author: PER CURIAM: FINCH, Justice

text:
    Donald R. YOUNG et al., Appellants, v. MAYOR, COUNCIL AND CITIZENS OF the CITY OF LIBERTY, Missouri, a Municipal Corporation, Respondents.
    No. 59110.
    Supreme Court of Missouri, En Banc.
    Jan. 12, 1976.
    Rehearing Denied Feb. 9, 1976.

      John C. Dods Shook, Hardy & Bacon, and Richard E. Duggan, Kansas City, for appellants.
    Don M. Jackson, Kansas City, for respondents.
   PER CURIAM:

This case, involving an attack upon the validity of an annexation by the city of Liberty, resulted in a judgment for the city, et al. (defendants) and an appeal to the court of appeals, Kansas City district. That court reversed and remanded in an opinion by Welborn, sitting as a special judge, after which we ordered the case transferred to this court. We determine after review that the opinion of Welborn, S. J., should be, and it is, adopted with minor additions as the decision of this court.

The city of Liberty is a Special Charter city, having a population by the 1970 census of less than 20,000 inhabitants. Its power of annexation is fixed by § 81.080, RSMo 1969, which provides, in part:

“Any city or town of less than twenty thousand inhabitants and having a special charter, after the taking effect of such charter, may at any time extend its limits by ordinance, specifying with accuracy the new lines to which it is proposed to extend such limits. All courts of this state shall take judicial notice of the limits of such city when thus extended.”

On April 6,1962, the Liberty City Council passed a resolution by which it declared its intention to annex approximately 25 square miles of unincorporated territory, described in the resolution. The date of the proposed annexation was set as January 1, 1967.

In compliance with the “Sawyers Act” (§ 71.015, RSMo 1969), approximately one year later, on May 31,1963, the city filed an action (case No. 29890) for a declaratory judgment. The petition described the area to be annexed as that covered by the resolution and stated that the city “proposes that such annexation would become effective on January 1, 1967.” Six landowners in the area proposed to be annexed were named defendants and class representatives. No response to the city’s petition was filed.

On September 9, 1963, the matter was heard in the Clay County Circuit Court, Division No. 2. On that date, the circuit court entered judgment, by which it found that the defendants were fairly chosen; that they adequately and fairly represented the whole class of landowners in the area to be annexed; and, that all of the landowners in the area described will be bound by the judgment. The judgment further recited:

“The Court further finds that the annexation prayed in the plaintiff’s petition is reasonable and necessary to the proper development of the plaintiff’s city and further finds that the plaintiff will have the ability to furnish the normal municipal services to the area herein sought to be annexed within a reasonable time after said annexation has become effective on January 1, 1967.”

The court adjudged “that the plaintiff be and is hereby authorized to annex to the City of Liberty the * * * property [described in the petition].”

Having obtained the above judgment as required by the Sawyers Act, the Liberty City Council enacted on the same day (September 9,1963) Ordinance No. 2278, extending the city limits to include the area set out in the judgment, and prescribing an effective date for the annexation of January 1, 1967.

On December 22, 1965, the city council amended Ordinance No. 2278 by removing a part of the area described in Ordinance No. 2278. The ordinance recited no reason for the change. The size of the deleted area does not appear other than as property lying in two survey sections.

On December 22, 1966, the council again amended Ordinance No. 2278, this time to postpone the effective date of the annexation to January 1, 1968. The ordinance, as thus amended, recited that there was a pending lawsuit challenging another annexation and that if that annexation were held invalid, the territory covered by Ordinance No. 2278 would not be contiguous to the city limits.

Five subsequent amendatory ordinances, enacted from December 18,1967, to December 13, 1971, each postponed the effective date of the annexation by one year, until January 1, 1973, became the effective date. No reason for the amendments appears in any of these ordinances.

On October 30, 1972, Ordinance No. 2278, as amended, was again amended. By this amendment, the last, the limits of the area to be annexed were changed so that the size of the area to be annexed in fact on the effective date was reduced to less than one-half of that originally proposed. The area described in this amendatory ordinance was all within the area originally proposed to be annexed. The ordinance called for the extension of the city limits to become effective January 1, 1973.

On December 21, 1972, Donald R. Young, et al. (plaintiffs), three residents of the area described in the last ordinance, brought the instant suit in three counts: (1) to enjoin enforcement of Ordinance No. 2278, as amended; (2) for a declaratory judgment to the effect that the ordinances purporting to annex the area to the city of Liberty are void; and (3) in quo warranto on the information of the Clay County Prosecuting Attorney at the relation of a resident of the areá sought to be annexed, praying for a judgment that the ordinances purporting to annex the tract in question were void.

The grounds for relief were the same in all three counts. Several of the grounds have been abandoned and basically the sole ground now relied upon is paragraph 11(e) of Count I of the petition:

“The defendant has failed and refused to comply with the intent and purpose of Section 71.015, et seq., RSMo., 1969, as amended, by attempting to delay the effective date of said annexation beyond the time set forth in the original Ordinance No. 2278 and as declared by this Court in cause No. 29890, in that the defendant has illegally attempted to circumvent the requirement of law that a court of general jurisdiction declare the reasonableness and necessity of the proposed annexation of the specific area sought to be annexed at a time contemporaneous with the date thereof; * * *.”

The defendants’ answer in general alleged that the city had complied with the Sawyers Act in the 1963 action and that subsequent postponement of the effective date of annexation and reductions in the area to be annexed were matters for determination by the city council in the exercise of legislative right and prerogative. The defendants also asserted that the 1963 declaratory judgment was res judicata, giving the city a continuing authority to proceed with the annexation at such times and in such manner as might be determined solely by it.

No temporary injunctive relief was granted and the annexation became effective January 1, 1973.

The cause was heard in circuit court on July 5,1973. The plaintiffs presented documentary evidence consisting of the ordinances involved, the petition and judgment in the 1963 action and a land use sketch plan, dated October, 1970, prepared by the Metropolitan Planning Commission, Kansas City Region, which described the boundary of the area authorized to be annexed as a “holding order” boundary. Plaintiffs also offered oral testimony of one of the plaintiffs and what they claimed were admissions from depositions of the Mayor and City Administrator of Liberty.

The trial court found for defendants. Its conclusions of law are as follows:

“1. The declaratory judgment entered on September 6, 1963, by the Circuit Court of Clay County, in Case No. 29890 authorized the City to proceed with the annexation of the area of land described therein as otherwise authorized by its charter and became a final, binding and conclusive judgment, no appeal being taken therefrom.
“2. The date of January 1, 1967, in the declaratory judgment entered on September 6, 1963, in Case No. 2SGCC was the earliest date on which said annexation could become effective. It did not prevent the City from postponing the date.
“3. After the declaratory judgment was entered in Case No. 29890, the time when the limits of the annexation to be made by the City, so long as the land annexed lay within the boundary of the tract set out in the judgment, was solely and exclusively a discretionary legislative prerogative for the determination by the City Council of the City of Liberty. This judgment merely established that the annexing of the described tract was reasonable and necessary to the proper development of the City, and that the City could provide municipal services; its effect was merely to authorize the City to proceed. The City was not bound or required to proceed to annex all of the described tract and could postpone action to such later date as it might see fit, or annex only a portion of the tract, in its sole discretion, subject only to a change of conditions and circumstances.
“4. All actions taken by the City Council subsequent to September 6,1963, in amending the original ordinance of that date, No. 2278, either with respect to reducing the territory to be included or extending the effective date, were legal and valid ordinances enacted pursuant to the power vested in the City Council of the City of Liberty.
“5. The judgment in Case No. 29890 finding that annexation of the area described therein by the City of Liberty was reasonable and necessary is res ad judicata, binding and conclusive unless and until such a substantial change of conditions and circumstances is shown as to make the annexation unreasonable and unnecessary, rather than reasonable and necessary as found.
“6. That the burden of proving such a substantial change of conditions and circumstances was upon the plaintiffs in this case. The plaintiffs have failed to establish that there was such a substantial change of conditions and circumstances as to make the annexation under the authority of the judgment in Case No. 29890 unreasonable and unnecessary so that such judgment remains binding and conclusive and is res adjudicata of this action.
“7. A valid annexation of the area in question was accomplished by the City on January 1, 1973, pursuant to the provisions of Ordinance No. 3229, so that this area is, and continuously has been since that date, a part of the City of Liberty.”

After their post-judgment motion had been overruled, plaintiffs appealed.

On this appeal, the basic position of plaintiffs is that once a judgment has been rendered under the Sawyers Act, giving judicial authorization of a proposed annexation, a substantial change in the annexation proposal requires the city to obtain a further adjudication under the Sawyers Act with respect to the altered proposal.

Section 71.015, the Sawyers Act, provides:

“Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of chapter 527 RSMo, praying for a declaratory judgment authorizing such annexation. The petition in such action shall state facts showing:
“1. The area to be annexed;
“2. That such annexation is reasonable and necessary to the proper development of said city; and
“3. The ability of said city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective. Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070, RSMo.”

The purpose and effect of this statute has been stated in the numerous cases which have arisen since its passage. It does require a favorable judgment as a condition precedent to a municipal annexation. The essential consideration for the court is the reasonableness of the proposed action, the same judicial question which was involved in annexation cases prior to the Sawyers Act, except that in those cases, the question arose subsequent to the annexation, not before. In such prior cases, the proponents of “unreasonableness” had the burden of proof on that issue. See Seifert v. City of Poplar Bluff, 112 S.W.2d 93, 96[2] (Mo.App.1938). The Sawyers Act changed that burden by requiring the municipality to bring an action before annexation and demonstrate the “reasonableness” of its proposed action. City of St Joseph v. Hankinson, 312 S.W.2d 4 (Mo.1958); City of Olivette v. Graeler, 338 S.W.2d 827, 833[2,3] (Mo.1960); City of Bourbon v. Miller, 420 S.W.2d 296, 300[1—4] (Mo. banc 1967); City of Odessa v. Carroll, 512 S.W.2d 862, 866[1,2] (Mo.App.1974). Annexation by a municipality remains a legislative prerogative. The Sawyers Act affects merely the procedure by which the limited authority of the judiciary in the process is invoked. City of St. Joseph v. Hankinson, supra.

“A municipal corporation or its corporate authorities have no power to extend its boundaries otherwise than as provided for by legislative enactment or constitutional provision. Such power may be validly delegated to municipal corporations by the legislature, and when so conferred must be exercised in strict accord with the statute conferring it.” 56 Am.Jur.2d, Municipal Corporations, § 63, p. 117 (1971). As stated, the Sawyers Act imposes upon cities the obligation to procure, before completion of the annexation process, a declaratory judgment authorizing the annexation of the area the city intends to annex. Julian v. Mayor, Councilmen and Citizens of the City of Liberty, 391 S.W.2d 864 (Mo.1965). No valid annexation may be accomplished by a city such as Liberty without compliance with the Act. Anderson v. Moline Acres, 386 S.W.2d 38 (Mo.1964).

The issue here is what is the effect of the Sawyers Act when a city obtains judicial authorization for the annexation of certain territory and thereafter proceeds to annex in fact another tract which is less than half the size, but is a part of the original territory. Plaintiffs assert that such a change without again proceeding under § 71.015 results in the annexation of territory without that judicial scrutiny required by the Sawyers Act and, if permitted to stand, nullifies the protection the Act was designed to extend against arbitrary municipal extension of boundaries.

One of the matters required by the Sawyers Act to be stated in the city’s petition is “The area to be annexed.” This requirement is designed to permit citizens to identify the area proposed to be annexed. See City of Cape Girardeau v. Armstrong, 417 S.W.2d 661, 674[2] (Mo.App.1967). Compliance with this requirement delineates the area on which is based the court’s inquiry and determination as to whether the requirements of reasonableness and ability to provide municipal services are demonstrated. The court cannot decide “reasonableness” and the city’s “ability” except with reference to the territory submitted to it in the city’s petition. City of Bourbon v. Miller, supra (420 S.W.2d at 301[5, 6]); City of Aurora v. Empire District Electric Company, 354 S.W.2d 45, 55-56[7, 8] (Mo.App.1962). Thus, in this case the circuit court, on the petition before it, could not have entered a judgment requiring or authorizing the city to annex only the tract which it ultimately selected. City of Bourbon, supra. In the 1963 proceedings the actual judgment of the court was that “ * * * the plaintiff be and is hereby authorized to annex to the City of Liberty the * * * property [described in the petition].”

Respondents contend and the trial court agreed that such a judgment did not restrict the legislative right of the city to determine the scope of its annexation plan so long as the area fell within the described area. However, the Sawyers Act itself is a limitation upon the municipal legislative prerogative. To hold that once a judgment approving an annexation has been obtained the plan is not subject to municipal legislative alteration without further judicial authorization does not amount to conferring legislative power on the court. The action of the court in approving or disapproving an altered proposal would be no less judicial than its approval of the original proposal. There is nothing which prevents the general assembly in conferring power of annexation to require that the municipality proceed with the plan as judicially authorized or obtain further judicial authorization if a different plan is thereafter proposed for ultimate adoption. State ex rel. and to Use of Behrens v. Crismon, et al., 354 Mo. 174, 188 S.W.2d 937, 939[2, 3] (banc 1945).

The question presented by this case is essentially one of construction of the Sawyers Act. In view of the effect of the burden which that legislation shifted to the city of establishing in advance the reasonableness of its annexation proposal and in view of the requirement that the petition for approval describe the area proposed to be annexed, it is reasonable to conclude that the legislature intended to require the city to comply with the Act with respect to the area ultimately annexed and to require judicial authorization for that particular action. See Anderson v. Moline Acres, supra.

The defendants’ argument, based primarily on the doctrine of res judicata, is not persuasive because there is no judgment authorizing the action which the city actually took.

Defendants rely heavily upon the case of Hixson v. Kansas City, 361 Mo. 1211, 239 S.W.2d 341 (banc 1951), a decision antedating the Sawyers Act, in support of their res judicata argument. That case involved an attempt by residents of Clay County to compel an election on their petition to amend the Kansas City Charter so as to change the boundaries by excluding that part of the city located in Clay County. The annexation which had added that territory to Kansas City had then only recently received approval of the Supreme Court in State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762 (banc 1950), a decision which also antedated and did not involve the Sawyers Act. The annexation had become effective January 1,1950, the decision in Taylor approving it had become final on April 10, 1950, and the Hixson petition for de-annexation was filed June 21, 1950. In declining to order the de-annexation election, the court stated that “action purporting to de-annex the Clay County area would be unreasonable”; that the “reasonableness” of the annexation had just been decided in Taylor, and that decision was res judicata of the issue. The requirement which Hixson imposed upon those persons seeking de-annexation is not applicable to this case.

In Hixson, supra, the city could point to a recent judgment which encompassed the precise area involved in both cases (Hixson and Taylor), and the principles of res judi-cata were applicable. Not so here, there is no judgment to which the city can point authorizing the particular annexation which the city purported to accomplish. Here, the action taken by the city was to annex in fact, not the land area it had, in its Sawyers Act suit, represented to the court to be reasonable and necessary to the proper development of the city, not the land area the court by its declaratory judgment authorized the city to annex, but, rather, a different tract of land. True, the area in fact annexed was a part, a small part, of the land area authorized nine years earlier to be annexed, but it was not in fact the tract of land the Sawyers Act judgment had approved as reasonable and necessary to the proper development of the city. On the contrary, it was what was left after the city had determined, for some reason, that more than half of what it had sought originally was not, as it previously had represented to the court, reasonable and necessary to its development. We consider that the city’s reason for this determination was that in the nine-year interim there were substantial changes in the circumstances and conditions of either the city or the area it had authority to annex, or such changes in both. To conclude otherwise would be to assume that the entire area originally proposed was not reasonably necessary to the city’s development at the time of the Sawyers Act judgment, an assumption which would be contrary to the city’s representations and the judgment. That, we are not prepared to assume.

The plaintiffs are not here asserting the unreasonableness of the annexation, but are attacking it on the sole ground that the city has not procured that judicial authorization required by the Sawyers Act.

We conclude that the annexation attempted to be effected January 1, 1973, by the city’s ordinance No. 3229, was without the authority required by § 71.015, is therefore void, and the judgment should be reversed.

The judgment is reversed and the cause is remanded with directions that judgment be entered for plaintiffs.

SEILER, C. J., and MORGAN, HENLEY and DONNELLY, JJ., concur.

BARDGETT, J., concurs in result.

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

HOLMAN, J., dissents and concurs in separate dissenting opinion of FINCH, J.

FINCH, Justice

(dissenting).

I respectfully dissent.

The principal opinion holds that by the enactment of the Sawyers Act (§ 71.015 RSMo 1969) “the legislature intended to require the city to comply with the Act with respect to the area ultimately annexed and to require judicial authorization for that particular action”. Stated differently, it holds, as I understand it, that when the court enters a judgment in a Sawyers Act case, approving and authorizing annexation of an area specifically described therein, that decree authorizes only annexation of the precise tract so described, and if the city concludes to change that area by deleting any part thereof, the situation is exactly the same as if the city had not brought a suit under the Sawyers Act and it must start all over with a new action and process that case to a successful and final conclusion.

Does the Sawyers Act so require? The answer, in my view, is a definite “no”.

In our resolution of this ease, certain established principles are applicable. Questions of whether and what to annex are legislative rather than judicial. The only judicial function is a determination of whether the annexation decided upon by a legislative body “is so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of its legislative power”. City of St. Joseph v. Hankinson, 312 S.W.2d 4, 9 (Mo.1958). The judicial function is limited to so determining and does not involve a judgment as to the propriety or advisability of the legislative decision. City of St Joseph v. Hankinson, supra; City of St. Ann v. Busehard, 356 S.W.2d 567 (Mo.App.1962). If it is found that reasonableness of the annexation is fairly debatable, that ends the question so far as the courts are concerned. City of St. Joseph v. Hankinson, supra; City of Aurora v. Empire District Electric Co., 354 S.W.2d 45 (Mo.App.1962).

The Sawyers Act did not change the judicial function in annexation matters. It simply changed the time of such judicial determination and the burden of proof therein. Prior to enactment of the Sawyers Act, any judicial determination of whether an annexation was arbitrary and unreasonable was performed in suits attacking an annexation already consummated. In such proceedings the burden of proof of an arbitrary and unreasonable legislative determination was on those attacking the annexation. Since enactment of the Sawyers Act, a city proposing to annex an area is obligated to bring suit before annexation. In that action the court, as a condition to annexation, is to find such annexation to be reasonable and necessary to the proper development of the city and that within a reasonable time after the annexation, the city will be able to furnish municipal services to that area. The burden of making a prima facie showing of these facts is placed on the city. City of St. Joseph v. Hankinson, supra; City of Aurora v. Empire District Electric Co., supra. In other respects, the law remains unchanged.

On April 6,1962, the city council of Liberty adopted a resolution in which it made a legislative determination that a tract of land described in said resolution was contiguous and readily accessible to the city of Liberty, that such tract was reasonably necessary to the proper development of that city, and that it would be able to furnish normal municipal services to such area within a reasonable time after January 1, 1967. Thereafter, pursuant to the requirements of the Sawyers Act, the city filed a declaratory judgment action seeking approval of and authorization for such annexation effective January 1, 1967.

After an evidentiary hearing in said proceeding, the circuit court entered a judgment in which it found that persons fairly representative of all landowners in the area to be annexed had been chosen and served as defendants and that the evidence disclosed (1) that the annexation sought was reasonable and necessary to the proper development of the city of Liberty and (2) that the city had the ability to furnish normal municipal services to the area in question within a reasonable time after the annexation scheduled for January 1, 1967. That judgment was not appealed and became final. Pursuant thereto, the city council, on September 6, 1963, the date the decree in the Sawyers Act case was entered, adopted Ordinance No. 2278 extending the city limits of Liberty so as to include the area described in the judgment of the court, said annexation to be effective from and after January 1, 1967.

The judgment of September 6,1963, complied with the requirements of the Sawyers Act and constituted a finding, binding on the inhabitants of the area described in the judgment, that annexation of the tract therein described (stated in the testimony to be a 20 to 25 square mile tract) was reasonable and necessary and that the city of Liberty could furnish municipal services thereto within a reasonable time. If the city had not thereafter amended Ordinance No. 2278, the annexation provided for therein would have been complete and effective January 1, 1967, and the lands of those who are plaintiffs in this suit would have been within the city limits of Liberty. This is not disputed by plaintiffs.

However, instead of allowing Ordinance No. 2278 to stand as originally passed, the city council on December 22, 1965 (before the ordinance was scheduled to become effective) amended said ordinance to exclude from the tract to be annexed that portion thereof lying east of Interstate Hwy. 35 and north of Fishing River. The record does not disclose the precise size of that tract. However, counsel for plaintiffs stated in circuit court that it consisted of “a very slight additional area that would in effect square off the northeast corner”. He also referred to it as “little, almost triangular”. Hence, it is clear that the tract deleted by action of the city council on December 22,1965, was a small portion of the area originally proposed for annexation.

Thereafter, after a series of ordinances which ultimately extended the effective date of annexation to January 1,1973, were adopted, the city council, on October 30, 1972, again amended the description contained in the ordinance so as to exclude an additional part thereof. The area remaining was that portion of the original tract which was nearest to the then existing city limits of Liberty. It was described in the testimony as a ten square mile tract.

On December 21, 1972, which was after the city had passed the ordinance substantially reducing the area to be annexed but before the annexation was to become effective, plaintiffs filed this action in three counts, seeking in Count One injunctive relief against the annexation, in Count Two, a declaratory judgment that the annexing ordinance was invalid and gave Liberty no authority to annex the revised area, and in Count Three, a decree in a quo warranto proceeding instituted by the prosecuting attorney which would prohibit the city and its officers from exercising any jurisdiction over the area included in the amended description. Said petition alleged numerous grounds for the relief sought, but insofar as material to the issue we deal with on this appeal, those allegations were that since the date fixed by the court (and by Ordinance No. 2278) as the effective date of the annexation originally sought, various substantial changes had occurred which caused the annexation no longer to be reasonable and necessary for the proper development of the city and since Liberty did not plan to and was not able to provide municipal services to the tract to be annexed, the prior adjudication was not a valid authorization for the annexation finally proposed.

A trial was held in this new action after which the trial court made the conclusions which are recited in the principal opinion. It should be noted that included therein is a determination that plaintiffs had failed to establish that there has been such a change in conditions and circumstances as to make annexation of the lesser area under authority of the judgment of September 6, 1963, unreasonable and that therefore annexation on January 1,1973, of the lesser area pursuant to the earlier judgment was valid and effective.

We thus deal with a situation in which Judge Elliott, after hearing evidence, on September 6, 1963, entered a judgment holding that annexation of the originally described tract was reasonable and necessary to the proposed development of Liberty and that the city had the ability to extend municipal services thereto within a reasonable time after annexation, then scheduled for January 1, 1967. Thereafter, after reductions in the area and delay in the date of proposed annexation to January 1, 1973, we have a finding and judgment by Judge Connett, entered after trial of this case, that the evidence heard by him did not show any change in conditions or circumstances which made the annexation then proposed (the area after deletions made December 22, 1965, and October 30, 1972) unreasonable or unnecessary and that the adjudications of reasonableness, necessity and ability to supply services made in the September 6,1963, judgment remained applicable and binding. Under such circumstances, is there any reason for us on appeal to nullify the effect of the September 6, 1963, judgment and, as a result, to invalidate the annexation made January 1, 1973?

Plaintiffs argue that we should, saying that the Sawyers Act decree must pass on and approve the exact annexation to be consummated. If the area is reduced at all or the time for annexation is postponed, say plaintiffs, the court has not scrutinized and approved the precise annexation to be consummated and a new Sawyers Act petition, hearing and judgment are required as a prerequisite to the right of the city to annex. The severity and inflexibility of plaintiffs’ position is demonstrated and underscored by what occurred during oral argument of this case. Counsel for plaintiffs was asked whether a new, full-blown Sawyers Act proceeding would be required if, after entry of the prior judgment had become final, an error in the description of the area to be annexed was discovered and a corrected description was adopted by the city. He replied in the affirmative. In other words, the city could not rely on the prior Sawyers Act judgment and would have to start anew.

In my judgment the Sawyers Act neither requires nor justifies such a result. The apparent objective of that act was simply to have the court look at a proposed annexation ahead of time, thereby avoiding the necessity of undoing an annexation previously consummated. It was not to impose supertechnical restrictions on judicial determination of reasonableness or to mandate repetitive and unnecessary litigation simply because some reduction in the area is made after adjudication but before annexation or because some delay in consummating the annexation occurs. Yet, that is precisely the effect of the rule announced in the principal opinion. To illustrate, no objections were raised when the city on December 22, 1965, deleted the small triangular area from the original tract and the city probably could have gone ahead at that time on the theory that it was authorized to complete the annexation under authority of the Sawyers Act judgment of September 6, 1963. That judgment, however, did not describe the tract as annexed and if the rule, espoused by plaintiffs and adopted in the principal opinion, is to be that the court must look at and approve the precise tract to be annexed, then on the basis of a super-technical requirement read into the Sawyers Act, the city was not authorized by the prior judgment to annex the decreased area and the annexation would be subject to subsequent attack.

' I cannot accept such a result as a correct interpretation of the Sawyers Act and what it requires. When Judge Elliott heard the original case, he necessarily looked at the 20 to 25 square mile tract and concluded that it, including all parts thereof, was reasonably necessary to the proper development of Liberty and that the city within a reasonable time could furnish municipal services to the entire tract. His finding is not subject to the interpretation that annexation was reasonable and necessary only if every foot of the original tract was annexed. Obviously, if Liberty had sought to add land not originally included and not considered by Judge Elliott, a new proceeding would have been required, but when the city simply deleted a portion of the tract approved by the court, an automatic new proceeding should not be a prerequisite to completion of the annexation.

This is a time when the courts of this state are hard pressed to handle expeditiously the greatly expanded and still growing case load with which they are confronted. When the language of the Sawyers Act does not require otherwise, it is both logical and reasonable to interpret it as saying that when a court, in a suit brought pursuant to that Act, approves a legislative determination to annex a tract therein described, that judgment will authorize annexation, without the necessity of a new Sawyers Act proceeding, of all of that tract or a part thereof, provided that if persons affected thereby so desire, they may bring a suit attacking annexation of the decreased portion of the original tract on the basis that because of the decrease in area (or a delay in consummation) the annexation no longer is reasonable or necessary. If and when such suit is brought and the court finds that the proponents therein have proved their contentions and that annexation is not reasonable and necessary for those reasons, the annexation should be prohibited. Such an interpretation protects the rights of persons genuinely affected by a decrease in acreage or a delay in consummation of the annexation. At the same time it avoids the useless and wasteful practice of requiring a whole new Sawyers Act proceeding simply because there has been a reduction in acreage or a delay in the date of annexation. In my judgment, this interpretation is in accord with what the General Assembly intended by the Sawyers Act.

An examination of the evidence offered by plaintiffs in this case discloses that plaintiffs were not relying on and did not seek to show changed conditions resulting from the decrease in the area to be annexed. For example, they did not seek to show that the reduced tract was of such a character that without the part excluded it would not be amenable to development, and that annexation of that part alone •vyould be unreasonable. They did not seek to show that access to the reduced area was not good or feasible. They did not seek to show that the boundaries, as now drawn, were so irregular as to be impractical or that the new area was not contiguous to the city. They did not even seek to show that the city’s financial situation had deteriorated so that it could not furnish services to the new area or that the city had less equipment and personnel than at the time of the prior Sawyers Act adjudication and for that reason could not furnish services. In other words, they did not present evidence to show that changes were produced by the reduction in area which made annexation unreasonable or unnecessary or that the city’s ability to perform had changed. Instead, they sought, as the transcript discloses, to go into matters settled by the September 6, 1963, judgment and on that basis to defeat the annexation. For example, they kept seeking to introduce evidence that Liberty has plenty of vacant land within the city and does not need to expand. They wanted to go into the character of the area to be annexed and to prove that it is mostly farm land, and not an area in which there are substantial housing developments or matters of that nature. The trial judge pointed out that these were attempts to go behind the prior judgment and to relitigate questions settled therein and he did not permit an attack on the annexation on such basis.

If the principal opinion stands, the city will have to pass a new resolution to annex the revised area and then bring an entirely new action under the Sawyers Act. The judgment rendered September 6, 1963, will not be res judicata of anything. The city again will be required to make proof that it needs to expand its boundaries, that it does not have enough undeveloped area within its present boundaries to meet its needs and that it is reasonable and necessary to annex the particular tract described. It also will have to prove again that it will be able to furnish municipal services within a reasonable time to this area. As a result, plaintiffs will get to relitigate issues resolved by the first judgment, and plaintiffs will get a third bite at the apple. They had their first bite in their opportunity to litigate these issues and they stood by, allowing a final judgment to be entered. They had their second bite in the trial of this case before Judge Connett. They had every opportunity to establish that the reduction in area and the delay in time had caused the annexation as then proposed to be unreasonable and unnecessary. They failed to so show and the court so found. They are not entitled to and I would not give them a third bite. I would affirm the judgment.


source: Caselaw Access Project

author: BARDGETT, Justice. SEILER, Chief Justice.

license: Public Domain

text:
    Ray SMITH, Appellant, v. Larry P. COURTER, M.D., et al., Respondents.
    No. 58951.
    Supreme Court of Missouri, En Banc.
    Jan. 12, 1976.

      James W. Jeans and Lantz Welch, Kansas City, for appellant.
    Donald E. Raymond, and Dean F. Arnold, Kansas City, for respondents.
   BARDGETT, Justice.

This appeal involves the opening portions of a closing argument to the jury made by plaintiff-appellant’s attorney (hereinafter plaintiff) which allegedly improperly injected punitive damages into the case. After opinion by the Missouri court of appeals, Kansas City district, defendants-respondents (hereinafter defendants) petitioned this court for transfer. The motion was sustained and the appeal transferred pursuant to Art. V, sec. 10, Mo.Const., as amended 1970.

Portions of the court of appeals opinion are utilized without use of quotation marks.

In this malpractice suit, plaintiff originally sought damages from the defendant radiologists and also from a surgeon who was an additional defendant. After two days of trial, plaintiff settled with the surgeon for $5,000. The case against the defendant radiologists was submitted to a jury, which returned a verdict for $105,000.

Defendants moved for a new trial, asserting 19 separate grounds. The court granted the new trial on the single ground that the closing argument of plaintiff’s counsel improperly injected an issue of punitive damages. On plaintiff’s appeal, he argues that the trial court erred in so ruling, because defendants had not made sufficient objection to the argument; because the argument itself was not improper; and because in any event the error, if any, was harmless.

The portions of the argument which the trial court found objectionable, together with the objections made by defendants’ counsel and the trial rulings are as follows:

“I think also that when you sit on a case like this, I think from the very beginning you realize that your conduct in this case is important to your community as well as to the litigants here, and I think that as you weigh that you will realize that as you sit here as a collective group of 12 people you are speaking as the conscience of our community when you pass upon issues such as this. By your verdict you can speak out about your feelings as to the quality of medical care—

“MR. ARNOLD: That’s objected to as being argument outside the issues.
“MR. WELCH: I think this is appropriate—
“MR. ARNOLD: That depends on the evidence in this case.
“MR. WELCH: I think this is appropriate argument, Your Honor.
“THE COURT: The objection is overruled, but the Jury is instructed to follow the evidence as presented and the Instructions of the Court.”
“Well, you, by the adequacy of this verdict, can accomplish several things. One, you can say, I recognize you, Ray Smith, for who you are, what you are, what your problems are, and the totality of your being and that you’re not an irresponsible man, and we know it’s humiliated you to have to go through these proceedings, for your life to be an open book for the last five years when you filed a lawsuit; we know these things. You can also say, through the adequacy of your verdict, Lockwood — and anybody else that reads about it or hears about it — improve the quality of what you sell—
“MR. ARNOLD: That’s objected to as improper argument.
“MR. WELCH: Your Honor, this is argument, and — May I proceed?
“MR. ARNOLD: Well—
“THE COURT: Just a minute.
“MR. ARNOLD: May I have a ruling on my objection?'
“MR. WELCH: I think the Court has already ruled—
“THE COURT: No, I haven’t. Objection will be overruled. You have three minutes.
“MR. WELCH: Thank you. You can say, Improve the quality of the product you’re selling. You see?”

Appellant contends the objection made by defendants’ attorney was inadequate to advise the court and plaintiff’s counsel of any complaint of error.

The trial court considered these contentions in detail as well as the more substantive contentions that the argument did not inject punitive damages into the ease, as well as the issue of resulting prejudice, and in its order granting a new trial stated:

“Although only general objection was made by defendants’ counsel to the portion of the argument last quoted, objection to the first quoted portion was made on the grounds of ‘outside the issues’ and the Court was in fact sufficiently apprised of and aware of the reason for the objection to the second quoted portion as well as to the first quoted portion.
“2. By allowing the aforementioned argument, over the objection of defendants, this Court allowed plaintiff to inject punitive damages into the case, such damages being outside the issues.
“As indicated by the punitive damage instruction in Sec. 10.01 of M.A.I. (2nd Ed.), where punitive damages are proper the jury ‘may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter him and others from like conduct.’
“By the improper argument the jury was in effect told that ‘through the adequacy of your verdict’ you can deter defendants and others from like conduct.
“3. By this Court allowing the improper argument defendants have been prejudiced and they were deprived of a fair trial.”

While the objections made by defendants’ counsel were not as precise as they might have been, they were sufficient to raise and preserve the point upon which the new trial was granted. Plaintiff had chosen to submit his case on a request for compensatory damages only. He had made no allegation or prayer nor had he submitted any instruction pertaining to any claim for punitive damages. So, if plaintiff’s jury argument truly injected the issue of punitive damages, as held by the trial court, then the argument was indeed “outside the issues” and defendants’ objection was correct.

The court of appeals agreed with the trial court’s assessment of plaintiff’s argument saying,

“That the argument did in fact inject the element of punitive damages, cannot well be doubted. It clearly called upon the jury to impose damages of such a size as to deter defendants and others from engaging in the future in the same type of defective medical service. This falls squarely within the scope and purpose of punitive, not compensatory, damages. State ex rel. Smith v. Greene, 494 S.W.2d 55, 60 (Mo. banc 1973); MAI 10.01. The trial court was, therefore, correct in holding this argument to be erroneous.”

While, on a cold record, it may be debatable as to whether or not plaintiff was intending to exhort the jury to include in its verdict a sum of money in addition to compensation for injuries sustained, which sum would be for the purpose of deterring defendants from similar future conduct and to deter others from like conduct, it is clear that the trial judge believed it to be just that — a plea for punitive damages — and for that reason ordered a new trial.

In Graves v. May Department Stores Co., 153 S.W.2d 778 (Mo.App.1941), cited by plaintiff, the reviewing court upheld the trial court’s refusal to grant a mistrial to the defendant when plaintiff, over defendant’s objection, argued that the way to get the defendant to replace its escalator with a better type was to bring in a ringing verdict that the defendant would long remember. The trial court thereupon cautioned the jury with respect to damages and overruled the motion for mistrial. The jury awarded plaintiff a verdict of $600.00.

On appeal, the court said at l.c. 785:

“Questions relating to the conduct of a trial have, from the wisdom gathered by long experience, been left by appellate courts largely to the discretion of the trial judge. The only proper ground for interference by an appellate court is when it clearly appears that there has been an abuse of such discretion. We hold there was no abuse of discretion by the trial judge in refusing to declare a mistrial on account of the incident referred to.”

In the instant case we have a jury argument which the trial court held injected punitive damages into the case.

The court holds that the trial court’s understanding of plaintiff’s argument was reasonable and not an abuse of discretion.

Plaintiff’s contention that the argument did not inject punitive damages into the case is overruled.

After holding that plaintiff’s argument did erroneously inject punitive damages into the case, the court of appeals said:

“There remains for consideration, however, the much more troublesome question of whether this error resulted in prejudice to the defendants. Plaintiff argues that any error in a jury argument concerning damages can be prejudicial only if it results in an excessive verdict; that the argument here in question did in fact go only to damages; and that since the trial court did not find the amount of damages to be excessive, it follows that there was no prejudice.”

The court of appeals then held that where defendants failed to assume the burden of demonstrating that the trial court erred in failing to find excessiveness, the erroneous argument would not be held prejudicial.

The defendants did allege excessiveness of the verdict in their motion for new trial and the Court of Appeals was correct in holding that where the trial court grants a new trial on a specified basis, as it did here, that ruling is deemed to constitute an overruling of all other grounds asserted in the motion for new trial. Burnett v. Johnson, 349 S.W.2d 19, 24 (Mo.1961); Took v. Wells, 331 Mo. 249, 53 S.W.2d 389 (1932); Hoehn v. Hampton, 483 S.W.2d 403, 407 (Mo.App.1972); Mosley v. St. Louis Public Service Co., 301 S.W.2d 797, 800 (Mo.1957).

This court does not believe the issues on this appeal are wholly controlled by the cases noted supra. What the amount of the jury’s verdict would have been had the jury not been invited to include a punitive sum in its verdict would be pure speculation. What did happen is that the jury was told it could include as part of its compensatory damage award a punitive amount of money. How much, if any, of the amount of the verdict represents the jury’s response to plaintiff’s invitation cannot be determined nor can the amount of the verdict in this case be considered so low from a compensatory standpoint as to render the error harmless.

Plaintiff argues that “asking jurors to speak out on social issues through their verdicts is a legitimate invitation recognized as such by custom and usage that transcends the memory of man. Declare it erroneous, and every criminal conviction in the state must be reversed.”

“Social issues” is a broad phrase that may encompass many ideas and concepts, some of which may be the subject of legitimate argument in a compensatory damage suit. The court’s ruling in this case does not purport to cover the spectrum of “social issues” but is directed solely to the point in issue which is the legality of an argument for punitive damages in a compensatory damage case.

The trial court did not view or understand plaintiff’s argument to be a request for damages adequate to compensate for injury and expense but rather a request for a money verdict adequate to satisfy those items and also adequate to perform the function of deterring others from like conduct. It is, of course, true, as plaintiff argues and Prosser in his Law of Torts, Fourth Edition, p. 23, observes, that compensatory damage verdicts, in themselves, serve to admonish others that if they negligently injure another they will be required to compensate him with money damages. That this admonishment has the overall social effect of deterring like conduct and the prevention of harm cannot be doubted.

Nevertheless, juries cannot be told directly or in effect that they may consider punishment or deterrence as an element of damages and include a sum of money in their verdict so as to punish the defendant or deter others from like conduct unless the pleadings, evidence and instructions warrant the separate submission of punitive damages under the law. To do otherwise, would eliminate the distinction between compensatory and punitive damages, a distinction long part of the law of this state, and would cloud every verdict to a point where the court could not know whether the compensatory damage verdict did or did not include a punitive sum.

Of course, a court cannot know the mind of each juror as he goes about the task of deciding upon the amount of the verdict, and jurors cannot be heard to impeach their own verdicts. So it becomes of importance that jurors not be told they can include as part of their award an element of damages that the law does not allow. Therefore, they should not be motivated by argument to hold as one of their objectives, in arriving at the amount of their verdict, the punishment of the defendant or the deterrence of others.

Plaintiff’s reference to criminal cases is inapposite. The jury’s assessment of punishment in a criminal trial is exactly that— punishment. It compensates no one and is punitive in every sense of the word. Its very purpose' is to punish and deter.

In Simmons v. Jones, 361 S.W.2d 860 (Mo.App.1962), plaintiff received a verdict for $5,000.00 actual and $1,000.00 punitive damages. On appeal the court held the punitive damage instruction to be erroneous but was able to correct the error by ordering a new trial on damages unless plaintiff remitted the punitive award of $1,000.00, in which event the judgment for $5,000.00 actual damages would stand affirmed.

In the instant case there is no method by which this court can know how much of the verdict represented the jury’s response to plaintiff’s plea for a punitive sum. It may be argued that this assumes the jury included a punitive sum in its verdict. The answer to that is that we do assume that the jury did what it was invited to do by plaintiff’s argument and included some sum of money in its verdict to deter others from like conduct but, as noted supra, we do not know how much of the verdict represented punitive damages and, therefore, the remittitur solution is not available to correct the error.

Plaintiff contends that argument going to the question of damages can be prejudicial only if it resulted in an excessive verdict, citing McCormick v. Smith, 459 S.W.2d 272, 278 (Mo.1970); Corley v. Andrews, 349 S.W.2d 395, 403 (Mo.App.1961) and Schneider v. Dannegger, 435 S.W.2d 413 (Mo.App.1968), which clearly support that general proposition. However, in those cases the court was not confronted with a situation where an element of damages — punitive damages — which is foreign to a purely compensatory damage suit claim was injected into the case, and the jury was advised to consider that matter in arriving at the amount of its verdict. The cited cases deal with compensatory damages only and not a mixture of compensatory and punitive damages in a single sum as does the instant case.

Punitive damages are to be allowed only when the evidence supports them under proper instructions and must be returned as a separate item in their verdict. See MAI 10.00 series and verdict forms 36.11 and 36.12.

While the trial court did not specifically find the verdict to be excessive, the clear import of its ruling on the motion for new trial is that the jury was invited to award punitive damages and that the defendant was prejudiced thereby.

The difficulty of determining whether the jury did include a punitive sum in its verdict accounts for the silence of the trial court on that matter.

The usual standard for deciding an issue of excessiveness is simply not available when the question to be decided is how much was compensatory and how much was punitive.

In these circumstances, the court holds that it is not incumbent upon the defendants to demonstrate that the verdict was excessive by the usual standards in order to sustain the trial court’s finding of prejudice resulting from the injection of punitive damages into the case.

The trial court’s order granting a new trial was not an abuse of discretion.

The judgment of the trial court granting a new trial is affirmed.

MORGAN, HOLMAN, HENLEY, FINCH and DONNELLY, JJ., concur.

SEILER, C. J., dissents in separate dissenting opinion filed.

SEILER, Chief Justice.

I respectfully dissent for the reasons set forth by Wasserstrom, J., writing for a unanimous panel of the court of appeals, Kansas City district, which court reversed the order granting a new trial and remanded with directions to reinstate the jury verdict. Judge Wasserstrom said, in part, as follows:

“There remains for consideration, however, the much more troublesome question of whether this error [Judge Wasserstrom is referring to the erroneous argument] resulted in prejudice to the defendants. Plaintiff argues that any error in a jury argument concerning damages can be prejudicial only if it results in an excessive verdict; that the argument here in question did in fact go only to damages; and that since the trial court did not find the amount of damages to be excessive, it follows that there was no prejudice. We agree.
“The beginning point of this argument by plaintiff rests upon solid bedrock of deci-sional law. The rule is firmly establish that any argument going to the question of damages can be prejudicial only if it resulted in an excessive verdict. McCormick v. Smith, 459 S.W.2d 272, 278 (Mo.1970); Schneider v. Dannegger, 435 S.W.2d 413, 416 (Mo.App.1968); Corley v. Andrews, 349 S.W.2d 395, 403 (Mo.App.1961). This rule has been applied in a situation such as the one here where the claim of error respected plaintiff’s counsel having been permitted to make a jury argument which constituted a plea for punitive damages. Sparks v. Auslander, 353 Mo. 177, 182 S.W.2d 167, 173 (1944). It was held that this was not reversible error, because there was no complaint as to the amount of the verdict. The rule applies equally whether no complaint of excessiveness is made by the party or if the lack of excessiveness is found by the court. Nichols v. Blake, 395 S.W.2d 136, 141 (Mo.1965); Schneider v. Dannegger, supra; Arroyo v. Keller, 433 S.W.2d 584, 588 (Mo.App.1968); Smiley v. Bergmore Realty Co., 229 Mo.App. 141, 73 S.W.2d 836, 841 (1934).
“The next step in plaintiff’s argument is equally sound, namely that the argument had to do solely with the matter of damages. Strictly as a matter of interpretation of the argument made, counsel’s words can only be understood as a plea for a high award of damages. This construction upon the argument is especially compelled in view of the fact that under the evidence there was no substantial issue in the case as to liability. Plaintiff’s complaint here is that two operations, culminating in the removal of a portion of two ribs, were occasioned by the negligence of one of the defendant partners. Just before the operations plaintiff had gone to his family doctor with a complaint of pain in his left side. This family doctor referred plaintiff to defendants for diagnostic x-rays. As a result of these x-rays, Dr. Courier (one of the defendant radiologists) submitted a report stating that the x-rays showed a lesion ‘in the anterior end of the 11th rib’ and further recommended ‘that this lesion should certainly be biopsied.’ As recommended, a portion of the eleventh rib was removed by surgery, but it was discovered that there was nothing wrong with this rib. Subsequently it was found that Dr. Courier had incorrectly reported the eleventh rib as having the lesion, whereas the lesion referred to was actually in the tenth rib. The discovery of this error then led to the second operation for removal of the affected portion of the tenth rib. A senior member of the defendant group admitted in the course of his trial testimony that Dr. Courier's mistake in reporting the eleventh rib instead of the tenth rib was not ‘good medical practice.’
“Still further, at the time that Dr. Courier was undertaking to interpret the x-rays above referred to in 1967, the defendant group had in its files under plaintiff’s code number an x-ray taken previously in 1965, showing substantially the identical lesion in the tenth rib. The reason for the surgery undertaken in 1967 was to test a potential diagnosis of cancer, but this verification of non-malignancy would have been unnecessary had the 1965 x-rays been consulted. The surgeon who performed the two operations in 1967 testified that if he had been aware of the 1965 x-ray and that it showed that there had been no growth of the lesion for a period of 33 months, ‘we would have been pretty reluctant to accept this as being a lesion related to a possible cancer’ and he further stated, T would not have operated on this man’s rib if I had known what I know now because of the possibility of it being metastatic from cancer of the stomach.’
“Looking at all of this evidence as a whole, the liability of the defendants for failure to exercise ordinary care was overwhelming. Consequently, it is far more reasonable to construe plaintiff’s jury argument as referring to the issue of damages rather than to the matter of negligence liability which had virtually ceased to be an issue in the case by the time all the evidence was in.
“The necessary next step in plaintiff’s argument is to establish that the verdict was not excessive. This conclusion also follows inexorably from well settled principles of law. The first of these principles is that when a trial court grants a new trial on a specified basis, that ruling is deemed to constitute an overruling of the motion for new trial on all other grounds. Burnett v. Johnson, 349 S.W.2d 19, 24 (Mo.1961); Took v. Wells, 331 Mo. 249, 53 S.W.2d 389 (1932); Hoehn v. Hampton, 483 S.W.2d 403, 407 (Mo.App.1972). In the present case, the defendants in their motion for a new trial did complain, among other things, that the verdict was excessive. However, under the rule stated above, the action of the trial court in granting the new trial solely on the ground of error in the jury argument in effect overruled the contention that the verdict was excessive.
“Of course it is permissible for the defendants as respondents here to urge that the trial court should have found the verdict to be excessive. However, in order to do so it is incumbent upon defendants to assume the burden of demonstrating error on the part of the trial court in this respect. State ex rel. Sturm v. Allison, 384 S.W.2d 544, 547 (Mo. banc 1964); Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548 (banc 1931); Taylor v. Cleveland, C., C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W.2d 69 (1933); Porter v. Chicago, B. & Q. R. Co., 325 Mo. 381, 28 S.W.2d 1035 (1930); Dietrich v. Cape Brewery & Ice Co., 315 Mo. 507, 286 S.W. 38 (1926); Reed v. Swift & Co., 117 S.W.2d 636 (Mo.App.1938).
“Defendants have wholly failed to assume the burden above referred to. The closest they come in this respect is a statement in one of their points that prejudice to the defendants ‘could have been determined either by the excessiveness of the verdict or the injection of improper issues into the trial, or both.’ However, defendants in their brief state that ‘[wjhether or not such finding be based on excessiveness of the verdict . . . is of no import.’ Unfortunately for them, the legal rule is to the contrary. If they seek to justify a finding of prejudice by a claim that the verdict was excessive, then that becomes a key issue upon which they have the burden of demonstration. It simply will not do for them to try to brush this matter off by saying that it ‘is of no import’.
“The ultimate reliance by the defendants with respect to this matter of prejudice rests on the fact that the trial court did find in the order granting the new trial that ‘defendants have been prejudiced and they were deprived of a fair trial.’ That ‘finding’, which is more properly merely a conclusion, cannot stand in face of the foregoing principles of law already discussed. The present contention is quite similar to the argument presented to and rejected by the Supreme Court in Mosley v. St. Louis Public Service Co., 301 S.W.2d 797, 800 (Mo.1957). In that case, a new trial was granted for an alleged erroneous argument. The trial court further found that because of the alleged error, ‘plaintiff did not receive a fair and impartial verdict.’ Although the Supreme Court on appeal found that the argument had not been reversibly erroneous, the plaintiff nevertheless tried to sustain the ground for a new trial on the theory that the trial court had inferentially found the verdict inadequate and against the weight of the evidence. The Supreme Court held that no such inference could be drawn, in view of the rule that a stated ground for granting a new trial in effect overrules all other grounds, including those being argued by the plaintiff. In this respect, the court explained:
‘If the trial court had considered that these grounds were meritorious it is reasonable to assume that they would have been specifically included in the order granting the motion for new trial. Upon appeal, an order sustaining such a motion upon stated grounds is treated as having the effect of overruling the motion as to other grounds set forth therein. Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548. It thus becomes apparent that we could not follow the foregoing contentions of plaintiff without placing the trial court in the inconsistent position of having overruled the motion upon the two grounds heretofore mentioned, and in the next breath having sustained the motion upon the same grounds by reason of the implications plaintiff contends are necessarily inherent in assignment No. 6.’

That reasoning in Mosley is applicable here.

“Under the facts of this case and the law applicable thereto, the closing argument did not legally prejudice the defendants. The order granting a new trial, therefore, cannot stand.”

To what Judge Wasserstrom said above I would add these observations: We are affirming the giving of a new trial to defendants because of a possibly faulty argument (as the majority opinion says, it is debatable whether the argument truly is a call for punitive damages), even though no one is able to point out where defendants have been harmed or can be sure that the jury considered any of its verdict to be punitive rather than compensatory. We are insisting that defendants have a perfect trial. We are departing from what we have said time and time again about harmless error not requiring a reversal. Under the views espoused in the majority opinion, the same outcome would prevail had the verdict been $25,000 or $5,000 instead of $105,000. The argument still would have been improper, the trial court would not have ruled the verdict excessive, but again could have found the argument prevented defendant from having a fair trial and we would then have to affirm the action of the trial court in giving a new trial, even though the error was harmless.

This was a case of conspicuous negligence on the part of the defendants. There could not have been any serious question as to liability. The injuries and damages were severe. There is no showing defendants have been harmed by the argument made and we should treat this as harmless error at most.

I would return this case as having been improvidently transferred and would let stand the opinion of the court of appeals.


author: HENLEY, Judge.

text:
    WILSON & CO., INC., Plaintiff-Respondent, v. DEPARTMENT OF REVENUE, Defendant-Appellant.
    No. 58940.
    Supreme Court of Missouri, Division No. 2.
    Jan. 12, 1976.
    Robert H. House, Asst. Atty. Gen., Jefferson City, for defendant-appellant.
    George S. Huff, Huff & Huff, Marshall, for plaintiff-respondent.
   HENLEY, Judge.

The question presented in this case is whether the conversion of live hogs into marketable portions of fresh meat and other products is “manufacturing” within the meaning of § 144.030, subsection 3(4), providing for exemption from the sales and use tax of certain machinery and equipment purchased and used to establish new or expand existing manufacturing plants in this state. We hold that it is manufacturing.

In late 1973 Wilson & Co. (hereinafter Wilson or plaintiff) erected at Marshall, Missouri, a new hog slaughtering and packing plant in which it installed machinery and equipment purchased for use in that process. This machinery and equipment had a total value of $3,092,431.74. Of that amount sales/use tax was paid by Wilson to the state on $21,942.92, leaving a balance of $3,070,488.82 on which no tax was paid. Following an informal hearing, the Director of Revenue on May 17, 1974, assessed a sales/use tax of $92,114.66 plus interest. Thereafter, Wilson sought a reassessment and, as a result of a rehearing in connection therewith, this plaintiff and the Department of Revenue (defendant) entered into a stipulation in which they agreed: (1) that of certain machinery and equipment (separated and described in the stipulation) purchased and used in the facility some was taxable and some was exempt from the tax; and (2) that they were unable to agree upon and there remained between them a dispute as to whether certain other machinery and equipment (described in the stipulation) purchased for and used in the facility and having a value of $2,517,497.84 was exempt from the tax under § 144.030.3(4).

Shortly thereafter, plaintiff commenced this action under § 144.685 seeking review of defendant’s order assessing the tax upon the above-mentioned machinery and equipment having the agreed value of $2,517,-497.84 and a judgment “reversing the order of assessment.” Judgment was for plaintiff and defendant appealed. Construction of a state revenue law is involved; hence, this court has appellate jurisdiction. Mo. Const. Art. V, § 3.

The machinery and equipment, the taxa-bility of which is in dispute, is installed in plaintiff’s new plant and arranged to function and be utilized as parts of a “mass-production line” or facility running through several departments and rooms of the plant. It is no doubt designed to handle several thousand hogs per day and employ several hundred persons, as plaintiff suggests in its verified petition.

The facts are not in dispute. The process by which the animal is transformed into edible meat ready for human consumption and into other products begins in the “kill and cut” department. As the hog on hoof enters this department he is stunned with an electrical device, immediately stuck with a knife and killed, and hung from an overhead conveyer which carries the body to a scalding tub where the hair is soaked and loosened. From there the carcass is carried through a dehairing machine, to and through a singeing apparatus, and then to a polisher were any remaining hair or dirt is washed and polished off. Leaving there, the conveyer system carries the carcass through the dressing chain where it is shaved, the head and entrails removed by hand, the body cut in half by a manually operated power saw, rewashed, and deposited in the cooler for 12-14 hours which lowers the meat temperature to approximately 37 degrees. From the cooler the two halves of the carcass go to the “cut” room of the department where they are cut up by various hand-knife, saw and mechanical means into hams, shoulders, loins and ribs, leaving only the belly and fat back. The belly is then separated from the fat back by a power-operated stationary knife. In the meantime, the entrails which were removed in this department have moved on direct to the “meat specialty” department. The several cuts of meat then move to the “converting” room.

In the converting room, the cuts of meat above described are reduced in weight by hand trimming, and further cut, trimmed, or deboned to meet the specifications of a particular order of a customer. Most of these cuts of meat are sold to wholesalers, processors or manufacturers. None of the meat is smoke-cured at this plant. After the trimming and' deboning, these cuts move to the “denatured pack” department.

The entrails which came from the “cut” room are joined by the ears, snouts and brains in the “meat specialty” department where they are again cleaned, trimmed, washed and chilled, and packed ready for shipping.

In the “denatured pack” department, into which the trimmed or deboned cuts of meat have moved, two functions are performed. One, the meat is inspected by government inspectors and separated into that which is “fit” for human consumption and that which is “unfit.” Two, the “fit” and “unfit” are then again cleaned and chilled, and separately wrapped and packaged ready for shipment. The packages of meat which the inspection has determined to be unfit for human consumption are sold to animal feed producers.

The waste materials from the hog, such as the blood, hair, inedible greases, etc., have, during this process, gone direct to the “inedible rendering” department where it is rendered,' dried, cooked and stored in silos ready for shipment to soap makers or animal feed producers.

The energy, other than human, necessary for the operation of this “production line” comes from the “power” department which employs miscellaneous electric motors and switch controls, water pumps, boilers, air compressors, and ammonia compressors and other refrigeration equipment.

Defendant contends that the purchase of the machinery and equipment used in the above-described operation is not exempt from the sales/use tax, because it is not “used directly in manufacturing * * * a product * * * intended to be sold ultimately for final use or consumption.” Defendant argues, as we understand the argument, “that manufacturing does not include mere processing” of a hog by slaughtering and butchering; that for this processing to be manufacturing it must also include, for example, the making of sausage and the smoking or otherwise curing or seasoning of bacon and ham.

Subsection 3(4) of § 144.030 provides that the following machinery and equipment shall be exempt from the sales/use tax:

“Machinery and equipment purchased and used to establish new or to expand existing manufacturing, mining or fabricating plants in the state if such machinery is used directly in manufacturing, mining or fabricating a product which is intended to be sold ultimately for final use or consumption.”

Three recent decisions of this court have considered what is manufacturing within the meaning of this section. West Lake Quarry and Material Company v. Schaffner, Director, Department of Revenue, 451 S.W.2d 140 (Mo.1970), involved, inter alia, the processing of rock after its delivery from the quarry to plaintiff’s plant. The processing included grinding and crushing the rock and sorting it into various sizes for many different commercial uses. The court held that this process, which took something practically unsuitable for any common use and changed it so as to adapt it to a common use, is manufacturing, and the machinery and equipment purchased for and used in that process is entitled to the exemption afforded by § 144.030, subd. 3(4). 451 S.W.2d at 143[l-2],

Heidelberg Central, Inc. v. Director of Department of Revenue, 476 S.W.2d 502 (Mo.1972), involved “job-printing,” the products of which included business forms, stationery, printing advertising, postcards and church bulletins. The court held that this process involved the production from raw materials of new and different salable articles suitable for new and different uses, and was manufacturing; that the machinery and equipment purchased for and used in that process is therefore entitled to the exemption afforded by § 144.030, subd. 3(4). 476 S.W.2d at 506[1, 2].

State ex rel. AMF Incorporated v. Spradling, Director of Revenue, 518 S.W.2d 58 (Mo.1974), involved the process of retreading a worn tire carcass and making it usable. The court held that this was not manufacturing within the meaning of the sales tax exemption statute, but was “simply the repair of a tire by furnishing it with a new tread by cementing, molding, and vulcanizing * * * tread upon the bare cord fabric of a worn tire * * The court distinguished this case from the West Lake and Heidelberg cases, saying that this process took a tire, originally manufactured so as to be suitable to a common use, and repaired and restored it to its originally intended common use, whereas the process in those cases “took something * * * practically unsuitable for common use, and changed it to [a] new and commonly usable * * * ” item.

We have considered the cases from other jurisdictions cited by the parties. Most are distinguishable from this case in one way or another. Those that are comparable are not persuasive.

The West Lake and Heidelberg cases are controlling. The conversion of a live hog into marketable portions of food suitable for human consumption and into other marketable products is manufacturing within the meaning of § 144.030, subd. 3(4). It is: a “process which took something practically unsuitable for any common use and changed it so as to adapt it to * * * common uses”; “the production from raw material of new and different salable articles for new and different uses.” The machinery and equipment used in this process, described in the parties’ stipulation as being that about which there remained a dispute between them, is exempt from a sales/use tax thereon.

The judgment is affirmed.

All concur.

      . Reference to sections of statutes are to RSMo 1969 and V.A.M.S.


author: SHANGLER, Judge.

text:
    STATE of Missouri, Respondent, v. Perry BLAIR, Appellant.
    No. KCD 27435.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Motion for Rehearing and/or Transfer Denied Jan. 12, 1976.

      Gary Eldredge, Eldredge & Sterling, Kansas City, Lee M. Nation, Law Student certified pursuant to Supreme Court Rule 13, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The defendant was convicted by a jury of first degree murder on an indictment found against him for that offense, and was sentenced to a term of life imprisonment. The jury verdict rejected the contentions of the defendant [submitted by proper instructions] that he was not guilty by reason of mental disease or defect excluding responsibility under § 552.030 and that the homicide was in lawful self-defense.

On this appeal, the defendant through his counsel contends for acquittal on the grounds that, as a matter of law, the State failed to prove beyond a reasonable doubt the first degree elements of deliberation and premeditation and, on the submission of self-defense, the nonexistence of justifiable homicide. The brief of counsel contends also for a new trial because of error in the admission of bloody photographs of the victim. These issues are augmented by the pro se brief of the defendant which contends that the indictment conferred no jurisdiction over his person or the subject matter of the offense since the grand jury proceedings which returned it were suspended by operation of law by the prior order of the circuit court for his mental examination to determine his fitness to proceed.

The procedural events which bear on this pro se jurisdictional contention originate in the Magistrate Court of Jackson County where the defendant was accused by complaint of first degree murder. While the cause was pending in that tribunal, a grand jury was empaneled in that county to inquire into the same offense. Then, on June 1,1973, while the charge was pending in the magistrate court and while the grand jury inquest continued [and thus before any formal accusation by information or indictment bound the defendant to a felony jurisdiction], the defendant laid before the circuit court his motion for mental examination to determine his fitness to proceed [§ 552.020] and his mental responsibility at the time of the offense charged [§ 552.030]. The motion was allowed by the circuit court and the defendant was delivered to the hospital at Fulton for those determinations. Then, on June 8, 1973, the grand jury returned an indictment which accused the defendant of the murder, and on August 22, 1973, the defendant was formally arraigned on the charge in the circuit court. On that date, the charge pending in the magistrate court against the defendant for the same offense was dismissed by the State. The indictment resulted in the conviction from which the defendant now appeals.

The defendant contends the indictment [and hence the conviction] returned against him was invalid because the order of the circuit court which submitted him to mental examination under § 552.-020(2) was a determination that defendant lacked the capacity to proceed, and in that circumstance, § 552.020(7) suspended proceedings against him; thus the grand jury inquest, then pending, was discontinued by operation of law and was without jurisdiction to return the indictment against him.

The relevant provisions of § 552.020(2) as they bear on the issue recite:

Whenever any judge or magistrate has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed he shall, upon his own motion or upon motion filed by the state or by or on behalf of the accused, by order of record, appoint one or more private physicians to make a psychiatric examination of the accused or shall direct the superintendent of a facility of the division of mental diseases to have the accused so examined by one or more physicians whom the superintendent shall designate.

And the relevant provisions of § 552.020(7) recite:

If the court determines that the accused lacks mental fitness to proceed, the proceedings against him shall be suspended and the court shall commit him to the custody of the director of the division of mental diseases for so long as the unfitness endures or until the charges or proceedings are disposed of according to law. (Emphasis added.)

The plain wording of these statutes dispels the assortment of premises which gird the jurisdictional contention of the defendant: It is the adjudication after mental examination that the accused lacks fitness to proceed — and not the preliminary order for that inquiry — which suspends the proceedings against the defendant. And, in fact, at the commencement of the trial on May 6, 1974 [long after June 8, 1973, when the indictment was returned] the trial court determined — in accordance with the report which issued on the June 1, 1973, order for examination and the subsequent report on the September 23, 1973, order for re-examination — that the defendant was fit to proceed. That adjudication has gone without dispute by the defendant both at the trial and here. Accordingly, we do not respond to the contention that the suspension of the proceedings under § 552.020(7) contemplates discontinuance of the grand jury function against a defendant found unfit to proceed in a separate accusation.

On the next point, the defendant concedes that the evidence established a willful homicide, but contends that he was entitled to a judgment of acquittal because, as a matter of law, there was no proof that the killing was done with deliberation and premeditation, elements essential to conviction for first degree murder.

The defendant shot to death Paul Jackson, an employee of the downtown Pener Clothing Store, on the store premises. A week before the fatal event, the defendant had come to Pener’s to try on a sport coat which he fancied but [according to the testimony of the manager] was refused by Jackson because the defendant was rank with perspiration and shirtless. They commenced to argue, and once outside, the quarrel turned into a fray. The testimony of the defendant had it that Jackson, 5 feet 8 inches in stature and 200 pounds in weight, lifted the defendant, who stood 5 feet 11 inches and weighed 150 pounds, above his head, threw him to the ground, choked him, pommelled his head against the pavement, and threatened to kill him should they confront again. The defendant filed a formal complaint with the police department against Jackson for assault, but he was killed before it was served.

The testimony of the defendant describes another encounter with Jackson before the shooting which resulted in his death. He told of a random meeting at a housing development when a car which Jackson occupied pulled alongside the defendant, who was afoot, and Jackson pointed a gun at him through an open window. The defendant fled and hid, but heard the reports of four gunshots. This incident prompted the defendant to exchange a two-shot derringer, his normal accouterment, for a revolver.

On the morning of the tragedy, the defendant had gone downtown to make application for employment at the City Hall. As he passed by the Pener Store, he looked in the window and did not see Jackson. On his return, he entered the store, walked toward the back of the store, saw a man before the mirror, but did not recognize him as Jackson. Jackson turned around and, according to the defendant, held what appeared to be a weapon in his right hand. This sight made him fearful for his life, and as Jackson raised his hand in his direction, the defendant pulled out his weapon, fired at him but struck the image in the mirror, he fired again and struck Jackson dead. The defendant turned and walked out of the store.

A different version of the fatal event was given on behalf of the State by Harold House, an employee at the store. He had been engaged in conversation with Jackson, who was combing his hair before the mirror, when the defendant entered the store, walked towards the rear and fired a gun into the back of the victim:

Q. Now, did someone enter the store while you were back there in the rear of the store?
A. Yes.
Q. And did you observe that man enter the store?
A. Yes.
Q. Okay. And what happened, what did he do?
A. He came towards the back of the store, passed me to about three feet from the victim, and shot five times.
Q. And as he approached the victim would he be facing the victim directly face to face, or how were they positioned?
A. No, he was facing the back of the victim.
Q. Did you see that man walk to the back of the store? How was it that he got to the back of the store?
A. Oh, he just walked in a casual manner, you know, a normal manner.
Q. He didn’t run?
A. No.
Q. Now, what happened after he got within that three-foot distance of the victim?
A. Well, he started firing a gun into the back of the victim as the victim tried to move away from him.
Q. Did you see the gun?
A. Yes.
Q. When was it that you saw the gun?
A. When he had it out and I saw it in the mirror.
Q. Did you see it before it was fired?
A. No.
Q. Did you see Paul Jackson do anything?
A. He raised his hands.
Q. Was this before or after the gun was fired?
A. Before.
Q. After Mr. Jackson raised his hand what happened?
A. I saw the weapon in the mirror.
Q. Then what happened?
A. Then he began firing it and Paul tried to move away.
Q. Before Mr. Jackson began to try to move away, how many times did you hear it fired?
A. Twice.
Q. And then what happened?
A. Then as Paul was moving away he— as Paul was moving away the defendant followed him around with the gun and fired into his back.

The other evidence presented by the defendant was on the issue of mental disease or defect excluding responsibility formally tendered as a defense as required by statute. It was the testimony of Dr. Zwerenz that the killing was an impulse-driven act, and that at the time of the conduct alleged against him, the defendant was suffering from a mental disease which manifested in delusions of persecution. This conclusion was contradicted by Dr. Bratkowski who testified for the State that at the time of the event the defendant had the capacity to conform his conduct to the requirements of law.

The jury rejected the evidence of mental disease or defect excluding responsibility as well as the evidence of self-defense and convicted the defendant of first degree murder.

Conviction for first degree murder requires proof beyond a reasonable doubt of a willful, deliberate, premeditated killing of a human being with malice aforethought. In law, “ ‘[deliberation is but prolonged premeditation . . . in a cool state of the blood’ ”. State v. Mitchell, 408 S.W.2d 39, 43[4] (Mo.1966). That standard of proof was submitted to the jury by MAI-CR 6.02 on the deliberation element for a conviction of first degree murder. The finding by the jury of deliberation, as well as the willfulness and premeditation elements of the offense, however, may be inferred by the circumstances attending the homicide. State v. Davis, 400 S.W.2d 141, 145[1-4] (Mo.1966).

The contention of the defendant is that as a matter of law the evidence not only does not prove that the defendant reflected coolly upon taking Jackson’s life, but that in fact he lacked the capacity to formulate that state of mind.

The evidence considered most favorably to the verdict shows that after the assault upon him by Jackson, the defendant exchanged his derringer for a weapon of more puissant caliber; that thus armed, he went to the store premises where Jackson worked and would be found, walked directly to the rear of the store and fired five shots into the back of the victim as he was standing before a mirror. On this evidence, the jury could have found that the defendant turned over in his mind the thought of killing Jackson before doing the deed.

The cognate argument of the defendant on this point contends for the doctrine which often goes by the misnomer “diminished responsibility”. That principle, adopted into the law of Missouri by § 552.030.-3(1), allows evidence of mental disease or defect “[t]o prove that the defendant . did not have a state-of mind which is an element of the offense”. This means that even where a jury finds the proof falls short of exculpation for criminal responsibility by reason of mental disease or defect, that evidence may be used relevantly to prove the defendant lacked a mental element essential to conviction of a higher degree of an offense, so that he is guilty of only the lesser degree of the crime. State v. Anderson, 515 S.W.2d 534, 537[1] (Mo. banc 1974).

The defendant concedes that the jury, on the contradictory medical evidence, could have found against his defense of mental disease or defect excluding responsibility, but contends that the medical evidence of his lack of capacity to formulate the deliberate or premeditated design to commit murder in any degree was undisputed and entitled him to an acquittal of murder. A jury is not obliged, however, to accept conclusions of medical experts even when unopposed, but may accord them as much credit as the jury may consider them entitled to under all the circumstances. State v. Bannister, 339 S.W.2d 281, 282[3] (Mo.1960). The jury had the right to refuse the inference offered by the testimony of Dr. Zwerenz that the killing was prompted by a fear born of a diseased mental process and accept, rather, evidence that the homicide was the result of a methodical purpose of the defendant to confront and kill.

The next contention is that defendant was entitled to a judgment of acquittal at the close of the evidence as a matter of law, because the evidence of the defendant of a lawful self-defense was not rebutted by the State. The defendant misconceives the postulate he argues. In our law, a defendant has no burden on the issue of self-defense. All that is required to raise the issue is that there be a prima-facie showing, from any evidence in the case, of the elements of self-defense. When that issue is raised, the burden rests on the state to prove beyond a reasonable doubt that the killing was not done in self-defense. State v. Minnis, 486 S.W.2d 280, 284[3-5] (Mo.1972); State v. Davis, 342 Mo. 594, 116 S.W.2d 110, 112[6] (1938). The defendant construes this to mean that, since there was no evidence to contradict his testimony that he thought the black object [a hair comb] Jackson held in his hand before the mirror was a weapon or the medical evidence that his act of self-defense was a response engendered by a diseased mental process, the proof of justifiable homicide was uncontra-dicted and thus the offense was not a sub-missible jury issue.

As we have noted, the elements of first degree murder are deliberation, premeditation and malice. State v. Anderson, 515 S.W.2d 534, 537[1] (Mo. banc 1974). When self-defense appears in the trial of a murder, the absence of justification is proved— not [as the defendant supposes] by contradictory evidence of the defendant’s state of mind — but by evidence that the killing was done with malice, an essential element of homicide. State v. Malone, 327 Mo. 1217, 39 S.W.2d 786, 790[5] (1931); Perkins on Criminal Law, 2d ed., pp. 48-51. The conviction of the defendant rests on such proof, and this point of error is denied.

The final contention is that the court erred in the admission of seven bloody photographs taken in color. Only four of them, exhibits 3, 6,17 and 18, have been filed with us, so our comments are governed by what is apparent from them. The defendant contends that since there was eye-witness testimony of the event and that defendant conceded the identity of the victim and that he fired the fatal shots, these photographs served no legitimate purpose. Three of the photographs depicted the victim, Jackson, lying in a pool of blood on the floor where he fell; the other, with the body disrobed in a supine position.

The rationale which validates photographs as evidence is that such depictions are superior than words as a means of description. State v. Floyd, 360 S.W.2d 630, 632[1-3] (Mo.1962). Photographs of the corpse of the victim of a homicide, may be shown in evidence, even if inflammatory, if they tend to prove any material element of the State’s case, or corroborate the oral testimony of the State or refute defense testimony. State v. Jackson, 499 S.W.2d 467, 472[5-8] (Mo.1973). The most obvious materiality of these exhibits was both as a corroboration of the testimony of the pathologist that the gunshots entered the victim in the back, and a refutation of the testimony of the defendant that the sight of Jackson facing him with a weapon-like object in his hand, incited the fear for his life which prompted him to shoot Jackson.

The photographs were properly admitted.

The judgment is affirmed.

All concur.

      . During the pendency of the appeal, the defendant moved to allow a supplemental brief, pro se. Our reference to the trial record disclosed that the defendant acted pro se in numerous incidences of the defense so, in the particular circumstances, his motion was allowed in this court. Accordingly, we consider and rule the single point raised by the supplemental appellate brief. We discountenance, however, the congeries of points raised in two supplemental reply briefs, pro se, merely reargument of some positions and presentation of others properly for original argument.

      . We do respond to this extent: were the contention of the defendant otherwise valid that an order for mental examination for fitness to proceed under Chapter 552 operates to suspend all other proceedings against that defendant, including a grand jury inquisition, the order for his mental examination entered on June 1, 1973, before the indictment was returned on June 8, 1973 [and therefore before the circuit court acquired jurisdiction over the defendant by means of a formal accusation] was without authority of law (Constitution of Missouri, 1945, Article 1, § 17) and could not have served to suspend the indictment under which the defendant was convicted.


author: DIXON, Judge.

text:
    William C. JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27512.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Motion for Rehearing and/or Transfer Denied Jan. 12, 1976.
    Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, R. William Bloemker, Asst. Public Defender, Kansas City, for appellant.

      John C. Danforth, Atty. Gen., D. Brook Bartlett, First Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Movant appeals from a trial court order denying relief on a motion to vacate his 10-year sentence for assault with intent to rob with malice. The sentence was imposed upon a plea of guilty.

The trial court entered specific findings and conclusions denying substantive relief and refusing an evidentiary hearing. Fifteen days after that disposition of the initial 27.26 motion, the movant filed what is denominated as an “amended motion” which was summarily overruled by the trial court.

Movant argues, first, that he was entitled to an evidentiary hearing and, second, that movant should have been permitted to withdraw his plea because his plea was not entered into knowingly and voluntarily because he “had been misled, misinformed and coerced into entering such a plea.”

In support of his first contention, movant relies upon the allegation of his initial motion that “[p]lea of guilty [was] judicated [sic] upon psychological coercion employed by court appointed attorney Bruce Simon to extract statements from movant, William C. Johnson without affording movant Johnson his constitutional rights.” The conclusionary statement of the motion is fleshed out with factual allegations contained only in appellant’s brief. Various claims of specific misrepresentations concerning the sentence movant would receive are relied upon to support both the argument that an evidentiary hearing should have been afforded and that the movant was entitled to substantive relief under his second claim of error.

A review of the transcript of the hearing at which defendant pleaded guilty to the assault charge fully supports the court’s action in denying movant both substantive relief and an evidentiary hearing. An examination of the transcript shows that the trial court, in full compliance with Rule 25.04, conducted a thorough and extensive examination of both movant and his attorney. During the course of this examination, movant clearly told the court: that no threats or promises had been made to induce his plea; that he knew the trial court was free to set the penalty assessed within the statutory range of two years to life; that he understood that, if he elected to be tried by a jury, and was found guilty, the jury could recommend a punishment it favored within the statutory range; that he was aware that the court and the prosecutor had discussed a possible sentence and that ten years had been mentioned, but that the court was not bound by the prior discussion; and that the only reason he was pleading guilty was because he was in fact guilty. On the face of the files and records in this case, then, it is clear that the facts elicited at the guilty plea hearing fully refute the bare allegation that movant’s plea of guilty was “psychologically coerced” by members of his family, the prosecuting attorney and his counsel during his discussion of a possible sentence. In this posture, movant is clearly not entitled to either substantive relief or an evidentiary hearing. Smith v. State, 513 S.W.2d 407 (Mo.banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974); Brown v. State, 526 S.W.2d 55 (Mo.App.1975).

Movant has not briefed in any way the action of the trial court in summarily ruling on his “amended motion” filed fifteen days after the ruling on the initial motion. Thus, the issues, if any, raised in the “amended motion” are waived. Shubert v. State, 518 S.W.2d 326 (Mo.App.1975). In any event, the pleading denominated an amended motion is clearly an improper second or successive motion under Rule 27.-26(c) and (d) attempting to raise in a different fashion the identical issues of the first motion. As noted, the detailed record of the movant’s guilty plea also refutes the allegations of the “amended” petition, and no relief could or should be afforded aside from the question of the failure to include the claims in the first motion.

The judgment denying the motion is affirmed.

All concur.