author: WELBORN, Commissioner.

text:
    Eileen N. HODGE, Plaintiff-Respondent, v. Sanford GOFFSTEIN, Administrator of the Estate of Charles W. Gray, Deceased, Defendant-Appellant, and Sorkfs J. Webbe, Administrator de bonis non of the Estate of Miles W. Barber, Deceased, Defendant.
    No. 51925.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 13, 1967.

      Morris A. Shenker and Frank B. Green, Jr., St. Louis, for respondent.
    Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for appellant.
   WELBORN, Commissioner.

Action for damages for the wrongful death of plaintiff’s husband in an automobile accident. The jury returned a verdict for $20,000 in favor of plaintiff and against the personal representative of the driver of one of the vehicles involved. The verdict was in favor of the defendant personal representative of the driver of a second vehicle. Defendant against whom the $20,000 verdict was rendered and upon which judgment was entered has appealed.

The accident out of which this cause of action arose occurred at approximately 1:00 P.M., Saturday, October 1, 1960. The scene of the occurrence was on State Highway No. 79, some 4.6 miles north of the junction of Route 79 and Interstate Route 70, in St. Charles County. Route 79, at the place of the collision, runs generally north and south and is straight and level, with a concrete roadway some 22 feet in width and shoulders on either side nine or ten feet wide. The roadway is higher than the surrounding farm land on the east, and there is an embankment along the east side of the highway. The weather was clear and the pavement dry.

Three vehicles were involved. One was a pickup truck owned by plaintiff’s husband, Aaron Hodge, and in which he and another passenger were riding. The second was a 1955 Chevrolet station wagon in which Charles W. Gray was the sole occupant. The third vehicle was a Plymouth convertible, driven by Miles W. Barber and in which Benjamin Jones was a passenger. None of the five individuals survived for a time which permitted a statement regarding the occurrence. There were no other eyewitnesses. Appellant’s contention here is that the circumstantial evidence made no submissible case on plaintiff’s theory that the cause of the occurrence was Gray’s operating his automobile on the wrong side of the road.

Both parties to this appeal concede that the evidence warranted a finding that Hodge was traveling north in his pickup. Hodge was a commercial fisherman who caught fish in the Mississippi River in the vicinity of Clarksville, located on Route 79, some 40 miles north of the accident scene. Hodge peddled his fish on a route in St. Louis. He had left Clarksville for St. Louis early in the morning of October 1 and was seen in St. Louis later in the morning. On the basis of his general operating precedures, he would have been returning to Clarksville from St. Louis at the time of the occurrence here.

Barber and Jones had left St. Louis at around 10:00 A.M. on October 1 to go to Jones’s place near Old Monroe, on Route 79, some eight miles from the scene of the accident. They went there to cut the grass and a reasonable assumption is that they were returning to St. Louis, proceeding south on Route 79.

Gray left his residence in St. Louis approximately an hour before the accident. He was going fishing in the Mississippi near Elsberry, some 25 miles north of the collision scene and on Route 79. The time of his departure and his destination support the deduction that he was proceeding north on Route 79 toward his destination at Elsberry at the time of the collision.

A violent collision occurred between Gray’s Chevrolet and Barber’s Plymouth. The left front portion of each of the vehicles was heavily damaged and was undoubtedly the point of impact. The entire left side of the Gray vehicle sustained sideswipe damage.

Gray’s vehicle came to rest on the east side of the roadway, facing north, partly on the paved portion and partly on the shoulder. Barber’s auto stopped on the west side of the roadway, partly on the shoulder and partly on an embankment, headed east. The two vehicles stopped some 200 to 250 feet apart according to one witness, 175 feet according to another. The Barber vehicle was some 40 feet to the south of an accumulation of dirt and glass on the roadway and the Gray Chevrolet was about three times that distance to the north of the collision debris.

The Hodge pickup came to rest below the embankment on the east side of the highway, on its top, heading south or southwest. Four tracks ran down the embankment in a northeasterly direction to the vicinity of the overturned vehicle. The pickup was to the north of the Barber vehicle and to the south of the Gray auto and nearer the latter. There was no evidence of collision damage to the pickup. A witness at a filling station some one half mile north of the collision scene and who went there immediately after his attention was attracted by a cloud of dust raised by the collision stated that the left front wheel of the pickup was still turning when he reached the collision scene.

The State Highway Patrolman who investigated the accident died before the trial. Trooper Faber, riding, on his day off, with the investigating patrolman, did testify. However, since the investigation was not his official responsibility his testimony related primarily to the position of the three vehicles when he reached the scene and the nature and extent of the damage which he observed. His other pertinent testimony was to the presence of what he described as “tell-tale marks of metal being dragged or sliding upon the highway.” According to the witness, the marks were in the northbound lane of the pavement and ran in a northeasterly direction to the area where the Gray vehicle had stopped.

The witness who had rushed to the scene of the collision from a filling station approximately one half mile away testified that he observed debris, consisting of glass and dirt. He placed the heaviest concentration of debris in the southbound lane, a few feet west of the center line of the highway. He stated that there was debris in the northbound lane also. He said that the debris “was a foot over the northbound and two and one-half feet or something over the southbound.”

Appellant contends that plaintiff’s evidence did not warrant submission of the case on plaintiff’s theory that the Gray vehicle was on the wrong side of the highway at the time of the collision, that, in any event, there is no evidence to support a finding that Gray was thereby negligent and that his negligence was the proximate cause of Hodge’s death. Respondent’s point is that the evidence would support a finding that a collision occurred after Gray entered the southbound lane in order to pass the northbound Hodge pickup and that the collision between the Gray and Barber vehicles forced the Hodge truck off the roadway, resulting in Hodge’s death.

In support of ■ her position, plaintiff strongly relies upon the testimony that the concentration of debris was principally in the southbound lane. Plaintiff argues that this evidence is sufficient to permit the jury to infer that the point of collision was in the southbound lane of travel.

There is no doubt that the location of debris after an automobile collision is circumstantial evidence of the point of collision. See Annotation: “Sufficiency of evidence, in absence of survivors or of eyewitnesses competent to testify, as to place or point of impact of motor vehicles going in opposite directions and involved in collision.” 77 A.L.R.2d 580, 599. The significance of such evidence may be enhanced by evidence pertaining to its location with reference to “gouge” marks and skid or tire marks. Schneider v. Prentzler, Mo.Sup., 391 S.W.2d 307, 310 [3]; Martin v. Sloan, Mo.Sup., 377 S.W.2d 252, 258 [7], On the other hand, the circumstances may detract from the significance of the location of debris (Schoen v. Plaza Express Co., Mo.Sup., 206 S.W.2d 536, 538— 539 [2]), or the evidence may be equivocal (Berry v. Harmon, Mo.Sup., 323 S.W.2d 691, 695 [2]; Zeigenbein v. Thornsberry, Mo.Sup., 401 S.W.2d 389, 391 [2]). Furthermore, the site of the impact which the debris may indicate may not be the significant factor on the issue of negligence (Williams v. Cavender, Mo.Sup., 378 S.W. 2d 537, 543 [6]).

Here, we have no evidence of skid or tire marks. There was testimony relating to “gouge” marks, but its value is slight. The witness testifying regarding the gouge marks did not describe their distance from the center line of the pavement. We do know that they were in the northbound lane and that they ran in a northeasterly direction to where Gray’s Chevrolet came to a stop.

The fact that the gouge marks were in the northbound lane would not preclude a finding that the collision occurred in the southbound lane. Just what part of the vehicle made the marks does not appear. Furthermore, if, as the evidence indicates, the vehicle was angling northeasterly, there would undoubtedly be continued movement of the vehicle in that direction in the split second interval between impact and the dropping to the pavement of the part of the auto which produced the gouge marks.

The witness who testified concerning the location of the debris was definite in his testimony that the debris was concentrated in the southbound lane. His testimony, coupled with the nature of the damage to the vehicles involved and their location following the collision, would we feel, justify the inference that the collision occurred in the southbound lane. Although the Gray vehicle sustained damage to its left front, the major impact to that vehicle appeared to have been concentrated at the roof post in the vicinity of the steering wheel. It also sustained sideswipe damage for its entire length. This would be consistent with plaintiff’s theory that the Gray vehicle had entered the southbound lane and was returning to its own lane at the time of the collision, in which event it would have been proceeding in a northeasterly direction. That it continued in that direction is shown by the gouge marks. Defendant’s theory that the evidence equally would support the inference that Gray had turned northeasterly in order to avoid the Barber Plymouth which had entered the southbound lane ignores the location of the debris in the southbound lane and attaches greater significance to the witnesses’ testimony that there was some debris in the northbound lane. We think that the jury, as it obviously did, was permitted to attach major significance to the concentration of debris in the southbound lane and to accept the presence of some debris in the northbound lane as a natural consequence of the collision. In our opinion, the evidence was sufficient to permit the reasonable conclusion that the collision occurred in the southbound lane.

Defendant asserts that, even so, the evidence does not support a finding of negligence, because a driver is not always negligent in driving to the left of the center of the roadway. There may be circumstances which excuse a motor vehicle operator who drives on the wrong side of the roadway, but his presence there is sufficient to present an issue of negligence, with his excuse or reason a matter for the jury’s consideration. Here, we have only the fact of presence on the wrong side of the road, without evidence of reason or explanation. From that fact alone, the jury could find Gray negligent. Brawley v. Esterly, Mo.Sup., 267 S.W.2d 655, 660 [6, 7],

There remains the question of causation. Does the evidence justify the inference that the collision, due to Gray’s negligence, which we have concluded that the jury might have found, caused Hodge’s vehicle to leave the roadway and overturn ? Again the problem is the reasonableness of such an inference from the established facts. The facts, as above set out, justify the inference that both Hodge and Gray were proceeding northward. The testimony that the front wheel of the Hodge vehicle was spinning when the first witness reached the scene of the collision would justify the conclusion that the collision and Hodge’s leaving the roadway were closely connected in time. Likewise, the location of the Hodge pickup between location of the Gray or Barber vehicles would justify the inference that the location of the Hodge vehicle was affected by the collision between Gray’s and Barber’s autos. Under all of these circumstances, if, as we have found, it was reasonable to conclude that Gray was on the wrong side of the road, it is reasonable further to conclude that his object in being on the wrong side was to pass the Hodge vehicle. The fact that Gray’s vehicle proceeded three times farther from the site of the collision than the Barber auto would indicate a speed of operation of the Gray vehicle associated with a passing maneuver.

In our opinion, plaintiff’s evidence did support reasonably plaintiff’s theory and was sufficient to permit a jury finding consistent with such theory.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: WELBORN, Commissioner. PER CURIAM:

license: Public Domain

text:
    Louis SKATOFF, (Plaintiff) Appellant, v. Michael ALFEND, Celia Alfend, Samuel Al-fend, National Union Fire Insurance Co., U. S. Fidelity & Guaranty Co., Aetna Casualty & Surety Co., Commercial Union Insurance Co., Home Insurance Co. and Lloyd’s of London, (Defendants) Respondents.
    No. 51985.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.
    Motion for Rehearing or to Remand Denied Feb. 13, 1967.

      Newmark & Baris, Irl B. Baris, St. Louis, for appellant Louis Skatoff.
    Morris A. Shenker, R. J. Slater, St. Louis, for respondent Michael Alfend.
    Jesse E. Bishop, St. Louis, for respondents Celia Alfend and Samuel Alfend.
   WELBORN, Commissioner.

“This action originated in the Circuit Court of St. Louis County as an attempt by Louis Skatoff and Joseph F. Melbourne, two partners of a three-man partnership, to secure an accounting from Michael Alfend, the third partner, in connection with the dissolution of the partnership. However, on the part of Skatoff the suit developed broader ramifications, including a demand by him that the subsequently joined defendants, Celia Alfend and Samuel Alfend, Trustees, be divested of title to certain real estate located in the City of St. Louis. Relying on Section 508.030, RSMo 1959, V.A. M.S., which provides that ‘Suits * * * whereby the title thereto (to real estate) may be affected, * * * shall be brought in the county where such real estate, or some part thereof, is situated’ the court entered an order and judgment sustaining the motions of defendants Celia Alfend and Samuel Alfend, Trustees, for a summary judgment of their dismissal, and of defendant Michael Alfend for dismissal of Skat-off’s second amended petition. Skatoff’s appeal to this court [the St. Louis Court of Appeals] followed in due course.” Skatoff v. Alfend, et ah, Mo.App., 398 S.W.2d 461.

The St. Louis Court of Appeals concluded that the action directly involved title to real estate and that, under § 3 of Art. V, Const, of Mo., 1945, V.A.M.S., exclusive jurisdiction of the appeal lay in this court. 398 S. W.2d 464. The appeal was accordingly transferred here.

Inasmuch as the details of the course of the litigation are set out in the opinion of the Court of Appeals, we will confine our statement to the matters which we consider here pertinent. The action began in the St. Louis County Circuit Court as one for an accounting in connection with the dissolution of a partnership. By his first amended petition, plaintiff Skatoff sought, in addition to the accounting, to set aside transfers of real estate by defendant and former partner Michael Alfend to added defendants Celia Alfend and Samuel Alfend. Upon a showing in the defendant’s return to an order to show cause that the real estate involved was situated in the City of St. Louis, the St. Louis County Circuit Court dismissed the first amended petition on the grounds that, under § 508.030, RSMo 1959, V.A.M.S., exclusive venue of the action lay in the St. Louis Circuit Court.

Skatoff filed a second amended petition. It differed from the first amended petition in that, in what the Court of Appeals described as “a patent subterfuge” (398 S.W. 2d 464), all references to real estate were eliminated and the word “assets” substituted therefor. The petition also alleged that the “transfers of assets * * * were fraudulent transfers, having the effect of hindering, delaying and defrauding plaintiff Skat-off in his rights as a creditor of defendant Michael Alfend.” Upon the showing by affidavit in support of defendants’ motion for summary judgment that the “assets” referred to in the second amended petition were the real estate described in the first, the trial court again dismissed plaintiff's petition.

The Court of Appeals, concluding that the second amended petition also sought to set aside a fraudulent conveyance of real estate, held, on the authority of Balch v. Whitney, Mo.Sup., 273 S.W.2d 497, Goodman v. Crader, Mo.Sup., 227 S.W.2d 457, and Herriman v. Creason, 352 Mo. 1176, 181 S.W.2d 502, that the appeal directly involved title to real estate and transferred the cause here. We agree with the reasoning and conclusion of the Court of Appeals.

The appellant’s position, as stated in his brief in the St. Louis Court of Appeals, appellant having filed no new brief in this court and not having argued the appeal here, is that his “request to the court concerning the real estate and other assets was only incidental to the primary relief of the dissolution and accounting.” He contends that, since the St. Louis County Circuit Court’s jurisdiction of the dissolution and accounting was not questioned, it had the incidental jurisdiction to conserve the partnership assets pending dissolution. However, the basis of this contention is not supported by plaintiff’s petition. He does allege that the real estate in question had formerly been the property of the partnership. However, the petition alleges that it was transferred to defendant Michael Al-fend pursuant to the dissolution agreement and the petition attacks the subsequent transfer by Alfend not on the grounds of its being a fraud upon the right of the partners, but as fraudulent upon plaintiff’s rights as a creditor of Alfend, presumably under the dissolution agreement.

The joining of the action to set aside the fraudulent conveyance with the action for accounting and partnership dissolution does not permit the plaintiff to avoid the mandatory effect of § 508.030, RSMo 1959, V.A.M.S., as to the place of bringing an action affecting title to real estate. See Howell v. Reynolds, Mo.Sup., 249 S.W.2d 381, 384; American Surety Co. of New York v. Edwards & Bradford Lumber Co., D.C., 57 F.Supp. 18, 25-26 [9-14]; Buck v. Lockwood, 193 Mich. 242, 159 N.W. 509, 514 [10, 11].

The appellant also suggests that the trial court should not have disposed of this matter upon the defendants’ motion for summary judgment. Although the defendants’ pleading was so entitled the grounds stated were authorized to be raised by a motion to dismiss under Civil Rule 55.31, V.A.M.R., and the motion was adequate to support such action.

Therefore, insofar as the petition sought to set aside the conveyance, the trial court’s dismissal was correct. However, the improper venue for that relief did not render improper the venue for the relief originally sought of accounting and dissolution. The St. Louis County Circuit Court had jurisdiction insofar as such relief was sought. The claim to set aside the fraudulent conveyance was a separate and sever-able action. See Civil Rule 55.08, V.A.M.R. Therefore, the plaintiff’s claim against defendant Michael Alfend for the relief originally sought should not have been dismissed.

The insurance companies appearing in the caption, supra, were joined as parties defendant in the first and second amended petitions. The second amended petition alleged that the companies had insured the “assets” transferred by Michael to Celia and Samuel Alfend and that part of such “assets” were destroyed by fire. It sought to compel the insurers to pay the amount of their liability into the registry of the court. In sustaining the individual defendants’ motions, the trial court also dismissed the insurers’ answers and counterclaims by which they sought to interplead the sums owed under their policies.

Following plaintiff’s appeal, the insurers moved to dismiss the appeal as to them on the grounds that Skatoff had subsequently filed a petition in the St. Louis Circuit Court seeking the same relief against them, that their bills of interpleader were sustained in that action and that they had thereupon paid the insurance proceeds into the registry of the St. Louis Circuit Court pursuant to a stipulation assented to by the appellant here. The appellant has not contradicted the allegations of the motion. In these circumstances, the matters urged in this case against the insurance companies have become moot and the appeal should be dismissed as to them. Personal Finance Co. of Missouri v. Day, 349 Mo. 1139, 164 S.W.2d 273.

The respondents, Celia and Michael Alfend, have also moved to dismiss the appeal as to them, based upon the action above referred to in the St. Louis Circuit Court in which they are parties defendant and which seeks, in addition to the relief sought against the insurance companies, to set aside the conveyances to them. They contend that, since plaintiff has sought in that action the same relief sought in the St. Louis County action, the issues on the appeal have become moot. However, there is no allegation that any relief has been granted in the City action. The issues on the appeal would not have been rendered moot by the mere filing of the action in the St. Louis Circuit Court. The motion of Celia and Michael Alfend to dismiss the appeal is overruled.

The plaintiffs appeal is dismissed as to the respondent insurance companies. The judgment of the trial court dismissing plaintiff’s second amended petition as to respondents Celia and Samuel Alfend is affirmed. The judgment of the trial court dismissing appellant’s second amended petition as to respondent Michael Alfend is set aside and the cause remanded with direction to reinstate the second amended petition as to that respondent.

HOUSER and HIGGINS, CC, concur.

PER CURIAM:

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

All of the Judges concur.

ON MOTION FOR REHEARING OR TO REMAND

PER CURIAM:

On his motion for rehearing, or, in the alternative, to remand the cause to the trial court with additional directions for further proceedings, appellant suggests that our dismissal of the appeal as to the insurance companies was erroneous because he did not appeal as to them. In his brief, appellant asserted that the St. Louis County Circuit Court erroneously dismissed the insurers’ answers and counterclaims, thereby seeking relief on appeal which would have affected the insurance companies. The companies apparently considered themselves involved in the appellant’s appeal because they filed motions to dismiss the appeal as to them, motions to which appellant offered no objection.

However, appellant’s suggestion that there was no final judgment against the insurance companies in the St. Louis County Circuit Court gives us some concern. If such were the fact, the appeal would be premature. § 512.020, RSMo 1959, V.A. M.S.

The judgment of the circuit court did not specifically dismiss appellant’s petition as to the insurance companies. However, the relief sought against them was merely ancillary to that sought in connection with the allegedly fraudulent transfer of the insured property. The dismissal for lack of jurisdiction of the claim based upon the allegedly fraudulent transfer in effect operated as a dismissal of the claim against the insurance companies and the judgment was final. The rule applicable is stated in Scheid v. Pinkham, Mo.App., 394 S.W.2d 570, 572 [1, 2], as follows: “[I]f the finding and judgment on the other issues in the case ‘necessarily excludes and effectively disposes of’ the issue which is not specifically adjudged, then the judgment is final and appealable.” See also Capitol Stores, Inc. v. Storms-Green Constr. Co., Mo.App., 346 S.W.2d 549, 554-555 [3, 4]; J. G. Jackson Associates, Inc. v. Mosley, Mo.App., 308 S.W.2d 774, 776 [1, 2],

Furthermore, we cannot ignore the fact that, in the City of St. Louis case, to which our opinion referred, as shown by both the motion of the insurance companies to dismiss this appeal and by the transcript on appeal in that case, now on file in this court, the insurance companies, in an action by the appellant here and pursuant to a stipulation to which appellant was a party, did pay the amount of their liability into the Circuit Court for the City of St. Louis.

We find no merit in the other points in the motion for rehearing or to remand and it is overruled.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff, v. Angelo A. VITALE and Frances Vitale, Defendants-Appellants, Sarah Tenenbaum, Defendant-Respondent.
    No. 51826.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.

      Motion for Rehearing or to Transfer to Court En Bane Denied Feb. 13, 1967.

      James Daleo, James N. Cameron, Kansas City, for appellants.
    Julius C. Shapiro and Julius Peltzman, Kansas City, for respondent.
   EAGER, Presiding Judge.

This appeal involves solely the apportionment of a condemnation award as between the owner and a lessee. The property was located at 3213-3215 East 15th Street in Kansas City; it was taken for the 15th Street Trafficway. The date of the taking was March 26, 1959; the total award of $44,725 was paid into court. Exceptions were filed and they were apparently allowed to remain pending until February, 1964, when all the parties agreed upon a total award of $47,500, and the additional sum was also deposited. The present issues were first raised by the owner, Sarah Tenen-baum, who filed her motion on May 28, 1964, for apportionment; on June 3, 1964, the lessees, Angelo A. Vitale and his wife, likewise filed their motion. It is not necessary to state the allegations of these motions. After a rather extensive hearing, the trial court apportioned the sum of $13,015.20 to the lessees and $34,484.80 to the owner by its judgment entered on July 29, 1965, and filed its memorandum opinion which was also adopted as its Findings of Fact and Conclusions of Law. The lease here in question was to Angelo A. Vitale alone and, despite the joinder of his wife in the motion and notice of appeal, we shall generally refer to appellants as the “lessee.” Sarah Tenenbaum was a widow at the times in question, and she is recognized here as the owner of the land. We shall refer to her as the lessor. The lessee has appealed.

Vitale, the lessee, first took possession of the premises about 1944, presumably by assignment from another lessee; that lease ran, either by its terms or through an option of renewal, to August, 1953. He first built a fruit stand and operated it, and later enlarged the building to accommodate a grocery store. By November, 1952, he had apparently started the operation of a restaurant, having done some remodeling in order to accomplish that. In February, 1953, he negotiated the present lease with the owner, somewhat in advance of the expiration of his term because he wished to improve the premises further if he procured a new lease. Thereupon he enlarged the building for the operation of his restaurant. When thus completed, it was of concrete block construction, both outer walls and inner partition walls, and it was approximately 52 feet by 63 feet in size; he necessarily installed a considerable amount of restaurant fixtures and equipment. Some of this was affixed to the building in such manner that it could not, as a practical matter, be moved. Much of the equipment was movable. He thus continued the operation until he received notice to vacate; when computed from the date of the taking his lease had an unexpired period of approximately four years and five and one-half months, considered by most of the witnesses as fifty-four months; the actual term of the lease was from September 1, 1953, to and including August 31, 1963.

The provisions of the lease material here were in substance as follows: that the rent was $100 per month for five years, $125 per month thereafter; that lessee would erect at his own expense a suitable’ building for the operation of a restaurant; that lessee would keep all improvements in good repair, and surrender the premises at the expiration of the lease in good condition; that lessor might sell the premises at any time after September 1, 1955, upon notice, in a bona fide sale, but should reimburse the lessee at the rate of ½20⅛ of the cost of his building for each month of his term remaining; that lessee should pay all increase of real estate taxes over the 1943 taxes, and should carry and pay for insurance against fire and other hazards. We quote one paragraph, since much of our present controversy arises from it: “Until the termination of this lease, all structures, buildings, store rooms, fixtures, machinery and equipment contemplated and hereafter placed, located or constructed by lessee upon the premises, shall be considered and treated as belonging to, and the ownership in, lessee, but all of the same, and any and all right, title and interest which lessee may have at any time in or to the same shall all be, and stand charged, with a lien in favor of lessor to secure the faithful performance by lessee of each and all of the terms, covenants and agreements herein contained. Provided, however, that upon the termination of this lease, either by passage of time or otherwise, said structures, buildings and store rooms shall remain affixed to the real estate and shall become the property of and belong to the lessor.”

Three realtors, with considerable experience in appraisal work, testified, two for the owner and one for the lessee. Both of those who testified for the owner stated that the proper method of evaluation of the lessee’s interest was to deduct his actual annual rent, taxes, insurance and maintenance from the “economic” annual rental value of the property, multiply the difference by the number of years remaining, and then to reduce this sum to its present value according to the recognized “Inwood” table. One of these witnesses had previously appraised the whole property for the Highway Commission at a figure of $40,-_ 500; however, assuming the greater value agreed upon, he testified that the land was worth $9,750, and all of the improvements $37,750, with a depreciated value on the improvements at the end of the lease, of $33,975. He added to the last figure, $5,329, which he computed as the value of the income to the lessor, making a total of $37,600 as the lessor’s share. As to the lessee, he fixed the “economic” rental value (what this or a similar property would rent for in the open market) at $4,800 per year, the actual rent at $1,500, the lessee’s taxes at $470 (from information obtained), insurance at $250 and maintenance at $300; deducting all of these from the economic rent, the lessee thus had a net value or net “profit” under the lease of $2,280 per year. After proceeding as outlined above, using a remaining term of four and one-half years, and discounting the aggregate to its present value under the generally accepted table, he arrived at a net value of $8,525 for the lessee’s interest. The other expert witness for the owner followed the same method and used substantially the same figures; his net valuation of the lessee’s interest was $8,300.

The appraisal witness for the tenant testified that the fair rental value of a comparable place would be $500 per month, and that he appraised the fair value of the lessee’s remaining term at $20,625. He did not go into any detail in giving this opinion. He had viewed the premises several years earlier, apparently at the beginning of the condemnation. There was evidence concerning the cost of parts of the building and of valuations placed upon the various fixtures, both movable and otherwise. This, we need not set out. We assume that all fixtures which were movable were taken out when the lessee vacated, and no one has indicated otherwise.

The trial court adopted the method of leasehold valuation used by the owner’s witnesses, but adopted the economic value of $500 per month fixed by the lessee’s witness; as already indicated, it thus arrived at a value of $13,015 for the lessee’s interest.

The principal bone of contention here arises from the lessee’s construction of the “ownership” provisions of the lease. His counsel say, in effect, that the ownership of the improvements was thus placed in lessee, by agreement, until the termination of the lease, that he was the owner of all improvements at the time of the taking, and that he is not only entitled to the value of the remaining term of his lease, but also to the value of all improvements, including the building and the fixtures. They insist that the court placed the ownership of all improvements in the lessor as of the time of the taking and thus erred. The lessee does not ask that we reapportion the award and enter judgment here, but does ask that we reverse and remand the case for a new apportionment in accordance with his theory. Much is also said concerning the provision of the lease that upon termination “by passage of time or otherwise” the improvements shall become the property of the lessor. The lessee argues, as to this, that the parties merely had in mind a termination of the lease by a sale of the property, a default of the lessee, an assignment for the benefit of creditors, or bankruptcy; counsel say further that if a reversion to the lessor upon condemnation had been intended, it would have been very easy to say so expressly; and that the trial court has misconstrued that provision. Counsel have cited cases to the effect that language similar to the ‘‘or otherwise” phrase is used in the “ejus-dem generis” sense, namely, as referring to some other cause of the same general type. In Re Willcox, 165 App.Div. 197, 151 N.Y.S. 141; Siggelkow v. Arnold, 187 Minn. 395, 245 N.W. 629. Thus, they say that the exercise of the power of eminent domain here did not work an automatic termination which would cause the ownership of the improvements to revert to the lessor. Under our construction of the lease we do not deem it necessary to consider that particular phrase further. But we note that on lessee’s argument that the “or otherwise” was not applicable and did not work a termination, the lease merely continued (in theory, at least) for four and one-half more years, at which time the ownership of all improvements would vest in the lessor.

The wording of this lease in regard to “ownership” is peculiar; but one thing is certain, namely, that at the end of the term reserved in the lease, namely, August 31, 1963, the title to all improvements which had become a part of the realty reverted to and became the property of the lessor. Any “ownership” placed in the lessee was actually temporary, and why such provisions were included in the lease we do not know. Under these provisions the lessee was actually entitled only to the use of the improvements for the full term of the lease, and the fact that the lease was terminated by condemnation before its normal expiration would not operate to give the lessee the full value of the improvements; in other words, when the property was taken the improvements were still charged with the reversionary interest. We thus hold that the method of valuation followed by the lessor’s witnesses was correct, and that the lessee was not and is not entitled to an added increment for the value of the improvements. If any further corroboration were necessary, it may be found in the rather specific provisions for the reservation of a lien on all improvements in favor of the lessor; and indeed the provision that the lessor might sell the property with all improvements and pay the lessee a proportion of the cost adjusted to the remaining term of the lease demonstrates per se that the lessee’s interest in the improvements was to be consumed during the lease and was not an absolute ownership at any given time.

Counsel have cited a few cases indicating that a lessee was entitled to the value of his improvements, but they are cases where the lessee was specifically given the right to remove the improvements at the end of the term. Finney’s Trustees v. St. Louis, 39 Mo. 177; City of Ladue v. St. Louis Public Service Co., Mo.App., 168 S.W.2d 966; Schneider v. Bulger, Mo.App., 194 S.W. 737; Hopper v. Davidson County, 206 Tenn. 393, 333 S.W.2d 917; and see annotation in 3 A.L.R.2d at 302 for a statement of the principle. The lessee in our case had no such right and the authorities are inapplicable; indeed, the present lease expressly provided that upon its termination the structures and buildings “shall remain affixed to the real estate and shall become the property of and belong to the lessor.”

In the absence of provisions in the lease to the contrary, we hold that the method followed here, and approved in the case of Land Clearance for Redevelopment Corp. v. Doernhoefer, Mo., 389 S.W.2d 780, was and is the correct method of evaluation of the lessee’s interest upon condemnation. The evaluation there approved was the present value of the difference between the fair rental value of the premises and the “rent reserved in the lease,” figured over the balance of the term. The court there referred merely to the “rent” reserved in the lease, without consideration of other expenses to which a lessee might be subjected, such as taxes, insurance and maintenance. The opinion in that case did not show that the lessee was required to pay for those items. We do not construe the opinion as actually restricting the consideration to rent alone where the lessee is required to pay such additional expenses, but that it would permit the inclusion in the computation of such other expenses, directly connected with the real estate, as the lessee is required to pay by the terms of the lease. And see, specifically, on this point Jahr, Eminent Domain, § 130, pp. 191, 193; People ex rel. United States Rubber Co. v. Knapp, 232 N.Y. 153, 159, 133 N.E. 429. Lessee’s attempted distinction of the Doernhoefer case on the ground that the lessee there did not own the improvements, has already been answered.

We conclude that there is no justification for adding the value of the improvements to the computed valuation of the remaining term of Vitale’s lease. The figures actually used by the trial court were adopted as part of its findings of fact, and depended largely upon the court’s view of credibility. We find nothing “clearly erroneous” in its computations or its result. The lessor asks us to charge the lessee’s share of the award with interest on the lessor’s share from July 29, 1965, the date of judgment. We do not regard this as a situation where the allowance of interest is mandatory, and in our discretion we decline to allow it. The claim of lessor for damages for vexatious appeal is without merit and is disallowed. The costs of this appeal will be assessed against appellants, and the judgment is affirmed.

All of the Judges concur.

      . It may be noted that the total of the two interests thus computed does not equal the agreed award; however, the trial court took tills into its consideration.


author: LAURANCE M. HYDE, Special Commissioner.

text:
    Kenneth F. BAILEY, Appellant, v. MORRISON-KNUDSEN COMPANY, Inc., a Corporation et al., Respondents.
    No. 52271.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      William F. Brown, Sedalia, Ben W. Swofford, Kansas City, for appellant, Swof-ford & Waisblum, Kansas City, of counsel.
    A. Lamkin James and James & Butter-field, Marshall and Fred F. Wesner and Frank E. Meyer, Wesner, Wesner & Meyer, Sedalia, for respondents-defendants.
   LAURANCE M. HYDE, Special Commissioner.

Action for $50,000.00 damages for personal injuries. The court found, on an agreed statement of facts and exhibits, that plaintiff was a statutory employee of defendant within the meaning of the Workmen’s Compensation Law and dismissed plaintiff’s action with prejudice. Plaintiff has appealed from the judgment of dismissal.

Defendants were a group of four construction companies engaged as a joint venture in building for the United States Government 150 missile sites and 15 launching control centers in 14 central and western Missouri counties. They were to begin by April 2, 1962, and were required to be finished by November 7, 1963. Defendants were designated as MHPL (using the first letter of each name) and had their headquarters at Sedalia. Because of the terrain and area, and the sites not being served by direct highways, the most practical means for transportation for top supervision was by helicopter. The major part of the construction was performed by subcontractors, including all steel, electrical, fencing, sanitary facilities, drilling, concrete, asphalt surfacing, mechanical, elevators, waterproofing, painting, flooring, ventilation, and transportation, including rolling stock, trucks, automobiles, station wagons, etc., and aircraft. Helicopters were furnished under a contract with Mississippi Valley Helicopters, Inc., of St. Louis (hereinafter called Helicopters). Plaintiff was a regular employee of Helicopters which paid him a monthly salary. His base of operation was the Sedalia Airport where his immediate supervisor was the Chief Pilot of Helicopters but both received instructions and requests for transportation from the superintendent of defendants and defendants’ other personnel. However, plaintiff controlled physical operation of the helicopters used, including maintenance, selection of routes and determination of the advisability of flying under existing weather conditions. Plaintiff’s duties consisted entirely of piloting helicopters for the purpose of transporting defendants’ superintendents and other officials from and to Sedalia and various missile sites then under construction by the defendant in that area. He maintained no regular schedule but was subject to call at all times by the officials of the defendants.

On the day of plaintiff’s alleged injury, under orders from the defendants, the plaintiff as pilot took defendants’ Superintendent Krumpotic by helicopter to Missile Site E-l, one of the bases under construction, on a flight from Sedalia, Missouri, of about 15 minutes. While there plaintiff took the supervisor of defendants’ Site E-l on a flight over the site in order for him to look over the same from the air. Thereafter he took Superintendent Krumpotic to defendants’ Site E-2, about 8 minutes’ flying time from Site E-l. Plaintiff’s injuries occurred in the course of the landing at Site E-2; both Sites E-l and E-2, as well as the Sedalia, Missouri, headquarters, were under the exclusive control of the defendants and the trip of Superintendent Krum-potic was in the course of his duties in supervising constructing of the Minutemen Facilities.

Both defendants and Helicopters were operating under the Missouri Workmen’s Compensation Act and plaintiff has received compensation under the Act on his claim against Helicopters. The basis of plaintiff’s claim is that he was not a statutory employee of defendants under Sec. 28 287.040(1) (statutory references are to RSMo and V.A.M.S.) because the ownership, maintenance and operation of helicopters was not the usual and customary business of defendants but was merely incidental and auxiliary thereto. Plaintiff cites such cases as Sheffield Steel Corporation v. Vance (CCA 8) 236 F.2d 928, and Walton v. United States Steel Corporation, Mo.Sup., 362 S.W.2d 617, both of which involved delivery of the defendant’s manufactured products by an employee of a trucking company. Defendants also cite such cases as Nabors v. United Realty Co., Mo.App., 298 S.W.2d 474 (removal of a boiler from an apartment house); State ex rel. Long-Hall Laundry and Dry Cleaning Co. v. Bland, 354 Mo. 97, 188 S.W.2d 838 (repair of a boiler) ; Cummings v. Union Quarry and Construction Co., 231 Mo.App. 1224, 87 S.W.2d 1039 (paint and grease cables every two years); Rucker v. Blanke Baer Extract and Preserving Co., Mo.App., 162 S.W.2d 345 (painting smokestacks twice a year); and Eckmayer v. Newport, Mo.App., 267 S.W. 2d 379 (building shelves in shoe store). All of these involve isolated occasional specialty work which could be properly held auxiliary, incidental and ancillary to the business involved.

In this case, transportation of supervisory and other personnel over an area of about ten thousand square miles to and from 165 sites, requiring a high speed, tight scheduling program of work and supervision, was essential to get the work done in the year and a half allowed for its completion. In these circumstances we cannot agree that the use of helicopters was only incidental to and isolated from the business of construction being carried on nor accept plaintiff’s reasoning in saying “the fact that the transportation of MHPL’s officials to and from the various missile sites by helicopter was important, necessary or even essential to its contract with the government does not bring such function within its usual and customary business.” In any event, this case is ruled by our decision in Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153, where as here the plaintiff was an employee of a subcontractor from whom he collected workmen’s compensation and then sued the general contractor. We said (121 S.W. 2d 1. c. 155): “We are, therefore, squarely confronted with the single question whether the employee of a subcontractor if negligently injured by the general contractor can sue the latter for damages at common law as a third person and at the same time collect compensation from his immediate employer under the Compensation Act— when the immediate employer carries liability insurance covering the casualty and all the other facts bring the case within the Compensation Act.” We held the answer was “no.”

In so ruling we said (121 S.W.2d 1. c. 156-157): “We cannot give the Act a construction which would tend to defeat its purpose, and we think the interpretation put upon it by respondent does that. It is the obvious intent of Sec. 3308 [R.S. 1929, now 287.040] to cover each contractor and subcontractor on a project (who elects to come under the Act) with reference to all the employees immediately or remotely under him. All such contractors not only are liable under the Act but are protected by it. * * * There is no disclosure of any legislative intent to outcast a remote employer because he avails himself of a condition contained in the subsection, by requiring his subcontractors to carry liability insurance. Neither is there any discernible intent to prefer one class of employees over another, by permitting the employees of a subcontractor to recover from him compensation for injuries and at the same time sue the remote employer for negligently inflicting them; whereas the direct employees of the same remote employer, perhaps injured in the same accident, would be allowed compensation alone.”

We have reaffirmed the Bunner case in two recent cases, Thompson v. H. W. Kroeger Erection Co., Mo.Sup., 380 S.W.2d 339, 343, and Anderson v. Steurer, Mo.Sup., 391 S.W.2d 839, 843. We do so again in this case and hold that plaintiff’s only remedy under the facts of this case was under the Workmen’s Compensation Act.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by LAURANCE M. HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Jerome HOLLAND, Appellant.
    No. 52472.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    J. Whitfield Moody, Robert E. Meacham, Kansas City, for appellant.
   HENLEY, Judge.

Defendant appeals from an order overruling his motion to withdraw his plea of guilty to a charge of murder in the first degree and to set aside the judgment imposing a sentence of life imprisonment.

Defendant was charged by information filed June 29, 1965, with murder, first degree; specifically, the charge was that he shot and killed one John Henry Allen Mathew with a shotgun on May 18, 1965, in Jackson county. He was represented at the preliminary hearing in magistrate court and in the circuit court by Mr. Richard B. Kirwan of the Kansas City bar, counsel employed by his family. At his arraignment on June 30, 1965, he entered a plea of not guilty and the case was set for trial for the following September 13.

On October 25, 1965, he appeared in court in person with his counsel, withdrew his plea of not guilty, and entered a plea of guilty. The court accepted his plea and, as stated, sentenced him to imprisonment for life. Judgment was entered accordingly.

Thereafter, on December 29, 1965, while in custody serving his sentence, defendant filed a motion to withdraw his plea of guilty and to set aside the judgment and sentence. The motion was heard on March 10, 1966, by the Honorable J. Donald Murphy, the same Judge who accepted defendant’s plea of guilty. Defendant appeared in person at the hearing and was represented by court-appointed counsel, Mr. Robert E. Meacham of the Legal Aid and Public Defender Society of Kansas City. After his motion was overruled, the court, on defendant’s request, ordered that he be permitted to perfect this appeal in forma pauperis; the same counsel was appointed to represent him on appeal; counsel has filed a brief and presented oral argument in this court.

In his brief he relies on two grounds alleged in his motion as reasons for setting aside the judgment and sentence and permitting him to withdraw his plea of guilty. First, he contends that the court erred in overruling his motion, because the plea was entered equivocally. He asserts that for this reason the court should not have accepted his plea and should have entered a plea of not guilty as required by Rule 25.04, V.A.M.R. Second, he contends that at the time of his plea he “ * * * was under a misapprehension of law and fact * * * ” in that: (1) “ * * * he was not informed of the lesser degree of homicide and the lessser punishments that could be imposed upon him * * and (2) he believed that if the case was tried a jury would impose a death sentence, because at the time of the alleged offense he had been convicted of murder twice before, sentenced to life imprisonment, was on parole from the penitentiary, and the parole had been revoked.

The transcript on appeal includes: defendant’s motion; testimony of defendant and his former attorney, Mr. Kirwan, at the hearing on the motion; the court’s findings of fact, conclusions of law and order overruling the motion; the information; a transcript of the proceedings had when defendant entered a plea of guilty; and, the sentence and judgment.

Defendant, a negro male who had spent approximately half of his life in the penitentiary under two prior sentences for murder (the second of which was committed while an inmate of the penitentiary), testified at the hearing on his motion that at the time he entered a plea of guilty to the murder of John Mathew he was not mentally competent to enter a plea; that he desired that the court appoint a doctor to determine his competency; that he entered a plea of guilty after consultation with and advice from his counsel and his sister; that he did not understand the advice given by his counsel, but did understand part of what the trial judge had said at the time of his plea; that he helped another inmate prepare this motion. He further testified that “ * * * to a certain extent * * * ” he was coerced or forced to admit his guilt; that he was not “threatened” by anyone, but “ * * * was more what you would say persuaded * * * that’s the word I would use, * * * because * * * I was held with a threat that if I did * * * go before a jury, on account of I had been to the penitentiary for the same charge, that I would get the gas chamber * * He further testified that he was “quite sure” he was mentally competent “now,” but that at the time of his plea of guilty was “mixed-up” and “ * * * couldn’t have been at myself * *

R. B. Kirwan testified: that he conferred and advised with defendant several times before the plea of guilty was entered; that on one of those occasions defendant’s sister was present; that he very carefully went over the facts of the case with defendant and his sister, and explained to him the advantages and disadvantages of a jury trial and the possible results of a trial in the light of those facts; that he did not advise or influence defendant to plead guilty; that he left that decision to defendant; that defendant “ * * * was worried like every man would be under that situation * * but that, in his opinion, defendant “ * * * was thoroughly competent and knew what he wanted to do * * * ” and “ * * * made his [own] decision * that there was no doubt in his mind that defendant knew and understood what he was doing when he pled guilty.

At the close of evidence on the motion the court ordered that defendant be delivered to the Psychiatric Receiving Center of Jackson county for examination and report as to his mental condition by Dr. Albert Owre, Jr. Dr. Owre made the examination and filed his report with the court. Briefly, the examination revealed that defendant’s “ * * * fund of knowledge and information is adequate * * *, his intelligence * * * normal.” The psychiatric diagnosis was: “Sociopathic AntiSocial Reaction, manifested by repeated acts of murder, associated with absence of conscience.”

The transcript discloses that on arraignment the court informed defendant of the nature of the charge against him and the punishment therefor. On the date the plea of not guilty was withdrawn and the plea of guilty entered defendant was accompanied in court by his sister, Mrs. Tressa Gilliam, as well as his counsel. Before accepting the plea the court heard a summary of the facts from counsel for the state, and then more or less informally discussed the case with defendant, his sister and his counsel. Briefly, the facts stated by counsel for the state were: that there was an altercation between deceased and defendant in which defendant received a cut on his hand on Friday before this homicide on Tuesday evening; that on this Tuesday evening John Mathew was at Gates Exterminating Company seated in a chair watching television; that defendant walked in with a shotgun, told Mathew to stand up, and shot him inflicting a mortal wound in Mathew’s neck; that defendant immediately left the premises and surrendered himself to the police; that police searched for. but found no weapon on deceased’s body. The discussion between the judge, defendant, his sister, and counsel developed that defendant is a 56-year-old single man with a 10th grade education who, for the short time he had been out of the penitentiary, was employed as a porter. During this discussion defendant stated that the deceased had attacked him that evening and that he (defendant) had shot when he was ten or twelve feet from deceased. When asked whether he knew that the least punishment for first degree murder was life imprisonment, defendant indicated that he did not know that, but upon being reminded by his attorney that he had explained this to him, defendant replied: “Well, it wouldn’t make any difference. They revoked my parole so it would be all the same.” As a result of an inquiry by the court as to whether defendant had had a mental examination since his release on parole, defendant expressed a desire for such examination, but when asked whether he thought there was something wrong with him mentally, he replied: “I don’t think it is, Judge.” Although Mrs. Gilliam said she thought there was “something wrong” with her brother, she agreed with Mr. Kirwan that defendant “understood” their previous conversation, and this discussion, and “ * * * was capable of making up his own mind what he should do.”

After reviewing the evidence heard on the motion, the psychiatrist’s report, and the proceedings had at the time of his plea of guilty, the court found and determined that “ * * * there was an intelligent and conscious intent on the part of the defendant to plead guilty to the charge of murder in the first degree; that he did not lack mental capacity to understand the proceedings against him; that the plea was voluntarily entered with full knowledge of the consequences; that * * * defendant was adequately represented at the time of his plea * * * ; that defendant was neither coerced nor misled into pleading guilty * * * ; and, that the only ‘duress’ to which the defendant was subjected was the necessity of a choice between pleading guilty or standing trial.”

In State v. Kellar, 332 Mo. 62, 55 S.W. 2d 969, l.c. 972, the court said: “ ‘The withdrawal of the plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place. Therefore, the court ordinarily will permit a plea of guilty to be withdrawn if it fairly appears that defendant was ignorant of his rights and of the consequences of his act, or was influenced unduly and improperly either by hope or fear in the making of it, or if it appears that the plea was entered under some mistake or misapprehension. Ordinarily it will not be granted, however, where the plea was entered voluntarily without any undue influence, or where no reason whatever was assigned for the change.’ ”

Our Rule 27.25, V.A.M.R., provides that “A motion to withdraw a plea of guilty may be made only before sentence is imposed * * * ; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”

We have reviewed and considered the whole record in this case and arrive at the same conclusion reached by the trial court. We conclude that defendant was fully informed and understood from his conferences with counsel described by the court as “ * * * a competent and conscientious lawyer of vast experience * * ,” from his discussions with the able and conscientious trial judge, and from his own experiences, the full and complete nature of the charge against him, his possible defenses, and the minimum and maximum punishment therefor prescribed by the law. We conclude that his plea of guilty was unequivocal; that it was a definite, categorical plea, intentionally made with an understanding of the consequences, after careful consideration of what appeared to him to be his chances of acquittal or conviction and the imposition of less or greater punishment at the hands of a jury.

We have examined those parts of the record required to be reviewed by Rule 28.02, V.A.M.R. No error appears therein.

The judgment is affirmed.

All concur.


author: SEILER, Justice.

text:
    STATE of Missouri, Respondent, v. Ollie DIXON, alias Richard Divonne, Appellant.
    No. 51898.
    Supreme. Court of Missouri, Division No. 1.
    Feb. 13, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Charles C. Hatley, Asst. Atty. Gen., New Madrid, for respondent.
    E. J. Murphy, H. H. McNabb, Jr., Harold L. Caskey, Butler, for appellant.
   SEILER, Justice.

Defendant was charged with second degree burglary and stealing, by breaking into a general store at Rockville, Bates County, and stealing merchandise and foodstuffs therefrom. The information also charged prior felony convictions. Tried to a jury, defendant was found guilty October 23, 1965. The court fixed his punishment at fifteen years’ imprisonment. Defendant has appealed.

Defendant’s appointed counsel contend, first, error in permitting testimony that defendant at first gave an alias or different name, thus (it is claimed) implying to the jury that defendant had a criminal record, and, second, error in admitting certain incriminating statements of the defendant without his first having been warned of his constitutional rights.

The city marshal testified he, in response to a telephone call from a man who lived near the scene, went to the store about midnight, observed the store lights were out and a parked car on the west side of the store, right at the corner; that he stood under a tree across the street, and after waiting approximately forty-five minutes, saw the defendant come out the front door with an armload of bread, bologna, milk and bananas, whereupon he halted defendant, made him drop the articles and then walk to the middle of the street and stretch out prone while the marshal observed to see if anyone else was in the store. After deciding there was not, the marshal had defendant lean against a tree and searched him, discovering three hunting knives and scabbards, which the store owner subsequently identified (along with the items dropped on the sidewalk) as merchandise from the store. The marshal took defendant back to the store, sat him down and called the sheriff, who arrived in about an hour. The two padlocks on the outer and inner front doors were gone and the marshal found them in the gutter where defendant later said he had thrown them.

Defendant did not offer any evidence.

On defendant’s first point the record shows that the marshal, who talked to defendant while waiting for the sheriff, testified that when he asked defendant his name defendant said that “his name was Richard Divonne”. Later, a deputy sheriff testified, without objection, that he heard defendant tell the sheriff his name was Richard Divonne and further, over objection, that at a later interrogation by the prosecuting attorney defendant said his name was Ollie Dixon. The word “alias” was not mentioned and all the state showed was that when the arresting officer and later the sheriff asked defendant his name he said “Richard Divonne” and subsequently when the prosecuting attorney asked, defendant said “Ollie Dixon”. This is not error.

On defendant’s second point, the record shows the city marshal talked with defendant while waiting for the sheriff, that the marshal asked defendant why he did it, that defendant answered he broke in because he was hungry; that he talked to defendant about the doors and defendant told him where he had thrown the locks. There was no showing the marshal said anything to defendant about constitutional rights.

The sheriff, who said he interrogated the defendant at the scene for approximately three-fourths of an hour, could not remember whether he informed defendant he had a right to have an attorney present, or that anything he might say might be used against him. The sheriff testified he examined the parked car on the west side of the store building and found therein about twelve cartons of cigarettes, a gas can, siphoning hose, some clothing and a pinch bar; that he asked defendant whether it was his car and defendant said it was.

Although counsel for defendant refer to defendant’s statements as a “confession” and contend the court erred in not first establishing outside the hearing of the jury that the “confession” was voluntary, there is no such point raised in the motion for new trial, nor was any contention made at time of trial that the statements were not voluntary. Counsel’s real reliance is that the statements were involuntarily made as a matter of law or otherwise inadmissible for the reason defendant was not first apprised of his constitutional right to remain silent, citing Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

This court has twice held it will not expand Escobedo beyond its facts, State v. Howard (Mo.Sup.) 383 S.W.2d 701, 703, and State v, Collins (Mo.Sup.) 394 S.W.2d 368, 371, both decided prior to Miranda, wherein the United States Supreme Court discussed the broad implications of Escobedo in language which does lend some support to counsel’s contentions. For example, in Miranda the court said that state and federal courts “in assessing its implications, have arrived at varying conclusions” and that the court granted certiorari in Miranda “further to explore some facets of the problems, thus exposed” and “to give concrete constitutional guidelines for law enforcement agencies and courts to follow”. The court pointed out the Escobedo holding “stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interrogation”, which “was no isolated factor, but an essential ingredient” in the Escobedo decision, 384 U.S. 440-442, 465, 86 S.Ct. 1610-1611, 1623, 16 L.Ed.2d 704-705, 718. The court related the denial of Escobedo’s request for his attorney to the undermining of his exercise of his privilege to remain silent. But as we read Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, for the precise holding of Escobedo to apply there must be present the element of a request for counsel by the suspect and a denial by the police, which is not present here, and since the United States Supreme Court was not persuaded that its holding in Miranda was fully anticipated by the implications of Escobedo, it held that the “additional guidelines for situations not presented by that case” would be available only to persons whose trials had not begun as of June 13, 1966.

Therefore, Escobedo and Miranda do not apply and the test which must be applied under the established Missouri law to the admissibility of defendant’s statements is that of voluntariness, State v. McCulley (Mo.Sup.) 327 S.W.2d 127, 130. No element of coercion appears in the questions put by the marshal or sheriff or in the responses made by defendant. The statements were not volunteered, but a statement can be voluntary even though not volunteered, Shultz v. United States (CCA 10) 351 F.2d 287, 288.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Richard William SIBLEY, Jr., Appellant.
    No. 51814.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Carl R. Gaertner, Special Asst. Atty. Gen., St. Louis, for respondent.
    James A. Bell, St. Louis, for appellant.
   HENLEY, Judge.

Defendant was charged by indictment with rape of a female child under the age of sixteen years. Section 559.260, RSMo 1959, V.A.M.S. A jury found him guilty of the charge and assessed his punishment at imprisonment for life. His motion for new trial was overruled. Sentence and judgment were in accordance with the verdict, and he appeals. He was represented throughout the trial by counsel who has filed a brief in his behalf in this court.

The evidence would warrant a finding of the following facts. On the afternoon of January 20, 1965, prosecutrix, age 11, while on an errand for her aunt, was abducted by defendant and forced to accompany him to an apartment in a vacant house at 3222 Chouteau Avenue in the City of St. Louis. Taking prosecutrix into the bedroom defendant undressed and made her undress and get into bed. She testified that he then “ * * * put his private parts in mine * * * ” and later during the remainder of the night, forced her to engage in unnatural sexual acts with him. Sometime after daylight the following day defendant went to sleep and she escaped, going directly to the home of a neighbor whom she informed of her ordeal. The neighbor called the police. Police officers arrived within a short time and prosecutrix gave them a description of defendant and related to the officers what had happened to her from the time of her abduction until her escape that morning. After searching for, but failing to find defendant where the offense occurred, the officers took her to City Hospital where they were met by prosecutrix’ mother and aunt.

Dr. James Bacon examined prosecutrix at the hospital during the afternoon of Janury 21. He testified that he did a pelvic examination and found multiple hemorrhagic, raw or reddened areas and a rupture of the hymenal ring, evidence of a forcible penetration of prosecutrix’ female organ within the previous 24 to 48 hours.

Defendant was arrested and taken in custody at 3140 Chouteau Avenue on February 1, 1965. Prosecutrix positively identified defendant as her attacker, both at the police station and at the trial.

Defendant briefs five points. In his first point defendant contends that the court erred in permitting the state to cross-examine him pertaining to the type of discharge he received upon his release from military service. Defendant asserts that this examination was an attack upon his character, when his character was not in issue; that the examination went beyond the scope of his examination in chief and was an improper attempt to impeach his credibility. We note that his objection at the trial was on the sole ground that the inquiry went “ * * * beyond the scope of the examination in chief.” During cross-examination regarding his employment, defendant volunteered information that he had been discharged from the service recently. Pursuing that information, counsel for the state asked “when” he was discharged and whether his discharge was honorable. He answered: “I had a medical discharge.” Asked whether he was “ * * * sure of that * * he again volunteered: “I had an undesirable discharge at the beginning, but they * * * changed it * * * ” to a medical discharge; that it was not a dishonorable discharge. Twice during this brief portion of cross-examination the court cautioned defendant that he limit his answers to the questions asked, but he failed to heed this advice. After an objection to further interrogation on this subject was sustained, counsel for the state, out of the hearing of the jury, sought permission to pursue this line of interrogation and offered to prove that defendant had been dishonorably discharged as a result of a charge of child molestation. The request and offer were denied.

Of course, the defendant may be cross-examined as to previous convictions of other felonies for the purpose- of impeaching his credibility as a witness, even if he did not testify as to such convictions on his direct examination, but he may not be examined for this purpose pertaining to previous arrests or mere charges against him. State v. Rumfelt, Mo., 258 S.W.2d 619, 620 [1-3] and cases there cited; State v. Himmelmann, Mo., 399 S.W.2d 58, 62 [3], This examination of defendant properly was halted by the court when it was disclosed that it could lead to no more than proof of a charge of child molestation, rather than a conviction therefor.

When the examination was halted, the only evidence before the jury as to the type of military discharge defendant had received was that it was “ * * * a medical discharge * * * not a dishonorable discharge, * * * ” information defendant had volunteered against the cautionary advice of the court. This evidence certainly was not prejudicial to defendant’s rights; and, under the circumstances in which it was received by the jury, his claim of error has no merit.

Defendant’s points two and four are essentially the same and may be discussed together. First, defendant contends that the court erred in permitting counsel for the state to argue “ * * * the prevalence of crime in the community * * * ” as a reason for conviction. We have read the argument. Defendant’s objection, outside the hearing of the jury, anticipated such argument, but not one word was mentioned in the state’s argument about the prevalence of crime in the community. Second, defendant contends that the court erred in overruling his objection to argument that “ * * * defendant should not be allowed on the streets * * A fallacy in the contention is that defendant made no objection to this portion of the argument. The point will not be reviewed, because not based upon an objection made at the time of the alleged error. State v. Martin, Mo., 346 S.W.2d 71, 73 [6]; State v. Brookshire, Mo., 353 S.W.2d 681, 688 [17]. Moreover, that portion of the argument to which defendant now objects is taken out of context. The argument that defendant “ * * * doesn’t belong on the streets * * * ” was part of an appeal to the jury to assess such penalty as would be a deterrent to commission of similar offenses by others, and was not improper. State v. Allen, Mo., 343 S.W.2d 63, 67 [12].

Defendant’s point three is that the court erred in overruling his objection to the testimony of prosecutrix that during the night someone came to the door of the room in which defendant and prosecutrix were in bed and called out, “Open the door, Richard [defendant].” Defendant contends that this testimony was not admissible, because “ * * * there was no identity of the person * * * [or] the voice and same was hearsay and not a part of the Re[s] Gestae.” The testimony of the prosecutrix that some unidentified person requested that defendant open the door was not hearsay, but was a statement of the fact of an occurrence during the night. Both the defendant and the state cite State v. Sarkis, Mo., 313 S.W. 2d 723, 726 [5], in support of their respective positions as to whether this evidence was admissible as part of the res gestae. The Sarkis case is authority for the state’s position that the evidence was admissible. There is no merit in defendant’s point and it is denied.

Defendant’s last point is that the court erred “ * * * in allowing rebufal witness to testify at [about] additional facts without rebutting anything defendant had said in that the rebuttal witness introduced new matters not covered in defendant’s testimony in chief.” Two police officers testified in rebuttal. Defendant does not state which one of the rebuttal witnesses’ testimony he objects to, nor does he identify the testimony he asserts is not proper rebuttal, nor does he indicate the page of the transcript where it may be found. Reference to his motion for new trial does not assist us in determining specifically what rebuttal testimony he has reference to. We decline to seine through the testimony of defendant and two other witnesses in an effort to ascertain “additional facts” or “new matters,” if any, testified to by the police officers which were not in rebuttal of defendant’s testimony. It was the duty of defendant to point out distinctly in his brief the specific rebuttal testimony he has reference to, wherein and why it was not in proper rebuttal, and to indicate where the testimony may be found in the transcript. Defendant has failed to comply with Civil Rule 83.05, V.A.M.R., made applicable to criminal cases by Rule 28.18. For the reasons stated, we decline to review the last point.

Examination of the record as required by Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


author: FINCH, Judge.

text:
    STATE of Missouri ex rel. LEE AMERICAN FREIGHT SYSTEM, INC., Relator-Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Tyre W. Burton, Chairman, E. L. McClintock, Frank W. May, William Barton and Donal D. Guffey, Commissioners, Respondents.
    No. 52340.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1966.
    Rehearing Denied Feb. 13, 1967.

      Stewart & Bruntrager, Raymond A. Bruntrager, St. Louis, for appellant.
    Wayne W. Waldo, Gen. Counsel, H. Burks Davis, Errol D. Taylor, Attys., Jefferson City, for respondents.
    Orville Richardson, St. Louis, for Motor Carriers Council of St. Louis, Inc., amicus curiae.
    Swanson, Midgley, Jones, Eager & Gang-were, Kenneth E. Midgley, Ralph M. Jones, Kansas City, for Highway Carriers Ass’n, Inc., amicus curiae.
   FINCH, Judge.

Lee American Freight System, Inc., (Lee American) appeals from affirmance by the Circuit Court of an order of the Public Service Commission (Commission) which found it guilty of violation of Rule 37 of General Order No. 33-D (issued under the Missouri Bus and Truck Law) for failure to have a fire extinguisher on one of its trucks. The Kansas City Court of Appeals affirmed but, on application, we directed transfer of the case. We now decide it the same as if it came on direct appeal to this court.

The case was submitted to the Commission on an agreed statement of facts. Those facts pertinent to this appeal are as follows: Lee American transported two shipments from Detroit, Michigan, to its terminal in the City of St. Louis. One shipment from Pittsburgh Plate Glass Company was consigned to Park Warehouse, Inc., and the other from Wolverine Tube Company, Detroit, was consigned to its plant in St. Louis. The terminal and the two destination points were within the commercial zone of the City of St. Louis.

The trailer containing these shipments was delivered to Lee American’s terminal on Hall Street on the night of May 12, 1963. The following day, using a tractor utilized exclusively for pickup and delivery within the commercial zone of the City of St. Louis, Lee American picked up the two shipments at the Hall Street terminal for the purpose of delivering them to the addresses to which they were consigned. While in the process of so doing, the truck was stopped for a check and the driver was arrested for failure to have a fire extinguisher as required in Rule 37 of General Order No. 33-D. The truck in fact had no fire extinguisher.

Lee American has an interstate permit, including a Missouri Public Service Commission interstate permit, but does not have a permit to operate intrastate in Missouri.

No question is raised as to the right of the Commission to make regulations such as Rule 37. The sole issue on appeal is whether the operation of the vehicle in question by Lee American is subject to the Act governing motor carriers and the jurisdiction of the Commission. The question is entirely one of law involving an interpretation of the applicable statute.

The parties recognize that if the operation of the Lee American truck in the St. Louis commercial zone is exempted, it is pursuant to the provisions of § 390.030 (9) (all references are to RSMo 1959 and V.A.M.S., unless otherwise indicated). That particular subsection is as follows:

“390.030. Vehicles exempted.
“The provisions of sections 390.011 to 390.176 shall not apply to:
“(9) The transportation of passengers or property for hire wholly within a municipality, or between contiguous municipalities, or within a commercial zone as defined in subsection 14 of section 390.020, or within a commercial zone established by the commission pursuant to the provisions of subsection 4 of section 390.041; provided, the exemption in this subdivision shall not apply to motor carriers of persons operating to, from or between points located wholly or in part in counties now or hereafter having a population of more than three hundred thousand persons, where such points are not within the same municipality.”

The Commission first contends that the exemption provided by § 390.030(9) is applicable to the load rather than the vehicle. Consequently, the fact that Lee American used this particular tractor solely for local pickup and delivery service is of no significance. This contention is based largely on a comparison of the language in subsection (9) with the wording of the other subsections of § 390.030. In all of the other subsections the statute specifically refers to the vehicle as being exempted from the chapter. In some subsections (for example, (1), (2) and (3)), it is provided simply that private carriers, school buses and taxicabs are exempted. This is true regardless of the load. In other subsections (such as (4), (S), (6) and (7)) the vehicle is excluded when it is hauling a certain type of load or is engaged in a particular kind of work. In each subsection, however, the exemption still is stated as being to the vehicle rather than to the load itself. On the other hand, in subsection (9) the exemption is to “transportation of passengers or property.” The fact that this subsection makes no reference to motor vehicles when it exempts transportation of passengers or property indicates, according to the Commission, that the exclusion applies to the load and not the vehicle.

Having reached the foregoing conclusion, the Commission then asserts that the words in subsection (9), “transportation of passengers or property for hire wholly within a municipality, or between contiguous municipalities, or within a commercial zone * * * ” have reference only to transportation which originates and terminates within the municipality or commercial zone and is of a purely local character. This would mean that the transportation here involved, which was directly connected with the movement of the two shipments from Detroit to particular locations in St. Louis and was interstate in character, would not qualify as purely local transportation originating and terminating in the commercial zone. Since the exemption, under the Commission’s interpretation, is applicable to the load rather than the vehicle, it follows that the operation of Lee American’s truck would fall within the jurisdiction of the Commission. The Commission asserts that the situation would have been the same if a purely local cartage company had picked up the two shipments at the Hall Street terminal and undertaken to deliver them to the ultimate consignees. The load still is interstate in character rather than local, and this, under the Commission’s interpretation of subsection (9), places the operation within the Commission’s jurisdiction.

In construing this statute, we must ascertain and give effect to legislative intent. In re Tompkins’ Estate, Mo., 341 S. W.2d 866. In so doing, we have concluded that the exemption provided in § 390.030 (9) is applicable to the vehicle rather than the load for reasons which we shall enumerate.

We do not doubt that the local delivery of these two shipments was interstate in character as a continuation and completion of the shipments from the consignors at Detroit. This, however, is not made the determining factor in § 390.030. Subsection (11) so shows. It provides that motor vehicles, which are domiciled and licensed in a state other than Missouri and whose operations in Missouri are interstate in character and limited exclusively to a municipality or its commercial zone, are exempted from the chapter. Such operations are expressly recognized to be interstate in character. Under this section, if an Illinois firm operates its trucks into the St. Louis commercial zone only and this company hauls a shipment from Chicago to St. Louis and delivers the cargo directly to the consignee, the operation of the truck by the Illinois firm would be excluded from the regulation of motor carriers by the Commission. This indicates to us that the legislature, in drafting this section, was not following the philosophy that operations within a municipality or commercial zone would be exempted solely if they originated and terminated within the municipality.

Furthermore, if we were to adopt the interpretation of subsection (9) for which the Commission contends, we necessarily would conclude that the legislature intended to discriminate against local carriers in favor of vehicles not domiciled or registered in Missouri. If our hypothetical Illinois company hauled the shipment from Chicago to St. Louis and left it at a terminal instead of making delivery to the ultimate consignee, and a local cartage company picked up that shipment and completed the delivery, it would not be exempt under subsection (9) and would be subject to the jurisdiction of the Commission. On the other hand, if the Illinois firm had completed the delivery, it would have been exempted under subsection (11) and would not have been subject to the jurisdiction of the Commission at all. We do not believe that the legislature so intended or so provided. This indicates to us that the interpretation of subsection (9) advanced by the Commission is erroneous.

There are additional reasons for our conclusion. The present chapter was adopted in 1951 (Laws 1951, page 547). Its title provided that it repealed certain sections which dealt with the regulation of motor carriers and enacted new sections “for the supervision, regulation and licensing of transportation of persons and property for hire over the public highways of the State of Missouri by motor vehicles”. The section with which we are concerned was amended in 1959 (Laws 1959, House Bill No. 24), and its title provided that it repealed a section “relating to the regulation of motor carriers and contract haulers” and enacted a new section relating to the same subject. These titles indicate that it is vehicles which are exempted, and there is nothing in the titles to indicate that one of the subsections out of twelve was intended to provide an exemption to cargo or passengers and not to vehicles. It is proper to consider the title in construing the statute. In re Tompkins’ Estate, supra. This conclusion is strengthened by the fact that there is a proviso within subsection (9) itself which starts, “provided, the exemption in this subdivision shall not apply to motor carriers ⅜ * This indicates to us that the philosophy and intent of the subsection is to provide an exemption to carriers. We observe- that the Compiler of Statutes so treated the statute when he inserted the catchwords “Vehicles exempted” to precede the twelve subsections of the statute. (§ 390.030, RSMo 1959 and V.A. M.S. Cum.Pocket Parts, 1966, p. 35).

The Commission points out that prior to the enactment of the chapter in 1951, § 390.020(2), RSMo 1949, provided that the statute “shall not be so construed as to apply to motor vehicles used in the transportation of passengers or property for hire, operating over and along regular routes within any municipal corporation or a municipal corporation and the suburban territory adjacent thereto * * * ” and that in the case of State ex rel. and to Use of Public Service Commission v. Blair, 347 Mo. 220, 146 S.W.2d 865, this court held that the quoted language exempted any motor vehicle operated exclusively within the corporate limits of a municipality. In so holding, the court said, 1. c. 874: “If this construction is unsatisfactory to the public, it should be changed by the General Assembly soon to be in session, and not by either the Commission or the Court.” It is the contention of the Commission that when the legislature shortly thereafter adopted the new statute, including subsection (9), in lieu of the statute which had been construed in the Blair case, it indicated an intention to make a change and limit the exemption to purely local transportation. We disagree for reasons we have enumerated heretofore. In addition, a comparison of the language in subsection (9) with certain language in the Interstate Commerce Act, 49 U.S.C.A. § 303(b) (8), indicates that the legislature probably borrowed some of the language of the federal statute and used it in subsection (9). The federal act, 49 U.S.C.A. § 303(a) (19), defines transportation to include all vehicles operated and used in the transportation of passengers or property. It indicates that the exemption therein provided is intended to apply to vehicles and not to cargo. Under these circumstances, we do not find in the phraseology used in subsection (9) the expression of an intention to change the exemption of local transportation to one limited to property or passengers moving wholly within the municipality instead of an exemption of carriers operating wholly within the municipality.

Counsel for the Commission conceded on oral argument of this case that the practical effect of the position asserted by the Commission would be to require all local cartage companies to come within the jurisdiction of the Commission and to comply with its regulations. When the cartage company was hauling a purely local shipment, the Commission regulations would not be applicable, but unless the cartage company limited itself solely to such local movements of cargo, the practical effect would be that the cartage company would have to qualify its vehicles with the Commission. The shipper, according to the Commission, forms an intention when he makes a shipment as to whether it is to go outside the municipality, and if it is, then the shipment is not exempt. This would necessitate ascertainment by the cartage company of the intent of the shipper before accepting cargo, and would require the cartage company to decline any shipment destined to or from an area outside the commercial zone if it desired to remain exempted under § 390.030(9). This, in our judgment, is not what the legislature intended.

The Commission asserts that this court in the case of State ex rel. Missouri Pacific Freight Transport Co. v. Public Service Commission of Missouri, Mo., 295 S. W.2d 128, 135, has construed subsection (9) as not exempting transportation which is merely a continuation of transportation to or from a point outside the municipality and its commercial zone. It contends the Missouri Pacific case rules the issue here. That case actually concerned an application by the Missouri Pacific Freight Transport Company for an enlargement of its authority, and what the court said was related to that question, but if the language of the court is inconsistent with the conclusion we reach herein, it is to that extent overruled.

The judgment of the Circuit Court and the order of the Public Service Commission are reversed.

All concur and WOLFE, Special Judge, concurs.

EAGER, J., not sitting.

      . Section 390.030, except for subsection (9), which has already been set out in the opinion, is as follows:
      “390.030. Vehicles exempted.

      “The provisions of sections 390.011 to 390.17G shall not apply to:
      “(1) Private carriers.
      “(2) School buses.
      “ (3) Taxicabs.
      “(4) Motor vehicles while being used exclusively to transport:
      “(a) Stocker and feeder livestock from farm to farm, or from market to farm;
      “(b) Farm or dairy products including livestock from a farm or dairy to a creamery, warehouse or other original storage or market;
      “(c) Agricultural limestone or fertilizer to farms; or,
      “(d) Property from farm to farm.
      “(5) Motor vehicles of a carrying capacity of not to exceed five persons, or one ton of freight, when operated under contract with the federal government for carrying the United States mail and when on a trip provided in said contract.
      “(6) Motor vehicles used solely in the distribution of newspapers from the publisher to subscribers or distributors.
      “(7) Motor vehicles while being used exclusively in work for the state of Missouri or any civil subdivision thereof.
      “(8) Freight-carrying motor vehicles duly registered and licensed in conformity with the provisions of chapter 301, RS Mo, for a gross weight of six thousand pounds or less; provided, that nothing contained in this subdivision shall be deemed to exempt the vehicles of drive-away operators from the commission’s regulation.

      “(10) Street railroads as defined in subsection 5 of section 386.020, RSMo.
      “(11) Motor vehicles, which are domiciled and licensed in another state, and whose operations in the state of Missouri are interstate in character and are limited exclusively to a municipality and its commercial zone.
      “(12) Motor vehicles, commonly known as tow trucks or wreckers, designed and exclusively used in the business of towing or otherwise rendering assistance to abandoned, disabled and wrecked vehicles.”

      . 49 U.S.C.A. § 303(b) (8): “The transportation of passengers or property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone, and provided that the motor carrier engaged in such transportation of passengers over regular or irregular route or routes in interstate commerce is also lawfully engaged in the intrastate transportation of passengers over the entire length of such interstate route or routes in accordance with the laws of each State having jurisdiction”.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Paul HICKMAN, Appellant.
    No. 52150.
    Supreme Court of Missouri, Division No.-1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Clyde Burch, Sp. Asst. Atty. Gen., Kirksville, for respondent.
    •Paul Hickman, pro se, Jerry C. Stillman, Kennett, for appellant.
   HOLMAN, Presiding Judge.

The amended information in this case charged defendant with the offense of uttering a forged check. See § 561.011 (statutory references are to V.A.M.S.). It was also alleged and proved that he had been convicted of two prior felonies. See § 556.280. The jury found defendant guilty of the offense charged and the court fixed his punishment at imprisonment in the penitentiary for a term of five years. He has appealed from the ensuing judgment.

The evidence indicated that on January 19, 1966, defendant went to the Dixie Park Package Store in Kennett, Missouri, where he purchased a half pint of whiskey and a “6-pack” of beer; that he paid for those items with a check in the amount of $27.32 which purportedly was signed by Don Davis and made payable to defendant; that defendant received in cash the difference between the amount of his purchases and the amount of the check. The hank upon which the check was drawn refused to pay it because the signature did not correspond with the signature of Don Davis on the bank’s records.

Mr. Davis testified that he did not sign the check; that defendant had never worked for him but was with him in Hayti on the day preceding the day the check was cashed and was present when the witness and defendant’s brother did some work on an electric sign.

Defendant testified that he had worked about an hour and a half for Mr. Davis on January 18, 1966, and had not been paid on that day; that on January 19 he started drinking about noon and drank all afternoon; that at about 6:30 he pulled a package of cigarettes out of his pocket and then discovered the Davis check in his pocket; that he didn’t remember having received the check so he concluded that Mr. Davis had given it to him that afternoon in payment for his .work .the day before, and that he had not remembered receiving it because he was drinking; that he then purchased some liquor at the Dixie Park Package Store and cashed the check at that time; that when he cashed the check at the Dixie Park Package Store he did not think he was doing anything dishonest, and if he had known the check was bad he would not have cashed it.

The first point briefed is that the court erred in failing to set aside the verdict upon motion for new trial because there was no evidence that defendant had an intent to cheat and defraud. We do not agree. The evidence shows that defendant cashed a forged check and received the proceeds thereof. He admittedly did not know how he obtained possession of the check. His explanation that he assumed that Mr. Davis gave it to him (while he was too drunk to remember) in payment for one and one-half hours’ work he had done for him the preceding day is unreasonable. It is elementary that intent need not be proved by direct testimony but may be shown by accompanying circumstances. 20 Am.Jur., Evidence, § 335, p. 312. The circumstances here shown were sufficient to warrant the jury in finding (as it did) that defendant cashed the check with intent to defraud. State v. Andrews, 297 Mo. 281, 248 S.W. 967 [7]; State v. Peebles, 337 Mo. 973, 87 S.W.2d 167[2].

Defendant also contends that the court erred in giving Instruction No. 3 at the request of the State because it was ambiguous, confusing, and tended to mislead the jury. We note in the transcript that the assignment in the motion for new trial in that regard is that “the court erred in giving at State’s request Instruction No. 3.” It is obvious that the quoted assignment does not state any reason why it was contended that the instruction was erroneous and hence the point is not preserved for appellate review. S.Ct. Rule 27.20, V.A. M.R.; State v. Martin, Mo.Sup., 347 S.W. 2d 680 [6].

Defendant has filed a pro se brief in which he states that the information is fatally defective because it failed to allege the name of the person whom he intended to defraud. That contention might be meritorious if it were not for § 545.170, which provides that “It shall be sufficient in any indictment for any offense where an intent to injure, cheat or defraud shall be necessary to constitute the offense, to allege that the defendant did the act with such intent, without alleging the intent of the defendant to be to injure, cheat or defraud any particular person * * In the early case of State v. Phillips, 78 Mo. 49, this court held that said statute made it unnecessary, in an information charging the offense of uttering a forged instrument, to allege an intent to defraud any particular person. Phillips, and other similar cases, are decisive of this point and it is accordingly ruled adversely to defendant.

There is no merit in defendant’s remaining contention that the information is insufficient because it does not allege a “sale” of the check for a consideration. That allegation is not required by the provisions of § 561.011, subd. 1 (3).

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

The judgment is affirmed.

All concur.