State ex rel. Eggers v. Brown

• Decision Date: 05 December 1939
• Docket Number: 35902
• Parties: State of Missouri at the relation of Leslie J. Eggers, Relator, v. Dwight H. Brown, Secretary of State; v. H. Steward, Commissioner of Motor Vehicles; and William E. Dexter, Deputy Commissioner of Motor Vehicles
• Court: Missouri Supreme Court

134 S.W.2d 28

345 Mo. 430

State of Missouri at the relation of Leslie J. Eggers, Relator, v. Dwight H. Brown, Secretary of State; v. H. Steward, Commissioner of Motor Vehicles; and William E. Dexter, Deputy Commissioner of Motor Vehicles

No. 35902

Supreme Court of Missouri

December 5, 1939

Alternative writ quashed.

J Raymond Dyer for relator.

(1) A general denial is not a sufficient traverse of the material recitals in relator's pleadings in mandamus. General denials are disregarded, and material allegations thus attempted to be denied are taken as admitted. State ex rel. Conran v. Williams, 96 Mo. 13; State ex rel Bank v. Allison, 155 Mo. 325; State ex rel Caulfield v. Broaddus, 234 Mo. 331; State ex rel. Rundberg v. Kansas City, 206 Mo.App. 17; R. S. 1929, secs. 1532, 1533, 1534; State ex rel. v. McKelvey, 301 Mo. 1, 256 S.W. 474. (2) Respondents' return must be construed in conjunction with the alternative writ, and their reply in conjunction with relator's replication. So likewise allegations in respondents' reply must be construed in relation to similar allegations in their return. Whether respondents' allegations amount to admissions must be determined by a fair construction of the pleadings considered as a whole, giving to the words employed the meaning which is usually intended by their use. 49 C. J., pp. 117, 127, secs. 109, 128. (3) Respondents' pleadings must also be construed so as to secure relator from being misled. In construing them this court should consider not alone what respondents may have intended but also what relator was given to understand were the issues tendered. R. S. 1929, sec. 836; 49 C. J., p. 118, sec. 110; Hood v. Nicholson, 137 Mo. 400, 38 S.W. 1095; Quigley v. King, 182 Mo.App. 196, 168 S.W. 285; Thompson v. Keyes-Marshall Bros. Livery Co., 214 Mo. 487, 113 S.W. 1128. (4) Respondents' express admissions of refusal, as contained in their pleadings, are binding on them. Those admissions are conclusive on this court as well as on respondents. Evidence contradicting them was inadmissible and, though admitted, was entitled to no consideration. Relator was not obliged to rebut respondents' evidence contradicting the admissions in their pleadings. 49 C. J., p. 122, sec. 121; Richards v. Johnson, 261 S.W. 53; Petrie v. Reynolds, 219 S.W. 934; Knoop v. Kelsey, 102 Mo. 291; Wilson v. Albert, 89 Mo. 537; Weil v. Posten, 77 Mo. 284; 49 C. J., p. 124, sec. 121; Boyajian v. Reinheimer, 250 S.W. 364; Lilly v. Menke, 143 Mo. 137; Melcher v. Freehold Inv. Co., 189 Mo.App. 170; Smith v. Vickery, 235 Mo. 413, 138 S.W. 502; Esty v. Walker, 3 S.W.2d 744; Otrick v. Railroad Co., 154 Mo.App. 420, 134 S.W. 665, 164 Mo.App. 444, 144 S.W. 1199; James v. Morehead, 1 Wall. 155, 17 L.Ed. 662. (5) The admissions of respondents' counsel made in open court are binding on respondents and cannot be rebutted by respondent's testimony to the contrary. Oscanyon v. Arms Co., 103 U.S. 261, 26 L.Ed. 539; Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028; Moling v. Barnard, 65 Mo.App. 600; Nichols v. Jones, 32 Mo.App. 657. (6) Evidence respecting relator's purported access to certain lists purportedly kept at the telephone desk at respondents' St. Louis office was incompetent, no allegations being made in respondents' pleadings respecting such lists. Such evidence should have been excluded and, though admitted, could form no proper basis for the commissioner's findings. 49 C. J., p. 120, sec. 114; Cruger v. Hudson River Ry. Co., 12 N.Y. 190; Cushman v. Cloverland Coal, etc., Co., 170 Ind. 402, 84 N.E. 759, 16 L. R. A. (N. S.) 1078; State ex rel. Ortero de Burg v. Water Supply Co., 19 N. M. 36, 140 P. 1059, L. R. A. 1915A, 246; Fretz v. Edmond, 66 Okla. 262, 168 P. 800, L. R. A. 1918C, 405. (7) Allegations in mandamus must be direct and positive. Evidence offered in support of no allegations whatsoever cannot be considered. State ex rel. Hudson v. Trammel, 106 Mo. 510. (8) Respondents' Exhibit A unlawfully limited the restricted privilege accorded thereunder. In seeking to impose regulations covering the exercise of even the restricted personal privilege accorded, respondents usurped a legislative function. In recognizing those regulations as valid, and in imposing further regulations, the commissioner exceeded the authority of his commissioner and usurped a legislative function. R. S. 1929, sec. 7772 (d); State ex rel. Gay v. Reyburn, 158 Mo.App. 172; People ex rel. Stenstrom, v. Hartnett, 131 Misc. 75, 226 N.Y.S. 338; affirmed 224 A.D. 127, 230 N.Y.S. 28; affirmed 249 N.Y. 606, 164 N.E. 602, 108 A. L. R. 1396; 38 C. J., p. 861, sec. 574; United States ex rel. International Contracting Co. v. Lamont, 155 U.S. 303, 39 L.Ed. 160. (9) Under the Parole Evidence Rule respondents' parole testimony in contradictory explanation of the meaning of their Exhibit A, as shown on its face, was inadmissible and, though admitted, was entitled to no consideration. (10) Relator's remedy is by mandamus. High, Extraordinary Legal Remedies (3 Ed.), sec. 24; 53 C. J., p. 634, sec. 53; State ex rel. Gay v. Jones, 158 Mo.App. 170, 138 S.W. 81; State ex rel. Thomas v. Hoblitzelle, 58 Mo. 620. (11) The privilege of inspecting the lists in question is accorded relator by statute and by the common law. R. S. 1929, sec. 7772 (d); 53 C. J., p. 624, sec. 40; Nowack v. Fuller, 243 Mich. 200, 219 N.W. 749, 60 A. L. R. 1351 (12) That privilege includes the privilege of inspection at the branch offices. R. S. 1929, secs. 7760, 7772 (d); Bend Publishing Co. v. Haner, 118 Ore. 105, 244 P. 868.

Justus R. Moll and Jno. D. Taylor for respondents.

(1) We concede that mandamus is a proper remedy to compel a public officer to permit the examination and copying of public records, if and when an inspection and examination has been arbitrarily or wrongfully denied. (2) We have been unable to find any application of the abstract principles of law set out in relator's points indicated above. Under the record in this case they are so clearly meaningless we shall not take the time of the court to discuss them. Such of the propositions, attempted to be emphasized under these points, as were not stricken from the pleadings by order of this court, are not supported by any evidence. (3) Regardless of the time of the serving of notice of intention to apply for a writ of mandamus the issuance of the writ itself is the beginning of the action. The petition or complaint is purely ex parte. Under Missouri law the alternative writ is the first pleading and until issued no action is pending. The court acquires no jurisdiction over the respondents until the alternative writ is served. 38 C. J., p. 862, sec. 575; State ex rel. v. Board of Health, 103 Mo. 22; State ex rel. v. Schofield, 41 Mo. 38; State ex rel. v. Shinnick, 19 S.W.2d 678. (4) Relator challenges the sufficiency and construction of respondents' pleadings. It is true that the return to the alternative writ contains a general denial. Also that in the reply there is a general denial. It is also true that when relator was challenging the return in this court that form of pleading was not questioned. (a) However, the return traverses every material allegation in the alternative writ. The reply traverses every material allegation in the replication. The general denial is proper as to legal conclusions, argumentative and immaterial allegations. State ex rel. Conran v. Williams, 96 Mo. 18; State ex rel. v. Allison, 155 Mo. 328; State ex rel. v. Trammell, 106 Mo. 515. An examination of the return will show a complete traverse of every material issue in the alternative writ. (b) Under Points 2 and 3 relator undertakes to state general principles of law regarding the construction of pleadings. Assuming that he has stated the rule there is no point in the discussion of the matters here.

OPINION

Clark, J.

This is an original proceeding by mandamus. Respondents are Dwight H. Brown, Secretary of State, V. H. Steward, Commissioner of Motor Vehicles, and William E. Dexter, Deputy Commissioner in charge of the branch office at St. Louis. Eggers, the relator, is in the business of publishing and selling lists of the registration of motor vehicles and claims that he has a right to inspect certain records in said branch office and that respondents have denied him that right. Our alternative writ was issued, return made thereto, further pleadings filed by both sides, Honorable W. B. Whitlow appointed by us as special commissioner to take testimony, his report filed in which he recommends that the alternative writ be quashed, and exceptions to said report have been filed by relator.

Respondents have filed motions asking us to strike from the files relator's brief and abstract of the record for failure to comply with our rules. A strict compliance with the rules would authorize us to sustain both motions. Rule 15 provides that the brief shall contain "a fair and concise statement of the facts of the case without reiteration, statements of law, or argument." The so-called statement in relator's brief consists of thirty single spaced pages almost entirely devoted to argument. In his abstract relator has emphasized portions of the testimony by printing the same in blacker type, and has interspersed argumentative comments which it is apparent were not made during the taking of the testimony. We do not approve such conduct, but, as relator has filed in this court printed corrections of the record, we will not sustain the motions to strike. However, this should not be regarded as a precedent for future violation of our rules.

Relator on December 22, 1937, gave notice to respondents that he would make application for a writ of mandamus on December 29, 1937. On the latter date relator filed his petition and submitted a proposed form for the alternative writ. On...