treated like Mr. Sheets or like me or like yourself?
-< I would say, no.
Q* Why?
<! It goes back to how they were created. I believe you will find in Genesis, if I could make myself clear—
<y-You don’t believe God created man in his own image?
A I believe there were two creations of man and that is my religious belief.
<3? How about Jews?
MR. SHEETS: Your Honor, I would like to object on the grounds that Mr. Smith is not on trial. His religious beliefs are irrelevant to this case.
MR. SANDERS: Your Honor, I submit they are relevant to the issue of whether or not there is enough religious philosophy, theological consistency between this group and the Church of Christ at Zion’s Retreat that they should ever feel welcome to go over there.
THE COURT: The objection is overruled. He may answer the question.
A Maybe I could clear that up for you, Mr. Sanders, by saying that at one time the Church of Our — I am sorry, the Church of Christ at Zion’s Retreat used to believe exactly as we believe.
o* (By Mr. Sanders) As you believe now?
< As we believe now.
<y Duane Gayman used to preach this?
<! Duane Gayman’s father started it.
<y Did Duane Gayman ever preach it?
A Duane Gayman preached it.
o* Has it been preached in that church since 1973 or 1974, when the Court dissolved it and awarded the property of one church from the other one; has it ever been preached since then?
<t¡ I have never been there.
o» Why weren’t you there?
-⅜ Because I was over across the street at our own church.
o* That is right. Because you knew you weren’t welcome, is that right?
A Because I knew we were dissimilar beliefs.”

Generally, it is not proper to question a witness concerning his religious faith or beliefs unless relevant to some aspect of the case, State v. Jackson, 500 S.W.2d 306 (Mo.App.1973). The State seeks to justify on the four grounds that the interrogation was relevant to show trespass, that defendant opened the inquiry into religion, that the interrogation went to the bias and credibility of the witness, and even if erroneous, it was harmless as cumulative of previous testimony. Only the first ground was advanced during the trial. The State’s assertion that inquiry of religious beliefs was broached by the defendant is unfounded. In direct examination of the State’s first witness, Duane Gayman, inquiry was made as to the theological differences of the two factions. The testimony elicited was not as detailed as above set forth, except for one question to which an objection was overruled. The-inquiry was not opened by defendant, nor can it be supported by the record that the complained of cross examination was cumulative.

The trespass proscribed in the statutory section under which defendant was charged can be committed by entering on property after such entry has been forbidden by the owner, or, remaining on the property after having been ordered to leave. It was under the guise of proving these alternative elements that this cross examination was conducted. The Prosecutor was persistent in developing the witness’s religious beliefs. Note the Court’s comment in sustaining the initial objection.

The question to which the objection was sustained, and not answered, was philosophical in phrasing and could have no purpose other than to inject prejudice into the case, particularly when considered in the context of the subsequent, more specific questions on the same subject matter. The question is so full of venom the jury is poisoned regardless of the answer. This is akin to asking a male witness if he has stopped beating his wife. The next two questions and answers could conceivably tend to prove an element of the trespass charge, and no objection was voiced. The Prosecutor then immediately retreated to the specifics of the witness’s religious beliefs which is transferred to defendant by his admitted membership in the identified religious sect. Those questions and answers could have no conceivable purpose other than to inflame the jury and create prejudice against the defendant. Those questions are not phrased to prove an element of the trespass charge. The defendant objected on the grounds of immateriality and irrelevancy, which is a proper objection, State v. Jackson, supra. The response of the judge to that objection would cause all but the most experienced trial attorney to believe subsequent objections would be futile. In this instance the futility of a future objection is demonstrated as the court continued to overrule.

The inflammatory and prejudicial effect of this cross-examination is readily apparent when compared to other prohibited subject matter. In State v. Cavener, 356 Mo. 602, 202 S.W.2d 869 (1947), the Supreme Court held that persistent inquiry of the wife as to decedent’s membership in a Masonic Lodge was for the purpose of prejudicing the defendant and constituted grounds for reversal. In State v. Himmelmann, 399 S.W.2d 58 (Mo.1966), the same court reversed a factually strong assault conviction due to the receipt in evidence of a photograph showing a liquor bottle in defendant’s car, holding said evidence to be immaterial to any issue and its receipt prej-udicially erroneous. A witness for the State in State v. Baublits, 324 Mo. 1199, 27 S.W.2d 16 (1930), detailed the number and ages of the decedent’s children. Although reversed on other grounds, the court held this testimony should not have been admitted. To the same effect, see State v. Johnson, 349 Mo. 910, 163 S.W.2d 780 (1942). In State v. Edmonson, 371 S.W.2d 273 (Mo.1963), we have the converse situation with defendant complaining of error on the non-receipt of testimony touching upon his marital status, the exclusion of which was held to be proper. In State v. Butler, 309 S.W.2d 155 (Mo.App.1958), it was held the trial court properly excluded defendant’s proffered testimony of his “hard rais’n.” A new trial was granted in State v. Campbell, 507 S.W.2d 431 (Mo.App.1974), because of a witness’s descriptive testimony that “the chest cavity was similar to looking into a garbage can full of liver” as a result of a victim being shot with a .12-gauge shotgun at a distance of 12 feet.

It is difficult for us to conceive of testimony more prejudicial and inflammatory than that which equates the eradication of human beings with barnyard animals. The type of improper testimony demonstrated above pales in its comparison with the testimony received in this case. The trial court erred in the allowance of this prejudicial testimony and a new trial is mandatory.

This case being remanded for a new trial makes it unnecessary to rule on alleged instructional error, but a comment on the two verdict director instructions seems apropos so as to prevent repetitive use of those instructions. Section 560.605, Y.A. M.S., Laws of 1965, limits the fine that may be imposed at $500.00, not $1,000.00 as the jury was instructed. In a criminal case the jury must be correctly instructed on the range of punishment it may assess, State v. Adams, 532 S.W.2d 524 (Mo.App.1976); State v. Brown, 554 S.W.2d 574 (Mo.App.1977).

In the verdict director for the felony offense the jury was instructed, to paraphrase, that it need only find that the defendant kicked the highway patrolman while he was in the performance of his official duties. Section 557.215 requires the kicking be the willful act of the defendant. The defendant’s intent is an essential element and must be submitted to and found by the jury. There is no MAI-CR instruction for this offense, but a review of MAI-CR instructions 6.22 and 6.24 submitting assault with and without malice (§§ 559.180 and 559.190) is in order and offers guidance.

It is conceivable that the retrial of this case will result in further appellate review. With that eventuality in mind it seems proper to caution the appellant that although he has the constitutional right to represent himself, he is held to the same standard, of compliance with trial and appellate court rules and procedures as are those who are admitted to the practice of law, State v. Cooper, 541 S.W.2d 40 (Mo.App.1976); State v. Sterling, 536 S.W.2d 843 (Mo.App.1976); Commerce Bank of Kansas City v. Conrad, 560 S.W.2d 388 (Mo.App.1977).

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


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    In re ESTATE of Jesse (Jess) FUGETT, Deceased. L. D. GLENN, Jr., Executor, Respondent, v. Maggie J. FUGETT, Respondent, and Veda Elaine Jacobs and Helen Marie Jacobs, Appellants.
    No. 29417.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Richard N. Brown, Brown & Casey, Brookfield, for appellants.
    Michael L. Midyett, Midyett & Shea, Keytesville, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

L. D. Glenn, Jr., executor of the estate of Jesse (Jess) Fugett, filed a petition in the probate court in which he sought to establish title to a bank account. The petition alleged a controversy had arisen among the heirs as to whether or not the bank account should be included as an asset of the estate. The probate court determined the bank account was in the joint ownership of Jess Fugett and his wife Maggie Fugett so that the same became the sole property of Maggie on the death of Jess.

Elaine Jacobs and Helen Jacobs, daughters of Jess by a previous marriage, appealed to the circuit court. That court entered a judgment likewise finding Maggie was the owner of the account. This appeal follows.

The daughters Jacobs contend in this court the circuit court erred in not granting them a jury trial. Reversed and remanded.

While the petition of the executor Glenn did not designate it as being an action under § 473.340, RSMo 1975 Supp., for the discovery of assets the parties on this appeal treat the petition as one filed under that section. Such section provides for the filing of a verified petition in the probate court by an executor, administrator, creditor, beneficiary, or other person who claims an interest in personal property. The section further provides the service of summons and answer, together with all subsequent proceedings shall be governed by the rules of civil procedure. Another provision allows any party to demand a jury trial.

No demand for a jury trial was made in the probate court, but when the cause came on for hearing in the circuit court, the Jacobs demanded a jury trial. Without an explanation the court refused the demand and tried the case without a jury.

On this appeal the dispositive issue is the refusal of the trial court to order a jury trial.

In defense of the refusal of a jury trial, Maggie contends such action was justified for the following reasons: (1) the petition filed in probate court was not verified; (2) the Jacobs daughters were not joined as a party of record by order of either the probate or circuit court; (3) the Jacobs daughters failed to demand a jury trial in the probate court; and (4) the Jacobs daughters failed to file any pleading in the circuit court.

As noted, § 473.340 requires the petition to be verified. However, no objection was made to the lack of verification in either the probate or circuit court. The failure to object and proceeding to trial waived any defect the petition may have suffered by lack of a verification. Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81, 86[14] (1936).

Likewise no objection was made in either probate or circuit court to the failure to join the Jacobs as parties. Because she failed to raise this question in the trial court, Maggie has waived her right to complain in this court. Matter of Estate of Stickler, 551 S.W.2d 944, 949[1] (Mo.App.1977). The same result obtains on the failure of the Jacobs daughters to file an answer. Section 473.340 contemplates a petition and answer to be filed in the probate court, however, no objection was made in either court on the failure to file such pleading. When Maggie proceeded to trial without objecting to the failure to file an answer, this defect was likewise waived. Gregg v. Johnston, 546 S.W.2d 754, 756[4] (Mo.App.1977).

Maggie further contends the Jacobs daughters were not entitled to a jury trial in the circuit court because they failed to request a jury in the probate court. Section 473.340 provides for the action to be filed initially in the probate court. Such section allows any party to demand a jury trial. Of course, a party to an action brought under this section may appeal from the probate court to the circuit court under § 472.160, RSMo 1969. On appeal under § 472.250, RSMo 1969, the circuit court is possessed of a cause and shall proceed to try and determine the same anew. In short, a trial de novo is granted in the circuit court. While the action in the circuit court remains one under § 473.340, the trial in the circuit court is held as if none had ever occurred in the probate court. The provision allowing any party to demand a jury may be waived in either court or may be demanded in either court without regard to whether a jury was demanded in either court. Thus, the fact the daughters Jacobs did not demand a jury trial in the probate court constituted no bar to such demand in the circuit court.

The denial to Jacobs daughters of a jury trial requires a reversal and remand unless it can be said as a matter of law there is no issue of fact to be submitted to the jury. The facts adduced in the trial conducted by the court indicate there is a factual issue to be submitted to a jury. Jess Fugett opened a bank account in the Bosworth State Bank in January, 1965. A signature card was introduced in evidence which bore the following: “Below please find duly authorized signatures which you will recognize in the payment of funds or the transaction of other business on our account.” Below this statement appeared the signatures Jess Fugett, Maggie J. Fu-gett. No other writing appeared. The balance sheets on this account were introduced which bore the name “Fugett, Jess or Maggie”

It is apparent § 362.470, RSMo 1969, was not complied with, and, therefore, no statutory joint deposit was created. See Estate of LaGarce, 487 S.W.2d 493 (Mo. banc 1972). The rule to be applied in this case is stated in Fulton v. Fulton, 528 S.W.2d 146, 157, 158[28-31] (Mo.App.1975):

It matters not that the account did not designate them as being husband and wife, for they were that in fact at all times herein concerned. State Bank of Poplar Bluff v. Coleman, 241 Mo.App. 600, 609, 240 S.W.2d 188, 190 (1951). Under such conditions and irrespective of statutes relating to joint bank accounts [McIntyre v. McIntyre, 377 S.W.2d 421, 425[7] (Mo.1964)], the account and deposits thereto are presumed to be held in an estate by the entirety whether the husband or the wife or both furnished the monies that went into the account. In re Estate of Jeffries, 427 S.W.2d 439, 444[2] (Mo.1968); In re Estate of O’Neal, 409 S.W.2d 85, 90—91[2—5] (Mo.1966). Although the presumption is rebuttable, the evidence to overthrow it must be so strong, clear, positive, unequivocal and definite as to leave no doubt in the chancellor’s mind. In re Estate of Jeffries, supra, 427 S.W.2d at 444[3],

As the above statement from Fulton indicates, the account here is presumed to have created an estate by the entirety in Jess and Maggie regardless of which one or both furnished the money. The trial judge correctly indicated this view of the law and stated the hearing he held was to determine whether or not the daughters Jacobs could introduce sufficient evidence to rebut that presumption. Although the trial court did not believe the evidence sufficient to overcome the presumption of a tenancy by the entirety, it cannot be said a jury would reach the same conclusion.

In view of the disposition being made of this case, it is not necessary to discuss the other points.

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

All concur.

       Amended Laws 1977.


author: PER CURIAM.

text:
    Emmett L. WILLIMETZ, Petitioner-Respondent, v. Paulette J. WILLIMETZ, Respondent-Appellant.
    No. KCD 29463.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Dwight L. Larison, Kansas City, for respondent-appellant.
    Claude M. McFarland, Kansas City, for petitioner-respondent.

      Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

The court ordered a dissolution of marriage of Emmett Willimetz and Paulette Willimetz. Custody of the two children was awarded to Emmett and a division of marital property was ordered.

Paulette appeals and contends the court erred in awarding custody of the children to Emmett and in the division of the marital property.

The judgment is reviewable under Rule 73.01. A careful review of the record reveals the judgment is supported by substantial evidence and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). No error of law appears and an opinion would have no precedential value.

The judgment is affirmed in accordance with Rule 84.16(b).

All concur.


text:
    JO B. GARDNER, INC., Appellant, v. Ruth M. BEANLAND, Executrix of the Estate of Henry L. Beanland, Deceased, Respondent.
    No. KCD 29477.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Jo B. Gardner, Inc., pro se.
    William W. Hoertel, Law Offices of Hoertel & Wiggins, Rolla, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Jo B. Gardner, Inc. (Gardner) filed two claims, one for $10,000.00 and one for $1,788.34, against the Estate of Henry B. Beanland, deceased (Estate), in the Probate Court of Miller County, Missouri. The two claims were apparently consolidated for hearing by the Probate Court and on November 24, 1976, Gardner was allowed $200.00 on the larger claim and nothing on the smaller claim.

Although somewhat hampered by a gaunt record and comparably gaunt briefs, it appears that on December 2, 1976, Gardner timely filed an affidavit for appeal to the Circuit Court of Miller County with the Clerk of the Probate Court of Miller County. Secs. 472.180 and 472.210, RSMo 1969. The Probate Court of Miller County, Missouri, apparently entered an order pursuant to Sec. 472.230, RSMo 1969, within thirty days after Gardner’s affidavit for appeal was filed allowing the appeal, because certain portions of the record in the Probate Court were transmitted to the Circuit Court of Miller County, and the Estate thereafter, to-wit, on February 15, 1977, filed a motion in the Circuit Court of Miller County to dismiss Gardner’s appeal on the ground that the circuit court “has no jurisdiction in this cause”. An appeal bond pursuant to Sec. 472.220.2, RSMo 1969 , was not filed by Gardner until January 11, 1977, some forty days after it filed its affidavit for appeal. Shorn of all unnecessary trappings, the only argument advanced by the Estate at the circuit court hearing in conjunction with its motion to dismiss was that the circuit court lacked jurisdiction to entertain Gardner’s appeal because of its dereliction in not filing an appeal bond until after expiration of the statutory time for taking an appeal. Parenthetically, Sec. 472.180, supra, so far as here pertinent, provides that “[a]ll appeals shall be taken within thirty days after the decision complained of is made. . . ” The “decision complained of” was made by the Probate Court of Miller County on November 24, 1976, and Gardner did not file its appeal bond until January 11,1977. The Circuit Court of Miller County evidently subscribed to the Estate’s singular argument because it sustained the Estate’s motion to dismiss with the following order: “Case dismissed for lack of jurisdiction of this Court.” This appeal by Gardner followed.

Gardner contends on appeal that the filing of the appeal bond within the thirty day time limit for taking the appeal was not jurisdictional. The Estate on appeal rear-gues that Gardner’s failure to file the appeal bond within the thirty day time limit prescribed for taking its appeal rendered the appeal untimely and the Circuit Court of Miller County without jurisdiction to entertain it. Additionally, the Estate on appeal elaborates on the jurisdictional issue by arguing that Gardner’s failure (1) to “specify exactly the orders, judgments, or decrees appealed from . . . ”, as required by Sec. 472.210.1(1), RSMo 1969, and (2) to file with the probate court “a written designation of the record” it desired included in the “transcript to be transmitted to the circuit court . . as required by Sec. 472.-210.1(2), RSMo 1969, constitute further grounds to support the circuit court’s ruling that it lacked jurisdiction to entertain Gardner’s appeal from the Probate Court of Miller County.

Bearing in mind that the circuit court dismissed Gardner’s appeal on the narrow ground that it lacked “jurisdiction”, the thesis advanced by the Estate below and on appeal, the legal propriety of the circuit court’s order of dismissal will be reviewed and determined on appeal on the same narrow basis.

The court in In re Phillips’ Estate, 357 Mo. 947, 211 S.W.2d 728, 731 (banc 1948), with reference to an appeal bond involving an appeal from the probate court to the circuit court, held that the “requirement of § 287 of the statute respecting the giving of an appeal bond is not jurisdictional, and failure to give it is a mere irregularity.” The court in Amos v. Wetzel, 133 S.W.2d 361, 362 (Mo.1939), held that “the filing of a proper affidavit for appeal in the probate court is not a prerequisite to the jurisdiction of the circuit court . . . ”. Sec. 472.-230, RSMo 1969, in force and effect at the present time, as well as at all times in question in the instant case, provides, in part, that “[n]o appeal shall be dismissed in the appellate court because of a defective affidavit or bond or designation of record if the appellant files an affidavit and bond and designation of record to the satisfaction of the court in which the appeal is pending.”

The composite impact of In re Phillips’ Estate, supra, Amos v. Wetzel, supra, and Sec. 472.230, supra, compels this court to conclude that strict compliance at the probate court level with the requirement of Sec. 472.210.1(3), RSMo 1969, respecting an appeal bond pursuant to Sec. 472.220.2, supra, the requirement of Sec. 472.210.1(1), supra, respecting specific designation of the “orders, judgments or decrees appealed from” in the affidavit for appeal, and the requirement of Sec. 472.210.1(2), supra, respecting “written designation of the record” to be included in the “transcript to be transmitted to the circuit court”, was not a prerequisite to the lodging of jurisdiction of Gardner’s appeal in the Circuit Court of Miller County. Ergo, dismissal of Gardner’s appeal cannot be countenanced on the narrow ground that the Circuit Court of Miller County lacked jurisdiction to entertain it as urged by the Estate.

Judgment reversed and cause remanded.

All concur.

      . 472.220.2, RSMo 1969, provides as follows: “Every appellant, if he does not desire to stay the issuance of an execution on the judgment from which he appeals, shall file in the court the bond of himself, or some other person, in a sum and with security approved by the court, conditioned that he will prosecute the appeal, and pay all costs that may be adjudged against him.”

      . Sec. 287, RSMo 1939, so far as here pertinent, provided: “Every such appellant shall file in the court the bond of himself, or some other person, in a sum and with security approved by the court, conditioned that he will prosecute the appeal, and pay all debts, damages and costs that may be adjudged against him.”

      . Sec. 289, RSMo 1939, in force at the time of the events occurring in In re Phillips’ Estate, 211 S.W.2d 728, provided, in part, as follows: “but no appeal shall be dismissed in the appellate court for failure to file affidavit or bond, or because of a defective affidavit or bond, provided the appellant shall file the affidavit and a bond to the satisfaction of the court in which the appeal may be pending.”

      . Sec. 290, RSMo 1929, in force at the time of the events occurring in Amos v. Wetzel, 133 S.W.2d 361, provided, in part, as follows: “no appeal shall be dismissed in the appellate court for failure to file affidavit or bond, or because of a defective affidavit or bond, provided the appellant shall file the affidavit and a bond to the satisfaction of the court in which the appeal may be pending.”


author: SOMERVILLE, Presiding Judge.

text:
    Patty MACKLEY, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
    No. KCD 29552.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Richard E. Duggan, Duggan & Keleher, Kansas City, for appellant.
    Max W. Foust, G. Spencer Miller, Morris, Foust, Beckett & Ponick, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Plaintiff filed suit against defendant for “fraud and deceit”. The gravamen of plaintiffs action being that “defendant’s agents, servants and employees” fraudulently (fraud in the treaty as opposed to fraud in the factum) induced her to execute a general release as to all claims for damages for personal injuries sustained in an automobile accident on or about October 11, 1975, involving defendant’s insured. Defendant’s motion “to dismiss plaintiff’s petition for failure to state a cause of action for which relief may be granted” was sustained by the trial court and plaintiff appealed.

One epochal question — whether the relea-sor of an unliquidated tort claim can stand upon a fraudulently induced release and maintain an action for fraud and deceit for the damages growing out of the fraud practiced upon him — is presented on appeal.

It is axiomatic that a release is a species of contract. Using that as a starting point, plaintiff contends on appeal that general principles of contract law are determinative of whether her petition states a claim or cause of action under prevailing substantive law. One principle of contract law in particular is heavily relied upon by plaintiff, namely, that a party who has been fraudulently induced (fraud in the treaty) to enter into a contract has an election of remedies because a fraudulently induced contract is voidable. This basic principle of contract law has been pungently stated in Hostler v. Holland Furnace Company, 327 S.W.2d 532, 534 (Mo.App.1959) as follows: “There can be no doubt that the petition alleges fraud and deceit in the procurement of the contract. Under this state of facts, the plaintiff has two remedies. She may stand upon the contract and sue for damages growing out of the fraud practised upon her in the procurement of the contract, or she may elect to rescind the contract and sue to have the same cancelled.”

Although the above prevails in this state as a general principle of contract law, plaintiff’s reliance upon it as controlling authority in the instant case is misplaced as a specific exception or variation thereto has heretofore been judicially carved with respect to fraudulently induced releases of unliquidated tort claims. This exception or variation was carved in Lomax v. Southwest Missouri Electric Ry. Co., 106 Mo.App. 551, 81 S.W. 225 (1904). The trial court’s sustension of a demurrer to the petition of the plaintiff therein was affirmed on appeal. The court in Lomax reasoned that the plaintiff therein had no cause of action for fraud and deceit by reason of having been fraudulently induced to release an un-liquidated tort claim for personal injuries because the fraudulently induced release was void rather than voidable and therefore the releasor suffered no damage. This synoptic view of Lomax is garnered from the following portion of said opinion, 81 S.W. at 225-6: “The petition is thought to be without a precedent. It is noticeable that it is not an action to set aside a release obtained by fraud, and for a finding and judgment for plaintiff for the damages he had sustained by reason of the negligence of the defendant, but is for damages alleged to have sustained for the deceit in obtaining the release itself. Plaintiff relies on the case of Parker v. Marquis, 64 Mo. 38, and kindred cases, where it is held that: ‘A party defrauded on a contract may stand by it, even after he discovers the fraud, and recover damages resulting from the fraud; or may rescind the contract, and recover back what he has paid or sold.’ But this is an entirely different case. If the allegations of the petition are true — and for the purpose of the demurrer they must be so taken — the release is void both in law and in equity, and in executing the release the plaintiff parted with nothing. His original cause of action, which was the property, if any, in dispute, remains to him. The defendant is still liable to him for the damages he sustained, if any, notwithstanding the fraudulent release.” (Emphasis added.)

The reasoning behind the ultimate holding in Lomax appears highly cursory at first blush. A closer look, however, impresses one with the strength and depth of its pithy logic and reasoning. Since the releasor for a consideration merely settled his unliquidated tort claim without resort to litigation, he parted with nothing and stood undamaged if the release was induced by fraud. Under such circumstances his original cause of action remained viable and the releasee’s liability, if any, for damages sustained by the releasor as a result of the underlying tort was never discharged. In short, no damage inured to the releasor by reason of the fraudulently induced release.

Concededly, a split of authority exists among various jurisdictions concerning the issue at hand. The following cases are illustrative of jurisdictions holding that the releasor of an unliquidated tort claim may stand upon a fraudulently induced release and maintain an action for fraud and deceit for the damages growing out of the fraud practiced upon him: Urtz v. New York Cent. & H.R.R. Co., 202 N.Y. 170, 95 N.E. 711 (1911); Automobile Underwriters, Inc. v. Rich, 222 Ind. 384, 53 N.E.2d 775 (1944); Brown v. Ocean Accident & G. Corp., Ltd., of London, 153 Wis. 196, 140 N.W. 1112 (1913); Kordis v. Auto Owners Ins. Co., 311 Mich. 247, 18 N.W.2d 811 (1945); and Ware v. State Farm Mutual Automobile Ins. Co., 181 Kan. 291, 311 P.2d 316 (1957). The cases just cited principally turn on the fact that no pragmatic distinction is recognized between contracts in general and releases of unliquidated tort claims induced by fraud. The following cases are illustrative of jurisdictions holding that such actions may not be maintained: Taylor v. Hopper, 207 Cal. 102, 276 P. 990 (1929); Davis v. Hargett, 244 N.C. 157, 92 S.E.2d 782 (1956); and Shallenberger v. Motorists Mutual Ins. Co., 167 Ohio St. 494, 150 N.E.2d 295 (1958). These cases recognize a pragmatic distinction between contracts in general and releases of unliquidated tort claims induced by fraud and certain peculiarities attached to the latter are weighted as grounds for precluding maintenance of a separate action for fraud and deceit.

In addition to the sparse logic and reasoning facially indulged by the court in Lomax v. Southwest Missouri Electric Ry. Co., supra, other cogent and persuasive reasons may be marshalled to support the holding therein that the releasor of an unliquidated tort claim cannot stand upon a fraudulently induced release and simultaneously maintain an action for fraud and deceit for damages growing out of the fraud practiced upon him. The following are but a few examples which readily spring to mind. One, ordinary contracts and releases are not truly analogous because in the former a person subjected to fraud in the inducement has usually parted with something tangible while in the latter a releasor subjected to fraud in the inducement has actually parted with nothing as he can still maintain an action on the underlying tort. Two, it is illogical to say that a releasor claiming fraud in the inducement can simultaneously affirm the extrajudicial settlement of his claim for damages for personal injuries sustained as a result of the underlying tort and at the same time renege on his bargain and maintain an action for fraud and deceit when the measure of damages, if any, in the action for fraud and deceit is inextricably bound'with the question of liability and the nature and extent of the injuries involved in the underlying tort claim which was settled. Three, inherent difficulties cloud the measure and assessment of damages. Some of the difficulties are pointed up in Taylor v. Hopper, supra, 276 P. at 991: “The difficulty in determining the amount of damages is insurmountable. If the jury found a fraud had been committed upon plaintiff to induce her to give up her cause of action, how would it determine what amount, if any, she would have received from another jury, had she not compromised her action, but had proceeded to trial? And how could damages in the instant case be assessed without some measure of what would have been accorded to plaintiff in the original action, had she proceeded to trial?” Four, if a releasor claiming fraud in the inducement stands on the release (retains the fruits of the settlement) and brings an action for fraud and deceit and fails to obtain a verdict in his favor, an absurd and unjust result has been legally foisted because the releasee for all practical purposes was held to the release while the releasor for all practical purposes was released therefrom (as evidenced by his bringing a fraud action which inextricably involves the underlying tort claim) without parting with any consideration. Such a result does violence to the proposition that equality of application is the quintessence of a fair and reasonable legal principle.

Plaintiff argues that Metropolitan Paving Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815 (banc 1925), although not expressly overruling Lomax v. Southwest Missouri Electric Ry. Co., supra, seriously questions the wisdom of and the rationale behind the result it reached, and for that reason Lomax should no longer be followed. A careful reading of Metropolitan Paving Co. reveals that it makes merely a passing reference to Lomax and holds that “on the facts stated”, i. e., the facts in Metropolitan Paving Co., Lomax is “unsound”, i. e. inapplicable. Beyond question, the facts in Lomax and the facts in Metropolitan Paving Co. are readily distinguishable, thus accounting for the terse statement in Metropolitan Paving Co. that “on the facts stated” the ruling in Lomax is “unsound”. Metropolitan Paving Co. involved assignment of a contract whereby the plaintiff therein agreed to sell and one defendant therein agreed to purchase from plaintiff, at par, certain bonds of the city of Marysville, Kansas, which plaintiff was to receive for performance of a paving contract. Said defendant, in return, was to advance the necessary money to plaintiff to pay the expense of the work in progress before the bonds were issued. The assignee of the contract was a co-defendant who subsequently contracted with the plaintiff that in return for providing plaintiff the necessary money to perform the paving contract with the city the plaintiff would sell said bonds when issued to co-defendant at ninety-six cents on the dollar. Plaintiff’s assignment of its rights under the original contract with defendant was made a condition of the subsequent contract entered into with the co-defendant. Plaintiff claimed that the assignment was fraudulently induced by both defendant and the co-defendant. It is patent that the assignment under attack in Metropolitan Paving Co. can be broadly characterized as an ordinary contract rather than a particular species of contract as is a release. Moreover, the measure of damages in Metropolitan Paving Co. was readily ascertainable as the bonds in the contract which plaintiff assigned were to be purchased at par from plaintiff while the assignee of the contract was obligated to pay plaintiff only ninety-six cents on the dollar for said bonds by virtue of its contract with plaintiff.

This court concludes that the logic and reasoning undergirding Lomax v. Southwest Missouri Electric Ry. Co., supra, remain sound, and that Lomax has not been vitiated or overruled by Metropolitan Paving Co. v. Brown-Crummer Inv. Co., supra. Therefore, subscribing to Lomax v. Southwest Missouri Electric Ry. Co., supra, as properly enunciating the substantive law of this state applicable to and controlling the issue at hand, this court holds that plaintiff’s petition fails to state a claim or cause of action against the defendant and the trial court properly sustained defendant’s motion to dismiss said petition.

Judgment affirmed.

All concur.