author: HENLEY, Judge.

text:
    In re the MARRIAGE OF Joan C. BRETHAUER, Petitioner-Appellant, and Leo Charles Brethauer, Respondent-Respondent.
    No. 60264.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.

      Samuel H. Liberman, II, St. Louis, for petitioner-appellant.
    Walton F. Lemay, Clayton, for respondent-respondent.
   HENLEY, Judge.

This is an action for dissolution of the marriage of Joan C. Brethauer (petitioner) and Leo Charles Brethauer (respondent). The trial court dissolved the marriage and awarded custody of the younger of two sons to petitioner and the other to respondent. In addition to awarding monthly maintenance to petitioner and support for the son in her custody, the court also entered judgment dividing property acquired by one or both of the parties. Petitioner appealed from this judgment to the Court of Appeals, St. Louis district, complaining only of the division of marital property, asserted to be 1% to petitioner and 99% to respondent. The court of appeals affirmed, but the case was transferred to this court when one judge dissented and certified that he deemed the majority opinion to be contrary to previous decisions of appellate courts of this state.

The parties were married in September, 1950. Four children were born of the marriage, only two of whom, Michael (born 1960) and Timothy (born 1965) were still at home when their parents separated in February, 1975.

Petitioner left the family home in that month, while respondent was out of the state on a business trip. She, with Timothy, moved into an apartment in University City leased in the name of Mark Buchalter, a friend she had known for three years. The older son, Michael, continued to live in the family home in Ballwin with his father.

Petitioner admits that Mr. Buchalter visits her at the apartment “fairly often” and stays overnight on occasion; that she has had sexual relations with Mr. Buchalter since she separated from her husband, but never when Timothy was present.

Petitioner was employed full-time as a drapery seamstress from 1953 to 1968. During this period she worked as a seamstress in the drapery department of a department store and later as head of the department. At another time she had her own drapery business. Her earnings were approximately $200 per week. She returned to work on a part-time basis in June, 1974, but had to quit because of a “back condition,” which, she says, continues to bother her. Her average earnings for the part-time work were $200 per month. She has contributed all her earnings to the support of the family.

Before her marriage to respondent she and her brother inherited from their mother a farm located in Illinois. She testified that the value of her interest is $5,000. There is no evidence showing whether this property produces income and, if so, how much, if any, is available to her each year, after payment of taxes and its operating expenses, for use to help support her and Timothy.

Respondent is employed by McDonnell Douglas Corporation and has been for more than 25 years. He has received a salary increase in each of the last several years. In 1975, his salary was approximately $28,-000. After deductions for federal and state taxes, premiums for insurance and contributions to his retirement fund or Savings Plan, his “take-home” pay was $1,399.84 per month.

Two major items of property were acquired by the parties during their marriage: (1) their home of the value of $35,000 (minimum) encumbered by a mortgage on which the unpaid balance is $18,000; and (2) an interest in “Fund C McDonnell Douglas Corporation Salaried Employees Savings Plan” which consists of 966 shares of stock in the corporation. Respondent’s evidence is that his interest in the Savings Plan has a value of approximately $18,000; but, that it is “not vested.” Other assets acquired by them during the marriage and the estimated minimum value of each is: (1) 1971 Oldsmobile, $400; (2) 1962 Triumph, $200; (3) furniture, $700; (4) two unimproved lots in Charlotte county, Florida, $900; a cheeking account, $2.38.

Petitioner testified that monthly living expenses of herself and Timothy, including tuition for Timothy at a parochial school, is $745. The court awarded her maintenance of $250 per month and support for Timothy of $250 per month.

Respondent testified that his monthly expenses were approximately $493 for payments on the home loan, maintenance of the property, utilities, car payments and insurance. There is no evidence of the cost of his and Michael’s needs for usual living expenses.

The judgment, with specific reference to the property involved, is that the “marital property [is] divided as follows:

To Respondent: McDonnell Douglas 966 SH. Stock; Real estate at 834 West-wood, Ballwin, Missouri; two lots at Port Charlotte, Florida; 1971 Oldsmobile; furniture and furnishings at Westwood home, except loom in basement, iron table in kitchen and painting in living room and woman’s clothes to Petitioner; Lindbergh Bank checking account.
To Petitioner: One-half interest in farm at Waterloo, Illinois; 1962 Triumph automobile; * *

The court obviously erred in considering and finding that petitioner’s interest in the Illinois farm was marital property. Respondent disclaims any interest in it. Her interest in the farm was acquired by inheritance before the marriage and was therefore her separate property. Section 452.330, RSMo Supp.1973; Cain v. Cain, 536 S.W.2d 866 (Mo.App.1976), discussed in Note, Dissolution of Marriage-Division of Property Which Has Increased in Value, 42 Mo.L.Rev. 479 (1977); Jaeger v. Jaeger, 547 S.W.2d 207 (Mo.App.1977). Except for the $200 Triumph, petitioner received through this division of property nothing she did not already own. Contrary to assertions of respondent, the trial court did not set apart to petitioner as her separate property her interest in the farm. Had the court made specific findings of fact and conclusions of law, the court no doubt would have avoided falling into this error. Because the court concluded that the interest in the farm was marital property and used it in dividing such property, the judgment must be reversed for this reason alone, if for no other. The court erred also in failing to set apart to petitioner as her separate property her interest in the farm.

If we eliminate from the marital property plaintiff’s interest in the farm, and consider it as having been set apart to petitioner as her separate property, as the trial court should have done, the division made between the parties of marital property, looks like this:

To Petitioner: (Value') To Respondent: (Value)
1.1962 Triumph $200 1. Family Home $35,000.00 (Mortgage) -18,000.00
(Net value of home) $17,000.00
2. Two lots in Florida $ 900.00
3. 1971 Oldsmobile $ 400.00
4. Checking Account $ 2.38
5. Furniture $ 700.00
6. Interest in McDonnell Douglas Employees Savings Plan $18,015.00
Total $37,017.38

This division of the property between the parties is, as petitioner says: approximately 1% to her and 99% to respondent. Petitioner contends this division is not fair or just and demonstrates that the trial court did not, as required by § 452.380, consider “all relevant factors,” including those described in this section of the statutes, in dividing the property.

There is no dispute as to the dollar value of the interest in the Savings Plan. The parties agree that it was acquired during the marriage. Consequently, it is presumed to be marital property. Section 452.-330, supra. The only evidence presented relating to this question is respondent’s con-clusory statement, in response to an interrogatory, that the interest in the Plan is “not vested.” Respondent’s conclusion does not qualify as substantial evidence sufficient to rebut the statutory presumption.

Since the case must be remanded for further proceedings, the parties should be afforded the opportunity, if they desire, to present facts from which a determination may be made of the true nature of the interest in the Savings Plan. Jaeger v. Jaeger, 547 S.W.2d 207, 212 (Mo.App.1977). There are no facts in this record from which a determination may be made that the interest is not marital property. If this asset is, under the facts and the law, marital property, as the trial court determined, then it appears, on the surface at least, that the court abused its discretion in dividing the property in these proportions. See, e. g., In re Marriage of Carmack, 550 S.W.2d 815 (Mo.App.1977); In re Marriage of Cornell, 550 S.W.2d 823 (Mo.App.1977). On the other hand, if this interest is not marital property because not vested, then the trial court’s determination that it is marital property is contrary to a decision of the court of appeals in In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975). We do not express any view of the decision in Powers, believing that that is better left to another day and another case in which the facts have been fully developed and in which the trial court has made specific findings and conclusions.

That part of the judgment affecting the separate property of petitioner and dividing marital property should be, and is, reversed and the case is remanded for new trial on these issues. That part of the judgment dissolving the marriage, awarding custody of the children, and support for the child in the custody of petitioner, should be, and is, affirmed. That part of the judgment awarding $250 per month maintenance to petitioner should be, and is, reversed and remanded for redetermination of the amount of maintenance based on the facts found.

All concur.

      . Petitioner is the appellant; however, we will refer to the parties by their designation in the trial court.

      . Judge Theodore McMillian.

      . The value on June 30, 1975.

      . Powers involved the question of whether the husband’s interest in a profit-sharing retirement plan was properly subject to division as marital property under § 452.330, RSMo Supp. 1973. The court of appeals distinguished Robbins v. Robbins, 463 S.W.2d 876 (Mo.1971) and held that the husband’s interest in the retirement plan was marital property subject to division. The court’s holding was premised on a finding that the interest in the plan was “vested.” An interesting discussion of Powers may be found in Note, Domestic Relations — Husband’s “Vested” Interest in Retirement Plan is Divisible as Marital Property, 42 Mo.L.Rev. 143 (1977).


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Third-Party Plaintiff-Appellant, v. WHITEHEAD & KALES COMPANY, Third-Party Defendant-Respondent.
    No. 59906.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.
    Rehearing Denied June 15, 1978.

      Harlan D. Burkhead, Kansas City, for third-party plaintiff-appellant.
    Arthur C. Popham, Jr., Kansas City, for third-party defendant>respondent.
   SEILER, Judge.

In Sampson v. Missouri Pacific Railroad Co., 560 S.W.2d 573 (Mo. banc 1978), we affirmed a $300,000 judgment against Missouri Pacific for damages for injuries received by Robert Sampson, an employee of its consignee. Sampson was injured when he fell to the ground from the top of a three decker auto rack rail car.

The instant case arises from the attempt of Missouri Pacific, pursuant to rule 52.11 and § 507.080, RSMo 1969, to bring Whitehead & Kales Company, Inc., the manufacturer and installer of the auto rack, into the Sampson case as a third party defendant liable to Missouri Pacific for all or a part of the plaintiff’s claim against Missouri Pacific.

Missouri Pacific alleged that Whitehead & Kales was the designer, manufacturer, seller and installer of the auto rack and knew that workmen would be working on the third deck in loading automobiles; that Whitehead & Kales warranted the auto rack was merchantable and fit for the purposes of loading and transporting automobiles by rail and was not defective in design or inherently dangerous for the uses intended; that Whitehead & Kales negligently designed and manufactured the auto rack by reason of the omission of a portion of a foot rail on the third deck and failed to warn Missouri Pacific or Sampson of this dangerous condition; that Missouri Pacific had notified Whitehead & Kales of the pendency, and tendered the defense, of the Sampson lawsuit, and that if Sampson recovered from Missouri Pacific it would be by virtue of Whitehead & Kales’ original, active, and primary negligence in the above respects.

The trial court dismissed Missouri Pacific’s third party petition and denied leave to file an amended petition, taking the position the parties were both “in pari delicto, where no legal right of contribution exists among those who are not joint judgment tortfeasors, and where no ground or legal basis for indemnity is stated.”

The court of appeals, Kansas City district, affirmed the trial court’s judgment, finding that Missouri Pacific’s alleged failure to warn Sampson constituted active negligence and that it was in pari delicto with Whitehead & Kales, preventing any indemnification, citing Crouch v. Tourtelot, 350 S.W.2d 799, 807 (Mo. banc 1961), and Cupp v. Montgomery, 408 S.W.2d 353 (Mo.App.1966). We granted transfer for the purpose of reexamination and clarification of the law on non-contractual indemnity and the law of contribution. We reverse and remand.

I.

A few preliminary observations are necessary.

It should be borne in mind that the right to non-contractual indemnity presupposes actionable negligence of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo.banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); 1 J. Dooley, Modern Tort Law § 26.07, at 547 (1977).

While Missouri Pacific is asking, on the face of its third-party petition, for full reimbursement or indemnity from Whitehead & Kales, in actuality it is doing so on the basis that while both are to blame, its fault is relatively less than that of Whitehead & Kales. If Missouri Pacific had not been found guilty of some fault on the Sampson claim, this case would not be before us. Donald v. Home Service Oil Co., 513 S.W.2d at 428.

The third party rule under which Missouri Pacific is proceeding which stems from the statute passed in 1943 as explained below, expressly provides for bringing in a party who is or may be liable to the defendant “for all or part” of the claim being made against the defendant (emphasis supplied). This language does not limit the defendant to an “all or nothing” claim or recovery against the person he seeks to bring in.

Rule 52.11 was first adopted by the court July 1, 1959, to be effective April 1, 1960. Prior to that, however, in 1943, the legislature had enacted an entire new civil code, Laws 1943 at 353-97. Included therein was Missouri’s first third-party practice statute, § 20, later § 507.080, RSMo 1959, wherein a defendant was permitted to bring into the lawsuit a person not a party to the action who was liable to him or to the plaintiff for all or part of the plaintiff’s claim against him. Thus it can be said that the legislature, as a matter of policy, decided that a third party could be brought into the case where liable to the original defendant either in whole or in part for the plaintiff’s claim against him. This comports exactly with what Missouri Pacific is seeking to do in the present case.

II.

The long history of the law of joint and concurrent tortfeasor liability in our jurisprudence is in fact a rich expositional refinement of the principle of fairness. Early in Anglo-American law the “rule” developed that there shall be no contribution or indemnity between joint tortfeasors, 1 T. Street, The Foundation of Legal Liability 490 (1906), as “a necessary consequence of the principle embodied in the maxim ex turpi causa non oritur actio [out of an immoral or illegal consideration an action does not arise].” Id. The “rule” has mistakenly been attributed to Merryweather v. Nixan, 8 D. & E. 186, 101 Eng.Rep. 1337 (K.B. 1799), a case in which contribution was denied as between two intentional joint tort-feasors, the court disclaiming any effect its decision may have on “cases of indemnity”, id., by which is implied “a primary or basic liability in one person, though a second person is also for some reason liable with the first or even without the first, to a third person”. Leflar, Contribution and Indemnity Between Tortfeasors, 51 U.Pa.L.Rev. 130, 146 (1932). Rather, the “rule” in Merryweather v. Nixan, supra, is the exception, the true common law rule having been determined in Battersey’s Case, Winch’s Rep. 48 (Common Pleas 1623) that “among persons jointly liable the law implies an as-sumpsit either for indemnity [described above] or contribution [shared liability] and the exception is that no assumpsit, either express or implied, will be enforced among wilfull tortfeasors or wrongdoers.” Note, Contribution Between Persons Jointly Charged for Negligence — Merryweather v. Nixan, 12 Harv.L.Rev. 176, 177 (1898).

What is unmistakable about the common law of joint or concurrent tortfeasor liability, in whatever configuration it may be understood, is its attention to the relative weight of fault. Negligent commission of a tort was “bad” but not as “bad” as the intentional commission of a tort, Batter-sey’s Case, supra, to which the response of courts was to refuse to “adjust among intentional wrongdoers the damage flowing from the wrong . . [which] would aid intentional wrongdoers in avoiding the consequences of their acts.” Leflar, supra at 179. For those whose joint torts were not wilful, malicious, intentional, unlawful, or immoral, contribution would be allowed even though they were in pari delicto. Note, supra, 12 Harv.L.Rev. at 182. These rules and maxims were developed and sustained by application of fairness and the “ethical principles involved.” Id. at 194. Actually, “it seems not to make much difference what formal explanation is accepted, so long as it is understood that the right to contribution is not necessarily based on a voluntary consensual transaction between the parties. The essential thing is the attempt to be fair as between persons subjected to a common legal liability.” Leflar, supra at 137; See R. Pound, The Spirit of the Common Law 20-31 (1921). Nonetheless, in Missouri the courts did not restrict denial of contribution or indemnity to intentional tortfeasors. The general rule has been there is no right to indemnity or contribution between concurrent or joint tort-feasors in pari delicto, except as provided by statute. E. g., Union Electric Company v. Magary, 373 S.W.2d 16, 22 (Mo.1963); Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); Berkson v. Kansas City Cable Ry. Co., 144 Mo. 211, 217, 45 S.W. 1119, 1120 (1898).

III.

Despite the early common law “rule”, we do permit indemnity to some extent' between non-contractual concurrent tort-feasors in Missouri. Indemnity is theoretically tied to the principle of fairness. It was once described by Learned Hand as “an extra form of contribution.” Slattery v. Marra Brothers, Inc., 186 F.2d 134, 138 (2d Cir. 1951). It unquestionably has a strong flavor of unjust enrichment flowing from the realization that while two tortfeasors may be jointly liable each in full to an injured plaintiff, as between them there may be a considerable difference in blame.

The elucidation of the distinction between concurrent tortfeasors as to their relative fault has spawned a series of court-coined terms which is “bewildering, to say the least.” Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa L.Rev. 517, 536 (1952). We ourselves have criticized them as unworkable and unsatisfactory. Donald v. Home Service Oil Co., 513 S.W.2d 426, 430 (Mo. banc 1974); Crouch v. Tourtelot, 350 S.W.2d 799, 807 (Mo. banc 1961); McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788, 793 (Mo.1959). In reality, these are all methods of weighing the degree of negligence, 47 N.Y.U.L.Rev. 815, 821 (1972), used as the basis or test determining whether a moving party may be indemnified. Among them have been the distinction between “active and passive” negligence, e. g., Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., 338 S.W.2d 1, 7 (Mo.1960); “primary and secondary” duty, e. g., Hales v. Green Colonial, Inc., 402 F.Supp. 738, 740 (W.D.Mo.1975) (applying Missouri law), modified on other grounds Hales v. Monroe, 544 F.2d 331 (8th Cir.1976); a combination of “primary and active” and “secondary and passive” roles in the “negligent situation”, e. g., Johnson v. California Spray-Chemical Co., 362 S.W.2d 630, 633 (Mo.1962); or the “imputation of law” of the relationship between the indem-nitor and the indemnitee, e. g., Campbell v. Preston, 379 S.W.2d 557, 559 (Mo.1964). See generally Davis, supra at 543-44; Comment, Products Liability — Non-Contractual Indemnity — The Effect of the Active-Passive Negligence Theory in Missouri, 41 Mo. L.Rev. 382 (1976); Comment, Procedure— Third Party Practice — Non-Contractual Indemnification, 28 Mo.L.Rev. 307 (1963); Note, The Allocation of Loss Among Joint Tortfeasors, 41 So.Cal.L.Rev. 728 (1968); 30 Mo.L.Rev. 624 (1965).

Following Kansas City Southern Ry. Co., the “active-passive” test has come into general use in Missouri: e. g., Union Electric Co. v. Magary, 373 S.W.2d 16, 21 (Mo.1963); Johnson v. California Spray-Chemical Co., 362 S.W.2d 630, 634 (Mo.1962); Crouch v. Tourtelot, 350 S.W.2d 799, 809 (Mo. banc 1961); Bratten v. Sharp Enterprises, Inc., 552 S.W.2d 306, 310 (Mo.App.1977); Fields v. Berry, 549 S.W.2d 122, 127-28 (Mo.App.1977); Hays-Fendler Construction Co. v. Traroloc Investment Co., 521 S.W.2d 171, 176-77 (Mo.App.1975); Lewis v. Amchem Products, Inc., 510 S.W.2d 46, 48 (Mo.App.1974); State ex rel. Laclede Gas Co. v. Godfrey, 468 S.W.2d 693, 698 (Mo.App.1971); Western Casualty & Surety Co. v. Shell Oil Co., 413 S.W.2d 550, 556 (Mo.App.1967); Listerman v. Day & Night Plumbing & Heating Service, Inc., 384 S.W.2d 111, 118 (Mo.App.1964). We have worked ourselves into a situation where indemnity as between tortfeasors is decided on the basis of which one is guilty of “active” and which one guilty of “passive” negligence. “Passive” wins, “active” loses, no matter how great the proportion of fault may have been of the passive tortfeasor.

But how is this all important distinction determined? An attempt to define “active” and “passive” negligence as between two tortfeasors where the plaintiff, as in the present case, had earlier obtained a judgment against one of them, was made in Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., supra. The instruction, which was prior to MAI-Civil, was as follows:

“The jury is instructed that the terms passive or secondary negligence mean a failure or fault that is imputed because a duty is imposed based on some legal relation between the parties or because the duty involved arises from some positive rule of statutory law or because the duty imposed is neglected by reason of a failure to discover or correct a defect or to remedy a dangerous condition caused by the act of another who is primarily liable. The jury is further instructed that the terms active and primary negligence mean the act of creating a dangerous condition which under all the other facts and circumstances present is likely to cause injury to others.”

While this “definition” instruction passed muster in pre-MAI Civil days, by current requirements it is unwieldy, complex, and replete with terms which themselves require definition before it is understandable by a jury. In addition, while it is supposed to be a definition which will enable the jury to determine which tortfeasor is primarily liable, it assumes that fact is already known because part of the definition is couched in terms of failing to discover or remedy a dangerous condition caused by the act of another “who is primarily liable.” It also assumes to be a legal “one size fits all” device. In the case before us it cannot be denied for example, that a portion of the foot rail was missing and that no one warned the injured employee, Robert Sampson. If we assume for purposes of discussion that the auto rack was dangerous as designed or manufactured by Whitehead & Kales for the use which was certain to be made of it, and if we further assume that Missouri Pacific was negligent in furnishing the auto rack as a place to work, then it can be said with equal force that both created a dangerous condition and hence that each is primarily liable as between themselves, which is a self-contradiction.

This is not a sensible way to fix responsibility in indemnity. It comes about by attempting to find a formula by which to excuse one of two joint or concurrent tort-feasors completely when as a practical matter they both are to blame, the true difference between them being only a matter of degree or relativity of fault. With a little ingenuity in phrasing, negligence can be made to be either “active” or “passive” as suits the writer. For example, “driving an automobile with bad brakes” or “running through the stop sign” or “using a defective crane” might be said to be “active” negligence, while “omitting maintenance of brake fluid level” or “neglecting to apply the brakes” or “failing to inspect the crane in order to discover its defectiveness” might be “passive” negligence — these are the same acts or omissions, but the outcome depends not upon the facts, but upon how someone chooses to characterize them.

In Crouch v. Tourtelot, 350 S.W.2d 799 (Mo. banc 1961), one driver, Crouch, left his automobile on the wrong side of the highway, at night, with one headlight out, near a curve, in heavy traffic, despite the fact he could readily have moved it off the highway to a position of safety. The other driver, Brown, came around the curve at an excessive speed, failed to see the stopped car and ran into it, injuring Crouch’s passenger, who filed suit against Brown. Yet Crouch, despite his unquestioned contribution to the accident, could not be brought into the case by Brown, because the latter’s negligence was declared to be “active”.

In Fields v. Berry, 549 S.W.2d 122 (Mo.1977), a guest passenger sued the host driver on a res ipsa submission where the automobile ran off the road and .struck a tree. The driver impleaded the automobile dealer and the manufacturer, based on an alleged defective power steering pump which caused her to lose control of the automobile. The various claims were tried at the same time before a jury, resulting in a $10,500 recovery for plaintiff and her husband against the driver, and a recovery for the same amount in favor of the driver against the automobile dealer on the third party claim. The driver’s instruction against the third party defendant predicated recovery upon a finding that she was negligent in reacting, immediately prior to the accident, to a difficulty in steering resulting from the defective pump. The court held this constituted “active” negligence on her part, barring any indemnity against the automobile dealer.

Our precedents give scant guidance for the avoidance of such illogical results as these.

It has been said that indemnification is dependent on the “character” of the negligence rather than the difference in the degrees of negligence of the two tort-feasors, State ex rel. Laclede Gas Co. v. Godfrey, 468 S.W.2d 693, 698 (Mo.App.1971). The problem is that we have reached the point where that “characterization” is an end in itself.

Negligence is negligence. There is no such thing as “good” negligence and “bad” negligence, or some kind of negligence which should be overlooked and another kind which should not. Nevertheless, our “active-passive” approach has produced awards of full indemnity in numerous Missouri cases, e. g., Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., 338 S.W.2d 1 (Mo.1960); McDonnell Aircraft Corp. v. Hartmann-Hanks-Walsh Painting Co., 323 S.W.2d 788 (Mo.1959); Barb v. Farmers Insurance Exchange, 281 S.W.2d 297 (Mo.1955); Western Casualty & Surety Co. v. Shell Oil Co., 413 S.W.2d 550 (Mo.App.1967); Listerman v. Day & Night Plumbing & Heating Service, Inc., 384 S.W.2d 111 (Mo.App.1964). In every instance, the indemni-tee, although a tortfeasor and liable to the original plaintiff, was declared to be only “passively” negligent and allowed full recovery. Yet the fact is that the conduct of the indemnitee in these cases was also careless and blameworthy. It usually involved failure on the part of the indemnitee to perform his duty of inspecting or warning or making certain that the work of another had been done correctly. Granted that failures and oversights of this sort would not have caused harm to the plaintiff if the other party — the indemnitor — had not also been negligent; but this should not mean that the indemnitee walks away scot-free.

Using the analogy of an old time-worn building, we have added and re-constructed so much of our law of joint and concurrent tortfeasor liability, the origins of which are ancient, that it has lost its architectural integrity and its structural balance. Only the foundation — the principle of fairness— remains undisturbed and sturdy. We have therefore determined that, steadfastly consistent with the dictates of our common law tradition and the principles of equity embedded therein, we are obligated to reconstruct upon the principle of fairness a law of joint and concurrent tortfeasor liability which is secure, predictable, and effective.

A principled right to indemnity should rest on relative responsibility and should be determined by the facts as applied to that issue. In a case such as we have before us, the jury should be instructed that if they find the third party defendant did certain acts or omissions and was thereby negligent and that the same directly contributed to cause the injuries and damage to the original plaintiff, then the jury should award the third party plaintiff such proportion of the total sum paid by it to plaintiff as corresponds to the degree of fault of the third party defendant. The two concurrent tortfeasors should be treated according to their respective fault or responsibility.

This would present no insurmountable problem to the jury. We already differentiate verdicts among joint tortfeasors where punitive damages are involved. The jury is instructed that they may find punitive damages against several defendants in different amounts, depending upon differing degrees of culpability, State ex rel. Hall v. Cook, 400 S.W.2d 39, 42 (Mo. banc 1966); MAI 10.03; MAI 36.12. A system of apportionment of damages has long been in use in Missouri in Federal Employer’s Liability Act cases, where the assessment of the extent of plaintiff’s relative fault (contributory negligence) is handled by a simple instruction that if the plaintiff is found to be contribu-torily negligent, then the jury “must diminish the sum in proportion to the amount of negligence attributable to [plaintiff] [decedent].” MAI 32.07, Notes on Use (2d ed. 1969).

Rule 71.01 defines a general verdict as “one by which the jury pronounces generally upon all or any of the issues,” so the jury’s verdict could assess damages, in accordance with the instructions, and award indemnity in an amount proportionate to the relative fault of the parties.

This could be done by ordinary third party practice such as Missouri Pacific is attempting here, or it could be done by cross-claims between codefendants.

This method of handling non-contractual indemnity will provide a clear and definite set of guidelines. It avoids deciding cases on the basis of whether conduct or noncon-duct can be characterized as active or passive. And it removes the inequity of a plaintiff being able to saddle the entire burden on one defendant while letting another equally or more culpable party go free, for whatever reason plaintiff may have.

IV.

Our contribution statute, § 537.060, RSMo 1969, originally passed December 12, 1855, Ch. 51, § 8, RSMo 1855, relaxed the common law ban on contribution in tort actions, discussed supra. It represented a change in public policy “to avoid the injustices flowing from adherence to the rule of no contribution.” Note, The Joint Tortfeasor in Missouri, 25 Wash.U.L.Q. 572, 573 (1940). It provides that “[djefendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. . . .” It is to be noted that § 537.060 is silent as to contribution between defendants other than judgment defendants. It “has no application to any proceedings prior” to judgment. Moudy v. St. Louis Dressed Beef & Provision Co., 149 Mo.App. 413, 426, 130 S.W. 476, 481 (1910).

We live in an economic and commercial environment vastly apart from the quiescent era of the 1850s during which our contribution statute was originally enacted. Now, for example, complex procedural tangles flow from the necessary development of a law of products liability. We no longer value the antique moralism that if we permit concurrent tortfeasors to share their burden we will thereby be encouraging them in the very joint negligence for which we hold them liable. To limit any apportionment of damages between tortfeasors to those whom the plaintiff has chosen to sue and against whom judgment is rendered is an inartful and capricious policy, relying in excess upon the whim and wrath of a plaintiff before concurrent wrongdoers can share liability.

Even now where there is a joint tort judgment, contribution does not automatically follow. The proportion to be paid remains to be determined. In Hays-Fendler Construction Co. v. Traroloc Investment Co., 521 S.W.2d 171, 175-76 (Mo.App.1975) the court considered a claim for contribution between two judgment tort-feasors, which judgment had been paid in full by one defendant’s insurer. Nevertheless, no contribution was allowed. The court pointed out that while a joint judgment established “joint liability” to the plaintiff, “[i]t does not determine as between the defendants which should pay the entire liability, or what proportion each should pay in case each is partly liable. That issue is not adjudicated.”

In Hays-Fendler the court concluded that despite the joint obligation to the plaintiff, the entire burden should be borne by one of the defendants (Hays-Fendler); that the other defendant’s liability was derivative and passive while Hays-Fendler’s was primary.

Similarly, in Kinloch Telephone Co. v. City of St. Louis, 268 Mo. 485, 496-97, 188 S.W. 182, 184 (1916), citing McMahan v. Geiger, 73 Mo. 145, 149, 39 Am.Rep. 489, 490-91 (1880), primary liability was held to be a defense to contribution, the court saying: “ ‘If A recovers judgment against B and C, upon a contract, which judgment is paid by B, the liability of C to B in a subsequent action for contribution is still an open question, because, as to it no issue was made or tried in the former suit. As between the several defendants therein a joint judgment establishes nothing but their joint liability to the plaintiff. Which of the defendants should pay the entire debt, or what proportion each should pay in case each is partly liable, is still unadjudi-cated.’

“The . . . [contribution] statute . applies the same rule of contribution to judgments rendered in actions on torts.”

The telephone company was held to be primarily liable and hence not entitled to any contribution, despite having paid the judgment in full.

If liability between joint tortfeasors after judgment turns on indemnity principles, then there is no sound reason why this issue should not be decided by the jury prior to judgment on the basis of relative fault. To do so would not in any way be violating the contribution statute as we have applied it, nor would there be any point in further contribution proceedings between the defendants after judgment because it would not produce any different result than the apportionment already made under the rule announced herein.

V.

The principle of fairness imbedded within our law compels this adoption of a system for the distribution of joint tort liability on the basis of relative fault. This would apply whether the tortfeasors were joined as defendants by the plaintiff or a third party defendant was added to a cause under our rule 52.11.

In either instance the ability of a plaintiff to sue and ultimately collect judgment against his or her choice of tortfeasor need not be impaired. Plaintiff continues free to sue one or more concurrent tort-feasors as he sees fit and nothing that transpires between them as to their relative responsibility can reduce or take away from plaintiff any part of his judgment. Concurrent or joint tortfeasors not sued by plaintiff, however, may now be brought in by third party practice for a determination in due course of their relative part of the responsibility, if such is the case, for the overall injury and damage to the plaintiff. A jury in the same or separate trial at the discretion of the trial court, § 507.040, RSMo 1969; rule 52.11(a); rule 66.02, should be charged with the responsibility for determining a relative distribution of fault and liability for the damages flowing from a tort, which damages will be, along with a finding of negligence, the predicate to apportionment. The interests of plaintiffs are secure; the interests of joint or concurrent tortfeasors will now be clothed in a rule based upon realism and fairness between them.

The judgment is reversed and the cause remanded to the circuit court for proceedings not inconsistent herewith.

All of the Judges concur.

      . Missouri Pacific’s petition is susceptible of being read to include negligence, warranty, and strict liability as possible theories of recovery. Missourl Pacific is, of course, at the pleading stage, free to plead as many theories of recovery as it may consider warranted. Rule 55.10.

      . By “non-contractual” indemnity we have reference to indemnity between joint tortfeasors culpably negligent, having no legal relation to each other. We do not include indemnity which comes about by reason of contracts, or by reason of vicarious liability.

      . In State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127 (banc 1948), a petition for a writ of mandamus growing out of a damage suit involving a guest passenger injured in a two-car collision, this court held that it was optional with the plaintiff whether or not to accept a third party defendant brought in by a third party plaintiff, but the court refused to hold that the statute would not apply to tort actions. The court held that the right to move for impleader was “unequivocally given” by the statute, although the statute did not change the substantive law respecting contribution as fixed by § 3658, RSMo 1939, now § 537.060, RSMo 1969. 213 S.W.2d at 131.

      . By the “principle of fairness” here we mean the promise which is derivative of economic and political freedom and personal physical mobility. That is, in exchange for the opportunity of some undertaking, we each promise all others that we will be liable for the damage which our own negligence in the undertaking has caused. This creates a shared fiduciary obligation for which the principle of fairness is a premise. J. Rawls, A Theory of Justice 348 (1971). This premise is the basis of our fault-based system of tort liability.

      . We have found no case since the advent of MAI-Civil (January 1, 1965) wherein is set forth an instruction attempting definition of “active” and “passive” negligence in an indemnity case. This is not surprising, as MAI-Civil instructions are required to be simple and brief. Rule 70.02(e).

      . The court is requesting its committee on MAI-Civil instructions to submit proposed instructions for use in non-contractual indemnity cases applying the principles set forth in this case. Members of the bar and appropriate bar committees are invited to communicate their views on the subject to the committee.

      . For other jurisdictions which have adopted this view, see, e. g., Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956) (equitable distribution applied to active but unintentional negligence of drivers of two other vehicles colliding with plaintiffs vehicle); Packard v. Whitten, 274 A.2d 169 (Me.1971) (relative fault among two defendant automobile drivers and a taxicab company against which the two defendants had filed a cross claim, plaintiffs being passengers in the taxicab); Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362 (Minn.1977) (relative culpability of the manufacturer of defective equipment and the installer thereof for injuries to employee of third party); Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 (1972) (application of Dole, infra, to damages for death of subcontractor’s employee as between the general contractor and owner of construction site); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) (apportionment in indemnity for damages for death of plaintiff’s husband between manufacturer which allegedly sold fumigant without warning of its dangers and employer which allegedly permitted employee to use fumigant without following manufacturer’s instructions for use); Pachowitz v. Milwaukee & Suburban Transport Corp., 56 Wis.2d 383, 202 N.W.2d 268 (1972) (relative fault between bus company and city when bus passenger was injured upon alighting); Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962) (automobile collision with relative fault determination between two drivers).

      . Whether or not a separate trial is required of the issues between the third party plaintiff and the third party defendant necessarily depends upon the particular case. Economy of litigation and avoidance of duplication of evidence, time, effort and expense is essential in these days of increasing demands on limited judicial resources, provided it is done without prejudice to the rights of parties. State ex rel. Laclede Gas Co. v. Godfrey, 468 S.W.2d 693, 698 (Mo.App.1971); 3 Moore’s Federal Practice § 14.04 (2d ed. 1974).


author: BARDGETT, Judge.

text:
    COLLECTOR OF REVENUE FOR the CITY OF ST. LOUIS, Missouri, Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS (SERIAL NUMBER 17-143), owner Harvey F. Euge, Appellant.
    No. 60181.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.
    Rehearing Denied June 15, 1978.
    Harvey F. Euge pro se.
    James E. Crowe, St. Louis, for respondent.
    Jack L. Koehr, City Counselor, and James J. Wilson, Associate City Counselor, St. Louis, amicus curiae.
   BARDGETT, Judge.

The collector of revenue of the City of St. Louis, Missouri, instituted suit for foreclosure of delinquent tax liens against parcel No. 17-143. The suit was brought pursuant to the Municipal Land Reutilization Law, sec. 92.700, et seq., RSMo Supp. 1975. Harvey F. Euge (hereinafter defendant), the record owner of the property, answered and alleged that the tax liens were illegal because they were excessive and that the Municipal Land Reutilization Law was unconstitutional under the United States and Missouri constitutions. The circuit court entered judgment for plaintiff collector ordering the liens foreclosed and the property sold.

Defendant appealed to this court alleging a construction of the constitution was involved. By order, on its own motion, this court transferred the cause to the court of appeals, believing that the case did not involve a matter within our exclusive jurisdiction. The court of appeals held that because defendant asked for a construction of the constitution and not a mere application of established constitutional principles, it must treat the supreme court’s transfer order as an adjudication that the case did not involve issues of constitutional construction. Collector of Revenue for the City of St. Louis, Missouri, Plaintiff-Respondent, vs. Parcels of Land Encumbered with Delinquent Tax Liens (Serial No. 17-143) Owner Harvey F. Euge, Defendant-Appellant, (Court of Appeals No. 38,051), 550 S.W.2d 199 (Mo.App.1977). On this basis, the court of appeals refused to consider defendant’s points relating to the constitution of Missouri.

On application of defendant to this court for transfer after opinion of the court of appeals, this court transferred the case because the court of appeals incorrectly held that our initial transfer order to the court of appeals acted as an adjudication of defendant’s constitutional claims.

Transfers from this court to the court of appeals might be ordered for many different reasons. Perhaps the issues are not raised with the proper specificity (Kelch v. Kelch, 450 S.W.2d 202 (Mo.1970)), or the case involves an application of the constitution rather than a construction of it (State v. McClain, 541 S.W.2d 351 (Mo.App.1976)), or perhaps the constitutional question has already been decided (State v. Harris, 321 S.W.2d 468 (Mo. banc 1959)). The transfer order, however, is not an adjudication. It merely is a belief of this court at a preliminary stage of the appeal, without the benefit of briefs or oral argument, that a question involving a construction of the constitution is not involved. These transfers are for the primary purpose of getting the appeal to the right court as soon as possible and, in the main, the procedure has worked rather well. Sometimes, however, we will make a mistake in this regard.

The court of appeals is not precluded from reexamining the issue of jurisdiction and, if after the submission of briefs and oral argument, it determines that a substantial question of constitutional construction is presented, it may retransfer the cause back to this court. Schmidt v. Morival Farms, 240 S.W.2d 952 (Mo.1951). In the event that the court of appeals determines that the case is properly before it, it may still be required to adjudicate a constitutional issue. This may be accomplished by deciding that the constitutional question was not properly raised or briefed, by applying an established constitutional principle, by holding that the question has already been litigated, or in any other manner consistent with the determination that a question involving the construction of the constitution is not presented. Of course, this court still retains the authority to transfer the cause and may treat the case as if on original appeal. Art. 5, sec. 10, Mo.Const.

The facts in this case are mostly undisputed. The real estate taxes on certain land owned by defendant and designated by the collector as parcel No. 17-143 became delinquent. All statutory requirements concerning notice of the suit for foreclosure were followed by the collector.

Sec. 92.755 requires: “1. Within thirty days after the filing of such suits with the circuit clerk, the collector shall forthwith cause a notice of foreclosure to be published four times, once a week, during successive weeks, and on the same day of each week, in a daily newspaper of general circulation regularly published in such city, qualified according to law for the publication of public notices and advertisements.” (Subsec. 2 specifies the form such notice shall take.)

Sec. 92.760, subsec. 1, provides: “The collector shall also cause to be prepared and mailed in an envelope with postage prepaid, within thirty days after the filing of such petition, a brief notice of the filing of the suit, to the persons named in the petition as being the last known persons in whose names tax bills affecting the respective parcels of real estate described in said petition were last billed or charged on the books of the collector, and to the addresses of said persons upon said records of the collector; and in the event that any name or address does not appear on the records of the collector, with respect to any parcel of real estate, the collector shall so state in an affidavit, giving the serial number of each parcel of real estate affected. Said affidavit shall be filed in the suit with the circuit clerk not later than sixty days after the date of the first publication of the notice of foreclosure. The failure of the collector to mail the notice or file the affidavit herein provided shall not affect the validity of any proceedings brought pursuant to the provisions of sections 92.700 to 92.920.” (Subsec. 2 gives the form of the notice.)

On appeal defendant has abandoned his contention that the tax liens were excessive. Even though defendant received the individual notice from the collector as provided for in sec. 92.760, nevertheless, defendant argues that the other provision of sec. 92.760 which states, in part, that the failure to mail the notice does not invalidate the proceedings renders the act viola-tive of the due process clauses of the United States and Missouri constitutions requiring a reversal of the judgment. He argues that the constructive notice provisions of sec. 92.755 providing for publication of notice are not sufficient where the owner’s name and address are known to the taxing authority, relying primarily on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

The respondent collector contends the constructive notice provisions of sec. 92.755 are sufficient in instances where delinquent tax liens are sought to be foreclosed and the property sold, relying principally on Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86 (banc 1944).

Spitcaufsky, decided in 1944, generally supports the collector’s position. Mullane was decided in 1950 and, although it does not involve the judicial foreclosure of delinquent tax liens and the sale of property, the case does deal with notice requirements of judicial proceedings where an individual’s property may be affected and has formed the basis for subsequent decisions involving sale of property for delinquent taxes where courts have held written notice to the owner was constitutionally required. Township of Montville v. Block 69, Lot 10, 74 N.J. 1, 376 A.2d 909 (1977), and Dow v. State, 396 Mich. 192, 240 N.W.2d 450 (1976), reversing Dow v. State, 46 Mich.App. 101, 207 N.W.2d 441 (1973). These cases, decided subsequent to Spitcaufsky, put the present validity of Spitcaufsky somewhat in doubt.

However, in the instant case, the collector mailed notice of suit to the defendant and defendant admittedly received it, entered his appearance, and filed an answer. The only portion of the statute which defendant complains of here is the last sentence of sec. 92.760, subsec. 1, which purports to relieve the collector of any adverse consequences should he not mail the appropriate notice. As noted, defendant received appropriate notice and his rights were not in any way affected by the alleged unconstitutionality of the statute. He has not been prejudiced by the operation of the statute nor has he alleged or shown any injury due to the provisions of sec. 92.760. Thus, he has no standing to raise the issue. Ryder v. County of St. Charles, 552 S.W.2d 705 (Mo. banc 1977); Kansas City v. Douglas, 473 S.W.2d 101 (Mo.1971). The point is overruled.

Defendant also alleges that the trial judge was prejudiced against defendant. He requests a remand for further proceedings before a judge not so prejudiced. The defendant cites the following dialogue from the hearing on June 27, 1975:

“MR. CROWE: . . . Mr. Brisco isn’t here. But, definitely you told his associate we were going to go at 9 o’clock, and that is set for today. So, I don’t know. I haven’t heard from him since, and he had been telling me all along that Mr. Euge was going to sign a contract with us, but he didn’t.
“THE COURT: That wouldn’t be worth anything anyway.
“MR. CROWE: I would like to ask the reporter to mark our exhibits so that then, Judge, we can refer to them right down the line.”

Mr. Crowe represented the plaintiff and Mr. Brisco was defendant’s attorney. The hearing was on the merits of the petition. Defendant and his attorney failed to appeal or request a continuance; therefore, the court heard the evidence and entered a judgment of foreclosure.

The second evidence of prejudice comes from the September 26, 1975, hearing on defendant’s motion to set aside the judgment.

“THE COURT: Do you have anything else, Mr. Crowe?
“MR. CROWE: Yes, I do, Your Honor. You instructed me to' notify Mr. Harvey Euge as to parcel number 17-143. He filed a motion to set aside a judgment which has been entered against that parcel; and he called my office yesterday afternoon, and said that he had been unable to get an attorney, that he would not be here, and to go ahead and do whatever we wanted.
“THE COURT: Okay. Let’s proceed with it.
“MR. CROWE: Well, I had filed a motion, he had filed a motion to set aside a judgment, then would we consider that overruled.
“THE COURT: Give me the file and let me overrule it.
“MR. CROWE: You want me to sign that.
“THE COURT: No, you don’t have to sign it, just make sure it’s carried out.”

Again the defendant failed to appear and failed to request a continuance. Additionally he consented to the hearing in his absence. The record before this court is devoid of any evidence of prejudice on the part of the trial judge. He proceeded properly in all respects. The point is overruled.

The judgment is affirmed.

All of the Judges concur.

      . The court of appeals opinion was published in the Southwestern Reporter by mistake. The notation in the style of the case at 550 S.W.2d 199 that “Application to Transfer Denied May 6, 1977” is incorrect. Appellant’s application to transfer to this court was filed here on May 20, 1977, and sustained on June 14, 1977. The opinion of the court of appeals was, by operation of law, vacated upon the cause being transferred to this court and should not have been published by West Publishing Company in the Southwestern Reporter.

        . Spitcaufsky was overruled in Dir. of Dept. of Rev. v. Parcels of Land Encumbered with Delinquent Tax, 555 S.W.2d 293 (Mo. banc 1977) to the extent that it was in conflict with that decision. The area of conflict was the res judi-cata effect of a judgment of foreclosure when it is shown that the tax had been paid prior to judgment. The court held that the foreclosure judgment was not res judicata and could be set aside. The foreclosure suit was brought pursuant to the Land Tax Collection Act, secs. 141.-210 to 141.810, RSMo 1969.


author: MORGAN, Chief Justice.

text:
    STATE ex rel. John C. DANFORTH, Relator, v. Keith P. BONDURANT, Judge of the Circuit Court for the Sixteenth Judicial Circuit of Missouri, Respondent.
    No. 59587.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.

      John C. Danforth, Atty. Gen. and Paul R. Otto, Asst. Atty. Gen., Jefferson City, for relator.
    Frederick Ernst, Thomas W. Tierney, Donald V. Pierce, Jr., Kansas City, for respondent.
   MORGAN, Chief Justice.

Having issued a writ of certiorari, we now decide whether or not respondent judge exceeded his jurisdiction, in a habeas corpus proceeding, by discharging one Richard P. Marin from custody authorized by an extradition (rendition) warrant issued by the Governor of Missouri.

In 1974, Marin was a resident of Colorado and an automobile salesman in Pueblo, where he was charged with fraud in effecting sales — a misdemeanor under that state’s law. The specific charge being that Marin violated C.R.S.1973, §§ 18-5-301 (1963 C.R.S. 40-5-301 as amended) by selling a 1969 GMC truck after he had the odometer thereon turned back. He entered a plea of nolo contendere, was sentenced to six months confinement and immediately granted probation (parole). Thereafter, the court discovered that Marin had two prior felony convictions and changed the judgment to require that he actually be incarcerated as mandated by the provisions of that state’s Habitual Criminal Act, C.R.S. 1963, § 39-11-201(2) as amended. His conviction and sentence were upheld by the District Court for Pueblo County and his petition for review was denied by the Supreme Court of Colorado. Apparently to avoid imprisonment, he left Colorado and settled in Arizona; but, when authorities were on the verge of securing his extradition there, he fled to Missouri.

In August, 1975, Marin was arrested in Missouri under procedures in keeping with § 548.131, RSMo 1969, and released on his own recognizance pending a request for extradition, which was soon forthcoming.

The “demand” from the Governor of Colorado to the Governor of Missouri was accompanied by a number of documents, including: (1) a copy of the original information against Marin charging him with the crime of fraud in effecting sales, (2) a copy of the original summons issued, (3) supporting affidavits authored by the clerk of Pueblo County, the trial judge and the principal investigator in Marin’s case, (4) a copy of the judgment of conviction and sentence, (5) a copy of the opinion of the District Court affirming the conviction, (6) a copy of the bench warrant for his arrest, (7) a copy of the order of the Colorado Supreme Court which denied review and (8) written authentication from the Governor of Colorado that Marin (a) was convicted of the crime of fraud in effecting sales under the law of Colorado, (b) was present in the state of Colorado at the time the crime, for which he was convicted, was committed, (c) thereafter violated the terms of his bond and (d) leaving his sentence unsatisfied because he fled from justice and took refuge in Missouri.

Following a hearing and the Governor’s issuance of a rendition warrant, Marin was advised of his right “to apply for a writ of habeas corpus” as provided in § 548.101, RSMo 1969. Upon his election to do so, the proceeding now being reviewed followed.

In Application of Evans, 512 S.W.2d 238 (Mo.App.1974), the court, while acting in an original proceeding in habeas corpus, as was the trial court in the instant case, delineated its powers and limitations, 1. c. 240, as follows:

The scope of our review of extradition proceedings in habeas corpus is narrowly limited to the question of whether the Governor of Missouri exceeded his authority in honoring Georgia’s requisition and issuing the rendition warrant. State ex rel. Anderson v. Weinstein, 359 S.W.2d 355 (Mo.App.1962). We are expressly prohibited by § 548.201, RSMo 1969, V.A. M.S., from inquiring into the guilt or innocence of the petitioner as to the alleged crime and cannot inquire into the motives underlying the institution of the Georgia charge. State ex rel. Anderson v. Weinstein, supra. The conclusions of the Governor of Missouri, as expressed in the extradition warrant, constitute prima facie evidence of such findings. Hagel v. Hendrix, 302 S.W.2d 323 (Mo.App.1957). Nevertheless, it is within our prerogative in habeas corpus proceedings to review an arrest pursuant to the issuance of the Governor’s rendition warrant to determine whether the Governor exceeded his authority. Hagel v. Hendrix, supra. Thus, in the instant case, we are authorized to inquire into the sufficiency of the affidavit giving rise to the criminal charge of the demanding state [Hayes v. O’Connell, 263 S.W.2d 66 (Mo.App.1953)] and can determine if the petitioner is a fugitive from justice [Ex Parte Arrington, 270 S.W.2d 39 (Mo. banc 1954)].

In turn, we recognize that the scope of review of a habeas corpus proceeding by certiorari is the same in Missouri as it was at common law and is based solely upon “the absence or an excess or usurpation of jurisdiction on the part of the court from which the proceedings were removed.” State ex rel. Barker v. Wurdeman, 254 Mo. 561, 163 S.W. 849 at 850 (banc 1914).

In 1953, the Uniform Criminal Extradition Act was adopted in Missouri. § 548.-031, RSMo 1969, thereof, sets out the necessary criteria of a “demand” upon the Governor for extradition. Its precise wording is crucial to an examination of this case, and it reads as follows:

No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under section 548.061, [not herein applicable] that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon, or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand. (Emphasis added.)

The ultimate question, and one dis-positive of this case, is whether the Governor of Missouri may approve and direct the extradition of a person from this state predicated on the alternative presentation, emphasized above, i. e., “a copy of a judgment of conviction.” Obviously, the statute in simple terms provides such documentation is sufficient, and absent some “legal” reason to the contrary should dictate the result.

The trial court ruled otherwise and relied on the holding of this court in Rummerfield v. Watson, 335 Mo. 71, 70 S.W.2d 895 (banc 1934), with the following analysis thereof: “Our Supreme Court sitting en banc, after a thorough discussion of Section 2, Article 4 of the United States Constitution and the then existing statutes of the United States and those of Missouri governing extradition, specifically adopted the position that before the executive of an asylum state could remand to a demanding state, the federal statutes must be substantially followed. The Court then recognized that the federal statute required that the person demanded must be a fugitive from justice, and that accordingly, the demanding executive must show him to be a fugitive by production of an indictment found or affidavit made before a magistrate. One or the other must be produced, and without such production the surrendering executive has no authority to issue a rendition warrant. The Supreme Court concluded by stating that to hold that a copy of a judgment of conviction could be substituted for the indictment or affidavit required by the federal statutes would be usurping the functions of congress. Rummerfield, decided in 1934, has never been overruled; and the federal statute, 18 U.S.C.A. § 3182 still requires the production of an indictment found or affidavit made before a magistrate. Accordingly, under the latest pronouncement of our Supreme Court, there is no merger of an indictment or affidavit into a judgment of conviction, and the. indictment or affidavit contemplated by the federal statute is- still an indispensable element of a valid rendition request.”

It is not necessary that we defend or challenge the “reason and logic” of the holding in the Rummerfield case insofar as it rejected the idea a judgment of conviction was more conclusive of “probable cause” than an indictment or affidavit (complaint) merely alleging a person’s guilt. Cf. State ex rel. Taylor v. Blair, 358 Mo. 345, 214 S.W.2d 555 (banc 1948). Obviously, the court felt restrained by the specifics of the federal statute (§ 3182, supra) absent any state legislation extending the possibilities to include “a copy of a judgment of conviction” now found in § 548.031.

This court, soon after adoption of the Uniform Act, had before it in Ex Parte Arrington, 270 S.W.2d 39 (Mo. banc 1954), a demand for extradition seemingly comparable to that in the instant case and which did include the judgment of conviction. However, the sole issue presented and resolved was the invalidity of that part of § 548.031 which sought to require that “the accused was present in the demanding state at the time of the commission of the alleged crime.” The ruling was bottomed on the accepted premise that the federal statute is paramount and that a state statute cannot require more. However, “The Federal extradition statute does not purport to encompass the entire field of extradition and does not prohibit a state from extraditing on less exacting terms than those stated in the Federal statute; . . . ” 270 S.W.2d 44[7],

It is difficult to see how the added alternative of the Missouri statute now questioned is anything but a “less demanding term” within the meaning of the above language and thus is not proscribed by the federal statute. As the problem arises, states consistently are so holding. “Although proper affidavits and a showing of presence in the demanding state are necessary if extradition is sought solely on a mere accusation of criminality by warrant, complaint, or information, neither is necessary when extradition is for an offense that has resulted in conviction. In the latter circumstances all that is required is record of conviction . . ” Wynsma v. Leach, 536 P.2d 817, 819 (Colo.1975). “A person remains charged with crime within the meaning of the constitutional and statutory provisions although he has been convicted, while the judgment of conviction remains unsatisfied, and, after a charge of crime has culminated in a conviction, the record of such conviction is sufficient evidence in extradition proceedings, the question of the sufficiency of the preliminary affidavits in the proceeding in which he was convicted becoming immaterial.” 35 C.J.S. Extradition § 9, p. 390.

To hold, in this case, that a person already “convicted” and now sought by extradition was never substantially charged with a crime would be a usurpation of the responsibility and power of the highest court of Colorado; and, it would serve as a precedent to significantly impair the criminal judicial process of foreign states when an accused flees to an asylum state and resists extradition. To rule otherwise, would allow an alleged fugitive to create an unlimited number of “appeals” by fleeing from one state to another. It should be remembered that “. .in delivering up an accused person to the authorities of a sister state, they are not sending him for trial to an alien jurisdiction, with laws which our standards might condemn, but are simply returning him to be tried, still under the protection of the Federal Constitution, but in the manner provided by the state against the laws of which it is charged that he has offended.” Biddinger v. Commissioner of Police, 245 U.S. 128, 135, 38 S.Ct. 41, 43, 62 L.Ed. 193 (1917).

The trial court was not bound, as it apparently felt, by this court’s opinion in the Rummerfield ease because of the limitations placed thereon by adoption of the Uniform Criminal Extradition Act.

Having concluded that the copy of the “judgment of conviction” (§ 548.031) was a legitimate substitute for an “indictment found” or an “affidavit made” (§ 3182, 18 U.S.C.A.), we need not consider whether or not we would have agreed with respondent’s treatment of the latter.

Respondent also concluded that the crime in Colorado only involved a misdemeanor and “. . . appears to be so insubstantial on its face as to not support a demand for extradition . . .” We reject such reasoning as a predicate for denial of extradition. “The offenses for which a person may be extradited include every offense made punishable by the law of the state in which it was committed, from the highest to the lowest in the grade of offenses, including misdemeanors and statutory crimes, whether or not the offense charged is a crime under the laws of the state of asylum.” 35 C.J.S. Extradition § 7, p. 388. Article IV, § 2, of the U.S. Constitution expressly refers to the extradition of “a person charged in any State with Treason, Felony or other Crime.” That language “includes every offense, from the highest to the lowest in the grade of offenses, and includes what are called misdemeanors as well as treason and felony . . . ” Kentucky v. Dennison, 65 U.S. 66 (24 How.) at 99, 16 L.Ed. 717 (1861).

Finding that respondent exceeded his jurisdiction, the writ of habeas corpus as issued is hereby quashed and all provisions thereof are for naught held.

All concur.

      . Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

      . See People ex rel. Hackler v. Lohman, 17 Ill.2d 78, 160 N.E.2d 792, 798 (1959); Smith v.
        Nye, 176 Kan. 679, 272 P.2d 1079 (1954); White v. Noll, 15 Md.App. 446, 291 A.2d 694 (1972); Loper v. Dees, 210 Miss. 402, 49 So.2d 718 (1951); People ex rel. Matochik v. Baker, 306 N.Y. 32, 114 N.E.2d 194 (1953); State ex rel. Yarbrough v. Snider, 2 Or.App. 97, 465 P.2d 739 (1976); and Ex Parte Peairs, 162 Tex.Cr.R. 243, 283 S.W.2d 755 (1955).