author: PER CURIAM.

text:
    Donald C. DUNCAN, Plaintiff-Appellant, v. SAFETY RESPONSIBILITY UNIT, DEPARTMENT OF REVENUE, State of Missouri, Defendant-Respondent.
    No. 38407.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 26, 1977.
    Sestric, McGhee & Miller, W. Thomas McGhee, St. Louis, for plaintiff-appellant.
    John Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for defendant-respondent.
   PER CURIAM.

This is an appeal by appellant, Donald C. Duncan, from an order, of the Circuit Court of St. Louis County entered on August 4, 1976, denying his petition to set aside a revocation of his driver’s license for refusal to submit to a chemical test under § 564.-444, RSMo.

The issue presented is a narrow one— what constitutes a “refusal” to submit to a chemical breathalyzer test under § 564.444? More specifically, the issue to be resolved is: when a driver is arrested for driving while intoxicated and is requested to submit to a chemical breathalyzer test after being informed that his license may be revoked upon his refusal and the driver indicates that there is no need to take the test and admits that he is intoxicated, does such a statement by the driver constitute a “refusal” under the statute?

The transcript reveals that the parties stipulated to the following facts: on or about June 2, 1976, Mr. Duncan “was apprehended by the State Highway Patrol in St. Louis County”; he was requested by the officer to submit to the chemical test; “. . . Mr. Duncan advised the officer that there was no need to do so and . admitted that he was drunk.”

On June 23,1976, the Safety Responsibility Unit of the Department of Revenue “sent a revocation notice” to Mr. Duncan informing him that his license was revoked effective July 11, 1976, for “refusal to submit to a chemical test.”

Mr. Duncan filed his petition for review in accordance with § 302.311 in two counts seeking a hearing under § 564.444(2.) and requesting the court “to set aside the revocation and to require the Defendant [State] to restore Plaintiff’s license” in Count I, and to grant him limited driving privileges under § 302.309 in Count II. The trial court stayed the revocation order pending a hearing. A hearing was held on July 14, 1976.

At the hearing the parties stipulated to the facts concerning the “refusal.” A hearing was then held on the issue of limited driving privileges. It was brought out that Mr. Duncan, a resident of Jefferson County, was employed as a private investigator and required an automobile in his employment. Mr. Duncan testified that on the morning of the hearing he had pleaded guilty to the offense of driving while intoxicated, § 564.-440.

On August 4, 1976, the court denied Count I of his petition for review seeking to set aside the revocation order, but granted him limited driving privileges during the period of revocation and stayed the order pending appeal.

Within proper time appellant appealed the order denying his petition for review insofar as it related to the refusal of the court to set aside the revocation order.

On this appeal Mr. Duncan contends that the decision of the trial court denying his petition for review seeking to set aside the revocation was “clearly erroneous” because the “undisputed evidence” proved that he did not “unequivocally refuse to submit to a chemical breath test as required by Section 564.444.” He does not dispute that he was arrested or that the officer had reasonable grounds to believe that he was driving a vehicle while intoxicated. He argues that the courts have been “very strict in construing what conduct of an individual constitutes an unequivocal refusal to submit to a chemical breath test.” He concludes by stating that “[a]s indicated by the above line of cases, decided pursuant to Section 564.444, revocation is justified only in the existence of the unequivocal refusal and the subsequent frustration of the purpose of the statute which is to allow the police to gain evidence.”

The standards upon a hearing to set aside a revocation order and to reinstate a driver’s license are set forth in § 564.444, subsection 2. That section provides that if a person’s license has been revoked because of a “refusal” to submit to a chemical test he may request a hearing before the court, and

“. . . [a]t the hearing the judge shall determine only:
(1) Whether or not the person was arrested;
(2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and,
(3) Whether or not the person refused to submit to the test.”

As to what conduct constitutes a “refusal” for the purpose of determining whether there is to be an administrative revocation of a license has been the subject of numerous decisions. The wide variety of circumstances and the myriad of factual situations do not permit an all inclusive definition of exactly what amounts to a “refusal” within the meaning of § 564.444. See generally, Annot., 88 A.L.R.2d 1064, 1074 (1963) and supplements.

In Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975), our Supreme Court held that a driver who did not take the chemical test either because his attorney advised him not to or because his attorney was not present constituted a refusal within the meaning of the statute. There the Court stated:

“There is no mysterious meaning to the word ‘refusal.’ In the context of the implied consent law, [§ 564.441, RSMo.] it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do so of his own volition. Whether the declination is accomplished by verbally saying, T refuse,’ or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal.” Spradling v. Deimeke, supra, 528 S.W.2d at 766.

Upon analysis of this test, we are convinced that there was a “refusal” by Mr. Duncan in thi§ case. Mr. Duncan was arrested for driving while intoxicated; he was requested to submit to a chemical test, and he indicated that there was “no need to do so and . . . admitted that he was drunk.” Although this statement in and of itself is ambiguous, the stark reality remains that Mr. Duncan did not take the test and that there was a “volitional declination” to submit to the chemical test as requested by the officer. Whether the declination is accomplished verbally by a statement “I refuse” or by remaining silent, or by a conditional consent is immaterial since such conduct constitutes a “refusal” within the meaning of the law. Here there was a “. . . volitional failure to do what is necessary in order that the test can be performed . . . .” Spradling v. Deimeke, supra, 528 S.W.2d at 766.

The purpose of our statute providing for the revocation of a license for “refusing” to submit to a test is not to punish the licensee but to protect the public. State v. Byerly, supra, 522 S.W.2d at 21. The operation of a motor vehicle while under the influence of intoxicants gives rise to separate and independent proceedings, one civil and one criminal, and the outcome of one proceeding is of no consequence to the other. State v. Byerly, supra, 522 S.W.2d at 20.

The conclusion we reach that there was here a volitional declination, or failure to submit to a chemical test is buttressed by analogous decisions in other states. In Joyner v. Garrett, 279 N.C. 226, 182 S.E.2d 553 (1971), the Supreme Court of North Carolina found a refusal to take a test when, inter alia, the licensee stated, “ T knew I was drunk and I didn’t see any need of taking the test.’ ” Joyner v. Garrett, supra, 182 S.E.2d at 556. The court held that the patrolman’s testimony supported the finding “. . . as does petitioner’s statement that he knew he was drunk and didn’t see any need of taking the test.” Joyner v. Garrett, supra, 182 S.E.2d at 560.

And in Clancy v. Kelly, 7 A.D.2d 820, 180 N.Y.S.2d 923 (1958), it was held that the statutory conditions requiring revocation of the license were established. There the licensee testified, “. . . ‘they asked me if I wanted to take a test and I answered * * * I got the smell of beer on my breath * * * is there any sense in taking the test?’ ” Clancy v. Kelly, supra, 180 N.Y.S.2d at 924.

Appellant argues that there was no “refusal” within the meaning of the statute because there was no “unequivocal refusal” so as to authorize the revocation of his license. In effect he argues that to constitute a “refusal” it must be an unequivocal one. That is too broad a statement. A statement does not have to be wholly unequivocal before there is a “refusal.” We do not read Spradling v. Deimeke, supra, to require a totally unequivocal refusal before the license may be revoked under § 564.444. A “refusal” may or may not be a “refusal” within the context of § 564.444 if the statement is equivocal. Some equivocation may not constitute a refusal if it is based on an asserted right which the licensee has. Gooch v. Spradling, supra; Hester v. Spra-dling, supra. But other equivocal statements may well constitute a “refusal” within the meaning of the law. This is not one of the equivocal statements which amounts to a nonrefusal.

Appellant also argues that because he admitted to being intoxicated, “. . .it can hardly be said that [he] frustrated the purposes of the implied consent law or the laws prohibiting driving while intoxicated.” This argument is misplaced. State v. Byerly, supra. For appellant to say that he has furnished evidence of guilt for a criminal proceeding ignores the independent administrative procedures under § 564.444.

We therefore conclude that when appellant advised the officer that there was no need to submit to the breathalyzer test and “admitted he was drunk” this constituted a “refusal to submit to a chemical test” within the meaning of § 564.444 so that the trial court did not err in denying Count I of his petition for review seeking the restoration of his license.

We have read the record, the briefs of the appellant and the State, the authorities relied upon therein and have engaged in our own independent research. We find that the trial court did not erroneously declare or apply the law and accordingly affirm the order of the trial court denying the petition to set aside the order of revocation. Murphy v. Carrón, supra, 536 S.W.2d at 32.

The judgment is affirmed.

All the Judges concur.

      . Cf. Murphy v. Carron, 536 S.W.2d 30, 31-32 (Mo.banc 1976).

      . He relies on Hester v. Spradling, 508 S.W.2d 194 (Mo.App.1974); Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969); and Gooch v. Spradling, 523 S.W.2d 861 (Mo.App.1975).

      .He cites for this proposition Bolling v. Schaffner, 488 S.W.2d 212 (Mo.App.1972). There is no such purpose contained therein. It is there stated that “[t]he purpose of Section 564.444 V.A.M.S. is two-fold: First, to protect the health and safety of citizens using the highways of Missouri; and second, to punish those guilty of the offense of driving while intoxicated by revoking such offender’s license . . ” 488 S.W.2d at 217. The purpose of the statute is not, as appellant argues, to allow the police to gain evidence.
      It is clear that a criminal charge is separate and independent from the proceedings under § 564.444. See discussion in State v. Byerly, 522 S.W.2d 18 (Mo.App.1975).

      . There is no dispute in this case that Mr. Duncan was arrested and that the officer had reasonable grounds to believe that he was driving a motor vehicle while in an intoxicated condition.

      . Gooch v. Spradling, supra — request to speak to attorney does not constitute refusal; Thomas v. Schaffner, supra — desire to take blood test and speak to attorney, no refusal; Bolling v. Schaffner, supra — refusal and definition of “request”; Jones v. Schaffner, 509 S.W.2d 72 (Mo.1974) — refusal after speaking with attorney; Hester v. Spradling, supra — memorandum opinion, no refusal where attorney advised that client was consenting to take test but officer refused to administer it because driver had smoked; Dain v. Spradling, 534 S.W.2d 813 (Mo.App.1976) — no refusal when driver was denied request to be permitted to contact lawyer for advice and have lawyer present — “Under the facts . . . appellant did not make an unequivocal and informed refusal to take the breathalyzer test.” 534 S.W.2d at 814; Stenzel v. State, Dept. of Revenue, 536 S.W.2d 163 (Mo.App.1976); See Comment, Right to Counsel Prior to Submission to Breathalyzer Test — The Impact of Missouri Supreme Court Rule 37.89, 42 Mo.L.Rev. 168 (1977).

      .The statement could have meant “Yes, I will take the test, but there is no need to do so because I am intoxicated,” or it could have meant “No, I will not take the test because there is no need to do so because I am intoxicated” as well as several other possibilities.

      . Kesler v. Department of Motor Vehicles, 1 Cal.3d 74, 81 Cal.Rptr. 348, 459 P.2d 900 (banc 1969), cert. den., 397 U.S. 989, 90 S.Ct. 1121, 25 L.Ed.2d 396 (1970) — motorist insisted on taking all three tests authorized by statute which amounted to a refusal; Newman v. Smith, 481 S.W.2d 679 (Ky.1972) — “God damn your old test” is a refusal; State v. Lyon, 129 Vt. 141, 274 A.2d 478 (1971) — driver would take test if officer would sign statement that if driver got infection he could sue officer.

      . The court reversed and remanded the cause because the trial court placed the burden of proof upon the licensee to show that his license was unlawfully suspended.


source: Caselaw Access Project

author: McMILLIAN, Presiding Judge.

license: Public Domain

text:
    Virgil Lee Roy DUNCAN, Plaintiff-Respondent, v. Deronda Mildred DUNCAN, Defendant-Appellant.
    No. 38173.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 26, 1977.
    Dearing & Hartzog, Robert L. Hartzog, Clayton, for defendant-appellant.
    Daniel M. Buescher, Union, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

The husband instituted this action to obtain a dissolution of the parties’ marriage and a division of certain real and personal property. Purported service was by publication pursuant to Rule 54.17, V.A.M.R. The wife did not appear and a default judgment dissolving the marriage and dividing the property was entered. Subsequently, the wife filed a “motion to quash judgment and for modification of judgment” on the grounds of deficiencies in the published notice. The trial court overruled the motion and the wife appealed.

At oral argument, counsel for both parties accepted the fact of the dissolution of the marriage. Counsel further agreed that the failure of the published notice to include a “description of any property to be affected” as required by Rule 54.17(c)(3), V.A.M.R., invalidated those portions of the trial court’s order dividing the property. We concur. See Driscoll v. Konze, 296 S.W.2d 31, 33 (Mo.1956). As properly requested by counsel, therefore, we reverse the trial court’s order as it relates to the division of property and remand the cause for further proceedings to effect the division of property.

STEWART and REINHARD, JJ„ concur.


author: JAMES R. REINHARD, Special Judge.

text:
    Gizella MAHLER, Plaintiff-Respondent, v. Richard TIEMAN and Mary Ann Tieman, Defendants-Appellants.
    No. 37529.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 26, 1977.

      Whaley & McAuliffe, Clyde C. Farris, Jr., Clayton, for defendants-appellants.
    Edward T. Wright, Sr., Edward T. Wright, Jr., St. Louis, for plaintiff-respondent.
   JAMES R. REINHARD, Special Judge.

This is an appeal by defendants from a decree in equity creating a constructive trust in land and ordering that title be transferred by defendants Mary Ann Tie-man and her husband, Richard Tieman, to plaintiff Gizella Mahler. The court also rendered judgment on defendants’ cross-bill in favor of the defendants in the amount of $3,214.12 plus $85.05 interest for loans made to the plaintiff.

When this suit commenced, the title to the property, a residence in Webster Groves, Missouri, was held by the parties as joint tenants. Both sides claim ownership of the entire fee. Plaintiff claims defendants purchased the property on her behalf but put their names on the title. The defendants claim they purchased the property for themselves under an agreement by which the plaintiff could rent the premises.

The undisputed facts are as follows: Mrs. Mahler is the mother of Mary Ann Tieman. She was 82 years of age at the date of trial, worked as a seamstress most of her life, and had no experience with real estate purchases. Defendant Mary Ann Tieman is a school teacher, she and her husband own sixteen apartments, and both are experienced in real estate purchases.

In the spring of 1969 Mrs. Mahler asked the defendants to advise her in the purchase of a home. Her decision to purchase a home arose after Mrs. Tieman and Mrs. Mahler’s minister convinced the plaintiff to move from the home of “the Albachs”. The defendants had offered Mrs. Mahler a room in their house, but she declined, preferring to have the privacy of her own place.

In May, 1969 Mrs. Mahler became interested in the property which is the subject of this lawsuit and went to the realtor with her daughter. On May 5, 1969 a sales contract was signed by Mrs. Mahler wherein she offered to pay $10,000.00 for the property with a $2,500.00 down payment. When the realtor presented the contract to the seller it was refused and the seller sent Mrs. Mahler a counter-offer of $11,000.00 with a $3,500.00 down payment. The second offer was made by interlineation on the original contract; only the amounts and acceptance date were changed. Acceptance of the counter-offer was shown by the initialing of the changed portions by the seller and Mrs. Mahler. Both Tiemans were present when Mrs. Mahler signed on May 5, 1969.

Mrs. Mahler had intended to pay the original down payment herself with some $1,600.00 which she had saved and another $1,200.00 owed her by the Albachs. She learned, however, that she would be unable to collect the money from the Albachs. After the second offer was made and accepted, Mrs. Mahler needed an additional $2,000.00 to make the down payment. She received $500.00 from her son in California, which she repaid within two months after the purchase. Defendants contributed over $1,600.00 to the down payment.

Mrs. Mahler delivered the $1,600.00 of her own money and the $500.00 loaned to her by her son to the Tiemans. On May 28, 1969 the closing took place with the Tiemans present. Mrs. Mahler did not attend. She entered the hospital shortly after the closing and according to Mrs. Tieman was “near death”. The property was transferred by a deed which listed Richard Tieman and Mary Ann Tieman, his wife, as the sole owners of the property. They obtained a loan in the amount of $7,500.00 from Lafayette Federal Savings & Loan Association of St. Louis. On June 16, 1969 the Tiemans executed a note and deed of trust in favor of Lafayette Federal. The plaintiff moved into the house in May, 1969 and continues to reside there.

The written contract between Mrs. Mahler and the seller had a clause which stated: “Deed to Mrs. Gizella Mahler and Mrs. Mary Ann Tieman.” Mrs. Tieman signed the contract under the signature of Mrs. Mahler. Mrs. Tieman did not initial the changes. There is no explanation as to why the clause above was in the contract since Mrs. Tieman testified that she did not sign as purchaser but only at the request of the realtor to show that she was in agreement with her mother. She further testified that at the time of the execution of the contract between her mother and the seller, her mother was to be the sole purchaser and owner of the property. The defendants base their claim to title on a subsequent oral agreement between them and plaintiff, and not on the written document.

On August 30,1969 a quit claim deed was executed deeding the property from defendants to Gizella Mahler, Richard Tieman and Mary Ann Tieman, his wife, as joint tenants. This was done to satisfy the Division of Family Services so that Mrs. Mahler could obtain welfare. Defendants’ cross-bill in this action sought to have plaintiff’s name removed from the deed because the transfer was made without consideration.

The parties dispute those facts which concern the intent of the parties in making various contributions towards the purchase and maintenance of the property. Mrs. Mahler testified that the Tiemans’ money was a loan (the same as her son’s); that her daughter had offered to give her all the financial help she needed in the purchase; that she had attempted several times to repay the loan; that she had not intended that the Tiemans share in the ownership of the house; and that she thought their names appeared on the deed because of the loan.

The Tiemans deny their contribution was a loan. Mrs. Tieman testified that the parties made a detailed oral agreement which provided for the Tiemans to purchase the property in their names alone; that this agreement came about when her mother accepted the counter-offer on the house; that her mother did not have the financial ability to meet the terms of the contract and was about to lose her $600.00 earnest money; that the agreement provided that her mother would give the Tiemans her $1,600.00 (which she had saved for her funeral) plus the $500.00 from her son; that the Tiemans would in return pay for her funeral, purchase the property in their own names, and rent it to her; that Mrs. Mahler would pay the mortgage payments and a one-year premium on the house; and that they would be responsible for the major repairs. Defendants documented $1,603.34 for the down payment, $1,326.68 (twelve mortgage payments), and about $275.00 for other expenses.

Mrs. Tieman testified that she and her husband had acted as owners in that they took out the mortgage in their own names; that they made payments on the house when Mrs. Mahler was unable; that they undertook various repairs around the house; and that they made some insurance payments. Mrs. Tieman admitted that she did not report Mrs. Mahler’s payments as rent on her tax returns; that she had never purchased a prepaid funeral for her mother; and that her mother had made demands for the title. She further testified that she went into the transaction as part investor and part protective daughter.

Mrs. Mahler denied the creation of a rental arrangement or any discussion of a prepaid funeral. She denied that she had saved her money for a funeral. She testified that she had made most of the mortgage payments during the four years and that she had made her payments directly to the lien holder. She claims she requested her daughter to make some of the payments so that she could save money to go to Europe on two different occasions to visit her sick sister. She testified that these were the only substantial sums that her daughter paid toward the purchase and upkeep of the house other than the amount paid toward the down payment.

In the court’s decree it found that the plaintiff had purchased the property through defendants as her agents, but that defendants failed to have title transferred to Mrs. Mahler. The court decreed that the defendants held the property in constructive trust for the plaintiff and ordered the property conveyed to plaintiff. The court also found that the Tiemans had loaned money in the amount of $3,214.12 toward the purchase and maintenance of the property, and therefore ordered the plaintiff to pay this sum plus interest to defendants.

On appeal, the defendants argue the court erred in finding a constructive trust existed because: 1) the plaintiff was permitted to introduce evidence of a constructive trust although it was not raised in the pleadings, and 2) the finding goes against the weight of the evidence. Plaintiff’s petition alleged that she purchased the real estate and subsequent thereto the defendants had plaintiff transfer it to the names of the plaintiff and defendants for the purpose of avoiding probate with the full assurance to her that she could have it transferred back to her sole name. On the morning of the trial the plaintiff attempted to amend the pleading to state that the legal theory of her pleaded facts was a constructive trust. Plaintiff stated the amendment did not change the substance of her suit. Defendant Mary Ann Tieman objected saying she would be inept in defending against the added phrase. The court sustained the objection. No other objection was made by the defendants to any testimony or evidence admitted throughout the trial.

The defendants’ argument in effect is that their original objections to the amendment of plaintiff’s petition should be construed as a continuing objection. This is without merit. If they desired to restrict the trial court to the issues pleaded they should have made an appropriate objection to the evidence which was beyond the scope of plaintiff’s petition. Harris v. Goggins, 374 S.W.2d 6 (Mo. banc 1963).

Defendants failed to object to any evidence introduced and this is fatal to their first point on appeal. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” Supreme Court Rule 55.38(b). The court did not err in considering unobjected to evidence since the pleadings may be considered as amended to conform to the proof. Heald v. Erganian, 377 S.W.2d 431 (Mo.1964). The trial judge was generous in the assistance he gave the pro se defendants, but he was not obliged to make objections for them to testimony which did not conform to the pleadings.

The defendants argue that a finding of constructive trust is against the weight of the evidence. This being a court-tried case, we review upon both the law and the evidence, giving deference to the trial court’s findings and its opportunity to observe the credibility of the witnesses. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In cases where the petitioner seeks the creation of a constructive trust, the petitioner’s burden is a great one. To establish a constructive trust in land, an extraordinary degree of proof is required; proof so clear, cogent and convincing as to exclude all reasonable doubt from the mind of the court. Murphy v. Olds, 508 S.W.2d 249 (Mo.App.1974); March v. Gerstenschlager, 436 S.W.2d 6 (Mo.1969); Purvis v. Hardin, 343 Mo. 652, 122 S.W.2d 936 (Mo. banc 1938).

“[A] constructive trust is the method or formula used by a court of equity as a means of effecting restitution or of rectifying a situation where, as the result of the violation of confidence or faith reposed in another, or fraudulent act or conduct of such other, the plaintiff, who seeks the aid of equity, has been wrongfully deprived of, or has lost, some title, * * * in the property which, otherwise and but for such fraudulent or wrongful act or conduct, he would have had.” Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8, 15[3] (1938).

Defendants argue that there is no evidence of fraudulent conduct. If a fiduciary or confidential relationship exists between the alleged trustee and the beneficiary, no proof of fraud is necessary in order to establish a constructive trust. Bo-gert on Trusts, § 498, pp. 268-9; Scott on Trusts, § 462, p. 3412; Swon v. Huddleston, 282 S.W.2d 18 (Mo.1955). The breach of a confidential relationship is, in itself, a constructive fraud (Bogert on Trusts, § 498).

Although a confidential relationship cannot be precisely defined, it is generally synonymous with a fiduciary relationship. Equity does not limit the circumstances wherein a fiduciary relationship may exist but will look for those instances where a special confidence is reposed on one side with a resulting influence on the other. “The question is always whether or not trust is reposed with respect to property or business affairs of the other.” Service Life Insurance Co. of Fort Worth v. Davis, 466 S.W.2d 190, 196[6] (Mo.App.1971). A confidential relationship is not proved merely by a showing of blood ties or family connection. Beach v. Beach, 207 S.W.2d 481, 486[6] (Mo.1947).

The mother did not attend the real estate closing and the trial court found that the defendants appeared in her behalf, to act as her agents in the purchase of the subject property. A valid agency may be found where the conduct of the parties manifests the consent of one person to another that the other shall act on his behalf and be subject to his control and consent by the other so to act. The manifestation of consent may be conduct without any contract between principal and agent. Utlaut v. Glick Real Estate Co., 246 S.W.2d 760 (Mo.1952); McKeehan v. Wittels, 508 S.W.2d 277 (Mo.App.1974). The record reveals conduct of the parties sufficient to support the trial court’s finding and, in addition, indicates the existence of a confidence much beyond the agency relationship. Murphy v. Carrón, supra.

Defendants had offered plaintiff a place to live in their home. The daughter had encouraged her mother to move from where she was living. Defendants, knowledgeable in real estate affairs, served as advisors in the purchase of the home. Plaintiff gave the defendants the money she had for the down payment including that loaned to her by her son. Mrs. Mahler expressed trust in her daughter and the record shows a willingness by Mrs. Mahler to be influenced by her daughter in her business affairs.

The question which remains is whether the Tiemans breached this relationship by having their names put on the deed instead of Mrs. Mahler’s. This case is one with conflicting evidence. The trial court chose to believe the plaintiff. The court found that the defendants had breached the confidential relationship by placing title in their own names.

The plaintiff testified that she was the sole owner of the property and the defendants’ contribution was a loan which she tried to repay. Her testimony is supported by substantial evidence including: the undisputed facts surrounding the negotiations and execution of the contract which show plaintiff was to be the sole purchaser; plaintiff, not defendants, repaid the $500.00 loaned by Mrs. Mahler’s son; plaintiff contributed significantly more money toward the purchase of the house, including the real estate taxes which were included in the loan payments; and defendants admit that Mrs. Mahler offered to repay the money they spent towards the purchase of the house. Further, defendants’ conduct is not consistent with their version of the arrangement in that no prepaid funeral was purchased; the payments to Lafayette Savings were not treated as income by defendants on their taxes; and no rental agreement was prepared for this detailed arrangement despite defendants’ experience in the rental business. These facts, plus the relative positions 'of the parties as regards their age, experience and influence, constitute evidence of constructive trust which is clear, cogent and convincing. We agree with the trial court’s finding of constructive trust.

We are not unaware of the fact that the defendants are the sole obligors of the note with a balance due of less than $5,000.00, which is secured by a deed of trust on this property. In defendants’ pleading they admitted that the real estate was worth approximately $16,000.00. This serves as security for this loan and should be more than sufficient to protect the defendants from liability thereon. The circumstances surrounding this entire transaction further lead us to the conclusion that the defendants acted improperly and undertook these obligations in furtherance of the improper act. The court could not give defendants relief in this regard, but have made the defendants whole by the judgment on the cross-bill in their favor for $3,299.17.

Defendants claim that the lending agents should have been joined as a party in this suit under Rule 52.04(a). At issue in this action is the title holder of the subject property. As long as the mortgagee has a first lien on this property, it has no interest in who owns the title and joinder of it would not affect defendants’ claim to the title.

The decree of the trial court is affirmed.

KELLY, P. J., and GUNN, J., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Joseph and Mary BRICE, Plaintiffs-Appellants, v. The UNION ELECTRIC COMPANY, Defendant-Respondent.
    No. 37897.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 26, 1977.

      Edmund W. Albright, St. Louis, for plaintiffs-appellants.
    Sehlafly, Griesedieck, Ferrell & Toft, Charles G. Siebert, St. Louis, for defendant-respondent.
   NORWIN D. HOUSER, Special Judge.

This is a suit for damages brought by Joseph Brice against Union Electric Company, with a count for loss of services and consortium by his wife Mary. Following a jury verdict for $3,780 for Joseph and $1 for Mary the trial court sustained defendant’s post-trial motion for judgment notwithstanding the verdict and entered final judgment for defendant. Plaintiffs appealed.

Under contract General Installation Company agreed with Union Electric to inventory, load and transfer surplus pipe, fittings, valves and miscellaneous supplies from the latter’s Labadie plant in Franklin County to its Rush Island Plant. Brice, an employee of General Installation, while working in the pipe yard of Union Electric at the Laba-die complex, looking for material to load on a truck, sustained injuries as a result of stepping on a to 3 inch nail, which punctured his foot.

The pipe yard was large — a quarter of a mile square. The whole area was covered with miscellaneous materials and objects lying around on the ground. Pallets, piping, flanges, bends, elbows, all types and sizes of pipe fittings, debris, paraphernalia, crates, boards, etc. were scattered around and spread out on the ground. Grass and weeds grew in clumps and material was “laying in this stuff.” The yard was littered, cluttered, with “stuff thrown around . more or less a bunch of junk.” Ordinarily flanges and various kinds of paraphernalia in pipe yards are not stacked up in neat piles. Brice’s job was to examine a list of needed materials, search for the desired items in the yard, load them on a truck and have a Union Electric employee inventory and check the items out as they left the premises.

On the day of the injury, March 15, 1974, Brice knew that it was important to watch where he was walking. There were no clear walkways Brice could have walked on to get to the material for which he was looking. After working in the yard for an hour and a half, threading through the debris, looking for the desired items, he came to a particularly large pipe fitting, a 90° elbow 21 inches in diameter. He could not have walked around this pipe fitting because the yard was “cluttered with material.” There was so much “junk lying around” that he had to step over it, which he chose to do instead of stepping on flanges “and stuff like that.” As he stepped over the pipe fitting and as his, foot came down on the other side a nail went into his foot.

The protruding nail had been driven through a board 2 or 3 feet long, 3 inches wide, and ¾ inch thick. The board was not a new board. It was a piece of crating lumber, dark gray to brown in color, sunk or “set” in the mud to a depth of an eighth to a quarter of an inch, surrounded by inch-high grass . . . “stuck in the mud and grass.” There were crates in the yard in 1972, when Brice had previously been there. When Brice raised his foot after stepping on the nail the board came up with his foot, leaving a depression in the ground. There was grass around the board, but no grass where the board had been “setting.” The board “had been there for quite some time.”

Brice was watching where he was walking when he stepped over the pipe fitting . watching where he was stepping. He said “ * * * as you walk along you are looking at the ground, looking for the particular items on the list,” and indicated that another purpose of looking is to avoid stepping on something dangerous that comes within your line of vision. Brice walked to the pipe fitting, looked down, did not see anything, and stepped over. He looked over the 21-inch fitting before he stepped to see where he would be stepping. His “reason for stepping over was looking around, and that looked like the easiest way to go.” He was looking where he was going when he stepped. He did not see the board or the nail. One could not see the board when “stepping about a foot in front of” the pipe fitting. Both the fitting and the grass surrounding the board obscured his vision. He stepped where he could not see. Part of the board was “way under” the pipe fitting, “laying up against the other side of the fitting.” The board was lying so close to the fitting that he did not know whether he could have looked over the fitting and seen the board. By bending over and looking carefully over the fitting he could have seen the entire board, but he “might have had to move the fitting to see it.” He did not bend or look completely over the fitting to see where he was going to step because he saw nothing “that would indicate it would take a closer look by bending over.”

Plaintiffs submitted to the jury negligent failure of Union Electric to remove a condition on the surface of its lot (board with protruding nail) known to defendant, actually or constructively, and not known to plaintiff by exercise of ordinary care, as a result of which the surface was not reasonably safe for employees of General Installation. Defendant submitted the defense of contributory negligence.

The vital, dispositive issues on this appeal are (1) whether Brice made a submissible case of knowledge on the part of Union Electric, actual or constructive, of the dangerous condition of its land; (2) whether Brice had equal or superior knowledge or opportunity to obtain knowledge of the dangerous condition than did Union Electric; (3) whether Brice was exercising ordinary care for his own safety or was guilty of contributory negligence as a matter of law.

In determining these factual issues we consider the evidence in the light most favorable to Brice, and accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence. Bridges v. Arkansas-Missouri Power Co., 410 S.W.2d 106, 108 (Mo.App.1966). There were no witnesses to the casualty other than Brice. Union Electric introduced no evidence other than eight pages from Brice’s deposition.

The following was sufficient evidence to make a submissible case of constructive knowledge of the dangerous condition on the part of Union Electric: The yard was owned and operated by Union Electric and under its control. Uniformed guards were employed by Union Electric to protect the property, admit persons lawfully on the premises to look for and remove items and material from the yard, and to inventory, check out and authorize such removal. The cluttered, littered condition of disarray had existed since 1972, a period of two years. The nail protruded from a piece of crating lumber. Crates had been observed lying in the yard in 1972. The lumber in which the nail was driven was not new lumber; it was weathered in appearance, dark gray to brown in color. It was imbedded in the mud, surrounded by growing grass, but there was no grass in the depression from which the piece of wood was lifted. From the foregoing the jury could infer that the lumber, with the 2V2 to 3 inch nail protruding therefrom, had been in the same place for an extended period of time, long enough that Union Electric, through its employees in charge of the yard, could and should have known of the dangerous condition in time to have removed it.

The evidence does not demonstrate as a matter of law that Brice had equal or superior knowledge or opportunity to obtain knowledge of the dangerous condition. Unlike the grease on the floor and feet of the ladder in Hokanson v. Joplin Rendering Co., Inc., 509 S.W.2d 107 (Mo.1974), which was open, obvious and apparent if the invitee had only looked and was actually known to him, the dangerous condition in this case was hidden from Brice. At Brice’s position as he approached the 21-inch circular pipe fitting the piece of lumber with the protruding nail was not visible to him. It was “way under” the fitting, “laying up against the other side,” so close to the fitting that there was a question whether it could have been seen even if Brice had bent over the large object and looked down. It could not have been seen from a position one foot in front of the fitting. It might have been necessary to move the fitting in order to see it from Brice’s vantage point. There was no duty on Brice to bend over the fitting and peer below it or move the fitting to obtain knowledge with respect to conditions awaiting him on the. other side. Brice knew that all kinds of miscellaneous items, including “junk,” were scattered about this debris-filled area, and he knew that it was important to watch where he was walking. In other words, he knew the general conditions prevailing in the yard and the necessity of exercising care in looking to see where he was stepping. Under the cases of Gitterman v. Danella, 356 S.W.2d 52, 54-55 (Mo.1962), and Davidson v. International Shoe Co., 427 S.W.2d 421 (Mo.1968), however, his knowledge of the general condition from which the danger arose did not necessarily constitute knowledge and appreciation of the danger actually encountered. Asked whether within the hour before the accident he had inspected the area to see if there was anything dangerous on the ground that he might step on, Brice stated he glanced over the area, and started to answer by saying “ * * * if I would have thought I would have seen anything dangerous, I probably would have — at which point counsel for defendant interrupted and Brice’s answer was never completed. There is no evidence showing that Brice had actual knowledge of the existence in the yard of dangerous nails protruding from boards, broken glass with sharp edges, or other objects lying on the ground among the fittings which would be dangerous to persons walking through the miscellany. Except for the nail that caused the injury there is no evidence of the existence of such objects in the yard. In the absence of evidence of the existence in the yard of dangerous objects of this nature, knowledge of a dangerous condition such as the board and nail in question is not to be imputed to Brice. Brice was in this yard on one occasion in 1972 and again for an hour and a half on March 15, 1974. Uniformed employees of Union Electric worked at guarded and supervised the operation of the yard and were in charge of all items and materials in the yard. It may be inferred that these employees were on the job at all times the yard was open for business. It cannot be said as a matter of law under the evidence in this case that Brice had equal or superior knowledge or a better opportunity to obtain knowledge, of the hidden, dangerous condition than did Union Electric through its employees.

Nor is Brice to be convicted of contributory negligence as a matter of law, under the evidence. For an invitee to be convicted of contributory negligence as a matter of law in walking into a dangerous situation the danger must hot only be known to the plaintiff but also must be so obvious and glaring that a reasonably prudent person would not do so. Burch v. Moore’s Super Market, Inc., 397 S.W.2d 590, 594[5] (Mo.1965); Newberry v. City of St. Louis, 335 Mo. 1, 70 S.W.2d 546 (1934); Carden v. Lester E. Cox Medical Center, 519 S.W.2d 338, 342[6] (Mo.App.1975); O'Connell v. Roper Electric Co., Inc., 498 S.W.2d 847, 854[6] (Mo.App.1973); Evans v. Sears, Roebuck & Co., 104 S.W.2d 1035, 1040[9] (Mo.App.1937). In Bollman v. Kark Rendering Plant, 418 S.W.2d 39, 46 (Mo.1967), an invitee case, the following rule announced in an employer-employee case was held applicable to a plaintiff: “He will not be declared guilty of contributory negligence as a matter of law unless the danger is so glaring, open and obvious as to threaten immediate and almost certain injury, or that a man of ordinary prudence would not attempt to occupy the place or use the machinery.” That is not the situation here. Both elements (open, obvious, glaring danger, and knowledge of the danger) are absent. Brice did not concede that he had knowledge or appreciation of the dangerous condition which caused his injury. On the contrary he testified that he did not see the board or nail before the casualty. They were out of his sight, not visible from the direction he approached — in effect hidden from his sight, unless he bent over and scrutinized the other side of the fitting, or moved the fitting to reveal what lay underneath on the opposite side. This is not the case of an open, obvious, apparent and glaring danger. Brice’s testimony was that he did watch where he was stepping; that he looked down, and looked over the fitting, to see where he was stepping, and a jury could find that what he did was all that was required under the circumstances to constitute ordinary care for his own safety. True enough, if he had bent completely over the fitting and had looked down and back to the point of contact between fitting and ground he would have seen board and nail. Likewise, if he had moved the large fitting he would have seen board and nail. The requirement that Brice exercise ordinary care, however, did not impose upon him the duty to take such extraordinary precautions. This is especially true in view of his testimony that he saw nothing to indicate that he should “take a closer look by bending over.” In Bond v. Kansas City Transit, Inc., 401 S.W.2d 440, 443 (Mo.1966), the Supreme Court adverted to the rule that “a plaintiff is not under a duty to look closely for danger where there is no reason for him to anticipate danger.” There was nothing about the appearance of the fitting or the surroundings to give Brice cause to anticipate that he would step on something on the other side that would cause him harm. “One cannot be found to be negligent in failing to take precautions against danger of which he is not aware and [the] existence of which he has no reason to suspect.” Shute v. Prom Motor Hotel, Inc., 446 S.W.2d 137, 142[8] (Mo.App.1969).

Considering the evidence in the light most favorable to Brice, and according him the benefit of the favorable inferences to which he is entitled, the question whether he was negligent in failing to look where he was stepping was a question of fact for the jury.

Judgment reversed and cause remanded with instructions to set aside and vacate the order of February 3, 1976 and reinstate the verdict and judgment rendered on the 24th day of October, 1975 in favor of plaintiffs and against defendant.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.

      . This distinguishes the cases cited by respondent, Bond v. Kansas City Transit, Inc., 401 S.W.2d 440 (Mo.1966), and Kobusch v. Ruberoid Co., 355 Mo. 48, 194 S.W.2d 911 (1946). In Bond plaintiff did not look to see where she was stepping. In Kobusch plaintiff did not look to see if the crane was approaching him.


text:
    Leland KELLER and Diane Keller, d/b/a Valentine Resort, Plaintiffs-Respondents, v. James DEVINE and Norma J. Devine, d/b/a Villa Devine, Defendants-Appellants.
    No. 9867.
    Missouri Court of Appeals, Springfield District.
    May 3, 1977.
    Claude T. Wood, Dale H. Close, Wood & Close, Richland, for defendants-appellants.
    Ronald K. Carpenter, Charles E. Mc-Elyea, Phillips & McElyea, Camdenton, for plaintiff s-respondents.
   PER CURIAM.

Plaintiffs Leland Keller and Diane Keller are the owners and operators of Valentine Resort located in Osage Bridge Subdivision in Camden County, Missouri. The resort consists of a motel, restaurant and a marina. Defendants James Devine and Norma J. Devine are the owners and operators of Villa Devine located in the same subdivision. Villa Devine consists of a motel and a restaurant. “To a degree” the parties are business competitors.

The petition was in three counts. In Count I plaintiffs sought injunctive relief restraining defendants from interfering with a certain sign (including painting it or removing it) which advertised Valentine Resort. In Count II plaintiffs sought actual and punitive damages based upon defendants’ willful and malicious damaging of the sign. In Count III plaintiffs sought injunctive relief against defendants’ interference with plaintiffs’ use of Littler Road located in Osage Bridge Subdivision. Count III alleged that on November 29, 1971, defendants “closed Littler Road by bulldozing part of it out and blocking [it] by large mounds of rock and dirt.” Plaintiffs alleged that such closing of Littler Road “is a nuisance to plaintiffs” and requested a mandatory injunction requiring defendants “to remove the nuisance” and enjoining defendants “from maintaining any obstruction or nuisance upon Littler Road.”

The trial court, sitting without a jury, granted plaintiffs the injunctive relief requested by Count I and Count III. On Count II the court found the issues in favor of plaintiffs and awarded them $400 actual damages and $1,000 punitive damages. Defendants appeal.

Defendants challenge the propriety of the trial court’s decree with respect to Count I and Count III. Defendants make no complaint concerning the disposition of Count IÍ.

Missouri State Highway No. 5 runs generally east and west across the northern portion of Osage Bridges Subdivision;' That part of the subdivision which lies south of Highway 5 contains three roads: James Road, Gallagher Road, and Littler Road. James Road runs generally north and south and intersects Highway 5. Gallagher Road, which lies some distance west of James Road, also runs generally north and south and it, too, opens onto Highway 5. Littler Road runs generally east and west, parallel to Highway 5, and connects James Road with Gallagher Road. The center line of Littler Road is approximately 140 feet from the south edge of Highway 5.

The plaintiffs are the owners of a sign which partially obstructs that portion of Gallagher Road which lies between Littler Road and Highway 5. The sign is a large one, standing on poles approximately 30 feet apart. Both poles lie within Gallagher Road, which has a width of 40 feet. Count I of the petition sought injunctive relief restraining defendants from interfering with the sign.

Count III of the petition sought a mandatory injunction requiring defendants to remove an obstruction in Littler Road. The only obstruction mentioned in the petition consisted of “large mounds of rock and dirt” which, it may be inferred from the record, had been removed prior to the trial. During the trial the plaintiffs introduced a survey which purported to show that a portion of defendants’ motel building partially obstructed Littler Road. The encroachment by the motel building apparently had not played a part in the institution of the action and the plaintiffs became aware of that encroachment during the course of their trial preparations. The offending portion of the motel building is “around the corner” from the offending sign, the former being approximately 100 feet south and 300 feet west of the latter.

In effect the plaintiffs sought injunctive relief, which the trial court granted, restraining defendants from interfering with plaintiffs’ partial obstruction of Gallagher Road and ordering defendants to remove their partial obstruction of Littler Road. The equitable doctrine of “unclean hands” is a bar to such relief.

“The maxim that he who comes into equity must come with clean hands is a cardinal one. It touches to the quick the dignity of a court of conscience itself. Hence, its application does not depend upon the aver-ments of the pleadings, or the wish of counsel, but it may be invoked and applied, ex mero motu, by the court.” Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118, 1122[9] (1908). See also Leeper v. Kurth, 349 Mo. 938, 163 S.W.2d 1031, 1033[2] (1942); Jones v. Jefferson, 334 Mo. 606, 66 S.W.2d 555, 560 (1933).

In Wainscott v. Strode, 237 S.W. 196 (Mo.App.1922) plaintiff sought an injunction requiring the removal of a wrongful obstruction of a road by defendant. The trial court found that plaintiff himself had obstructed the road and was “not in a position to maintain this action.” The court of appeals, in affirming, said at p. 197:

“It is not necessary to repeat here the old equity maxim that he who comes into a court of equity must come with clean hands. The court was right in declaring that plaintiff, by obstructing the passageway in question, is not in a position to maintain this action against defendants.”

Other authorities support the proposition that the conduct of plaintiffs in maintaining an obstruction of Gallagher Road bars their claims to injunctive relief under Count I and Count III: Duke v. Crossfield, 241 Mo.App. 579, 240 S.W.2d 180, 183[4] (1951); Rose v. Houser, 206 S.W.2d 571, 576[3, 4] (Mo.App.1947); Union Elec. Land & Dev. Co. v. De Graffenreid, 229 Mo.App. 622, 78 S.W.2d 571, 572 (1934).

Those portions of the judgment which granted plaintiffs relief on Count I and Count III of the petition are reversed; defendants having made no complaint concerning the disposition of Count II, the portion of the judgment granting plaintiffs relief on Count II is affirmed.

It is so ordered.

All concur.


author: HENRY, Justice. BROCK, Justice,

text:
    Richard Haynes RIPPY and Joe Ned Crenshaw, Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    May 2, 1977.

      Joe P. Lane, Jr., Carthage, Frank D. Far-rar, Lafayette, for petitioners.
    R. A. Ashley, Atty. Gen., R. Jackson Rose, David Raybin, Asst. Attys. Gen., Nashville, Nat Baxter Key, Jr., District Atty. Gen., Carthage, for respondent.
   OPINION

HENRY, Justice.

Petitioners were convicted of murder in the first degree in the Criminal Court at Hartsville and sentenced to death by electrocution. The Court of Criminal Appeals affirmed the convictions, and we granted certiorari.

These convictions grew out of an armed robbery that occurred on the night of 3 May 1974, of a liquor store located in Hartsville, the county seat of Trousdale County, resulting in one man being killed and another being wounded.

Numerous errors have been assigned and, in view of the gravity of the offense and the severity of the punishment, we consider it appropriate to deal with them seriatim, except to the extent of those patently without merit.

I.

It is first insisted that the evidence is insufficient to support the convictions. These petitioners were found guilty of murder in the first degree by a constitutionally constituted jury. The verdict of the jury was approved by the trial judge. The Code of Criminal Appeals has determined that the evidence was sufficient to support the convictions. We concur in these findings and conclusions.

II.

Each petition challenges the action of the Court of Criminal Appeals in sustaining the trial judge’s denial of a motion for a change of venue.

The record reflects that the defendants called twelve witnesses, including the two petitioners, in support of their motion. Only three of them were residents of Trous-dale County. Much of the testimony was of questionable competence. Viewing it in its most liberal light to the defendants, the testimony was conclusory in character with little or no factual foundation. Defendants called the Sheriff and one of his deputies, the son of one of the victims. The trial judge could have found from their testimony ample support for his denial of the motion.

Great reliance is placed upon an incident which occurred on November 11, 1974, the date upon which a hearing was conducted on a plea in abatement, and involving an alleged assault on petitioners by the surviving victim. Also on the same date there was testimony that a female spectator in the courtroom made certain ugly remarks and used offensive language; and that one of the lawyers was the victim of a mild threat and a threatened assault.

Accepting all these at full and face value, petitioners made no case for a change of venue. We cannot bring ourselves to believe that there was any serious question about a fair trial. The hearing upon the plea in abatement was conducted on November 11, 1974. The petitioners did not move the court for a change of venue until January 3, 1975, a total of fifty-three days after the occurrence of the events upon which the motions were primarily based.

Section 40-2201, T.C.A. provides that venue may be changed where “from undue excitement against the prisoner in the county where the offense was committed, or any other cause, a fair trial could probably not be had.” We find nothing in the record to indicate undue excitement or other cause for a change in the locale of the trial. We note that jury selection was completed in one day and that one of the petitioners did not exhaust his peremptory challenges.

The matter of a change of venue addresses itself to the sound judicial discretion of the trial judge and his decision must be respected absent an affirmative and clear abuse of that discretion. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121 (1967).

This assignment is without merit.

III.

Petitioners earnestly insist that they were prejudiced by a tainted out-of-court identification. After the jury was sworn, but before the introduction of proof, a motion to suppress was made and an evidentia-ry hearing was conducted.

After petitioners were arrested in New York City and had been returned to Tennessee, they were placed in confinement in the Smith County Jail at Carthage. While there, A. L. (Slim) Roddy, the surviving victim came to the jail and to the cell occupied by the petitioner, Crenshaw. The Sheriff, according to Crenshaw, said: “Ain’t that the one?” Roddy answered in the affirmative. This occurred prior to the preliminary hearing. The then Sheriff of Smith County testified very briefly and said that he took an unidentified man to see petitioners and he said: “Them is the ones.”

Petitioners occupied the same cell. It is Rippy’s testimony that he left the cell to make a telephone call and while in the jail office he saw a man on crutches, who obviously was Slim Roddy, who got a good look at him.

Both petitioners testified that they had requested that counsel be appointed prior to the identification in the Smith County Jail; however, the trial judge refused to permit them to document their requests.

Subsequently, at the preliminary hearing, Roddy identified the petitioners.

The State called Roddy in opposition to the motion. He insists that he drove over to Carthage at the invitation of his brother and concedes that while there he saw petitioners. He said:

When I saw them, I knowed what they had done.

He testified to the lighting conditions on the premises of the liquor store — floodlights on the outside and on the inside, “three rows of lights plumb through the building, and they is lights around the tops of all the shelves around the store except the front.”

He first saw the petitioners when they were inside the store standing at the counter, about two and a half or three feet away from him. After Crenshaw shot his coworker, Roddy jumped across him, trying to reach his gun. But, he says “I was looking over my shoulder still looking at them, and that one over there shot me with a shotgun.”

When asked if their faces made an impression on him he responded: “I see it in my sleep now.” He stated positively that the identification at the jail had no effect upon him. He explains his visit to the Smith County Jail as being prompted by a desire to “know whether that was them, or not.” He had previously given a description of them to the Tennessee Bureau of Identification. On re-direct examination he testified that he wanted to “ease” his mind; that he was apprehensive over his personal safety since he was the only living eyewitness.

The trial judge specifically found that Roddy’s explanation for wanting to see petitioners was entirely reasonable. We concur.

The record is devoid of proof that the identification was rigged or planned, or even that anyone officially connected with the prosecution had any advance knowledge of it or participated to any extent. There was no formal line-up or show-up.

We hold that the out-of-court identification was not so suggestive as to give rise to any substantial likelihood of irreparable misidentification. It, therefore, squares with the great trilogy of cases decided by the Supreme Court of the United States in 1967, viz: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

In Wade the Court spoke in terms of “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” (Emphasis supplied). 388 U.S. at 228, 87 S.Ct. at 1933.

In Gilbert the Court held that a post indictment, pretrial lineup is a critical stage of a criminal prosecution and, conducting it in the absence of counsel violates the Sixth Amendment and calls into question the admissibility of the identification.

Neither Wade nor Gilbert is controlling in the instant case since the prosecution was not responsible for the pretrial identification.

In Stovall, the Court announced a rule of law that:

[a] claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. . . . (Emphasis supplied). 388 U.S. at 302, 87 S.Ct. at 1972.

As we pointed out in our recent case of Bennett v. State, 530 S.W.2d 511, 513 (Tenn.1975) “the ‘totality of the circumstances’ rule of Stovall was reaffirmed in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).”

Finally, in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) an attack was made upon a show-up identification procedure. This Court had previously upheld the conviction; the United States District Court on the petition for the writ of habeas corpus held that the procedures denied due process and the United States Court of Appeals affirmed. 448 F.2d 91 (6th Cir. 1971). The Supreme Court reversed, holding that the criteria for evaluating the likelihood of misidentification include

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. 409 U.S. at 199, 93 S.Ct. at 382.

The identification in this ease, made fifty days after the commission of the crime, during a chance encounter having no official sanction, by a witness who had seen petitioners in a well-lighted whiskey store, under circumstances commanding complete attention, and made with devastating certainty, passes muster under the guidelines of Neil v. Biggers. The out-of-court identification was not tainted; the in-court identification was absolute, unconditional and independent of the chance encounter. See Kelley v. State, 478 S.W.2d 73 (Tenn.Cr.App.1972).

This assignment is overruled.

IV.

Another major insistence of the petitioners is that the trial judge erred in admitting into evidence certain clothing belonging to the petitioners which was seized as a result of an allegedly illegal search of their New York City apartment.

Petitioners were arrested on the rooftop, of their apartment by two detectives of the New York City Police Department. They had information that petitioners resided in a certain apartment. After taking them into custody they proceeded to search their apartment. When asked if they had permission to search, one of the detectives said:

I had permission of Mrs. De Jarus Foster who was the sister of the owner of the apartment to search the apartment and look around for what I was looking for.

The other detective conceded that neither petitioner gave permission for the search and testified that it was conducted by permission of “a young lady . . . the sister of the girl that runs the apartment [but who] wasn’t living in the apartment.”

To our knowledge the matter of the precise relationship that must exist between an accused and a third party authorizing a search of premises owned or occupied by him has never come under the scrutiny of the courts of this state. However, in Bays v. State, 529 S.W.2d 58 (Tenn.Cr.App.1975), the Court held that a warrantless search of the defendant’s home could not be validated by the consent of one who had no possesso-ry interest. This seems to be in accord with the prevailing law.

Thus, in Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) the Court held that a hotel clerk cannot consent for guests; and in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) it was held that a landlord cannot consent for a tenant.

As pointed out by Judge Edwards, writing for the Sixth Circuit in United States v. Nelson, 459 F.2d 884 (1972) “[t]he concept that a man’s home is his castle is an ancient one, . . . .”

The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

The Fourth Amendment to the Constitution of the United States provides:

Unreasonable searches and seizures. — The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article 1, Section 7 of the Constitution of Tennessee guarantees that “the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; .

These great constitutional guarantees are at the very apex of the personal constitutional rights of the individual citizen— rights that the state must not invade, except under the most “exigent circumstances.”

In Nelson, the Sixth Circuit catalogues these “exigent circumstances” as follows:

1. Searches of automobiles;
2. Searches incident to lawful arrests;
3. Searches based upon the plain view doctrine;
4. Those based upon consent;
5. Where there is an immediate threat of life; or
6. Those where the officer is in hot pursuit of a fleeing felon.

The mere existence of these circumstances does not necessarily validate a war-rantless search. As pointed out in Nelson, the exceptions are “jealously and carefully drawn”, Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; there must be a showing by those asserting the exemption that the exigencies of the situation made the search imperative, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; and the burden is on those seeking the exemption to show the need, United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59.

We hold that to justify a warrant-less search of premises owned or occupied by a citizen as a residence, he must give his consent, or such consent must be given by someone authorized by him, or having a common possessory interest or right, or there must exist a clear right to search under the “exigent circumstances" exemption as herein recognized and limited.

The search and seizure in this case cannot pass constitutional muster under the Federal or State Constitution, and the evidence seized thereunder was inadmissible. While this was error, we view it as harmless since other competent proof removed all doubt of petitioners’ innocence and established their guilt beyond a reasonable doubt. We find it to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Bays v. State, supra.

V.

Petitioners complain that the Grand Jury was not impartial and unbiased and its proceedings were not held secret.

The only statutory disqualification of grand jurors by reason of interest is set forth in § 40-1613, T.C.A.:

If any member of the grand jury is charged with an indictable offense, or is a prosecutor, or if the offense was committed against his person or property, or if he is connected by blood or marriage with the person charged, he shall not be present at or take part in the consideration of the charge, or the deliberations of his fellow jurors thereon.

Almost one hundred years ago this Court, in State v. Chairs and McNeal, 68 Tenn. 196, 197 (1877) declared:

[W]e do not understand that our laws require that the grand jurors shall be free from any previous opinion as to the guilt of the accused.

This same language was quoted with approval in State v. Felts, 220 Tenn. 484, 489, 418 S.W.2d 772, 774 (1967). This seems to accord with the prevailing view throughout the United States. Thus, in 38 Am.Jur.2d, Grand Jury, § 7, under the heading, “Effect of bias', prejudice, or interest” we find:

Generally, in the absence of a controlling statutory provision, a person is not disqualified or incompetent to serve as a grand juror by reason of bias or prejudice on his part, by the fact that he has heard or read about the case under investigation or has even formed or expressed an opinion as to the guilt of the accused, or by his interest in a prosecution other than a direct pecuniary interest. The reasons assigned in support of this rule are that a grand jury, being an accusatory and not a judicial body, has the right and obligation to act on its own information, however acquired; that the oath required to be taken by grand jurors contemplates that they may be called on to act in the cases of both enemies and friends and requires them to inquire diligently into the commission of crimes; and that those who live in the vicinity of the place where the crime was committed know better than others the character of the parties and of the witnesses and are, therefore, particularly proper members of the grand jury.However, there seems no authority which goes so far as to hold that this would be true where the jurors had determined through malice or bribery to violate their oaths. (Footnotes omitted)

We, therefore, hold that in the absence of a statutory prohibition, express malice, bribery or other equally reprehensible conduct, there is no legal objection to a person with bias or prejudice serving as a member of a grand jury. The interest and appearance of justice, however, demand that every reasonable effort be made to insure that grand jurors are reasonably free from prejudice. For example, active or career police officers tend to have an inherent prejudice that should preclude their service. And so with persons known to be inherently opposed to the enforcement of the criminal laws of the state.

Petitioners further contend that certain of the members of the grand jury violated their oath of secrecy. The basis for this assertion is that the spouses of two members were called as prospective trial jurors, and, on voir dire, they indicated that their respective spouses had discussed the case with them.

Section 40-1611, T.C.A. provides that members of a grand jury “shall keep secret the proceedings of that body, and the testimony given” except when disclosure is required by the ensuing section. This statutory provision is deeply rooted in public policy and is vital to the effective functioning of a grand jury. While we do not condone its violation, and look with disfavor upon an unauthorized disclosure of grand jury proceedings, we must look to the underlying policy considerations in passing upon any breach of grand jury secrecy. These considerations are succinctly set forth in 1 Wharton, Criminal Procedure (Torcia 12th Ed.1974), § 221 at 488, 489. We quote with approval:

The purpose is to imbue the grand jurors with a sense of confidence and security so that they may discharge their duties without apprehension of any hurt from an accused or some other person; to secure the utmost freedom of disclosure of alleged crimes by prosecutors; to conceal the fact that an indictment has been found against an accused who is not yet in custody; to prevent perjury and subornation of perjury to the extent that, if testimony given before the grand jury were known, the accused or a confederate might attempt to disprove it by procuring false testimony; and to protect an accused citizen from public disgrace in a case where there is not enough evidence to support a criminal charge.

After the grand jury has completed its session, and an indictment has been found, and the defendant has been arrested and placed in custody, the reasons for secrecy no longer exist.

We overrule the assignment related to the composition of the grand jury and the breach of its secrecy.

VI.

Finally, petitioners insist that so much of Chapter 462 of the Public Acts of 1974 as imposes a mandatory death penalty upon all persons convicted of murder in the first degree (§ 39-2406, T.C.A.) is unconstitutional. The Court of Criminal Appeals, with Judge Russell dissenting, upheld the constitutionality of the death penalty statute.

We dealt with a similar insistence in Collins v. State, and Morgan v. State, 550 S.W.2d 643 (Tenn.1977). Upon the authority of those cases, we hold that Section 3 of the Public Acts of 1974, carried forward into the Official Code as § 39-2406, T.C.A., contravenes the Eighth and Fourteenth Amendments to the Constitution of the United States. For the same reason, it violates Article 1, Sections 8 and 16 of the Constitution of the State of Tennessee.

After argument was heard in the instant case, and after the release of the first opinions in Collins and Morgan, the Governor commuted these sentences to life imprisonment. Under the authority of the opinion on petition to rehear in Collins and Morgan, the judgments of the trial court are affirmed, as commuted to life imprisonment.

Modified and Affirmed.

FONES and HARBISON, JJ., concur.

COOPER, C. J., and BROCK, J., dissent in separate opinion.

BROCK, Justice,

dissenting.

I fully concur in the Opinion of the Court except that portion which affirms the penalty of life imprisonment, and, with respect to that issue, I dissent for the reasons stated in the Dissenting Opinion Collins v. State, Tenn., 550 S.W.2d 643 released this date.

I am authorized to state that Chief Justice COOPER joins in this dissent.

      . A non-appealing co-defendant filed a written motion for a change of venue on December 12, 1974. These petitioners filed no formal motion.

      . Confinement in an adjoining county resulted from general inadequacy of the Trousdale County Jail.

      . The Sheriff of Smith County was merely the custodian and played no role in the prosecution.

      . See Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696 (1967).

      . William Pitt, Earl of Chatham, Speech on the Excise Bill.

      . These prospective jurors were excused.

      . We have considered and rejected all remaining assignments of error and do not find it necessary to elaborate upon our reasons.