author: HOLMAN, Judge. BARDGETT, Judge

text:
    STATE of Missouri ex rel. KANSAS CITY STOCK YARDS COMPANY OF MAINE, Petitioner, v. Honorable Donald B. CLARK, Judge of the Circuit Court of Jackson County, Missouri, Respondent.
    No. 59217.
    Supreme Court of Missouri, En Banc.
    April 14, 1976.
    Opinion Modified on Court’s Own Motion. Rehearing Denied May 5, 1976.
    See also 536 S.W.2d 157.

      Leonard A. O’Neal, Joe W. Coleman, Kansas City, for petitioner.
    Albert J. Yonke and Michael C. Arnold, Kansas City, for respondent.
   HOLMAN, Judge.

This is an original proceeding in prohibition in which relator seeks to prevent respondent judge from proceeding further in the case of Peggy Ann Smith, et al. v. Kansas City Stock Yards Company of Maine now pending in the Jackson County Circuit Court. Before seeking relief here relator had filed a motion to dismiss in which it stated as grounds therefor the contention hereinafter discussed. Respondent overruled that motion. Upon petition of relator we issued our provisional rule. We have decided that said rule should be made absolute.

The facts are not in dispute. Roy Ruis died on June 12,1970, as a result of injuries received while employed by relator. He was survived by his wife and three minor children. Roy was also survived by his father and mother who are still alive at this time. Deceased had not made any contributions for the support of his parents for twenty-five years prior to his death. On May 25,1972, the widow and children (hereinafter referred to as plaintiffs) filed the aforementioned suit against relator. It is suggested that the delay in filing said suit may have resulted from the fact that said dependents unsuccessfully sought to recover compensation under the Kansas Workmen’s Compensation Law.

It is relator’s contention that plaintiffs have not stated and cannot state a claim for relief and hence the circuit court has no jurisdiction to proceed with the case. The basic question for our decision is whether plaintiffs can maintain the wrongful death action which was commenced more than one year but less than two years after decedent’s death.

At the outset of our consideration of this contention it is appropriate to observe that under the circumstances indicated prohibition is a proper remedy. State ex rel. Henderson v. Cook, 353 Mo. 272, 182 S.W.2d 292[5] (1944).

There was no right of action for wrongful death at common law. It is only by virtue of statutory enactments that a recovery may be had upon such a claim. Our present statute reads as follows: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered.

“(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; . . . and provided, further, that only one action may be brought under this subdivision against any one defendant; or

“(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, . then by the father and mother,

“(3) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent.” Section 537.080. It should also be noted that Section 537.100 provides that: “Every action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; . . . ”

Those statutes were amended and reenacted in 1967. The amendments have been described as follows: “There was no change in the basic theory of the Wrongful Death Act. The class of persons who had first priority to sue was changed, the time in which they were permitted to sue was extended to one year, and the maximum period in which any suit could be brought was extended from one year to two years. Therefore, the construction of the Wrongful Death Act prior to the 1967 amendments which resulted in the present Act is applicable to the present Act, subject only to the changes made in the definition of classes and the lengthening of the periods of limitation.” Wessels v. Gipfel, 522 S.W.2d 653, 656 (Mo.App.1975).

In an early case this court construed the statute in certain respects in a manner which has been followed to this day. The court stated that, “In conferring the right of action, and in providing such remedy, in designating when and by whom suits may be brought, it was, as a matter of course, competent for the legislature to provide and impose such conditions as it might deem proper, and the conditions thus imposed modify and qualify the right of recovery, or form rather, we think, a part of the right itself, and upon which its exercise depends. In the statute which creates the right of action, and in the same section in which the statutory right and remedy is thus conferred upon the husband or wife, it is further provided, by the second subdivision, as we have seen, that if there be no husband or wife, or he or she fails to sue within six months after the death, the right of action therefor shall be vested in the minor children of the deceased, if there be such. This provision is not, we think, merely a limitation or bar to the remedy of the wife, but is a bar to the right itself, if there are minor children, . . . So in the case now before us, where the action is brought by the widow after the expiration of the six months, her right to maintain the same is conditional, and depends on the non-existence of the minor children, — a material and necessary fact, as we think, and which was not alleged or proved. . . . ” Barker v. Hannibal & St. J. R. Co., 91 Mo. 86, 14 S.W. 280, 281 (1886).

The wrongful death cases decided by the appellate courts of this state have established certain principles which have been uniformly followed by our courts. They are: (1) The statute provides for one indivisible claim for the death of a person which accrues on the date of death. (2) The claim vests first in the spouse and minor children either jointly or severally. (8) If the deceased left surviving a father or mother the spouse and minor children must exercise their preferred right by filing suit within one year from the date of death. (4) If the spouse and minor children fail to sue within one year the claim passes to and vests in the father and mother or the survivor. (5) If there is no father and/or mother the spouse and minor children have the full two years in which to sue. (6) If there is no spouse or minor children the father and mother may sue at any time within the two year period. (7) The party having the right to enforce the claim has absolute control over it during the period specified and may file suit or settle without suing. (8) There is but one claim for relief and if not enforced by one class during the period specified it passes to another class of beneficiaries. (9) When a claim is appropriated by one preferential beneficiary it completely terminates all rights of any others mentioned in the statute with the exception that if the person so appropriating dies during the limitation period without having completed enforcement the next alternative claimant may file suit within the two year limitation period, and (10) unless a tolling situation exists the suit must be filed within two years from date of death.

The principles we have set out in the preceding paragraph are supported by the following cases: Barker v. Hannibal & St. J. R. Co., supra, Wessels v. Gipfel, supra, Huss v. Bohrer, 317 Mo. 204, 295 S.W. 95 (1927), Cummins v. Kansas City Public Service Co., 384 Mo. 672, 66 S.W.2d 920 (1933), Chandler v. Chicago & A. R. Co., 251 Mo. 592, 158 S.W. 35 (1913), Nelms v. Bright, 299 S.W.2d 483 (Mo.1957), Uber v. Missouri Pacific Railroad Company, 441 S.W.2d 682 (Mo.1969), State ex rel. v. Kimberlin, 504 S.W.2d 237 (Mo.App.1973), Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973), Forehand v. Hall, 355 S.W.2d 940 (Mo.1962), Goldschmidt v. Pevely Dairy Company, 341 Mo. 982, 111 S.W.2d 1 (1937), and Spencer v. Bradley, 351 S.W.2d 202 (Mo.1961). See also, Click v. Thuron Industries, Inc., 475 S.W.2d 715 (Texas 1972) in which the Texas court construed the Missouri statutes and decisions in accord with the foregoing.

Decedent received his fatal injury at a place near the state line between Kansas and Missouri. While there is some uncertainty concerning the state in which he was killed it now appears that all parties have accepted the fact that he was a few feet into the state of Kansas. In an effort to avoid the effect of the foregoing decisions respondent’s attorneys have briefed the contention that the Kansas law (particularly Section 60-513, the statute providing that the statute of limitations for wrongful death shall be two years) should apply to this case. We see no merit in that contention.

Ordinarily the wrongful death statute of the state in which the fatal injury occurred would apply. If plaintiffs desired to recover under Kansas law they were required to plead that statute and if they failed to do so the petition would not state a claim for relief. Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591[12] (1932). However, in this case both sides apparently concluded that under the choice of law rule announced in Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969) the law of Missouri should apply. Accordingly, plaintiffs obviously relied upon the Missouri statutes in all respects including the amount of damages sought. In fact, they alleged in their petition, “That the laws of the State of Missouri govern and apply to all matters in this cause because the majority of the relevant contacts herein relate to the State of Missouri; that the State of Missouri has the most significant relationship to the occurrence and the parties.” Relator in its answer admitted those allegations. Furthermore, at a pretrial conference the parties stipulated, “that the laws of the State of Missouri shall govern and apply in all matters in this cause by reason of the significant and relevant contacts just described, and that the laws of the State of Missouri, including, but not limited to, the statutory recovery and procedure therefor in the event of wrongful death, shall apply.” In this connection it should be noted that the Kansas statutes differ in a number of respects from the Missouri wrongful death statute. See K.S.A., Sections 60-1901 to 60-1905 inclusive.

As indicated, the brief of respondent primarily requests that the Kansas two year statute of limitation be applied. This cannot be done because, as heretofore indicated, this case in its entirety is governed by Missouri law.

Moreover, it should be noted that we are not ruling that plaintiffs are barred by the statute of limitation. Our holding is that they are barred because they did not file suit within the period provided for in the wrongful death statute which is an essential element of the claim for relief. In other words the question is — were plaintiffs the proper parties to file and maintain a suit at the time such was commenced? As indicated, this contention is ruled adversely to respondent.

As we have indicated plaintiffs filed a claim under the Kansas Workmen’s Compensation Law on November 30, 1970. That claim was finally decided adversely to them on August 9,1971. It is now contended that the filing of that claim tolled the running of the Missouri statute of limitation and that plaintiffs could file this action within one year after August 9, 1971. Plaintiffs say they could not file a suit in Missouri until the compensation claim was concluded. We do not agree. There was no reason why this case could not have been timely filed in Missouri. There could only be one recovery but both matters could have been pending at the same time.

It should be noted that plaintiffs did not plead the filing of the claim as tolling action and that such is essential in order to' state a claim. Moreover, the tolling statute, Section 537.100, refers to Section 537.-080 and provides, “. . . that if any such action shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit, or after a verdict for him the judgment be arrested, or after a judgment for him the same be reversed on appeal or error, such plaintiff may commence a new action from time to time within one year after such nonsuit suffered or such judgment arrested or reversed; . . .” A somewhat similar contention was made in King v. Smith Baking Co., 228 Mo.App. 721, 71 S.W.2d 115 (1934) and ruled against the plaintiff. In King the deceased had filed a claim for compensation for the injuries, which subsequently caused his death, and after his death the claim was unsuccessfully continued to conclusion by his widow. The court in ruling the contention stated that, “. . .it cannot be seriously contended that the complaint for compensation before the Workmen’s Compensation Commission, including the proceedings thereinafter had and the appeal by respondent — although the claim might have ripened into a claim for compensation for death, by respondent — was the action contemplated by sections 3262, 3263, and 3264 above mentioned or that the cause of action before the commission was the cause of action provided by said sections. Such contention is necessarily overruled.” 71 S.W.2d 118.

The case relied on by respondent is Slater v. Kansas City Terminal Railway Company, 271 S.W.2d 581 (Mo.1954) but we consider it clearly distinguishable on the facts. In that case the widow filed a suit within six months but misconceived the nature of her claim and sought to recover as administra-trix under the F.E.L.A. This court ruled that since she had filed a timely suit for the death of her husband she should be permitted to amend seeking recovery under the wrongful death statute after the year had elapsed and that such would relate back to the date of filing the original petition.

We rule that the compensation claim did not toll the operation of the applicable statutes.

Respondent next asserts that the legislature in amending Section 537.080 in 1967 clearly broadened the scope thereof and that the amended Act should therefore be liberally construed. It is stated in the brief that the legislative intent was, “. simply to give the surviving wife or husband or minor children preference during the first year but not to prevent any of them from maintaining an action any time before the the expiration of the second year provided there be no surviving parents or provided that the surviving parents, if any, have not instituted or are not entitled to institute judicial proceedings. The one-year provision is not a limitation on the right of the persons described in subsection 1 to sue, but rather is a limitation on the preference given the persons described in subsection 1 over those persons described in subsection 2. This provision is, therefore, not a limitation on plaintiffs’ cause of action and does not bar them from maintaining their action in the instant case.”

We see nothing in the wording of the amended Act to warrant a conclusion that the legislative intent was as respondent contends. As stated in Wessels, supra, the Act extended the time in which to sue and changed the class given first priority but there was no change in the basic theory of the wrongful death act.

Along the same line respondent says that Section 537.100 is the only limitation statute and that Section 537.080, by use of the permissive word may, merely established a preferential order among the classes and therefore plaintiffs had the full two years to commence their suit. He says that, by analogy, Cummins, supra, and Almcrantz v. Carney, 490 S.W.2d 59 (Mo.1973) support that suggestion. In Cummins the widow filed suit within six months and then died shortly thereafter. The court held that, in that situation, the minor children could sue during the second six months since the widow had not been able to pursue the remedy to a conclusion. Almcrantz simply followed the well established rule that where no parent survived, the surviving widow had the entire two years in which to sue. We do not think these cases or the wording of the statute support respondent’s contention. The 1967 statute used the word may in precisely the same manner as the prior statute and hence we see nothing to support a finding of legislative intent to change the law in that respect.

Both sides have discussed Wessels, supra, at some length. Relator says it supports its contentions and respondent says it is distinguishable. In that case the decedent, age 24 and unmarried, lived with and supported his widowed mother. After her son’s death on October 24, 1971, the mother filed a suit on November 10, 1971, and it was settled and dismissed on April 30, 1973. Probably unknown to the mother decedent was the father of an illegitimate daughter born posthumously May 16, 1972, who filed a wrongful death suit on August 28,1973. In ruling that the trial court properly dismissed said daughter’s petition the court pointed out that the suit was not filed within the first year or even within a year after plaintiff was born. It was further stated that, “. . . the mother of the deceased, prematurely as it turned out, filed suit during the first year following the death of her son. That was the period within which appellant could have, but did not, appropriate the cause of action. At the termination of the ‘one year’ referred to in subsection 2 the statute of limitations ran on appellant’s cause of action, and the cause of action was subject to appropriation by the mother. Her suit was already pending, and it was her privilege to prosecute it to judgment or to settle pursuant to stipulation.” 522 S.W.2d 656. While the facts are not the same as those in the case at bar we think Wessels clearly supports relator’s contentions.

The final contention of respondent, as stated in his brief, is that, “The parents of the deceased suffered no pecuniary loss or damages as a result of their son’s death and could not institute proceedings against Relator within two years of decedent’s death. Therefore, under Section 537.080 of the Revised Statutes of Missouri, the Plaintiffs had the right to sue more than one year but less than two years after decedent’s death.” It has, of course, been relator’s contention that since deceased had parents in existence that after the passage of one year the right to sue passed from plaintiffs and vested in the parents. Relator cites cases such as Wessels and Almcrantz using the words “in existence” in describing that situation. Respondent says that is not an accurate expression. He says a person does not exist within the meaning of the statute, unless he is entitled to sue and recover damages. Respondent points out that the deceased had not contributed to the support of his parents for many years and therefore contends that they suffered no damage by reason of his death and could not maintain a suit. He reasons from that premise that the situation is the same as in Almcrantz where deceased had no surviving parents and it was held that the widow could sue any time within two years.

We are unwilling to agree that Roy’s parents suffered no damage by reason of his death. It is true, as ruled in our recent case of Pittock v. Gardner, 530 S.W.2d 217[5] (Mo.1975), that where the executor sues for the benefit of the collateral heirs he is required to allege and prove that the beneficiaries suffered pecuniary loss. But such is not the case where the statute, such as in subparagraphs (1) and (2) of Section 537.080, grants a right of action directly to certain classes. We are impressed with the view that an adult son, “. . . might be of pecuniary value to his mother in the future, although previously he had contributed nothing at all but had only been an expense to her.” Talbert v. Chicago, R. I. & P. Ry. Co., 321 Mo. 1080, 15 S.W.2d 762, 765 (1929). It is not at all unusual for parents to give money to their adult children while the children are endeavoring to get a start in life with the thought that if, in later years, they, the parents, are in need the children will help them. Many parents receive comfort and reassurance from the thought that their child will contribute to their needs if such should ever become necessary. This, however, is not a proper case for a decision as to the amount parents may recover for the wrongful death of adult children and we will not do so. This, because we are convinced that parents, in any event, are entitled to recover nominal damages and that is sufficient to authorize the filing and maintenance of a suit. And that right is sufficient to require a ruling that plaintiffs in the case before us were not entitled to sue after the expiration of one year.

In Stroud v. Masek, 262 S.W.2d 47 (Mo.1953) a widow sued for the wrongful death of her husband and apparently failed to prove pecuniary loss. On appeal this court ruled that she would be entitled to recover nominal damages at least. In that opinion we stated that, “ ‘According to the general current of American authority, where it appears in a statutory action for death that the death was caused by defendant’s negligence, nominal damages may be recovered, although no actual pecuniary damage has been shown.’ 25 C.J.S. Death § 96, page 1238.

“The case of Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, loc. cit. 954, 145 A.L.R. 1176, was a wrongful death case. In that case we quoted with approval the following quotation in King v. City of St. Louis, 250 Mo. 501, loc. cit. 513, 157 S.W. 498, loc. cit. 501:

“ ‘ “The rule is that for every actionable injury there is a corresponding right to damages, and such an injury arises whenever a legal right of plaintiff is violated. ‘If there is no inquiry as to actual damages, or none appears on inquiry, the legal implication of damages remains; * * * therefore nominal damages are given.’ Suth. on Dam. (3rd Ed.) § 9; 13 Cyc. 14.”

“Judgment for nominal damages is a substantial right since such a judgment decides the incident of costs.” 262 S.W.2d 51. See also, Acton v. Shields, 386 S.W.2d 363[7] (Mo.1965). It is interesting to note that in cases such as the one before us the approved instructions do not require a finding that plaintiff has suffered damage. See MAI 20.01 and 20.02. This was explained in the case of Aubuchon v. LaPlant, 435 S.W.2d 648, 652 (Mo.1968) as follows: “In wrongful death actions, unlike suits for personal injuries, the issue of whether plaintiff has proved pecuniary loss (damages) is not hypothesized in plaintiff’s verdict directing instructions. See MAI 20.01 and 20.02. The reason for this, as set out in the Committee’s Comment to MAI 20.01, is that nominal damages may be recovered in such a case as this even though actual damage is not sustained.”

We recognize that relator will benefit from the failure of plaintiffs to exercise diligence and file their suit within the time specified in the statute and the failure of the parents to sue during the second year. That, of course, is the situation in every case where the claim is barred by statutory limitation. We have concluded, however, that there is no reasonable basis under the statute for granting plaintiffs relief. This is a matter of statutory construction. When the 1967 amendments were enacted the legislature is presumed to have been familiar with the long line of cases which have held that the persons named in the wrongful death statute must exercise the right so granted within the time and manner fixed by the statute or recovery will be denied. In reenacting that statute (Section 537.080) the legislature did not include any provision therein which indicated an intent to change the rule in those cases. Accordingly, we would deem it imprudent to overrule that long line of cases in order to hold that plaintiffs could maintain their action under the circumstances heretofore detailed.

It follows that the provisional rule should be made absolute.

MORGAN, HENLEY, FINCH, and DON-NELLY, JJ., concur.

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

SEILER, C. J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge

(dissenting).

I respectfully dissent. This is prohibition and was filed here to prevent respondent circuit judge from proceeding with the trial of a wrongful death action. The death action was instituted by a widow and three minor children for damages resulting from the death of Roy Ruiz, the husband of the widow and father of the minor children, against relator Kansas City Stock Yards Company of Maine (Stockyards). Stockyards was the employer of Roy Ruiz who was killed while working for Stockyards on June 12, 1970. In addition to the widow and minor children, deceased was survived by his mother and father.

In due course, the widow filed a claim under the Kansas Workmen’s Compensation law against Stockyards. Stockyards denied it had elected to come under the Kansas Workmen’s Compensation law and also denied that it was engaged in one of the hazardous employments listed in the act which is mandatorily covered by that act. Hearings were held in March and May 1971, and on June 8, 1971, the hearing examiner found that Stockyards had not elected to come under the Kansas Workmen’s Compensation law and that Stockyards’ business was not one of those which is mandatorily covered as hazardous and, on that basis alone, denied the claim. Claimant filed for review of the examiner’s determination to the director of the division of workmen’s compensation. On August 12, 1971, the director affirmed the examiner’s determination denying the claim. By this time more than one year had passed since the death of Roy Ruiz.'

On May 25, 1972, the widow and minor children filed their suit for wrongful death in the circuit court of Jackson County, Missouri, against Stockyards. This, of course, was more than one year after the death of Roy Ruiz but was within two years of that death.

Stockyards contends that the widow and minor children cannot maintain the wrongful death claim under the Missouri wrongful death statute, sec. 537.080, because, in addition to a widow and minor children, deceased was survived by his mother and father and therefore the widow and minor children had only one year to institute suit.

In the circuit court action for wrongful death, Stockyards stipulated in stipulation # 10 that the parents of the deceased “received no money or support of any kind from Roy Ruiz between 1945 and June 12, 1970 [date of deceased’s death]” and in stipulation # 11 stipulated that the deceased’s parents “sustained no pecuniary loss as a result of the death of Roy Ruiz . . . .” The parties also stipulated that the widow filed a claim for workmen’s compensation against Stockyards in accordance with the Workmen’s Compensation law of Kansas on the basis that the death arose out of the course of Roy Ruiz’s employment with Stockyards; that hearings were held thereon; that on June 10, 1971, the examiner denied the claim; that claimant filed her request for director’s review and on August 9, 1971, the director sustained the denial of the compensation claim.

As noted supra, the claim was not denied on its merits but on the grounds that Stockyards had not accepted the Kansas Workmen’s Compensation law and that the business of Stockyards was not hazardous as defined in the Kansas Workmen’s Compensation law and, therefore the Kansas Workmen’s Compensation law was not mandato-rily applicable.

The principal opinion does not say in so many words that the Missouri wrongful death act must be strictly construed because it created a right of action nonexistent at common law, yet, that is the theory that pervades many of the earlier cases cited therein. Although at common law there was no right of action denominated a wrongful death action, I am somewhat impressed by the fact that in 1853, two years before the first wrongful death statute was enacted in Missouri, this court in James v. Christy, 18 Mo. 162 (1853), upheld the right of a father to sue for the loss of services of his fifteen-year-old son who was negligently killed by another. That case came here on the question of whether the father’s cause of action survived to the father’s personal representative or died with the father. This court held, 18 Mo. at 164:

By our law, the father has a property in the services of his son during his minority, and whilst he is under his guardianship. If, by the misconduct of another, he is deprived of these services, or the son is disabled from performing them, the law awards him a compensation in damages. The measure of damages, in such cases, is governed by the circumstances, which will be weighed by the jury. This controversy involves the construction of the twenty-fifth section of the second article of the act concerning executors and administrators. That section formerly underwent a discussion in this court, in the case of Higgins v. Breen, 9 Mo.Rep. 497. That case settles the principles which will govern this. It was there held, that the statute extends to all acts by which personal property is lessened in value. Here, the father was entirely deprived of all property in his son’s services. The recovery will be limited to the actual value of the services, as they may be ascertained by a jury. The administrator will not be entitled to any remuneration for the loss of the society or comforts afforded by a child to his parent. Damages of this character died with the parent, and Ms estate is entitled to compensation, only so far as it has been lessened by the loss of the son’s services. The father was no longer entitled to those services than during his life. Had the son been alive, on the death of his father, his services would not have belonged to his estate, but would have been due to the individual who succeeded him in the relation of parent, or would have belonged to himself.
The other judges content, the judgment will be reversed and the cause remanded.

Now I cite the James v. Christy case in order to show that the supreme court of this state was cognizant of the loss to a parent occasioned by the death of his minor son and, as is seen from the quotation supra, the father was in 1853 allowed to recover for at least the same items of loss that the subsequently enacted wrongful death statute allowed. And so, James v. Christy, although not called a wrongful death action, was an action by which the father could recover what is now compensatory wrongful death damages. Additionally, it might be noted that the damages to the father in James v. Christy included loss of society and comfort and there was no limitation on the amount. Although courts of this and other states have repetitively said there was no action for wrongful death prior to the enactment of death damage statutes, the fact is that in Missouri there was a cause of action available, at least to the parent when the minor child was negligently killed, for loss of services during minority and the other damages spoken of in James v. Christy, supra.

What is also rather striking about the opinion in James v. Christy, supra, is that it simply states the situation as it existed in and prior to 1853. In other words, here were judges of this court who had practiced law in Missouri and by their experience knew what was going on at that time simply reciting that this type of suit was then being entertained in courts of this state. I can hardly believe that the judges of this court would have acknowledged the existence of such a cause of action unless it did actually exist.

It may be speculative to guess at what the courts would have held with respect to the right to sue for pecuniary losses occasioned by the death of a parent or spouse had wrongful death statutes not been enacted, but it seems clear that by 1853 this state was well on the way to allowing suits for such damages. However, courts of this state were relieved of the task of deciding those questions because two years later in 1855 the legislature enacted a wrongful death statute which, in effect, mooted the question, and thereafter courts could adjudicate those matters under statutory law.

In some instances where the legislature did not specifically grant a right to sue where none existed at common law this court has held the right exists. In Novak v. Kansas City Transit, Inc., 365 S.W.2d 539 (Mo. banc 1963), this court held a married woman had a course of action for loss of her husband’s services due to injury to the husband and overruled prior decisions to the contrary. In R_ v. R_, 431 S.W.2d 152 (Mo.1968), the court held that, although no cause of action existed at common law by an illegitimate child to enforce support from a putative father, such a right must be recognized under the equal protection clause of Amendment Fourteen of the United States Constitution.

In 1917 the general assembly amended sec. 1.010, RSMo 1909, which relates to the common law of England being in force in this state by adding the following, “but no act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.” In Almcrantz v. Carney, 490 S.W.2d 59, 61 (Mo.1973), the principal opinion held sec. 1.010, as amended, applicable to a construction of sec. 537.080, RSMo 1969 (wrongful death statute) and held that where no parent survived the deceased the plaintiff widow had two years within which to sue. See also Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973).

There is no specific provision in 537.080 which says that if there is no mother or father surviving then the widow or minor children have two years to sue nor that the children after two years can join in the widow’s action begun before the two-year statute expired, but the court held this to be proper in Almcrantz and Montemayor and earlier cases. I agree with these decisions because they give effect to the true intent and meaning of our wrongful death statute which, in my opinion, is that these laws were principally intended to provide a remedy for those persons who naturally suffer the greatest loss by the death of another. Those persons are, in my opinion, the widow and minor children of the man who is killed.

In the instant case, the widow and children seek to maintain this action and they did sue prior to the expiration of the two-year statute, sec. 537.100. There has been no effort by the surviving parents of the deceased to sue or intervene in the pending circuit court case and the two years have expired. Thus, we are not here confronted with a contest as between the widow and minor children on the one hand and the surviving parents on the other as to whom shall be allowed to maintain the action. That issue can be met when it is presented but it is not presented in this case.

In Almcrantz and Montemayor, I filed concurring opinions in which I stated that, in my opinion, the two-year statute of limitations is the only time limitation available to a defendant, and the priority of the right to sue as set forth in 537.080 is not available to a defendant and does not shorten the two-year statute. Sec. 537.100, RSMo 1969.

The instant case, however, does not require that those views be adopted in order to allow the action to be maintained by the widow and minor children. That specific issue would arise only where there was a contest as between beneficiaries with respect to who can maintain the action and that issue is not in this case.

Insofar as Stockyards is concerned, it is exposed to no more liability in this case than if the parents of the deceased did not survive him and in such circumstances, under the prior decisions, the widow and minor children had two years to sue.

Can it reasonably be said that the legislature intended to absolve a defendant from liability for wrongful death to the surviving widow and minor children merely because a parent of the deceased survived him even though the parent declined to sue and, by the parents’ own admission, sustained no pecuniary loss?

I do not believe such a holding to .be in accord with sec. 1.010 which requires the laws to be liberally construed so as to effectuate the true intent and meaning thereof and particularly when 1.010 specifically proscribes against a court limiting the scope or effect of a statute because the statute is in derogation of the common law. Where, as here, the surviving parents have not sued and have declared that no pecuniary loss was sustained, I believe the court should consider the case the same as one where the parents did not survive the deceased and allow the widow and children the full two years in which to sue rather than to provide the defendant with a windfall derived from a technical construction of the statute which in effect “throws the baby out with the bathwater.”

The principal opinion is premised on prior holdings of this court that the cause of action for wrongful death did not exist at common law; that the statute created the right and therefore the right to sue was conditioned upon the recipient exercising that right upon the conditions and within the period provided for in the statute granting the right; and that the conditions set forth in the statute with respect to the widow having only one year to sue if the deceased was survived by a parent is not merely a limitation or bar to the remedy of the wife but is a bar to the right itself.

The underpinning for the decisions of the courts of this country which have held that there was generally no cause of action for wrongful death at common law is the opinion of Lord Ellenborough in Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808), and its progeny.

Lord Ellenborough stated, “In a civil court, the death of a human being could not be complained of as an injury . . . .” (Emphasis mine.) That statement may have been technically correct but, it so, it was only a half truth. The other half is that compensation for death was paid in conjunction with or in substitution for a criminal proceeding. In any event, it was obtainable under the general common law. See “The Genesis of Wrongful Death”, 17 Stanford L.Rev. 1043 (1965). This concept was carried over into the colonies. In the Court of Assistants of Massachusetts Bay Colony, one Foster was charged in 1675 with “accidentally discharging gun[s] at foules on ye neck thereby wounding Samuel Fflacks son so as he djed.” It was adjudged that he should pay the father of the boy ten pounds. 1 Mass.Ct.Assts. 54-55; 17 Stanford L.Rev., 1063. After reviewing many early cases in which money was awarded to the deceased’s family, Professor Malone, the author of “The Genesis of Wrongful Death”, concluded. “In conclusion, the writer has discovered no observation in colonial statutes or decisions lending any support to a belief that a death claim would have been denied by our colonial ancestors.” 17 Stanford L.Rev. 1065.

When one considers the historical development of death claims under the common law and colonial practice, in my opinion, one cannot help but conclude that the origin of the death damage claim is firmly rooted in the common law and is not merely of statutory origin.

The first decision in the United States to hold there was no action for wrongful death at common law was Carey v. Berkshire R. R. Co., 55 Mass. 475 (1848). It relied totally on Baker v. Bolton, supra, to support that conclusion.

In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), a unanimous United States Supreme Court overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886). The Harrisburg held that there was no common law action for wrongful death and, interestingly, our case of James v. Christy, supra, was cited as being one of the cases in common-law courts which was against that rule. The Harrisburg held that the state wrongful death statute created the right of action and the time within which the suit must be brought operates as a limitation on the statutorily created liability itself and not on the remedy alone. Although Harrisburg discussed the maritime law, as the death there occurred in a ship collision off the coast of Pennsylvania and Massachusetts, the court based its decision on common law holding that the common law as applied on the land was also applicable to the sea.

As stated, The Harrisburg was overruled by Moragne. Moragne involved the death of a longshoreman while aboard a ship in the navigable waters within the state of Florida. The maritime law provided no recovery for wrongful death within a state’s territorial waters and the Florida court held that the Florida wrongful death act did not allow recovery for unseaworthiness as that concept is understood in maritime law — the result being that there was no statutory grant of right for the maintenance of the action for death damages. The United States Supreme Court in Moragne reviewed the history of actions for death. At 398 U.S. 384-385, 90 S.Ct. 1779, the court stated:

The historical justification marshaled for the rule in England never existed in this country. In limited instances American law did adopt a vestige of the felony-merger doctrine, to the effect that a civil action was delayed until after the criminal trial. However, in this country the felony punishment did not include forfeiture of property; therefore, there was nothing, even in those limited instances, to bar a subsequent civil suit. E. g., Grosso v. Delaware, Lackawanna & West. R. Co., 50 N.J.L. 317, 319-320, 13 A. 233, 234 (1888); Hyatt v. Adams, 16 Mich. 180, 185-188 (1867); see W. Prosser, Law of Torts 8, 920-924 (3d ed. 1964). Nevertheless, despite some early cases in which the rule was rejected as “incapable of vindication,” e. g., Sullivan v. Union Pac. R. Co., 23 Fed.Cas. pp. 368, 371 (No. 13,599) (C.C.Neb.1874); Shields v. Yonge, 15 Ga. 349 (1854); cf. Cross v. Guthery, 2 Root 90, 92 (Conn.1794), American courts generally adopted the English rule as the common law of this country as well. Throughout the period of this adoption, culminating in this Court’s decision in Brame [Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580 (1878)], the courts failed to produce any satisfactory justification for applying the rule in this country.

The court approvingly quoted Mr. Justice Holmes, who, speaking in dissent in Panama R. Co. v. Rock, 266 U.S. 209, 45 S.Ct. 58, 69 L.Ed. 250, said (398 U.S. 391, 90 S.Ct.):

(I)t seems to me that courts in dealing with statutes sometimes have been too slow to recognize that statutes even when in terms covering only particular cases may imply a policy different from that of the common law, and therefore [the courts] may exclude a reference to the common law for the purpose of limiting their scope. Johnson v. United States [5 Cir.], 163 F. 30, 32. Without going into the reasons for the notion that an action (other than an appeal) does not lie for causing the death of a human being, it is enough to say that they have disappeared. The policy that forbade such an action, if it was more profound than the absence of a remedy when a man’s body was hanged and his goods confiscated for the felony, has been shown not to be the policy of present law by statutes of the United States and of most if not all of the States. [Emphasis mine.]

The court quoted Dean Pound at 398 U.S. 391-92, 90 S.Ct. “Today we should be thinking of the death statutes as part of the general law”, and further stated at 393, 90 S.Ct. at 1783, “However, it is sufficient at this point to conclude, as Mr. Justice Holmes did 45 years ago, that the work of the legislatures has made the allowance of recovery for wrongful death the general rule of American law, and its denial the exception.”

On the heels of Moragne, the Massachusetts Supreme Judicial Court decided Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972), and, in light of Moragne, overruled its earlier decision in Carey v. Berkshire, supra, which, as indicated, was the first case in the United States which followed Baker v. Bolton, supra. In Gaudette, one Joseph Gaudette was killed in an automobile collision on April 15, 1967, and left surviving a widow and minor children. His widow was appointed administratrix of his estate on March 4, 1970. The wrongful death action was filed March 6, 1970. The Massachusetts wrongful death statute of limitations expired on April 15, 1969. If the provisions of the Massachusetts tolling statute with respect to minors applied, then the minors could maintain the action even though the two-year statute had expired. The court noted that Massachusetts “has long subscribed to the rule that there is no common law right to civil recovery for death, and that any right to such recovery is solely a creation of the statutes. As such, the period of limitation appearing in our wrongful death statute has been held to be ‘a limitation upon the right as well as upon the remedy, and the right was lost when [the period of limitation] expired.’ ”

The Massachusetts court then overruled Carey v. Berkshire, supra, and the other cases holding there was no common law cause of action for wrongful death and quoted extensively from Moragne, saying at 229:

Based upon its view that recovery for wrongful death had now become a part of our common law, the court in the Moragne case held that there was a common law right to recovery for wrongful death under general maritime law. The court’s decision was founded in large part upon the general prevalence of nonmaritime wrongful death statutes, and it is thus applicable with equal force to nonmari-time actions for wrongful death.
Upon consideration of the Moragne decision and the sound reasoning upon which it is based, we are convinced that the law in this Commonwealth has also evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin, and we so hold. To the extent that Carey v. Berkshire R. R., 1 Cush. 475, and any other prior decisions of this court conflict with our present holding, those decisions are no longer to be followed.
Consequently, our wrongful death statutes will no longer be regarded as “creating the right” to recovery for wrongful death. They will be viewed rather as: ... (d) requiring that the action be commenced within the specified period of time, as a limitation upon the remedy and not upon the right. We further hold that statutes limiting the period for bringing actions for death are to be construed in the same manner as the limitations contained in G.L. c. 260, the general statute of limitations, and that in appropriate cases they may be tolled by the various provisions of G.L. c. 260. [Emphasis mine.]

Gaudette did not allow the widow to maintain the action because the two-year statute of limitations had expired prior to suit, but upon its holding that the right to recover for wrongful death was a common law origin the court treated the wrongful statute as one of general law which allowed the general tolling statutes to apply and resulted in the statute of limitations as to wrongful death actions to be tolled as any other limitation statute is tolled. This permitted the minor children to maintain the action even though instituted more than two years after their father’s death.

The significance of Moragne and Gaudette is that, perhaps for the first time, courts of this country have fully recognized that there was a common law origin for death damage recovery, however crude it may have been; that the combined effect of wrongful death statutes having been enacted in all of the states and by the Congress of the United States is to establish beyond a doubt that it is and has been the policy in this country to allow such actions to a point where, as stated in Moragne, the courts “ ‘may exclude a reference to the common law for the purpose of limiting their scope.’” 398 U.S., at 391, 90 S.Ct. at 1782.

I believe the purpose of the 1917 amendment to sec. 1.010 noted supra was to tell the courts of this state that they should “exclude a reference to the common law for the purpose of limiting their scope.” That is really what 1.010 means when it states that “ .. .no act of the general assembly . . . shall be . limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law . .” (Emphasis mine.)

In my opinion, it is time for this court to recognize that compensation for wrongful death, in some form, existed at common law and, therefore, such actions are of common law, and not exclusively statutory, origin.

Whether the court recognizes that compensation for death existed at common law or gives effect to sec. 1.010, as amended 1917, so as not to limit the scope of our wrongful death statutes because of alleged conflict with the common law the same result obtains. That result is the two-year statute of limitations found in sec. 537.100, RSMo 1969, becomes the only limitation period which a defendant can interpose so as to bar the remedy. This would, in my opinion, allow the wrongful death statute to be afforded its true intent and purpose and permit the instant widow and minor children to have what the law allows — a cause of action for the damages resulting from the death of the husband and father.

In the instant case there is, in my opinion, another sound reason to allow the action to proceed. Sec. 537.100, RSMo 1969, provides in part, “that if any such action [wrongful death] shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit . such plaintiff may commence a new action from time to time within one year after such nonsuit suffered or such judgment arrested or reversed; . . . .”

If there were no workmen’s compensation law, the instant widow and children could have proceeded to a verdict in a wrongful death action and, in this case, the action would have been against Stockyards, the same defendant against whom the compensation claim was filed for the same wrong— death of Roy Ruiz.

Claims under the workmen’s compensation law have been held to constitute a complete substitute for the common law remedies. Glick v. Ballentine Produce, Incorporated, 396 S.W.2d 609 (Mo.1965), appeal dismissed 385 U.S. 5, 87 S.Ct. 44, 17 L.Ed.2d 5; Sheets v. Hill Brothers Distributors, Inc., 379 S.W.2d 514 (Mo.1964).

This being so, then the claim filed under the workmen’s compensation law should be considered as the action referred to in sec. 537.100, RSMo 1969, because it is a complete substitute for the action (wrongful death) provided for therein. “Substitute” simply means “put in place of”. Webster’s Third International New Dictionary, p. 2280. The workmen’s compensation law put the claim under that act in the place of the claim for wrongful death under 537.080, RSMo 1969.

Here the claim was filed under the workmen’s compensation law. The claimants could not know whether they would prevail or not until the decision on that claim was handed down. If claimants prevailed then they would have no cause of action in the courts for wrongful death. The award was for Stockyards but not on the merits. It was held that Stockyards had not accepted the workmen’s compensation act and that its business was not of the hazardous type mandating acceptance but it took over a year for this to be determined.

Had the widow filed a suit for wrongful death initially and if in that court proceeding it was .determined the deceased was an employee and defendant an employer and subject to the .workmen’s compensation law, and for that reason was nonsuited, the time for filing the claim for workmen’s compensation under 287.430 would have been tolled and the widow would have had one additional year from the ultimate determination of the court action to file the workmen’s compensation claim. Sec. 287.440, RSMo 1969.

When this section, 287.440, is considered in pari materia with 537.100, it seems clear that the legislature has established a policy to toll the statute of limitations during that period when the same basic claim is pending in another forum. This, I believe, provides substantial support for holding that the terminology “such action” appearing in 537.100 includes within its scope the substituted claim for death benefits under the workmen’s compensation law.

Because the compensation claim involved the same parties as the wrongful death action involves, and because the event giving use to both claims is the same (death of Roy Ruiz), and because the compensation claim is a substitute for the wrongful death suit against that same defendant, I believe the provisions of sec. 537.100 allowed the widow and minor children to institute the instant action within one year after they were “nonsuited” on the workmen’s compensation claim.

The fact that the tolling statute was not pleaded is not, in my opinion, of any significant moment. In Lynch v. St. Louis Public Service Co., 261 S.W.2d 521 (Mo.App.1953), the administratrix of the deceased’s estate filed suit for wrongful death but did not plead “the necessary elements of dependency and pecuniary loss”. After verdict and judgment for plaintiff, defendant appealed. The court held the petition jurisdictionally defective and reversed because of the insufficiency of the petition but held that “since the petition may be amended to bring it within the statute relied upon the case should be remanded.”

The same is true in the instant case. If pleading the tolling statute is necessary to make the petition sufficient, then leave to do so should be granted.

The instant wrongful death case was filed within one year after the workmen’s compensation claim was terminated by a decision not on the merits of the action and therefore should be allowed to proceed. Sec. 537.100, RSMo 1969.

For the foregoing reasons I would quash our preliminary rule in prohibition and therefore I dissent.

      , The “appeal” referred to was not an appeal as we know it today. “The criminal appeal was a criminal proceeding brought by a private person, and was for many years more common than indictment as a means of punishing homicide. Though a successful appeal would not produce a monetary recovery, the threat of one served as an informal substitute for a civil suit for damages. Over the years, indictment became more common, and the criminal appeal was abolished by statute in 1819. 59 Geo. 3, c. 46. See Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L.Q.Rev. 431, 435 (1916); Admiralty Commissioners v. S. S. Amerika, [1917] A.C., at 58-59.” 398 U.S. 389, 90 S.Ct. 1782 footnote 7. As stated, appeal as a method of obtaining compensation for death existed at common law and was not done away with until abolished by statute in 1819. 59 Geo. 3, c. 46. The “appeal of murder”, the “wer and wite”, and “the compromise” were methods whereby the family of the deceased obtained compensation for the death at common law.
      COMPROMISE: The compromise produced the same general result as an action for damages. Woodbine, The Origins of the Action of Trespass, 33 Yale L.J. 799, 803 (1924).
      WER: “In the old days of wer and bot the person who slew another, even though it was by misadventure or in self-defence, had been liable to pay the statutory sums to the deceased’s kin.” 3 Holdsworth, A History of English Law, 257-58 (1909).
      WITE: “The vengeance of the members of the deceased’s clan was bought off by an award of money, the wer (or capitis oestimatio), the amount of which was fixed in terms of the status or rank of the deceased and which was distributed in definite proportions to his paternal and maternal kin. In the same proceeding there was exacted of the wrongdoer the wite, which was a reparation to the King or overlord for the breach of his peace or mund.” Malone, The Genesis of Wrongful Death, 17 Stanford L.Rev. 1043, 1055 (July 1965).
      APPEAL: The appeal of murdrum was probably used to exact monetary payment from the accused. 2 Holdsworth, A History of English Law 362-64 (3d. ed. 1923); Woodbine, The Origins of the Action of Trespass, 33 Yale L.J. 799, 803-06 (1924).


source: Caselaw Access Project

license: Public Domain

text:
    Deborah Langford SELSOR and Shawn Olen Langford, a minor, by next friend, Deborah Langford Selsor, Plaintiffs-Appellants, v. ZENITH RADIO CORPORATION of Missouri, Defendant and Third-Party Plaintiff-Respondent, v. DeWITT-NEWTON, INC., Third-Party Defendant and Third-Party Plaintiff, v. A-ONE MANUFACTURING COMPANY, Third-Party Defendant.
    No. 59289.
    Supreme Court of Missouri, En Banc.
    April 14, 1976.

      Donald E. Woody and Warren S. Stafford, Taylor Stafford & Gannaway, Springfield, for plaintiffs-appellants.
    Kenneth H. Reid and Meredith B. Turner, Springfield, for respondent.
   HOLMAN, Judge.

This is a wrongful death case filed by the widow and minor child of deceased against Zenith Radio Corporation of Missouri. Zenith filed a petition as third-party plaintiff against its general contractor, DeWitt-Newton, Inc. Apparently DeWitt, in turn, filed a third-party petition against decedent’s employer, A-One Manufacturing Company.

The trial court ordered a separate trial of plaintiffs’ claim against defendant Zenith. Zenith filed a motion for summary judgment on the claim of plaintiffs. That motion was heard by the court and sustained. The judgment for Zenith entered accordingly was designated by the court in accordance with Rule 81.06 as a final judgment for purposes of appeal. Plaintiffs appealed to the Springfield District of the Missouri Court of Appeals. Upon joint application of the parties we ordered the case transferred to this court before opinion.

The relevant facts are not in dispute. James Langford was killed while on defendant’s property on March 13, 1973. He left surviving the plaintiffs and also his mother. The mother filed an affidavit stating that deceased was not contributing to her support and that she did not incur any pecuniary loss by reason of his death. The instant suit was filed on October 16, 1974. The mother did not file any suit.

It is obvious from the facts stated that the question for decision by the trial court (and this court on appeal) was whether plaintiffs, as decedent’s widow and minor child, could maintain the wrongful death action which was filed more than one year but less than two years after decedent’s death. See Section 537.080, RSMo 1969, V.A.M.S.

The question presented has been ruled adversely to plaintiffs in the case of State of Missouri, ex rel., Kansas City Stock Yards Company of Maine, Petitioner, vs. Honorable Donald B. Clark, Judge of the Circuit Court of Jackson County, Missouri, Respondent, No. 59217, decided concurrently herewith. While this case comes to us in a different posture and while the Clark case had issues presented that are not instantly before us the precise question here presented was decided therein. We have carefully searched the briefs and do not find any theory suggested or case cited as authority which were not considered in Clark. It accordingly follows that it would be useless duplication and a waste of space and time to discuss herein the reasoning and authorities which led to our decision in Clark and which controls and dictates our ruling on the question presented in the case at bar.

We accordingly rule that the plaintiffs cannot maintain this action and that the trial court properly entered a summary judgment in favor of defendant.

Judgment affirmed.

MORGAN, HENLEY, FINCH and DON-NELLY, JJ., concur.

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

SEILER, C. J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge

(dissenting).

I respectfully dissent for the same reasons set forth in my dissent in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W2d 142 (Mo. banc 1976), except for that portion of my dissent which treats with sec. 537.100, RSMo 1969, the wrongful death tolling statute. This is not a suit by the employee’s widow and children against the employer but rather against a defendant that was not involved in the workmen’s compensation claim.

Here, as in State ex rel. Stock Yards v. Clark, supra, we do have the affidavit of the surviving mother in this case stating that she had no pecuniary loss by reason of her son’s death. She did not file a wrongful death suit and the two-year statute has expired. The deceased’s mother has, in my opinion, abandoned the action and left things the same as if she did not survive her son, and so for these reasons and the other reasons stated in my dissent in State ex rel. Kansas City Stock Yards v. Clark, supra, I am of the opinion that the judgment of the circuit court should be reversed and the cause remanded for trial on the merits.

Therefore, I dissent.


author: FINCH, Judge.

text:
    Arne CHRISTIANSEN, Plaintiff-Appellant, v. FULTON STATE HOSPITAL, Defendant-Respondent.
    No. 59077.
    Supreme Court of Missouri, En Banc.
    April 14, 1976.
    Bernard Edelman, Clayton, for plaintiff-appellant.
    John C. Danforth, Atty. Gen. by Daniel P. Card, Asst. Atty. Gen., for defendant-respondent.
   FINCH, Judge.

Appellant, committed to State Hospital No. 1 at Fulton as a criminal sexual psychopath pursuant to § 202.700, filed a petition for release under the provisions of § 202.-740, alleging that he had improved to the extent that his release would not be incompatible with the welfare of society. After a hearing, the trial court denied release, finding that he had not improved to the extent necessary to comply with § 202.740, but recommending to the director of the Division of Mental Health that he administratively transfer Christiansen to Malcom Bliss Mental Health Center in St. Louis, there to be detained and treated until released in accordance with the provisions of §§ 202.-700 to 202.770. Appellant thereafter appealed to this court, alleging that it has exclusive appellate jurisdiction because the case involved questions requiring construction of the eighth and fourteenth amendments to the federal constitution.

Appellant’s petition for release raised no constitutional issues. It asserted merely that appellant was sufficiently recovered to merit his release under § 202.740. The petition was never amended. The first reference of any kind to any constitutional issue was in counsel’s closing argument to the trial judge wherein he stated that recent cases held that a mental patient has a right to treatment and that Christiansen had not been receiving treatment. Then in his motion for new trial, appellant asserted that extended incarceration without adequate treatment constitutes cruel and unusual treatment and also is a violation of due process and equal protection, in violation of the eighth and fourteenth amendments to the U. S. Constitution.

We hold that appellant did not comply with the well-recognized rule which requires that constitutional issues be raised at the earliest opportunity and thereafter preserved. Swafford v. Industrial Commission, 452 S.W.2d 801 (Mo.1970); Barnes v. Anchor Temple Association, 369 S.W.2d 192 (Mo.1963); 1964 Wash.U.L.Q. 424 esp. § 1.022(d). The need for such a rule is demonstrated by this case. Appellant asserts that he had a constitutional right to treatment and that the treatment afforded him at Fulton was insufficient to comply with constitutional requirements. If these issues were to be litigated, the State was entitled to notice thereof so as to prepare and present evidence pertinent thereto. Such notice was not given. Instead, the State knew only that appellant was contending that he had recovered sufficiently so that his release would not be incompatible with the welfare of society. Under such circumstances, we would be attempting to decide the constitutionality of treatment provided, even assuming a constitutional right thereto, without that having been an issue and without evidence addressed to that issue having been assembled and then introduced. We should not and will not resolve a constitutional issue on that kind of a record. Hence, no constitutional issue is presented and we have no jurisdiction of this appeal under Mo.Const., Art. V, § 3.

Appellant urges that even if the constitutional issues were not raised at the earliest opportunity, they nevertheless should be considered because this situation falls within an exception referred to as the “inherency doctrine”. We reject this contention because in City of St. Louis v. Butler, 358 Mo. 1221, 219 S.W.2d 372 (banc 1949), this court disavowed the “inherency doctrine”, holding it to be unconstitutional. Some confusion as to the survival of the doctrine seems to have resulted from the cases of Thomas v. Thomas, 288 S.W.2d 689 (Mo.App.1956), and Kelch v. Kelch, 450 S.W.2d 202 (Mo.1970), but neither case applied the doctrine, and as recognized in the subsequent case of Allright Grand v. Kansas City, 515 S.W.2d 890 (Mo.App.1974), the doctrine has been rejected and is not to be utilized.

Under such circumstances, we ordinarily would transfer this case to the Missouri Court of Appeals, St. Louis District, in accordance with Mo.Const., Art. V, § 11. However, we have concluded to retain jurisdiction as was done in Foremost-McKesson v. Davis, 488 S.W.2d 193 (Mo. banc 1972). In that case this court concluded that it had no jurisdiction of the appeal. However, the court felt that it was desirable that it decide that case. It then pointed out that it had the right to transfer cases before opinion from the court of appeals and that it seemed useless and unnecessarily time-consuming to transfer the case to the court of appeals and then order the case transferred back. Hence, the case was ordered retained in order to avoid such unnecessary procedure.

In this case there is nothing for the court of appeals to resolve because there is no real issue as to whether appellant is sufficiently recovered so that his release would be compatible with the welfare of society. His own brief does not so assert and Dr. Lum, the psychiatrist who examined appellant and appeared as a witness on his behalf, did not so testify. Under such circumstances, the judgment of the trial court denying release of appellant and ordering him remanded to the custody of the Missouri Division of Mental Health must be affirmed.

There was testimony that the facilities at Malcolm Bliss were better adapted to providing treatment for Christiansen. No doubt, as a result of that testimony, the judgment of the trial court requested the director of the Division of Mental Health, acting pursuant to § 202.823, to make an administrative transfer of Christiansen to the Malcolm Bliss Mental Health Center, St. Louis (another facility operated by the Missouri Division of Mental Health), to be detained and treated until released in accordance with the provisions of §§ 202.700 to 202.770.

It appears that the director has not made the requested transfer, assigning as his reason a belief that he is prevented from so doing by an order entered by this court on October 8, 1973, in Ex parte Lawrence Lucas, No. 58462. We do not have before us a case involving action taken pursuant to § 202.823 and, hence, do not undertake to interpret it. However, it is appropriate to point out that § 202.823 was not involved in the Lucas case and was not construed therein. The Lucas order related only to action taken therein pursuant to § 202.830 and dealt with conditional release of the patient, not with administrative transfer between hospitals or facilities operated by the Division of Mental Health pursuant to § 202.823.

Judgment affirmed.

All concur.

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


author: PER CURIAM:

text:
    STATE ex rel. James E. RINEY et al., Relators, v. Mayo J. ANDERSON, County Clerk of Caldwell County, Missouri, Respondent.
    No. 59274.
    Supreme Court of Missouri, En Banc.
    April 14, 1976.

      John C. Danforth, Atty. Gen. by Clarence Thomas, Jefferson City, for relators.
    James A. Broshot, James S. Millett, Kingston, for respondent.
   PER CURIAM:

Involved herein is an action brought at the relation of the State Tax Commission to require the County Clerk of Caldwell County, Missouri, to compute and extend taxes based on an aggregate valuation of real and tangible personal property as determined by the Commission under § 138.400.3, RSMo 1969. A duty to comply is imposed on the Clerk under § 138.060.2, RSMo 1969.

The cause has been submitted upon written briefs and oral arguments. We hold that a decision herein is dictated by a previous opinion of this court. In State ex rel. State Tax Commission v. Briscoe, 451 S.W.2d 1, 5 (banc 1970), it was held that:

The county clerk must perform the ministerial duties enjoined upon him by law and must extend and compute the taxes on the valuations set by the state tax commission. If it finally turns out that some individual taxpayer in Johnson County is charged with a higher amount of tax than he would have had under the assessment and rate as originally proposed by the county board, he can have his day in court if he so desires by resort to the payment of taxes under protest procedure prescribed in Senate Bill No. 39, 75th General Assembly, effective October 13, 1969, now Sec. 139.031, see Vernon’s Mo. Legislative Service, No. 2, p. 159. This statute also provides a procedure for refund of taxes mistakenly or erroneously paid.

Respondent asserts that mandamus should not issue because there is an action pending in the circuit court in which various plaintiffs (including respondent) seek review of the very order the Commission seeks to enforce in this proceeding. This question was decided in May Department Stores Co. v. State Tax Commission, 308 S.W.2d 748 (Mo.1958), wherein it was held that orders of the Commission, such as the one involved here, are not subject to review in the manner respondent and the other plaintiffs have attempted in the other action. Thus, the pendency of the same does not preclude issuance of the writ of mandamus here.

Writ made peremptory.

All concur.


text:
    STATE ex rel. James E. RINEY et al., Relators, v. Roger M. RIEBEL, County Clerk of Scotland County, Missouri, Respondent.
    No. 59271.
    Supreme Court of Missouri, En Banc.
    April 14, 1976.
    John C. Danforth, Atty. Gen. by Clarence Thomas, Jefferson City, for relators.
    William O. Green, Scotland County Pros. Atty., Memphis, for respondent.
   PER CURIAM:

For the reasons stated in State ex rel. James E. Riney, Don G. Williams and Rob ert F. Love, constituting the State Tax Commission of Missouri, v. Mayo J. Anderson, County Clerk of Caldwell County, Missouri, 536 S.W.2d 161 (Mo.) (No. 59274), handed down this date, the alternative writ of mandamus issued herein is made peremptory.

All concur.


author: SIMEONE, Presiding Judge.

text:
    Donald W. STENZEL, Petitioner-Appellant, v. STATE of Missouri, DEPARTMENT OF REVENUE, Respondent.
    No. 36706.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 13, 1976.

      Thomas, Busse, Goodwin, Cullen, Clooney & Ottsen, Donald H. Clooney, St. Louis, for petitioner-appellant.
    John C. Danforth, Atty. Gen., Clarence Thomas, Richard L. Wieler, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   SIMEONE, Presiding Judge.

This is an appeal by petitioner-appellant, Donald W. Stenzel, from an order entered by the circuit court of St. Louis County on August 22, 1974, denying appellant’s petition to “set aside” a revocation of his driver’s license by the Director of Revenue. § 564.444, subsection 2, RSMo 1969.

After the appellant was informed by the Director of Revenue that his license would be revoked on July 3, 1974, he filed, on July 1, 1974, his petition to set aside the revocation. In that petition, Mr. Stenzel alleged that on or about June 11, 1974, he was arrested in Crestwood, Missouri, and charged with operating a motor vehicle while intoxicated, and that the Director of Revenue ordered a revocation for one year for an alleged refusal to submit to a chemical test. As grounds for his petition, he alleged that (1) he was “deprived of a right to counsel after he requested same”; (2) the arresting officer did not have reasonable grounds to believe that he was “driving in an intosicated [sic] condition”; (3) the affidavit prepared by the arresting officer which was submitted to the director was not “properly prepared” as required by law; and (4) he did not “refuse” to submit to the test but did, “in fact, request to take said test and was refused same by the arresting officer.” Alternatively, he requested limited driving privileges under § 302.309, RSMo 1969.

After a motion to stay revocation was sustained, a hearing was eventually held before the circuit court of St. Louis County on August 19, 1974. At the hearing the arresting officer testified for the state and the appellant testified in his own behalf. Two other witnesses also testified for the appellant.

Officer “Bill” Schliemann of the Crest-wood Police Department was the principal and only witness for the state. He testified that at about 9:30 p.m. on June 11, 1974, he received a “call of an automobile accident involving injuries” “at or near Highway 66 and Starling.” Four persons had been injured. Upon arrival at the scene, he “went over” to Mr. Stenzel’s car to see if he was injured. Mr. Stenzel indicated he was not. Officer Schliemann found Mr. Stenzel alone in the vehicle and “[bjehind the driver’s seat [wheel].” The automobile was “demolished in the front end, the tail lights [were] still on and there was water running out of the radiator.” The officer requested him to “get out” of the car, and when he did “ . . .he had a strong odor of alcohol, and he wobbled when he got out of the car and almost fell down. . . . Wobbled as in staggering.” The officer was “about two feet” away. According to the officer, Mr. Stenzel walked about thirty feet and “[h]e staggered and wobbled around and was having difficulty keeping his balance.” The officer asked the appellant if he had had anything to drink, and he answered, “Yes, he had.” The officer then placed him under arrest, asked him if he would be willing to take the intoximeter test and informed him that his license may be revoked upon his refusal to take the test. At the scene, Mr. Stenzel “gave his consent.” Mr. Stenzel was then “handcuffed” and conveyed to the police station. At the station, the officer again inquired if he would take the test, but this time, according to Officer Schliemann, “he refused for the reason that his attorney previously advised him not to.” The officer was then asked: “Did he at any previous or subsequent time to what you said make any other statement whether he would or would not take the test?” The officer replied: “No. After that it was just a refusal, a direct refusal. He didn’t want to have anything to do with it.”

At no time did the appellant tell the officer that he was driving the motor vehicle.

With the above evidence, the state concluded its case. Thereupon, the appellant’s attorney moved to sustain his petition to set aside the revocation because the evidence was insufficient and because the state did not introduce a “notarized statement” of the officer required under § 564.444, subsection 1. “You must file this in order to have a revocation.” A long discussion occurred as to the scope of review by the trial court as to which party had the burden to show the existence of the “sworn statement,” and whether the sworn statement of the officer was properly filed.

After the long colloquy, the officer was cross-examined. On cross-examination, the officer identified his “affidavit” made to the Director of Revenue which stated (1) that he had reasonable grounds to believe that the arrested person was driving a motor vehicle upon a public highway in an intoxicated condition and (2) that he requested the person to submit to a chemical test but that he refused. This statement, according to the officer, was signed on June 11, but was not notarized until June 13 in the presence of the officer.

On cross-examination, the officer did not remember Mr. Stenzel making any request to take the test at the station and denied that “another individual” came to him “saying that he [Stenzel] would like to take the test.” At 11:30 p.m., the officer finally issued an arrest notice to the appellant which was signed by the appellant. On cross-examination, the officer reiterated that at the station he asked Mr. Stenzel if he was ready to take the test, but “[h]e said no. He didn’t want me to remind him of what the consequences were.” He also stated that at the scene of the accident, Mr. Stenzel said, “What the Hell happened, somebody hit me.”

In defense, Mr. Charles Litsch, a good friend of Mr. Stenzel’s, testified that he was at the station that evening and spoke to Mr. Stenzel’s attorney on the telephone. The attorney advised him to inform Mr. Stenzel to take the test. This was about 11:00 p.m. Mr. Litsch said he “relayed what you tole [sic] me” and “[t]old him to take the test.” Litsch said he overheard “Mr. Stenzel request to take the test from this police officer,” but that the officer said “[h]e did not want him to take the test. All he wanted to do was get Stenzel out of there.” The attorney requested Litsch to make a note of that conversation, which was done. According to Mr. Litsch, Mr. Stenzel did not appear to be intoxicated. Mr. Stenzel had been at Litsch’s home that evening for dinner from 6:00 to 7:30 p.m. and had had “two glasses of wine . . . .”

Mr. Stenzel’s attorney, Mr. Donald Cloo-ney, testified and corroborated Mr. Litsch’s testimony. He stated that Mr. Litsch called him at home and he advised Mr. Litsch to inform Mr. Stenzel to “take the test . . . and to request it . . .” and make a note of it.

The testimony of Mr. Stenzel was contradictory to that of Officer Schliemann. Mr. Stenzel testified that he requested to take the test, but the officer replied, “ ‘All I want to do is get this paper work off and get the Hell out of here.’ ” Mr. Stenzel admitted that at one time, presumably at the station, he refused to take the test and stated, “I didn’t want to take the test — my attorneys advised me to take the test only when the attorney was present.” He changed his mind, however, when he was advised to take the test by his attorney, Mr. Clooney. He admitted that he was behind the wheel of the vehicle when the officer first came upon the scene and remembered telling the officer that he had had a “couple drinks.”

On August 22,1974, the trial court denied the petition to set aside the revocation, and in due time appellant filed his after trial motion to set aside the order.

Pending this appeal, we stayed the revocation by order of February 10, 1975.

On this appeal, appellant makes three points. He contends that the trial court erred in finding that (1) there was a reasonable basis for the arresting officer to request that appellant take a chemical test, (2) appellant “refused” to submit to a chemical test as required by the statute which is a prerequisite to revoking a driver’s license, and (3) all of the statutory requirements were fulfilled, “especially the requirement that the arresting officer submit a sworn affidavit to the Director of Revenue prior to revocation of one’s driver’s license under Section 564.444, RSMo.”

Appellant, in effect, contends that the court erred because there was not sufficient evidence to conclude (1) that appellant was “driving on a public highway,” (2) that the officer had reasonable grounds to believe that he was operating a motor vehicle while in an intoxicated condition, and (3) that there was a “refusal” to submit to the test. He further contends that the state had the burden to show that the officer made a proper “sworn report” to the Director of Revenue, and in the absence of such proper sworn report, the court could not sustain the revocation of appellant’s driver’s license.

We turn to the law. This is a court tried case. In such instance, we review both the law and the facts and reach our own independent conclusions, but due regard is given to the opportunity of the trial court to judge the credibility of the witnesses appearing before it. Rule 73.01(3). Wurtz v. Daniel Hamm Drayage Co., 530 S.W.2d 752, 754 (Mo.App.1975). And while Rule 73.01, as amended January 1, 1975, deleted the phrase, “The judgment shall not be set aside unless clearly erroneous,” cf. Rule 84.16(b), V.A.M.R.Supp.1975, as it previously appeared in Rule 73.01(d),.the appellate courts are still admonished not to be “judicial second guessers” as to trial court findings. Morris v. Holland, 529 S.W.2d 948, 952 (Mo.App.1975).

Giving effect to the foregoing, we are convinced that the judgment of the trial court should be affirmed.

The standards upon a hearing 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 his “refusal” to submit to a chemical test, he may request a hearing before a court of record 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,
(8) Whether or not the person refused to submit to the test.”

If the judge on the hearing “determines any issue not to be in the affirmative,” he shall order the director to reinstate the license to drive.

As to appellant’s first argument that there was insufficient evidence to show that appellant was driving in an intoxicated condition, we hold that there was ample evidence to indicate that appellant was, on the evening of June 11, 1974, driving while intoxicated.

The general principle is that the state must show that the defendant was driving a motor vehicle and that he was intoxicated while so doing. State v. Kennedy, 530 S.W.2d 479, 481 (Mo.App.1975); State v. Easley, 515 S.W.2d 600, 602 (Mo.App.1974); State v. Kissinger, 343 Mo. 781, 123 S.W.2d 81, 82 (1938).

Proof that a person was driving while in an intoxicated condition may be direct or circumstantial. Numerous decisions, although our research discloses none in his state, hold that the proof of driving while intoxicated may be based on circumstantial evidence.

We believe that there was ample evidence for the trial court to conclude that the appellant was “driving” the vehicle on June 11. The officer testified that when he came to the vehicle, the appellant was alone in the car behind the wheel, the automobile was demolished in the front end, the taillights were still on and there was water running out of the radiator. This was at Highway 66 and Starling Avenue. Such evidence, under any reasonable inference and authorities, is sufficient to satisfy the statute.

The evidence of intoxication was certainly ample. The officer testified that there was a “strong odor of alcohol, and he wobbled when he got out of the car and almost fell down.” This was sufficient evidence of that issue. State v. Grove, 204 S.W.2d 757, 759 (Mo.1947); State v. Kissinger, supra, 123 S.W.2d at 82. Hence, there was ample evidence showing that appellant was “driving” while “intoxicated.”

And there was sufficient evidence for the arresting officer to arrest the appellant. Being “under arrest” the officer had the right to request that the appellant submit to a chemical test.

Appellant, in his second point, contends, however, that there was no “refusal” to submit to the test, and, hence, the trial court erred. He argues that he requested to speak to his attorney before taking the test, and the amount of time between the “moment” he “requested to speak with his attorney” and the time he consented to take the test was not so unreasonable, so that there was no “refusal.” But there is nothing in the record to indicate that appellant requested to speak with the attorney. The record shows that the evidence presented by the appellant was that Mr. Litsch relayed a message from the attorney to Mr. Stenzel to submit to a test.

The officer, however, testified that at the scene the appellant consented, but at the station, “he refused for the reason that his attorney previously advised him not to.” And “[a]fter that it was a refusal, a direct refusal.”

What constitutes a “refusal” has been the subject of numerous decisions. The latest pronouncement is stated in Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975). There, our Supreme Court stated:

“There is no mysterious meaning to the word ‘refusal’. In the context of the implied consent law, 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, ‘I 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.

Here, the evidence was contradictory on the issue of refusal. Officer Schliemann testified that, although appellant consented to submit to the test at the scene, “he refused for the reason his attorney previously advised him not to” at the station, and “[ajfter that it was just a refusal, a direct refusal.” He denied remembering that Mr. Litsch came to him “saying that [Mr. Stenzel] would like to take the test.” “[T]his did not occur.” He denied that Mr. Litsch told him that the “attorney said to go ahead and take the test.” This evidence contradicted the evidence offered by the appellant.

Where testimony is in conflict, an appellate court gives deference not only to the court’s finding on the issue of credibility but also as to its conclusions, and all fact issues are deemed to have been found in accordance with the result reached. Cole v. Cole, 516 S.W.2d 518, 520 (Mo.App.1974); Rule 73.01, V.A.M.R.Supp.1975, note 261; Mize v. Sims, 516 S.W.2d 561, 564 (Mo.App.1974). The issue here is one of credibility and we defer to the finding of the trial court that there was a “refusal” to submit to the chemical test.

Lastly, appellant complains that the court erred because (1) the sworn affidavit of the officer was not introduced by the state in its case, and in the absence of such affidavit the court could not “ . . . exercise the power of revocation . . and (2) the affidavit was improper because it was sworn to a few days after it was signed.

We find no merit in these contentions. Section 564.444 is explicit as to what shall be determined at the hearing. That section states that at the hearing the judge shall determine “only” three issues. The requirement of a “sworn report” under that section applies to the duty of the arresting officer to report to the Director of Revenue; it has no application to the matters to be determined at the hearing.

The fact that it was notarized a few days after it was completed is of no significance. It was signed and sworn to. That is sufficient. An affidavit is “a declaration on oath, in writing, sworn to by a party before some person who has authority to administer such oaths . . . .” State ex rel. Nollmann v. Gunn, 513 S.W.2d 710, 713 (Mo.App.1974). Failure to sign renders the instrument ineffective. Land Clearance for Redevelopment Auth. v. Zitko, 386 S.W.2d 69, 78 (Mo.banc 1964).

Appellant relies on Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108 (1968). There, it was held that under the provisions of the implied consent law, a sworn report of a refusal to submit to a test was mandatory and, where the report was signed by an officer but not in fact sworn to, the revocation of the license was void. Here, the report was signed and sworn to. That decision is distinguishable from this.

We rule this point against appellant.

The common sense and reasonable conclusions of this proceeding are: (1) that there was probable cause for the arresting officer to arrest appellant, and that appellant was arrested, (2) that the arresting officer had reasonable grounds to believe that the appellant was driving a motor vehicle upon the public highway while in an intoxicated condition, and (3) that the trial court could reasonably find that the appellant refused to submit to a chemical test.

We have reviewed the entire transcript, the briefs and the authorities relied upon and conclude that the order of the trial court should be affirmed.

The judgment is affirmed.'

GUNN and RENBLEN, JJ., concur.

      . Even with the deletion of the “clearly erroneous” phrase, recent appellate decisions still cling to the interpretation that, under Rule 73.-01(3), the judgment of the trial court is not to be set aside unless clearly erroneous. Farmers Alliance Mut. Ins. Co. v. Reed, 530 S.W.2d 470, 477 (Mo.App.1975); Ehrle v. Bank Bldg. & Equip. Corp. of America, 530 S.W.2d 482, 489 (Mo.App.1975); Keokuk Investment Co. v. Doerhoff, 530 S.W.2d 507, 510 (Mo.App.1975).

      . A thorough discussion of what constitutes proof of driving can be found in 1 Erwin, Defense of Drunk Driving Cases, § 1.01 [2] (3d ed. 1975).

      . People v. Hanggi, 265 Cal.App.2d Supp. 969, 70 Cal.Rptr. 540 (1968)-sufficient circumstantial evidence to conclude that defendant was driving when found in car on street, sitting in driver’s seat clutching the wheel, with the engine running and the lights on; People v. Mundorf, 97 Ill.App.2d 130, 239 N.E.2d 690 (1968)-defendant found sitting in car, lying over steering wheel; People v. Schulewitz, 87 Ill.App.2d 331, 231 N.E.2d 678 (1967)-fair inference when a car is found in the street and a person is asleep behind steering wheel.

      . The record only shows that the officer went to the vehicle at or near Highway 66 and Starling. Appellant contends that this does not show that appellant was found on a “public highway.” Under § 564.440 [driving while intoxicated], there is no requirement that the defendant drive on a public highway. State v. Davis, 143 S.W.2d 244, 247 (Mo.1940); State v. Weston, 202 S.W.2d 50, 53 (Mo.1947). Neither is there any requirement on the hearing under § 564.444 to find that appellant drove on a public highway. Although we believe that the trial court on a hearing should find that the petitioner drove on a public highway, there is nothing in § 564.444 to require such a finding. Under that section, the officer’s sworn report is made to the director and must state he had reasonable grounds to believe the arrested person was driving upon a public highway, but this is not one of the issues to be found on the hearing. In these circumstances, however, the trial court could properly infer that Highway 66 and Starling Avenue were public streets and could take judicial notice that Highway 66 and Starling are public highways. See Annot., 48 A.L.R.2d 1102, 1134 (1956).

      . Gooch v. Spradling, 523 S.W.2d 861 (Mo.App.1975)-request to speak to attorney does not constitute refusal; Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969)-desire to take blood test and speak to attorney-no refusal; Bolling v. Schaffner, 488 S.W.2d 212 (Mo.App.1972)-refusal; Jones v. Schaffner, 509 S.W.2d 72 (Mo.1974)-refusal after speaking to attorney; Hester v. Spradling, 508 S.W.2d 194 (Mo.App.1974)-no refusal where police refused to give test because he refused “by smoking”; Dain v. Spradling, 534 S.W.2d 813 (Mo.App.St. L.Dist., 1976)-request to speak to attorney which was denied is not refusal; see Annot., 88 A.L.R.2d 1064, 1074 (1963).


author: CLEMENS, Presiding Judge.

text:
    Richard WALKLEY, Respondent, v. SEARS, ROEBUCK & CO., Appellant.
    No. 36606.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 13, 1976.

      Anderson, Gilbert, Wolfort & Allen & Bierman, Karl J. Keffler, St. Louis, for appellant.
    Kenneth M. Weinstock, Bahn & Saitz, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

On his Count I for false arrest the jury awarded plaintiff $500 actual and $10,000 punitive damages. On Count II for malicious prosecution the awards were $500 actual and $5,000 punitive damages. Defendant appeals from the $16,000 judgment.

Plaintiff has moved to dismiss defendant’s appeal because of its defective brief. The argument part of the brief is not perfect; it does not mention any ease listed under Points Relied On and is devoid of transcript references. We have decided, however, to consider defense contentions, and to deny the motion to dismiss.

On the night of September 22,1972 plaintiff sought to buy a battery from one of defendant’s salesmen. He wanted to use “lay-a-way” to take advantage of the battery’s sale price, but after paying $5 down and being handed a sales slip, the salesman told plaintiff there was a 75-cent “lay-away” charge. Plaintiff asked if there would be such an extra charge if instead of “lay-a-way” he used his Sears charge account. Being told no, an argument followed when plaintiff asked to have the battery charged to his account. The salesman jerked the sales slip out of plaintiff’s hand and left, but returned with two security guards, one telling plaintiff he was under arrest for peace disturbance. The officers, one of them armed, handcuffed plaintiff and took him upstairs where he was ordered to enter a room. When he refused a guard pushed plaintiff against a wall, causing him to strike his head. He was kept in the room for an hour until police arrived and cited plaintiff for peace disturbance. He was not allowed to use the phone. While so confined plaintiff was “read his rights” by one of defendant’s employees. His head and eye began to ache after the injury and later he was treated at a local hospital. He still had headaches at trial time. Plaintiff lost several days from his place of business in his successful pro se defense of the peace disturbance charge.

We consider defendant’s five Points Relied On.

I. Defendant contends the trial court erred in allowing plaintiff’s counsel to read into evidence statements from a defensive pleading. Defendant had filed an original “Answer” and later an “Amended Answer to First Amended Petition.” At trial, plaintiff’s counsel offered to read into evidence, as admissions against interest, portions of defendant’s “answer” wherein defendant admitted it “did act through its employees, agents and servants acting within the scope of their employment.” After plaintiff read this, defense counsel objected to reading pleadings into evidence. Assuming arguendo this was error, the objection was untimely and the trial court did not err in overruling defendant’s objection.

II. Defendant contends plaintiff’s verdict director for malicious prosecution was erroneous because it carried a tail negating an affirmative defense defendant had not submitted. Plaintiff submitted his malicious prosecution count by Instruction No. 5, MAI 23.07, hypothesizing that “defendant acted maliciously and without reasonable grounds.” Defendant countered this by instruction No. 6, MAI 33.04, modified, conversing the quoted elements of plaintiff’s Instruction No. 5. Plaintiff unnecessarily added to his Instruction No. 5 the tail “unless you believe plaintiff is not entitled to recover by reason of Instruction No. 6.” That was defendant’s converse instruction, not an affirmative defense instruction. A true converse instruction need not be negated. Vondras v. Titanium Research & Development Co., 511 S.W.2d 883[13] (Mo.App.1974). Plaintiff’s error in unnecessarily adding the tail to his verdict director merely added to his evidentiary burden and was not prejudicial to defendant. Compare Joly v. Wippler, 449 S.W.2d 565[4] (Mo.1970), and see numerous MAI cases annotated at Note 8, under How to Use This Book, Old Principles Still in Force. They hold harmless error is not prejudicial, and this was harmless error.

III. Defendant contends the trial court erred during plaintiff’s closing argument concerning punitive damages by allowing plaintiff’s counsel to write figures on a blackboard showing defendant’s net worth, defendant contending the blackboard was not in evidence. It was not, but the amounts written were. Use of a blackboard to illustrate matters concerning damages already in evidence is not error. Bower v. Hog Builders, Inc., 461 S.W.2d 784[18] (Mo.1970); Boese v. Love, 300 S.W.2d 453[9, 10] (Mo.1957).

IY. In closing argument plaintiff mentioned that defendant had failed to call as a witness a Mr. Allen, one of the two guards who had arrested plaintiff. Defendant argued this was improper since by trial time Mr. Allen was no longer employed by defendant, and hence he was “equally available” to plaintiff. The trial court ruled Mr. Allen was not equally available and overruled defense objection. The point was not raised in defendant’s motion for a new trial, and is not now reviewable.

V. Defendant contends the verdicts are excessive and grossly excessive as the result of bias and prejudice. The trial court found neither, nor do we. Considering the drastic conduct of defendant’s guards and plaintiff’s injuries, as well as his successful defense of defendant’s unfounded criminal charge, we abide by the trial court’s ruling upholding the verdict. Compare Garvis v. K Mart Discount Store, 461 S.W.2d 317[12-13] (Mo.App.1970), a false imprisonment case, where a judgment for $41 actual and $12,500 punitive damages was affirmed for similar reasons.

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.

      . For academic interest only see White v. Metropolitan Life Insurance Co., 218 S.W.2d 795[13, 14] (Mo.App.1949), and Wehrkamp v. Watkins Motor Lines, 436 S.W.2d 698[6] (Mo.1969), holding a former employee was not “equally available.”