author: LACKLAND H. BLOOM, Special Judge.

text:
    Kenneth L. DeBOW and Patricia DeBow, Appellants, v. Alma E. HIGGINS, Respondent.
    No. 52812.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.

      Church, Jones & Karchmer, Donald W. Jones, Springfield, for plaintiffs-appellants.
    Theo. G. Scott, Buffalo, for defendant-respondent.
   LACKLAND H. BLOOM, Special Judge.

This suit was instituted in Dallas County and was removed by change of venue to Laclede County. Appellants (herein referred to as plaintiffs) sought judgment in the trial court for actual damages of $15,000 and punitive damages of $50,000 arising out of alleged fraudulent misrepresentations of respondent (herein referred to as defendant) in the sale of a motel and gasoline service station. During and after the trial plaintiffs unsuccessfully sought to amend the prayer of their petition to conform to the alleged proof of actual damages of $18,600. The case was tried by the court without a jury and judgment was entered in favor of plaintiffs in the sum of $3,000. Plaintiffs after having unsuccessfully sought to have the findings of fact, conclusions of law and judgment amended to award plaintiffs actual damages in the amount of $18,600 and punitive damages in the amount of $50,000, or for a new trial on damages alone, have appealed to this court on the ground that the trial court erred in awarding only $3,000 actual damages and in refusing an award of punitive damages. Since the difference in the amount prayed for and the recovery exceeds $15,000, this court has jurisdiction. Jack L. Baker Companies, Inc. v. Pasley Manufacturing and Distributing Company, Mo., 413 S.W.2d 268, 270; Glore v. Bone, Mo., 324 S.W.2d 633, 634.

Mr. Kenneth L. DeBow, one of the plaintiffs, testified that in November 1963 he and his wife, who were living in Springfield, Missouri, were looking for a motel to purchase. On November 14, 1963, he was taken by a Mrs. Smith, a real estate saleslady, to a motel and service station located on Highway 65 in Buffalo, Missouri, known as the “Shady Nook Motel,” where he met defendant. Defendant was uncooperative and would not show them around and they left. The next day he and his wife returned to the motel and learned from defendant that the motel was listed with the Queen City Real Estate Company and they were referred by defendant to a Mrs. Riddle. The next day plaintiffs went to see Mrs. Riddle and were told that the motel was listed for sale for $35,000. The same day Mrs. Riddle took them to see defendant who showed them around the motel. Mr. DeBow asked defendant to see her books or an income tax statement. According to DeBow defendant said that she did not have them as her lawyer was working on them and she handed him “two brochures” to take and look over. These so-called brochures were introduced into evidence as Plaintiffs’ Exhibits 1 and 2. Exhibit 1 was a one-page printed “flyer” describing the properties, and Exhibit 2 was a handwritten statement of “Motel and Station Income.” Since they constitute the basis of plaintiffs’ allegations of fraudulent representations, we set them out in full.

EXHIBIT 1

“Shady Nook Motel and Standard Station is at the junction of Main Street and U. S. Highway 65 in Buffalo, Missouri, just 32 miles north of Springfield. Located on 3½ level acres, 600 ft. highway frontage, with 2 acres suitable for development or expansion. Neat and attractive with 2 neon signs and all buildings neon trimmed.

SEPARATE HOME of 6 rooms only 4 years old, consists of office, kitchen, living room, bath, 2 bedrooms, and a large laundry and linen room. Office desk and mangle included, as well as 1½ extra changes of linen, towels, etc.

MOTEL UNITS consist of 5 singles, 2 doubles and 2 kitchenettes, all modern. 9 butane heaters, 4 TV’s, 5 air-conditioners, 2 gas ranges, 2 refrigerators, 6 hot water heaters, and all motel furnishings and 8 lawn chairs included.

GAS STATION is the only Standard Station on Highway 65 between Springfield and Warsaw (81 miles) and only sells gas and oil. All equipment included — soda box, counter, stove, fan, signs, nozzles, filters, etc. Pumps and tanks owned by Standard Oil. Inventory averaging $500.00 to be inventoried.

In 1962 the Motel grossed over $10,000, about 80% net. The station pumped over 100,000 gallons, netting about $100 a week, with help. There is a 1150 gallon owned butane tank connected to all buildings. Entire property recently redecorated.

All taxes $290.00 a year, fire insurance $132.00, liability $51.00. Property is clear and is a steady year-round business.

Since the owner is now handicapped and wishes to retire, the price has been reduced to $., 1-3 down, balance $100 a month, plus 6% interest. Possession in 30 days.

ERNEST and ALMA HIGGINS

SHADY NOOK MOTEL, Buffalo, Mo.”

EXHIBIT 2

“Motel and station income

Year Motel Gross Expenses Motel Net Station Net Total Net

6 Mos — 1960 7140.60 1890.20 5,250.40 (rent) 472.50 5,722.90

1961 10.171.15 1735.10 8,419.05 4,941.10 13,368.15

1962 10.972.15 1921.00 9,051.10 5,150.75 14,201.85

9 months

1963 1230.79 7,161.54 4,595.06 8,142.33 11,756.60

pumped 97,915 gal. with 7 day a week help and short hours 9 mos gross for station $36,728

Sept utilities, etc phone, water for motel and station $40.13”

Thereafter on November 25, 1963, plaintiffs entered into a contract for the purchase of the motel and service station for an agreed price of $33,000, paying $1,000 earnest money. On January 25, 1964, they closed the purchase by paying defendant an additional $11,000 cash, the defendant taking back a note and mortgage for the balance of $21,000 which was payable $200 per month, including principal and interest. Plaintiffs moved into the motel on January 6, 1964, and took over operation the same day. According to DeBow it was about two or three months later that they learned that the information they were given with respect to the income was false. He testified that he relied on the income information and would not have purchased the motel if he had known the motel profits were not as defendant represented. The plaintiffs continued to operate the motel and service station until February 1965. Sometime before February 1965 the plaintiffs listed the property for sale at $30,000 but were not able to sell it. In May 1964 plaintiffs placed the property for sale at public sale and tried to get what they owed on it but received no bids. In February 1965 they sold it to Lake Front Investment Corporation, the purchaser assuming the balance of plaintiffs’ mortgage in the amount of $19,900 or $20,000 and plaintiffs accepted two houses and a trailer and a second mortgage as part of the purchase price. Both houses were mortgaged and it is not clear from the evidence at what value plaintiffs accepted them in trade. It appears from DeBow’s testimony that plaintiffs netted $408.50 on one and $486 on the other. The second mortgage taken in trade by plaintiffs had a face value of $1,-500 but was in arrears and they netted $250 on it. Plaintiff DeBow estimated the trailer as being worth $2,600 at the time of trial after he fixed it up.

Mabel Riddle testified that in November 1963 she was a real estate saleslady for Queen City Real Estate Company and showed plaintiffs the motel. She testified that defendant stated that the information on Exhibit 1 was true. She was questioned by defendant as to the value of the property purchased by plaintiffs. She testified that she had been in the real estate business ten years and was out for six and back in for six years. She had experience in selling and appraising real estate to determine its value, was familiar with defendant’s property, and thought it was worth what plaintiffs paid for it. She said, however, she was not an expert nor a qualified appraiser. She had sold two motels and had owned two herself. She had never appraised a motel. In her opinion the motel and station were worth $33,000 whether the representations made on Exhibit 1 were true or not. She based her estimate of the value by breaking it down into units, including the land, the separate motel units, the house, and the station. She did not appraise this motel as it was given to her for listing at a price. She had never seen Exhibit 2.

William A. Ryan testified for plaintiffs as an expert witness. He testified he was a real estate broker specializing in the sale of motels and hotels. He had listed for sale between 400 and 500 motels in 28 states and sold 11 in the year of trial. In determining the market value of a motel he considers the location, age of the property, its general condition, and its income. Considering these factors a motel is placed in a certain scale and the gross income is multipled by a variable factor to determine the market value. He tried to sell defendant’s motel in the latter part of 1963. At that time he went over the figures on Exhibit 2 with defendant and she represented to him that they came off of her books. It was his opinion based on the 1962 income as represented that the motel was worth $32,600. This was based on a factor of 2½ times the annual gross income and one year net on the service station. Based on actual 1962 income figures as an operating property the motel and station were worth, in his opinion, $11,650. As a physical structure converted to best economic use for monthly tenants he placed a value of $14,000 on the properties. The witness had listed the property for sale in June 1961 for $38,500. Plaintiffs offered as Exhibit 4, copies of the joint Federal Income Tax returns of Ernest F. and Alma Higgins for 1960, 1961 and 1962 which showed a gross and net income for the Shady Nook Motel for three years as follows:

Year Gross Net
1960 2,161.00 351.00
1961 3,179.27 811.31
1962 4,291.10 895.56

The defendant offered as evidence only the depositions of defendant Alma E. Higgins taken on September 3, 1964, and September 3, 1966.

At the request of the plaintiffs the court entered findings of fact and conclusions of law in which the court found that plaintiffs purchased the Shady Nook Motel and service station in reliance upon the correctness of the income figures contained in Exhibits 1 and 2, which statements were material and false and that defendant knowingly made said statements or made them at a time when she was “consciously ignorant” as to their truth or falsity and made them intending that plaintiffs should rely on the truth of the statements. The court found that the value of the property at the time of sale to plaintiffs was $30,000 and plaintiff suffered actual damages of $3,000. The court found that under the evidence that punitive or exemplary damages should not be assessed.

This case having been tried by the court without a jury our review under Civil Rule 73.01, V.A.M.R. is de novo on both the facts and the law, limited, however, to the specific matters urged on appeal by plaintiffs. Schlanger v. Simon, Mo., 339 S.W.2d 825, 828; Bowers v. Spinaio, Mo.App., 421 S.W.2d 790, 792. Defendant has not appealed from the judgment against her and accordingly we direct our attention solely to plaintiffs’ allegations of error, to-wit: (1) That the award of $3,000 damages is inadequate and against the weight of the evidence; and, (2) That the court erred in refusing to award them punitive damages.

In assessing the actual damages, the trial court found the seller “liable in damages to buyer for the difference between the value of the property as represented and the actual value of the property at the time of sale.” This is commonly known as the “Benefit of the Bargain” rule and plaintiffs concede that to be the correct measure of damages. Louis Steinbaum Real Estate Co. v. Maltz, Mo., 247 S.W.2d 652, 655, 31 A.L.R.2d 1052; Menke v. Rovin, 352 Mo. 826, 180 S.W.2d 24, 27; Miller v. Wilson, Mo.App., 381 S.W.2d 31, 38. Plaintiffs contend, however, that the court did not properly apply the rule to the evidence in this case.

Defendant offered no evidence on the issues of damages and relies on what she deems to be favorable and contradictory opinions as to value rendered by plaintiffs’ witnesses to support the trial court’s award of damages. We agree with defendant that the judgment is not to be set aside unless it is clearly erroneous and generally where there is a conflict in the testimony due regard is given to the opportunity of the trial court to judge the credibility of the witnesses. Civil Rule 73.01(d), V.A.M.R.; Pope v. Cox, Mo., 417 S.W.2d 929, 933; Griesenauer v. Belleau Lake Development Co., Mo.App., 421 S.W.2d 785, 786.

In awarding plaintiffs $3,000 damages, the court found the value of the property at the time of sale to be $30,000, the amount plaintiffs subsequently listed the same for sale. Thus the court fixed plaintiffs’ actual damages at the difference between the amount they paid for the property, $33,000, and what the court found to be its actual value. Plaintiffs urge that the evidence dictates a market value at the time of purchase of $14,000 and resultant damages of $18,600, the difference between the values set by their witness Ryan.

We do not believe plaintiffs’ subsequent listing of the property for sale at $30,000 to constitute evidence of the value on the date plaintiffs purchased the same. 37 C.J.S. Fraud § 147b (1), p. 493. Especially is this true in the light of DeBow’s testimony elicited by defendant over plaintiffs’ objection.

“Q Did you list it for what you thought it was worth?
“A I listed it for about $15,000 more than I thought it was worth. * * *
“Q What did you list it for ?
“A I listed it for approximately $30,000 and the realtor said—
“Q I’m asking what you listed for?
“A Thirty thousand dollars, including the real estate commission. That is, the thirty thousand dollars includes the real estate commission.
“Q You mean you were going to pay somebody to sell it for you? The man that bought it you were going to ask him thirty thousand dollars ?
“A Yes, the rate I listed was, that was nine thousand over what we owed on .it shortly after we bought it.
“Q Did you sell it?
“A No, we did not. We held an auction in May and tried to get what was owed on it, and there was a number of prospects there but they wouldn’t submit a bid.”

We think this testimony .is not evidence of the value of these properties at the time of sale. It is true that a resale by the defrauded purchaser at or near the time of his purchase may constitute relevant and persuasive evidence of the market value on the prior date. Louis Steinbaum Real Estate Co. v. Maltz, supra, 247 S.W.2d l. c. 655. This is not to say, however, that a mere listing for sale under the circumstances herein set forth is helpful in fixing such value, especially in view of the fact that even at public auction no bids were received.

Was there any other evidence from which the court could arrive at a $30,000 value on the date of sale? Mrs. Riddle, offered by plaintiffs solely to establish defendant’s representations, on cross-examination expressed an opinion the property was worth what plaintiffs paid for it. That would be $33,000 and plaintiffs would have sustained no loss. Mrs. Riddle, although disclaiming the status of an expert, had been a real estate saleslady some fifteen years, had sold another motel in Wichita, Kansas in addition to this one, and more importantly, perhaps, had owned two motels. She felt the property to be worth what plaintiffs paid for it even if the representations as to income were not true. She reached her opinion based on what she termed the unit method of appraisal. In describing this method she testified that, “We were told to break it down into units.” With respect to the four units on the north side she said, “We’ll say $2,500, which should be a cheap one, $10,000 — and you have four others. Let’s see — I can’t say this would be correct, but this is the way they told us to say the others were worth five thousand, and then the house would be worth ten thousand. I can’t say this is what it would be worth, and then the station would be worth so much.” She added that she did not appraise this motel prior to sale as, “It was given to me at a price.”

It is not clear whether in testifying to unit values the witness was giving the result of an appraisal or an example of how it would have been done if an appraisal had in fact been made. In giving her opinion that it was worth what plaintiffs paid for it she said, “We consider the land, highway and things like that and what each building would be worth.” We do not say that the witness was not a competent witness to express an expert opinion on the value of the property in question. Harris v. A. P. Nichols Inv. Co., Mo.App., 25 S.W.2d 484, 488; 32 C.J.S. Evidence § 546(115), p. 430. We do say that her testimony on the issue of the value of this property on the date of purchase by plaintiffs was far too vague and indefinite with respect to the basis on which it rested to be accorded much, if any, weight by the trier of the facts. Nor do we find from the record before us that the trial court based his finding on her testimony but rather, as previously indicated, on the listing price set by plaintiffs. Accordingly the judgment of the trial court in awarding actual damages in the sum of $3,000 cannot stand.

We now consider whether or not upon a review of the record de novo the evidence is sufficient to enable us to direct entry of judgment for the proper amount of damages.

Plaintiffs urge that the only witness to testify as to the difference in values of the property as represented and its actual value was William A. Ryan. Ryan’s qualifications as an expert were not successfully challenged. He not only was familiar with this particular motel since 1961 but at one time had it listed for sale and had been given the income figures represented on Exhibits 1 and 2 by defendant’s husband prior to the latter’s death. He was in the business of appraising and brokering hotels and motels and had sold eleven during the year 1966 and had listings of 400 to 500 in twenty-eight states. Certainly he qualified as an expert. State ex rel. State Highway Comm. v. Barron, Mo., 400 S.W.2d 33, 36.

Ryan’s opinion as to the value of the motel and service station if the representations as to income were true, based in part upon the capitalization of the income of 1962 as represented by defendant, seems to us to be supported by sufficient elements to entitle it to persuasive weight, especially in the absence of any conflicting evidence. He reached a valuation of $32,600 by applying a 2.5 factor to the gross income as represented on Exhibit 2 for that year. This resulted in a motel valuation of $27,-430.32. He added to this a valuation of one year’s net income from the service station which was represented to be $5,150.75. This gave a combined valuation of $32,581.-07 which the witness rounded off to $32,600. He testified that the factor applied to gross income to arrive at a valuation depends upon the motel’s location, age, condition of the property and may vary from four times the annual gross income for a plush motel to three and one-half to four times annual gross income for a AAA motel. In arriving at a 2.5 factor for the Shady Nook Motel he took into consideration its age, some of the units of which were from ten to fifteen years of age, and the general condition of the units.

We recognize that the capitalization of income method of evaluating properties may in some circumstances be speculative and uncertain. Shelby County R-IV School District v. Herman, Mo., 392 S.W.2d 609, 614. However, under the particular facts in this case, and in view of the elements considered by Ryan in arriving at a capitalization factor, we find that the valuation of $32,600 fixed by the witness does constitute evidence calculated to accurately reflect the valuation of this motel and service station, assuming the income representations were true.

We are faced, however, with more serious difficulties in fixing an actual value of the properties at the time of purchase in November 1963. In the first place the only evidence of actual income for the year 1962 is contained in the income tax returns of that year. This revealed a gross profit of $4,291.10 for the combined operation of the motel and service station and a net profit of $895.56. Ryan was of the opinion that the income was insufficient to place a valuation on the properties as an “operating business,” and undertook to arrive at an appraisal based upon a conversion of the properties to produce monthly rental income. He testified as to probable rental income, estimated expenses for taxes, insurance, utilities and maintenance. In this manner he concluded that based on a ten percent return from the motel units, they were worth $7,100 and he added $6,000 for the house and rounded off his appraisal at $14,000 including the service station.

We believe this method employed by Ryan too speculative and based on too many variable assumptions to be of much assistance in arriving at a reasonable value for this motel and service station. Massey v. Goforth, Mo.App., 305 S.W.2d 894. This is especially true since DeBow himself thought the property worth $15,000 and Mrs. Riddle thought it worth from $25,000 to $33,000, depending on how her testimony is viewed and analyzed. Furthermore, there was some evidence that plaintiffs resold the motel and station far in excess of the valuation placed thereon by Ryan and DeBow himself. Plaintiffs rightfully assert that the valuation must be made as of the date of the fraudulent transaction and plaintiffs’ damages under the “Benefit of the Bargain” rule are not to be reduced by any subsequent sale. This is true, but a subsequent sale, not too remote in time, may constitute some evidence of the value on the date of the fraudulent sale. Horigan Realty Co. v. Honan, Mo., 275 S.W. 949; Louis Steinbaum Real Estate Co. v. Maltz, supra, 247 S.W.2d 1. c. 655. In February 1965 plaintiffs traded the motel and service station for two houses, a trailer, and a $1,500 second mortgage, the purchasers assuming the balance of plaintiffs’ mortgage in the sum of $19,900. It may be true as DeBow testified that they netted very little out of the trade, but the fact is that they apparently received profit or equities in the two houses of $408.50 and $486 respectively, netted $250 on the mortgage, and retained at the time of trial a trailer which they valued at $2,600 after making certain improvements. Uuder the particular circumstances of this case we feel the sale by plaintiffs in February 1965 wasn’t so remote in time as to destroy its relevancy as to the value of the motel and station in November 1963, especially in the absence of any evidence which would compel the conclusion that the value had been substantially affected in the interim. It is not necessary for us to determine what in fact plaintiffs received in exchange. It is sufficient for this review to note that to the extent plaintiffs may have been relieved of a liability of some $19,900 on their mortgage and have netted any amount in excess thereof, the transaction is some evidence that the value of the properties in November 1963 may have been in excess of the amounts testified to by either Ryan or DeBow. Accordingly we are unable upon the record before us to assess plaintiffs’ actual damages.

Since the cause will have to be remanded for a trial as to actual damages, we consider plaintiffs’ contention that the trial court erred in failing to make an award of punitive damages. Such damages are never allowable as a matter of right and whether or not the same are awarded lies wholly within the discretion of the trier of the facts. Bellerive Country Club v. McVey, 365 Mo. 477, 284 S.W.2d 492, 503; Mitchell v. Pla Mor, Inc., Mo., 237 S.W.2d 189, 191. The trial judge specifically found that “punitive or exemplary damages should not be assessed.” We see no reason to disturb this finding. Under the evidence although defendant fraudulently misrepresented the income of the motel and service station, in view of the fact that the income figures were prepared and furnished to persons other than plaintiffs by her husband prior to his death, we cannot say that defendant’s part in the transaction showed such actual or legal malice that the trier of the facts must be charged with an abuse of discretion in denying punitive damages.

The judgment below is affirmed with respect to liability of the defendant and is reversed and remanded for a new trial limited to the amount of actual damages sustained by plaintiffs.

FINCH, P. J., and DONNELLY, J., concur.

EAGER, J., not sitting.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Esther M. BERGMAN, Appellant, v. BOARD OF TRUSTEES OF FIREMEN’S RETIREMENT SYSTEM OF ST. LOUIS, Missouri, Respondent.
    No. 52739.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.

      Wm. G. O’Donnell, Abraham Davis, St. Louis, for appellant.
    Thomas F. McGuire, City Counselor, Aubrey B. Hamilton, Assoc. City Counselor, St. Louis, for respondent.
   STOCKARD, Commissioner.

This is an appeal from the judgment of the Circuit Court of the City of St. Louis wherein it “dismissed” the petition of Esther M. Bergman, filed pursuant to the Administrative Procedure Act, Chapter 536, RSMo 1959, V.A.M.S., for review of the finding and decision of the Board of Trustees of The Firemen’s Retirement System of St. Louis, Missouri.

Appellant’s husband Walter Bergman, died on October 18, 1956, while a member (Fire Marshal) in good standing of the St. Louis Fire Department. As his unremar-ried widow, appellant has been paid and is receiving a pension from the Board of Trustees. She contends that her husband was “killed or fatally injured in the line of duty” within the meaning of Section 32 of Ordinance 48174 of the City of St, Louis, and for that reason she is, and has been since his death, entitled to a larger pension. The accrued amount to which she claims she is entitled at the time of this appeal, over and above the amount previously paid to her, exceeds $15,000.

On October 14, 1956, a Sunday, a fire occurred in a building at 3618 Laclede, St. Louis, owned by the Rothlan Corporation, which manufactured or processed chemicals. In the building were numerous chemicals both organic and inorganic, some of which were toxic. One of these toxic chemicals was ortho nitroaniline. The fire was not extensive and was soon extinguished, but in the building and in the area there was an odor of chemical fumes. Marshal Bergman arrived at the scene after the fire was extinguished. He was seen outside the building, and he was also seen, apparently inside the building, “sniffing the bottles” of chemicals and reading the labels on them. When he returned home he told his wife he was “feeling sick because it was a chemical fire” and that he would not be able to eat. On Monday he reported for work, and worked until Thursday when he went to see Dr. Otis D. Seabaugh, his family doctor. During the week while at work he had complained that his stomach bothered him, that he felt sick, his arm and chest hurt, and that he was short of breath. Dr. Seabaugh advised him to go to the hospital, but he returned to work. Later that day he was taken home and then by ambulance to the hospital where he died within ten minutes after arrival. The cause of his death was a coronary thrombosis.

Marshal Bergman had a history of a heart condition. In 1949 he had a “mild attack of coronary thrombosis,” and in 1951 it was determined that he had a “heart insufficiency.”

Dr. Seabaugh testified that anyone who has a heart condition is advised to live within his heart’s capacity to function, and he should do nothing that would draw stress upon organs of respiration. He further stated that “if you inhaled a toxin in the lungs and you get a little impairment of the pulmonary circulation, that could be undue strain on his heart muscles and the after effects from the toxin could act on the heart.” He stated that he could not “think of a case” of a thrombosis being caused by toxic poisoning,' but “it can be a contributing factor,” and that in his opinion inhaling of toxic chemicals “was a contributing cause” of Marshal Bergman’s death.

Dr. R. Emmett Kelly, who was physician and medical director of Monsanto Chemical Company, testified for the Board of Trustees. He stated that ortho nitro-aniline is an organic compound capable of uniting with the hemoglobin of the blood and causing what is technically called met hemoglobin. The chemical is capable of being absorbed by the body when taken by mouth or after dust or fumes are inhaled, and when dissolved it can pass through unbroken skin. When it unites with the hemoglobin it destroys the oxygen carrying power of the red corpuscles. The person affected develops a dusky color and then a blueness. Dr. Kelly said that the chemical does not have a “particularly pungent” odor and would have no effect on the respiratory system, but could cause choking if inhaled in large quantities. He also stated that he had not had any experience with the chemical causing throat irritation when inhaled, and that individuals have inhaled enough “to be bluish before they know it.” When absorbed through the skin it “can cause stomach illness and even death” but it would not be absorbed by picking up a jar and smelling it. Also, smelling of the chemical would “not usually” cause “nausea or shooting pains.” It was Dr. Kelly’s opinion that in the absence of blueness, the inhalation of the chemical would not have any effect on the heart, and that ortho nitroaniline could not cause the formation of a thrombus, nor would it have any connection with a coronary thrombosis, and the fact that a person inhaled fumes from this chemical one day would not result in ill effects three or four days later. He said that exposure to the chemical does not have a permanent effect.

Dr. Julius Elson, a heart specialist, testified that he knew of no chemical fumes which if breathed by an individual would cause coronary thrombosis, and that he could not see any possible connection between breathing chemical fumes and the formation of a thrombus. He also testified that “no one has ever shown” that deprivation of oxygen from the blood stream can precipitate a thrombosis in an artery, and that he knew of no theory that toxicity precipitated a coronary thrombosis.

The Board of Trustees made the following findings of fact:

“(1) That Walter P. Bergman, Fire Marshal of the City of St. Louis, was on active duty on October 18, 1956;
“(2) That a fire occurred at 8:59 A.M. on October 14, 1956, at 3618 Laclede Ave., St. Louis, Missouri;
“(3) That Chief Bergman appeared at the scene of the fire on October 14, 1956, at approximately 10:45 A.M.;
“(4) That Chief Bergman investigated conditions at the scene after the fire;
“(5) That Chief Bergman was stricken with a heart attack on October 18, 1956, and was hospitalized and died the same date, October 18, 1956.
“(6) That the medical records of Chief Bergman on file in the office of the Retirement System and the Office of the Chief of the Fire Department, reflect treatment for a heart condition on July 7th, 1951, and in 1949;
“(7) That there is no evidence in the record which shows unusual exertion during his investigation on October 14, 1956;
“(8) That there is no evidence sufficient to cause the Board to believe that chemical fumes were inhaled by Chief Bergman in any amount sufficient to cause death by adverse effect on his heart.”

The following conclusions of law were adopted by the Board.

1. The Board finds that there is no causal connection between the inhalation of fumes and death;
2. The board finds that Walter P. Bergman was not killed or fatally injured in the line of duty.

On this appeal appellant contends that the findings of fact and conclusions of law are “unsupported by competent and substantial evidence upon the whole record.” She also contends that the trial court should have made its own findings of fact because only one member of the Board was present at all of the hearings, and the trial court was in as good a position as the Board to weigh the evidence.

Section 536.140, RSMo 1959, V.A. M.S., (see also Civil Rule 100.07, V.A. M.R.) provides that the scope of review by a court of the action of an administrative agency subject to the review provisions of the Administrative Procedure Act shall, among other things, extend to a determination whether the action is “unsupported by competent and substantial evidence upon the whole record.” That section also provides in subsection 3 thereof that “Whenever the action of the agency being reviewed does not involve the exercise by the agency of administrative discretion in' the light of the facts, but involves only the application by the agency of the law to the facts, the court may weigh the evidence for itself and determine the facts accordingly,” but that in making such determination “the court shall give due weight to the opportunity of the agency to observe the witnesses.” This case does not involve the exercise by the Board of Trustees of any administrative discretion in light of the facts. After the facts are determined, appellant either is or is not entitled to the increased pension benefits as a matter of law. Therefore, in determining whether the action of the Board of Trustees is supported by competent and substantial evidence, this court may weigh the evidence and determine the facts accordingly, subject to the above rule of deference to the extent appropriate under the circumstances.

Edwards v. Firemen’s Retirement System of St. Louis, Mo.App., 410 S.W.2d 560; Mitchell v. City of Springfield, Mo.App., 410 S.W.2d 585; and Heusmann v. Priest, Mo.App., 366 S.W.2d 42, are disapproved insofar as they hold that in this situation a reviewing court may not weigh the evidence and make its own findings of fact.

Appellant argues that Dr. Seabaugh testified that “the toxic irritants” were a “factor” in Marshal Bergman’s death, and that they could have aggravated his previous coronary condition; that Dr. Elson admitted that Marshal Bergman’s symptoms indicated that “some process” was going on in his heart and that a person could have a coronary thrombosis precipitated on Sunday and die on the following Thursday. Appellant then argues that the testimony of Dr. Elson and Dr. Kelly was to the effect that fumes from ortho nitroani-line and the other chemicals could not form a clot in a blood vessel or cause a coronary thrombosis, but that she never claimed that they did. Her claim, she argues, is that the fumes and smoke aggravated a previous heart condition and precipitated the coronary thrombosis, and that this constituted an injury causing death within the meaning of the ordinance.

In this connection it becomes of some importance to comment on what the evidence does not show. Marshal Bergman was not, on October 14, or on any occasion thereafter and prior to his death, engaged in fighting a fire, or engaged in any strenuous activity in the performance of his duties. He did not arrive at the scene of the fire until after the fire had been extinguished and the building was being ventilated. The evidence shows that he was seen outside the building, and also was seen “sniffing the bottles,” presumably while in the building. There is no evidence that he smelled any particular bottle or chemical, and there is no testimony as to the amount of ortho nitroani-line present, how it was stored, or whether its container was open or had been broken open or damaged by the fire. In fact, in view of the clearly established characteristics of ortho nitroaniline and its effect, there is no evidence from which it could be found that he inhaled the fumes of that chemical in sufficient amount to produce a reaction.

Marshal Bergman had a history of heart disease or coronary insufficiency. Appellant argues, and we think correctly so, that an aggravation, in the line of duty, of a pre-existing heart condition which precipitates a fatal coronary thrombosis, is an injury resulting in death which would entitle her to increased benefits. However, the increased pension sought is not in the form of insurance which is payable upon death regardless of the cause, but there must be a showing of a direct, but not necessarily sole, causal connection between Marshal Bergman’s duties and his injury resulting in death. It is in this respect that appellant’s claim fails.

Dr. Seabaugh’s testimony as to causation is little more than that inhaling toxic fumes “might, could or would” contribute to cause a coronary thrombosis. See Ketcham v. Thomas, Mo., 283 S.W.2d 642, 649. However, he did testify, although we think with an inadequate showing of a basis therefor, that in his opinion the inhaling of toxic chemicals “was a contributing cause” of Marshal Bergman’s death. On the other hand, there is no showing what toxic fumes were actually inhaled or that toxic fumes were inhaled in a sufficient amount to have an adverse effect, except possibly on the basis that symptoms of heart trouble followed his presence at the scene of the fire. In addition, Dr. Kelly and Dr. Elson testified that inhaling toxic fumes could not cause a coronary thrombosis, that ortho nitroaniline would not have “any connection” with a coronary thrombosis, and that toxicity would not precipitate a coronary thrombosis. By this we understand their testimony to be that inhaling toxic fumes could not result in a coronary thrombosis, whether by creating the thrombus or by aggravating a previously existing condition.

Appellant cites numerous cases from other jurisdictions. In some, as in Board of Trustees of Firemen’s Relief and Pension Fund of Ponca City v. Jobe, 198 Okl. 34, 174 P.2d 921, and Vernon v. Firemen’s Pension Fund of Philadelphia, 160 Pa.Super. 617, 52 A.2d 199, the injury manifested itself while the person was engaged in strenuous activity in fighting a fire. In others, such as Gilman v. City of Long Beach, 111 Cal.App.2d 747, 245 P.2d 512, and Teachers’ Retirement Board v. Contributory Retirement Appeal Board, 346 Mass. 663, 195 N.E.2d 318, there was expert testimony that an injury received in connection with the person’s duties was contributing cause of subsequent disability or death. For the most part, each case turns on its own particular facts.

When we review and weigh the evidence in this case, and thereby determine the facts, we are forced to find the facts to be as found by the Board of Trustees, except we would revise finding of fact number 8 to provide that there is no evidence from which it may be found that chemical fumes were inhaled by Marshal Bergman in an amount sufficient to aggravate his previously existing heart condition and cause the coronary thrombosis which was the immediate cause of his death. A finding to the contrary would be based on speculation and conjecture, and it would be contrary to what we consider to be the competent and substantial evidence in the record.

The Board’s action is consistent with the facts as we have found them, and is supported by competent and substantial evidence upon the whole record.

The judgment is affirmed.

BARRETT, C., concurs in result.

PRITCHARD, C., concurs.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HENLEY, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Willie HARRIS, Appellant.
    No. 53116.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, William A. R. Dalton, Sp. Asst. Atty. Gen., Springfield, for respondent.
    Parks G. Carpenter, St. Louis, George Hubei, St. Louis, for defendant-appellant.
   HENLEY, Presiding Judge.

Defendant was charged by information with burglary in the second degree. Section 560.070. The information also alleged that prior to the offense charged he was convicted, sentenced and imprisoned for two other offenses of burglary, second degree. Section 556.280. Prior to submission of the case to the jury the court determined that defendant had been previously convicted, sentenced and imprisoned, as alleged; a jury found him guilty, as charged; the court assessed his punishment at imprisonment in the penitentiary for a term of seven years, § 560.095(2); his motion for new trial was overruled and he was sentenced in accordance with the verdict and the prior assessment of punishment. He appeals. We affirm.

No contention is made that the evidence is insufficient to sustain the conviction; hence, a brief statement of the facts will suffice. The Ellis Pool Room located at 2303 Franklin Avenue in the City of St. Louis was closed and all outside entrances securely locked at about one o’clock, a. m., on March 20, 1966. One light was left burning above the rear pool table, as was the owner’s custom. At about three o’clock that morning, Patrolman Robert Leggitt of the St. Louis Metropolitan Police Department, and his partner, Patrolman Phil Stockton, were slowly traveling west in a police car on Franklin when Leggitt saw a shadow “duck down” behind a pool table in the pool room. Leggitt stopped, he and his partner got out, and as they were approaching the pool room, while still in the street, the front door of the pool room “ * * * came flying open and * * * one male subject [defendant] came running out the front door and east on Franklin to * * * the corner of 23rd and Franklin * * * [and] turned north on 23rd street * * One business, a restaurant, is located between the pool room and 23rd street. The officers gave chase, never losing sight of defendant between his exit from the pool room and his apprehension and arrest on 23rd street fifty or sixty feet north of the corner. As he was being searched, defendant dropped a rat tail file. Immediately after the arrest the officers returned to the pool room with defendant in custody. The hasp and padlock, which were secure and locked two hours earlier, had been pried loose from the front door which was then standing open; inside the premises the officers found evidence of a recent attempt to pry open two vending machines; a small radio that had been left on a shelf was found on the floor beside a vending machine.

The record contains a transcript of the proceedings and evidence heard at defendant’s preliminary examination in the St. Louis Court of Criminal Correction. The preliminary hearing was held on two dates, the first session on April 6, at which two witnesses were heard, and the second on April 8, 1966, at which a third was heard. Defendant was not represented by counsel at the first session; at the second he was represented by Ellis Outlaw, Esq., a member of the St. Louis bar who had been employed by defendant’s mother.

Because of the nature of some of the points raised in defendant’s brief and argument we relate at this point a brief chronology of events pertaining to his several counsel. After the information was filed in circuit court (on April 12, 1966), Mr. Outlaw entered his appearance for defendant on April 21. On June 21 Mr. Outlaw filed a motion alleging that he had reason to believe that his client was “mentally unbalanced” and in need of psychiatric treatment ; he prayed that defendant be committed to a hospital for such treatment. He was so committed in October and on December 27, 1966, the Director of Malcolm Bliss Mental Health Center of St. Louis filed a report of a psychiatric examination of defendant and his mental condition as of December 23. Briefly, the report stated that defendant showed no evidence of mental disease or defect; that he was able to cooperate with counsel in his defense. On January 17, 1967, Mr. Outlaw was granted leave to withdraw as counsel, “ * * * at the request of the defendant.” On the same day, the court appointed the St. Louis Public Defender to represent defendant, “ * * * at the request of defendant and his mother * * Mr. George Hubei of the Public Defender’s Office represented defendant at his trial on March 20 and 21. After the verdict was entered, the court, on request of Mr. Hubei, appointed Mr. Parks G. Carpenter as additional counsel to help prepare the motion for new trial. Mr. Carpenter, a member of the St. Louis bar, joined with Mr. Hubei in preparation of defendant’s brief and also presented oral argument in this court.

In his first point defendant contends that his federal and state constitutional rights were violated in that he was neither offered nor provided with counsel at the first session of his preliminary hearing in magistrate court. He asserts in argument that the preliminary examination was a critical stage of the criminal proceedings against him and that to deny him counsel at that stage constituted prejudice per se.

This court held in State v. Turner, Mo., 353 S.W.2d 602, 604 [8], that “Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination.” That, and subsequent decisions, have held in effect that in this state the preliminary examination of an accused is not a critical stage of a criminal proceeding.

There is no contention by defendant that anything occurred at the first session of the preliminary hearing that resulted in his being prejudiced. We have examined the transcript of the proceedings at that session and find nothing that occurred which conceivably could be said to have caused any of his rights to be prejudiced. There is the contention that because he did not have counsel he was deprived of the right to cross-examine the state’s witnesses at that session, but he had that right at the second session, at which he had counsel of his own choice. He makes no effort to explain why his counsel did not recall these witnesses for cross-examination at that session. From this we reasonably may infer that he had his own reasons for not doing so, and elected to waive the right he now belatedly raises as a deprivation of constitutional due process.

He asserts that Sup.Ct. Rule 23.03, V. A.M.R., “ * * * clearly and explicitly calls for appointment of counsel at preliminary hearing in cases such as the one at bar * * that State v. McClain, supra, without mentioning the Rule, renders the Rule “ * * * null and void and of no consequence * * therefore, we should reconsider the holding in the McClain case and “ * * * now declare that the violation of Supreme Court Rule 23.03 should constitute inherent prejudice to a defendant’s legal and constitutional rights.” The rule is quite clear in what it does require; it does not require the appointment of counsel for an accused, indigent or otherwise, at his preliminary examination. See majority opinion in State v. Turley, supra. State v. McClain, supra, did not have the effect defendant ascribes to it. Defendant cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, but those decisions are not applicable to the facts in this case.

Defendant’s second point is that his federal and state constitutional rights were violated in that he was not afforded a prompt and speedy trial.

His trial in circuit court began March 20, 1967, exactly one year from the date of the offense. During nine of those twelve months he was represented by counsel employed by his mother. After employed counsel was permitted to withdraw, the Public Defender was appointed to represent him, and two months thereafter his trial began.

The record does not support defendant’s assertion that he was unconstitutionally deprived of a speedy trial. On the contrary, the record shows that the delay of which he now complains was due to his own action. Before his trial commenced the court stated: “Let the record * * * show that this case has been set for trial on not less than eight prior occasions, and it was continued on each occasion except one by the defendant and on one occasion by the court.” In the light of this record, defendant is in no position to complain that he was denied a speedy trial. He waived his right to trial on the date for which the case was set each time he requested and was granted a continuance; and, he was granted a continuance on at least seven occasions over a period of not more than eleven months, and during that period he was undergoing tests in a hospital, at the instance of his counsel, for approximately two months. There is no merit in defendant’s second point and it is denied.

Defendant’s third and fourth points may be treated together. His third point is: “The court erred in failing to appoint at defendant’s request effective counsel who could and would make objections to certain inadmissible opinion and conclusion testimony essential to the State’s case, and who could and would hold defendant in check to prevent prejudicial comments by him to the jury.” His fourth point is: “The court erred in threatening to put defendant 'in jail forever’ and in inviting defendant in the presence of the jury personally to address the jury and in immediately thereafter convicting defendant of contempt of court for so addressing the jury.”

It should be noted at this point that the court’s “threat” to put defendant “in jail forever” was made in chambers, outside the presence and hearing of the jury, during a recess called by the court at the conclusion of the voir dire examination of half the jury panel, to attempt to persuade defendant that he should not make further remarks and continue to conduct himself in such manner as would be likely to work to his prejudice in the eyes of the jury. It should also be noted at this point that the proceeding at which the court found defendant guilty of contempt was conducted outside the presence and hearing of the jury after all the evidence was in and immediately before the instructions were read to the jury. To relate all that defendant said and all that occurred during the trial leading up to the events of which defendant complains in his fourth point would give a graphic picture of what is meant by defendant’s complaint in his third point that he was not furnished counsel “ * * * who could and would hold defendant in check to prevent prejudicial comments by him to the jury.” But, to do so would extend this opinion beyond reasonable length. It would suffice to narrate two or three occurrences. The record supports this conclusion: defendant decided in the beginning to say and do anything likely to disrupt the orderly procedure of the court, because he was dissatisfied with the court’s appointment of the public defender to represent him. (He indicated that he had previously requested the judge of another division of the court to appoint counsel of his (defendant’s) own choice. The record refutes this and, of course, the court is not required to appoint counsel chosen by an accused.) Note these remarks made after the jury was discharged: “Your Honor, I was misrepresented; forced to trial with a public defender. * * * That’s why I made the display in court, and I would do it again if that happened.”

At the conclusion of a part of the voir dire examination the defendant asked the court whether he could speak and, interrupting the judge’s answer, asked again: “May I speak?” The judge suggested that if he had anything to say, he say it to his counsel. Defendant said: “I would like to speak to you though” and interrupted the judge’s answer to say: “I would like to speak now.” Ignoring the judge’s suggestion that he say nothing further until he could reach the bench, defendant said: “Why not?” When he reached the bench, the judge told defendant to say to him whatever he had to say, but that he not talk loud enough for the jury to hear. He ignored this admonition and said aloud: “Why can’t I say that I’m being railroaded?” At this point the court declared a recess and retired to the judge’s chambers with counsel for the state and defendant, and the defendant. There he was asked and permitted to state what it was he wanted to tell the court. He appeared to have said all that he intended. Briefly, his remarks consisted of a complaint that he was denied counsel at his preliminary, that his trial counsel was from the Public Defender’s Office and was not prepared for this trial, and that the arresting officers beat him at the scene of the crime. At the close of the conference in chambers, the judge advised defendant that it would be to his interest that he not make speeches during the course of the trial, and admonished him that if he interrupted the trial again with a speech he would be in contempt of court and would be sentenced to jail for contempt. Defendant insisted that he would “ * * * take that chance” and make a speech whenever he desired, saying: “I have to. I’m going to make one whenever I go out there.”

Later, near the close of the trial, as the court was addressing a question to defendant’s counsel, defendant interrupted, saying: “Man, I want to speak. I’ve been threatened by the officials here in court and by you, the judge, and I would like to speak in may own behalf. * * * ” Defense counsel tried to interrupt his client, but defendant persisted, ignoring the judge’s request that he be seated by interrupting the judge several times to repeat: “May I speak?” At one point, defendant’s mother spoke out from the audience: “Please.” Defendant replied: “ * * * I’ll be seated as soon as I speak, but could I speak?” At this point the court said: “Say what you want to say, Mr. Harris. If you want to say it, say it.” After defendant made several statements, among which was, “I’m an ex-convict * * the court declared a recess and, out of the presence of the jury, found defendant guilty of contempt of court. As the jury was being returned to the courtroom, defendant again rose and continued with his speech. The judge interrupted him long enough to say: “All right, Mr. Harris. You just keep on talking now. You just go ahead and talk all you want. When you get through talking, you let us know.” Defendant continued; his remarks being recorded on four pages of the transcript. They do not warrant repeating here.

As stated, defendant contends in his third point that the court did not provide him with effective counsel. He concludes that counsel provided was ineffective, partially because counsel did not object to certain evidence which he (defendant) characterizes as “inadmissible opinion and conclusion testimony.” He asserts that counsel should have objected to this testimony, because it expressed merely the opinions and conclusions of the witnesses and was therefore inadmissible; that without this evidence the state would have failed to make a submissible case; consequently, he says, counsel was not “effective.”

In this connection defendant refers to and quotes parts of seven answers given by three witnesses when they were asked to “describe the condition of” or “what they observed in” the pool room shortly after defendant’s arrest. We need not set out this particular testimony; we have carefully examined it; its substance was that there had been a “burglary” of the pool room and that the burglar had “moved the radio” and had tried but failed to “break in” the coin vending machines.

In the first place, the questions which elicited these answers were not objectionable for any reason; nor do we consider the answers objectionable (or subject to motion to strike, etc.) for the reasons which defendant and his added appellate counsel would now, in retrospect, have had his trial counsel interpose. But, if the answers were objectionable for any reason, the mere failure to object does not establish that counsel was ineffective. State v. Whitaker, Mo., 312 S.W.2d 34, 41 [17]. This record convinces us, as it did the trial court, that defendant was skillfully and competently represented by Mr. Hubei throughout the trial, albeit under very difficult circumstances.

The court said in State v. Turner, Mo., 353 S.W.2d 602, 605 [9]: “The accused is entitled to a fair trial but not a perfect one.” Defendant had a fair trial; he would have had a perfect trial, except for his own actions for which he now seeks to condemn others. It is quite clear from this record that neither trial counsel nor any other counsel could have succeeded in persuading this defendant from making comments to the jury. The opinion and conclusion testimony, so called, was not essential to the state’s case; there was ample evidence to sustain the conviction without it.

As stated, the proceeding at which the court first warned defendant that he would be found in contempt should he continue to disrupt the court with remarks or speeches, and that at which he was finally found guilty of contempt were both held outside the presence and hearing of the jury. There is no indication in the record that the jury had any knowledge of what transpired on either of those occasions; hence, neither of these matters could have influenced the jury to defendant’s prejudice. The jury may well have been exasperated by defendant’s demeanor and remarks, but such prejudice as may have resulted from that may not be laid at the doorstep of the court or counsel. The right to due process is not a license to ignore the rules necessary to guarantee a fair trial.

Nothing was said or done by the judge in the presence of the jury which reasonably could be construed as prejudicial to the rights of defendant; he was patient, yet firm; he was firm in his determination to preserve that order necessary to the conduct of a fair trial; he was firm in his determination to accord defendant all of his rights. While the judge yielded to defendant’s demand to speak near the close of the trial, it may not be said that he thereby erred to defendant’s prejudice, although it is obvious that the judge was of the opinion that for defendant to address the jury would likely be a mistake working to defendant’s detriment. The trial had reached the point where it was no longer possible for the court to protect defendant from himself.

Defendant assigns as error the action of the court in overruling his challenge of venireman Richard D. Smallwood for cause, thus requiring him to use one of his peremptory challenges to remove Smallwood from the jury list.

The record shows that venireman Small-wood raised his hand when the panel was asked whether any of them “* * * ever had their car stolen, their house broken into * * Mr. Smallwood stated that his home had been burglarized twice, once in 1960 and again in 1964, with a total of about $7,500 in personal effects being taken; that his automobile was stolen about two months before this trial and recovered three days later, wrecked; that no one had been apprehended for those offenses. When asked whether these experiences would affect him “* * * ⅛ serving on a jury,” he said: “I think they might.” At this point the court took over examination of the venireman, calling his attention to the fact that “* * * our experiences in life always affect us * * In response to an inquiry by the court, Mr. Smallwood indicated that these experiences would not cause him to be unable to give defendant a fair trial. When asked whether he could listen to the evidence, weigh it, follow the court’s instructions, and reach a verdict based solely on the evidence and the law, he said: “I believe I could, Sir.” When asked whether he could give both the state and defendant a fair trial based solely on the evidence in this case and the instructions, he replied: “I could do that I’m certain.” Later, he was asked by defense counsel whether he might during the course of the trial, think of the burglaries of his home and the theft of his car. He said: “Well, I can’t rule those out entirely. There is a possibility.” When asked whether he harbored any bitterness as a result of those incidents, he answered: “I know he’s not personally responsible for those. Naturally if you’ve been inconvenienced and had personal effects taken you’re not very happy about it.” The last question asked him was: “Did you state before that you think that these events might effect [sic] you in this deliberation of this ?” His reply was: “I just said I don’t feel like he would be personally responsible for those, but I— I — I feel I could sit here impartially and listen to the facts in this case without being overly prejudiced.”

The challenge of venireman Smallwood for cause was on the ground that defense counsel was of the opinion that Smallwood’s experiences in connection with the two burglaries of his home and theft of his car would affect his “feelings” in this case.

The challenge for cause, on the ground stated, was directed to the sound discretion of the trial court. That court has a wide discretion in determining the qualifications of a venireman and its decision thereon should not be disturbed except for a clear abuse of discretion. State v. Jones, Mo., 384 S.W.2d 554, 558 [1, 2], and cases there cited. In State v. DeClue, Mo., 400 S.W.2d 50, 57 [14], this court said: “Certainly a clear line of demarcation cannot be drawn as to when a challenge for cause should or should not be sustained. Some cases will be ones where an appellate judge might have done differently but at the same time cannot say that there was an abuse of discretion * * Each case must be judged on its particular facts.

A determination by the trial judge of the qualifications of a venireman necessarily involves a judgment based on an observation of the demeanor of the venireman and, in the light of that observation, an evaluation and interpretation of his answers as they relate to whether he would be fair and impartial if chosen as a juror. The trial judge is in a far better position to make that determination than are we from the cold record.

The ruling of the trial court is not clearly and manifestly against the record of the voir dire examination of this venireman ; on the contrary; the record supports the ruling and the court did not abuse its discretion in refusing to sustain the challenge for cause.

Our examination of other matters we review under Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.

      . All statutory references are to ESMo 1959 and V.A.M.S.

      . State v. McClain, Mo., 404 S.W.2d 186, 188-9 [2]; State v. Turley, Mo., 416 S.W.2d 75, 76 [1-4]; State v. Durham, Mo., 416 S.W.2d 79, 82 [5-7].


author: FINCH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Walter BLEVINS, Appellant.
    No. 52763.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Glen C. Schomburg, Sp. Asst. Atty. Gen., Kirkwood, for respondent.
    Richard L. Hughes and Alan B. Weber, St. Louis, for appellant.
   FINCH, Presiding Judge.

In State v. Blevins, Mo., 421 S.W.2d 263, we affirmed a conviction of the defendant herein for first degree robbery with a dangerous and deadly weapon. That conviction involved the taking by defendant Blevins of a leather jacket from one Allen Jones. In this case, defendant was charged and convicted by reason of the taking, on the same occasion, by a codefendant, Eddie Brown, of a leather jacket from one Ray Moore. A severance was granted and Blevins was tried separately from Eddie Brown. The jury assessed defendant’s punishment at five years’ imprisonment and, after an unsuccessful motion for new trial, he appeals.

A brief summary of the evidence will suffice for this appeal. It disclosed that on the evening of December 4, 1965, Ray Moore, Allen Jones and Jones’ sister Deborah left Moore’s residence in an apartment building at 2310 Cass Avenue in St. Louis and went to the bus stop at 2300 Cass. They then decided to cross the street to a grocery store to get some candy. While in the store they noticed several boys looking in the store window. Shortly, Moore, Jones and Deborah left the store and returned to the bus stop. Almost immediately, two of the boys who had been looking in the store window (later identified as defendant Blevins and Eddie Brown) crossed the street and approached the three young people standing at the bus stop. Both defendant and Brown had revolvers. Moore and Jones were wearing three-quarter length black leather jackets and Blevins said to them, “Get out of those coats.” Defendant Blevins was facing Jones and took his coat. Moore was a little slow taking off his coat and defendant remarked that they might have to shoot if he didn’t get out of the coat. Moore then removed the coat and it was taken by Eddie Brown, who was facing him. Blevins and Brown then left.

Defendant took the stand and testified that he had been elsewhere with other people (not Eddie Brown), that he came by 2300 Cass Avenue after the robbery had occurred, and that he had not participated in the robbery. The final question asked of defendant on direct examination and his answer thereto were as follows:

“Q Let me ask you this, Mr. Blevins. Have you ever been convicted of a crime in the State of Missouri or anywhere in these United States? Have you ever been convicted of a crime, yes or no ?

“A No.”

Thereupon, the following occurred on cross-examination by the Assistant Circuit Attorney:

“Q Mr. Blevins, do I understand you to say that you have never been convicted of a felony in this State?

“A Yes.

“Q Now, isn’t it true that on July 20, 1966, this year, you were convicted of Robbery in the First Degree in Division 17 of this courthouse?

“MR. HOWARD: Objection, Your Honor.”

Thereafter, a long colloquy followed out of the presence of the jury. Counsel for defendant objected to the question on the ground that the conviction inquired about had been appealed and was not final, that evidence thereof is not admissible under § 491.050 (all references are to RSMo 1959, V.A.M.S.) and that inquiry about such appealed conviction constituted prejudicial error. Ultimately, the trial court permitted the Assistant Circuit Attorney to proceed with the question and the defendant answered that he had been convicted in that trial of robbery in the first degree but he stated that it was not final. Counsel for defendant requested a mistrial but the request was overruled. On appeal, this is urged as a basis for a new trial.

Section 491.050, which is the governing statute, provides as follows: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.”

When a defendant or other person takes the witness stand, it is permissible under § 491.050 to show a prior conviction for the purpose of affecting his credibility. The question here presented is just what is meant in the statute by the term “convicted of a criminal offense ?” Does it mean a judgment of conviction which is final either by reason of affirmance on appeal or by lapse of time within which an appeal may be taken ? If not, does it mean merely a jury verdict of guilty, before pronouncement of sentence and judgment (see discussion in People v. Rodgers, 112 Cal.App. 615, 297 P. 924, 926, and the case therein cited of People v. Ward, 134 Cal. 301, 66 P. 372), or does it mean a trial court judgment and sentence, irrespective of whether either a motion for new trial or an appeal is pending?

In State v. Shelton, 314 Mo. 333, 284 S.W. 433, an opinion written by Commissioner Railey was adopted by the court en banc. In that case defendant sought unsuccessfully to impeach the state’s principal witness by showing that he had been convicted even though that conviction was then pending on appeal. The opinion contains this statement, 1. c. 437: “The court is charged with error in refusing defendant permission to show that witness John Mullinix had been convicted in the circuit court for violating the prohibition laws of the state. The record shows that an appeal was taken by the witness to this court, and that the cause was pending here when this case was tried. The trial court was within the law in holding as above indicated. When the case was appealed to this court, the appeal suspended the operation of said judgment and transferred the cause here.”

It cannot be said, however, that the above statement was adopted as the opinion of the court. Only Judge Walker concurred in Commissioner Railey’s opinion. Judge Blair wrote an opinion in which he concurred in the result reached but he expressly disapproved the quoted portion of the opinion. He was of the view that it was error to exclude evidence of the conviction of witness Mullinix, even though the case was pending on appeal, but he concluded that under the particular facts of the case the error was nonprejudicial. Judge Atwood concurred in the opinion of Judge Blair. Judge White dissented, saying that exclusion of the prior conviction was prejudicial error. Thus, three judges would have held that the prior conviction, even though on appeal, was admissible. Judge Walker concurred in the view of Commissioner Railey that the evidence was inadmissible. The other judges either concurred in result or dissented without expressing themselves on this issue. Under these circumstances, it cannot be said that the Shelton case resolved the issue either way.

The recent case of McCauley v. Stone, Mo.App., 315 S.W.2d 476, dealt with admissibility of a conviction in the magistrate court. The Court of Appeals noted that the case was triable de novo on appeal and that the situation was the same as though no judgment had been rendered in the magistrate court. The opinion holds such magistrate court judgment not admissible for purposes of impeachment. That, of course, does not settle the question here presented.

It seems perfectly clear that if an appellate court reverses a conviction outright, or reverses and remands the case for a new trial, the original conviction is wiped out and after the date of. the appellate decision may not be shown for impeachment purposes. Likewise, if a trial court sets aside a conviction and grants a new trial, the conviction may not be used thereafter for purposes of impeachment from and after the trial court order. In both of these instances the situation is the same as if there had never been a conviction. The only question seems to arise where there has been a judgment of conviction by the trial court but an appeal has been taken and remains undisposed of (or the case is pending on motion for new trial) when it is sought to use the trial court conviction for purposes of impeachment in another case. Some courts hold that the conviction is inadmissible under such circumstances. Adkins v. Commonwealth, Ky., 309 S.W.2d 165; Ringer v. State, 137 Tex.Cr.R. 242, 129 S.W.2d 654. See also People v. Van Zile, 80 Misc. 329, 141 N.Y.S. 168, 29 N.Y.Cr.R. 378. Other courts hold that the conviction may be used under such circumstances. 98 C.J.S. Witnesses § 507(f), p. 414; 58 Am. Jur., Witnesses, § 745, p. 402; Annotations in 6 A.L.R. 1647, 25 A.L.R. 348, 103 A.L.R. 367, and 161 A.L.R. 282, and cases therein cited. Some courts have said that the admission of the trial court’s judgment of conviction for purposes of impeachment is not erroneous even though subsequently such conviction is reversed outright and the appellate court holds that a directed verdict should have been entered. State v. Crawford, 60 Utah 6, 206 P. 717; People v. Braun, 14 Cal.2d 1, 92 P.2d 402.

Even though a majority of the states which have passed on this question seem to hold that a conviction is admissible while an appeal is pending, we have concluded that a judgment of conviction should not be admissible while an appeal therefrom is pending. Both reason and justice dictate this conclusion. Otherwise, the theory that a reversal of a conviction completely wipes out that conviction and makes the situation the same as though it had not been rendered is partially fallacious. For example, assume that while the first conviction is on appeal, it is offered in evidence against defendant for purposes of impeachment in a second case. That prior conviction then is considered by the jury in the second case in determining the guilt or innocence of the defendant therein. Obviously, the conviction was offered and received for the purpose of affecting defendant’s credibility. It may well have been the factor that caused the jury in the second case to disbelieve the defendant and convict him therein. That, at least, is a possibility, if not a probability. We cannot assume that the jury was not so affected. Under those circumstances, the conviction in the first case, which is ultimately reversed and theoretically wiped out completely, remains a factor in the conviction of the defendant in the second case, and to that extent the erroneous conviction is not wiped out and completely eliminated. Surely, the legislature, in enacting § 491.050, did not intend that for the brief period between conviction in the trial court and ultimate action on appeal by the appellate court, the defendant may be impeached and his credibility affected in another case by that first trial court conviction even though it may ultimately be reversed and eliminated on appeal. S.Ct. Rule 28.02, V.A.M.R., provides that an appeal in a criminal case “shall constitute a continuation of the proceeding in the trial court.” The proceedings are not concluded until the appeal is determined. The conviction then becomes final. We necessarily conclude that the judgment of conviction referred to in § 491.050 is a final judgment of conviction, made so by affirmance on appeal or by the lapse of time permitted for notice of appeal without an appeal having been taken. Accordingly, we hold that it was error to permit the interrogation of the defendant relative to his conviction for first degree robbery in the case tried July 20, 1966, while that conviction was pending on appeal.

The state argues that the question asked by counsel for defendant as to whether he had been previously convicted justified the questions by the state, and that even if the use of the appealed conviction is normally error, it was invited error under the circumstances. We have concluded that the use of the conviction cannot be justified on that basis and hence overrule that contention.

In view of our decision to reverse and remand for new trial, it is not necessary that we consider in detail the other grounds asserted as a basis for a new trial. In connection with the question presented with respect to identification procedures, we refer counsel to what Judge Eager said in State v. Blevins, 421 S.W.2d 263. With reference to the testimony relating to examination of photographs by a witness, we refer counsel to recent decisions of this court dealing with that subject, viz., State v. Rima, Mo., 395 S.W.2d 102, and State v. Hale, Mo., 400 S.W.2d 42.

Reversed and remanded.

All of the Judges concur.


author: HOLMAN, Chief Justice.

text:
    George R. FLETCHER and Arlene L. Fletcher, Plaintiffs-Respondents, v. NORTH BRITISH AND MERCANTILE INSURANCE COMPANY, Limited, a Corporation, the Mercantile Insurance Company of America, a Corporation, and Hartford Fire Insurance Company, a Corporation, Defendants-Appellants.
    No. 52899.
    Supreme Court of Missouri, En Banc.
    March 11, 1968.

      Lincoln, Haseltine, Forehand & Springer, Edmund C. Forehand, Carl E. Yates, Horace S. Haseltine, Springfield, for plaintiffs-respondents.
    Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for defendants-appellants.
   HOLMAN, Chief Justice.

Plaintiffs owned and operated a barbecue restaurant in Springfield, Missouri, known as “The Hickory Pit.” On October 19, 1963, the building and contents of the restaurant were damaged by fire. In this action on insurance policies carried with the defendants, plaintiffs obtained a judgment for $10,184.27 on Count I, and $5,320 on Count II, together with interest from February 10, 1964. Defendants appealed to the Springfield Court of Appeals. That court adopted an opinion which (with slight modifications) affirmed the judgments. On application of defendants we ordered the case transferred to this court. It will be determined here “the same as on original appeal.” Civil Rule 84.05 (h) and Mo. Const. Art. V, § 10, V.A.M.S.

The policy plaintiffs carried with defendant North British and Mercantile Insurance Company insured the building and its contents. Their policy with the Hartford Fire Insurance Company insured against loss sustained by the interruption of their business. Plaintiffs submitted proofs of loss to the adjustor for the insurance companies on December 12, 1963. These proofs were rejected by the insurers on February 3, 1964, for the reason that they did not conform with the provisions of the policies in certain respects, and under date of February 11, 1964, proofs were resubmitted by plaintiffs to the insurers. The North British policy contained a provision for arbitration and appraisal. Plaintiffs invoked the appraisal provision and, in accordance with the policy, each party appointed an appraiser and those two selected an umpire for the purpose of appraising the damages. Two of the three selected subsequently agreed on damages totaling $3,781.57 on the building and its contents. North British tendered a draft to plaintiffs in the aforementioned amount but plaintiffs rejected the tender and returned the draft to said defendant. Shortly thereafter this suit was filed.

The fire here involved was located in the area of the barbecue pit. The pit was substantially destroyed and heavy smoke and considerable heat caused damage to the furnishings and the interior paneling and floor covering of the building. We see no reason to make a detailed statement of the evidence relating to the damages. Prior to the trial the parties stipulated that the measure of damage to the furnishings and interior of the building “shall be based upon the cost of restoring the aforementioned items to substantially their previous condition.” Some of the items of damage were stipulated to, and there was considerable evidence offered concerning the condition of the property after the fire and the cost of restoring it to its previous condition. It is perhaps sufficient to say that the evidence offered by plaintiffs was sufficient to support the findings and judgment of the court on Count I.

As to the damages sustained because of interruption in plaintiffs’ business, it was stipulated that plaintiffs were entitled to receive $70 per day for each day required, “with the exercise of due diligence and dispatch, to repair and restore the premises so that business could be resumed.” There was evidence to indicate that immediately after the fire plaintiffs began obtaining bids and employing workmen to clean and repair the premises. Plaintiffs sought in the petition to recover damages for 73 days’ interruption of the business. Plaintiff George Fletcher testified at one time that he opened! the business on December 30, 1963, and in another place in his testimony stated that it was reopened on January 3, 1964, which, latter date would indicate that the business was closed 76 days. Defendant Hartford, throughout the trial, contended that the plaintiffs, in the exercise of due diligence, could have had the premises cleaned and repaired so that the business could have been reopened in a much shorter period of time. The evidence also indicated that some of the items that had been damaged had not been repaired or replaced at the time of trial.

The case was tried before the court without the use of a jury. Prior to the beginning of the trial the defendants requested that the court prepare and file a brief opinion containing a statement of the grounds for its decision, and the method of determining any damages awarded, as provided in Civil Rule 73.01(b).

At the conclusion of the trial the court took the case under advisement and on December 1, 1965, entered a judgment for plaintiffs in the amount of $10,185.02, with interest, on Count I and $5,326, with interest, on Count II. The court denied the claim of plaintiffs for attorney fees and damages for vexatious delay. On December 8, 1965, defendants filed a motion to set aside the judgment and grant defendants a new trial in which they complained, among other things, of the failure of the trial court to file the written opinion which had been requested, and also complained of an alleged error in computing the damages allowed in Count II. On December 31, 1965, the court, of its own motion, set aside the judgment of December 1 “for the reason that the court had not filed findings of fact and conclusions of law prior to its entry of said judgment, and that the court erred in its computation of damages on Count II.” On January 12, 1966, the court entered a new judgment for plaintiffs in the sum of $10,184.27, with interest, on Count I, and $5-,320 with interest, on Count II. Prior to entering said judgments the court filed findings of fact and conclusions of law.

On January 19, 1966, defendants filed a new motion for new trial and upon said motion being overruled duly appealed. This case has recently been reassigned to the undersigned.

The first contention of defendants is quoted from their brief as follows: “The trial court erred in entering a judgment on Counts I and II of plaintiffs’ petition on January 12, 1966, for the reason that the court had no jurisdiction to render such judgment because it was rendered more than thirty days after the original judgment was rendered on December 1, 1965.” We fail to see any merit in that contention. Civil Rule 75.01 provides, in part, as follows: “The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.” When the trial court entered its judgments of December 1, 1965, it overlooked the fact that a request for findings had been made, and it had also made a slight mathematical error in computing the amount of the judgment on Count II. Thereafter, the court became aware of the said error and omission and evidently decided to correct same. It accordingly, of its own motion, set aside the judgments of December 1. That order was made within the 30-day period following entry of the judgments and was clearly authorized by Civil Rule 75.01. The order shows on its face that there was “good cause” for making it.

After the judgments were set aside the case was again under submission, or, as sometimes stated, restored to the breast of the court, in the same manner as though the judgments of December 1 had never been entered. In that situation the trial court undoubtedly had the jurisdiction to later enter the judgments appealed from.

In support of their contention defendants have cited Salle for Use and Benefit of Mandel v. Holland Furnace Co., Mo.Sup., 337 S.W.2d 87, Snyder v. Christie, Mo.App., 272 S.W.2d 27, and Jaeger v. Agnew, Mo.App., 252 S.W.2d 847. None of those cases are applicable to the situation before us. The Salle and Snyder cases both involved orders setting aside judgments after the 30-day period had elapsed. In ..the Jaeger case the court set aside a judgment entered on a jury verdict and sought to enter its own judgment in a different amount which, of course, is not permissible. As indicated, we rule this point against defendants.

The next point briefed by defendants is that the court erred in entering its judgments of January 12, 1966, because it had failed to timely file its findings of fact and conclusions of law prior to the rendition of its original judgment on December 1, 1965. We are unable to see any merit in that contention. As we have heretofore said, when the first judgments were set aside the situation was the same as if they had never been entered. Findings were filed before entry of the current judgments. It therefore appears that the trial court complied with the requirements of Civil Rule 73.01(b). The fact that the court failed to make findings prior to the entry of the first judgments is no longer of any consequence and any error in that regard has been rendered harmless. Defendants rely on the case of Clauson v. Tipton, Mo.App., 147 S.W.2d 148, which does appear to lend some support to their contention. That case was decided under a prior statute which contained provisions much different than those in Civil Rule 73.01(b). However, to the extent that Clauson may be construed as being in conflict with our ruling herein it should no longer be followed.

In the “Request for Written Opinion” defendant North British requested the court to “specifically include a statement of its findings in regard to the validity of the appraisal agreement,” and defendant Hartford requested a “finding of facts in regard to reasonable time necessary through due diligence for plaintiffs to have commenced the operation of their business subsequent to the fire.” Defendants now complain that the findings of the court in regard to the matters referred to in the foregoing requests were insufficient.

The principal facts concerning the appraisal proceedings were agreed to by the parties. The only finding which the court could appropriately make was in the nature of a conclusion of law. That conclusion was stated by the court as follows: “That as to the effect of the arbitration on which the defendant rests his [its] defense, the burden rested upon the defendant to sustain allegations contained in his [its] answers and to establish that the appraisement pleaded was made in substantial compliance with the terms of the contract in order for the defendant to rely upon such appraisement as fixing the amount of the loss or the damage. The defendant having failed to sustain this burden, it is concluded that the appraisement prior to this hearing does not fix the liability owed by the defendant to the plaintiff.”

The findings of fact relating to the issue of the time reasonably required for repair of the damaged property were as follows: “The greater weight of the credible evidence as to the amount of damage for interruption of business was that the restaurant was closed from the day of the fire, October 19, 1964, until January 3, 1965, for a total of 76 days, that due diligence and dispatch was used to reopen; that any delay which was caused was beyond plaintiffs’ best care and control; that the delay which did occur resulted from weather and other factors beyond the control of plaintiffs and prevented the opening of the business at a date sooner than the date of January 3, 1965, therefore, the 76 days claimed for interruption of business is reasonable.”

The findings of fact and conclusions of law of the trial court occupy nine pages of the transcript. It is obvious that the court made a diligent effort to comply with the requests of the defendants in that regard. Concerning the two issues specifically complained of we rule that the quoted findings and conclusions were a reasonable and adequate compliance with the requests and that the court did not err in respect thereto.

The next point briefed by defendants is that “the trial court erred in rendering its judgment on Count I of plaintiffs’' petition in that an appraisal award was made and was pleaded by defendant, North British, as a defense to Count I of plaintiffs’ petition and plaintiffs filed no responsive pleadings thereto.” Defendant North British, in its answer, pleaded as a defense to the first count of the petition the fact that appraisers had been appointed and had made findings as to the amount of the damage, which amount had been tendered to plaintiffs. Plaintiffs did not file a reply to the answer. Said defendant now asserts that since plaintiffs filed no reply to its answer the pleaded appraisal defense should have been considered admitted and hence the court erred in overruling its motion to dismiss filed prior to trial and its motion for judgment on the pleadings on the date the trial began. In support of this contention North British cites a portion of Civil Rule 55.11 which states that “[a]ver-ments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleadings.” However, that rule does not support North British because, in the situation here involved, plaintiffs were not required to file a reply. Civil Rule 55.01 provides that “[t]here shall be a petition and an answer; and there shall be a reply if the answer contains a counterclaim denominated as such; * * * No other pleading shall be required except that the court may order a reply to' an answer * * The answer of North British did not contain a counterclaim and the court did not order a reply. We therefore rule that no reply was required and, as provided in the last sentence of Civil Rule 55.11, the aver-ments of the answer “shall be taken as denied.” It follows that the trial court did not err in overruling the motions heretofore mentioned.

The final contention of defendants is that the judgments were grossly excessive, not supported by the preponderance of the credible evidence, and that they were the result of bias and prejudice on the part of the trial court. In approaching this assignment we have in mind that Civil Rule 73.01(d) provides that on appeal in a court-tried case “[t]he appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” We have already indicated that there was sufficient evidence to support the judgments. It is also our view that in making our findings this is a case where it is particularly appropriate that we defer to the findings of the trial court. This for the reason that the testimony was rather technical and it involved frequent references to samples of furniture, tile, and paneling which were exhibits in the trial but are not before us at this time. We therefore defer to the findings of the trial court on the disputed testimony and accordingly rule that the judgments were supported by the preponderance of the evidence and were not excessive.

As to Count I defendant North British particularly complains of the fact that the testimony as to the estimates of the cost of restoring the property did not include testimony that such was the “reasonable” cost. The usual measure of damages on both real and personal property is the difference between the reasonable market value before and after the injury. However, under some circumstances, the courts have approved as a measure of damages the cost of repair or restoration of the property to its former condition. Beaty v. N. W. Electric Power Cooperative, Mo.App., 296 S.W.2d 921 [5]; Southwestern Bell Tel. Co. v. Rawlings Mfg. Co., Mo.App., 359 S.W.2d 393[7]. In the case at bar, the parties stipulated that the measure of damages should be the restoration cost. The witnesses gave their estimates of that cost. No objection or motion to strike was made because of the failure of the witnesses to use the word “reasonable” in describing their estimates of the cost of restoration. We rule that under these circumstances the testimony constituted substantial evidence and the trial court did not err in considering and accepting it.

We also rule that there is nothing in this transcript to indicate that the trial court was biased or prejudiced in this case.

It has been called to our attention that the judgment against Hartford was computed on the basis of 76 days of business interruption when plaintiffs alleged only 73 days. As heretofore stated, plaintiff George Fletcher gave conflicting testimony on the date of reopening the business. Since the judgment on Count II exceeds the amount prayed for in the petition we rule that it is excessive to the extent of $210. Under the terms of the policies interest would not begin to accrue until 60 days after submission of proofs of loss. The court allowed interest on the judgments from February 10, 1964, which was 60 days after the submission of the original proofs. However, defendants objected to the proofs of loss and plaintiffs submitted new proofs on February 11, 1964. We accordingly have the view that interest was not allowable until 60 days after the latter date.

The foregoing errors do not require that we grant a new trial. It is our duty to give such judgments as the trial court ought to have given. Civil Rule 83.13(c). The judgments are therefore modified by reducing the amount of the award on Count II from $5,320 to $5,110, and by changing the date from which interest shall accrue on the judgments in both counts from February 10, 1964, to April 12, 1964. As so modified the judgments are affirmed.

All concur.

      . References to Civil Rules are to V.A.M.R.


author: ROBERT T. DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Virgil McCALL, Appellant.
    No. 53331.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    George B. Scott, Jr., Poplar Bluff, for appellant.
   ROBERT T. DONNELLY, Judge.

Appellant, Virgil McCall, was convicted of the felony of incest under § 563.220, RSMo 1959, V.A.M.S., in the Circuit Court of Butler County, Missouri, and his punishment was assessed at imprisonment for five years. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court by court-appointed counsel.

Appellant was convicted of having committed fornication with his natural daughter on April 29, 1967, in the family home in Poplar Bluff, Missouri. Appellant does not question the sufficiency of the evidence. It is sufficient to sustain the conviction.

Appellant contends that the trial court erred in refusing to give, though requested by appellant, the following instruction:

“The Court instructs the jury that under the law of this state the fact that the defendant, Virgil McCall, did not testify in the trial of this cause shall not be construed to affect in any way his innocence or guilt nor shall the same raise any presumption of guilt.”

The Fifth Amendment to the Constitution of the United States provides that no person “ * * * shall be compelled in any criminal case to be a witness against himself, * * Art. I, § 19, Const, of Mo., 1945, V.A.M.S., provides that “ * * * no person shall be compelled to testify against himself in a criminal cause, * *

In 1877, the Legislature of Missouri enacted what is now § 546.270, RSMo 1959, V.A.M.S. (S.Ct.Rule 26.08, V.A.M.R.), which reads as follows:

“If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.”

In 1893, this Court, in State v. Robinson, 117 Mo. 649, 663, 23 S.W. 1066, 1070, stated:

“Another instruction, it is said, the court ought to have given, and that was to the effect that if a party accused fail to testify such failure shall not create any presumption against him. There was no error in refusing such an instruction. Section 4219, Rev.St.1889, is the one relied on to sustain this view; but the concluding words of that section provide that such failure to testify shall not ‘be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.’ If the court had given such an instruction, it would have disobeyed the spirit, if not the letter, of the law.”

The legislative and judicial departments of Missouri government have, for many years, concurred in the view that the privilege against self-incrimination is best protected by refraining “throughout the trial from any reference to the defendant’s failure to take the witness stand.” State v. Denison (1944), 352 Mo. 572, 581, 178 S.W.2d 449, 455. See Annotation, 84 L.Ed. 261, 269-271. Appellant’s contentions were last considered, and were rejected, by this Court in State v. Barker (1966), Mo. Sup., 399 S.W.2d 1, and State v. Hodge (1966), Mo.Sup., 399 S.W.2d 65. We are not persuaded that the law in Missouri on the question should be changed.

Appellant contends bias and prejudice on the part of the trial court is shown because the trial judge first indicated he would give the requested instruction and then refused to give the instruction. The record reveals that the trial judge “checked into this matter during the noon recess,” and then refused to give the instruction. The point is without merit.

An examination of the record as required by S.Ct.Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All of the Judges concur.