author: WASSERSTROM, Judge.

text:
    In the Matter of the ESTATE of Almeda ANDERSON, Deceased. James P. AYLWARD, Administrator, et al., Respondents, v. Syble REIFSTECK and Glenn Reifsteck, Appellants.
    No. KCD 27861.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 4, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      C. John Forge, Jr., Independence, for appellants.
    Edward L. FitzGerald, Eileen S. Sullivan, Joseph H. Moore, Kansas City, for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

A number of the heirs of Almeda Anderson instituted this proceeding to discover assets in the Probate Court of Jackson County, Missouri, pursuant to § 473.340 RSMo Supp.1973. (All other statutory references in this opinion are to RSMo 1969). The petition alleged that defendants Glenn Reifsteck and his wife Syble Reifsteck had concealed and withheld from the estate certain enumerated property of the deceased. The Probate Court certified the issue to the Circuit Court of Jackson County on its own motion for the reason that probable cause existed to believe that any judgment rendered in the Probate Court would be appealed. The individual petitioners (a brother of the deceased, and a number of her nieces and nephews), just prior to closing arguments, renounced their interest in any recovery and stated that any money judgment should be found in favor of Stanley L. Morris as Public Administrator of the estate. The jury returned a verdict and judgment was entered that “plaintiff have and recover of and from the defendants the sum of Ninety-Nine Thousand Nine Hundred Ninety-Five ($99,995.00) Dollars, together with the costs. . . . ” Glenn and Syble Reifsteck appeal. On motion filed in this court, James P. Aylward, the present Public Administrator, has been substituted as a party in lieu of Morris, his predecessor in office.

The facts, viewed, as they must be, in the light most favorable to the jury verdict, are as follows. Mrs. Anderson, known to her friends and relatives as “Allie,” had, since the death of her husband in 1962, lived alone in Independence, Missouri, in a duplex which she owned. Although she was well off — her probate estate, excluding the bulk of the transferred assets now in dispute, amounted to $127,000 — Mrs. Anderson was extremely frugal by nature. She often bought her clothes at garage sales, she skimped on groceries and would have the neighbor children bring her food, and when she and her friends went out to lunch, she would limit the amount that she spent on her lunch to $1.00. Mrs. Anderson seldom made gifts, and was advised by her husband before he died not to make loans, advice which she followed religiously. Her money was largely scattered in various savings accounts with a.lesser amount invested in stock. Her closest living relatives were her brother and a number of nieces and nephews who lived in St. Louis and in Arnold, Missouri. She had a number of friends in Independence whom she saw frequently.

In July of 1973 she became ill and on July 12 was taken to the Independence Sanitarium from whence she was released July 21, her ailment diagnosed as a slight stroke (as well as hypertension, arteriosclerotic cardiovascular disease) from which she had not fully recovered. The hospital records indicate that one of her symptoms was a confusion and a lack of orientation. Although not fully able to fend for herself, she did not want to pay the money necessary to hire someone to care for her. Layard Reif-steck, a nephew, visited Mrs. Anderson for a few hours on the day that she was released from the hospital as he and his family were passing through Independence on a vacation to Colorado. The next day, July 22, Kathryn Moore, one of Mrs. Anderson’s friends, called the home of another of Mrs. Anderson’s nephews, Glenn, and told Syble, his wife, of Mrs. Anderson’s condition. Sy-ble packed immediately and, with her daughter Michelle, caught a plane from her home in Arnold to Kansas City. When Syble and her daughter arrived, Mrs. Anderson was unable to answer the door and her condition was described by friends as very poor.

Syble had left her home in Arnold without telling her husband, Glenn, who had been out of town on business when she left. One of Mrs. Anderson’s friends, Pauline Bruns, overheard her conversation with Glenn in which she called to tell him of her whereabouts and that he should join her immediately, because they had a chance to “get (their) name on this house, this duplex.” Glenn joined his wife and daughter at the home of Mrs. Anderson on July 23. The next day, instead of encouraging Mrs. Anderson to rest, they procured a wheelchair and took her to visit the bank and the title insurance company. At the First National Bank of Independence, they entered Mrs. Anderson’s safe deposit box where Glenn found her will, and announced after reading it that the will, being five years old and naming a number of individuals who were no longer alive, was no longer any good. Glenn’s name was added as a deputy to the safe deposit box, and the group proceeded to the St. Paul Title Insurance Company where a deed to the duplex was drafted wherein Mrs. Anderson conveyed the duplex to herself and Glenn Reifsteck as joint tenants. In the next few days, a number of financial transactions either took place or were begun; Mrs. Anderson opened a joint account for herself and Syble Reifsteck; $70,489.30 in funds which had been scattered in seven savings and loan associations were placed for collection to be consolidated; and stock transfer and assignment forms were drawn up but not executed.

On August 3,1973, Layard and his family stopped again to visit Mrs. Anderson on their return trip from the Colorado vacation. They spent an enjoyable evening, stayed the night and departed amicably the following day. During the visit, Syble had occasion to make a number of remarks on Mrs. Anderson’s wealth.

In the next week, the $70,489.30 which had been collected by the First National Bank of Independence from the seven savings and loan associations was put into a certificate of deposit, which would yield higher interest than the isolated savings accounts. This was done even though Mrs. Anderson had earlier rejected any alternative which would increase her money’s yield because she didn’t want to pay any more income tax.

On August 11, one week after their last visit, Layard and his wife returned to Independence to visit Mrs. Anderson but got a much different reception this time. They approached the house and were greeted by Glenn and Syble on the front porch with the news that Mrs. Anderson did not want to see them. They talked quietly for a few minutes when Mrs. Anderson’s friends, Ed and Pauline Bruns, arrived, having been warned by Syble that they should get “over here quick, because they (Layard and his wife) will cause trouble and Aunt Allie will be sicker than ever.” A few minutes later, the police arrived. Mrs. Anderson had summoned the police to remove Layard from the premises. She came to the door only long enough to confirm to the police her desire that these people leave, and to say “Layard, I’ve heard a lot of things.”

In the following days, Syble refused to allow relatives to visit Mrs. Anderson and even many of her close friends were not allowed to see her. Syble answered the phone and screened Mrs. Anderson’s phone calls. She saw only those who Syble wanted her to see, and heard only what Syble wanted her to hear. She was told that all of the other relatives were “pretty bad people”; that two of the nieces had wanted to put their mother in a nursing home (Mrs. Anderson had a fear and a dislike of all medical institutions); that one nephew was a “no good son-of-bitch”; that her living brother, Henry, was dead; that her good friend, Kathryn Bullard, was after her money and had stolen a pass book and a quilt. During all of this time, Mrs. Anderson could not get around without the help of Syble or Glenn, and relied upon them for all her needs including nursing, meals, laundry, opening the mail, and getting business done.

On August 13, Syble took Mrs. Anderson to a lawyer in Independence to make a new will. This revised will left $10,000 to the Masons (her husband had been a Mason) and the same amount to her church, $20,000 to her friend, Kathryn Moore, $3,000 to each of three other friends, $5,000 to yet another friend, and $100 each to two nieces and one nephew. The will named her lawyer as executor and specifically bequested $5,000 to Glenn. The residue of the estate was left to Syble.

A friend, Kathryn Moore, who visited Mrs. Anderson on August 22, noted that her condition had worsened; she couldn’t get up at all, she had to have people carry her to the bathroom a number of times during the visit, she had extremely high blood pressure (300/100 — the highest that Mrs. Moore’s equipment would register), she couldn’t talk, and her complexion was ashen in color. Another friend noted Mrs. Anderson’s weakened condition and observed that she was incapable of carrying on a conversation. At this time, another series of financial transactions began. On the afternoon of August 22, Syble took Mrs. Anderson to First Federal Savings to withdraw her balance there. On the morning of August 23, Glenn and Syble took her to Arnold, Missouri. A series of checks, dated August 20, 22 and 24, were drawn and made payable to Syble, totaling $43,000, which were in addition to a previous check in the amount of $5,000 drawn on July 30, 1973, payable to Syble. On August 23, Glenn entered the safe deposit box and cleaned it out. Various accounts held by Mrs. Anderson in Independence were closed and the funds forwarded to a bank in St. Louis (which is near the home of Syble and Glenn) for deposit in a time certificate.

On September 13, Glenn took Mrs. Anderson to have another will drafted in St. Louis. That will, in which Mrs. Anderson signed her last name on page two as “Ad-derson” was different from the will dated thirty days before in that Kathryn Moore’s devise was cut from $20,000 to $10,000, the Masons, the church and Mrs. Clary were cut out entirely and each of the nephews and nieces (other than Glenn) received $100. Glenn was appointed executor in addition to receiving the $5,000 bequest. The residuary estate, which had increased considerably by reason of reduction of specific bequests, went to Syble.

On September 14, the day after executing the will, and after staying at Glenn and Syble’s house for three weeks, Mrs. Anderson entered Missouri Baptist Hospital in St. Louis County. Although 73, she gave her age as 68 and could not give a medical history. Examinations showed that she was somewhat confused and disoriented and had lapses of memory. The hospital medical records contain a report dated September 19, 1973, relating that “medical status examinations reveal that the patient is oriented to the year and the month but is unable to state the day of the week correctly. She is unable to recall the name of her present attending surgeon and cannot recall the name of her referring physician. She is able to state her full name but is unable to give the year of her birth. She is unable to do serial sevens and cannot count backwards from ten. She is able to repeat, in order, four numbers correctly but is unable to repeat five numbers.”

About the same time that Mrs. Anderson entered the hospital, the stock transfer forms which had been drawn up earlier were executed and stock certificates worth in excess of $20,000 which had been taken from the safe deposit box by Glenn, were given to Glenn by Mrs. Anderson. A number of other checks passed hands in the next few days, and a new joint account was opened in the names of Syble and Mrs. Anderson, with an initial deposit of $26,484. Syble called the First National Bank of Independence several times and requested that the proceeds of the $70,489.30 certificate of deposit taken out by Mrs. Anderson in August be forwarded to her. The bank refused to forward the funds without speaking personally to Mrs. Anderson, which contact was never made. Mrs. Anderson had funds of over $16,000 in the Vendo Credit Union. On September 21, 1973, the Union received a sight draft for that deposit with accrued interest to be paid to the newly opened St. Louis bank account in the joint names of Syble and Mrs. Anderson. That draft, however, was never paid by the Vendo Credit Union because of the quality of Mrs. Anderson’s signature.

Mrs. Anderson died in the hospital on September 24, 1973. Syble then called one of Mrs. Anderson’s friends in Independence, and the friend notified Mrs. Anderson’s other friends and relatives who had not even been informed that she had been in the hospital.

Defendants Reifsteck list seven Points Relied On in their brief. Of those, Point II complains of Instruction No. 3 and Point VI asserts error with respect to the giving of Instruction No. 2. However, defendants have not set forth either of those Instructions in the argument portion of their brief as required by Rule 84.04(e). These points therefore present nothing for review and will not be further noticed. State v. Tash, 528 S.W.2d 775, 783[28] (Mo.App.1975); State v. Mesmer, 501 S.W.2d 192, 197[12] (Mo.App.1973); Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87, 91[6] (Mo.App.1972). The other Points Relied On will be discussed in order.

I.

In their Point I, defendants assert that the trial court “erred in setting the trial at a time and place which prevented defendant Sybil [sic] Reifsteck to be present and to defend herself.” The facts with respect to this contention are as follows. On motion of the petitioners, the trial court advanced the case on the docket and set it for trial on November 18, 1974. Defendants’ attorney then filed a motion for continuance based upon his engagement on the same date in a lower numbered cause, and this case was thereupon postponed until December 2, 1974.

Then on November 26, 1974, defendants filed another motion for continuance of which the following constitutes a full quotation: When the trial court overruled that motion and indicated that the case would have to proceed to trial as set, defendants filed application to this court for writ of prohibition. A stop order was issued and thereafter the parties filed briefs and supporting documents in this court.

“Comes now the Respondent and for their [sic] Motion for Continuance states to the Court as follows:
“1. That the Respondent is in need of continuance because the Respondent, Sybil [sic] Reifsteck is presently confined to a hospital in Springfield, Missouri under orders of the United States District Court for the Eastern District of Missouri for a period of sixty days (60) and is unable to attend trial set on this cause on December 2, 1974.
“WHEREFORE, Respondents [sic] pray for an order of the Court for continuing the case until such time as Respondent has been released from the hospital.”

From the file in the prohibition case, of which this court takes judicial notice, it appears that Syble Reifsteck was indicted by a federal grand jury in St. Louis on September 18, 1974, for violations of the federal counterfeiting statutes. In connection with that criminal proceeding, the federal district judge on November 21, 1974, ordered that Syble Reifsteck be sent to a federal hospital facility in Lexington, Kentucky, for examination into her mental condition, that examination to be completed and a report submitted to the district court within sixty days. The petitioners in this proceeding filed brief in this court arguing that the funds which Syble Reifsteck and her husband had obtained from Mrs. Anderson could well be dissipated in the defense of the criminal counterfeiting charge and in other ways, so that delay in hearing the present proceedings could very well frustrate its purpose. After considering the entire factual situation, this court dissolved its stop order and denied the petition for prohibition on December 5, 1974.

Promptly after entry of that order by this court, the trial judge reset this case for trial on December 16, 1974, and the case did proceed to trial on that date. The trial court was faced with a basic situation which called loudly for a prompt trial. Even if defendants had meticulously followed all the proscribed procedures, it would be most difficult to find fault with the trial judge’s determination to refuse further continuances and to insist upon the case proceeding with dispatch.

However, the decisive factor with respect to this procedural point is that defendants did not follow the procedures for a continuance required by Rules 65.03 and 65.04. First of all it must be noted that the defendants never filed any motion for continuance of any kind when this trial was finally reset for December 16, 1974. But even if it should be considered that the motion filed on November 26, 1974, had some continuing vitality, that motion itself was fatally defective. It was not verified as required by Rule 65.03, nor did it show as required by Rule 65.04 that the defendants had exercised due diligence to obtain the presence of Syble Reifsteck or her testimony; in this connection, it should be noted that the deposition of Syble Reifsteck was taken on November 4, 1974, but counsel for defendants successfully opposed the use of that deposition for any purpose during the course of this trial. Further, the application did not show what particular facts Syble Reifsteck could provide which could not be fully proved in other ways, and the application did not make the required statement that Syble Reifsteck was not absent by connivance or consent and that the application was not made for vexation or delay. Because of the failure to comply with the court rules mentioned, aside from anything else, the overruling of the application for continuance cannot be considered an abuse of discretion. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 228 (1915); Searles v. Searles, 495 S.W.2d 759, 766 (Mo.App.1973); Blankenship v. Blankenship, 488 S.W.2d 245 (Mo.App.1972).

II.

Defendants’ Point III is that “the Court erred in not submitting the cause to the jury for its determination in accordance with 473.340 [sic].” It is very doubtful whether this point complies with Rule 84.-04(d), since this point hardly states “wherein and why” the action of the trial court is claimed to be erroneous. Nevertheless the argument portion of defendants’ brief does make it clear that defendants’ objection is that the judgment did not “determine the persons who have an interest in said property together with the value and extent of any such interest.” The Point will be considered as so amplified.

The conflicting claims in this case are sharp and simple. The petitioners at all times have maintained that all of the property transferred to defendants during the last three months of Mrs. Anderson’s life rightly belonged to Stanley L. Morris as the Administrator of her estate. Defendants, on the other hand, say that they and they alone are entitled to all of the property in question by way of gifts made to them by Mrs. Anderson during her lifetime.

The whole purpose of this proceeding was to determine which of these conflicting positions should prevail. That was done by the jury determination that the gifts were obtained through undue influence and that accordingly all of the property in question or its substitute value in cash belongs to the Administrator. The purpose of § 473.340-3 has therefore been fully served by the verdict and the judgment entered thereon. The identification of the heirs and how much each is to take still remains for decision in the Probate Court, which is indubitably the proper forum for that purpose.

The argument portion of defendants’ brief contains a Point VIII which does not conform to any point in the Points Relied On section of the brief. This additional point contained in the argument portion may have been intended to be included within Point III of the Points Relied On, which is the one presently under consideration, and will be so treated. The additional argument VIII is that “the instructions failed as a matter of law to conform with Section 473.340 Mo.Rev.Stat.1969 as amended.” A complete answer to this argument has already been given: no complaint concerning the instructions in this case can be heard because no instructions have been set forth in the brief, thereby violating Rule 84.04(e).

III.

For their Point IV, defendants argue that “the court erred in not dismissing the cause of action after the disclaimer filed by the petitioners.” The procedural situation to which this point relates is that the original petition in the Probate Court was filed by individual heirs, and the Public Administrator was not named as such in the body of the petition as being one of" the petitioners. At the close of the evidence in the Circuit Court, the individual heirs made a disclaimer of “any right to a money judgment in this cause of action and state that any money judgment should be -found in favor of Stanley L. Morris as Public Administrator of the Estate of Almeda Anderson.” Defendants argue in effect that since the Administrator was not a named petitioner, that the disclaimer by the heirs who were named petitioners left the case in a status without any petitioner and that therefore the proceeding should have been dismissed.

This argument overlooks a number of important points: (1) the original petition in the Probate Court was filed by the named petitioners on behalf of the Public Administrator, the prayer of the petition being “that the court make and enter its order directing the delivery and transfer of the title and possession of the property described in paragraph 2 hereof to Stanley L. Morris, Public Administrator * * * (2) the order of the Probate Court certifying the proceeding to the Circuit Court refers to advice of counsel for the Administrator as to the nature of the controversy and then proceeded to order that the petition to discover assets “heretofore filed herein by the administrator” is certified to the Circuit Court; (3) the Administrator and his attorney participated fully in each stage of this proceeding, including the prohibition proceedings previously before this court and also including the present appeal; (4) at the close of the evidence in the Circuit Court and immediately preceding the disclaimer made by the individual petitioner-heirs, the Public Administrator filed and the court accepted his verification to the Petition for the Discovery of Assets; and (5) when this case was submitted to the jury, the court’s instructions all referred to “plaintiff” in the singular, as did the jury verdict and the court judgment.

Section 473.340-4 requires that “the court shall order the joinder of the personal representative of the estate if he is not named as a party.” That, in effect, was done by the Probate Court, and that joinder was in effect accepted by the Circuit Court. If there can be any doubt in that respect, the result must be deemed accomplished by way of amendment to conform to the proof. Section 473.340-2 provides that these proceedings are to be governed by the Missouri Rules of Civil Procedure; and the amendment, if necessary, can be deemed accomplished under Rule 55.33(b).

IV.

Defendants next complain that this case went to trial without a verified petition. Although defendants note that the petition here was verified by the petitioners’ counsel, they insist that such verification is ineffective and that valid verification can be accomplished only by the party himself.

Without in any way intimating that the verification by attorney was insufficient, defendants’ point regarding the verification is completely answered by the fact that before submission of this case additional verifications to the petition were made by both Layard Reifsteck, one of the named petitioners, and also by Stanley L. Morris, the Public Administrator.

Still further, any defect in the verification has been cured by judgment. Section 472.080-2 and Rule 74.30.

V.

Under their Point VII defendants argue that the evidence was not sufficient to support the jury’s verdict of undue influence. A look at the record convinces to the contrary.

The following facts are prominent in affording a sound basis for the jury’s finding: (1) Mrs. Anderson left the Independence Sanitarium on July 21,1973, sick, weak in body, and confused in mind; (2) during the period from July 22, 1973, until at least her admission to the Missouri Baptist Hospital in Clayton on September 14,1973, Mrs. Anderson was completely dependent upon defendants for her day to day needs, and from August 23, 1973, until September 14, 1973, Mrs. Anderson was in defendants’ home where they had taken her from Independence; (3) defendants, especially Syble, monitored all telephone calls and visits to Mrs. Anderson and isolated her from other relatives and many of her old friends; (4) defendants poisoned Mrs. Anderson’s mind against her relatives and at least one of her old friends; (5) defendants took Mrs. Anderson on a number of trips to banks and to a title company for the purpose of accomplishing transfers of property to their advantage; (6) Glenn told Mrs. Anderson at a very early opportunity that her existing will was no longer any good, and he and Syble then proceeded to take her to lawyers twice within a period of one month in order to make new wills, each will being progressively more favorable to defendants.

The foregoing factors amply justify the jury’s conclusion that defendants did procure the transfers in question through the exercise of undue influence. Godsy v. God-sy, 504 S.W.2d 209 (Mo.App.1973); Switzer v. Switzer, 373 S.W.2d 930 (Mo.1964).

VI.

Respondents filed a motion in this court to dismiss the appeal on the ground that the brief on behalf of Syble Reifsteck and Glenn Reifsteck fails to comply with Rule 84.04. That motion was overruled by this court on August 22, 1975. At the time of oral argument, respondents requested that their motion to dismiss be reconsidered. In view of the decision reached herein to affirm, a reconsideration of the motion to dismiss would serve no useful purpose.

Affirmed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Judge.

license: Public Domain

text:
    Anna SCHOEN, Plaintiff-Appellant, v. Reverend Paschal KERNER and Reverend Terrance Rhoades, Defendants-Respondents.
    No. KCD 27841.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      John J. McFadden, Sr., John J. McFadden, Jr., Kansas City, for plaintiff-appellant.
    Clyde G. Meise, P. Thomas Loughlin of Meise, Cope & Jarrard, Kansas City, for defendants-respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

This ease reaches this court upon an agreed statement of all proceedings in the lower court which led to the entry of a summary judgment in favor of defendants. A single question of law is presented — at the time in question (April 23, 1967) did the charitable immunity doctrine insulate individuals whose alleged negligence purportedly caused injuries and damages claimed to have been sustained by plaintiff.

Anna Schoen, plaintiff, filed a petition in the Circuit Court of Jackson County, Missouri, alleging that: defendant Reverend Paschall Kerner was the pastor and defendant Reverend Terrance Rhoades was the assistant pastor of Our Lady of Sorrows Catholic Church; in such capacity they were charged with the care, custody, operation, maintenance and control of the buildings of the church, including the rectory thereof; on April 23, 1967, a parish open house was held in the rectory, to which she was invited, attended and agreed to serve refreshments and to wait upon the other guests; upon going to the rear entry to the rectory to admit two guests she fell down an open, unlighted stairway into the basement; the defendants “were negligent in that in the exercise of ordinary care and prudence they knew or reasonably could have known that there was a dangerous condition created by the open, unlighted basement stairway located at the rear entrance, in time to have warned the plaintiff of the aforesaid dangerous condition, or in time to have barricaded said stairway, yet they negligently failed to warn plaintiff of said danger or to barricade said stairway”; as a direct and proximate result of the aforesaid negligence plaintiff sustained various injuries and damages.

The defendants answered denying every allegation of the petition, .asserted that plaintiff was contributorily negligent, and further alleged that plaintiff’s petition failed to state a cause of action against them because on the date of the alleged injury the defendants were the agents and servants of the Catholic Diocese of Kansas City-St. Joseph, and of the Our Lady of Sorrows Catholic Church, both of which were charitable institutions, and that they were entitled to the protection of the charitable immunity doctrine.

Following the filing of the answer, defendants filed a motion for summary judgment alleging that they were agents and servants of the Catholic Diocese of Kansas City-St. Joseph and the Our Lady of Sorrows Catholic Church, acting within the course and scope of their agency at the time and place of plaintiff’s claimed injury, that the Diocese and church were benevolent and religious non-profit organizations and charitable institutions and that the defendants were therefore immune from liability for the negligence alleged in plaintiff’s petition. The motion further alleged that there was no genuine issue as to any material fact on the issue of whether the defendants were the agents of the Catholic Diocese of Kansas City-St. Joseph and the Our Lady of Sorrows Catholic Church, acting within the course and scope of their agency, or as to whether the Diocese and church were charitable institutions.

The motion for summary judgment was sustained on the ground that the doctrine of charitable immunity was applicable. The trial court held: (1) that Our Lady of Sorrows Catholic Church was a benevolent and religious not-for-profit organization and a charitable institution within the meaning of the law of the State of Missouri; and (2) that the opinion of the Missouri Supreme Court in Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo.banc 1969), which abolished the doctrine of charitable immunity, specifically held that the decision was not retroactive, but applicable only to causes of action arising after November 10, 1969, and that this cause of action arose April 23, 1967. This appeal followed.

Rule 74.04(c) provides in pertinent part that a summary judgment when sought shall be rendered forthwith “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” (Emphasis added.) An absolute defense to a plaintiff’s cause of action may be made by way of a motion for summary judgment [see: State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141 (Mo.App.1974); and McQueen v. Humphrey, 421 S.W.2d 1 (Mo.1967)], but before the trial court may enter summary judgment it must be shown unassailably as a matter of law that the movant is entitled to judgment and any doubt in this regard must be resolved against the movant. Cure v. City of Jefferson, 380 S.W.2d 305 (Mo.1964); Moore-Harris Abstract Company v. Estes, 495 S.W.2d 485 (Mo.App.1973); and Hurwitz v. Rohm, 516 S.W.2d 33 (Mo.App.1974).

In the instant case the trial judge was obviously convinced that the defense of charitable immunity was available to the defendants, priests of a religious society, and, being so convinced, granted the summary judgment prayed. In so doing, the trial court erred. The doctrine of charitable immunity did not extend so far as to cloak the individual tort-feasors with immunity but served only to insulate the charitable institution itself from liability.

Although no Missouri case to date appears to have directly addressed the issue, and only a limited number of other jurisdictions, at best, appear to have done so, definite authority exists that application of the doctrine of charitable immunity is not as broad as defendants obviously led the trial court to believe. At least two cases from other jurisdictions directly hold that the doctrine is not so broad and several Missouri cases strongly hint that the same result prevails in this state.

In Wood v. Abell, 268 Md. 214, 300 A.2d 665 (1973), defendants below were one Glen L. Wood and the St. Mary s County Fair Association, Inc. Wood had been vice president and general manager of the Association and had received authority from the Association’s Board of Directors to hire some laborers to assist in readying the Association’s fairgrounds for a forthcoming annual event. Wood hired Francis and Donal Abell. On July 31, 1970, Wood, who sometimes volunteered his services and equipment, was working with the Abells in preparing the fairgrounds. He was driving a tractor with an augur attachment and was digging postholes. While digging the first hole the auger went down a short distance and then stopped having struck an obstruction. Wood shouted to the Abells to push down on the auger and when they did so without avail Wood dismounted the tractor to assist them. As he did so, the tractor started backwards and ran over Francis who sustained injuries from which he later died. The trial court made a pretrial determination that the Association was entitled to assert the defense of charitable immunity “to the extent it is not covered by liability insurance”. Wood amended his original plea so as to claim the defense of charitable immunity. The trial court extended to Wood its “earlier determination of the Association’s charitable immunity” and this extension was challenged on appeal. The Maryland Court of Appeals noted 300 A. 2d at 678: “Suffice it to say, the question whether immunity should be extended to cover the negligent employee of a charitable institution seems never to have been decided by this Court, and, ironically, there is a paucity of authority elsewhere, even though cases on the basic subject abound.” The court went on to note that charitable immunity was alive and well in Maryland and was bottomed on the “trust fund” theory. The “trust fund” theory was explained as follows 300 A.2d at 678: “There is a trust, and there are persons intended to manage it for the benefit of those who are to be the objects of the charity. To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose.” The court pointed out that the Maryland courts had consistently upheld the charitable immunity doctrine on the “trust fund” theory and in no case had the “trust fund” theory been applied to immunize the negligent employee. The court, 300 A.2d at 679, concluded: “In sum, when we bear in mind the historical background of the charitable immunity doctrine as applied in this state, there is no sound reason for extending the cloak to a negligent employee. Recovery against him can in no way do violence to the ‘trust fund’ theory, upon which the doctrine is predicated. Nothing has been presented here to support a conclusion that recovery against Wood would lead to an invasion of trust funds held by the Association, if there are any. Thus, the trial judge erred in ruling that the defense of charitable immunity was also available to Wood.”

In Hill v. President & Trustees of Tualatin A. & P. U., 61 Or. 190, 121 P. 901 (1912), one John F. Hill, a minor, had been injured when a loaded gopher gun exploded when he was on the grounds of the Tualatin Academy and Pacific University. The gopher gun had been placed on the grounds of the University to repel an invasion of gophers. Suit for injuries and damages incurred was brought against the president and trustees of the Tualatin Academy and Pacific University (the University), W. N. Ferrin, a member of the board of trustees of the University in charge of the buildings and grounds, and C. S. Kelsey, a janitor employed for caring for the University’s buildings and grounds. The testimony showed that Kelsey had set out several of the guns at the direction of Ferrin. No notice or other warning was put up as to the dangerous character of the guns. The Oregon Supreme Court held that the University held all its property in trust for charitable purposes and was not liable for the alleged negligent acts of its officers or employees. It further held that an action may be maintained against an officer, servant, or employee of a charitable institution to recover damages for an injury caused by the act or omission of such person, when the action is against him as an individual and not in his corporate capacity. The court reasoned that such an action could be maintained because any recovery awarded would not be discharged from any property held in trust for the benefit of the charitable institution. The court construed the petition to be an action against the defendants individually as joint tort-feasors and held that it was error to direct a verdict for Ferrin under whose direction the guns were set out.

The rationale of both the Wood and Hill cases is that the charitable immunity doctrine is based on a “trust fund” theory and no violence is done to the theory by allowing recovery against an individual tort-fea-sor because permitting recovery from one would not invade the trust fund. In Missouri, prior to Abernathy v. Sister of St. Mary’s, supra, the immunity of charitable institutions from tort liability was based on both a “trust fund” theory and a public policy theory. Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615 (1946); Stedem v. Jewish Memorial Hospital Assn., 239 Mo.App. 38, 187 S.W.2d 469 (1945). These two theories were equated in Abernathy v. Sisters of St. Mary’s, supra, at 604, the court pointing out that “[t]he ‘trust fund’ theory embraces all that is involved in the doctrine of immunity as public policy.” Cf. Eads v. Young Women’s Christian Ass’n, 325 Mo. 577, 29 S.W.2d 701 (1930). Since the charitable immunity doctrine in Missouri, when viable, was based upon the same theory as was the doctrine in Maryland and Oregon, the rationale of the Wood and Hill cases bears directly on the question under discussion.

No Missouri cases have been found which, during the reign of the charitable immunity doctrine, extended its protective mantle to individual tort-feasors. This silence of case authority undoubtedly reposed in a generally accepted belief that the underlying “trust fund” theory supporting the doctrine would not have been violated by refusing to extend the immunity afforded by the doctrine to individual tort-feasors.

Hints to this effect emerge in several cases decided in this state. In Roberts v. Kirksville College of Osteopathy & Surgery, 16 S.W.2d 625 (Mo.App.1929), a patient sued a charitable association after sustaining injuries when an employee of the association applied a hot water bottle to her feet while she was under the influence of an anesthetic. This court held that a demurrer to the evidence was properly sustained saying at 626: “The agents of the charity who do the negligent acts which result in a plaintiff’s injury are liable therefor; but the doctrine of respondeat superior does not apply to defendant, because it is a charity and holds all its funds in trust to carry out the benevolent purposes for which it was chartered by the state.” (Emphasis added.) And see Weigel v. Reintjes, 154 S.W.2d 412 (Mo.App.1941), rev’d on other grounds, where a woman recovered damages from the pastor of a church for injuries she sustained when she was caused to fall by a depression upon the entranceway to the church. Her cause of action was premised upon negligence. Although the court was not faced with the question of whether the pastor was immune from liability under the charitable immunity doctrine, the court did hold that “[pjlain-tiff was an invitee upon the premises of defendant, and while defendant was not an insurer of her safety, he nevertheless owed her the duty to exercise ordinary care to keep the used parts of the premises and the entrances thereto in a reasonably safe condition for her use and the use of persons accepting the invitation to attend the church.” Id. at 416.

In Kreuger v. Schmiechen, 364 Mo. 568, 264 S.W.2d 311 (1954) the plaintiff brought suit against the pastor and directors of a church in their representative capacity as members of the “Consistory”. Plaintiff claimed he suffered damages when he fell upon the premises of the church and that he was caused to fall “by negligence of the defendants, through their agents and servants, in operating, managing and controlling the said Church.” The Missouri Supreme Court ruled the dismissal of plaintiff’s petition proper holding that the charitable immunity doctrine extended to the members comprising the “Consistory”. In addressing plaintiff’s claim that Art. I, Sec. 14, of the Missouri Constitution mandated that the courts “are to be open to every person and certain remedy afforded for every injury”, the court said “[w]e deem it sufficient to say that the courts are open to plaintiff to sue the tort-feasor who is alleged to have caused his injury.” Id. at 314.

Defendants were not entitled to judgment as a matter of law since the then prevailing doctrine of charitable immunity was not so broad as to constitute a protective umbrella over them as individuals. Not being entitled to judgment as a matter of law, the granting of the motion for summary judgment was error because genuine issues of fact remained to be resolved.

Judgment reversed and cause remanded.

All concur.

      . A voluntary non-suit had been taken as to Kelsey.

      . The public policy theory was summarized in Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599, 600 (Mo.banc 1969): “In other words, the court said [Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453 (1907)], in effect, that it is better that the individual suffer injury without compensation from the negligent charitable institution than to risk the judicially assumed probability that the public and state would be deprived of the benefits of charity; that the interest of the latter is so supreme that the former must be sacrificed to it.”


author: TURNAGE, Presiding Judge.

text:
    John C. RUSSELL, Plaintiff-Respondent, v. CITY OF RAYTOWN, Defendant-Appellant. John C. RUSSELL, Plaintiff-Appellant, v. CITY OF RAYTOWN, Defendant-Respondent.
    Nos. KCD 27921, 27922.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      Richard T. Cole, Raytown, for appellant City of Raytown.
    Robert K. Ball, II, Kansas City, Jackson & Sherman, Kansas City (of counsel), for Russell.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

John C. Russell was appointed city attorney of the City of Raytown, a fourth class city, in May, 1968, and served until he was removed in April, 1971. Sections 79.230 and 79.240, RSMo 1969. Following his dismissal, Russell filed suit against the City in which he contended his removal was ineffective because he had been appointed by ordinance but had been removed by resolution of the Board of Aldermen and because he was not accorded notice and hearing at which cause for his dismissal was shown, as provided by the personnel ordinance of the City.

The court found the removal of Russell to be ineffective because the City had failed to follow its personnel ordinance and awarded Russell back pay of $40,573.96, together with $3,273.78 as interest up to trial time, and $1,600 interest from date of trial to entry of judgment.

The City has appealed in KCD 27,921 on the grounds the personnel ordinance is in violation of § 79.240, and, therefore, inapplicable to Russell. Russell has appealed in KCD 27,922 from the failure of the trial court to find in his favor on the ground he was dismissed by resolution when he had been appointed by ordinance. He requests such appeal be considered only if the City’s appeal is ruled favorable to the City. Reversed.

Following previous service as city attorney of Raytown, Russell was appointed city attorney in May, 1968. The only evidence in the record of his appointment is an ordinance passed by the Board of Aldermen in which it was stated that Russell was appointed “City Counselor”.

Section 79.230 grants to the mayor of a fourth class city, with the consent and approval of the majority of the members of the Board of Aldermen, the power to appoint a city attorney. No point is made in this case concerning the failure of the record to show Russell’s appointment by the mayor with the consent and approval of the Board, and this court will not take further note of that fact. At the least, Russell was a de facto city attorney.

In April, 1971, a new mayor was elected in Raytown. Immediately following his election, the mayor telephoned Russell and told him he wanted to hire a different city attorney. Despite the request of Russell, the mayor refused to give any specific reason for his desire to change city attorneys.

At the first meeting of the Board after the new mayor was sworn into office, the mayor presented the Board of Aldermen an “administrative order” in which he stated that subject to the approval of a majority of the Board of Aldermen, Russell was thereby removed from the appointive office of city counselor. No action was taken on this order at that meeting, but when the Board met the following week, a resolution was passed approving the order removing Russell. The resolution was approved by a vote of seven in favor, two against, and one absent. The resolution was, therefore, approved by a majority of all of the members of the Board.

In 1969, the Raytown Board enacted an ordinance referred to as the “personnel code”. This ordinance generally established a merit system for the hiring and retention of employees by the City. The office of city attorney, or city counselor, was not mentioned in the ordinance, although it did refer to “those persons appointed by the mayor and/or Board of Aldermen.” The personnel ordinance prohibited the firing of any employee except for cause and required notice and hearing in the event discharge was contemplated.

In the City’s appeal, it contends the personnel code cannot apply to the position of city attorney because of the provisions of § 79.240. That Section provides as far as pertinent here:

The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office any appointive officer of the city at will, and such appointive officer may be so removed by a two-thirds vote of all the members elected to the board of aider-men, independently of the mayor’s approval or recommendation. The board of aldermen may pass ordinances regulating the manner of impeachments and removals.

The City contends this Section gave the mayor, with the consent of a majority of all the members of the Board, the power to remove Russell as city attorney at any time, without cause and without notice or hearing. The City contends Russell is not included within the meaning of the personnel code, but even if he is, that ordinance could not apply to him because such ordinance would conflict with § 79.240 by restricting the power of the mayor and the Board to remove the city attorney.

It is, of course, a matter of settled law that an ordinance of the City must be in harmony with State statutes. § 71.010, RSMo 1969, Kansas City v. LaRose, 524 S.W.2d 112, 116[6] (Mo. banc 1975).

Russell concedes § 79.240 states that the mayor may remove an appointive officer, i. e., the city attorney, at will, but claims that removal at will is a summary procedure and statutes providing for a summary procedure are to be strictly construed. He further contends it is impermissible to allow the Board to act through a summary procedure to remove persons appointed by ordinance except through the enactment of another ordinance.

This court accepts the proposition that removal at will is a summary procedure and statutes providing for such a procedure should be strictly construed. However, strictly construing § 79.240, it remains that this Section clearly gives the mayor, with the consent of a majority of all the members of the Board, the power to remove the city attorney at will. The term “at will” is defined by Webster’s Third New International Dictionary (1971) as “as one wishes: as or when it pleases or suits oneself: subject to one’s discretion or pleasure: at one’s disposal.” This statute needs no construction to hold that the mayor is given the power to remove the city attorney at any time it suits his pleasure, provided a majority of all the members of the Board consent.

Because the State law confers on the mayor the power to remove the city attorney at any time it suits his pleasure, with the consent of the majority of all members of the Board, it follows an ordinance of the city which in any way restricts this power is contrary to the State law and cannot impinge the authority of the mayor to remove the city attorney. § 71.010. This does not constitute a holding that the personnel code of the City of Raytown is contrary to State law, and, therefore, void. This holding is confined to the narrow ground that the personnel code does not place the city attorney beyond the power of the mayor to remove him with the requisite consent of the Board at any time the mayor so desires.

The Springfield District applied § 79.240 to a city treasurer who, with the city attorney, is appointed by the mayor under § 79.-230. In State ex rel. Kendall v. Wilson, 151 Mo.App. 719, 132 S.W. 623 (1910), the court held the power contained in this Section allowed the city to remove the city treasurer without any charges or hearing. This holding applies to the city attorney because that office and the treasurer are given identical treatment in the two Sections mentioned.

Assuming without deciding the personnel code applied to the city attorney, it necessarily follows that Russell was not protected from removal by such code, but was subject to being removed by the mayor with the requisite consent on the part of the Board at any time the mayor chose to remove him.

Russell contends the personnel ordinance prevents his summary removal because such ordinance is an exercise by the Board of the power granted to it by the last sentence of § 79.240. That power allows the Board to pass ordinances to regulate the manner of impeachments and removals. The definition of manner was taken from Webster’s New International Dictionary, 2d Ed. in State ex rel. Stamm v. Mayfield, 340 S.W.2d 631, 634 (Mo. banc 1960). The court there gave the definition of manner as “1. A way of acting; a mode of procedure; the mode or method in which something is done or in which anything happens; way; mode; * * * >>

The power granted here is for the Board to prescribe the method, mode or way in which impeachment or removal would be made. Russell would have this court construe the personnel code to prohibit his firing except for cause and with notice and hearing. He contends this is a way or mode in which he could be removed. It is apparent the personnel code contains a limitation on the right of the mayor to remove the city attorney, which limitation is not contained in § 79.240. Thus, the personnel code did go beyond the manner or mode by which the mayor could exercise his right to remove the city attorney at any time he desired and to this extent the personnel code is in conflict with such Section as applied to the city attorney.

It would be perfectly proper for the City to prescribe by ordinance that removals should be made by the mayor upon certain forms or by filing a certain statement or order with the Board and specify the form in which the Board would signify its consent. The personnel code did not address the manner or mode of carrying out the power conferred by § 79.240. It follows the personnel code may not be construed to have been passed to prescribe the manner in which removals are made.

In his appeal, Russell states the court should have found that his removal was ineffective because he was appointed by ordinance but was removed by resolution. His argument points out that a resolution is less formal than an ordinance and that action taken by ordinance can only be superseded by action taken by ordinance and not by resolution. The ordinance appointing Russell is relied upon as the ordinance which cannot be superseded by resolution.

The fact overlooked by this argument is that Russell was not properly appointed by ordinance since § 79.230 provides the appointment can only be made by the mayor with the consent and approval of a majority of the members of the Board. Here, the City apparently followed the procedure of evidencing the approval of the Board by an ordinance. However, this does not change the law to convert Russell’s appointment to one made by the Board by ordinance. Under the law the appointment could only be made by the mayor and the ordinance can be only regarded as the necessary approval given by the Board. In that circumstance, there was no action taken by ordinance which was superseded by the resolution approving the order of the mayor removing Russell. In short, the form by which the Board either gave its approval to the appointment of the attorney, or to the removal of the attorney, is not specified in the statutes. Therefore, the consent could take the form of an ordinance or a resolution, or for that matter, could merely be signified by motion duly passed with the requisite number voting in favor. For that reason, the resolution approving Russell’s removal did not supersede the ordinance by which he was purportedly appointed.

Russell relies on a number of cases in which a city officer was appointed for a specified term and in which the court held under those circumstances the official could only be removed for cause and after notice and hearing. As demonstrated above, Russell was not appointed for a specified term. For that reason, those cases are not applicable to the facts herein.

Russell also cites cases in which removal was attempted when the law governing the appointment required cause for removal. Those cases, likewise, have no application.

Russell further contends his appointment was actually by the Board of Aldermen pursuant to the provision in § 79.230 which gives the mayor and Board of Aldermen the power to employ special counsel by ordinance. There is nothing in the ordinance appointing Russell which indicates he was appointed as a special counsel, and his continuous service at a monthly salary of $1125 per month for about three years would not be consistent with the concept of special counsel embodied in this Section. All of the evidence in this case indicated Russell was appointed as the city attorney and not as a special counsel.

It should be noted Russell neither alleged nor proved that his removal was motivated by a desire to curtail or to penalize the exercise of his constitutionally protected rights. Thus, his removal in a summary manner pursuant to the statute does not violate his constitutional rights. Bishop v. Wood, - U.S. -, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

The conclusion must follow that under § 79.240 the mayor of the City of Raytown . was exercising the power conferred upon him by that Section when he removed Russell as city attorney and the majority of all the members of the Board of Aldermen consented to such removal. Because his removal was authorized by law, Russell is not entitled to any compensation following the date of his removal.

The judgment is reversed.

All concur.


text:
    STATE of Missouri, Respondent, v. Leo WEBB [Leo Robert Webb, Jr.], Appellant.
    Nos. KCD 28276, KCD 28275.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      William E. Shull, Robert G. Duncan, Duncan & Russell, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant Leo Robert Webb, Jr. was charged by two separate informations with receiving stolen property under Section 560.270, RSMo 1969. The informations, respectively, charged him with knowingly buying or receiving a stolen “Lincoln Brand Welder” and a “Schwartz Brand Tilt Bed”. By stipulation of the parties the cases were consolidated for trial. Defendant was found guilty of both charges by a Jackson County jury and, pursuant to the Second Offender Act, was sentenced by the court to seven years confinement for each offense, said sentences to run consecutively.

Defendant raises two points of error on appeal. First, he contends that the evidence disclosed he was an accessory with respect to the theft of the Lincoln Brand Welder (thus subjecting him to being charged as a principal), and on that premise he invokes the general rule that a thief cannot be convicted of receiving stolen property from himself. Second, he contends the evidence failed to show that he knew the Schwartz Brand Tilt Bed he received was stolen property.

Defendant’s first point was not raised as error in his motion for new trial, and, therefore, not properly preserved for appellate review. State v. Nolan, 423 S.W.2d 815, 817-18 (Mo.1968); State v. Johnson, 408 S.W.2d 24, 25 (Mo.1966); and Rule 27.20(a). Nevertheless, defendant’s contention, i. e. that even though he might have been convicted as a principal in the theft he cannot be convicted for receiving the stolen property, will be treated as a challenge to the sufficiency of the evidence to support the guilty verdict returned by the jury with respect to the Lincoln Brand Welder and will be reviewed on that basis. Such is appropriate for “if the evidence is not sufficient to sustain the conviction, plain error affecting a substantial right is involved from which manifest injustice must have resulted.” State v. McClunie, 438 S.W.2d 267, 268 (Mo.1969), citing Rule 27.20(c). See also: State v. Potter, 530 S.W.2d 268, 269 (Mo.App.1975); and State v. White, 439 S.W.2d 752, 753 (Mo.1969).

A brief synopsis of the facts germane to defendant’s first contention is in order. On January 24, 1975, Marvin Goff told defendant that he needed $157 to pay a debt owed a bail bondsman. Defendant responded by informing Goff that he would pay Goff $300 for a certain welder which defendant wanted. Defendant specifically told Goff that the welder was located at a certain construction site in Bates City. Goff went immediately to Bates City and drove off with the welder, placed it in defendant’s garage and informed defendant that he had delivered the welder as agreed.

On the basis of the facts set out above, defendant concedes that he could have been charged and convicted as a principal, in the stealing of the welder, pursuant to Section 556.170, RSMo 1969, which provides in part that “[e]very person who shall be . an accessory to any . . . felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.” Defendant then augments his concession by arguing that since he could have been charged and convicted as a principal in the theft, he cannot be charged and convicted for having received the property which was the subject of the theft because a principal cannot receive stolen property from himself.

The issue raised by defendant is apparently one of first impression in Missouri, yet, in light of ample and compelling authority from other jurisdictions, especially when coupled with strongly suggestive language contained in certain Missouri cases, it is ruled adversely to defendant.

The general rule, “That one cannot at the same time be a principal in the larceny and in the legal sense a receiver of stolen property” was acknowledged in State v. Honig, 78 Mo. 249, 252-53 (1883), wherein the court explained that if one “is a principal actor in the theft — the actual captor of the property, it is illogical and contradictory to say he has received it from another.” (Emphasis added.) Accord: State v. McAnulty, 491 S.W.2d 259 (Mo.1973); State v. Magers, 452 S.W.2d 198 (Mo.1970); State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65 (1938); State v. Coppersmith, 231 Mo.App. 711, 105 S.W.2d 991 (1937); and State v. Willner, 199 S.W. 126 (Mo.1917). Stated in the obverse, the actual thief cannot receive stolen property from himself. Because the defendant in State v. Honig, supra, was present and actively participated in and consummated the theft, the court concluded that he could not, in a legal sense, be a receiver of property which he himself stole.

Defendant does not contend (nor would the evidence support such a contention) that he was present and actively participated in the caption and asportation of the Lincoln Brand Welder. He makes the limited concession and contention that under the state’s evidence he aided and abetted in the theft as an accessory before the fact by instigating and directing Goff to steal the welder. An “accessory before the fact”, as defined in State v. Hayes, Mo., 262 S.W. 1034, 1037 (1924), “is one who is not present, either actively or constructively, at the place of the commission of the crime, but who counseled, procured, or commended it.” See also LaFave and Scott, Criminal Law, Sec. 63, at 498 (1972).

Defendant, though acknowledging that he was not a principal actor in the theft — an “actual captor of the property”— nevertheless attempts to utilize Section 556.170, supra, in a fashion so as to insulate himself from being charged as a receiver of stolen property. Section 556.170, supra, although permitting an accessory before the fact to be charged and punished as a principal in the first degree, does not enshroud an accessory before the fact with all of the attributes of a principal actor in a larceny, including that of having been an “actual captor” of the stolen property. The rule that the principal actor in a larceny cannot be charged with receiving stolen property rests, as previously pointed out, upon the self-evident premise that the “actual captor” cannot receive stolen property from himself. Thus, the rule apparently came into being for the sole purpose of being applied only to the principal actor who was the “actual captor” of stolen property. The logic underlying the rule disappears when confronted with a situation involving an accessory before the fact who was neither present nor actively participated in the actual caption and asportation of the stolen property. The bare fact that defendant as an accessory before the fact could have been charged and tried as a principal for stealing the Lincoln Brand Welder under Section 556.170, supra, did not preclude the state from charging and trying him for receiving stolen property as he was not an “actual captor of the property”. The following cases from other jurisdictions having statutes comparable to Section 556.170, supra, support and are in accord with this conclusion: Weisberg v. U. S., 49 App.D.C. 28, 258 F. 284, 286 (1919); People v. Spinuzza, 99 Colo. 303, 62 P.2d 471, 472 (1936); State v. Sheeley, 63 Nev. 88, 162 P.2d 96, 98-99 (1945); and People v. Rivello, 39 App.Div. 454, 57 N.Y.S. 420, 421-22 (1899). See: Aaronson v. U. S., 175 F.2d 41, 44 (4th Cir.1949); State v. Bundy, 91 Ariz. 325, 372 P.2d 329, 332 (Banc 1962); People v. Blumenfeld, 351 Ill. 87, 183 N.E. 815, 817 (1932); State v. Rutledge, 232 S.C. 223, 101 S.E.2d 289, 291-92 (1957); and State v. Tindall, 213 S.C. 484, 50 S.E.2d 188, 190 (1948). See generally: Annot. 136 A.L.R. 1087, at 1095-1101 (1942); 66 Am.Jur.2d, Receiving Stolen Property, § 11, at 303; 76 C.J.S. Receiving Stolen Goods § 14, at 20; LaFave and Scott, Criminal Law, § 93, at 689 (1972); and 2 Wharton’s Criminal Law and Procedure, § 576, at 298 (1957).

Although the state elected to charge and try defendant for receiving stolen property, he could not have been charged and convicted as both a principal for stealing the Lincoln Brand Welder (by reason of being an accessory before the fact) and as a receiver of the stolen Lincoln Brand Welder. The following cases from other jurisdictions support and are in accord with this conclusion: Milanovich v. U. S., 365 U.S. 551, 555, 81 S.Ct. 728, 5 L.Ed.2d 773; Glass v. U. S., 351 F.2d 678, 680-81 (10th Cir.1965); People v. Lamirato, 180 Colo. 250, 504 P.2d 661, 664 (Banc 1972); and State v. Sheeley, supra.

Appellant charges in his second point that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because no evidence was introduced showing that he knew the Schwartz Brand Tilt Bed was stolen property. To accept defendant’s argument, this court would have to conclude that the evidence, as a matter of law, is insufficient to sustain the judgment of conviction. Rule 26.10; and State v. Colthorp, 437 S.W.2d 75 (Mo.1969). In ruling upon defendant’s second point, the facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Colthorp, supra, at 76; and State v. Thompkins, 515 S.W.2d 808, 812 (Mo.App.1974).

Facts pertinent to defendant’s second point may be summarized as follows: On January 20,1975, Dean Haybrook, president of St. Joseph Ford Tractor, Inc., observed that a company-owned Ford truck equipped with a $1,500.00 Schwartz Brand Tilt Bed was missing from the company’s lot. The truck and Schwartz Brand Tilt Bed had last been observed by him on the company’s lot on January 18, 1975. Hay-brook reported the matter to the St. Joseph, Missouri, Police Department. Defendant on January 24, 1975, directed that a Schwartz Brand Tilt Bed, which was stored in his garage in Kansas City, Missouri, be towed therefrom and delivered to Arrow Truck Sales, Kansas City, Missouri, where, pursuant to the defendant’s instructions, the Schwartz Brand Tilt Bed was transferred and welded to a truck owned by defendant. Said Schwartz Brand Tilt Bed, while located at Arrow Truck Sales, was identified by the police as being the property of St. Joseph Ford Tractor, Inc., and was removed by the police to the Kansas City, Missouri, Police Department’s tow lot where it was later identified by the president of St. Joseph Ford Tractor, Inc. as being the Schwartz Brand Tilt Bed belonging to St. Joseph Ford Tractor, Inc., which was stolen ten days earlier.

According to the testimony of a Kansas City, Missouri, police officer called as a witness by the state, defendant, after being arrested and given a “Miranda warning”, stated that “he [defendant] would accept all stolen property he could get his hands on because we [the police] couldn’t ever prove that it was stolen.” Defendant’s wife showed the police what purported to be a bill of sale for the Schwartz Brand Tilt Bed dated January 14, 1975. She testified that she had purchased the Schwartz Brand Tilt Bed from a Ray Long in Roosterville, Missouri, as a birthday present for her husband. According to the record, subsequent police investigation, including a trip to Roosterville, failed to locate any one by the name of Ray Long in that area. Some time after the Schwartz Brand Tilt Bed was removed from Arrow Truck Sales to the police tow lot, Melvin Spitcaufsky, vice president of Arrow Truck Sales, purchased the stolen Schwartz Brand Tilt Bed from St. Joseph Ford Tractor, Inc.’s insurance carrier and, on February 26,1975, resold the Schwartz Brand Tilt Bed to defendant for $1,200.00.

It is acknowledged that the “. State must prove the accused had actual knowledge of the stolen character of the goods at the time he received them and mere possession of the stolen property raises no presumption of such guilty knowledge.” State v. Reo, 510 S.W.2d 211, 214 (Mo.App.1974). See also cases cited therein. Knowledge of the stolen character of goods may be inferred, however, from the facts and circumstances in evidence. State v. Miller, 433 S.W.2d 281, 283 (Mo.1968); and State v. Ham, 104 S.W.2d 232, 233 (Mo.1937). “In ruling the sufficiency of evidence to support a verdict of guilty, even in cases where the evidence is wholly circumstantial, all the substantial testimony tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged.” State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282 (Banc 1947). See also State v. Thompson, 428 S.W.2d 742, 744 (Mo.1968).

The state presented evidence from which the jury could reasonably find that the Schwartz Brand Tilt Bed was stolen and thereafter came into defendant’s possession; defendant does not contend otherwise. The state further presented evidence from which the jury could reasonably infer that defendant had knowledge of the stolen character of the Schwartz Brand Tilt Bed. Exemplary evidence from which the jury could reasonably infer defendant’s guilty knowledge is as follows: (1) defendant’s admission that he would “accept all stolen property he could get his hands on because . [the police] couldn’t ever prove it was stolen”; (2) evidence introduced by the state tending to refute defendant’s wife’s claim that she purchased the Schwartz Brand Tilt Bed from a legitimate source as a birthday present for defendant; (3) evidence that the purported purchase of the Schwartz Brand Tilt Bed by defendant’s wife on January 14, 1975, was at least four days prior to the time it was last observed on St. Joseph Ford Tractor, Inc.’s lot; and (4) payment by defendant of $1,200.00 to Melvin Spitcaufsky for the Schwartz Brand Tilt Bed, which, according to defendant’s wife, defendant already owned. The jury could reasonably infer from evidence in the nature of that disclosed in (2), (3), and (4), supra, that defendant knew the Schwartz Brand Tilt Bed was stolen property when it came into his possession and abortively attempted thereafter, with the aid and assistance of his wife, to obfuscate his guilty knowledge of the stolen character of the property. Coupled with his admitted proclivity to receive and deal in stolen property, it cannot be said as a matter of law that there was insufficient evidence to support a finding by the jury that defendant knew the Schwartz Brand Tilt Bed was stolen property when it came into his possession.

Judgments affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Jack Lee HUNTER, Appellant.
    No. KCD 28144.
    Missouri Court of Appeals, Kansas City District.
    Nov. 4, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.
    Motion to Transfer Denied Jan. 10, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Appellant was convicted of the crime of forgery, possession with intent to utter, by the verdict of a jury. Upon a finding of a prior offense, as pleaded, appellant was sentenced by the court as a second offender to 8 years imprisonment in the Department of Corrections.

Urging reversal, appellant presents the single point that the trial court erred in limiting the cross-examination of state’s witness, Sherry Shanks, a bank teller, as to her possible motivation for testifying (in identifying appellant as the person who attempted to pass the check). It is claimed that the cross-examination was relevant to the witness’ possible bias and credibility. From the offer of proof, it is argued that Sherry would testify that she felt compelled to testify; that her fear of losing her job would be a powerful incentive for her identification; and that the jury was entitled to know her motives for testifying.

The forgery in question was of a check stolen from the Southeast Medical Clinic on Swope Parkway in Kansas City. Sherry Shanks was a teller at the Columbia Union National Bank on March 13, 1975, when appellant, who was identified by Sherry in court, drove up to the drive-in window, and inserted the check in the drawer. The check was endorsed “Howard Mayo”, and Sherry ascertained from the account number on the check that that person did have an account at Columbia Union. She then compared the endorsement with the bank cards of signatures and they did not match. She obtained an opinion from her superior that the signatures did not match, and then went back and advised appellant that they did not match. Appellant was asked by Sherry if he had any further identification and he told her he did not and something to the effect that it was at home, and then he told her he would come inside. Appellant then drove away, and as he did so, Sherry wrote down the type of car he was driving and its license number.

The ruling of the trial court, contended to be error in limiting the cross-examination, arose in this manner: It was developed that Sherry had worked for the Columbia Union since September, 1974; that she had worked for the Metcalf State Bank over in Kansas; and for K Mart where she accepted checks. She had made three identifications before. “Q And one was at K Mart, is that right? A Yes. Q And I believe that one— MR. WELCH: Your Honor, I object. I think he is going very far afield from the issue at hand here today. THE COURT: What is the purpose? * * * MR. ROTH: Your Honor, I think it’s necessary to examine this witness to find out if, in fact, she is a credible witness since she has made identifications on prior incidents, three of which never went to court and the other one we don’t know what happened to it, and I talked to her on an earlier occasion and she has told me that it’s possible that she could lose her job as a teller if you accept too many bad checks as a teller. She has known a person that has happened to, and I feel it’s completely relevant and goes to the credibility of this witness. MR. WELCH: Your Honor, it has no relevance at all. This girl has no control over whether a case goes to court or not. She is only a witness. MR. ROTH: I am not concerned about whether she has any control over it or not. My concern is to show that this person has at one time or the other made identifications— THE COURT: You have already shown that. MR. ROTH: That’s correct. Well, I mean I have to go further than that. I mean I have to ask this witness what the bank’s policy is on this, and I think it is— THE COURT: What the bank’s policy is? MR. ROTH: Your Honor, it’s a very relevant issue as to the credibility of this witness. In other words, she might feel pressured to come in here and make an identification of the defendant. It’s relevant as to the credibility of this witness’ testimony since, in fact, it is bank policy to let tellers go, they are fired from their jobs if they accept too many bad checks. And I am trying to bring out the fact that this girl might be under some duress to make an identification. THE COURT: I will sustain the objection. I think it is too far afield. I don’t think it has anything directly to do with her credibility. MR. LARSON: May we consider the statements we made here as a tentative offer of proof to show the line of questioning we wanted to pursue before Mr. Welch made an objection, your Honor? THE COURT: Yes.”

The question sought to be asked the witness bore upon her credibility which is not of a collateral nature. 98 C.J.S. Witnesses § 559e, p. 501. Here, witness, Sherry, the bank teller, was the sole one to connect appellant to the crime with which he was charged. If she were under a compulsion to testify and make an in-court identification of appellant in fear that she would lose her job, then the jury was entitled to know it. Although the trial court has much discretion in limiting the scope of cross-examination, especially as to collateral matters, State v. Johnson, 486 S.W.2d 491 (Mo.1972); State v. Martin, 530 S.W.2d 447 (Mo.App.1975), there is a corollary rule that great latitude should be allowed on cross-examination of a witness in a criminal case. State v. Albritton, 328 Mo. 349, 40 S.W.2d 676 (1931); State v. Thompson, 280 S.W.2d 838 (Mo.1955). In State v. Summers, 506 S.W.2d 67, 73 (Mo.App.1974), it was said, “[M]atters affecting the credibility of witnesses are always relevant and material * * And, “[13-15] The wide discretion possessed by the trial court to fix the outer perimeter of cross-examination (citing cases), should never be permitted to insulate error arising from undue restriction of the right of cross-examination as to relevant and material matters. * * * The Supreme Court of this state has repeatedly held that undue circumscription of an accused’s right of cross-examination as to relevant and material matters constitutes error. (Citing cases.)” The matter of a witness’ motives in testifying is covered in 81 Am.Jur.2d Witnesses, § 560, p. 561: “In criminal cases, it is widely recognized that counsel for the accused has the right to cross-examine witnesses for the prosecution for the purpose of showing their motives in testifying and that considerable latitude in such respect should be allowed. * * * It is also generally held or recognized that counsel for the accused has the right, and that it may constitute prejudicial error to deny or unduly restrict that right, to cross-examine a witness for the prosecution as to the following, among others, motives for the testimony given by the witness; the witness’ expectation or hope of monetary or other financial gain, fear, intimidation, or duress; revenge, saving or shielding himself or some other person; or friendship or affection for the victim of the crime.” (Italics added.) For examples of various types of cases in which cross-examination as to motives of witnesses were in issue, see the extensive Anno. 62 A.L.R.2d 610. In the situation presented it was prejudicial error to limit the cross-examination of the witness as to matters which might bear upon her credibility.

The judgment is reversed and the ease is remanded for new trial.

All concur.