author: McMILLIAN, Presiding Judge.

text:
    CHEMICAL FIREPROOFING CORPORATION, an Ohio Corporation d/b/a Acme Cleaning Service Division, Plaintiff-Respondent, v. Herbert B. BRONSKA and Engineered Cleaning Services, Inc., a Missouri Corporation, Defendants-Appellants.
    No. 38008.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 21, 1977.

      Friedman & Fredericks, Melvin Friedman, Stuart J. Radloff, St. Louis, for defendants-appellants.
    Cook, Murphy, Lance & Mayer, D. Jeff Lance, Daniel J. Murphy, St. Louis, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Appellants, Herbert Bronska and Engineered Cleaning Services, Inc., a corporation, hereinafter referred to as Bronska and ECS, respectively, appeal from an order of the circuit court of St. Louis County, Missouri, finding both guilty of criminal contempt and fining each of them $1,000.00. For reasons hereinafter given, we affirm.

This case has had a checkered existence, being punctuated at frequent intervals by motions to show cause as to why the appellants herein should not be punished for contempt for their willful violation of a court ordered injunction. The original litigation grew out of an employment relationship formerly existing between Chemical Fireproofing Corporation (CFC) and Bronska. For more details pertaining to the initial suit the reader is referred to Chemical Fireproofing Corporation v. Bronska, 542 S.W.2d 74 (Mo.App.1976). For our purposes here it suffices to say that our court sustained the judgment of the trial court entered 18 April 1975, enjoining Bronska and ECS, for a period of one year, from engaging in a business similar to CFC in the State of Missouri and Illinois, and, for a period of two years, from soliciting or dealing with persons, firms, or corporations in the states of Missouri and Illinois, which had been customers of CFC prior to 29 June 1974.

On 3 July 1975, the court, in response to a petition for an order to show cause, filed by CFC on 25 June 1975, held defendants in civil contempt for the violation of its 18 April 1975 injunctive order. In support of its finding that defendants were in civil contempt, the court found that after its 18 April 1975 order, defendants continued to engage in a business similar to that of CFC. From the record it appears that this matter is yet pending because no penalties have been assessed.

On 31 July 1975, CFC filed another petition seeking an order to show cause why defendants should not be held in both civil and criminal contempt for alleged violation of the injunctive order by acts occurring subsequent to the 3 July 1975 order based upon the 25 June 1975 petition. No disposition appears to have been made of the 31 July 1975 petition.

On 5 August 1975, the returned date for the 31 July 1975 petition, CFC filed a second petition (amended??) for an order to show cause seeking civil and criminal penalties for defendants’ alleged violation of the 18 April 1975 injunction that occurred subsequent to the 3 July 1975 finding of the trial court that defendants were guilty of contempt. CFC’s petition alleged that defendants’ acts of selling services to General Motors Assembly Division, Warwick Hotel, Schnucks Markets, Barnes Hospital and Host International, all of whom were customers of CFC prior to 29 June 1974, were direct, willful and deliberate, and constituted an offense against the majesty of the law and the dignity and authority of the court.

After a 25 August 1975 hearing on the petition, the trial court found beyond a reasonable doubt that defendants not only violated the 18 April 1975 injunctive order but also found that defendants were guilty of willful disobedience of the court’s order and that their acts and conduct constituted offenses against the majesty of the law and the dignity and authority of the court. Accordingly, the court found both Bronska and ECS guilty of criminal contempt and sentenced Bronska to ten (10) days in the custody of the warden of the St. Louis County jail and fined Bronska and ECS the sum of $3,000.00. After a conference with defendants’ attorney, the court cancelled its original sentence of Bronska and thereafter suspended the imposition of sentence and placed Bronska on probation until 29 June 1975. The court left open the matter pertaining to civil contempt which was yet pending before the Honorable Harry J. Stussie (3 July 1975).

On November 7, 1975, CFC filed a notice of revocation of probation and sentencing, allegedly based upon infractions of the in-junctive order and probation occurring after 25 August 1975. On 24 November 1975, after a hearing the court found both Brons-ka and ECS to be in violation of their probation, and accordingly sentenced Brons-ka to serve two days in the custody of the St. Louis County Welfare Department and imposed a $3,000 fine upon each defendant. On 12 December 1975, the court filed its findings of fact and amended the 24 Nov. 1975 order reducing the fines against each defendant to $1,000 and permitting them both to be on probation until 29 June 1976.

For reversal defendants argue that the trial court erred because: (1) the parent litigation out of which the contempt order arose was pending on appeal; (2) their conduct does not support a finding of criminal contempt; (3) the conviction of criminal contempt was improper, the fixed fine was erroneous, and (4) the injunction was too vague.

The appellants claim that they were improperly cited for contempt for failure to comply with an order when the litigation out of which the order grew is still pending on appeal. However, the general rule is: “An injunction which is strictly prohibitory in character is not stayed or superseded by .an appeal from the order granting the injunction” 93 A.L.R. 709, 710, while “all proceedings on a mandatory injunction are stayed by an appeal from the order granting the injunction.” Id. at 715.

The injunction in this case is a prohibitory injunction because it has the effect of preserving the status quo and operates to restrain the commission or continuance of an act. 28 Am.Jur., Injunction, § 18, p. 508. Therefore the filing of the supersedeas bond in this case did not, of itself, stay the injunction order pending appeal, and rela-tors, unless excused under the circumstances, rendered themselves subject to contempt proceedings for the admitted violation of respondents’ order. State ex rel. Jarboe v. Holt, 444 S.W.2d 857, 858-59 (Mo.banc 1969); State ex rel. Anheuser-Busch Brewing Ass’n v. Dillon, 96 Mo. 56, 8 S.W. 781, 783 (1888).

The power of a court to hold a person in contempt is essential to prevent its orders from becoming merely advisory for “[i]f parties make themselves the judge of the validity of the court order regularly entered respecting their conduct or course of action, then the courts become impotent and judicial power becomes a mockery.” State v. Koon, 356 Mo. 284, 201 S.W.2d 446, 455 (banc 1947); Bessette v. W. B. Conkey Co., 194 U.S. 324, 327, 24 S.Ct. 665, 666, 48 L.Ed. 997 (1904). A court may order a party to be held in civil or criminal contempt of its orders. Although it is oftentimes difficult to tell which order of contempt is appropriate, the difference is crucial. Additional procedural safeguards are required in criminal contempt proceedings and there are different consequences for the contemnor. The occasions in which a civil contemnor may be imprisoned are far more limited than those in which the criminal contemnor may be imprisoned, and there are restrictions on the fines to the civil contemnor which do not apply to those levied against the criminal contemnor.

Review of contempt theories — Before we can more fully explore the different consequences of the two contempt convictions, it is necessary to discuss the different purposes of these proceedings. The Supreme Court of this state recently did this in Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo.banc 1976).

In this well-considered opinion the court stressed that an order of civil contempt is to protect the party to the litigation in whose behalf the judgment has been rendered. “Its function is to provide a coercive means to compel the other party to the litigation to comply with the relief granted to his adversary.” Id. at 566. Because the purpose of the civil contempt is to force the contemnor to comply with the judgment which has been rendered, the “civil contemnor has at all times the power to terminate his punishment by compliance with the order of the court.” Id. As will become apparent, it is for this reason that the civil contemnor can be imprisoned only for a violation of mandatory, as opposed to a prohibitory, injunction. A mandatory injunction requires a person to affirmatively act, 43 C.J.S. Injunctions § 5 (1972), while a prohibitory injunction restrains the commission or continuance of an act. Id. at § 4. For example, the injunction in this case is a prohibitory injunction since it restrains the defendants from competing with CFC.

If a civil contemnor violates a mandatory injunction which orders him to perform a certain act, and is thereafter imprisoned, he has the power to terminate his punishment by simply performing the act. In this sense he has the keys to the jail in his pocket. If a civil contemnor however, is imprisoned for violating a prohibitory injunction, which ordered him to refrain from the activity he has just performed, the imprisonment is not coercive but punitive since it is chastening him for acts already committed. In this situation the contemnor is not able to voluntarily terminate his imprisonment by performing some act and the other party does not benefit because it is too late for the imprisonment to be coercive. Cf. Gompers v. Buck’s Stove & R. Co., 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1910).

In keeping with the view that the purpose of civil contempt is remedial, any fines charged against a civil contemnor must be related to the actual damages suffered by the injured party and must be payable to this party. Generally, a fine levied pursuant to a conviction of civil contempt is per diem and continues only as long as the contemnor disobeys the court’s order. McNealey v. Rouse, 264 S.W. 383, 386 (Mo.Banc 1924); Odom v. Langston, 358 Mo. 241, 213 S.W.2d 948, 951-52 (Banc 1948).

On the other hand, criminal contempt proceedings are punitive in nature. Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo.Banc 1976). Their purpose is to preserve the power and vindicate the authority and dignity of the court, and to punish for disobedience of its orders. “The power of criminal contempt springs not from the needs to protect a litigant, but from the inherent power of the courts to protect the judicial system established by the people as the method of solving disputes.” Mechanic v. Gruensfelder, 461 S.W .2d 298, 304-5 (Mo.App.1970).

It is consistent with this punitive purpose to imprison a criminal contemnor for defying a court order or injunction regardless of whether the injunction is prohibitory or mandatory, § 476.120, RSMo 1969. The question is not whether imprisonment will force the contemnor to perform some act and thus aid the injured party, but whether it will effectively vindicate the authority of the court and deter future defiance by disobedient parties. Curtis v. Tozer, 374 S.W.2d 557 (Mo.App.1964). While theoretically the difference between civil and criminal contempt may appear cogent, as many courts have acknowledged, it is difficult to actually ascertain which form of contempt was ordered by a lower court or which is more appropriate. Curtis v. Tozer, supra; 17 C.J.S. Contempt § 5(2); 12 Am.Jur., Contempt, § 6.

Because this is a prohibitory injunction, if the defendants are merely in civil contempt, they should not have been fined $1,000 for there is no evidence that this amount is related to CFC’s damages, the fine is payable to the state rather than CFC, and the fine is absolute rather than conditional upon the defendants’ compliance with the injunction. Thus, if the convictions of criminal contempt were improper so were the sentences and we must reverse. However, on the other hand, if the defendants were properly held to be in criminal contempt, we must affirm for the punitive nature of the fines is warranted.

In ascertaining whether the conviction for criminal contempt was proper, we should use the following criteria: (1) was there a private or public plaintiff — Mosko-vitz, “Contempt of Injunctions, Civil and Criminal,” 43 Colum.L.Rev. 780, 786-87 (1943); Gompers v. Buck’s Stove & R. Co., supra; (2) did the contempt proceeding serve a punitive or remedial purpose — 43 Colum.L.Rev. at 785-86; Teefey v. Teefey, supra, at 565-6; (3) were there special elements of contumacy — 43 Colum.L.Rev. at 796-98; (4) was the proceeding conducted as a criminal or civil proceeding — Mechanic v. Gruensfelder, supra; and (5) did the defendants have the requisite intent for criminal contempt — McMullin v. Sulgrove, 459 S.W.2d 383, 388 (Mo.Banc 1970); Teefey v. Teefey, supra, at 566.

These factors are used by appellate courts both in ascertaining which form of contempt was ordered by the trial court and in analyzing the propriety of a civil or criminal contempt order in a given situation. Cf. 43 Colum.L.Rev. at 781. We are applying them in the latter fashion.

Before the trial on the criminal contempt charges began, the court appointed the attorneys for CFC as representatives for the state “to prosecute the criminal contempt aspects of this proceeding.” In this sense the plaintiff was “public,” which is characteristic of criminal contempt proceedings. Gompers v. Buck’s Stove, supra.

The second factor we must consider is whether the facts of this case conform to the purpose of the criminal contempt enforcement device. The conviction of criminal contempt is intended to be punitive and it is inappropriate unless there is sufficient evidence of disrespect and threat to the judicial process to warrant its strict penalties. Cf. State v. Koon, 356 Mo. 284, 201 S.W.2d 446 (Banc 1947); Teefey v. Teefey, supra (see especially the court’s warning that undue use of the criminal contempt device would have the effect of abolishing civil contempt. We find that the facts here necessitated the criminal contempt sanction, for within an eight month period, the defendants were found to have violated the injunction three times. If the court allows this insolence for its judgments, its orders will become ineffective and the court will not be able to provide the assistance citizens have a right to expect from the judicial system. State v. Koon, supra; Bassette v. W. B. Conkey Co., supra.

Even if this were an area where criminal contempt is generally inapplicable, it becomes appropriate after repeated violations of a court’s order because the repetition constitutes a “special element of contumacy.” Nat. Popsicle Corp. v. Kroll, 104 F.2d 259, 260 (2d Cir. 1939) (“It may well be that violations of the injunction by the defendant had become so chronic as to merit imprisonment for criminal contempt.”)

In the criminal contempt proceeding the show cause order stated “. . . show cause . . . why you should not be adjudged in criminal contempt of court, and punished, incarcerated, fined, and penalized for both civil and criminal contempt.” Clearly, the defendants by this language had notice of and understood they were tried for criminal contempt. Mechanic v. Gruensfelder, supra. Because we do not have evidence or argument to the contrary, we assume that the court, also aware of the nature of the proceeding, conducted it with the other necessary procedural safeguards required in criminal proceedings. Therefore, these convictions are not subject to reversal, as were other convictions where the defendants were not accorded the required procedural protection. Mechanic v. Gruensfelder, at 312. In the Mechanic case this court upheld the criminal contempt convictions of four of the habeas corpus petitioners but reversed the convictions of three petitioners because the evidence did not show that they had sufficient notice of the restraining order.

Lastly, we must decide if this defendant had the requisite intent to be convicted of criminal contempt. The distinction drawn between the intent required for the criminal and civil contempt is somewhat nebulous. For civil contempt “the general rule is that the defendant need not have acted wilfully,” but “a contempt is not criminal unless it is willful.” Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum.L.Rev. 780, 795 (1943). In Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. Banc 1976), the Missouri Supreme Court emphasized the importance of intent: “The thrust of criminal contempt is the intentional interference with the judicial process and demonstrated refusal to be bound by judicial determinations.” (Emphasis added.) In McMullin v. Sulgrove, 459 S.W.2d 383, 388 (Mo.Banc 1970), the court held that because he did not have the requisite intent, an attorney who failed to formally notify a court that he could not appear for trial was improperly convicted of criminal contempt. It stated: “We base our ruling on the fact a court should not, and cannot in a jurisdictional sense, punish for contempt when it is manifest no contempt of its authority was intended.” Here the attorney, who was involved with another trial in another county, telephoned the secretary of the prosecuting attorney of his conflict but failed to file a written request for a continuance as required. Clearly the defendants here cannot demonstrate such a lack of intent to abuse the court’s orders as was present in the McMullin case.

It is not clear whether the intent required is the intent to do the specific act which is prohibited by the court or the intent to defy the court. Cf. 43 Colum.L. Rev. at 794. Obviously, it is not merely the former for that would appear to be sufficient for civil contempt and thus the element of intent would become worthless as a distinguishing criteria. Practically speaking, it cannot be the latter for this would be almost impossible to prove. Therefore it seems that the requisite intent for a criminal conviction is somewhere in between — an intent to do the prohibited act not only with the knowledge that it will harm the other party but also with a careless and imprudent disregard for the power and authority of the court which buttresses the prohibition.

Given this understanding of the intent element, it is at least arguable that the defendants did not have the requisite intent to be charged with criminal contempt, despite the repeated convictions. The first conviction of contempt was for civil contempt and therefore is not in question here. The second conviction for contempt, which was both civil and criminal, was based on work the defendants had done for five establishments since the injunction. The services performed, however, for four of these establishments were pursuant to contracts entered into prior to the injunction. As for the fifth establishment, there was evidence that the work the defendants performed had not been done by CFC previously and therefore could be interpreted as not within the injunction. The third conviction, also for civil and criminal contempt, was based upon the services rendered for two establishments, Tennessee Jed’s Restaurants and the Coca Cola plant. Although the judge disregarded it, there was evidence that Tennessee Jed’s had not been a prior customer of CFC and that the services performed at the Coca Cola plant were not janitorial, and thus not prohibited by the injunction. In this manner, it is possible to find that the defendants had the intent to abide by the injunction and only perform services they legitimately believed to be outside of the injunction’s prohibitions.

However, a stronger case can be made that the defendants had the requisite intent. The trial court was faced with a question of credibility — did Bronska, in good faith, believe his actions were not prohibited by the injunction, or was he attempting to circumvent the letter and spirit of the injunction by redefining the restrictive terms as suited his needs. As stated, this court is bound by the standard of review in Murphy v. Carron, supra: “. the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” 536 S.W.2d 30, 32 (Mo. Banc 1976). This deference to the trial court weighs heavily in favor of affirming its finding of intent. In addition, this injunction is almost a direct quote from Bronska’s contract with CFC, which initially set the restrictions which would apply to Bronska’s activities if his employment with CFC terminated. Chemical Fireproofing Corp. v. Bronska, 542 S.W.2d 74, 79 (Mo.App.1976). Moreover, this court has previously determined that this injunction “clearly and specifically” described the acts enjoined.

Because of the trial court’s superior position to judge the credibility of the witnesses and the previous finding by this court that the injunction was specific enough to apprise the defendants of what activities were prohibited, a finding of intentional disregard for the judicial processes is warranted. A review of the above factors indicates that the conviction for criminal contempt was proper in this case.

In addition, there is ample precedent to support this finding. In Mechanic v. Gru-ensfelder, supra, four students were found to be in criminal contempt for violating a temporary restraining order secured by Washington University to prevent rioting. In Curtis v. Tozer, 374 S.W.2d 557 (Mo.App. 1964), demonstrators were held to be in criminal contempt for violating a temporary restraining order prohibiting their demonstration in front of the Jefferson Bank & Trust Company. In Limerick v. Riback, 204 Mo.App. 321, 224 S.W. 45 (Mo.App.1920), the court found the defendants to be in criminal contempt for violating an injunction requiring them to carefully dispose of animal carcasses they used at their packaging plant. In all of the above cases the injunction was sought and the contempt proceedings brought by private parties. In all cases criminal contempt was found to be appropriate after only one violation of the injunction which was secured in a civil suit. Here, there were three violations before the defendants actually received a punishment pursuant to a criminal contempt charge, and the state was represented as a party. Clearly, if the facts in the above cases support a finding that the respective defendants intentionally interfered with the judicial process, the facts in the present case warrant such a conclusion.

The defendants argue that the case of Huegel v. Kimber, 241 Mo.App. 49, 228 S.W.2d 833, (1950), in which the criminal conviction was found to be improper, is controlling. There the defendant was proscribed from engaging in a certain type of business pursuant to a restrictive covenant which had been upheld by the courts. The defendant was found guilty of criminal contempt for violating the covenant. The court of appeals reversed, saying civil contempt, not criminal, was appropriate. That case is distinguishable from the case at hand in two crucial ways — the defendant had not previously been convicted of contempt, and the proceeding was not instituted as criminal contempt. These differences are relevant as to whether the punitive nature of criminal contempt was appropriate, whether there were special elements of contumacy, whether the defendants had notice of the nature of the proceedings and were accorded the necessary safeguards, and whether the defendants had the requisite intent. For these reasons, we do not find the Huegel case controlling.

In our view, the above discourse has laid to rest the appellants’ contention that their convictions for criminal contempt were improper. The appellants next argument, that the $1,000 fine levied against each defendant, is based upon the premise that the criminal contempt conviction was erroneous. Because we have determined that the appellants were rightly convicted of criminal contempt, there is no merit to this assertion.

The defendants also argue that even if criminal contempt is appropriate, the injunction order is too vague to apprise the defendants of their rights and thus to support the conviction. Beyond noting that this claim is frivolous since the language in the injunction is almost identical to Brons-ka’s employment contract with CFC and since this court specifically found the injunction to be clear and specific when this case was before us previously, Chemical Fireproofing Corp. v. Bronska, 542 S.W.2d 74 (Mo.App.1976), we will not review this contention. It is well settled that a conviction for criminal contempt may not be reviewed by appeal. Ex Parte Howell, 273 Mo. 96, 200 S.W. 65 (1918); Holt v. McLaughlin, 357 Mo. 844, 210 S.W.2d 1006 (1948); State v. Norman, 193 S.W.2d 391, 392 (Mo.App.1946) and Teefey v. Teefey, 533 S.W.2d 563 (Mo. Banc 1976).

Contempt proceedings are sui gen-eris and “. . . are triable only by the court against whose authority the con-tempts are charged.” No other court may inquire into the charge. “. . . ‘In order that a court may compel obedience to his orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.’ ” Bes- sette v. Conkey Co., 194 U.S. at 337, 24 S.Ct. at 670.

For this reason, our state statute does not provide a right of appeal for a conviction of criminal contempt and we are unable to review the propriety of the criminal contempt conviction here beyond what has already been necessary in order to decide whether the defendants were properly convicted of criminal as opposed to civil contempt.

Accordingly, judgment is affirmed.

STEWART and REINHARD, JJ., concur.

      . In a criminal contempt proceeding the defendant must be advised of the charges against him, have reasonable opportunity to meet them by way of defense, is entitled to be represented by counsel, Mechanic v. Gruensfelder, 461 S.W.2d 298, 309 (Mo.App.1970), may not be required to testify against himself, Gompers v. Buck’s Stove & R. Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1910), and is presumed to be innocent until proven guilty beyond a reasonable doubt. Id., 221 U.S. at 444, 31 S.Ct. at 499.

      . The first contempt hearing involved violations which occurred from April 18, 1975 to July 3, 1975. The second contempt hearing, on August 25, 1975, concerned violations which occurred from July 3, 1975 up to the hearing date. The third hearing on Nov. 24, 1975, concerned violations occurring from Aug. 25, 1975 up to this hearing date.

      . See Footnote 2.


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. William Marvin WORL, Defendant-Appellant.
    No. 10380.
    Missouri Court of Appeals, Springfield District.
    June 22, 1977.
    Motion for Rehearing and/or Transfer Denied July 11, 1977.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Bruce W. Simon, Simon, Simon & Katz, Kansas City, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant William Marvin Worl was convicted by a Hickory County jury of possession of a firearm while intoxicated [§ 564.-610, RSMo 1969] and sentenced by the court to a three-year prison term.

We have reviewed the transcript and the briefs of the parties. The evidence in support of the jury’s verdict is not insufficient. No error of law appears. An opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b), V.A. M.R.

All concur.

      . Defendant’s first appeal was dismissed for lack of jurisdiction. State v. Worl, 531 S.W.2d 294 (Mo.App.1975). Defendant’s postconviction motion under Rule 27.26 was sustained by the trial court on the ground defendant had timely sought an appeal but that his attorney failed to proceed properly. The sentence and judgment were vacated and defendant re-sentenced. This appeal followed.


text:
    STATE of Missouri, Plaintiff-Respondent, v. James Ray HULSEY, Defendant-Appellant.
    No. 10307.
    Missouri Court of Appeals, Springfield District.
    June 24, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 11, 1977.

      John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Robert G. Duncan, Robert E. Hart, Duncan & Russell, Kansas City, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant James Ray Hulsey was convicted of breaking county jail and escaping [§ 557.380, RSMo 1969]. In this appeal he contends that since he had not formally been sentenced after his jury conviction for armed robbery, he was not confined under “conviction” as set forth in the statute and thus his motion for judgment of acquittal should have been sustained. We affirm.

It was stipulated that defendant was confined in the Jasper County jail as a result of being convicted of a criminal offense at the time the state’s evidence showed defendant and others broke jail and escaped.

From colloquy between court and counsel it appears that following defendant’s conviction by a jury for armed robbery, he was incarcerated in the Jasper County jail, awaiting a ruling on his motion for new trial. By reason of the pending motion, allocution, sentence and judgment had not taken place.

§ 557.380 provides: “If any person confined in any county jail upon conviction for any criminal offense, or held in custody going to such jail, shall break such prison or custody, and escape therefrom, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding three years, or in a county jail not less than six months, to commence at the expiration of the original term of imprisonment.”

In State v. Alderman, 500 S.W.2d 35 (Mo.App.1973), Titus, C. J., had occasion to construe § 557.380 and § 557.390, the latter statute pertaining to breaking and escaping jail before conviction. What was said in Alderman with respect to “conviction” is equally applicable in this case.

“The terms ‘convict’ and ‘conviction’ are not strangers in legal phraseology. As a verb, ‘convict’ is commonly employed to signify a finding by the jury that the accused is guilty. For instance, aping scores of learned authors, this opinion is but a mi-mesis when it recounts that defendant was ‘convicted by a jury.’ State ex rel. Garnholz v. La Driere, 299 S.W.2d 512, 516 (Mo. banc 1957). In its ordinary legal sense, ‘conviction’ denotes that particular stage in a criminal proceeding when a verdict of guilty is returned. 18 C.J.S. Convict-Conviction, at pp. 96-97. In a more restricted legal sense, ‘one who has been found guilty by the jury, but has not yet been sentenced, is not a “convicted” person [for] a conviction without the imposition of a judgment was not a final conviction.’ Levin v. Carpenter, 332 S.W.2d 862, 866 (Mo.1960). Many illustrations of the foregoing repose within the Rules of Criminal Procedure. To cite a few, with our emphasis: Rule 27.01(d) ‘if they [the jury] convict the defendant;’ Rule 27.02 ‘a verdict of conviction;’ Rule 27.04 ‘in all cases of conviction ;’ Rule 27.05 ‘the defendant is convicted;’ Rule 27.06 ‘they [the jury] convict the defendant;’ Rule 27.08 ‘defendant has been convicted;’ Rule 27.12 ‘any person convicted;’ and Rule 28.11 ‘[a] convicted defendant shall be entitled to be admitted to bail, pending an appeal.’ ”

Alderman noted that in State v. Ash, 296 S.W.2d 41 (Mo.1956), cert. denied, 352 U.S. 1012, 77 S.Ct. 584,1 L.Ed.2d 559 (1957), the defendant was charged under § 557.380 with escaping “upon conviction” where the evidence disclosed the escape occurred after the defendant had been jury convicted and was in the county jail awaiting a hearing on his motion for new trial.

Here, the defendant had been tried and convicted of first degree robbery. He was being held in the Jasper County jail under conviction, and like Ash, supra, was awaiting determination of his motion for new trial when he broke jail and escaped. Defendant was properly prosecuted under § 557.380, RSMo 1969.

Judgment affirmed.

All concur.


author: WEIER, Judge.

text:
    STATE of Missouri at the relation of GREEN’S BOTTOM SPORTSMEN, INC., a Missouri Corporation, Plaintiff-Appellant, v. ST. CHARLES COUNTY BOARD OF ADJUSTMENT, etc., Respondents, v. Richard HOLLOWAY et al., Intervenors-Respondents.
    No. 37792.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 5, 1977.

      Melvin D. Benitz, St. Charles, Michael J. Yatkeman, Seiner & Hyatt, Clayton, for plaintiff-appellant.
    Ronald L. Boggs, Pros. Atty., Bruere & Rollings, Dale L. Rollings, Thomas J. Bark-lage, St. Charles, for respondents.
   WEIER, Judge.

Green’s Bottom Sportsmen, Inc., built a gun club facility in an area zoned F-P (Flood Plain District) in St. Charles County after obtaining land use and building permits from the St. Charles Zoning Commissioner. After shooting began in October 1974, nearby homeowners brought an appeal to the St. Charles County Board of Zoning Adjustment requesting revocation of the permits on the basis that a gun club is not a permissible use in the Flood Plain District. The board held a public hearing and revoked the permits. Green’s Bottom Sportsmen, Inc., filed a “Petition for Review and Writ of Certiorari” in the St. Charles Circuit Court claiming the board’s action was erroneous and illegal. Seventy-three persons owning a total of forty-five separate pieces of property intervened. Their answer asserted the board’s decision was proper. They also requested an injunction against the gun club as a nuisance. After trial the court found: (1) that a gun club is not a permissible use in an F-P District, the permits issued to the club were invalid and the board had jurisdiction to deny such use; and (2) that regardless of whether the use was permissible or not in the F-P District, the noise from the shooting constituted an actionable nuisance. The court upheld the actions of the board and enjoined the operation of the gun club. Petitioner Green’s Bottom Sportsmen, Inc., appeals. We affirm on the zoning issue and therefore do not discuss the issue of nuisance.

Petitioner contends the board of adjustment lacked jurisdiction to hear the property owners (intervenors) appeal to it because the appeal was filed more than three months after the permits were issued. Section 10 (p. 93) of the St. Charles County Revised Zoning Order, adopted January 4, 1973, provides in part:

Appeals to the Board may be taken by any owner, lessee or tenant of land, or by a public officer, department, board or bureau affected by any decision of the Zoning Commissioner. Such appeals shall be made within a period of not more than three months, and in the manner provided by the rules of the Board.

Facts pertaining to this issue follow.

Petitioner was chartered as a corporation January 15, 1973. In March 1973 an attorney for the club approached the county planning office to determine under what zoning classification a gun club would be permitted. About the same time residents near the area where the club eventually located heard rumors that a gun club might come into their area. Barbara Jean Thomas, one of the residents, called Leo Ochs, then County Zoning Commissioner, to ask about such a possibility. Mr. Ochs said there couldn’t be a gun club in the area unless the land were rezoned. He explained that before any rezoning decision could be made all property owners in the area would be notified by certified mail and be given a chance to appear at a public meeting. Mr. Ochs did not think the gun club would be much of a problem but he said if the homeowners were really concerned they should circulate a petition and present it to the zoning office. In March or April of 1973 a petition was presented to the St. Charles County Planning and Zoning Office stating the signers’ objection to the location of a gun club in their area. The planning and zoning staff determined that the petition was not valid as it had not been notarized.

In the Spring of 1974 petitioner purchased a 49.3 acre tract of land on Amrein Road between Green’s Bottom Road and the Missouri River near Harvester, Missouri. The land is located in an F — P Flood Plain District. At some point an attorney for petitioner made an application for rezoning but after talking with Mr. Bratz, then Director or Assistant Director of Planning, and others it was determined that the application for rezoning was not necessary. Petitioner applied for land-use and building permits in April 1974. The application for land use permit indicated the proposed use was a “sportsman club.” The application for building permit indicated the building use was to be “club and recreation.” The Zoning Commissioner issued permits on April 8, 1974. He determined that the gun club was a permissible use in the F-P District under the Revised Zoning Order, section (e) (p. 19), “Privately operated recreational facility including a lake, swimming pool, tennis court, riding stable or golf course,” and subsection (m), “Private clubs” even though gun and skeet clubs and commercial skeet and shooting galleries were not listed under F-P but rather were specifically listed under R-R Recreational Residential District, sections (b) and (c).

Construction of the gun club began in May 1974. Shortly thereafter petitioner put up a “four by four” sign on its property which read “New Home of Greens Bottom Sportsmen, Est. 1973, St. Charles, Mo.” By October 1974 construction was nearly complete. Shooting began in the first weeks of that month. The layout of the facility is such that the shot guns shoot in a northeasterly direction, which is somewhat in line with the Oak Forest residential area located on some bluffs approximately eight-tenths of a mile away. The northeasterly direction was chosen because the Winchester Corporation recommended such a layout and because the club members did not want to face into the sun. The club invited the public to shoot at the facility and persons who were not shareholders or members of petitioner were permitted to purchase ammunition and shoot there.

After shooting began the planning office received many complaints from surrounding property owners. On November 26, 1974, nearby residents filed an appeal with the board of adjustment requesting the revocation of the land use and building permits which had been issued by the Zoning Commissioner on April 8, 1974. A public hearing was held on December 5, 1974, and the board revoked the permits. In upholding the board’s decision the trial court found petitioner operates “both as a private club and as a commercial operation” and that such an operation, whether private or commercial, is not a permitted use within the F-P Flood Plain District. The court concluded that the land use permits issued to appellant were invalid and the St. Charles County Board of Adjustment was within its jurisdiction to revoke the permits and deny such use.

Usually an appeal to the board of adjustment must be filed within three months from the date the Zoning Commissioner grants or denies a permit. Thus in Association for Educational Development v. Hayward, 533 S.W.2d 579, 582-83[l] (Mo.banc 1976), the court held that the issuance of an occupancy permit by the building commissioner was an appealable “decision or determination” within the meaning of § 89.090 RSMo 1969, and that an appeal to the board of adjustment after the issuance of the permit was not premature. American Hog Company v. County of Clinton, 495 S.W.2d 123, 127[8] (Mo.App.1973) determined that the three-month period under § 64.660 RSMo 1969, (in pertinent part identical to § 10 of the St. Charles County Zoning Order, p. 93) began when the county planning commission ruled and advised plaintiff that its hog feeding operation violated the Zoning Order.

But here, even though more than three months had elapsed after the Zoning Commissioner had issued a permit for the operation of a “sportsman club,” interve-nors contend that the permit gave no information to them to cause them to believe shooting was to be conducted on the premises in violation of the regulations concerning the uses of land in an F-P District. They point out that a privately operated recreational facility was a proper purpose but that skeet shooting and shooting galleries could only be operated in an R-R District, and that no notice had been given to them that the latter use was intended. It therefore followed, so they maintain, that the time within which an appeal could be filed did not commence until the actual use became apparent.

The evidence discloses that the property owners had no knowledge that permits authorizing appellant to build and operate a gun club on the property in question had been issued until shooting began in October 1974. First, the petition filed by area residents with the planning and zoning office in March or April of 1973 does not show knowledge of any permits because the permits were not issued until a year later. Second, although under § 11(D)(1)(b) and § 11(D)(2)(1) of the St. Charles County Zoning Order the Zoning Commissioner is required to keep his records open to the public, the permit applications filled out by petitioner which merely stated “sportsman club” and “club and recreation,” do not contain information that would lead a reasonably intelligent person to believe that shooting would occur on the premises. The records could not be considered constructive notice to the property owners that appellant had been granted permission to build a gun club facility. Third, although construction work on the facility from May 1974 until October 1974 might notify the property owners that some kind of permit had been issued, the property owners would not reasonably believe that a gun club was being built on the premises, particularly in view of the prior assurance from the then County Zoning Commissioner that a gun club could not be built in the area without first rezoning the land which would involve notice to nearby property owners and a public hearing. Further, the sign stating “New Home of Greens Bottom Sportsmen” did not disclose that a gun club facility was being built. Once the shooting began the appeal was filed within two months. Under these circumstances the appeal was timely filed for it is basic to our system of law that due process contemplates notice and an opportunity, to be heard by an appropriate tribunal. Article I, Section 10, Missouri Constitution; Blydenburg v. David, 413 S.W.2d 284, 289[5] (Mo. banc 1967). The board of adjustment, therefore, had jurisdiction to revoke the permits and deny appellant use of its property as a gun club.

Although not previously ruled on by Missouri decisions, our determination in this matter follows the principle that time to file an appeal commences to run when notice, actual or constructive, is given the party affected by the order to be appealed. In zoning cases other states have determined that in certain situations appeals to the board of adjustment are timely even though filed after the allotted number of days following the Zoning Commissioner’s decision. In Pansa v. Damiano, 14 N.Y.2d 356, 251 N.Y.S.2d 665, 200 N.E.2d 563 (1964), the Court of Appeals of New York construed an ordinance requiring appeals to the Zoning Board of Appeals “be taken within thirty (30) days of the date of the decision” to mean thirty days from when a person who seeks revocation of a permit has his objections overruled in a decision of which he has notice, rather than thirty days from the date the permit was issued. The court noted that construing the thirty-day period to begin when the building commissioner acts on the permit might be fair and sensible when applied to an applicant denied a permit but such a construction might prevent any appeal at all if it were strictly applied to neighbors objecting to the granting of a permit since the neighbors may not learn of the issuance of the permit for some time. This rule has been followed in more recent New York cases. As stated in Cave v. Zoning Board of Appeals of Village of Fredonia, 49 A.D.2d 228, 373 N.Y.S.2d 932, 935[3] (1975), “the commencement of the period runs from the date that grievant becomes chargeable with notice of issuance of the permit complained of, provided there has been no element of undue delay or laches.” See also, Highway Displays, Inc. v. Zoning Board of Appeals of Town of Wappinger, 32 A.D.2d 668, 300 N.Y.S.2d 605 (1969). Other states have approved a similar rule. Ostrowsky v. City of Newark, 102 N.J.Eq. 169, 139 A. 911, 913[7] (1928) (time starts on the date the appealing citizen had notice of the act appealed from); Hartunian v. Matteson, 109 R.I. 509, 288 A.2d 485, 490-93 (1972) (preferable to begin time when appellant was chargeable with knowledge of the complained of decision). See generally, Anderson, American Law of Zoning, § 16.15, pp. 194-97.

In a slightly different vein Schneider v. Calabrese, 5 Pa.Cmwlth. 444, 291 A.2d 326, 331 — 32[4] (1972) held that even though a homeowner’s association did not file an appeal within thirty days of the issuance of a permit or promptly after actually learning of its issuance, their appeal was timely filed “especially because construction had not yet progressed on the appeal date, and because counsel for the Association reasonably relied on the repeated assertions of the Building Inspector” that no valid permit had been issued.

Petitioner next contends respondents were barred from appealing to the board by laches. State ex rel. Burns v. Stanton, 311 S.W.2d 137 (Mo.App.1958), relied on by petitioner, is distinguishable. In that case adjoining property owners were guilty of laches because some of them had actual knowledge of the decision of the Board of Zoning Adjustment (which body had held a public hearing on the proposed project) long before construction began and others had constructive knowledge of the project more than sixty days before the petition for certiorari was filed. In the case at bar no hearing was held and the property owners had no knowledge that a gun club was coming into their area until after the facility was built and shooting began in October 1974. The facts of this case do not fit into the definition of laches as “neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done” (emphasis added). Metropolitan St. Louis Sewer District v. Zykan, 495 S.W.2d 643, 656[18] (Mo.1973), quoting Lake Development Enterprises, Inc. v. Kojetinsky, 410 S.W.2d 361, 367-68 (Mo.App.1966).

Petitioner’s final contention is that the board of adjustment was estopped from revoking the permits because the revocation constituted an undue hardship on petitioner, because it had the right to rely on the Zoning Commission’s interpretation of the Zoning Order and the validity of the permits and because petitioner was lured by the conduct of the Zoning Commission into the investment of time, money and labor in constructing the facility. Petitioner has about $51,000 invested in the property and improvements. Approximately $27,000 of this total represents outstanding obligations on notes issued when the property was purchased. At the board of adjustment hearing Eugene Horstmeier, a shareholder of petitioner, estimated the value of improvements at the facility (which include trap houses, shooting pads, lights and a building) at $15,000. Much of the construction work was done by club members. It is not clear how much money could not be retrieved if the property could not be used as a gun club.

The doctrine of estoppel is not generally applicable against a governmental body and if applied, it is done so only in exceptional circumstances and with great caution. State ex rel. Walmar Investment Co. v. Mueller, 512 S.W.2d 180, 184[4] (Mo.App.1974). “Further, it is a well estab lished principle in Missouri that a governmental unit is not estopped by illegal or unauthorized acts of its officers . it is recognized that a building permit for construction issued but unauthorized under the ordinance is void and a city is not estopped because its employee issued the license or permit.” State ex rel. Walmar Investment Co. v. Mueller, supra at 184[5],

The permits issued to petitioner were unauthorized and void because a gun club is not a permissible use in an F-P District. Section 5 of the Revised Zoning Order (p. 19) provides: “a building or premises shall be used only for the following purposes .” Neither gun clubs or shooting facilities are listed under the F-P District. They are listed under the R-R District (Revised Zoning Order, p. 47). The trial court found that petitioner’s facility is public rather than private and therefore could not come under Revised Zoning Order, Section 5, F-P District, section (e), “Privately operated recreational facility including a lake, swimming pool, tennis court, riding stable or golf course,” or section (m), “Private clubs.” The trial court also correctly determined that even if petitioner’s facility was private it would not be a permitted use under the F-P District. Petitioner does not contest these findings and conclusions.

For its claim of estoppel petitioner relies on Murrell v. Wolff, 408 S.W.2d 842 (Mo.1966). In that case a valid permit was issued authorizing the construction of apartment buildings on land zoned commercial and purchased by the developer for $1,500,000. The apartments were part of a large integrated project and the developer had paid a substantial sum to the city to be used for public park purposes when the plats were offered for record. The land was unsuitable for any use other than apartments. The city then passed an ordinance prohibiting apartment buildings in commercial districts. The court denied the city the right to enforce the new ordinance against the developer. It stated at 851[10]: “This is an exceptional case in which honesty and fair dealing require that the doctrine of equitable estoppel be applied, in order to prevent manifest injustice.” But the case at bar is not such an exceptional case. The permits issued to petitioner were unauthorized and void. The county did not accept any benefits from petitioner and there is no showing that the land is not suitable for other purposes. The board of adjustment is not estopped from revoking the permits issued by the Zoning Commissioner. Although no dishonesty is involved here, to hold otherwise in a case such as this “would be to put a premium on dishonesty of city officials charged with the duty of issuing such permits and would open the way for connivance and fraud. The will of the official would then be substituted for the mandate or restriction of legislative enactment, and thus the limitations of zoning acts and ordinances held for naught.” Ostrowsky v. City of Newark, 102 N.J.Eq. 169, 139 A. 911, 912 (1928).

The judgment of the trial court is affirmed.

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

      . Virtually the same language appears in § 64.-660 RSMo 1969, dealing with county zoning regulations. Section 89.100 RSMo 1969, concerned with zoning regulations for cities, towns and villages, states that appeals to the board of adjustment “shall be taken within a reasonable time, as provided by the rules of the board.”


text:
    Wilbert SCHNEIDER and Virginia Schneider, his wife, Plaintiffs-Respondents, v. Ronald James FINLEY, Defendant-Appellant.
    No. 37779.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 5, 1977.

      Buerkle, Buerkle & Lowes, Albert C. Lowes, David G. Beeson, Jackson, for defendant-appellant.
    Roberts & Roberts, V. Kenneth Rohrer, Farmington, for plaintiffs-respondents.
   McMILLIAN, Presiding Judge.

Defendant appeals from a judgment entered on a jury’s verdict in the sum of $8,002 in favor of plaintiffs Wilbert and Virginia Schneider, husband and wife. The jury awarded both plaintiffs the sum of $4,000 each for their personal injuries and $1.00 each for their loss of consortium.

For reversal defendant urges that the trial court erred: (1) in failing to sustain his motion for a directed verdict because there was no evidence to support a disjunctive submission of failure to keep a careful lookout or of driving his automobile at an excessive rate of speed; (2) in failing to set aside verdicts; (3) in permitting hearsay testimony pertaining to reaction time and stopping distance which an automobile would travel at varying rates of speed; (4) in failing to exclude from evidence certain medical bills because of a failure to disclose; (5) in permitting plaintiffs’ counsel to conduct an improper voir dire examination; (6) in failing to grant a mistrial because of a volunteered statement about insurance; (7) by improperly circumventing defendants cross-examination of plaintiff — (a) concerning certain medical bills; and (b) concerning her claim for loss of consortium; (8) by allowing into evidence irrelevant testimony relative to defendant’s sale of a racing car; (9) by allowing plaintiffs’ counsel to make three improper jury arguments. For reasons hereinafter noted, we reject each contention urged by appellant, and, accordingly, we affirm the judgment.

At the outset, we note that in determining whether plaintiffs made a submissi-ble case defendant’s failing to keep a careful lookout or operating his vehicle at an excessive rate of speed we are commanded to review the evidence from a favorable standpoint to the plaintiffs, giving the plaintiffs the benefit of any of defendant’s evidence favorable to plaintiffs, giving plaintiffs the benefit of all reasonable inferences from all the evidence, and to disregard defendant’s unfavorable evidence. Stradford v. Bluefeather, 384 S.W.2d 541, 542 (Mo.1964).

On September 5, 1973, plaintiff Virginia Schneider, accompanied by her husband, plaintiff Wilbert Schneider, as a front seat passenger, drove and operated their green 1968 Buick northwardly on Highway 67. Highway 67 at this juncture is a four lane north and southbound highway divided by a forty foot grassy, median strip with two lanes in each direction. Each lane is approximately 12 feet wide and on the east and west side of the highway is a 10 foot shoulder. At the point of the accident there is a forty foot long east-west crossover located between the north and southbound lanes that exits into a Standard service station located on the west or left side of the highway. When Virginia was about 1000 to 1500 feet south of the crossover, Wilbert suggested that they stop at the Standard service station to check the tires. In compliance with her husband’s request, Virginia checked her side and top rear view mirror, put on her left turn blinker signal and moved from the right (outside) lane into the inside (left) lane. During this maneuver, the evidence showed that Virginia was traveling 50 to 60 miles per hour. At all times up to and after impact, Virginia kept her left turn signal on. She testified that she saw both defendant’s and witness Flotow’s pickup truck in her rear view and side mirrors; and that when she was about 300 feet south of the crossover, she had reduced her speed to about 15 to 20 miles per hour.

Danny Flotow, whose pickup truck was immediately to the rear (south) of the plaintiffs’ vehicle and traveling in the inside northbound lane, testified that when plaintiffs’ vehicle was about 300 feet south of the crossover, his vehicle was separated from plaintiffs’ vehicle by two city blocks which he estimated to be about 600 feet. While his vehicle and plaintiffs’ vehicle were in this posture, he fixed the position of defendant’s pickup truck to be 1000 to 1500 feet south of the crossover. Thus approximately between 700 to 1200 feet from plaintiffs’ automobile which was 300 feet south of the crossover and 400 to 900 feet behind the Flotow pickup truck. Flotow’s speed was 60-65 miles per hour. When Flotow noticed the continuous slowing of plaintiffs’ automobile and plaintiffs’ intention to cross over to the left at the service station exit, he began to apply his brakes and to move to the outside lane passing the plaintiffs’ vehicle. Flotow testified that defendant had somewhat closed the distance behind him and estimated the distance between the rear of his automobile and defendant’s to be two to three car lengths and that defendant was traveling at 65 to 70 miles per hour. Flotow continued on through the intersection and saw the collision in his left rear view mirror. The left front of defendant’s truck collided with the right rear part of plaintiffs’ automobile.

Plaintiffs’ vehicle was knocked through the crossover and stopped in the median to the north. It left 76 feet of skidmarks starting at the south edge of the crossover and moved through the crossover off the north edge of the crossover and into the median. Defendant’s truck stopped partially straddling the center line of the northbound lanes, north of the crossover, parallel to plaintiffs’ automobile and headed somewhat in a northeasterly direction.

Defendant testified that plaintiffs’ automobile was in its turn and was partially in the crossover and the inside northbound lane of Highway 67 at the moment of impact; that he first saw plaintiffs’ automobile when the Flotow pickup truck moved to the outside (east) lane and that he was approximately 45 to 60 feet away; that he was traveling 50 to 60 miles per hour; that he had driven over the road before and was aware of the presence of the crossover. On the day of the accident, the road was wet, and it was daylight and somewhat misting.

Defendant is quite correct when he says that each element of a disjunctive verdict directing instruction must be supported by substantial evidence and that the lack of such support on any one element renders the submission erroneous. Saupe v. Kertz, 523 S.W.2d 826, 830 (Mo.banc 1975); Wolfe v. Harms, 413 S.W.2d 204, 210 (Mo.1967). Additionally, defendant is correct when he states that in order to submit an instruction based on either failure to keep a careful lookout or driving at an excessive speed not only must the alleged negligent acts have been committed by the defendant, but also the alleged acts must have been the proximate cause of the collision. Marshall v. Bobbitt, 482 S.W.2d 439, 442 (Mo.1972). Stated another way, in an excessive speed case the test is whether the speed prevented the driver from avoiding the accident. Or in a case involving failure to keep a careful lookout, the inquiry is whether in the exercise of the highest degree of care the driver of the defendant’s vehicle could have seen the other vehicle in time to have taken effective precautionary action so as to avoid the accident.

Using the above two tests, we examine first the allegation pertaining to failure to keep a careful lookout. In our view, we find that a jury could have reasonably found that when the plaintiffs’ automobile was 300 feet to the south of the crossover with her left turn signal blinking, she saw to the rear of her automobile both the Flo-tow pickup camper and the defendant’s pickup truck. Consequently, it is reasonable to conclude that defendant in the exercise of the highest degree of care could have seen plaintiffs’ automobile. At this juncture based upon Mr. Flotow’s testimony defendant was 1000 to 1500 feet south of the crossover, and at least 700 to 1200 feet from the rear of plaintiffs’ automobile and was traveling at the rate of 50 to 60 miles per hour. Plaintiff Mrs. Schneider, who was operating their vehicle at 40 to 50 miles an hour, reduced her speed within the 300 feet distance to the south edge of the crossover to 15 to 20 miles per hour. The evidence shows that impact was a near miss, i. e., the left front of defendant’s vehicle came into contact with the right rear of plaintiffs’ automobile. So, if defendant had kept a careful lookout, he would have observed: (1) the Flotow pickup truck and plaintiffs’ automobile; and (2) that both were slowing down and that plaintiffs’ automobile had on its left hand turn signal. Consequently, defendant by slightly reducing his speed when he was 700-1200 feet away from the crossover would have permitted plaintiff in a small fraction of a second to move to a position of safety inasmuch as plaintiffs’ vehicle (18 feet long) at the time of impact was moving from 22.5 to 30 feet per second. Especially since defendant himself testified that at the time of impact plaintiffs’ automobile was in its turn and partially in the crossover and the inside (left) lane of Highway 67.

We are aware that there are cases as cited by defendant that hold for a party to make out a failure to keep a careful lookout he must have evidence in time or distance when the defendant could have seen the other party or what defendant’s braking distance was at a given speed. Heberer v. Duncan, 449 S.W.2d 561 (Mo.banc 1970). On the other hand, there are some cases because of the factual situation where evidence of time and distance are not required. Williams v. Christian, 520 S.W.2d 139, 144 (Mo.App.1974) citing McWilliams v. Wright, 460 S.W.2d 699, 702 (Mo.1970).

In Highfill v. Brown, 340 S.W.2d 656, 664 (Mo. banc 1960), the court affirmed a contributory negligence instruction where the defendant in preparation to make a left turn in front of plaintiff, who was proceeding in the same direction, slowed his vehicle from 50 miles per hour to 20 miles per hour, 200 to 300 feet from the turn, moved to the center line, signaled a left turn 100 feet away from the drive, at the time defendant began to signal his intention to make a left turn, plaintiff’s automobile was traveling 50 miles per hour and was 250 to 300 feet to the rear of defendant’s automobile. In affirming the decision, the court observed that it would take judicial notice that an automobile may be sufficiently slowed or stopped within certain limits as set forth in the above factual situation. See also Nelms v. Bright, 299 S.W.2d 483, 490 (Mo. banc 1957) (Submission for failure to stop or slacken speed, affirmed where defendant traveling 40 to 50 miles per hour was more than 550 feet from plaintiff.) McCarthy v. Wulff, 452 S.W.2d 164, 168, 169 (Mo.1970) (Vehicle traveling 45 to 50 miles an hour could be stopped within 350 to 400 feet.) Accordingly, we hold that plaintiffs made a submissible case on the issue of failure to keep a careful lookout, and its resolution was a jury question.

Next, we consider the disjunction submission on excessive speed. Defendant points out to us that at all times before and at the moment of impact he was observing the posted speed limit. Granted, but operating a motor vehicle at a speed which endangers persons or properties may be negligent even though such speed is within the posted speed limit, Rakestraw v. Norris, 478 S.W.2d 409, 415 (Mo.App.1972). Moreover, whether a particular speed is high, dangerous, or excessive depends on the conditions of the highway and surrounding circumstances. Dorrell v. Moore, 504 S.W.2d 174, 178 (Mo.App.1973). To make a case on excessive speed evidence may be direct or circumstantial. Russell v. Kotsch, 336 S.W.2d 405, 409 (Mo.1960). Without unduly lengthening this opinion, we will not repeat the physical evidentiary facts that we set out at length on the issue of failure to keep a lookout. Failure to keep a careful lookout and excessive speed is somewhat interrelated. In our opinion, there was evidence in the record that indicated that defendant had traveled this road before and was aware of the crossover and had he kept a careful lookout he could have reduced his speed after sensing the danger from the fact that the two vehicles ahead were slowing down and that plaintiffs’ left hand turn signal was blinking; and if he had done so and had been traveling at a reasonable rate of speed defendant could have applied his brakes sooner than he did so as to reduce his speed, thereby giving plaintiffs’ vehicle within a fraction of a second to escape the path of defendant’s pickup truck. Thus, we find this contention against the defendant.

Defendant’s second contention questions the amount of the verdicts, urging that neither bears any reasonable relationship to the actual damages. In support of defendant’s argument, he refers us to numerous cases that merely recite general rules. Here each plaintiff incurred medical bills of almost $2000 each as a result of hers and his injuries. Both were hospitalized for 13 days and Dr. Hawk testified that their injuries were a result of the accident and that the accident worsened their pre-exist-ing arthritic conditions. We find this contention against defendant.

In his next point defendant argues that the court erred by permitting Trooper Vilt to testify concerning reaction time and the distance traveled during such reaction time. Assuming, without deciding, that the court was in error in permitting this testimony because Trooper Vilt’s testimony was based upon what he had read in a driver’s guide and what had been told to him by others during a training course, we reject defendant’s contention because the court even without the trooper’s testimony, takes judicial notice that three-fourths of a second is the normal reaction time, unless a longer time affirmatively appears in the proof. Koogler v. Mound City Cab Co., 349 S.W.2d 233, 237 (Mo.1961); Joggerst v. O’Toole, 513 S.W.2d 722, 725 (Mo.App.1974). Therefore, once defendant’s speed is established, as in the instant case, it is purely a mechanical process to determine how far in feet defendant’s pickup truck traveled during the three-fourths of a second reaction time. We find no prejudice in this regard and find this point against defendant.

For his fourth point, defendant argues prejudicial error in the admission of plaintiffs’ medical bills and other related bills because of plaintiffs’ failure to keep their promise to furnish him copies of the sought after bills. While we feel that plaintiffs should have honored their promise, there was evidence that plaintiffs did not obtain the sought after bills until just before trial. Moreover, defendant concedes that the major bills, i. e., the hospital bills and Dr. Hawk’s bills, were not a part of his request. Thus, it boils down to Dr. Miller’s bills, Bonne Terre Hospital and ambulance bills which totaled $324.26 for Mr. Schneider and $201.88 for Mrs. Schneider. If the test is that it is within the trial court’s discretion to admit or refuse testimony or evidence not previously revealed by formal discovery, see Fitzpatrick v. St. Louis-San Francisco Ry. Co., 300 S.W.2d 490, 500 (Mo.1957) and Aulgur v. Zylich, 390 S.W.2d 553, 556 (Mo.App.1965), then we find no abuse of discretion that would warrant us to condemn the trial court of error.

Defendant claims that the court improperly permitted counsel for the plaintiff to inquire of jurors their views on loss of consortium. While we condemn any question that seeks to commit the jury in advance about their views to either party’s theory of recovery or defense, no purpose will be served in this case by a long discussion because on the issue of loss of consortium, each plaintiff recovered only the sum of $1.00. Therefore, the error, if any, was harmless.

During the cross-examination of witness Flotow, defendant’s counsel asked the witness whether he remembered giving a statement to a Mr. Ray Thompson. Mr. Flotow, before answering, sought to identify Mr. Thompson by asking, “Was that an insurance agent?” No objection was made. After several unrelated questions and a side bar discussion pertaining to other matters, defendant’s attorney asked for a mistrial because of Mr. Flotow’s earlier reference to insurance. The court denied the request for a mistrial, stating that the reference to insurance was invited. On redirect examination, plaintiffs’ attorney inquired of Mr. Flotow whether Mr. Thompson was present in the courtroom. Mr. Flotow asked, “The insurance agent?” Plaintiffs’ attorney replied, “The fellow that took the statement.” Once again defendant’s request for a mistrial was denied. After a lengthy side bar discussion, once again Mr. Flotow was asked if he saw Mr. Thompson in the courtroom. Mr. Flotow again inquired, “Was he the insurance agent?” The court denied defendant’s request for a mistrial, and instructed the witness not to use the word “insurance agent” any more.

In defendant’s motion for a new trial he deals only with the first occurrence and makes no reference whatsoever to the second incident that occurred on redirect examination. Now on appeal, defendant seeks to have us review the second incident. We refuse to review the second incident now complained of because it would be unfair to the trial court because the defendant, in his motion for a new trial, never gave the trial court an opportunity to consider the allegation of error now asserted. See Rotert v. Peabody Coal Co., 513 S.W.2d 667, 676 (Mo.App.1974); also Rule 84.13, V.A.M.R. Consequently, because this point was not properly preserved for review, it will not be considered.

We have examined the transcript, the briefs, and carefully considered the other allegations of error alleged by defendant and find them too devoid of merit. Moreover, none of the other allegations of error, even if found material, affected the merit of the action, Rule 84.13(b). Accordingly, the judgment is affirmed.

STEWART and REINHARD, JJ., concur.


author: TITUS, Judge.

text:
    P & S LEASING COMPANY, Plaintiff-Appellant, v. RAY SMITH FORD, INC., Defendant-Respondent, and Ford Motor Company, Defendant.
    No. 10162.
    Missouri Court of Appeals, Springfield District.
    July 7, 1977.
    B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff-appellant.
    David W. Bernhardt, Bussell, Hough, Bernhardt, Leighton & O’Neal, Springfield, for defendant-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Plaintiff P & S Leasing Company (in the business of leasing trucks to the Pepsi-Cola & 7-Up Bottling Company of Springfield) purchased five Ford trucks from defendant Ray Smith Ford, Inc., under a contract which specified, inter alia, that the trucks would be equipped with 15 X 6 inch rear brakes. As delivered, the trucks were equipped with I6V2 X 4½ inch rear brakes. Contending that the smaller brakes diminished the value of the trucks and additionally had been installed wrong necessitating-repairs, plaintiff sued defendant Smith to recover total damages of $11,094.71 (loss of rental — $2,269.70; cost of repairs— $1,325.01; difference in value — $7,500). The jury returned a $11,000 verdict for plaintiff against defendant Smith. Defendant Smith’s motion for a new trial was sustained because the trial court found the verdict was excessive and against the weight of the evidence. Nevertheless, the court ruled that if plaintiff would file a remittitur of all the verdict in excess of $3,594.71 (i.e., remit $7,405.29 or the amount awarded for difference in the value of the trucks), the order granting the new trial would be set aside. Plaintiff refused to enter the remittitur and appealed from the order granting a new trial. § 512.020, V.A. M.S.

When a trial court orders a new trial on the ground of excessiveness of damages, i. e., on the ground that the verdict was against the weight of the evidence [Underwood v. Brockmeyer, 318 S.W.2d 192, 195[7] (Mo.1958)], such ruling is peculiarly within the sound discretion of the trial court [Union Electric Company of Missouri v. McNulty, 344 S.W.2d 37, 39[1] (Mo.1961)] and is presumptively correct. State ex rel. State Highway Commission v. Vaught, 400 S.W.2d 153, 155[2] (Mo.1966). ‘“In considering excessiveness of the verdict, the trial court had the right to weigh the conflicting evidence and evaluate all of the evidence in the light of its opportunity to see, hear and observe . . . all . . . witnesses. In reviewing the action of the trial court, we do not weigh the evidence, but we do examine the record to determine whether there is substantial evidence to support the ruling. If the evidence, viewed in the light most favorable to the ruling, affords reasonable and substantial support for it, then it must be sustained.’ . ‘It is only where the trial court has abused its discretion in ordering a remittitur, . or in the amount of the remittitur ordered, that a judgment is re viewable by this court.’ . . . ‘[W]hen the trial court * * * actually considers the matter of the excessiveness of the verdict and, by ordering a remittitur, gives an affirmative expression of its own considered view as to what the size of the verdict should be, the appellate court, while concededly not bound by the trial court’s action, nevertheless accords it very great weight, and indeed regards it as so strongly persuasive that except in a case which calls unmistakably for a greater reduction, the judgment left to stand by the trial court will not be disturbed on appeal.’ The same deference to the action of the trial court is to be accorded in a case such as this, where the plaintiff appeals, urging restoration of a cut in the verdict.” Morris v. Israel Brothers, Inc., 510 S.W.2d 437, 447-448 (Mo.1974).

As seen, part of the damages claimed by plaintiff related to the difference in the fair market value of the five trucks as ordered with the 15 X 6 inch rear brakes and the fair market value of the five trucks as received with the I6V2 X 4½ inch brakes. The allowance of damages for the alleged difference by the jury is what the trial court considered to be excessive and against the weight of the evidence. The only testimony on the subject adduced by plaintiff came from its general manager. Direct Examination: “Q. Are you . . .acquainted with the market for this type of vehicle? A. I wouldn’t qualify myself as an expert, but I would say a fair knowledge of it, yes. Q. . Based on your experience with selling in excess of a hundred trucks of this type, do you have a judgment as to the effect on their market value that having these smaller brakes would have? A. Well, any trucks, if they’re undersized in any way, certainly would devaluate them. Q. ... Do you have a judgment as to the difference in market value these trucks would have had . as you received them with the [16½ X 4½] brakes and what it would have been if they had had the [15 X 6] brakes that were specified? A. Well, with the inadequate brakes like that, you could probably say that this particular city — but these trucks would do heavy duty out in the country, you could certainly say they would be less valuable to us. Q. Do you have a judgment as to the amount of that devaluation? A. Of course, that would be pretty hard to say just exactly. I would say probably fifteen hundred dollars, something like that, per vehicle. Q. . You base this judgment on your experience in buying and selling this type of vehicle? A. Right. Not exact figures, of course. Q. I understand. But this is your best judgment? A. Right.” Cross-Examination: “Q. . Now with respect to your judgment of the value of the trucks, ... do you have any particular knowledge of the market value of the Ford trucks as they were, in fact, equipped as opposed to Ford trucks as they were, in fact, ordered? A. I wouldn’t know that, no. Q. And your estimate a minute ago that, to use it, might be as much as fifteen hundred dollars is based on your feeling about this use in your business? Is that right? A. It has to be a feeling because there’s no way to put the exact test on it. . . . Q. . Do you have knowledge of any difference in the market value? Do you have actual knowledge or experience in the market value of any LN 700 Ford trucks with a [15 X 6] as opposed to a [16½ X 4½] rear brake system? A. Not ever having seen these trucks these five with the small brakes on that size trucks, no. Q. ... So your estimate of fifteen hundred dollars is a guess. Isn’t that true? A. Well, certainly.” Redirect Examination : “Q. . [Defendant’s lawyer] termed [your testimony as] being a guess — about the depreciation value of those trucks. Any judgment, of course, not precise in dollars or cents, I suppose, is a guess. Is this a guess based on your experience or is this — A. I’d say it’s an educated guess based on experience, yes. Q. . And it’s a judgment in terms of in excess of a hundred trucks you have dealt with — soda trucks? A. That’s right. Q. And was that judgment based on the fact that these are soda trucks with soda beds on them — A. Right. Q. — And your experience with that particular type of truck? A. Right. Q. And it’s not based on any knowledge of a Ford model LN 700 truck or any use they might be put? A. That’s correct.”

Defendant’s truck sales manager, when asked if there was a difference in the value of a Ford LN 700 truck equipped with a 10-bay Hesse body with 15 X 6 as opposed to 16½ X 4V2 rear brakes, replied, “There is no difference.”

Viewed in the light most favorable to the trial court’s ruling, there was no testimony offered by plaintiff that could equate to evidence showing a difference in the fair market value between the trucks as ordered and as delivered. On cross-examination' plaintiff’s witness said that he had no knowledge of any difference in the market value between a LN 700 Ford truck equipped with 15 X 6 rear brakes and one equipped with 16½ X 4½ rear brakes; on redirect examination he acknowledged his figure was “not based on any knowledge of a Ford model LN 700 truck or any use they might be put.” Plaintiff’s self-proclaimed nonexpert’s testimony concerned a “feeling” or admitted “guess” as to the probable difference in the value between the differently equipped trucks as they related “to us.” (Emphasis supplied).

“Fair market value” is defined as “the price which property will bring when it is offered for sale by an owner who is willing but under no compulsion to sell and is bought by a buyer who is willing or desires to purchase but is not compelled to do so.” Carter v. Matthey Laundry & Dry Cleaning Company, 350 S.W.2d 786, 794[11] (Mo.1961). Proof of fair market value cannot be supplied by evidence as to the value of the property to the plaintiff individually (22 Am.Jur.2d, Damages, § 324, at p. 424), and a witness’ subjective opinion or his feeling or guess as to the value of items of personalty may not be equated with or substituted for fair market value. Bridgeforth v. Proffitt, 490 S.W.2d 416, 425[14] (Mo.App.1973). Moreover, “when the testimony of a witness, read as a whole, conclusively demonstrates that whatever he may have said with respect to the issue under investigation was a mere guess on his part and that, in fact, he did not know about that concerning which he undertook to speak, his testimony on such issue cannot be regarded as having any probative value.” Barnhart v. Ripka, 297 S.W.2d 787, 791[7] (Mo.App.1956). “Feeling” has been defined as an “unreasoned opinion” which falls below “conjecture” and “guess” because the latter two terms may imply the use of some reasoning power albeit is used defectively. Bailey v. Kershner, 444 S.W.2d 10, 15 (Mo.App.1969).

We, who have not seen nor heard plaintiff’s witness nor sensed the nuances of his testimony, are not required, under the circumstances in this case, to rule in a positive fashion whether the testimony proffered by plaintiff was sufficient vel non, in fact or in law, to submit the issue involved to the jury or constituted evidence of probative value as to the fair market value between the trucks ordered and received. All we need do is determine whether there was substantial reason for the trial court to grant a new trial upon refusal of the remittitur. Goodin v. May, 474 S.W.2d 33, 35[4] (Mo.App.1971). We, as above indicated, have concluded there was and affirm the judgment nisi.

All concur.

      . Ford Motor Company was also named as a defendant in the suit but was exonerated by the jury, and plaintiff did not appeal from that finding.


author: HARBISON, Justice. HENRY, Justice,

text:
    Terry HORN, Sr., Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    July 18, 1977.
    Edward Michael Ellis, Knoxville, for petitioner.
    William C. Koch, Jr., Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Ralph E. Harwell, Asst. Dist. Atty. Gen., Knoxville (Brooks McLemore, Atty. Gen., Nashville, of counsel), for respondent.
   OPINION

HARBISON, Justice.

On September 2,1975 the Grand Jury for Knox County returned three separate indictments against the petitioner under the statute dealing with false pretenses, T.C.A. § 39-1901. The indictments charged that the petitioner was guilty of obtaining sums of money from each of three named individuals by selling to them clover seed known as Alta Mammouth clover seed while falsely, fraudulently and feloniously representing to each of the purchasers that the seed involved was Kenland clover seed. The indictment charged that the latter was a more valuable brand of seed and that the petitioner falsely and fraudulently misrepresented the name of the seed being sold, “well knowing said representations were false” and that the seed was in fact not the brand which he stated it to be. Each indictment charged that the respective purchaser named therein relied on these false pretenses.

Petitioner filed a motion to dismiss the indictments, alleging that he “could only have been charged with a violation of the Tennessee Seed Law as codified at Tennessee Code Annotated, Sections 43-921, et seq.”

The trial court sustained the motion to dismiss each indictment. On appeal, the Court of Criminal Appeals, in a divided decision, reversed, holding that the provisions of the Tennessee Seed Law of 1972 did not preclude indictment of the petitioner under the statute dealing with false pretenses. We granted certiorari to give further consideration to this issue.

We have concluded that the majority opinion of the Court of Criminal Appeals was correct. The statute on false pretenses defines an offense punishable as a felony. At all times pertinent to this case it provided:

“Any person, who, by any false pretense, or by any false token or counterfeit letter, with intent to defraud another, obtains from any person any personal property, or the signature of any person to any written instrument, the false making of which is forgery, shall, on conviction, be punished as in case of larceny.”

Further provisions of the statute define the concept of “false pretense” in a rather comprehensive manner, including all cases of pretended buying, borrowing, or hiring, bailment or deposit.

The Court had occasion to consider the provisions of this statute in the recent case of State v. McDonald, 534 S.W.2d 650 (Tenn.1976), cert. denied, 425 U.S. 955, 96 S.Ct. 1733, 48 L.Ed.2d 200 (1976). There the history and previous constructions of the statute were discussed. In that case it was held that personal reliance by the victim upon a false representation was not an essential element of the offense, so long as the person to whom the representation was made himself relied thereon, to the ultimate detriment of the victim.

In the case of Mullican v. State, 210 Tenn. 505, 360 S.W.2d 35 (1962), the Court stated:

“It seems to us that under this statute the intent to defraud is the gravamen or an essential element in the crime.” 210 Tenn. at 511, 360 S.W.2d 38.

In the case of Beck v. State, 203 Tenn. 671, 315 S.W.2d 254 (1958), the Court dealt with the sufficiency of the allegations of an indictment under the false pretenses statute. There it was charged that the accused had obtained from the prosecuting witness the sum of $7,000 by means of fraudulent representations to him concerning the sale of a quantity of whiskey under a court order. One of the principal assignments on appeal was that the indictment itself was duplicitous, because other offenses might be carved out of the allegations. Rejecting this contention, the Court concluded that:

“. . . this indictment very clearly charges in substance a violation of the false pretense statute and that, even though other offenses either independent or lesser included offenses suggest themselves, the indictment is nevertheless not duplicitous.” 203 Tenn. at 677-678, 315 S.W.2d at 257.

It is the insistence of petitioner that in enacting the Tennessee Seed Law of 1972, T.C.A. §§ 43-921 et seq., the General Assembly dealt in exclusive terms with the sale of seed, and that this specific statute should be construed as superseding any general criminal laws which might deal with the same subject, or as impliedly repealing them.

We are not able to accept this contention. In the first place the 1972 Act was itself a successor to a number of previous statutes regulating the sale of seed, some of these going back to 1909. In the case of State v. McKay, 137 Tenn. 280, 193 S.W. 99 (1916), the Court sustained a statute known as the “Pure Seed Law” against a number of constitutional attacks, and held that the statute represented a valid exercise of the police power of the State. Other statutes on the subject were passed in 1939, with amendments in 1943 and 1961. The 1972 statute was a revision of previous statutes, and like them it contains a number of prohibitions in connection with the selling or transporting of agricultural or vegetable seed within the State. T.C.A. § 43-925. Among the prohibited acts are two which petitioner insists must control the indictment in the present case. The statute prohibits the sale of seed:

“(2) Not labeled in accordance with the provisions of §§ 43-921 — 43-934 or having a false or misleading labeling; or
“(3) Pertaining to which there has been false or misleading advertisement

The indictments in the present case do not charge that the seed which petitioner purveyed had a false or misleading label. The seed statute, T.C.A. § 43-927, exempts certain persons and transactions from coverage. The indictments do not contain allegations showing whether petitioner’s sales were or were not within these exemptions. They simply charge that the petitioner felo-niously sold and delivered the seed to each of the purchasers, representing them to be a different and more valuable brand, when in fact he knew that the representation was false.

Since the case was dismissed in the trial court on motion, there is no evidentia-ry record. For purposes of the motion, the allegations of the indictments must be taken as true. The acts with which the petitioner is charged in the indictments may or may not be covered by the seed law. What the evidence will show upon trial, we cannot know, but there are neither affidavits nor other factual material in the record as the case now stands to establish that the petitioner was covered by the 1972 Act. Therefore his motion, stating that he “could only have been charged” with a violation of the 1972 seed law, is, on its face, not well taken.

Further, as pointed out in the majority opinion of the Court of Criminal Appeals, the penal provisions of the 1972 Act, particularly the portion dealing with false labeling, make no reference to fraudulent intent or scienter. They simply prohibit the sale of improperly labeled or advertised seeds, and make violation a misdemeanor, punishable by a fine. The Commissioner of Agriculture is authorized to institute prosecution, but is directed first to afford an offender an opportunity to appear at a private hearing.

This seed law is similar to many other statutes dealing with various aspects of agriculture. Many of these provide for administrative regulations and controls, making violations punishable as misdemeanors. See, e. g., T.C.A. § 43-526 (Plant Pest Act); T.C.A. § 43-708 (Insecticide Act); T.C.A. § 43-1139 (Commercial Fertilizer Law of 1969); T.C.A. § 43-2003 (keeping of records in connection with the sale of cotton); T.C.A. § 43-2135 (tobacco sales); T.C.A. § 43-2906 (Pesticides); T.C.A. § 44-119 (sales of cats and dogs).

These are but examples of numerous statutes regulating agriculture and commerce. Most of these contain criminal sanctions for violations, but ordinarily do not require scienter or fraudulent intent as an essential element of the proscribed activity.

The case is, therefore, unlike that of Haley v. State, 156 Tenn. 85, 299 S.W. 799 (1927), relied upon by petitioner. There a statute made it unlawful for any person to obtain, “with fraudulent intent”, money or other property by means of a bad check or draft. This statute was held to be in conflict with, and impliedly to repeal, the false pretenses statute, insofar as offenses committed by check or draft were concerned, fraudulent intent being a specific requirement both of the false pretenses statute and of the bad check law under consideration.

In order for a later criminal statute to repeal by implication an earlier one, the offense defined in the two statutes must be identical, and the statutes must relate to the same subject matter and be enacted for the same purpose. See Chadriek v. State, 175 Tenn. 680, 137 S.W.2d 284 (1940); Hayes v. State, 159 Tenn. 314, 18 S.W.2d 1 (1929).

Of course, upon the trial of this case, the evidence may show a violation of the 1972 statute, and not a violation of the false pretenses statute. Further, depending upon the evidence adduced, it may be necessary for the trial judge to instruct the jury on the 1972 statute as an included offense, much as shoplifting may be a lesser included offense under a charge of petit larceny, as recently held by the Court in the case of Wright v. State, 549 S.W.2d 682, released at Knoxville for publication on April 11, 1977.

At the present stage of the proceedings, however, only the allegations of the indictments are involved. Those allegations are sufficient to charge a violation of T.C.A. § 39-1901. The grand jury was not precluded from making those charges simply because of the existence of the seed statute.

The judgment of the Court of Criminal Appeals is affirmed, the motion to dismiss filed on behalf of petitioner is overruled, and the cause is remanded to the trial court for further proceedings, at the cost of petitioner.

COOPER, C. J., and FONES and BROCK, JJ., concur.

HENRY, J., dissents.

HENRY, Justice,

dissenting.

I respectfully dissent.

Sec. 39-1901, T.C.A. is a general statute covering false pretenses. As pertinent to the instant case, it proscribes the obtaining of “any personal property” by means of any “false token . . with intent to defraud another . . . (Emphasis supplied.)

Sec. 43-925, T.C.A., a part of the Tennessee Seed law, reads in pertinent part as follows:

(a) It is unlawful for any person to sell, offer for sale, expose for sale, or transport for sale any agricultural or vegetable seed within this state:
* * * * * *
(2) Not labeled in accordance with the provisions of §§ 43-921 — 43-934 or having a false or misleading labeling. (Emphasis supplied.)

It is obvious that a false label would be a false token and a false token would include a false label. The offense, charged in the indictment, therefore, could come within the scope of either statute, from a standpoint of the descriptive terminology. The sale of falsely labelled seeds is, of course, a fraudulent act. The question is whether the specific nature of the Tennessee Seed Law preempts indictment under the false pretense statute by impliedly repealing or superseding overlapping portions of the general law. In my view, it does. The Tennessee Seed Law was obviously adopted, in part, to suppress the corrupt and fraudulent practice of selling falsely labelled seeds. I disagree with the majority’s implicit conclusion that fraudulent intent or scienter are not involved in the Seed Law because it makes no reference to these elements. To follow the majority’s reasoning is to hold that it is made a criminal offense in Tennessee to sell seeds that are merely incorrectly labelled, irrespective of intent and scienter. False and misleading label-ling to my mind connotes affirmative, knowledgeable, false and deceptive action as opposed to passive conduct in failing to insure that seeds are labelled correctly.

We have a general statute under which the selling of falsely labelled seeds is punishable as larceny and a subsequent specific statute making such action a misdemeanor.

I recognize and reiterate the oft-repeated rule that repeals by implication are not favored in the law. Reams v. Trostel Mechanical Industries, Inc., 522 S.W.2d 170 (Tenn.1975). Neither are they foreign to it. Moreover, we do not deal precisely with a repeal by implication, but with a question of which of two valid statutory enactments applies in the context of a prosecution for selling falsely labelled seeds.

In Haley v. State, 156 Tenn. 85, 299 S.W. 799 (1927), the defendant had obtained money by means of worthless checks, but was indicted and convicted under the statute making it a felony to obtain personal property under false pretenses. (Shannon’s Annotated Code, Sec. 6568; Sec. 39-1901, T.C.A.) Chapter 178 of the Acts of 1915 (see Sec. 39-1959, T.C.A., for substantially similar present law), in substance, made it unlawful to obtain money or other property or credit by means of a worthless check and provided a punishment based upon the amount or value. In Haley, the value was within the misdemeanor classification. The Haley court was thus presented with precisely the same situation we face — a felony conviction under a general law versus a misdemeanor conviction under a later and specific law.

After noting that legislative intent is the controlling consideration, the Court said:

No principle of law is better settled than that a statute purporting to cover an entire subject repeals all former statutes upon the same subject, either with or without a repealing clause, and notwithstanding it may omit material provisions of the earlier statutes.
There can be no doubt but that the Legislature intended that one who procured less than $30 [thirty dollars] by use of a cheek, which was not paid, should be guilty of a misdemeanor only
The two acts are, therefore, repugnant, and the former must give way to the latter. There cannot exist at the same time two statutes prohibiting the same wrong where they prescribe different degrees of punishment. The accused cannot be convicted of a felony where the Legislature, by its latest expression, has said specifically that for such offense he shall only be convicted of a misdemeanor. (Emphasis supplied) 156 Tenn. at 89-90, 299 S.W. at 800.

This Court in Hart v. Pierce, 169 Tenn. 411, 88 S.W.2d 798 (1935) followed Haley and stated:

While, as insisted, repeal by implication is not favored, our many cases so announcing all agree that a later statute will operate as a repeal of an earlier statute, if the repugnance and conflict between them is such that they cannot stand together. 169 Tenn. at 418, 88 S.W.2d at 800.

In Woodroof v. City of Nashville et al., 183 Tenn. 483, 192 S.W.2d 1013 (1946) the Court commented thusly:

Another rule of statutory interpretation is that a special statute or a special provision of a particular statute controls a general provision in another statute or a general provision in the same statute
the reason and philosophy of the rule is that where the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general manner should not be considered as intended to affect the more particular provision.
The rule . . . in its usual application is employed when the general provision is sequent to the special provision. It has even clearer application where the special provision follows the general provision. 183 Tenn. at 488-89, 192 S.W .2d at 1015.

A most significant case is State v. Lewis, 198 Tenn. 91, 278 S.W.2d 81 (1955) where the Court was confronted with two penal statutes relating to the removal of timber from the land of another. The first Code section made the removal a felony; the second and newer, a misdemeanor. The Court held the conflict to be irreconcilable, saying:

The result of that situation would be to have the same Act [sic] under one statute punishable as a misdemeanor, but punishable under the other statute as a felony. That cannot be. (Emphasis supplied.) 198 Tenn. at 95, 278 S.W.2d at 82.

This is precisely the situation in the instant case.

This Court, in Mowery v. State, 209 Tenn. 250, 352 S.W.2d 435 (1961), in an excellent and exhaustive opinion by the late Justice Weldon White, further amplified and clarified these rules of construction. There the defendant, armed with a pistol, went to a voting precinct and forcibly took and removed the ballot box, in violation of Sec. 2-2201, T.C.A., which makes it a misdemeanor to break up an election. He was indicted and convicted for armed robbery.

The Court relied upon Lewis and Haley, supra, as well as other authorities, in reversing the conviction and dismissing the case. The Court reasoned that Sec. 2-2201, T.C.A., “covers the entire subject-matter of the penal provisions relating to the holding of elections and Sec. 2-2201 T.C.A. is a particular statute of the election laws relating to and providing for the penalty for breaking up an election,” whereas Sec. 39-3901, T.C.A., “relates to the general subject of robbery and, of course, has no particular application to nominations, primary or general elections.” 209 Tenn. at 259-60, 352 S.W.2d at 440.

Paraphrasing other cases the Court said: [Wjhere there are two provisions, one of which is special and particular and certainly includes the matter in question and the other is general, which if standing alone would include the same matter and thus conflict with the special Act or provision, the special Act must be taken as intended to constitute an exception to the general provision. 209 Tenn. at 260, 352 S.W.2d at 440.

I accept the reasoning of these cases and would hold that Sec. 43-925, T.C.A., as a special enactment purporting to cover the entire subject of the offense of selling mis-labelled seeds, preempts or supersedes Sec. 39-1901, T.C.A., the general statute relating to false pretenses. This conclusion is mandated by the fact that the Tennessee Seed Law is a comprehensive enactment intended to encompass virtually all fraudulent transactions involving the sale of seed.

This dissent is not out of harmony with Wright v. State, 549 S.W.2d 682 (Tenn.1977) wherein we held that shoplifting was a lesser included offense under a charge of petit larceny. In my view, we would have reached the same result in Wright as I reach today, but for the fact that the shoplifting statute (Sec. 39-4236) contains phraseology to the effect that prosecution under Sec. 39-4235 “shall not be exclusive and shall be in addition to previously existing offense.” The Seed Law contains no such phraseology.

I would reverse the Court of Criminal Appeals, accept the views of the dissenting member of that court and affirm the trial judge.