author:
      FINCH, Senior Judge.
      DONNELLY, Judge,

text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Max Allen NICKERSON et al., Exceptions of I. J. Nickerson and Ruby Mae Nickerson, his wife, Appellants.
    No. 60458.
    Supreme Court of Missouri, En Banc.
    March 13, 1979.
    Respondents Motion for Rehearing Denied April 10, 1979.
    Robert C. Smith, Smith, Lewis & Rogers, Columbia, Robert J. Quigley, Kay & Quig-ley, Eldon, for appellants.
    Thomas E. Cheatham, Bruce A. Ring, State Highway Commission, Jefferson City, for respondent.
   FINCH, Senior Judge.

This appeal, written on recent reassignment, involves a case wherein State Highway Commission of Missouri (respondent) filed condemnation proceedings to acquire land for right of way for a relocated U. S. Highway 54 in Miller County. One of the tracts, 4.13 acres located on the west side of old U. S. Highway 54 approximately two miles south of Eldon, belonged to I. J. Nick-erson and wife (appellants). Respondent sought to condemn 2.01 acres off of the back of west side of that tract. The portion to be taken did not include the land on which a restaurant, a filling station and various appurtenances were located but did take part of the sewage lagoon and the area into which the sewage lagoon drained.

After a change of venue to Moniteau County the case was tried on exceptions to the commissioner’s award. The jury returned a verdict in the amount of $2500 in favor of the appellants as damages for the property condemned. Appellants appealed to the Missouri Court of Appeals, Western District, which reversed and remanded for new trial. This court sustained respondent’s motion to transfer and we now decide the case as though here on direct appeal. Mo.Const. Art. V, § 10. We reverse and remand.

Appellants assert four alleged trial errors which they say entitle them to a new trial. The first of these involves the action of the trial judge in requiring that appellants’ counsel add to the usual question asked valuation witnesses a “tail” which instructed the witness to leave any diversion of traffic out of consideration in assessing the fair market value of the land after the taking.

It is well established in Missouri that where part of an owner’s property is condemned, he is entitled to receive as compensation therefor the difference between the fair market value of the entire tract immediately before the date of taking and the fair market value of the property remaining immediately after the taking. State ex rel. State Highway Commission v. Kendrick, 383 S.W.2d 740, 745 (Mo.1964); Kamo Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W.2d 858, 861-62 (1956); State ex rel. State Highway Commission v. Cady, 400 S.W.2d 481, 484 (Mo.App.1965). MAI Instruction 9.02 is prescribed for use in such situations and was utilized in this case in Instruction No. 3 which was as follows:

“You must award defendants such sum as you believe was the difference between the fair market value of defendants’ whole property immediately before the taking on October 18, 1971, and the value of defendants’ remaining property immediately after such taking, which difference in value is the direct result of the taking and of the uses which plaintiff has the right to make of the property taken.”

The notes on use for MAI 9.02 require that fair market value be defined by utilizing MAI 16.02. That was done in this case in Instruction No. 4 which provided:

“The term ‘fair market value’ means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so.
In determining fair market value you should take into consideration all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the near future.”

Appellants called several witnesses to testify as to the amount of appellants’ damages. Counsel for appellants, after qualifying these witnesses to testify as to value, first asked them what in their opinion was the fair market-value of the 4.13 acre tract immediately prior to the taking on October 18, 1971. Each answered that question. Counsel then sought to elicit the opinion of the witnesses as to the fair market value of the tract remaining immediately after the taking of the 2.01 acres on October 18,1971. However, counsel was not permitted to ask these witnesses what in their opinion was the fair market value of the 2.11 acre tract remaining immediately after the taking. Instead, counsel was required, over objection, to add to those questions a tail which instructed the witnesses that in arriving at fair market value immediately after the taking they should leave out of consideration any diversion of traffic from the highway in front of the tract remaining. This direction was given to counsel during a conference which occurred as a part of pretrial proceedings. In that conference the trial court stated:

“COURT: Since the possibility appears that the major item of defendants’ alleged loss will in fact be the diversion of traffic from old Highway 54 to the new super highway, that is to say, a resultant loss of travel on the old highway on which Mr. Nickerson’s restaurant fronted, I think it would be improper for defendant to ask merely the bald question of his witnesses, “What was the value before and after the taking?” I think it would be improper because I think the witness will invariably be encouraged by so broad a question to take into consideration the possible loss of business resulting from the diversion of traffic. I understand the rule to be that the diversion of traffic is an exercise of the State’s police power and is in no sense a condemnation, and is, as the cases say, damnum absque injuria, and is entirely improper for the jury to consider as element of damages. Having that view in mind, I’m instructing counsel for defendant to phrase his question with a tail on it which will instruct the witness in answering the question to leave out of consideration entirely the question of the diversion of traffic from the old highway to the new one.”

This requirement by the court resulted in this situation. By instructions 3 and 4 the jury were told to determine from the evidence the fair market value of the 4.13 acre tract just before the taking on October 18, 1971, and the fair market value of the 2.11 acre tract immediately after the taking. They were told that these values were to be the price which would have been agreed upon by a willing but unobligated seller and a willing but unobligated buyer. In other words, it told the jury that in awarding damages it should determine the difference in what this 4.13 acre tract would have sold for and what this 2.11 acre tract would have sold for. These instructions, as previously noted, conform to the established rule in Missouri.

However, instead of permitting appellants to offer proof by their valuation experts as to those two sums referred to in the court’s instructions, the court compelled appellants to present testimony which applied a different test. Witnesses were told first to give the fair market value of the 4.13 acre tract immediately before condemnation and then to give the fair market value of the remaining 2.11 acre tract on a basis which assumed no loss of traffic on the highway in front of the 2.11 acre tract. They were not asked what price would be established by a willing buyer and seller as the fair market value of the 2.11 acre tract as it actually existed after the taking. Instead, they were to value a hypothetical 2.11 acre tract with no change in traffic. In other words, they were told to value a tract which did not exist. What the court did created an anomalous situation wherein the jury was told to apply one test but was given evidence which required it to utilize a different test. That necessarily was confusing to the jury. Furthermore, the question as to value of the remaining tract was not consistent with the test established in previous cases. State ex rel. State Highway Commission v. Kendrick, supra; Kamo Electric Cooperative v. Baker, supra; State ex rel. State Highway Commission v. Cady, supra.

If the questions which the court required counsel for appellants to ask where proper, it would follow that MAI 9.02 and 16.02 should have been modified so as to inform the jury that fair market value after the taking means the price which the property remaining after the taking would bring after eliminating any consideration of loss of traffic. It is clear that such modification of MAI 9.02 and 16.02 is not contemplated or permissible. See Notes on Use and Committee’s Comment following MAI 9.02 and 16.02. That being true, it necessarily follows that the questions asked witnesses as to before and after fair market value should have been framed to elicit the information which the instructions told the jury to utilize. They should not have been qualified by tails such as the one the court required in this case.

Respondent, in seeking to justify the action of the trial court in requiring use of the tail, cites and relies on State ex rel. State Highway Commission v. Brockfeld, 388 S.W.2d 862 (Mo. banc 1965), cert. den. 382 U.S. 846, 86 S.Ct. 79, 15 L.Ed.2d 86, and State ex rel. State Highway Commission v. Meier, 388 S.W.2d 855 (Mo. banc 1965), cert. den. 385 U.S. 204, 87 S.Ct. 407, 17 L.Ed.2d 300 (1966). In both of those cases the landowners contended that by converting an existing highway to a limited access highway and requiring the landowners to utilize an outer roadway to reach the limited access highway the State was taking away an existing property right in the form of a right of direct access to the highway for which damages should be awarded. This court rejected those claims, holding that the landowners were not losing their right of access and that the trial court had erroneously admitted evidence as to diversion of traffic. In the course of those rulings the court stated that an adjoining property owner does not have a property right in traffic on the highway and that the State, in the exercise of its police power, has the right to redirect or divert traffic. However, the court did not hold that where there is a partial taking the test as to before and after fair market value is other than as stated in MAI 9.02 and 16.02.

In this case, unlike Brockfeld and Meier, we do not deal with a claim that diversion of traffic is a special item of damage which the landowner may show and for which damages are to be awarded. Instead, the issue is whether appellants were entitled to ask their valuation witnesses, after qualifying them to testify, as to their opinion as to what value a willing, unobligated seller and a willing, unobligated buyer would take and pay for the whole property immediately before the taking and for the remaining property immediately after the taking. Under the decisions in State ex rel. State Highway Commission v. Kendrick, supra, Kamo Electric Cooperative v. Baker, supra; State ex rel. State Highway Commission v. Cady, supra, and numerous other cases which state the same rule, appellants were entitled to offer such evidence. It was reversible error to require that a different test be applied by the addition of the tail to the question. Hence, the judgment must be reversed and the case remanded for retrial.

In view of this conclusion we need not rule on appellants’ other assignments of error where it is not clear that the same questions necessarily will arise on retrial. We have concluded that such is the situation. One assignment is that certain of respondent’s witnesses were not shown by the evidence to be qualified to testify, but we do not know what the showing will be on retrial. Another assignment is that questions on cross-examination of valuation witnesses were improper. Some of these questions were not objected to and may not be asked on retrial. A consideration of this issue would not be of value. Finally, there is a contention that respondent’s photographs of some of the property remaining after the taking were inadmissible. These photos apparently were taken just before trial and purportedly were offered to show the condition at that time rather than as of the date of taking. We do not know that these photographs will be offered on retrial. If they are perhaps the record will more clearly establish the purpose for which they are offered and their relevancy and whatever objections are made will more clearly state the reasons therefor.

Reversed and remanded.

BARDGETT, RENDLEN, SEILER, JJ., and HOUSER, Senior Judge, concur.

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

MORGAN, C. J., dissents and concurs with separate dissenting opinion of DON-NELLY, J.

SIMEONE and WELLIVER, JJ., not participating because not members of the court when cause was submitted.

DONNELLY, Judge,

dissenting.

The issue in this case is whether the diversion of traffic away from an owner’s property caused by a relocation or other change in a highway by the State is a taking or element of a taking for which compensation is due.

Until today, the law in Missouri has been that such a diversion is not a compensable taking, State ex rel. State Highway Commission v. Brockfeld, 388 S.W.2d 862 (Mo. banc 1965); State ex rel. State Highway Commission v. Meier, 388 S.W.2d 855 (Mo. banc 1965). A majority of United States jurisdictions adhere to this rule, Mackie v. Watt, 374 Mich. 300, 132 N.W.2d 113, 118 (1965); 2A Nichols on Eminent Domain § 6.4443[4], 3rd Ed. (1976).

In Meier, the State changed the highway on which respondent’s motel was located from one to which respondent’s driveway directly connected to one of limited access. Part of respondent’s property was taken. After the change respondent’s driveway connected to the outer access road of the highway. Travelers could reach the motel only by the more circuitous use of a distant interchange and the access road. The issue was whether respondent was entitled to compensation for the reduced value of her property due to the change in traffic flow. This Court stated,

“[T]he State and any of its agencies are not liable for any decrease of property values by reason of such diversion of traffic, because such damages are ‘damnum absque injuria’, or damage without legal injury. The trial court, therefore, erred in admitting evidence of depreciation of the value of respondent’s property by reason of the diversion of traffic and the so-called ‘loss of access.’ ” Id. at 857.

The trial court in the instant case properly implemented this law by requiring appellant’s counsel to ask the expert witnesses the “tailed” questions.

Today’s decision has two immediately obvious effects.

One is that of shifting the cost of loss of property values due to diversions of traffic to the State. The added cost will to some extent affect the evaluation of proposed changes in roadways. As a corollary, one might also ask whether the State should be entitled to tax or otherwise collect the increased value accruing to other property owners as a result of beneficial changes in traffic flow. This may or may not be good policy.

The other effect is to grant windfall profits to the current owners of property along the State’s highways. Prior to today’s decision the market value of property along the State’s highways necessarily discounted the risk that the State would divert traffic from the property; the value was thus lower by some amount. Today’s decision removes the risk of traffic diversion by telling property owners that they will be compensated for any such future diversion; the value of their property is thus higher because the risk is removed. The current owners will receive the one-time windfall profit which will result as the market adjusts from the higher risk/lower value level under the law prior to today to the lower risk/higher value level under the law announced by this decision. This may or may not be good policy.

The decision announced today overrules Brockfeld and Meier sub silentio and embarks on a new course without addressing the desirability of this course. Without expressing my views on the policies at issue, I must dissent from a decision which overrules our prior law and sets a new course without addressing the issues or considering the consequences.

Accordingly, I respectfully dissent.

PER CURIAM:

In its motion for rehearing respondent strenuously argues that this Court has overruled the decisions of this Court in State ex rel. State Highway Commission v. Brockfeld, 388 S.W.2d 862 (Mo. Banc 1965) and State ex rel. State Highway Commission v. Meier, 388 S.W.2d 855 (Mo. Banc 1965). That contention is incorrect. The Court does not intend to and does not overrule or disturb the decisions in Brockfeld or Meier.

The issue on this appeal is a simple one. Is it proper for the trial court to require the addition of a tail to the standard question to valuation witnesses asking for their expert opinion as to the value of the owner’s remaining property immediately after the taking. We hold that it is not.

This conclusion is consistent with the instructions concerning the use of MAI in condemnation cases. For example, it is well settled that in determining the value of a landowner’s remaining property after a taking by condemnation, general benefits conferred upon all property within usable range of the new highway may not be considered by the jury. State ex rel. State Highway Commission v. Southern Development Co., 509 S.W.2d 18 (Mo. 1974). If the jury is to be told not to consider certain evidence or some issue, it is done on request by giving a withdrawal instruction. See MAI 34.01, 34.02 and 34.03 and accompanying Notes on Use. It is not done by adding a tail to questions asked valuation witnesses which says to them to leave out of consideration any loss of traffic or any general benefits conferred upon all property within usable range of the new highway in assessing the fair market value of the land after the taking. If the Court should hold in this case that it was proper to add the tail about leaving diversion of traffic out of consideration, it would follow that a tail about excluding consideration of such things as general benefits would be proper and that the valuation question might end up with several tails.

We hold that the addition of such tails is improper. If there is reason to advise the jury to eliminate consideration of some evidence or some element and one of the parties requests and is entitled to such direction it should be done by a withdrawal instruction in accordance with the Notes on Use to MAI 9.02, 34.01, 34.02 and 34.03.


source: Caselaw Access Project

author:
WELLIVER, Judge.
      BARDGETT, Judge,

license: Public Domain

text:
    STATE ex rel. UNION ELECTRIC COMPANY, a corporation, et al., Appellants, v. Gerald H. GOLDBERG, Missouri Director of Revenue, Respondent.
    No. 60889.
    Supreme Court of Missouri, En Banc.
    April 10, 1979.

      Edward J. Bust, Viburnum, W. Oliver Rasch, Farmington, Cullen Coil, Jefferson City, for appellants.
    John D. Ashcroft, Atty. Gen., J. Kent Lowry, Asst. Atty. Gen., Jefferson City, for respondent.
   WELLIVER, Judge.

This mandamus suit was brought in the Cole County Circuit Court pursuant to § 536.150 to review the Director of Revenue’s denial of appellants’ claim for a sales tax refund. The question presented in this case is whether appellant Union Electric Company’s sale of electricity to appellant Meramec Mining Company is covered by § 144.030.3(11), RSMo 1969, which exempts from Missouri sales tax:

“(11) Electrical energy used in the actual primary manufacture, processing, compounding, mining or producing of a product, or electrical energy used in the actual secondary processing or fabricating of the product, if the total cost of electrical energy so used exceeds ten percent of the total cost of production, either primary or secondary, exclusive of the cost of electrical energy so used;”

The circuit court held that this sale of electrical energy was not exempt, and this appeal followed. We have appellate jurisdiction because construction of a revenue law is involved. Mo.Const. art. V, § 3. We reverse.

The facts are stipulated. From June 1, 1976 to June 30, 1977 Meramec engaged in mining iron ore in Washington County, Missouri. Ore (rock bearing iron) and waste rock (necessary to get to the ore) were drilled and blasted at depths underground varying from 1400 feet to 2400 feet. The ore and rock were then crushed to approximately six inches in size to facilitate handling and removal. This mixture was carried to the shaft by conveyor belt, loaded into skips, and hoisted to the surface where it was placed in bins.

Above ground the ore was removed from the bins and subjected to a process called beneficiation. Iron minerals were separated from the ore by grinding and magnetic separation. These were further processed by thickening, filtering, mixing with ben-tonite and shaping into balls of ⅝ inch or less diameter which were fired and hardened in a pellet furnace. The fired pellets were stocked for shipment to steel mills. Non-magnetic minerals were processed by flotation and gravity concentration to produce pyrite, apatite and hematite.

The total cost of electrical energy used in the combined operations of mining and processing did not exceed ten percent of the total cost of production, exclusive of the cost of electrical energy, but the cost of electrical energy used in the beneficiation process did exceed ten percent of the total cost of that process, exclusive of the cost of electrical energy. Union Electric’s bill to Meramec included sales tax on the entire amount of energy sold, which was paid over to the Department of Revenue. Appellants now seek to compel refund of $51,909 which was paid as sales tax on electrical energy used in the beneficiation process. They claim that § 144.030.3(11) provides separate exemptions for electricity used in separate parts of Meramec’s operations. Respondent contends that the statute allows an exemption only when the cost of electricity used in various stages of producing a product exceeds ten percent of the total cost of production, and that it does not allow appellants to split a production process into stages and seek an exemption for one stage alone.

Section 144.030.3(11) has not been previously construed on this issue. Respondent reminds us that this is a statute providing a tax exemption, and it therefore should be construed strictly against the party claiming the exemption. While this is an accepted canon of statutory interpretation, it should not be applied to force a conclusion that the legislature intended something other than v/hat is expressed in the plain language of the statute. American Bridge Co. v. Smith, 352 Mo. 616, 179 S.W.2d 12, 16 (1944). In construing a statute “[t]he primary rule is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to take the words used in the statute in their plain and ordinary meaning.” State ex rel. Dravo Corp. v. Spradling, 515 S.W.2d 512, 517 (Mo.1974). The language of the statute must be examined with this principle in mind.

We think the legislature’s use of the terms “primary” and “secondary” is significant. The use of various other words to refer to these terms complicates construction of the statute, but its meaning is clarified when a neutral term is substituted. The statute may be paraphrased as follows:

Electrical energy used in the actual primary [stage] or electrical energy used in the actual secondary [stage], if the total cost of electrical energy so used exceeds ten percent of the total cost of production, either primary or secondary, exclusive of the cost of electrical energy so used; (emphasis supplied)

This language clearly shows an intention to exempt electrical energy used in either a primary or a secondary stage of production. Respondent argues that the cost of electricity must exceed ten percent of the total cost of production in all stages of production added together. This construction ignores the phrase “either primary or secondary” which follows immediately after the reference to total cost of production, and would render meaningless the legislature’s division of production into primary and secondary stages. We should not assume the legislature intended these words to have no meaning. State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399 (banc 1954).

This court has had occasion to define “mining” as used in another subsection providing an exemption under § 144.030.3. In West Lake Quarry & Material Co., Inc. v. Schaffner, 451 S.W.2d 140 (Mo.1970) the issue was whether certain machinery and equipment was used in “manufacturing, mining or fabricating a product” so as to qualify for a sales tax exemption. West Lake blasted rock from the ground, reduced it in size and hauled it to a hopper. The rock was then put through a screening process, after which it was crushed into several sizes and then sorted by size. The court concluded that the operation of removing the rock from the ground, breaking it up and hauling it to the crusher was mining. The blasting, crushing and hauling activities are virtually the same as those of Mera-mec in this case. We hold that in drilling and blasting rock, and crushing and hauling it to bins, Meramec was engaged in mining.

Processing has been defined elsewhere as “a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.” Miller v. Electro Bleaching Gas Co., 276 F. 379, 381 (8th Cir. 1921), quoting from Cochrane v. Deener, 94 U.S. 780, 788, 24 L.Ed. 139 (1876). This is similar to the definition in Webster’s Third New International Dictionary, 1808 (1976), which gives illustrations as follows: processing cattle by slaughtering them; processing milk by pasteurizing it; processing grain by milling; processing cotton by spinning. We hold that the flotation and gravity concentration used to produce the non-magnetic metals, and the thickening, filtering, mixing, shaping and firing of the iron ore can be labeled as processes within the meaning of § 144.030.3(11).

We are aware that the statute may be more difficult to apply to other factual situations because of the legislature’s inartful choice of overlapping terms, i. e., the use of the words “manufacturing, processing, compounding, and fabricating,” the meaning of the latter three ordinarily being included within the meaning of the more general and inclusive term “manufacturing,” and the use of the word “processing” with reference to both primary and secondary stages of production. We do not attempt to address such problems at this time. In the case before us we have a company which clearly is engaged in the primary mining and secondary processing of a product. We hold that Meramec is entitled to an exemption from sales tax for the electricity used in the secondary beneficiation process. In ruling that an exemption is not available unless the cost of electricity exceeds ten percent of the total cost of all stages of production, the trial court erroneously applied the law.

We reverse and remand to the circuit court with instructions that it issue its writ of mandamus to the respondent Director of Revenue directing him to refund to relators the sum of $51,090.

MORGAN, C. J., and DONNELLY, RENDLEN and SIMEONE, JJ., concur.

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

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

BARDGETT, Judge,

dissenting.

I respectfully dissent. This case calls for an interpretation of a taxing statute of this state in which the taxpayer, Union Electric, seeks a refund under claim of exemption from sales taxes pursuant to sec. 144.030.-3(11), RSMo 1969, which exempts from Missouri sales tax: “Electrical energy used in the actual primary manufacture, processing, compounding, mining or producing of a product, or electrical energy used in the actual secondary processing or fabricating of the product, if the total cost of electrical energy so used exceeds ten percent of the total cost of production, either primary or secondary, exclusive of the cost of electrical energy so used”.

As noted the principal opinion, a statute providing a tax exemption is to be strictly construed against the party claiming the exemption.

I do not agree with the paraphrasing of the statute in question as set forth in the principal opinion as I believe that the paraphrasing inserts words into and leaves words out of the statute and thereby alters the meaning of it.

In my opinion, the clear intent of the statute was to include within the ambit of the exemption a variety of industrial activities conducted by any given company. The use of the word “or” was for the purpose of making clear that a company, in order to avail itself of this exemption, need not be engaged in all of the activities described in the statute but the company’s activities could encompass one or two but not all of them and the company would still be entitled to the exemption. However, I do not believe that this statute is subject to the construction which allows a company to have the exemption by simply administratively separating one of its activities from another. The subsection in issue here became part of the statute in 1967 and there has been no showing that the contemporaneous interpretation of this statute ever allowed this exemption to apply in the manner set forth in the principal opinion.

In other words, I think the disjunctive word “or” was used here so as to include more companies within the ambit of the exemption than would have been included had the conjunctive word “and” been employed, but I do not believe that the legislature intended that a company whose total cost of electrical energy used in the “primary manufacture, processing, compounding, mining or producing of a product, or electrical energy used in the actual secondary processing or fabricating of the product, if the total cost of electrical energy so used exceeds ten percent of the total cost of production, either primary or secondary, exclusive of the cost of electrical energy so used”, would be entitled to obtain the exemption provided for in this section by utilizing as “its total cost of production” a cost factor that applied to only one of the total production activities, such as mining. I believe that the meaning of the term “total cost of production” means the cost involved in the company’s activities from getting the ore out of the ground to the state of the product, whatever it may be, when it leaves that company.

For the foregoing reasons, I dissent and would affirm the judgment of the circuit court.

      . Section 536.150 RSMo Supp.1975 provides for review by injunction or original writ of administrative decisions not otherwise subject to judicial review.

      . Section 144.030.3(4) exempts from sales tax “[m]achinery and equipment, and the materials and supplies solely required for the installation or construction of such machinery and equipment, purchased and used to establish new or to expand existing manufacturing, mining or fabricating plants in the state if such machinery and equipment is used directly in manufacturing, mining or fabricating a product which is intended to be sold ultimately for final use or consumption;”

      . We realize that in West Lake activities performed after mining were classified as manufacturing rather than processing. However, the exemption being construed applied only to manufacturing, mining and fabricating; processing was not under consideration. We do not feel these terms are mutually exclusive. In states with similar tax exemption statutes processing and manufacturing are sometimes treated as equivalents and are sometimes distinguished. See Annot., 17 A.L.R.3d 7, § 4 (1968). In West Lake we defined manufacturing as “a process [which] takes something practically unsuitable for any common use and changes it so as to adapt it to such common use . . . .” 451 S.W.2d at 143. This term is an extremely broad one, which could encompass most of the terms used by the legislature in § 144.030.3(11), such as processing, compounding or fabricating. See, e. g., Wilson & Co., Inc. v. Department of Revenue, 531 S.W.2d 752 (Mo.1976) (manufacturing includes the processing of hogs into meat and other products).


author: DONNELLY, Judge.

text:
    STATE ex rel. DENNY’S, INC., et al., Respondents, v. Gerald H. GOLDBERG, Director of Revenue, Appellant.
    No. 60761.
    Supreme Court of Missouri, en banc.
    April 10, 1979.

      John D. Ashcroft, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for appellant.
    Dennis L. Davis, Hillix, Brewer, Hoffhaus & Whittaker, Kansas City, for respondents.
   DONNELLY, Judge.

It is asserted that this case involves the construction of the revenue laws of this state. Mo.Const. Art. V, § 3.

Respondents own and operate several “Denny’s” restaurant franchises at various locations throughout Missouri.

Pursuant to a written policy, respondents’ employees are permitted to consume one meal, free of charge, for each four hours of work. This policy is consistent with the custom of restaurant operators in the communities where respondents do business and elsewhere. The employees are paid a fixed wage. No additional compensation is paid if any meals are not eaten. No specifically identifiable labor or service is being paid for by the meals. The transactions at issue are thus distinguishable from one where labor or services are bartered solely for meals.

When an employee eats a meal, a guest check is written out and taken to the manager, who initials it. The check is then given to the cook and the cook prepares the employee’s meal. The employee’s meal checks are not rung up on the cash register and, therefore, are not considered as part of a restaurant’s gross sales.

Respondents have developed formulas, validated by periodic audits, which enable them to determine the average cost of each employee meal and to take the costs of employee meals into consideration in setting menu prices. The current average cost of an employee meal is $1.75. This represents a constant 1 — 1.5% of the gross, retail sales of each restaurant. This 1 — 1.5% figure is added to the figure representing the cost, to the restaurant, of all food items purchased from suppliers to determine the restaurant’s total food cost Menu price adjustments are determined on the basis of total food cost.

When purchasing food from suppliers, respondents’ restaurants do not make separate purchases for use in employee meals. When purchasing, respondents’ restaurants do not know what their employees will choose to eat. It is known, however, that employees will consume 1 — 1.5%, in value, of the food purchased. Although not the subject of a stipulation, respondents apparently pay no sales or use tax on food purchased from suppliers since the food is purchased for resale.

Respondents are required to pay Federal Insurance Contributions Act taxes on the value of meals provided to employees. For this purpose respondents value the meals at one dollar per employee per eight hour day and fifty cents for each day of six hours or less.

On September 29, 1975, appellant assessed an additional tax against each of respondents’ restaurants. The tax was on the value of the meals provided to respondents’ employees, with the meals being valued at the same level as is done for FICA purposes. Respondents paid the taxes under protest. This litigation was then initiated.

A hearing was held before a Department of Revenue hearing officer on January 20, 1976. Appellant concluded that provision of the meals does constitute a taxable sale at retail because the meal is tangible personal property exchanged for valuable consideration in the form of services. The value placed on the meals for FICA purposes was concluded to be a fair value for sales tax purposes.

Appellant’s decision was appealed to the Circuit Court of Jackson County, Missouri. The facts are stipulated. On March 27, 1978, the Circuit Court reversed appellant’s decision. The court ordered a refund of the tax paid under protest, plus interest, and assessed costs against the Director of Revenue.

This appeal was filed by the Director of Revenue on April 27, 1978.

Section 144.020, RSMo 1969, levies a tax “upon all sellers for the privilege of engaging in the business of selling tangible personal property * * * at retail in this state.”

Section 144.010, subd. 1(8), RSMo 1969, defines “sale at retail” as “any transfer made by any person engaged in business as defined herein of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration * * *"

The question posed on this appeal is whether the serving of meals by a restaurant to its employees without an exchange of money constitutes a “sale at retail” as that term is used in § 144.010, subd. 1(8), so as to render the restaurant subject to the gross receipts tax imposed by § 144.020.

We decline to rule the question, on the facts in this particular case, because we have concluded that tax on the value of the meals provided by respondents to their employees is being paid.

In the hearing before the Department of Revenue, respondents introduced testimony which tended to show that respondents know the cost to them of employee meals and factor this cost into the total cost of producing meals for the public. This testimony was not rebutted. Menu prices, upon which sales tax is paid, are set by reference to the cost of producing meals, including the cost of meals furnished to employees. The relationship between the cost of employee meals, total costs of production, and menu prices is shown through mathematical formulas used by respondents which are validated by periodic audits of respondents’ restaurants. The cost of the meals provided to employees is thus just another cost of production.

Respondents argue, persuasively we believe, that if the value of meals furnished to employees is taxed as . appellant proposes, the value of the meals will be sales-taxed twice. Since the value of the meals is a production cost to respondents, it raises the retail menu price of meals by an amount equivalent to the value of the meals. Part of the tax paid by restaurant customers on their meals is thus a payment of tax on the value of meals provided by the restaurant to its employees. Since the value of the meals is taxed once as it passes from restaurant to customers, a tax on the same value as it passes from restaurant to employee would be a double tax.

Although taxing the value of the meals provided to employees twice would not be unconstitutional, we cannot approve such practice in the absence of express legislative intent. Wood v. Deuser, 349 Mo. 1187, 1193, 164 S.W.2d 303, 305 (Mo.1942); 71 Am.Jur.2d State and Local Taxation § 33.

Respondents concede that the trial court erred in assessing costs against the Director of Revenue. In all other respects, the judgment of the trial court is affirmed.

The case is remanded for proceedings not inconsistent with this opinion.

MORGAN, C. J., and RENDLEN, SEILER, SIMEONE and WELLIVER, JJ., concur.

BARDGETT, J., concurs in result.


author: SIMEONE, Judge.

text:
    In the Matter of David V. BEAR, III, Respondent.
    No. 60459.
    Supreme Court of Missouri, En Banc.
    April 10, 1979.
    Jim J. Shoemake, Michael A. Fisher, St. Louis, for informant.
    Walter D. McQuie, Jr., McQuie & Deiter, Montgomery City, for respondent.
   SIMEONE, Judge.

I.

This is a disciplinary proceeding pursuant to Rule 5 against David V. Bear III, an attorney licensed to practice in this state. On November 9, 1977, the Advisory Committee charged Mr. Bear with various acts of professional misconduct allegedly contrary to the Code of Professional Responsibility, Rule 4.

The information filed by the Advisory Committee is in four counts:

1. That on or about April 15, 1972, respondent did tamper with evidence in a criminal case by erasure of a tape-recorded interview and interrogation of Larry Lee, a juvenile, by Officer Robert Muse contrary to DR 1-102(A)(4)(5) and (6) and DR 7-102(A)(1)(6).

2. That subsequent to April 15, 1972, and prior to the preliminary hearing in the case of State v. Larry Lee, Respondent did prepare and distribute a “schedule of events” knowing that some portions thereof were false and did distribute copies of said “schedule of events” to potential witnesses in the case of State v. Larry Lee to influence said witnesses to testify falsely contrary to DR 1 — 102(A)(5) and (6).

3. That prior to the preliminary hearing in the case of State v. Larry Lee, Respondent did obtain and show to his client, one Victoria Ransom, a picture of defendant, Larry Lee, in order to aid said client in the identification of the defendant, such conduct being impermissibly suggestive to said client well knowing that his client had never viewed the defendant in an identification lineup and had, in fact, made wrongful identification of two other persons in a lineup prior to the arrest of the defendant, contrary to DR 1 — 102(A)(5) and (6).

4. That in April of 1976, Respondent did engage in discussion of and exploration of a scheme to bribe a public official and furthermore Respondent failed to report the same to proper authorities at the time such discussion occurred, contrary to DR 1— 102(A)(4)(5) and (6). The first three counts refer to the “Larry Lee Matter” and the fourth count refers to the “Robert Brown Matter”.

The information prayed that Respondent be disbarred and that his right to practice law be terminated. An answer was filed by Respondent. In December, 1977, this court appointed the Honorable J. Donald Murphy as master to hear the evidence and make findings of fact and conclusions of law. A hearing was held February 27 — March 2, 1978.

II.

The Larry Lee Matter

On the evening of April 3, 1972, Miss Victoria Ann McKay Ransom, a student at Stephens College, had just finished doing the news for a radio station at Stephens College and was walking to a friend’s house. She noticed two men following her. She picked up her pace, but the two men confronted her. She started running. One of the men shouted, “Stop”; she turned around; he said “I have a gun.” She stopped. The man pointed the gun at her; she gave him $1.25. He asked if that wafe all there was, she said “Yes,” and then he shot her in the face. Part of her tongue was severed. The assailants escaped. Miss Ransom was hospitalized. Shortly after the incident, Miss Ransom’s father contacted Mr. Bear, the respondent, and requested that he be retained to advise and assist Miss Ransom and to assist the police department in the investigation of the case. The father indicated to Mr. Bear that he had checked with the Chief of Police and the Chief indicated that it was all right. Such a procedure — a private attorney assisting the police — was not “unusual” in this area, although “[i]t wasn’t a routine thing, so to speak.” Respondent was paid a fee which was not contingent upon results. Mr. Bear in this role assisted the police department in the investigation, gave legal advice to the police, discussed questions and problems with regard to the investigation, and was present or participated in various stages of the investigation or proceeding.

Police went to the hospital to show pictures to Miss Ransom. A composite drawing was made. On April 14, 1972, warrants were issued for the arrests of Ronnie Eugene Hickem and William Lorenzo Lawson. There was never a return to the warrants, presumably because they were in jail. On that same date a lineup was held in the courtroom of the Boone County Courthouse. Before the lineup, while Miss Ransom was waiting in an anteroom, respondent gave her a general description of two of the six or seven persons who were to be in the lineup without stating their names or positions, but stating that one was “old looking” and one “very tall”. He told her to be “very careful” before she selected someone. At the lineup Miss Ransom was very nervous and afraid. According to Miss Ransom she could not visually identify anyone at the lineup, but did identify one of the persons by voice — a man by the name of Taylor. According to one witness, Suzanne Gladney, Miss Ransom did identify one person, but not Lawson or Hickem.

After the lineup and contrary to the fact, Detective Sergeant Robert Muse who was present at the lineup and involved in the investigation, at the suggestion of respondent, told Lawson that he (Lawson) had tentatively been identified in the lineup. During a previous interrogation of Lawson, he mentioned that Larry Lee was involved in the incident. Lawson was released with the understanding that when he was released he was going to obtain, if possible, information from Lee regarding the shooting. Some short time later, Lawson called Detective Muse and informed him that Lee and Dale Quint were involved.

On April 15, 1972, respondent attempted to obtain an arrest warrant from Timothy (Tim) Ann Sloan, an assistant prosecutor. However, the prosecutor declined to seek a warrant for lack of .probable cause. Respondent then suggested that Lee and Quint be “picked up” but not to place them under arrest. On the evening of April 15, about 5:30 or 6:00 p. m. Lee was “picked up” and brought to the police station by Officer Jessie Brown. At that time several police officers, including Detective Palmer and Officer Carroll Highbarger and Sergeant McGrath were present. So was respondent. Detective Muse was not present at that time. Detective Muse was called at home and he went to the station. Before Lee was brought to the station, the respondent obtained his tape recorder from his office and brought it to the station. The recorder would not fit properly in a drawer in the police room so Sergeant McGrath used his tape recorder and placed it in the room where Lee was brought in. According to the respondent Lee was to be informed that he was not under arrest and that he could leave at any time. At the police station, in the presence of one or more officers, Lee was given Miranda warnings and was told he could leave. Present were Sergeant McGrath, Mr. Bear, and Detective Carroll Highbarger. After warnings were given, Muse interrogated Lee alone, and the others went to an adjoining room. The interrogation of Lee by Muse was recorded. Muse informed Lee that “Bear was there and that if [Mr.] Lee had not committed the offense, that Mr. Bear would help him.” Muse remembered telling Lee that Bear “was there acting on behalf of the Police Department and if he was not involved, he had nothing to worry about, because Mr. Bear would see that he wasn’t involved, words similar to that.”

After interrogating Lee for 10 or 15 minutes, Detective Muse learned that Lee was a juvenile. The entire colloquy was tape recorded. After learning that fact, Muse went out of the room and talked to Sergeant McGrath or Mr. Bear and told him “we better get ahold of the Juvenile Officer right away, because he just told me he was 16.” Arrangements were made to have a juvenile officer, Mr. Homer Thayer, brought to the station. Mr. Thayer arrived. Lee was interviewed again in the presence of the juvenile officer, and a written statement in which he admitted robbing Miss Ransom was taken about 8:00 p. m. In this statement Lee stated the gun went off accidentally. That same evening Dale Quint was interrogated.

After the interrogation of Lee on the evening of April 15, either that evening or a day or two later, the respondent erased the tape. According to Detective Muse the tape, except for the statements by respondent Lee, was erased by the respondent the same evening of April 15. But according to respondent it was erased a day or two later. Respondent became “mad” because of the statements made by Muse about his intending to help Lee. According to respondent, the tape was also erased because Lee was a juvenile and the statement on the tape was, in the words of respondent, “absolutely worthless.” There was a question in Muse’s mind whether this was proper procedure. After erasure, respondent gave the tape to Sergeant McGrath stating: “Ted, you might keep the first part of this tape in the event we ever have to prove to Chuck [prosecutor] that this boy was not arrested against his wishes.” Neither Muse nor respondent reported the erasure to the prosecuting attorney.

Several days after Lee was interrogated on April 15, respondent, Highbarger, McGrath and Jessie Brown met, but not by prearrangement, at a lounge — The Velvet Lounge — in a local hotel. There the men talked about the chain of events. Respondent prepared a “schedule of events” which according to Muse “we could all, you know, have the right time and dates down where we could be together on it.” “It was just so everyone would have general knowledge as to the chain of events.” At the lounge respondent indicated that a preliminary hearing would be coming up so he suggested that the officers discuss it to make certain of the chronology of events. At the lounge respondent wrote out the “schedule of events”. He later made photocopies and distributed it to the officers. The schedule of events is a two-page printed chronology of the actions of the police officers and respondent on April 15. The schedule of events follows:

“6:30 — Bear goes to court house for warrant. Muse tells Jesse [sic] to see if Lee will come in voluntarily. Ted and Muse leave . . . . (Highbarger not there)
“6:45 — Jessie picks up Lee at pool hall. Tells him not under arrest but wants him to come to station to answer questions about shooting. Lee says O.K. But doesn’t know anything about it.
“7:00 — Jessie brings Lee in. Bear comes in at same time. Ted already there. Muse not there yet. Lee told him not under arrest, told can leave anytime. Lee says will stay and talk. Highbarger comes. Ted gives warning off card. Highbarger introduced as cop, deputy, juvenile officer, investigator, jack of all trades. Ted turns on tape. Bear gives warnings. Larry signs waiver. Muse comes in. Tape unpluged [sic] and removed from room. Every body [sic] but Muse Lee and Highbarger, stays. High-barger in room in doorway approximately 2 ft. away, from Muse and Lee.
“8:00 — Muse takes confession. Lee confesses. Call to Homer Thayer — Thayer comes in.”

This schedule did contain certain inaccuracies. The tape recorder was not unplugged and removed prior to the interview of Lee; according to Highbarger he was not introduced at all, and he was not in the doorway and not two feet from Muse at the time the confession was taken. Muse however testified that the schedule in this regard was an accurate statement. Omitted from the schedule was any reference to the taped confession or the erasure of the tape. Respondent testified that he felt that there were things on it that were incorrect but that it represented the combined recollection of himself and the officers. Muse testified that it was a recordation of the collective recollection of the officers involved. The respondent denied that he suggested to the officers that they should testify falsely or give false evidence in the Lee or Quint cases. A copy of the schedule was later given to the prosecutor by Highbarger. It was never used as a basis for testimony by any witness in any subsequent court proceeding.

In May, 1972 Lee’s preliminary hearing was held, Lee previously having been certified for trial as an adult. Miss Ransom was “very reticent” to go to the preliminary hearing. At that time her jaw was “wired up” and she was frightened. She was afraid she would “lose my cool.” She indicated to respondent, “I wished — perhaps if I could have a picture of him, not for identification purposes, but just to kind of prepare myself so that when I went in there, that I wouldn’t just, you know, freak out at seeing him.” About an hour or so before the hearing respondent, having earlier obtained a picture of Lee, showed a picture to Miss Ransom. The picture was not identified in any way. Respondent pulled out the photograph and showed it to her, but didn’t say anything. Miss Ransom had always asserted that she could identify the person who shot her. At the hearing she “immediately recognized the young man who shot me.” At the hearing she did identify Lee as the person who shot her. When examined concerning the showing of the picture to Miss Ransom respondent admitted that he took a “trial risk” in showing the picture to her. Respondent did not tell her to deny seeing the picture.

On November 13, 1972, Lee having been charged with robbery and assault pleaded guilty to a charge of assault with intent to kill and was sentenced to 15 years. The robbery charge was dismissed.

On January 18, 1974, Lee filed a motion to set aside the judgment and sentence pursuant to Rule 27.26 alleging that the complaining witness had no independent means of identifying him, favorable information was not made available to him and the confession was obtained in violation of constitutional rights. After a hearing, the circuit court made findings of fact and conclusions of law and denied relief holding that the existence of inadmissible confessions and the destruction of the tape are not sufficient to invalidate the guilty plea, that the exhibition of the picture was not sufficient to grant relief because it was not the sole means by which the complaining witness identified the defendant. The Court of Appeals, Western District, reversed. Lee v. State, 573 S.W.2d 131 (Mo.App.1978). The court reversed the circuit court and permitted Lee to withdraw his plea. The court held that since no disclosure was made to defense counsel with respect to the misidentification which Miss Ransom had made at the lineup this was a material matter and such nondisclosure was prejudicial.

The master in this proceeding found that respondent tampered with evidence in a criminal case by erasure of the tape-recorded interview and that such conduct violated the Code of Professional Responsibility and recommended that he be publicly reprimanded. The Master dismissed counts II and III.

The Robert Brown Affair

The Robert Brown affair arises out of the representation by respondent of a client, James M. Morris, in April, 1976. Mr. Morris was the owner of J. M. Morris Construction Co. of Kansas City. He desired to build an asphalt plant on a 40-acre tract of land in Boone County. In order to do so it was necessary that the tract be rezoned. Mr. Morris was prepared to expend $500,000 on the project. Mr. Bear was retained to aid in accomplishing the rezoning. Robert E. Brown was, in that year, the presiding judge of the Boone County Court. Mr. Brown and respondent were close friends. There were two other members of the County Court — Judge Carolyn Lathrop and Judge Clarence Drew. Brown was also a member of the Zoning Commission. The proposed rezoning met with opposition from the surrounding land owners. On April 15, 1976, the planning and zoning commission voted unanimously to deny the rezoning. The County Court was to vote on the matter on April 22,1976. Between those dates, respondent and Brown met twice in Brown’s office and discussed how a favorable vote could be obtained before the three-member county court. The testimony as to what occurred in these conversations is in direct conflict.

According to Brown, at the first meeting, respondent came into the office and was “quite distraught.” Respondent told Brown that an earlier hearing of the zoning commission had been held at which no vote was taken and there was opposition. Bear told Brown that he thought the community should have the plant. Bear inquired how to obtain the votes of the judges of the county court. There was a general discussion about both judges and how to get their vote. According to Brown, respondent said “Well, I don't know how these things are handled in the county, but ... I know down at City Hall, all you have to do is put a thousand dollars on the right desk and you can get these things done.” Discussion was had on how to obtain Mr. Drew’s vote. In the second conversation, according to the testimony of Brown, respondent asked Brown what he thought it would take to make Drew stay home. In that conversation, respondent, according to Brown, stated “Do you think he would do it [abstain] for $10,000?” The substance of Brown’s testimony was that it was the respondent who approached Brown about offering money to Drew to influence his abstention from the meeting. Brown testified that he was “pretty sure” respondent was the first one to mention the $10,000 figure.

Respondent’s testimony was directly to the contrary. Respondent testified that in the first conversation when it was discussed how to achieve Drew’s vote, Brown said “Well, he likes to play.”, and that “Clarence has accepted presents for favors before, nothing big, maybe a bottle of whiskey, a case of whiskey . . . .” Respondent said “You mean a bribe?” Brown said, “Well, I don’t mean to say it that way,” or something to that effect. Respondent then said, “I’m not going to have anything to do with that.” “I’m going to get involved in a bribe.” Brown suggested that respondent call him later. When respondent did not call, Brown called him and left a message. Respondent then went to Brown’s office. At the second meeting, apparently on April 21, the day before the county court meeting, Brown reported that he talked to Drew and that Drew could arrange to stay home. Then “my vote would override the other Judge’s vote.” Brown said, “Clarence has a bad heart, Dave, and he needs a heart operation. It’s going to cost about $10,000 . Clarence is a little hard up for money right now.” Respondent then stated that “Bob, I’ve told you I’m not going to get involved in that” or “have anything to do with that.”

According to respondent, following this second meeting he discussed the matter with his partners and later informed Mr. Morris. Mr. Morris testified that as a matter of “factual reporting” that if “we were willing to spend $10,000 that a possible vote on the rezoning might be obtained.” Morris said he didn’t want any part of it, and to inform Brown. At that meeting in respondent’s office, Mr. Hines, respondent’s partner, indicated that under no circumstances would the law firm be involved in this matter. Respondent then placed a call to Brown and advised him of their disinterest.

On April 22, 1976, the Boone County Court voted against the rezoning. Within a few days thereafter, Morris informed a local banker, Mr. Hartley Banks, about the event and expressed his displeasure. Someone, perhaps Mr. Banks, in turn, on April 27, contacted the Circuit Judge who called the prosecuting attorney, Milt Harper. On April 28, Mr. Harper contacted Mr. Morris who told him of the events. On April 29, Mr. Hines, respondent’s partner contacted the Secretary of the Thirteenth Judicial Executive Bar Committee, Arthur Oliver, and met with him the next day to discuss the matter. Hines related the information that Brown had in some manner attempted to solicit a bribe and asked whether the event should be filed with the local disciplinary committee or with the prosecuting attorney. Oliver recommended that the matter be disclosed to the prosecuting attorney and that he would discuss the matter with the other members of the committee. Mr. Hines assured Mr. Oliver that he would see that “Mr. Bear went directly to the Prosecutor.”

According to the prosecutor, Mr. Milt Harper, Mr. Bear called him on April 29 and Mr. Harper met with Bear the next morning. That morning Bear said he had “something on his mind” but did not want to go into all the details because he wanted to “tell the story” to him and to Mr. Oliver. He said it involved an offer of some type; but that Judge Brown “was clean.”

At about 3:30 p. m. that same day, respondent and his attorney met with Harper and gave his version of the affair.

Mr. Brown was subsequently indicted by the grand jury. There were two indictments totalling five counts — three counts of perjury before the grand jury, one count of subornation of perjury and one count to influence a witness. Respondent was the principal witness before the grand jury. Subsequently, as a result of a plea bargain, Brown entered a plea of guilty in Camden County to a two count substituted information charging oppression in office, a misdemeanor, and was fined and placed on probation.

Respondent testified that between April 21 and 28 he was out of town involved in various cases; that he could have picked up the telephone from Brown’s office on April 21, the date of the second meeting with Brown but—

“ . . . [M]y God, this guy was a close friend. His wife was probably my wife’s closest friend. I knew what my reporting of him was going to do, if not to him, most likely to me. And I didn’t view it at all with pleasure. If there was any way in the world I could have turned so it never happened, I would have done it.”

As to this count, the master recommended that it be dismissed.

III.

In this type proceeding, the findings and conclusions of the master are advisory and it is the duty of this court to review the evidence. The credibility, weight and value of the witnesses and the determination of all fact issues are for this court. In re Schiff, 542 S.W.2d 771, 772 (Mo. banc 1976). The charges must be sustained by a preponderance of the evidence. Matter of Duncan, 541 S.W.2d 564, 569 (Mo. banc 1976).

The Erasure of the Tape

The issue arises as to whether the erasure of the recorded interview of Lee constitutes unprofessional conduct in violation of the disciplinary rules of the Code of Professional Responsibility.

Under the decisional law at that time, the statements made on the tape by Lee to Detective Muse may well have been inadmissible for several reasons. The statement was taken before Lee was taken to a juvenile court, no juvenile officer was present, no parent was present and full warnings were not given. See Arbeiter I, 408 S.W.2d at 30.

However, in this case, the respondent held a special status; he was an advisor to the police department in an on-going investigation of a criminal case; he was an ad-visor and confidant of the victim. The motives which respondent had in intentionally erasing the tape were varied — he was angry at what Muse had told Lee about respondent helping Lee; the statement was not evidence and was “worthless”; he was embarrassed because of the “lie” told to Lee. Whatever the motives the fact is that respondent did intentionally erase the tape.

The tape may well have proved to be inadmissible or “worthless” in any subsequent proceeding; but, it was a “statement” by the defendant, it was “evidence” in a criminal proceeding; it was subject, at the time, to discovery (Rule 25.195, effective 1965); and it may have tainted the two subsequent confessions of Lee. Cf. Wright, 515 S.W.2d at 427. While the inferences are contrary, it also may have contained exculpatory matter beneficial to Lee. The point is that in these special circumstances it was not respondent’s prerogative to make these determinations. Those determinations are for a judicial officer to make and not respondent. The fact is that the tape was “evidence” in a criminal proceeding. There was an on-going criminal case with Lee as the focus of the investigation, and in such circumstances, for whatever motive, the respondent made the determination to erase the tape. Because of his special status and under the circumstances, we cannot condone this intentional erasure of the tape, and although not malicious, respondent engaged in conduct in violation of the Code of Professional Responsibility by “tampering” with “evidence” in a criminal case. DR 1-102(A)(5). It has generally been held that an attorney’s destruction of evidence which he knows may be required upon a trial or judicial proceeding constitutes a breach of professional duty and subjects him to discipline. See Annot., 40 A.L.R.3d 169-193 (1971); In re Ryder, 263 F.Supp. 360 (D.C.Va.1967).

We agree with the master, however, that a reprimand is sufficient in this instance and such a reprimand will serve the ends of justice. Lee pleaded guilty, and as things turned out the erasure did not affect his rights. The erasure took place several years before the information was filed against respondent. The erasure was done with a conviction that the tape was wholly inadmissible and embarrassing. Under these circumstances, reprimand will serve the ends of justice.

The Schedule of Events

The informant contends that the master erred as to Count II in finding that there was not sufficient evidence to prove that the “schedule of events” was used to influence witnesses to testify falsely. We agree with the findings of the master in this regard and dismiss this count.

As to Count II, we believe that there was not a preponderance of the evidence to show that respondent prepared the schedule of events to influence the witnesses to testify falsely. The officers and respondent had no planned meeting at the Velvet Lounge. The manner in which the document was prepared does not indicate it was an attempt to influence the witnesses on how to testify. It was a combined recollection of events. Respondent met several of the police officers in a public place. Over refreshments, he wrote down a summary of the events; the document indicated more emphasis on the sequence rather than the substance of the events. Both respondent and Muse testified that the schedule reflected the collective recollection of those present. There are some inaccuracies in the document, one of which was significant: the tape was not unplugged. But while there were inaccuracies, and some omissions or mistakes, the preponderance of the evidence is not such that it was used to or intended to influence the officers to testify falsely. The schedule was never used as a basis for subsequent testimony in any criminal proceeding, and there is no proof of resultant prejudice to anyone. We agree with the master that the schedule of events is not a basis for disciplinary action. Count II is dismissed.

The Showing of the Photograph

As to Count III, the testimony of Miss Ransom establishes that respondent’s conduct in showing her a picture of Lee some short time before the preliminary hearing was not so impermissibly suggestive so as to give rise to a substantial likelihood of irreparable misidentification. The linchpin of identification testimony is reliability. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977); State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975). Some time before the preliminary hearing in May, 1972, Miss Ransom requested respondent to show her a picture of the person charged as her assailant. At the time she was upset and suffering physically. She told respondent she was frightened and reluctant to appear at the preliminary hearing and asked respondent if she could see a picture “not for identification purposes, but just to kind of prepare myself so that when I went in there, that I wouldn’t just, . freak out at seeing him.” She had not previously viewed Lee but always asserted she could identify the person who shot her. About an hour before the hearing respondent showed Miss Ransom a photograph of Lee which he had obtained from Detective Muse. At the hearing, Miss Ransom identified Lee as her assailant. She was the only witness and was not cross-examined. Respondent said nothing to her when he showed her the picture. Although he admitted there was a trial risk, he did not tell her to deny having seen it. Respondent did not initiate the action.

Under these circumstances we cannot conclude that by the showing of the picture that the respondent violated DR 1-102(A)(5) or (6). Count III is dismissed.

The Robert Brown Affair

As to the Robert Brown matter, we conclude that respondent is not in violation of the Code. Respondent was charged with engaging in discussion and exploration of a scheme to bribe a public official and “furthermore” in failing to report the same to proper authorities. The testimony and evidence on this charge was completely contradictory — Brown indicating that respondent initiated the solicitation of a bribe and respondent testifying that it was Brown who suggested it. The informant did not contend that respondent conspired with Brown and the evidence does not support such a finding. The issue turns on one of credibility as to whether respondent engaged in discussion and exploration of a scheme to bribe a public official. Brown was the only witness to testify that respondent suggested the scheme to bribe Judge Drew. His testimony is made somewhat suspect by his subsequent plea of guilty of oppression in office in Camden County. There was no testimony from other witnesses that respondent engaged in discussion and exploration of a scheme to bribe Judge Drew with intent to influence his vote. Respondent related the matter the same day to Mr. Morris and his partners. Upon the whole record, and especially in view of the plea by Brown, we hold that the preponderance of the evidence did not show that respondent violated the Code.

Neither can we say that respondent failed to timely report the same to proper authorities. Failure to report must be construed as a failure to report within a reasonable time after the solicitation and not necessarily instanter. Taking April 21, as the date of the initial solicitation, respondent officially informed the prosecuting attorney within nine days thereafter. Before that he told his partners and several other persons. His partner, Mr. Hines, made an appointment on April 29, with the secretary of the disciplinary committee and on April 30 conferred with him. Respondent testified that he did not see the prosecutor until the 29th because of his work schedule. He gave as a further reason that his close friendship with Brown caused him agony. While there are circumstances tending to show that respondent made no effort to report the solicitation until after the matter had become known, the fact is he did report it to the proper officials within a reasonable time.

We agree with the master that Count IV should be dismissed.

IV.

The respondent at the time of the hearing was thirty-five years old and a member of the Bar since 1969. At the time of the Larry Lee matter he had been an attorney for less than three years. He is associated with an established firm. Twenty-one character witnesses including fifteen attorneys, one banker-mayor, a former mayor, one probate-magistrate, two circuit judges, and one appellate judge testified as to his good reputation for competence, honesty and reliability.

In view of all the testimony and evidence in this proceeding we believe that under Count I of the information respondent should be reprimanded and that Counts II, III and IV should be dismissed.

V.

The main purpose of a disciplinary proceeding is to inquire into the fitness of an attorney to continue in the practice of law. The objective is not to punish the attorney but to protect the public and to protect the integrity of the profession and the courts. In re Randolph, 347 S.W.2d 91, 109 (Mo. banc 1961). “Disbarment is the extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards. To disbar it should be clear that he [or she] is one who should never be at the bar; . . . . For isolated acts censure, public or private, is more appropriate.” In re Sullivan, 494 S.W.2d 329, 334 (Mo. banc 1973).

The court commends counsel on both sides for their work in this case which was performed in a professional manner. Their services were in the finest traditions of the Bar. The court also expresses its appreciation to the special master for conducting the hearing and filing his excellent report.

As to Count I, the respondent is reprimanded. As to all other counts the respondent is discharged.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SEILER, JJ., and WELBORN, Special Judge, concur.

WELLIYER, J., not sitting.

      . DR 1-102: “(A) A lawyer shall not: .
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
      DR 7-102: “(A) In his representation of a client, a lawyer shall not: (1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another. ... (6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is •false.”

      . The practice of allowing a private prosecutor to participate in the prosecution of a defendant was found later to be fundamentally unfair. See State v. Harrington, 534 S.W.2d 44 (Mo. banc 1976).

      . Although Detective Muse indicated that he “wouldn’t say [Mr.] Bear suggested it. [To pick them up] would be standard police procedure, as far as I’m concerned.”

      . On April 19, 1972, another statement was taken which referred to the gun used in the robbery. He stated that on the night he was arrested he gave the gun to another person— “because it had [sic] went off accidentally and I did not want anything else to do with it.” He also stated that on April 19, he was shown the same gun by Detective Muse. This statement was signed by Lee, Lee’s father, Detective Muse and Carroll Highbarger, as “Juvenile Officer.”

      . Respondent stated a day or two later after thinking about the tape he became “madder and madder” and became upset because of what Muse told Lee about helping him. It was, to respondent, offensive, embarrassing and a lie.
      Highbarger testified that respondent told him “you should have heard that tape .... I had to erase it. Lee did not want to give a statement. Muse had to talk him into it. Muse had to tell him that I was his attorney.”

      . One photocopy [Inf. Exhibit 12] contained deletions and additions to the original. The evidence is inconclusive as to when and by whom these changes were made. Respondent denied making any changes.

      . Muse stated that the schedule fairly portrayed the events as they occurred on April 15 except for the unplugging of the recorder.

      . She stated that he exhibited mannerisms at the hearing which he exhibited the night of the robbery — for example he picked his teeth.

      .The court found that Miss Ransom selected either Hickem and Lawson or Taylor as her assailants. But in the record here there was no such evidence. Some identification of someone was made by voice.

      . Morris testified that “Dave informed Bob Brown of what I had said, that we were not interested in this particular offer and I would have assumed from the conversation that Brown was inquisitive as to why and was more or less persuading Dave that we should do this thing.”

      . Respondent denied that he said that Brown was not involved and denied using the word “clean” — according to respondent Harper asked whether Brown tried to “bribe you” and respondent said “No, that’s not exactly it, but I want to wait until Art Oliver is here.”

      . Under the decisional law at that time a confession to police by a juvenile taken before he is taken to the juvenile court was and is inadmissible. State v. Arbeiter, 408 S.W.2d 26 (Mo.1960) [Arbeiter I], See later decisions State.v. Reagan, 427 S.W.2d 371 (Mo. banc 1968) [Arbeiter II]; State v. Arbeiter, 449 S.W.2d 627 (Mo.1970) — statements made to juvenile officer without warning after certification inadmissible. [Arbeiter III].

      In State v. Sinderson, 455 S.W.2d 486 (Mo.1970) — statement made to officers in presence of juvenile officer and mother with warnings held admissible where the setting was not a relaxed, nonadversary parens patriae situation.
      Several decisions followed Sinderson. In State v. Wright, 515 S.W.2d 421 (Mo. banc 1974) it was held that if after he has been granted his federal constitutional Fifth and Sixth Amendment rights, a juvenile subject to jurisdiction of the juvenile court makes a voluntary statement to someone other than a juvenile officer or juvenile court personnel, and if it is made clear to the juvenile that criminal responsibility can result from any statement he makes, and if the questioning authorities are operating as his adversaries rather than his friends, such statements are admissible. Wright also held that a second confession is not necessarily tainted because of a previous one. See also In Interest of A. D. R, [Rone], 515 S.W.2d 438 (Mo. banc 1974) — statement to police in presence of juvenile officer after warning that statement could be used in criminal trial admissible (desirability to inform that juvenile may be certified); State v. McMillian, 514 S.W.2d 528 (Mo. banc 1974) — statement inadmissible where warning to juvenile and mother indicated juvenile may be charged with a criminal offense; State v. Ross, 516 S.W.2d 311 (Mo.App.1974) — statement inadmissible when explanation did not make clear that criminal responsibility could result.

      . Cf. United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971) where tape recording by officers of conversations taking place in next room regarding sale of narcotics was not preserved because officer never intended tape to be used in evidence, the court of appeals remanded for a determination of the degree of bad faith and the importance of the evidence lost.

      . One lawyer indicated respondent did not enjoy a favorable reputation for veracity and honesty. Another lawyer indicated that a substantial number of lawyers considered his reputation for fair dealing “bad”.


author: TITUS, Judge.

text:
    Ralph VINYARD, Plaintiff-Appellant, v. Lawrence J. HERMAN, Defendant-Respondent.
    No. 10403.
    Missouri Court of Appeals, Southern District, Division One.
    March 9, 1979.

      John B. Newberry, Springfield, for plaintiff-appellant.
    Dee Wampler, Stephen L. Shepard, Wam-pler & Wampler, Springfield, for defendant-respondent.
   TITUS, Judge.

Brothers-in-law plaintiff and defendant, as equal shareholders, formed a corporation in 1970 to conduct a farm supply business. Plaintiff managed the business, was responsible for all facets of its operation and was paid a salary. Defendant received no salary, did not work at the store, was not directly involved in running it and possessed no key to the emporium. Albeit defendant cursorily and infrequently perused the records, he asseverated that he relied upon plaintiff to advise him on current standings of the affairs of the corporation. In April 1973, plaintiff represented he had a buyer for his shares willing to pay $90,000 therefor, but, per prior agreement, offered defendant first chance at the purported bargain. An agreement was struck whereby defendant was to pay the $90,000 via three $30,000 interest bearing promissory notes payable, respectively, in April 1974, April 1975 and April 1976. The principal on the first note and all interest then due on the others were duly paid. However, defendant thereafter balked at paying either the principal or interest on the two remaining notes and plaintiff brought suit (in two counts) thereon. Defendant answered and counterclaimed averring that he was induced to buy plaintiff’s shares through false and fraudulent representations concerning the success of the business and the value of the stock; defendant prayed for rescission of the sale and restitution of all cash previously paid, or, alternatively, for $100,000 actual damages, exemplary damages, et cet-era. Following trial, the jury returned verdicts for defendant on plaintiff’s petition and for plaintiff on defendant’s counterclaim. Plaintiff alone has appealed.

Plaintiff’s points relied on II and IV are penned rather obtusely and appear transposed and somewhat commingled in the argument portion of the brief. Nevertheless, we understand the points as asseverating that defendant was not entitled to have his defense of fraudulent misrepresentations submitted, or, if so, instructions 3 and 5 erroneously omitted requiring the jury to find that defendant, in relying on plaintiff’s representations, was using ordinary care.

At defendant’s request, the trial court gave two nearly identical instructions (number 3 and 5) relative to Counts I and II of plaintiff’s petition, viz: “Your verdict must be for the defendant on Count I [II] of plaintiff’s petition if you believe: First, plaintiff represented to defendant that the value of the plaintiff’s share of the business was $90,000.00, that the business was profitable and that the profits during 1972 had exceeded $10,000.00, intending the [that] defendant rely upon such representations in purchasing plaintiff’s share of the business, and Second, the representations were false, and Third, plaintiff did not know whether the representations were true or false, and Fourth, the representations were material to the purchase by defendant of plaintiff’s share of the business, and Fifth, defendant relied upon the representations in making the purchase, and Sixth, as a direct result of such representation [sic], the defendant was damaged. (MAI23.05 modified Submitted by Defendant).” As written in MAI 23.05, the fifth paragraph reads: “Fifth, plaintiff (defendant herein) relied on the representation in making the purchase, and [in so relying plaintiff (defendant herein) was using ordinary care, and].” The Notes on Use indicate the bracketed portion of the fifth paragraph is to be omitted “when the right to rely is not in issue.”

In reviewing plaintiff’s contention that the evidence was not sufficient to support the giving of defendant’s instruction on fraudulent misrepresentation, the evidence is to be reviewed in the light most favorable to the verdict with all the inferences from the evidence drawn in favor of the verdict. Frantz v. State Farm Mut. Auto. Ins. Co., 526 S.W.2d 345, 346[1] (Mo.App.1975). When so viewed and in substance, the evidence disclosed that prior to selling his shares in the close corporation, plaintiff was, in reality, operating the business in a manner which- would suggest that he was its sole proprietor. Though defendant owned equal shares, plaintiff was indubitably the only active and the lone managerial officer of the corporation in whom defendant reposed complete trust. Whenever defendant may have occasionally questioned the success of the venture, his doubts were swiftly and repeatedly allayed by plaintiff’s assurances that the business had been continuously profitable as evidenced by displayed monthly summary sheets, income tax returns and other matters arrayed in support of plaintiff's pronouncements. The circumstances clearly indicate that a confidential relationship existed between the parties and was applicable to plaintiff’s dealings with the defendant. Merrill v. Davis, 359 Mo. 1191, 1200, 225 S.W.2d 763, 767[4] (1950). When a confidential relationship obtains, the general rule requiring the representee to exercise due diligence to avail himself of information within reach does not apply, and the representee is entitled to redress on representations which would otherwise harbor no relief for expressions of opinion relating to success or value. 37 C.J.S. Fraud § 35 a., pp. 282-284. Also, recovery on the ground of fraud will not be defeated because the representee has means of discovering fraud when there is a positive representation of fact [Hutchings v. Tipsword, 363 S.W.2d 40, 46[8] (Mo.App.1962)], and “one may act ‘upon a positive representation of fact notwithstanding . the means of knowledge [are] especially open to [the person to whom it is imparted].’ . . . And this principle has special validity in circumstances where-the facts may be assumed to be within the knowledge of the person who declares them.” Dewey v. Jenkins, 567 S.W.2d 382, 388 (Mo.App.1978).

In MAI 11.02 “negligence” is defined as “the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances” and, compatible therewith, in MAI 11.05 “ordinary care” is said to be “that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.” Therefore, the definition of “negligence” is tantamount to defining lack of “ordinary care” and vice versa. The bracketed portion of paragraph Fifth of MAI 23.05 reading “[in so relying plaintiff (defendant herein) was using ordinary care, and]”, supra, appears to go against the grain of the law. “Where the issue of fraud involves the element of the right to rely on the alleged fraud-fea-sor’s representation, it is misleading to say the evidence must show fraud plus absence of negligence [or fraud plus the use of ordinary care]; and it is a misnomer to use the word ‘negligence’ in this connection, if it is understood as carrying its usual signification, because ‘the law of fraud does not exact of the victim that degree of caution which some other hypothetically prudent person would have used, but only reasonable care in view of his situation.’ ” Wood v. Robertson, 245 S.W.2d 80, 84[3] (Mo.1952); Tietjens v. General Motors Corporation, 418 S.W.2d 75, 86 (Mo.1967); Kestner v. Jakobe, 446 S.W.2d 188, 195[7] (Mo.App.1969). But the apparent disparity which the writer gleans between the bracketed portions in paragraph Fifth of MAI 23.05 and the law just recast, need not be fathomed further. As the foregoing attests, we hold that under the circumstances herein the giving of the instruction was proper, that defendant had the right to rely and that the bracketed portion of paragraph Fifth was not required. Moreover, if there were facts which the plaintiff felt justified a more specific direction as to defendant’s duty to use ordinary care before defendant relied on plaintiff’s representations, plaintiff should have asked for such an instruction. “Nondirection in that respect was not error.” Monsanto Chemical Works v. American Zinc, Lead & Smelting Co., 253 S.W. 1006, 1010-1011[11] (Mo.1923); Bowers v. S-H-S Motor Sales Corporation, 481 S.W.2d 584, 589 (Mo.App.1972).

Plaintiff’s point III reads: “The Court erred in not granting plaintiff a new trial based upon the affidavits submitted with plaintiff’s motion for a new trial showing that Defendant had committed perjury since such facts were proved by affidavits and not controverted by the Defendant.” This point relied on is penned in patent disregard of the requirements of Rule 84.-04(d), V.A.M.R., which are mandatory. M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470[1] (Mo.App.1974). The recitations, supra, are unadulterated abstractions because they do not state, in factual fashion, wherein and why defendant allegedly committed perjury and wherein and why the affidavits, whatever they were, demonstrate the commission of perjury. Simpson v. Island View Sales Corp., 540 S.W.2d 624, 625[3] (Mo.App.1976). To understand the point as written, would require a study of the transcript on appeal and the argument portion of plaintiff’s brief. This is something we are not required to do. Brewer v. Blanton, 555 S.W.2d 381, 386[12] (Mo.App.1977).

Plaintiff’s point relied on I, which we consider last, says the trial court erred in allowing defendant to recount that plaintiff had refused his offer to compromise this dispute. In our opinion the trial court committed reversible error in permitting the defendant to testify, over plaintiff’s objection, that defendant made this statement to the plaintiff in April 1975: “I told [plaintiff] that I wanted to share my part of the loss ... I didn’t want to beat [him] out of a penny. . . . That I would be willing to get an auditor, and if the way [plaintiff] sold the corporation was within $10,000 of the way it was supposed to be, I would pay the audit and all expenses and pay him every dime that we agreed to. And if there was more than $10,000 off that [plaintiff] would pay the audit expense and we would share the loss fifty-fifty.” The obvious inference was that plaintiff did not accept.

Plaintiff’s counsel objected to that testimony, and moved that it be stricken and the jury instructed to disregard it, on the ground that it was “an offer of compromise.” During preliminary questioning leading up to the attacked testimony, plaintiff’s counsel had also objected on grounds of irrelevance and that the statement was self-serving.

We have found but two cases, neither cited by the parties, which approach the question; i. e., Harrison v. St. Louis Public Service Co., 251 S.W.2d 348, 353[9] (Mo.App.1952), and Aiple v. South Side National Bank in St. Louis, 442 S.W.2d 145, 152[11] (Mo.App.1969). However, for reasons stated, infra, neither Harrison nor Aiple, in our opinion, is authority for sustention of the trial court’s ruling.

Harrison, 251 S.W.2d at p. 353, contains this statement: “[T]he prohibition against reference to offers of compromise inures only to the benefit of the proponent of the offer.” In that case the defendant argued, on appeal, that the plaintiff had improperly injected the matter of an attempted compromise. That objection was not made in the trial court. Moreover, the court said that there was no showing that the defendant did attempt a compromise. The statement quoted from Harrison seems to have been a casual remark and, significantly, the court cited no supporting authorities.

Aiple, 442 S.W.2d at p. 152, contains this statement: “[W]hen evidence of the compromise offer is given by or on behalf of the one making the offer such evidence is admissible.” In that case, however, the trial court sustained an objection to certain testimony on the ground that it constituted an unaccepted offer to compromise a disputed claim. The court of appeals, relying solely upon Harrison, made the statement quoted above but also concluded that the ruling of the trial court, although erroneous, did not constitute prejudicial error.

“It is a general rule that an unaccepted offer to compromise a disputed claim does not constitute an admission on the part of the person making it, . . . This rule is based upon public policy, which favors the settlement of disputed claims out of court, and the courts treat a party’s offer of compromise as an effort to obtain peace rather than as an admission of liability or of the validity of the other party’s claim.” 29 Am.Jur.2d, Evidence, § 629, p. 681.

It is true that the rule excluding evidence of unaccepted offers of compromise is usually invoked by the offeror. It does not follow that it may not be invoked by the offeree. In presenting the attacked testimony the defendant was casting himself, in the eyes of the jury, in the role of a would-be peacemaker whose well-intentioned efforts were thwarted by the refusal of the plaintiff to accept his proposition.

At least one court has held that the offer-ee does have standing to object to evidence, presented by the offeror, concerning the contents of the unaccepted offer of compromise. McDonald v. Whaley, 228 S.W. 313, 315[7] (Tex.Civ.App.1921). There sellers, under a real estate contract, wrote a letter to the buyer in which they stated that they “had made the sale in good faith and were ready at any time to execute a deed.” The buyer objected to the introduction of the letter on the ground that it was self-serving and was an offer of compromise. The appellate court affirmed the ruling of the trial court which had sustained the objection.

The maker of a compromise offer has sole control over its contents. He alone decides whether it is to be made at all. The recipient has no voice in either decision. He cannot prevent the mail from coming or a telephone from ringing and it is only natural for him to lend an ear to the contents. The sound policy of the law encourages the maker to speak. By the same token the recipient should not be dissuaded from listening.

For reasons stated, supra, the judgment nisi is reversed and the cause is remanded for a new trial on plaintiff’s petition.

FLANIGAN, P. J., and CAMPBELL, MOORE and KENNEDY, Special Judges, concur.

      . Missouri Approved Jury Instructions, Second Edition.

      . Lending support to the statements quoted from Harrison and Aiple is the following: “During the trial, the appellee made mention of an offer by himself, which the appellant rejected, to have an independent third party appraise the value of electrical construction and to split the costs of the appraisal. The appellant contends that the court erred in refusing to strike this statement from the record as evidence of a compromise within Code § 38 — 408. Not only was there no evidence of a compromise (the appellee apparently did not agree to be bound by the appraiser’s decision), but also the objection is not being made by the party which allegedly offered the compromise. Code § 38-408 was created in order to encourage settlements by letting a party which makes an admission or proposition with a view toward compromise rest" assured that its good-faith settlement attempt will not later be used against it in court. The appellant certainly did not make an admission or proposition with a view toward compromise, and the statement is not within the ambit of the statute.” Benn v. McBride, 140 Ga.App. 698, 231 S.E.2d 438, 441 [8] (1976).

      . This is demonstrated by a statement made in defendant’s brief to the effect that the evidence was offered as “an acknowledgment of the debt and a showing of an attempt to adjust the loss sustained by defendant.” Defendant also argues that plaintiffs refusal to accept the offer was “evidence of plaintiffs willingness and intent to defraud the defendant.” We do not accept the latter argument. Offers can be greeted with stony silence for a variety of reasons, not the least of which is that the offer is so unreasonable as to be unworthy of a courteous rejection.

      . Rev'd on other grounds, 244 S.W. 596 (Tex.Com.App.1922).


text:
    STATE of Missouri, Plaintiff-Respondent, v. George Edward MILLER, Defendant-Appellant.
    No. 11125.
    Missouri Court of Appeals, Southern District, En Banc.
    March 15, 1979.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Donald L. Clough, Springfield, for defendant-appellant.
   TITUS, Judge.

The notice of appeal herein recounts that on July 28, 1978, in the Circuit Court of Greene County, defendant was sentenced and judgment was entered upon his conviction for selling a controlled substance, a felony per § 195.240, V.A.M.S., under the habitual criminal act, § 556.280, V.A.M.S. We have been furnished a copy of the Certificate of Death of the Missouri Division of Health, duly executed by the Coroner of Greene County, which attests that on August 15, 1978, defendant expired in the county jail of Greene County by suicide through “suffocation by hanging.”

Having died before the crime against him was finally determined on appeal, defendant was never finally convicted of the crime charged and his death served to abate the prosecution against him. As a result, this court has no viable cause before it and the appeal is hereby dismissed. State v. Macklin, 560 S.W.2d 69 (Mo.App.1977).

All concur.