author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles Edward LEE, Donald Hunt, Richard Leo Carpenter, Donald Wayne Lee, Bill Powell, and Donald Ray Hayes, Appellants.
    No. 51639.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Ben J. Martin, Sp. Asst. Atty. Gen., Springfield, for respondent.
    Powell, Jones & Ringer, Dexter, for appellants.
   HOLMAN, Presiding Judge.

Each of the six defendants was found guilty of statutory rape and the punishment of each was fixed by the jury at two years’ imprisonment in the penitentiary. See § 559.260 (all statutory references are to RSMo 1959, V.A.M.S.). All of them have appealed from the judgments entered.

The defendants, young men ranging in ages from 18 to 21 years, lived in the vicinity of Dudley, Missouri. The events here involved occurred in or near Dudley on August 27, 1964. The offenses charged were alleged to have occurred in a little white house located about one-half mile south of Dudley which the defendants referred to as their clubhouse. It was a one-room structure in which they had placed a couch which could be made into a bed, a table, and some chairs. The windows and doors had fallen from or had been removed from the building. The prosecuting witness, whom we will refer to as Becky, was barely 15 years old — the evidence indicating that she was born on July 30, 1949. She lived with her grandmother, Jennie Pearson, and her sister, Sharon, in the southeast section of Dudley.

Becky testified that on the evening in question she left home at 7:15 and started to walk to church; that there were no sidewalks and she was walking along the edge of the street; that when she reached a point near the Mallory residence a Chevrolet car driven by defendant Hayes stopped near her; that defendant Carpenter jumped out of the car, picked her up, and threw her into the seat; that Carpenter told her to “shut her mouth,” and directed Hayes to “go straight and hit the blacktop and keep your lights turned off”; that Hayes drove the car to the little white house south of Dudley where they stopped; that Carpenter dragged her into the house and threw her onto the couch; that he then pulled off her underpants, held both of her hands, “put his privates in mine,” and engaged in sexual intercourse; that when he got up he started for the door and she put her pants on and started to leave the room just behind him when Charles Lee came in the door; that Charles then threw her on the couch, pulled off her pants, “put his privates in mine” and engaged in sexual intercourse for a period of time; that when Charles got up and started towards the door his brother, Donald Lee, came in and started to take her back to the couch but she got away from him and ran out the door; that she then ran north up the road towards Dudley with all of the defendants chasing her; that Donald Hunt grabbed her and took her back to the driveway in front of the little white house. When he released her she again started running toward Dudley; that she left the road and cut across a bean field; that someone started the car and drove it down the road shining a spotlight over the bean field; that she escaped and shortly thereafter arrived at her home; that no one was there so she locked the door, pulled down the blinds, and went to the bathroom and started washing herself.

Shortly after Becky arrived her sister, accompanied by her date, Wilson Peck (whom she married prior to trial), arrived at the house and upon being questioned by her sister Becky told her what had happened. Becky was then taken to the office of Dr. Northington in Dexter. The doctor testified that she was highly nervous and that he gave her a sedative; that he then took some secretion from her vagina which he delivered to Mr. Kenner, a laboratory technician; that Kenner prepared slides which he later examined and found that the fluid contained mobile male sperm. Similar testimony relating to the contents of the seminal fluid was given by Mr. Kenner.

All of the defendants testified. Defendant Hayes testified that he had spent the day in question working on Carpenter’s car; that during that afternoon he had seen Becky and she indicated that she had something she wanted to tell him; that early in the evening he and Carpenter had driven to the home of the Lee brothers; that while there he saw Becky walking down the road; that he and Carpenter got in Carpenter’s car (Hayes driving) and that when they overtook Becky, Carpenter got out of the car and Becky got into the car, seated between him and Carpenter, and they then drove to the clubhouse; that upon arriving there he and Becky got out of the car and went into the house and Carpenter drove away; that they sat on the couch and Becky then told him that one Sue Temples had said she wanted to date him. Hayes testified that he did not touch Becky and of course did not have intercourse with her; that shortly after they entered the house the Lee brothers, Bill Powell, and Donald Hunt arrived at the clubhouse and at that point Becky said she had to leave and did so. About ten minutes later Carpenter returned and a short time thereafter they all got in Carpenter’s car and drove into Dudley.

Carpenter’s testimony was very similar to that of Hayes except, in addition, he stated that when he left the clubhouse he drove to the home of his mother-in-law a short distance away to see-if his wife (from whom he was separated) was at home; that when he returned to the clubhouse Becky had gone. He denied having had intercourse with Becky.

The testimony of the other four defendants was substantially the same. They stated that they did not know that Hayes and Carpenter were taking Becky to the clubhouse; that after they had finished eating some sandwiches at the Lee home they walked to the clubhouse intending to sweep it out; that when they arrived Hayes and Becky were seated on the couch and that almost immediately Becky stated that she had to go home and got up and walked out. Each of these defendants denied having had intercourse with Becky or having chased her or touched her in any way. They stated that after Carpenter returned to the clubhouse they stood around and talked a few minutes and then all got in the car and drove into Dudley.

Additional testimony will be stated in our discussion of points briefed.

The first point briefed is that the trial court erfed in overruling defendants’ motion to quash the information which motion was based upon the fact that no indictment had been returned against defendants by a grand jury. It is said that such was required by the Fifth Amendment of the U. S. Constitution which provides, in part, that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Defendants concede that' said amendment has generally been held to be a restriction on the federal government and not on the states, but they say that the Fourteenth Amendment has recently been held to apply various restrictions, such as those contained in a number of the first ten amendments, to the states. For example, see Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L. Ed.2d 106.

In the case of Hurtado v. People of State of California, 110 U.S. 516, 4 S. Ct. Ill, 28 L.Ed 232, it was expressly decided that the various provisions of the Federal Constitution did not require that the states prosecute capital or other infamous crimes by indictment rather than by information. We have also decided that issue in the same manner in State v. Waller, Mo.Sup., 382 S.W.2d 668 [4], and in State v. Cooper, Mo.Sup., 344 S.W.2d 72 Upon the authority of the. cases cited in this paragraph we rule this contention adversely to defendants.

In 1963 the General Assembly enacted § 545.885 which provides, in part, as follows : “When two or more defendants are jointly charged with an offense under sections 559.260, 559.270 or 563.230, RSMo, they shall be tried jointly or separately in the discretion of the court; except that if there is evidence that would be admissible against one defendant, but inadmissible as to the defendants if all are tried jointly, the defendant against whom the evidence is admissible, upon timely motion made by any other defendant against whom the evidence is inadmissible, shall be tried separately.” To like effect, see also S.Ct.Rule 25.07(b), V.A.M.R. In accord with the foregoing the defendants filed a joint motion' seeking a separate trial for each one of them. They here complain of the alleged error of the court in overruling said motion.

In support of said contention defendants state that the provisions of tfie foregoing statute (and rule) constitute an arbitrary and unreasonable classification and hence are violative of the equal protection clause of the Federal Constitution (§ 1, Fourteenth Amendment) and of the somewhat similar provision of the Missouri Constitution, V.A.M.S. (§ 2, Art. I). Specifically, defendants say that it is a denial of equal protection to provide that persons charged with, rape and sodomy should be entitled to a separate trial in the discretion of the court while those jointly charged with other felonies are entitled to a separate trial, as a matter of right, upon request. See § 545.-880, S.Ct.Rule 25.07(a).

It is suggested in both briefs that the enactment of the provision in question was an effort to avoid the necessity of prosecuting witnesses making multiple appearances in court in those cases. That would appear to be a sound reason for its adoption. Unquestionably, the trial of a rape or sodomy case is an ordeal to the prosecuting witness who undoubtedly is subjected to a-great deal of emotional suffering and public embarrassment. If a prosecuting witness knows that she will be required to make many .such appearances she may refuse to make a complaint or to otherwise cooperate with prosecuting officials and hence the guilty may escape prosecution.

The general principles involved are stated in 16 Am.Jur.2d, Constitutional Law, as follows: “One of the basic principles involved in considering the validity of legislation assailed under equality provisions of the federal and state constitutions is that in the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion.” § 495, p. 862. “A fundamental principle involved in classification is that it must meet the requirement that a law shall affect alike all persons in the same class and under similar conditions. If a classification in legislation meets the prerequisites indispensable to the establishment of a class that it be reasonable and not arbitrary, and be based upon substantia] distinctions with a proper relation to the objects classified and the purposes sought to be achieved,' as long as the law operates alike on all members of the class, which includes all persons and property similarly situated, it is not subject to any objections that it is special or class legislation, and is not a violation of the federal guaranty of the equal protection of the laws.” § 502, p. 878. See also State v. Howell, 317 Mo. 330, 296 S.W. 370 [4], State v. Scullin-Gallagher Iron & Steel Co., 268 Mo. 178, 186 S.W. 1007 [3], and McClellan v. Kansas City, Mo. Sup., 379 S.W.2d 500 [15-17],

In their brief defendants have cited Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559, which relates to systematic discrimination against negroes in the selection of grand jurors, Patterson v. Med-berry, 10th Cir., 290 F.2d 275, involving the refusal of the state to furnish an indigent defendant a free appeal transcript, and State ex rel. Miller v. O’Malley, 342 Mo. 641, 117 S.W.2d 319, which declared a statute unconstitutional because it contained different provisions applicable to persons under investigation for election frauds in cities than it did for those in rural areas. It is obvious that those cases are readily distinguishable from the case before us.

Defendants also call attention to the fact that the provision under review is not made applicable to certain other sex crimes such as incest, molesting a minor, assault with intent to rape, and offenses relating to prostitution. We do not think the statute violates the equal protection clauses because it is not made applicable to all offenses which relate in any manner to sex. As said in 16 Am.Jur.2d, supra, “[t]here is no constitutional requirement that regulation must reach every class to which it might be applied — that the legislature must regulate all or none. It is not unconstitutional merely because it is not all-embracing and does not include all the evils within its reach.” § 505, p. 885. Furthermore, we conclude as a fact that the basic reason for the rule would not apply as forcibly to the crimes herein mentioned as it would to the crimes of rape and sodomy.

Since the statute (and rule) in question operates in the same manner as to all persons charged with rape and sodomy, and is reasonable and not arbitrary, we rule that it is valid and constitutional.

Defendants also contend that “the court erred in refusing to grant the defendants separate trials for the reason that some of the state’s evidence would not have been admissible as to other defendants if the other defendants had been granted separate trials. There was no testimony that the defendants Donald Hunt, Donald Wayne Lee, Bill Powell, and Donald Ray Hayes had intercourse with the prosecuting witness or aided and abetted those two defendants in any way whatever.” They seem to take the position that the four defendants mentioned should have been granted a separate trial because the evidence of the actual act of rape by Carpenter and Charles Lee would not have been admissible against them. We do not see any reason for deciding that point. If there was evidence that those defendants aided and abetted Carpenter and Charles Lee the evidence complained of was admissible against them and they were not entitled to a separate trial. If there was no such evidence those defendants were entitled to a judgment of acquittal and it therefore would be immaterial whether they were tried separately or together.

It is next contended that there was no evidence that defendants Hayes, Hunt, Powell, and Donald Lee aided and abetted the other defendants in their acts of intercourse and hence the court should have sustained each of their separate motions for a judgment of acquittal. Certain rules to be considered in connection with this contention are that in determining the sufficiency of the evidence to sustain a conviction, “the appellate court considers as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom; and evidence to the contrary is rejected. * * * A person who aids and abets the commission of a criminal offense is guilty as a principal without a showing of conspiracy. * * * All persons who act together with a common intent and purpose in the commission of a crime are equally guilty even though they are not personally present at the commission of the offense.” State v. Slade, Mo.Sup., 338 S.W.2d 802, 80S, 806. We have also said that “evidence sufficient to justify the jury in finding that defendant did in any way aid, abet or encourage another in the commission of a crime is sufficient to support a conviction.” State v. Ramsey, Mo.Sup., 368 S.W.2d 413, 417.

We have concluded that a submissible case was made against defendant Hayes. There was evidence that he was driving Carpenter’s car, stopped it while Carpenter forcibly grabbed Becky and threw her into the car, apparently followed. Carpenter’s directions in driving to the clubhouse with the lights out (during which time Carpenter threatened' to choke Becky if she yelled for help), and was present when Carpenter dragged Becky into the clubhouse. That was sufficient conduct from which a jury reasonably could have found that he aided and abetted Carpenter in accomplishing an act of intercourse with Becky. •

It is our view, however, that the State failed to make a submissible case against defendants Hunt, Powell, and Donald Lee. There is no contention that any of those defendants did anything to assist or encourage Carpenter- or Charles Lee in accomplishing acts of intercourse with Becky. Everything they did occurred after those acts of intercourse had been completed. Section 556.170. provides that “[ejvery person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.” The conduct, after the crime has been committed, of one alleged to have been an accessory before the fact is often held to be admissible as tending to prove that he had a criminal intent in.connection with the commission of the crime. State v. Corbin, Mo.Sup., 186 S.W.2d 469. However, if there is no showing that a defendant had any connection with the crime until after it has been .committed, .we do not think he can be found guilty as a principal in the second degree or accessory before the fact. The fact that these defendants chased Becky and attempted to restrain her from leaving the premises may have indicated that they entertained an expectation or desire to have intercourse with her thereafter. However, if they had that intent it was not accomplished and their conduct had nothing to do with the acts of statutory rape that had previously been completed. We rule that the court erred in failing to direct thé entry of a judgment, of acquittal as to said defendants and that the judgment of conviction, as to them, should be reversed.

It is also contended that the court should have sustained the motions for judgment of acquittal filed by defendants Carpenter and Charles Lee because Becky’s testimony is said to have been contradictory and unconvincing. A number of cases have held that “in statutory rape particularly a prima facie case can be made on the uncorroborated testimony of the prosecutrix. State v. Thomas, 351 Mo. 804, 174 S.W. 2d 337. And in rape cases generally the rule is that corroborotion is not essential to prove the act of sexual intercourse unless the testimony of the prosecutrix is contradictory and in conflict with physical facts, surrounding circumstances, and common experience so as to be so unconvincing and improbable that it is extremely doubtful.” State v. Wood, 355 Mo. 1008, 199 S.W.2d 396, 398. We rule this contention against said defendants. Becky’s testimony contained some contradictions as to minor details but we do not find it unconvincing as to the essential facts concerning acts of intercourse with Carpenter and Charles Lee. Moreover, her testimony in that regard was corroborated to some extent by the fact that mobile male sperm were found in her vaginal secretions shortly thereafter. In the cross-examination of defendant Carpenter it developed that he had previously served in the armed forces of the United States. He testified without objection that he had been convicted by a military court-martial of misuse of a government vehicle. Thereafter he was asked if he had been convicted at any other court-martials and, over objection, testified that he had been convicted of dereliction of duty. Defendants here contend that the admission of that evidence was error.

Section 491.050 provides that “[a]ny 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.” In the recent case of State v. Himmelmann, Mo.Sup., 399 S.W.2d 58, we held that evidence of defendant’s court-martial conviction for murder was properly admitted to impeach the defendant. We arrived at that conclusion because murder is an offense involving moral turpitude and is an offense under the laws of this state as well as under military law. We have concluded, however, that evidence of a court-martial conviction for dereliction of duty is not admissible for the purpose of impeaching a defendant. This for the reason that there is no comparable offense which is a “crime” under the laws of this state and it is not an offense, at least in peacetime, which involves moral turpitude.

£15] It is our view, however, that the admission of that evidence, under the facts and circumstances of this case, would not constitute reversible error. The very reason we have held it inadmissible tends to support that conclusion. “Dereliction” has been defined as “intentional or conscious neglect.” Webster’s Third New International Dictionary. It is obvious that the offense in question is of a very indefinite nature and is one that would not be regarded by the jury as a serious infraction. It may be that in this instance the neglect of duty involved was merely a failure to report for K.P. duty on one occasion, or some similar omission. Morever, if the jurors were inclined to reject this defendant’s testimony because of minor court-martial convictions we think it should be noted that there was a previous one admitted without objection. We cannot believe that the showing of one additional offense of an indefinite and obviously minor nature would have been prejudicial.

Defendants also contend that the court erred in failing to grant a mistrial when counsel for the State examined Carpenter in the following manner: “Q (by Mr. Parsons) How long were you in the Army, Mr. Carpenter ? A Eighteen months. Q Where were you discharged? A Fort Hood, Texas. Q And did you tell us that you had an honorable discharge? Mr. Powell: Wait a minute. I object to that, one objection has been sustained to that question. The Court: Sustained. Mr. Powell: Now, I ask that the jury be discharged because of this continuing harassing questions he’s asked this defendant. The Court: Well, the motion to discharge the jury is denied.” It is true that at a previous point in his testimony said defendant had been asked what kind of discharge he had received and the court had sustained an objection. While there no doubt have been exceptions, it is a well-settled general rule that the error in asking a witness an improper question is not prejudicial where the witness does not answer the question. State v. Hannebrink, 329 Mo. 254, 44 S.W.2d 142 [8]; State v. Keller, Mo. Sup., 281 S.W. 960 [11]. In the instant case the last of the foregoing questions would appear to have been improper but the eourt promptly sustained an objection and it was not answered. Moreover, the question was not phrased in such a manner as to leave the inference that Carpenter had received a dishonorable discharge. We also note that immediately before the quoted questions were asked the court, in ruling on another objection, gave the jury the following admonition, “the jury understands that any question not answered is not evidence and should' be disregarded.” In the circumstances presented we rule that the trial court did not abuse its discretion in denying the motion to discharge the jury.

The next contention of defendants is stated in the brief as follows: “In view of the fact that Dr. Northington, the state’s witness, testified that on the night of the alleged offense he examined the prosecuting witness and found male sperm in her private parts that could have been there for as much as five days, the court erred in refusing to permit the attorneys for the defendants to question the prosecuting witness and prove by her that she had had intercourse with one David Tipton in July, the month before the date of the alleged offense, * * * and to prove by her that on the night before the date of the alleged offense she had been out on a date with one Clifton Temples.” We rule that contention adversely to defendants. The proffered testimony relating to an act of intercourse with David Tipton in July would not have heen admissible for any purpose. State v. Taylor, 320 Mo. 417, 8 S.W.2d 29 [2], Also, the fact that Becky may have had a date with Clifton Temples on the night before the alleged offense would not tend to prove an act of intercourse with him and thus account for the male sperm. Such testimony, without additional proof of actual intercourse, would have been immaterial and clearly inadmissible.

Over the objection of defendants, Becky was permitted to testify that shortly after she returned home her sister questioned her and she told her what had happened. She was not allowed to testify as to the details but merely that she had told her sister what had- occurred. Defendants here contend that the court erred in admitting that testimony because it was not spontaneous and voluntary. In rape cases it is not necessary that statements of that kind be shown to have been spontaneous in order to be admissible. Also, we think the fact that Becky told her sister what occurred, in response to a question, does not indicate that the statement was not voluntary. We accordingly rule that the testimony here complained of was properly admitted. State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956 [7, 8]; State v. Burgess, 259 Mo. 383, 168 S.W. 740; State v. Conrad, 322 Mo. 246, 14 S.W.2d 608 [4, 5]; State v. Robinson, Mo.Sup., 106 S.W.2d 425 [4],

Instruction No. 10 reads as follows : “The court instructs the jury that if the said Rebecca Wells was under 16 years of age, then it is immaterial whether she consented to such sexual intercourse or not, as such consent would be no defense to this charge.” Defendants contend that said instruction is erroneous because it assumes that some of them had intercourse with Becky. Considered alone, the instruction might be subject to that criticism. However, separately numbered instructions are all parts of a single charge and must be considered as a whole. Instruction No. 8 required a specific finding of sexual intercourse. We also note that No. 10 contains the words, “such sexual intercourse.” That phrase obviously refers to the acts of “sexual intercourse” hypothesized and submitted in No. 8. We rule that the giving of Instruction No. 10 did not constitute prejudicial error. State v. Smith, Mo.Sup., 237 S.W. 482 [12]; State v. Chesser, Mo.Sup., 293 S.W.2d 935 [8-10].

Instruction No. 8 hypothesized facts and submitted the issues of guilt as to Carpenter and Charles Lee in the first paragraph and submitted the issues as to the other defendants in the second paragraph. Carpenter and Charles Lee here contend that the instruction was erroneous because the paragraph submitting the issues as to them did not end with a converse clause such as “and unless you so find you shall acquit said defendants.” The Second paragraph did ejid with such a clause but it is not clear that the jury would understand that it applied to the submission in each paragraph. We note also that somewhat similar directions are contained in other instructions. We rule that the omission complained of was not reversible error. In discussing a similar contention we have said that “[t]he instruction required the jury to find the facts set out beyond a reasonable doubt before authorizing a verdict of guilty. This was sufficient. ■ If defendant wished the court to give a converse instruction, it was his duty to prepare one and request that it be given.” State v. Rack, Mo.Sup., 318 S.W.2d 211, 215.

Becky testified that she was 15 years old at the time in question. Her birth certificate showing that she was born on July 30, 1949, was admitted in evidence. There was nó evidence to the contrary. In the argument of one of the attorneys for defendant the following occurred: “Mr. Powell: Rebecca Wells is a well-developed, good-sized girl for her age. She weighs 127 pounds I believe she said. She’s as big as any one of these boys that testified here on the witness stand today. And she said a lot of people took her for and thought she was older than that. They do have a birth record here [showing that] she was that age, and she says she was. Her grandmother is evidently here in the courtroom, and she didn’t testify to that — Mr. McGhee: I object to that, Mr. Powell has the same right to subpoena as we do. Mr. Powell: We wouldn’t have the same right to her grandmother as they would. The Court: Objection sustained; either side could have called the grandmother if they wanted to.” Defendants conten^ that the court erred in sustaining the foregoing objection. We have decided that we need not determine that point. Even if we assume that the ruling was erroneous we do not consider that it was prejudicial. ’ In view of the unquestioned proof of Becky’s age, no reasonable adverse inference could have been drawn from the fact that the state failed to call her grandmother to further buttress that proof. In the situation presented we rule that no reversible error occurred.

Defendants next complain of the refusal of the court to give-their proffered instruction 6-D which contained the following clause which was not included in the credibility instruction given: “ * * * if you believe that any witness has willfully sworn falsely to any material fact in issue in this case, thén you are privileged to disregard or rej ect all or any part of such witness’s testimony.” In their argument defendants say that they “recognize that in the cases cited under this point and in many other cases, it is held that whether or not an instruction on the credibility of witnesses including the doctrine of ‘falsus in uno, falsus in omnibus’ should be given lies within the discretion of the court. But since the testimony ‘ of the prosecuting witness and the defendants is so contradictory and much of the testimony of the prosecuting witness is clearly unworthy of - belief, we submit that the court abused its discretion in refusing to give Instruction No. 6-D.” While there was, of course, a conflict between the testimony of the prosecuting witness and defendants we see nothing in the transcript which indicates that the court abused its discretion in refusing said instruction. We rule that contention against defendants.

Defendants’ final point' is .that the court erred in permitting testimony by the prosecuting witness as to the conduct of the other' defendants after the act of intercourse by Carpenter. Apparently their theory is that her testimony as to Carpenter’s conduct prima facie established the offense of rape and that any testimony as to subsequent conduct of the other defendants did not relate to that offense but tended to prove another offense and was prejudicial to them. They rely on cases such as State v. Amende, 338 Mo. 717, 92 S.W.2d 106, which hold that in statutory rape cases evidence of subsequent acts of intercourse between the defendant and the prosecuting witness (after proof of the rape charged) is inadmissible. We do not think those cases are applicable in the situation before us.

In the instant case each of the defendants are charged with the offense as a principal. Becky testified that as Carpenter was dragging her into the clubhouse Charles Lee came out of the house. Apparently he waited at the door until Carpenter completed his act of intercourse and then entered the house as Carpenter was leaving and committed a similar act. These acts occurred in rapid succession and were a part of the same occurrence or transaction. The subsequent act was admissible as a part of the res gestae. State v. Sykes, 191 Mo. 62, 89 S.W. 851 [10,11]. Also, as stated, both of those defendants were charged as principals with rape and the evidence of the acts of both tended to establish that charge. The case as to them was submitted to the jury by an instruction (concerning which no complaint in that regard is made upon this appeal) which required a finding that both of them had sexual intercourse with Becky. Under the circumstances here presented we rule that the court did not commit reversible error in permitting testimony by Becky as to the acts of both Carpenter and Charles Lee.

Evidence as to the acts and conduct of the other defendants occurring after Carpenter and Charles Lee are said to have raped Becky was admissible as bearing on the charge that they aided and abetted in the commission of the offense. State v Corbin, supra. The fact that the State failed to make a submissible case as to some of those defendants would not indicate that the evidence was inadmissible. In that respect the State simply failed to offer a sufficient quantum of evidence to make such a case.

In our examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., we note one matter which we deem advisable to discuss. The submission to the jury was for statutory rape. Each of the verdicts recited that the jury found the named defendant guilty of rape as charged in the information. The information contained all of the allegations essential to a charge of statutory rape. However, it also alleges that the rape was accomplished forcibly and against Becky’s will. In examining the cases we find that those unnecessary allegations should be disregarded as surplusage. State v. Long, 341 Mo. 766, 108 S.W.2d 388 [5]; State v. Burks, Mo. Sup., 257 S.W.2d 919 [8,9]. We accordingly conclude that the information is sufficient and the verdicts are in proper form and are responsive to the issues charged and submitted.

The judgment should be affirmed as to defendants Charles Edward Lee, Richard Leo Carpenter, and Donald Ray Hayes, and reversed as to defendants Donald Hunt, Donald Wayne Lee, and Bill Powell.

It is so ordered.

HENLEY, J., and STORCKMAN, Alt. J., concur.

HYDE, J., not sitting.


source: Caselaw Access Project

author: STONE, Presiding Judge.

license: Public Domain

text:
    R. L. FISHER and Justa Investments, Inc., Plaintiffs-Appellants, v. MIKCO GRAIN CO., a corporation, Defendant, and Simmons Equipment Co., Inc., Defendant-Respondent.
    No. 8503.
    Springfield Court of Appeals. Missouri.
    June 27, 1966.
    Ward & Reeves, George K. Reeves, Caruthersville, for plaintiffs-appellants.
    Joslyn & Joslyn, L. D. Joslyn, T. B. Russell, Charleston, for defendant-respondent.
   STONE, Presiding Judge.

This suit involves the disposition of $3,469.62, a portion of the proceeds derived from the sale to defendant Mikco Grain Company during June 1964 of wheat harvested by plaintiff R. L. Fisher on a 640-acre farm (hereinafter referred to as the farm) near Portageville in New Madrid County, Missouri, rented from the Estate of Walter Richardson, Sr., by plaintiff Justa Investments, Inc..(a corporate entity of which Walter Richardson, Jr., was president), and in turn subrented by Justa to plaintiff Fisher. The litigation developed in the following manner.

By their joint petition filed on July IS, 1964, plaintiffs Fisher and Justa alleged that Justa had advanced 'to Fisher “many thousands of dollars * •* * for the planting, cultivation, production and harvesting” of wheat on the farm; that, for wheat harvested on the farm and delivered to defendant Mikco, the sums of $9,223.43 and $157.71 should have been paid to plaintiff Justa; but that Mikco had “insisted on making a draft payable to both of thesé plaintiffs [Fisher and Justa] and Simmons Equipment Company.” The prayer was for judgment against Mikco for the stated sums.

In its “Answer of Defendant for Order of Interpleader,” Mikco stated that plaintiff Justa claimed all of the proceeds derived from sale of the wheat harvested on the farm, but that Simmons Equipment ' Co., Inc., of East Prairie, Missouri, also claimed a portion of those proceeds by reason , of a chattel mortgage given by plaintiff Fisher to Simmons. Mikco sought and subsequently was granted an. order permitting it to pay the sums of $9,223.43 and $157.71 into the registry of the circuit court, thereupon discharging it from further liability in the cause, and requiring Simmons to interplead.

In its “Cross-Claim” in the nature of ¿n interplea, Simmons averred that on April 24, 1964, Fisher had executed “his written promise to pay” Simmons $2,546.30 and as security therefor had given Simmons a chattel mortgage on the 640 acres of growing wheat which he (Fisher) had on the farm' “known as .the Waiter Richardson, Jr. farm”; and that, by virtue of that chattel mortgage which had been filed for record on the date of its execution, Simmons was entitled to receive, from the proceeds of sale of the harvested wheat, the principal sum of $2,546.30 together .with interest and a reasonable attorney’s fee.

Upon trial to the court, judgment was entered on July 13, 1965, finding the issues in favor of interpleader Simmons and against plaintiffs Fisher and Justa and adjudging that Simmons receive, out of the impounded funds, the aggregate sum of $3,169.62, including interest and attorney’s fee. Plaintiffs Fisher and Justa appeal. However, as is recognized in plaintiffs’-appellants’ brief, tenant Fisher frankly stated in the trial court that “I am not claiming any amount,” so the controversy has been and is between landlord Justa and interpleader Simmons. Upon appeal, other contentions previously urged by Justa- have been abandoned and Justa now ' relies upon the sole point that Fisher’s chattel mortgage of April 24, 1964, to Simmons (hereinafter referred to as the mortgage) was “void and [did] not create a lien on the wheat grown on the 640 acres rented from Justa” because of alleged legal insufficiency of the description of the mortgaged crop.

The mortgage named R. L. Fisher as the mortgagor, showed his address as Portageville, New Madrid County, Missouri, and described the mortgaged property as “640 Acres of wheat on Walter Richardson Jr. farm. 10,000 bu. of which is contracted to Micko Grain Co., Cairo, Ill. at $1.60 per bu. of which this contrac is to be paid in full.” The general principle, under which the question at hand must be determined, is that the description of property in a chattel mortgage is sufficient against a third party if it is definite enough to enable such person, aided by inquiries which the instrument itself suggests, to identify the property. This principle is applicable in a case, such as that before us, which turns on the description in a chattel mortgage covering a growing crop. Qf course, in the legal inquiry to determine sufficiency of description, parol evidence properly may be received, not to furnish a description, but to aid the description in the chattel mortgage. White v. Meiderhoff, 220- Mo.App. 171, 174, 281 S.W. 101, 102; City National Bank v. Goodloe-McClelland Com’n. Co., 93 Mo.App. 123, 131; State ex rel. Blake v. Cabanne, 14 Mo.App. 294, 296-297.

As we observed at the outset, Justa Investments, Inc., a corporate entity of which Walter Richardson, Jr., was president, rented the 640-acre farm from the Estate of Walter Richardson, Sr., and in turn Justa subrented the farm to plaintiff Fisher. Plaintiffs’-appellants’ brief emphasizes the testimony of witness Richardson that he owned no land himself and that the farm was known as “the Hauzie Wing-field farm.” However, one of the pretrial interrogatories propounded to plaintiff Fisher (represented by the same counsel as plaintiff Justa) and his answer thereto, as received in evidence upon trial, are particularly noteworthy and significant. To the request that he “state whether you had 640 acres of wheat on the Walter Richardson, Jr. farm,” Fisher’s answer was a simple, unhedged, unequivocal “yes.” Fisher testified that the entire farm of 640 acres had been planted in wheat and that this was the only wheat he had on land rented to him by Justa.

In Ake v. General Grain Co., 181 Okl. 117, 72 P.2d 735, 737(6, 7), the Supreme Court of Oklahoma held, as digested in headnote 6, that “[a] description in chattel mortgage covering growing wheat was not insufficient because of use of words ‘T. K. Treckel and M. Story Farm,’ in stating location of wheat, rather than ‘T. K. Treckel and M. Story Farms,’ which was correct,” and, as digested in headnote 7, that “[t]he fact that ‘M. Story,’ described . . . as owner of farm on which wheat was located, was also known as ‘Dave Story’ and that he owned more than one farm in county, did not render description fatal where reasonable inquiry would have disclosed that mortgagor was farming only one Story farm in county that year.” In Blankenship v. Modglin, 177 Ark. 388, 6 S.W.2d 531, 532(2), a chattel mortgage on “[a] 11 corn and cotton to be grown by [mortgagor] on the farm belonging to Earl Keich” was held to be sufficiently definite in description, although Keich owned several farms in the same county. And, in City National Bank v. Goodloe-McClelland Com’n Co., supra, 93 Mo.App. at 130-131, the court concluded that a description of steers was sufficient, notwithstanding the fact that 85 head of the mortgaged animals were described as branded with the letter “W” on the right hip whereas in fact they were so branded on the left hip. In this connection, see 14 C.J.S., Chattel Mortgages, § 67 b(3), l.c. 679-680; id., § 69, p. 682; Cook v. Wheeler, Mo.App., 218 S.W. 929, 931(5); Matthews v. Melasky, Tex.Civ.App., 240 S.W. 641, 642(1).

Plaintiffs-appellants also point out that the formal description of the mortgaged property did not state the section, range, township or county in which the farm was located. However, preceding the description, the mortgage showed the mortgagor’s address as Portageville, New Madrid County, Missouri. And the evidence upon trial established that the farm actually is near Portageville in New Madrid County, Missouri. We also know judicially that Portageville is in New Madrid County [Trautmann v. Hamel, Mo., 358 S.W.2d 803, 806(3); Butler County Finance Co. v. Miller, 240 Mo.App. 954, 225 S,W.2d 135, 137(2)] and that it is a relatively small city with a population of 2,505 shown by the 1960 United States census. Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4); Kirst v. Clarkson Construction Co., Mo.App., 395 S.W.2d 487, 497-498(15).

Usually, the sufficiency vel non of the description of property in a chattel mortgage is a question for determination by the trier of the facts [White v. Meiderhoff, supra, 220 Mo.App. at 173, 281 S.W. at 102(3); Sikes v. Riga, 221 Mo.App. 152, 159, 297 S.W. 727, 729(6); Williamson v. Bank of Curryville, 69 Mo.App. 368, 376(3); Ranney v. Meisenheimer, 61 Mo.App. 434, 440(4)] and it should be adjudged insufficient as a matter of law only when such description is manifestly too meager, imperfect or uncertain to enable third persons, aided by inquiries which the instrument itself suggests, to identify the property. 15 Am.Jur.2d, Chattel Mortgages, § S3, l.c. 241. Obviously the description in the mortgage under consideration was drawn carelessly and could have .been more definite. Cf. Estes v. Springer, 47 Mo.App. 99, 103. However, mindful that “the law is indeed tolerant with matters of description in chattel mortgages” [Dierling v. Pettit, 140 Mo.App. 88, 90, 119 S.W. 524, 525] as is strikingly exemplified in the cases hereinbefore cited, we are of the considered opinion that we properly, may not declare the criticized description to be insufficient as a matter of law but that the sufficiency of such description (i. e., whether it was definite enough to enable a third party, aided by inquiries which the instrument itself suggested, to identify the mortgaged property) was for the trier of the facts, in this instance the circuit judge. With appropriate respect for the injunction by both rule and statute [V.A.M.R. Rule 73.01(d); V.A.M.S. § 510.310(4)] that, in a court-tried case, the judgment' nisi shall not be set aside unless clearly erroneous [Beckemeier v. Baessler, Mo., 270 S.W.2d 782, 783(1); Lange v. Baker, Mo.App., 377 S.W.2d 5, 10(7); Copher v. Barbee, Mo. App., 361 S.W.2d 137, 149(20)], we are impelled to the conclusion that the judgment under review should be affirmed.

Neither of the two cases cited by plaintiffs-appellants is factually analogous to this action, and the circumstances reflected by the record before us afford no-basis for application of the controlling principles in those cases. In Kibble v. Ragland, Mo.App., 263 S.W. 507, 510(2), dealing with an involved series of cattle transactions, the primary holding was that a chattel mortgage covering 60 head of steers was sufficient as to the 21 head found in the mortgagor’s possession. 15 Am.Jur. 2d, Chattel Mortgages, § 57, pp. 244-245. In Klebba v. Missouri Meerschaum Co., Mo.App., .257 S.W. 174, 175 (2), the court declared that a chattel mortgage on 75 acres of corn was insufficient where the mortgagor had 100 acres of corn and there was “no way of telling which 75 acres of the 100 acres planted the mortgage was intended to cover.” See 15 Am.Jur.2d, Chattel Mortgages, § 74, p. 256. Contrast White v. Meiderhoff, Mo.App., 3 S.W.2d 1031, 1032.

The judgment for interpleader Simmons is affirmed.

HOGAN, J., concurs.

      . Exchange Bank of Kahoka v. Bash, Mo.App., 234 S.W.2d 341, 344-345(2); Local Finance Co. v. Yantis, Mo.App., 152 S.W.2d 989, 990(1); Bruce v. Kays, 222 Mo.App. 77, 1 S.W.2d 214, 215(1)Sikes v. Riga, 221 Mo.App. 152, 297 S.W. 727, 729(6); Kibble v. Ragland, Mo.App., 263 S.W. 507, 510; Dierling v. Pettit, 140 Mo.App. 88, 119 S.W. 524, 525-526(1) ; Golden v. Moore, 126 Mo.App. 518, 104 S.W. 481, 482(3); City National Bank v. Goodloe-McClelland Com’n. Co., 93 Mo.App. 123, 128-130(3); Williamson v. Bank of Curryville, 69 Mo.App. 368, 376 (3); Ranney v. Meisenheimer, 61 Mo.App. 434, 440(4); Estes v. Springer, 47 Mo. App. 99, 102-103; Tobin v. Kampe, C.A. Mo., 132 F.2d 64, 65(1), 145 A.L.R. 366; 1 Jones on Chattel Mortgages and Conditional Sales (6th Ed.), § 54, p. 96; 15 Am.Jur.2d, Chattel Mortgages, § 55, p. 242.

      . White v. Meiderhoff, 220 Mo.App. 171, 281 S.W. 101, 102; White v. Meiderhoff, Mo.App., 3 S.W.2d 1031, 1032; 1 Jones on Chattel Mortgages and Conditional Sales (6th Ed.), § 55a, l.c. 108; 14 C.J.S., Chattel Mortgages, § 67 b(l), p. 676; 15 Am.Jur.2d, Chattel Mortgages, § 73, p. 255.


author: RUDDY, Judge.

text:
    Mada HAYS, Plaintiff-Respondent, v. Richard PROCTOR, Jr., James Hodgson, and Joseph Strebler, Defendants, Joseph Strebler, Appellant.
    No. 31619.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied July 13, 1966.

      Robert C. Ely, St. Louis, for defendant Hodgson.
    W. W. Sleater, III, St. Louis, for defendant-appellant, Strebler.
    Gray & Sommers, Don B. Sommers, St. Louis, for pl'aintiff-respondent.
   RUDDY, Judge.

Plaintiff, Mada Hays, was awarded $2,-500 damages against defendant, Joseph Strebler, for personal injuries resulting from an automobile collision. Defendant appealed from the ensuing judgment. This action was originally instituted by plaintiff against Joseph Strebler, Richard P. Proctor, Jr., (an alleged partner of Joseph Strebler) and James R. Hodgson. Plaintiff dismissed as to defendant Proctor and the jury found in favor of Hodgson. A cross claim f-or damages was filed by Joseph Strebler against James R. Hodgson and a motion for a separate trial on the aforementioned cross claim was sustained by the trial court.

The first contention asserted by defendant is that there is no showing under the evidence submitted by plaintiff that defendant Strebler was negligent. In determining that issue, we review the evidence from a standpoint favorable to plaintiff, give her the benefit of any part of the defendant’s evidence favorable to her and not contradicted by her own testimony or not contrary to her fundamental recovery theory, give her the benefit of the reasonable inferences from all the evidence, and disregard all of defendant’s evidence unfavorable to plaintiff. Brantley v. Couch, Mo.App., 383 S.W.2d 307; Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Sperry v. Tracy, Dodge-Plymouth Co., Mo., 344 S.W.2d 108. Plaintiff sought recovery under the rear end collision doctrine requiring the jury to find in her Instruction. No. 1 “that said defendant (Strebler) then and there negligently and carelessly allowed the front end of his automobile to overtake, run into and collide with the rear end of Mrs. Hays’ automobile, * * * and that as a direct result of such negligence, * * * . the plaintiff, * * * was injured * *

Plaintiff was employed by Lammert’s Furniture Company in Clayton, Missouri, as an interior decorator and saleswoman and had been so employed for 18 years. On the morning of May 6, 1959, about nine A.M. she left her home and was going to her employment in Clayton. Just prior to the accident she drove north on Big Bend Road to Northmoor intending to go to Big Bend and Forsyth where she would have made a left turn, Forsyth being approximately one block north of Northmpor. Big Bend is four lanes in width and there were no cars parked on Big Bend at the time she was driving north. The entire four lanes were available for moving traffic. She was traveling in the left lane for northbound traffic, which is the lane next to the center line of the street. She remained in that lane all the way to Northmoor and as she approached Northmoor there was a car standing in the same lane waiting to make a left turn. She stopped behind this car. As she started to make her stop, she looked in the rearview mirror of her car and saw another car coming in the same lane she occupied, which she later learned was Strebler’s car. She also saw Hodgson’s car in the right hand (curb) lane. When she came to a full stop she again looked in • the rearview mirror and saw defendant’s (Strebler’s) car coming and said she “knew I was going to be hit. * * * because he was coming without looking.” She said defendant’s car was “practically upon -me” at that time. She then braced herself against the wheel. She then felt the collision, stating that “it was from the rear.” The car in front of her had pulled away and turned left just before the collision. There seemed to be some confusion in her testimony as to how many impacts she felt, but she described the movement of her body “well, I went forward, backward, forward and backward and forward. * * * I know I went forward and backward three times.” Her forehead struck the steering wheel and her car was moved forward a car length. Prior to the collision she heard no warning sound of any kind and did not hear the “screech” of any brakes behind her. The force of the collision pushed her car into the lane to her left which would be a southbound lane. She was unable to get out of her car immediately because she blacked out momentarily and when she came to someone was standing at her car window. It was Mr. Strebler, the defendant. When she got out of her car she observed Hodgson’s car behind defendant’s car. She observed some damage to the left front fender of Hodgson’s car, stating it was dented. The front end of defendant’s car was damaged seriously and the damage to her car was to the rear bumpers and to the trunk. Her car was not drivable after the collision. She was placed in Mr. Hodgson’s car and taken to her home by Mr. Hodgson and the defendant.

Defendant, Strebler, called as a witness by plaintiff, said he was driving 20 to 25 miles per hour. He did not recall following plaintiff’s car, stating “I had a lot of other things on my mind.” He pulled up behind plaintiff’s car and stopped 3 to 7 feet behind it. He could not recall if all of his car was in the lane occupied by plaintiff’s car. He said he was stopped “a few seconds; maybe a minute,” when he heard a skidding of tires after which his car was struck in the rear by Hodgson’s car. The force of the collision moved his car forward into collision with the rear of plaintiff’s car causing plaintiff’s car to move forward. He said the back end of plaintiff’s car “was caved in” and the front and rear of his car were damaged. Defendant’s car had to be towed from the scene of the accident. He said the left front fender of Hodgson’s car was damaged and the left door could not be opened. He went with plaintiff to her home in Hodgson’s car. He denied that he swerved to the right into the curb lane in front of Hodgson’s car. He said that the skid marks of Hodgson’s car measured 36 feet.

James Hodgson, called as a witness by plaintiff, testified he was driving north on Big Bend in the curb lane and at some place within the block south of Northmoor, defendant, Strebler, passed him driving about 25 miles per hour. The first knowledge he had there was going to be a collision was when defendant Strebler hit his brakes and witness heard the brakes “squealing.” Hodgson said that he then hit his brakes and after skidding 33 feet hit Strebler’s car at the right rear fender fin. Defendant Strebler’s car was not pushed forward as a result of that impact. Hodgson said the only damage to Strebler’s car was a nick in the chrome strip that protects the right rear fin. He said that both cars were stopped at the point of impact and that the damage to his car was a slight scratch above the left headlight rim. He said the impact was slight and did not cause Strebler’s car to move forward and hit plaintiff’s car. He heard a collision a split second before he contacted Strebler’s car. He did not see plaintiff’s car before the collision and did not know whether it was stopped in a position where it had a right to be. Hodgson said the skid marks of Strebler’s car measured 36 feet. He said he took plaintiff to her home in his car. Strebler accompanied them.

It is undisputed that the front end of the car of defendant Strebler collided with the rear end of plaintiff's car. This is shown in the testimony of plaintiff and defendant and may be inferred from the testimony of Hodgson who heard a collision a split second before he made contact with Strebler’s car. Giving to plaintiff, as we must, the benefit of all evidence favorable to her and not contradicted by her own evidence and not contrary to her .theory of recovery under the rear end collision doctrine, we find the evidence sufficient to support a finding by the jury that defendant Strebler was negligent. We said in the case of Doggendorf v. St. Louis Public Service Co., Mo.App., 333 S.W.2d 302, 1. c. 305; “The present concept of the rear-end collision doctrine was recognized in Jones v. Central States Oil Co., supra [350 Mo. 91, 164 S.W.2d 914], It has been defined as ‘ * * * the doctrine or rule of law which recognizes that if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.’ ” The above quotation was taken from our case of Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, l.c. 362. The evidence clearly demonstrates that plaintiff was in a portion of the highway where she was entitled to be and that defendant Strebler was traveling behind her in the same direction and in the same lane of traffic and overtook her and permitted his vehicle to run into the rear of plaintiff’s automobile ahead of him. As the cases hold, under such circumstances a prima facie case of specific negligence has been made against defendant Strebler, the person in charge of the overtaking vehicle. Plaintiff’s testimony shows that she was stopped in a lane where she was entitled td be stopped and that she saw defendant Strebler’s car behind her and approaching her and traveling in the same direction as she was and that said defendant’s car ran into and collided with the rear end of her car. In some respect the testimony of Hodgson confirms the fact that a collision took place between plaintiff’s car and the car of defendant Strebler when Hodgson testified that he heard a collision a split second before he came into contact with Strebler’s car. This first contention asserted by defendant must be denied.

During the voir dire examination of the jurors plaintiff’s attorney informed the court, out of the hearing of the jurors, that he wanted to ask counsel for defendants “if any company of insurance is not interested in the outcome of this case.” Counsel for defendant Strebler answered that his client was insured with Missouri Union Insurance Company and said that said company is now out of business and has instructed his client to look after his own interests and that he wás representing the defendant and not the insurance company. Thereafter, plaintiff’s attorney asked ■ the court for permission to ask the jury one general question relating to the fact of whether or not any of them or members of their families, either worked for or did business with or had a financial interest in the Missouri Union Insurance Company. Thereupon, defendant Strebler’s attorney objected to asking the question, whereupon, plaintiff’s counsel said, “We might be able to get something out of the assets of this thing.” The trial court overruled the objection, stating that there was nothing to show that the Missouri Union Insurance Company was “officially, legally,” out of business and without assets. Thereafter, plaintiff’s counsel asked the jury if any of the members of the jury panel or any of the immediate members of their families or people close to them either worked for or did business with or had a financial interest in the Missouri Union Insurance Company. The record indicates -no one answered in the affirmative. No motion to discharge the panel was made by said defendant and there was no other mention during the trial of this insurance company by the plaintiff. Said defendant now contends that permission to plaintiff to ask the question objected to by said defendant constitutes prejudicial error. The prevailing rule of law is that permission to ask the question of the jury concerning an insurance company that may be interested in the result of the trial must -be left to the sound discretion of the trial court and only where a manifest abuse of discretion appears should this court interfere. McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361; Davidson v. Rodgers, Mo., 258 S.W.2d 648; Gray v. Williams, Mo. App., 289 S.W.2d 463. We said in the ease of Gray v. Williams, supra, l.c. 467: “This principle rests on the proposition, at least in part, that the trial court is in an advantageous position to determine whether counsel who has introduced insurance into the case was motivated by good or bad faith in doing so. It has in effect been said, again and again, that unless the fact that defendant was insured was purposefully or in bad faith injected into the case, the action of the trial court in approving the procedure will not be disturbed.” As pointed out by plaintiff in her brief, it was admitted by the attorney for defendant Streb-ler that he was insured with the Missouri Union Insurance Company. Whether or not that company at the time of trial was in financial difficulty was not before the court, except by statement of defendant’s counsel and, therefore, was not determinative of the propriety of a proper inquiry of the jurors as to their interests in such company. As indicated by the trial court there was nothing to show officially that said insurance company was liquidated or that there were no assets of the insurance company available to pay claims and judgments against its insureds. Even if the insurance company was in financial difficulty, a juror who may be a stockholder, would have a financial interest in the remaining assets. We find nothing in the record indicating bad faith on the part of plaintiff’s counsel in asking the question. We do not think the said defendant was prejudiced by reason of said question on the voir dire examination of the jurors and find no abuse of discretion on the part of the trial court in this connection. Defendant’s contention is denied.

The next point relied on by defendant is stated as follows: “Plaintiff’s attorney, in his opening statement, made certain prejudicial remarks concerning this defendant and the court erred in failing to order a mistrial at that time, at the request of this defendant.” The portion of defendant’s brief devoted to argument ■ on this alleged point is limited to a virtual restatement of the language used when stating his point and merely refers us to the transcript. The point as stated fails to show what statement of plaintiff’s attorney, considered prejudicial by defendant, was erroneously ruled on by the court; nor does it show why the court’s action, which defendant seeks to have reviewed by this court, is erroneous. This point does not comply with Civil Rule 83.05(a) (3), V.A.M.R.

Another point relied on by defendant is stated as follows: “Defendant Strebler was denied a fair trial because of the manifest hostility of the Court throughout the trial to the Defendant Strebler and his attorney.” Under this point we are then referred to “Transcript, Pages 15 through 144” for proof of the alleged hostility. This point as stated is subject to the same criticism as the last point we referred to and does not comply with Civil Rule 83.05(a) (3). However, we add, that our examination of the transcript for other purposes connected with this appeal does not demonstrate any hostility upon the part of the court toward the defendant Strebler or his attorney.

Hodgson, as heretofore pointed out, was a defendant in the'trial below. In the course of the trial below the court admitted into evidence Hodgson’s Exhibits A, B, C and D, and permitted testimony concerning these exhibits. Defendant Strebler contends that the trial court erred in such admission and in permitting such testimony. In the cross-examination of defendant Strebler by the attorney for Hodgson, it was disclosed that the Buick automobile driven by Strebler was owned by Leroy Winkler. At Strebler’s direction, the Buick automoblie owned by Winkler and driven by Strebler at the time of the accident, was towed to the “Bob Auffenberg Buick, Inc.” to be repaired. In the course of Strebler’s cross-examination by the attorney for Hodgson, his attention was called to copies of an estimate (Exhibit A) and a bill of repairs (Exhibit B) prepared by Bob Auffenberg Buick, Inc. Counsel for defendant Strebler objected to the use of these exhibits because they were copies and not originals. Exhibit B showed the parts of the car that were repaired. Because of Strebler's objection to the use of the copies Hodgson’s attorney produced as a witness Hadley Luebkl,.who was employed by the Protective Casualty Insurance Company. This witness produced Hodg-son’s Exhibits C and D which were the originals of Exhibits A and B. He said that his employer had custody of these original exhibits because it was called upon to pay a claim for damages to the automobile driven by Strebler, pointing out that his employer carried the collision insurance on the Buick automobile. Thereafter, Robert Auffenberg, who was the former owner of the Bob Auffenberg Buick, Inc. and out of business at the time of the trial, and Michael J. Callahan, a former employee of said Buick agency, identified Exhibits A, B, C and D as copies and originals of the estimates and bills for the repairs done on the automobile belonging to Leroy Winkler. Callahan said the repair bill indicated heavy front end damage and that the only damage in the rear of the car was to the rear quarter peak molding, which he said extends from the top of the right fin down to the beginning of the trunk molding, which was about fifteen inches in length. That was the only item shown as having been replaced or repaired on the rear of the Buick automobile. Defendant Strebler has made many complaints about the introduction of these exhibits and the testimony concerning them. It was material to the issues presented in the case and to Hodgson’s defense to show that the heavy damage was done to the front end of the car driven by Strebler and only slight damage to the rear of said car. This tended to support Hodgson’s testimony that Strebler struck plaintiff’s car first, before Hodgson came in contact with Strebler’s car. We find no merit in any of Strebler’s complaints concerning the admission of these exhibits, and the testimony surrounding same. We point out that the use by Hodgson of Hadley Luebke, an employee of the Protective Casualty Insurance Company, was caused by Strebler’s objection to the use of the copies of the estimate and repair bill and thereby forced the production of the representative of the insurance company as a witness.

Defendant Strebler next complains about the action of the court in sustaining a motion for separate trial of his cross-claim against Hodgson. The trial court had the right to do this under the provisions of Section 510.180, RSMo 1959, 31 V.A.M.S. Said defendant has merely restated the point in the argument portion of his brief and fails to point out how he was prejudiced or wherein the court abused its discretion. The granting of separate trials rests within the discretion of the trial court, and will not be interfered with unless it appears that the court has abused its discretion. Citizens Bank of Liberty v. Thompson, 234 Mo.App. 448, 132 S.W.2d 700 l.c. 705.

Defendant Strebler urges error on the part of the trial court in the giving of plaintiff’s two main verdict directing instructions. He contends that his theory of the case was not set forth in these instructions, and, therefore, they were erroneous. Instructions similar in all pertinent respects to those given in the instant case were approved in Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; and Mullendore v. Gentry, Mo.App., 377 S.W.2d 494, 495. Defendant was entitled to submit instructions based upon evidence which favored his theory of the case. If he wanted his theory of the case presented for the jury’s consideration it was his duty to submit such instructions. Highfill v. Brown, Mo., 340 S.W.2d 656; Robb v. St. Louis Public Service Co., 352 Mo. 566, 178 S.W.2d 443,444.

Defendant complains of the giving of Instruction No. 7 which defined the terms “negligence” and “the highest degree of care.” He cites no cases supporting his contention and we are certain he ¿an find none because we find that the definitions given were proper and approved definitions of said terms.

In his next point, defendant complains about the court’s refusal to give his Instruction A. His point is in the following language: “The Court erred in refusing to give and read to the jury Instruction ‘A’, offered by Defendant Strebler.” This point fails to comply with Civil Rule 83.05 (a) (3) V.A.M.R. in that it fails to point out wherein the error lies and to show why it was error to refuse it in the instant case. Matta v. Welcher, Mo.App., 387 S.W.2d 265; University Bank v. Major, 229 Mo.App. 963, 969; 83 S.W.2d 924, 928 (10); LaBella v. Southwestern Bell Telephone Co., 224 Mo.App. 708, 716 ; 24 S.W.2d 1072, 1077 (7).

Defendant next attacks the trial court’s action in giving and reading to the jury Instruction No. 8, and does so in the following language: “In that the said Instruction does not properly set forth the measure of damage, is not supported by competent evidence in this cause, permits the jury to speculate, gives the jury a roving authority to pick any amount for the plaintiff’s damage without norm or qualification or limitation, and confuses and misleads the jury.” This assignment of error as stated presents nothing for review. It is an abstract assertion, does not point out in what respect the Instruction is not supported by competent evidence or how or wherein it permits the jury to speculate, and does not point out in what area and in what respect the Instruction confuses and misleads the jury. Here again defendant has failed to comply with Civil Rule 83.05 (a) (3) V.A.M.R.

Our credulity is strained almost to the breaking point in answering defendant’s final contention. He charges that the verdict is excessive. „ This charge is made in the face of evidence that tends to show plaintiff had a loss of earnings during 1959, 1960 and 1961 in an amount in excess of $2,400.00. She works on a straight commission basis. The nature of her work is such that she has to lift heavy wallpaper books, get up on ladders, and handle bolts of fabric. For sometime after the accident she did not have any grip in her hand and testified that she lost control over the use of her hand and arm. Dr. Robert M. Launch, plaintiff’s medical witness, testified that she had a whiplash injury to the cervical muscles and spine. He said the accident was the cause of the whiplash injury he found in his examination on May 7, 1959. He saw plaintiff about twenty times in the four years prior to the trial and said that her complaints of pain made at the time of trial were justified and compatible with the type of injury she sustained and that she will continue to have these complaints and difficulties of which she complains for an indefinite period. Plaintiff testified that she had no headaches other than the normal headaches prior to the accident and following the accident she suffered terrific headaches. She testified that following the accident the pain in her upper back and neck was quite severe and as her neck and upper back injury subsided and tended to cause less pain, the lower part of her back continued to bother and to pain her. At the time of her testimony she said that the neck and upper back had not cleared up completely but was more comfortable than shortly after the accident but that her back continues to hurt her. She is not able to bend and move around normally and cannot lift heavy objects as easily as she could before. She is still under the doctor’s care and takes four capsules a day which she. describes as a cortisone derivative prescribed by her doctor. We think the evidence we have summarized concerning the injuries sustained by plaintiff and her loss of earnings demonstrates that the verdict of the jury in the sum of $2,500.00 for damages was very modest. Defendant has cited no case which holds that this verdict is excessive.

We find no reversible error in the trial of the case below, and therefore affirm the judgment.

WOLFE, P. J., and J. MORGAN DON-ELS ON, Special Judge, concur.

ANDERSON, J., not participating.


author: STONE, Presiding Judge. •

text:
    Russell HARDIN and Mary Louise Hardin, Plaintiffs-Appellants, v. James H. RAY and Violet Ray, Defendants-Respondents.
    No. 8512.
    Springfield Court of Appeals. Missouri.
    June 16, 1966.

      Powell, Jones & Ringer, Dexter, for plainti f f s-appellants.
    Briney, Welborn & Spain, Bloomfield, for defendants-respondents.
   STONE, Presiding Judge. •

This action was instituted by plaintiffs Russell Hardin and Mary Louise Hardin, husband and wife, against defendants James H. Ray and Violet Ray, husband and wife, to recover $6,570 allegedly overpaid for approximately 1155 acres of land in Stod-dard County., Missouri, purchased by plaintiffs from defendants under a written “Real Estate Contract” dated and' executed on December 19, 1963 (hereinafter referred to as the contract). In their answer, defendants asserted that the contract did not set out “the actual agreement” of the parties; and by their “crossbill,” more properly designated a counterclaim [V.A.M.R. Rule 55.01], defendants sought reformation of the contract. Upon trial by the court, judgment was entered (a) “that plaintiffs take nothing on their [first amended] petition,” (b) “that defendants take nothing on their crossbill herein, reformation of the contract being hereby denied,” and (c) that one-half of the costs be taxed against plaintiffs and one-half against defendants. After an unsuccessful “Motion for Judgment and in the Alternative for a New Trial,” plaintiffs appeal. Defendants filed no after-trial motion and do not appeal.

The contract, prepared by an attorney and executed in his office, was dictated by him in the presence of plaintiffs, defendants and one Reginald Merrick, the real estate agent representing defendants-sellers; and, after transcription by his secretary, the attorney read the contract aloud in the presence of the same group, with a copy of the contract then in the hands of one of the plaintiffs and another copy then in the hands of defendant husband. No objection being voiced and no change being suggested, the parties thereupon executed the contract. That portion of the contract material to the controversy before us provided for sale of the land “for the price and sum of Three Hundred Thousand and No/100 DOLLARS, to be paid by the buyer as follows: $30,000.00 at the time of the execution and delivery of this agreement, the receipt of which is hereby acknowledged by the seller and which is deposited with [the attorney], as earnest money and as part of the purchase price and the balance thereof is to be paid in the following manner, to-wit: Buyers assume and agree to pay a promissory note secured by a first Deed of Trust on the premises to. Northwestern Mutual Life Ins. Co. on which there is a present balance due in the sum of $150,000.00. Sellers agree to make the annual principal payment to said company in the sum of $12,570.00 on Jan. 1, 1964. The balance of the purchase price in the sum of $132,570.00 shall be paid by the execution and delivery by Buyers to Sellers of a promissory note secured by a second Deed of Trust on the premises . . . .” The italicized portions of the above quotation were typewritten in blanks provided on the face of a single-page printed form. -Printed “General Closing Conditions and Sales Practises” and “Special Agreements” on the reverse side of the form were made a part of the contract by reference.

Upon consideration of the quoted provisions, it becomes plain that the contract provided for a purchase price of $300,000 to be paid by plaintiffs-buyers in this manner : (a) By payment of $30,000 in cash on December 19, 1963, the date of execution and delivery of the contract; (b) by plaintiffs’ assumption of and agreement to pay an indebtedness of $137,430 to Northwestern Mutual Life Insurance Company evidenced by a note secured by first deed of trust on the land (the contract reciting that there was then “a present balance due -in the sum of $150,000.00” which was to be reduced to $137,430 by defendants-sellers making “the annual principal payment to said company in the sum of $12,570.00 on Jan. 1, 1964”); and (c) by plaintiffs’ execution and delivery to defendants of a note for $132,570 to be secured by a second deed of trust on the land. (Except as is otherwise specifically noted, all emphasis herein is ours.) Plaintiffs made the cash payment of $30,000 and executed and delivered their note for $132,570 secured by second deed of trust on the land. This litigation has arisen because the payment of $12,570 made by defendants-sellers on the Northwestern Mutual loan on January 1, 1964, was not a principal payment of $12,570 but consisted of an interest payment of $6,570 and a principal payment of only $6,000, which left plaintiffs with an indebtedness of $144,000 rather than $137,430 secured by first deed of trust on the land and thereby raised the total consideration paid for the land in -a corresponding amount (i. e., by $6,570, the interest payment) from $300,000 to $306,570.

Plaintiffs’ theory of the case is that the contract was complete, unambiguous and valid and that defendants breached it in that they reduced the principal sum of the Northwestern Mutual loan by only $6,000 instead of $12,570 and thereby increased the total consideration paid by plaintiffs from $300,000 to $306,570. Their note for $132,-570 secured by second deed of trust on the land having been sold to an innocent purchaser prior to institution of this action, plaintiffs sued defendants for recovery of the alleged $6,570 overpayment.

Plaintiffs’ action is grounded on the so-called parol evidence rule, by the application of which our courts uniformly have held that, in the absence of fraud, duress, mistake or mental incapacity, an integrated unambiguous written contract may not be varied, altered or contradicted by pa-rol or extrinsic evidence, and all prior or contemporaneous agreements are conclusively presumed to have been merged into the written contract, which “itself becomes and is the single and final memorial of the understanding and intention of the parties.” Commerce Trust Co. v. Watts, 360 Mo. 971, 977-978, 231 S.W.2d 817, 820; Connor v. Temm, Mo.App., 270 S.W.2d 541, 545. The parol evidence rule, “founded upon the experience of mankind in dealing with the ‘slippery memory’ of men” [Jackson v. Chicago, St. P. & K.C. R. Co., 54 Mo.App. 636, 644; Stringer v. Geiser Mfg. Co., 177 Mo.App. 234, 242, 162 S.W. 645, 648 — see Tracy v. Union Iron-Works Co., 104 Mo. 193, 198-199, 16 S.W. 203, 204], is not merely a rule of evidence but is one of positive substantive law predicated upon the substantive rights of the parties; and, where the rule is applicable, parol evidence should be ignored, even though received without objection. Commerce Trust Co., supra, 360 Mo. at 977,231 S.W.2d at 820(7) ; Connor, supra, 270 S.W.2d at 546(3).

Defendants have not, at any stage of the litigation, suggested any fraud, duress or mental incapacity, but, in the trial court, they did both plead and rely upon alleged mistake. In their answer, they denied that the contract set out “the actual agreement” of the parties and asserted that “the true agreement” was as stated in defendants’ “crossbill” or counterclaim.

Turning to that pleading, we find that defendants there alleged that, “prior to the said 19th day of December, 1963 [the date of the written contract], the parties agreed among themselves that defendants would sell said farm to plaintiffs on the following terms,” to wit, (a) that plaintiffs would pay $30,000 in cash to defendants, (b) that plaintiffs would “assume the balance due by plaintiffs (sic) to Northwestern Mutual . . . secured by a deed of trust” on the land, (c) that defendants would pay “the principal and interest due on said Northwestern Mutual . . . indebtedness on January 1, 1964, but plaintiffs agreed to include said principal and interest payment in plaintiffs’ note to defendants, secured by a second deed of trust on said lands,” and (d) that plaintiffs would execute and deliver to defendants their promissory note in the principal sum of $132,570, secured hy second deed of trust on the land. Defendants then averred that the parties “did thereafter, on December 19, 1963, enter into a written contract which . . the parties intended to incorporate” the alleged prior oral agreement, but that “on account of an error on the part of the scrivener .. . said written contract did incorrectly state the true and actual agreement” in that (a) it “incorrectly stated the consideration for said sale was $300,000 whereas in truth and in fact, the parties agreed that the total amount of the consideration was $306,570,” and .(b) it “incorrectly states” that “ ‘Sellers agree to make the annual principal payment to said company in the sum of $12,570.00 on January 1, 1964,’ whereas in truth and in fact sellers (defendants) agreed to pay the annual principal and interest payment ... of $12,570, consisting of principal payment of $6,000 and interest payment ... of $6,570.” Finally, defendants stated that the “contract was incorrectly written by the mistake of the scrivener who drew the same, and that it did not express the mutual intent of the parties, but was executed and delivered by the parties under a mutual mistake of the facts as to the matter aforesaid . . ” The prayer of the “crossbill” or counterclaim was for a decree “reforming said contract so as to truly contain and set forth the actual agreement between the parties as herein alleged.”

When, early in the trial; plaintiffs’ counsel objected to parol evidence concerning discussions and negotiations between the parties prior to execution of the written contract, which tended to impeach or contradict that contract, the response of defendants’ counsel was that “we have a count in here to reform the contract”; and, in ruling the objection, the trial court said that “I think in the first place the contract is ambiguous or we wouldn’t -have this lawsuit, and there is a count to reform the contract, so the objection is overruled.”

At the conclusion of the trial, the court found and declared, inter alia, that the contract “is ambiguous on its face” and “also ambiguous when considered in connection with the facts,” but that “there was no mutual mistake on the part of plaintiffs and defendants, and no misrepresentation by defendants and mistake on the part of plaintiffs, in the preparation and execution of the contract” and that “the evidence is insufficient to show any error on the part of the scrivener which would justify reformation of the contract.” However, on the parol evidence (most of it disputed) concerning discussions and negotiations prior to execution of the written contract, the trial court also found that “plaintiffs offered to pay a total consideration of $300,000 . . . and defendants refused to sell for that price”; that “defendants offered to sell . for a total consideration of $306,570 (although this figure was not specifically mentioned in the conversations leading up to the preparation of the contract) and said sum was made up of . . . cash $30,000, Northwestern [Mutual] indebtedness $144,-000, note and second d/t $132,570”; and that “plaintiffs, by- their admitted actions, accepted said offer . . . .” As stated at the outset of this opinion, the decree was “that plaintiffs take nothing on their [first amended] petition” and “that defendants take nothing ■ on their crossbill herein, reformation of the contract being hereby denied.”

Sinee defendants have not appealed, the findings of no mistake stand unassailed and could not be attacked here by defendants, and the unappealed judgment against defendants on their “cross-bill” or counterclaim must be recognized as an adjudication, adverse to them, of the issues raised by that counterclaim, including the issues (1) as to whether or not the “written contract did incorrectly state the true and actual agreement” of the parties and (2) as to whether or not the “contract was incorrectly written by the mistake of the scrivener . . . and . . . did not express the mutual intent of the parties, but was executed and delivered by the parties under a mutual mistake of the facts . . .” Hence, the reception of parol evidence to vary, alter or contradict the written contract under consideration cannot be justified on the ground of mistake. And indeed defendants do not undertake so to do, but rather seek to support the judgment for them on plaintiffs’ first amended petition on the theory that “there is a latent ambiguity in the language of the contract and the court must turn to extrinsic evidence to ascertain the true intention of the parties.” It may be noted here that, although the trial court also found and declared that the contract “is ambiguous on its face” and thus patently ambiguous, defendants’ counsel frankly concede on this appeal that “there is no ambiguity on the face of the contract.”

However, they earnestly insist that the contract was latently ambiguous because, as was shown by extrinsic evidence, the payment required on the Northwestern Mutual loan on January 1, 1964, was not a principal payment of $12,570 but consisted of an interest payment of $6,570 and a principal payment of only $6,000. Hence (so counsel argue) “the contract refers to a situation that does not, in fact, exist.” But the particular contractual language under consideration (i. e., “Sellers agree to make the annual principal payment to said company in the sum of $12,570.00 on Jan. 1, 1964”) does not specifically state or necessarily imply that the note evidencing defendants’ indebtedness to Northwestern Mutual required payment of $12,570 upon the principal; and there has been no suggestion that such payment of $12,570 upon the principal would not have been permissible and permitted.

Lord Bacon described “ambiguitas latens” or “latent ambiguity” as being “that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguity.” 2 Jones on Evidence (5th Ed.), § 488, p. 940. He also termed it as “equivocation” and, with the exception of a single application (not here material), “the two were to him synonymous.” 9 Wigmore on Evidence (3rd Ed.), § 2472,1. c. 239. And, under the heading of “Exception for Equivocation, or Latent Ambiguity,” Dean Wig-more similarly treats of this subject, stating that “declarations of intention, though ordinarily excluded from consideration, are receivable to assist in interpreting on equivocation — that is, a term which, upon application to external objects, is found to fit two or more of them equally.” (Emphasis not ours) Id.,. § 2472, p. 233. In Hardy v. Matthews, 38 Mo. 121, 124, our Supreme Court said that “ ‘[a] latent ambiguity is where you show that words apply equally to two different things or subject matters, and then evidence is admissible to show which of them was the thing or subject matter intended.’ ” And, in County of Johnson v. Wood, 84 Mo. 489, 515, quoted with approval in Wolf v. Miravalle, Mo., 372 S.W.2d 28, 32, it was stated that “[a] latent ambiguity in respect to the property to be affected occurs in a dispositive writing when the language employed in the whole instrument does not serve to identify the thing to be transferred, but extrinsic evidence discloses the existence of two or more objects to which the whole description contained in the writing is equally applicable.” (Emphasis not ours) See Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061. Thus it is undoubtedly true that “[t]he most common form of latent ambiguity arises where an instrument contains a reference to a particular person or thing, and is thus apparently clear, but it is shown by extrinsic evidence that there are two or more persons or things to whom or to which the description might properly apply.” 32A C.J.S. Evidence § 961b(3), p. 430.

We are cognizant that the latent ambiguity exception to the parol evidence rule may become applicable in other situations, as in Kast v. Kast, 361 Mo. 623, 235 S.W.2d 375, and in Prestigiacamo v. American Equitable Assur. Co. of New York, 240 Mo.App. 839, 221 S.W.2d 217, upon which instant defendants primarily rely. In Kast, supra, a property settlement agreement executed in November 1942, obligated defendant husband to transfer to plaintiff wife “75 shares of stock of Sears Roebuck & Company, if and when said stock is received by defendant from the Profit Sharing Fund of said Sears Roebuck & Company” [361 Mo. at 626, 235 S.W.2d at 376]; but, before the husband received such stock in January 1949, it had been split by issuing four new shares for one old share. By reason of this subsequent change in the subject matter of the contract, the latent ambiguity exception was held to be applicable to permit determination of the intention of the parties, the court observing that the husband’s contrary contention “overlooks the fact that ‘shares of stock’ or ‘seventy-five shares of stock’ may not always be and remain the same thing or have the same meaning at different times.” 361 Mo. at 628, 235 S.W.2d at 377. In Prestigiacamo, supra, a fire policy described the insured property as two buildings situate at adjoining street addresses, whereas in fact there was a single integral structure, to different portions of which the adjoining street addresses were assigned. Under the latent ambiguity exception, extrinsic evidence was received to determine whether the parties had intended the structure to be insured as one or two buildings.

But instant defendants have not cited, and we have not found, a reported case in which the latent ambiguity exception has been held applicable in a situation comparable or analogous to that before us. The contract under consideration plainly and unmistakably committed the parties to a purchase price of $300,000 and then proceeded to spell out the manner in which that consideration was to be payable and paid. The clear complaint in defendants’ pleadings and the indubitable thrust of their evidence were not that the contract was latently ambiguous in spelling out the manner in which the stipulated consideration of $300,000 was to be paid, but rather was (as we have heretofore pointed out in detail) that the true consideration was $306,-570 and that the “contract was incorrectly written by the mistake of the scrivener . . . and . . . did not express the mutual intent of the parties, but was executed and delivered . . . under a mutual mistake of the facts . . . .” In short, defendants boldly charged and relied upon alleged mistake in the trial court, whereas on appeal they depend upon latent ambiguity. There is a manifest difference between the two. Gallizzi v. Scavo, 406 Pa. 629, 179 A.2d 638, 642(3); Donehoo v. Johnson, 120 Ala. 438, 24 So. 888, 890.

If the language of the instrument is plain, explicit and certain, as it is here, but it is erroneous or wrong, as defendants have contended throughout the litigation, the latent ambiguity exception is not applicable and the remedy for the error, if the instrument thereby fails to express the intention of the parties, is by reformation to correct the mistake. From all of the foregoing, we are of the opinion that there was no latent ambiguity, within the contemplation and purview of that exception, in the contract under consideration.

However, we need not and do not rest our determination of this appeal upon that conclusion alone. Even under the latent ambiguity exception, parol or extrinsic evidence is admissible only to explain an ambiguity, not to change or contradict the language of the written instrument. By parol and extrinsic evidence concerning discussions and negotiations between the parties prior to execution of the written contract, instant defendants obviously-sought and undeniably purposed to show that “the true agreement” was that the purchase price of the land was $306,570, not $300,000 as stipulated and provided in the contract. And, in an attempt to escape from the force and effect of the stated principle that, even if there had been latent ambiguity in the contract, parol or extrinsic evidence would have been admissible only to have explained such ambiguity and not to have changed or contradicted the contract, defendants’ counsel make the sweeping statement under their “Points and Authorities” that “parol evidence is always admissible to explain or contradict the language of a contract in reciting the consideration for the instrument.”

However, the governing principle, as recognized and applied in innumerable cases, is that, where the statement as to consideration fairly may be regarded as a mere recital of fact or acknowledgment of payment, it may be explained or contradicted, but that, where such statement is more than one of mere recital or acknowledgment and is essentially of a contractual or executory nature, it can no more be changed or contradicted by parol or extrinsic evidence than any other part of the written instrument. The holdings in the two early cases cited by instant defendants under this point [Tracy v. Union Iron-Works Co., 104 Mo. 193, 16 S.W. 203; Aull Savings Bank v. Aull, 80 Mo. 199] were not inconsistent with the above-stated principle. Certainly the contract under consideration shows on its face, beyond possibility of cavil, that the primary stipulation committing the parties to a purchase price of $300,000 and the subsequent statements concerning the manner of payment were contractual and executory in nature and were of the very essence of the written agreement.

With fraud, duress and mental incapacity never having been in the case, with the trial court’s findings of no mistake standing unassailed and that issue adjudicated adversely to unappealing defendants, and with defendants’ appellate contention of latent ambiguity rejected, the written contract must stand unchanged and un-contradicted by parol or extrinsic evidence. Therefore, we eschew the irrelevant and unrewarding task of reviewing and recording such evidence here and of commenting upon the many conflicting inferences which might be drawn therefrom. On the record which we take as it comes to us [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); Schreck v. Parker, Mo.App., 388 S.W.2d 538, 544(12)], it is undisputed that, on January 1, 1964, defendants reduced the principal sum of the Northwestern Mutual loan by only $6,000 instead of $12,570, and that thereby the total consideration paid by plaintiffs under the contract was raised from $300,000 to $306,570. We are charged with the duty of making final disposition of a case on appeal unless the ends of justice otherwise require. V.A.M.R. Rule 83.13 (c); V.A.M.S. § 512.160(3); State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116, 120(5); Axsom v. Thompson, 239 Mo.App. 732, 739, 197 S.W.2d 326, 331 (8-10). The only defenses interposed to plaintiffs’ recovery having been determined adversely to defendants, no good reason appears or is suggested why the parties should be subjected to the further expense and delay incident to another trial.

Accordingly, the judgment of the circuit court for defendants on plaintiffs’ first amended petition is set aside and the cause is remanded to that court with directions to enter a judgment on plaintiffs’ first amended petition finding the issues in favor of plaintiffs and against defendants and assessing plaintiffs’ damages in the sum of $6,570.

HOGAN, J., concurs.

      . Commerce Trust Co. v. Watts, 360 Mo. 971, 977, 231 S.W.2d 817, 820(6) ; Frimel v. Blake, Mo.App., 360 S.W.2d 258, 261(2) ; Davison v. Rodes, Mo.App., 299 S.W.2d 591, 593(2) ; Connor v. Temm, Mo.App., 270 S.W.2d 541, 545; 32A C.J.S. Evidence § 851, p. 211; 2 Jones on Evidence (5th Ed.), § 466, l.c. 884-885.

      . J. B. Colt Co. v. Gregor, 328 Mo. 1216, 1225, 44 S.W.2d 2, 6(3) ; Grapette Company v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 39(10) ; Kalberg v. Gilpin Co., Mo.App., 279 S.W.2d 177, 181 (3) ; Edwards v. Sittner, Mo.App., 213 S.W.2d 652, 656(7) ; Sol Abrahams & Son Const. Co. v. Osterholm, Mo.App., 136 S.W.2d 86, 92(2, 3) ; Meyer v. Weber, 233 Mo.App. 832, 837, 109 S.W.2d 702, 705(2) ; Duncan v. Spencer, Mo.App., 211 S.W. 698(2) ; General Acc. Fire & Life Ins. Co. v. Owen Bldg. Co., 195 Mo.App. 371, 373, 192 S.W. 145, 146(1) ; 2 Jones on Evidence (5th Ed.), § 466, l.c. 887.

      .Warinner v. Nugent, 362 Mo. 233, 238, 240 S.W.2d 941, 944(1), 26 A.L.R.2d 278; Commerce Trust Co., supra note 1, 360 Mo. at 977, 231 S.W.2d at 820(7) ; Dutcher v. Harker, Mo.App., 377 S.W.2d 140, 143(1) ; 20 Am.Jur., Evidence, § 1100, p. 963; 32A C.J.S. Evidence § 851, p. 211.

      . Smith v. Holdoway Const. Co., 344 Mo. 862, 878, 129 S.W.2d 894, 903(19); Staub v. Phillips, 307 Mo. 576, 593, 271 S.W. 365, 369(5) ; James v. Groff, 157 Mo. 402, 423, 57 S.W. 1081, 1087(6) ; Davis v. Broughton, Mo.App., 369 S.W.2d 857, 858-859; Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250, 251.

      . Weber Implement Co. v. Acme Harvesting Mach. Co., 268 Mo. 363, 369, 187 S.W. 874, 875(2) ; Reece v. Van Gilder, Mo., 272 S.W.2d 177, 179(1) ; Lewis v. Lewis, 354 Mo. 415, 421, 189 S.W.2d 557, 559(1) ; Moore v. Hoffman, 327 Mo. 852, 867, 39 S.W.2d 339, 344-345(18), 75 A.L.R. 135. See King v. King, Mo.App., 382 S.W.2d 819, 820(1) ; Bybee v. Dixon, Mo.App., 380 S.W.2d 539, 540(1) ; Welch v. Mischke, 154 Mo.App. 728, 136 S.W. 36, 40(6).

      . Walters v. Tucker, Mo., 281 S.W.2d 843, 847(4) ; Bloker v. Foley, Mo., 193 S.W. 561(2) ; Jennings v. Brizeadine, 44 Mo. 332, 334-335; Gallizzi v. Scavo, 406 Pa. 629, 179 A.2d 638, 642(2) ; Donehoo v. Johnson, 120 Ala. 438, 24 So. 888, 890. See National Cylinder Gas Co. v. G. H. Packwood Mfg. Co., Mo.App., 208 S.W.2d 825, 827(2, 3) ; Texas Osage Cooperative Royalty Pool, Inc. v. Colwell, Tex.Civ.App., 205 S.W.2d 93, 95(3).

      . Walters, supra note 6, 281 S.W.2d at 847(2) ; Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004, 1005-1006(3, 4) ; 2 Jones on Evidence (5th Ed.), § 488, l.c. 942 ; 32A C.J.S. Evidence § 961b (2), pp. 429-430 ; 20 Am.Jur., Evidence, § 1157, p. 1010.

      . Kalberg v. Gilpin Co., supra note 2, 279 S.W.2d at 181; Meyer, supra note 2, 233 Mo.App. at 837-839, 109 S.W.2d at 705-706; Bert v. Rhodes, Mo.App., 258 S.W. 40, 43(7) ; Duncan v. Spencer, Mo.App., 211 S.W. 698, 699(3); General Accident Fire & Life Ins. Co. v. Owen Bldg. Co., supra note 2, 195 Mo.App. at 374, 192 S.W. at 147(3) ; Stringer v. Geiser Mfg. Co., 177 Mo.App. 234, 242-243, 162 S.W. 645, 647-648(4) ; Pile v. Bright, 156 Mo.App. 301, 308, 137 S.W. 1017, 1018(3), 1019(4); 32A C.J.S. Evidence § 958, pp. 371-372; Id., § 952, l.c. 363. See State ex rel. and to Use of Alport v. Boyle-Pryor Const. Co., 352 Mo. 1061, 1068-1069, 180 S.W.2d 727, 730 (3) ; Burk v. Walton, 337 Mo. 781, 789-790, 86 S.W.2d 92, 96(6).