author: WELBORN, Commissioner.

text:
    Myrtie G. PORTELL, Plaintiff, Appellant, v. PEVELY DAIRY COMPANY, a Corporation, Defendant, Respondent, and James W. Bannon, Defendant, Respondent.
    No. 50575.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.

      Lashly, Lashly, Rava, Hyndman & Rutherford, William I. Rutherford, St. Louis, for plaintiff, appellant.
    Albrecht & Homire, Edmund C. Albrecht, Jr., James L. Homire, Jr., St. Louis, for defendant-respondent Pevely Dairy Co.
   WELBORN, Commissioner.

Myrtie G. Portell brought suit for $25,-000 damages against Pevely Dairy Company (referred to herein as “Pevely”) and James W. Bannon. The action arose out of a collision between Mrs. Portell’s automobile and a Pevely delivery truck, driven by Ban-non, a Pevely employee. Bannon filed a counterclaim against Mrs. Portell for his injuries in the collision. On a jury trial, a verdict was returned against the plaintiff and in favor of both defendants on Mrs. Portell’s action. A $1500 verdict was returned in Bannon’s favor on his counterclaim. Mrs. Portell’s motion for new trial on the counterclaim and her cause of action was overruled and she appealed.

On January 31, 1964, a stipulation was filed in the circuit court for the dismissal of Bannon’s counterclaim. The stipulation reads:

“By consent of the parties, judgment for defendant Bannon on his counterclaim set aside and for naught held. All matters in controversy in regard to said counterclaim having been settled said counterclaim is dismissed with prejudice with the express stipulation and agreement that said dismissal will in no manner affect or prejudice plaintiff’s claim now pending.”

The stipulation was signed by the attorney for Bannon and an attorney for plaintiff.

Pevely has moved to dismiss the appeal, contending that the dismissal, with prejudice, of the counterclaim operates as an adjudication on the merits, and that the settlement of the counterclaim operates to release Pevely, whose liability was dependent upon the negligence of Bannon.

In opposition to the motion of Pevely, plaintiff has filed an affidavit of the attorney who executed the stipulation on her behalf. By this affidavit, the attorney states that he was the attorney for plaintiff’s insurance carrier and represented her only on Ban-non’s counterclaim and not on her claim for personal injuries. He states that he consulted neither the plaintiff nor the attorney representing her on her personal injury claim regarding the stipulation for dismissal, although he did inform the latter of the intention to settle the counterclaim.

In this situation, we do not consider that the rule applied in Max v. Spaeth, Mo.Sup., 349 S.W.2d 1, relied upon by Pevely, is applicable. The question is governed by the rule applied in Kirtley v. Irey, Mo.Sup., 375 S.W.2d 129, 134, that ‘“a liability insurer’s settlement of a claim against the insured, made without the insured’s consent or against his protests of nonliability, and not thereafter ratified by him, will not ordinarily bar an action by the insured against the person receiving the settlement, on a claim arising out of the same state of facts.’ ” Annotation, 32 A.L. R.2d 937, 938. See Rudloff v. Johnson, 8th Cir., 267 F.2d 708. The motion to dismiss the appeal is overruled.

The nature of the issues requires only a summary of the facts. The collision occurred in St. Louis County on the morning of October 3, 1960, while plaintiff was going to work. She was driving south on Pennsylvania Avenue, between Page Boulevard and St. Charles Rock Road. Rain was falling at the time. Plaintiff’s version of the collision was that she reached the crest of a hill and saw the Pevely truck stopped on the shoulder, approximately 150 feet ahead and on her right. The truck, driven by Bannon, pulled onto Pennsylvania in front of plaintiff, as if to make a U-turn. Plaintiff was unable to stop and her car collided with the truck in the inside southbound lane of the four-lane roadway. Plaintiff claims to have suffered injuries which we need not here detail.

Bannon’s version was that his truck had skidded into a ditch on the east side of Pennsylvania as he was going north. A tow truck pulled the truck out and across the road, headed south, on the shoulder. Ban-non stated that he looked for southbound traffic, and, seeing none, started to pull onto Pennsylvania, intending to go south for approximately a block in order to make a U-turn and continue northward. As he started to drive onto the pavement, he saw plaintiff’s vehicle approaching at the crest of a hill, southbound in the inside lane. When he saw plaintiff’s automobile, he stopped, with his truck partly on the pavement and partly on the shoulder. Plaintiff’s vehicle came directly toward the truck, “skidding at an angle,” and collided with the stopped vehicle, causing injury to Ban-non.

By its answer, Pevely admitted that Ban-non was its agent and that he was acting within the scope of his authority at the time of the collision.

On his counterclaim, Bannon submitted an instruction charging plaintiff with negligence in several respects. Among the grounds specified was the failure of plaintiff to “keep and maintain control of her automobile at all times.” Plaintiff, on this appeal, contends that, under Miles v. Gaddy, Mo.Sup., 357 S.W.2d 897, and the cases therein cited, the submission of failure to control as a specification of negligence made the instruction erroneous. She further contends that such error, although in the submission of the counterclaim, requires the reversal of the judgment in favor of Pevely and Bannon on her original action.

Bannon filed no brief in this court. Pevely, in its brief, does not attempt to defend the instruction. Instead, Pevely’s position is that the alleged error was not specifically asserted against Pevely in plaintiff’s motion for new trial, and cannot, therefore, be urged here.

Plaintiff’s motion for a new trial prayed for a new trial of both plaintiff’s claim against Pevely and Bannon as well as of Bannon’s counterclaim. Her specifications of error did not point out against which defendant the error was asserted. Thus, on the instruction here in question, the assignment was that the trial court erred in giving Instruction No. 4, offered by Bannon, on the grounds, among others, that it submitted plaintiff’s failure to keep and maintain control of her automobile at all times. “Such a submission is a charge of general negligence and is confusing and constitutes a roving commission.”

In Vinson v. East Texas Motor Freight Lines, Mo.Sup., 280 S.W.2d 124, relied upon here by Pevely, Vinson had sued East Texas and one Bell for injuries arising out of a collision involving three vehicles, one of each party. Bell cross-claimed against East Texas. Plaintiff had judgment against East Texas on his claim, as did Bell on his cross-claim. On East Texas’ appeal, the court originally reversed both judgments because of error in Vinson’s verdict-directing instruction. However, on rehearing, it was pointed out that East Texas’ motion for new trial did not allege that the erroneous instruction affected the trial of Bell’s cross-claim. The court also noted that East Texas, on its appeal, did not urge that the error in Vinson’s instruction had prejudicial effect in the determination of Bell’s cross-claim. The court concluded that no claim had properly been raised of error as between East Texas and Bell and that, in any event, failure to brief such claim on appeal would result in its waiver. 280 S.W.2d 132.

Vinson differs from this case. Of course, plaintiff on the appeal has asserted that the error affected the trial of plaintiff’s claim. More important, in Vinson, although Vinson’s action and Bell’s cross-claim arose out of the same three-vehicle collision, Vinson’s claim and Bell’s claim were not inseparably bound together. Both could have prevailed against East Texas. In this case, plaintiff’s claim and Bannon’s counterclaim are such that both parties could not recover. The trial of one necessarily involved the trial of the other. The proof of Bannon’s counterclaim necessarily disproves plaintiff’s claim. Error which requires the reversal of a judgment favorable to a claimant will so affect the trial of an interrelated and interdependent counterclaim which terminated unfavorably to the appellant that its retrial with the original claim will be authorized, even though the appellant did not challenge the judgment against him on the counterclaim, and made no assignment of error or briefing thereof. Bramblett v. Harlow, Mo.App., 75 S.W.2d 626, 633(17,18); Vogelgesang v. Waelder, Mo.App., 238 S.W.2d 849, 857(13).

The situation here is somewhat different from that involved in the cases last cited. In those cases, the submission had produced a plaintiff’s verdict, which was reversed for error in plaintiff’s instructions.. Here the alleged error was in the submission of the counterclaim. The party urging no error as to it was not a party to the counterclaim. However, just as plaintiff’s claim against Bannon and the latter’s counterclaim were “inextricably bound together,” so were plaintiff’s claim against Pevely and Bannon’s counterclaim against plaintiff. The only added element was Pevely’s responsibility for Bannon’s acts, which was admitted.

The interdependence of plaintiff’s claim and Bannon’s counterclaim was such that the assignment of error here relied upon would be reasonably understood to apply to both segments of the litigation. Plaintiff’s motion for a new trial requested such relief on both aspects of the case and this assignment is sufficiently related to both aspects of the case to permit its consideration in such manner.

As stated above, Pevely has not attempted to defend the instruction. Under Miles v. Gaddy, supra, the error is clear. In view of the interdependence of plaintiff’s claim and the counterclaim, the error in the instruction was prejudicial to the proper consideration of plaintiff’s claim.

Pevely does point out that the instruction ■ under attack required the jury to find that Bannon was in the exercise of the highest degree of care at the time of the collision. Plaintiffs, whose instructions were found erroneous in Bramblett and Vogelgesang, supra, submitted instructions requiring a similar finding as a prerequisite to a plaintiff’s verdict. Such clause was apparently not considered sufficient to assure that the defendants’ counterclaim had received proper consideration on its merits by the jury, uninfluenced by the prejudicial effect of plaintiff’s erroneous instruction on the defendant’s negligence. The error complained of is presumptively prejudicial and the inclusion in Bannon’s instruction of the clause here pointed to does not negative the prejudicial effect of the error therein.

Our conclusion in this regard makes it unnecessary to consider other assignments of error by plaintiff, relating to matters which are not likely to recur on a new trial.

The judgment is reversed and the cause remanded for a new trial.

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: PRITCHARD, Commissioner.

license: Public Domain

text:
    Carl V. KERSTING et al., Appellants, v. CITY OF FERGUSON, Missouri, a Municipal Corporation, et al., Respondents.
    No. 50888.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Lester W. Duggan, Jr., Florissant, for plaintiff s-appellants.
    Carleno & Nick, Ferguson, for defendants-respondents.
   PRITCHARD, Commissioner.

The question which is of primary concern here is whether there is presented a constitutional question necessary to vest this court with appellate jurisdiction.

Appellants’ first amended petition alleges in both Counts I and II thereof that they are representatives of a class of resident taxpayers and property owners in Ferguson, Missouri. In Count I of the petition it is alleged that the Charter of the City of Ferguson is void in toto because it is violative of the 1945 Constitution of Missouri, and further that certain specified sections of the Charter are individually void because also violative of the Constitution of Missouri. For the purpose of this opinion it is unnecessary to set out with particularity the charter sections alleged to be unconstitutional and the reasons advanced therefor. In Count II of the petition it is alleged that certain acts of the city council of the City of Ferguson are void' because they are in violation of, contrary to, or not in conformity with certain provisions of the Charter, and also that certain ordinances of the City are contrary to the Constitution of Missouri, 1945.

Appellants’ jurisdictional statement in their brief states that such constitutional question is presented in that their petition charges that the Charter of the City of Ferguson is violative of the Constitution of this state; that an adjudication on the merits of appellants’ petition — a dismissal with prejudice constituting such an adjudication — would necessarily involve a construction of certain specified sections of the Constitution as they apply to the Charter of the City, its specific provisions and the ordinances thereof referred to in the petition.

The mere assertion that a constitutional question is involved does not of itself raise such a question within the meaning of Art. V, § 3, Mo.Const. 1945, V.A.M.S. Cohen v. Ennis, Mo., 308 S.W.2d 669, 672 [3, 4]; Nelson v. Watkinsen, Mo., 260 S.W.2d 1, 2[1], and eases cited. Although the respondents do not attack this court’s jurisdiction, we must make that determination upon our own motion. Gennari v. Norwood Hills Corporation, Mo., 322 S.W.2d 718, 720 [1,2]; Shepherd v. Department of Revenue, Mo., 370 S.W.2d 381, 382[1, 2].

Respondents’ motion to dismiss the first amended petition was argued, submitted to and taken under advisement by the trial court. It was thereafter sustained and the petition was dismissed as to both counts. The order of dismissal does not specify any ground stated in the motion upon which the motion was ruled. The motion to dismiss presented the following grounds therein contained to the trial court:

As to Count I of the petition: a failure to state a claim upon which relief can be granted; plaintiffs’ action was a collateral attack upon the Charter of defendant City, which can be done only by the proper state officer directly in Quo Warranto proceedings; that plaintiffs cannot maintain this action for declaratory judgment under Sections 527.010 and 527.020, RSMo 1959, V.A.M.S., because they are not the real parties in interest; that there is no justiciable controversy between the parties; that plaintiffs do not allege facts to show their rights, status or legal relations are affected by a statute, municipal ordinance or franchise as required by Section 527.020 RSMo 1959, V.A.M.S.; and that plaintiffs pleaded conclusions in paragraphs 6 and 7 of Count I.

With respect to Count II, the grounds are again that plaintiffs have pleaded conclusions, without facts; that they are not the real parties in interest; that they have no legally protectible interest at stake or in the relief sought of any claims asserted; that there is no justiciable controversy between the parties; and that no claim to relief is stated.

The only way that this court could have appellate jurisdiction (and that the Court of Appeals could not have jurisdiction) is that the court below ruled upon the issue of whether both counts of the petition state a claim to relief upon constitutional grounds; that is, do the counts of the petition properly and sufficiently allege facts which present an issue involving a construction of the Constitution of this state within the meaning of Section 3, Article V thereof? See Goodson v. City of Ferguson, Mo., 339 S.W.2d 841, 842, where only one ground, “failure to state a claim upon which the requested relief may be granted,” was specified in the motions to dismiss the petitions-in the three consolidated cases there involved. Thus this court, in Goodson, supra, did rule the one question as to the sufficiency of facts alleged to state a claim to relief on constitutional grounds. Finding that such facts were insufficient, the case was transferred to the St. Louis Court of Appeals.

It must appear affirmatively from the record that the trial court ruled adversely to appellants upon a constitutional issue, so as to present it for appellate review. Municipal Securities Corp. v. Kansas City, Mo., 186 S.W. 989, 990; Cirese v. Spitcaufsky, Mo., 259 S.W.2d 836, 838 [2]. Here, it does not appear from the record that the trial court ruled any pleaded constitutional question. The inherency doctrine, which appellants suggest in their jurisdictional statement applies here (that a dismissal with prejudice necessarily involves a construction of the Constitution as applied to the charter and ordinances), has been rejected by this court since the 1949 case of City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372 378 [7].

In a case such as this where a motion to dismiss raises issues both constitutional (failure to state facts sufficient for a claim to relief on constitutional grounds) and nonconstitutional (capacity to sue, lack of a justiciable controversy, etc.) and the record does not indicate which issue was decided, it will-be deemed that the trial court ruled the case on applicable nonconstitutional grounds and that the constitutional grounds were avoided in the trial court and are therefore not in the case on appeal. In Juengel v. City of Glendale, Mo., 161 S.W.2d 408, an ordinance was attacked by defendants upon constitutional grounds and upon other grounds. There was a general finding by the trial court and no specification of the ground of the finding. At loc.cit. 410[5] the court said, “But, aside from all the foregoing, there is a further reason why this appeal does not involve a constitutional question so as to give this court jurisdiction and that is it does not appear from the record that the trial court decided or passed on the constitutionality of the ordinance, which is an essential requisite to our jurisdiction in such instances. ‘There is nothing in the record to show whether the court decided the case on the constitutional question raised by the pleadings or not.’ (Citing cases) If the case was decided by the trial court independently of any constitutional issue this court would not have jurisdiction by reason of the alleged presence of such a question.” See also Motchar v. Hollingsworth, Mo., 162 S.W.2d 805, 806[1]; Cirese v. Spitcaufsky, supra; and December, 1964, Volume, Washington University Law Quarterly, “Missouri Appellate Jurisdiction,” § 1.022(b), p. 462.

Since it does not affirmatively appear from the record that the trial court decided or passed on the constitutionality of the City Charter or ordinances, no constitutional question is preserved for review on appeal and the Supreme Court is without jurisdiction. The remaining questions are within the jurisdiction of the Court of Appeals and the situation of transfer and retransfer in the Cohen v. Ennis cases (Mo., 308 S.W.2d 669; Mo.App., 314 S.W.2d 239; Mo., 318 S.W.2d 310) cannot occur.

The case is transferred to the St. Louis Court of Appeals.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: PRITCHARD, Commissioner. PER CURIAM.

text:
    Ida McHENRY, also known as Ida Winhelm, Respondent, v. Zona BROWN, Leonard F. Parks, Lydia Parks, Fred C. Schuepfer and Fred C. Schuepfer Investment and Realty Company, Appellants.
    No. 50632.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent.
    Larry J. Casey, Potosí, Earle B. Lead-love, St. Louis, for appellants.
   PRITCHARD, Commissioner.

Arthur H. McHenry, also known as Archie H. Parks, from 1942 to the time of his accidental death, July 7, 1962, led a double marital life. The contest here is over the ownership of certain real and personal property standing in his name, and that of his first spouse, and is between his reputed second spouse, plaintiff, and his first spouse and two children as his heirs.

Plaintiff’s claim is that on March 28, 1942, she married a man who had introduced himself to her as Arthur H. McHenry (and who represented himself as being single with no children) with whom she lived as wife and husband until his death. Thereafter, plaintiff learned for the first time that the true name of her supposed husband was Archie H. Parks; that he was married to defendant, Lydia Parks; and that he was the father of defendants Zona Brown and Leonard F. Parks. During the course of her supposed marriage to McHen-ry, plaintiff alleged that her funds (some $5,000.00), which she had prior to the marriage, and all her earnings were taken by him and placed (1) in an investment account with defendant, Fred C. Schuepfer Investment and Realty Company; (2) in a 200 acre Washington County farm, the title to which was caused by McHenry to be placed in a straw party; and (3) in certain motor vehicles, machinery and other personal property which were inventoried in the estate of Archie H. Parks, deceased.

Plaintiff prayed for judgment against the Schuepfer Company for the amount of the investment account held by it (Count VII, tried to a jury); for a decree quieting title to the 200 acre farm against defendants, Lydia Parks, Zona Brown, Leonard F. Parks and Fred C. Schuepfer, and declaring that plaintiff is the owner of such farm upon the theory of a constructive trust (Counts I and II) ; and for title and possession to certain described personal property located upon the 200 acre farm also upon the theory of a constructive trust (Count V). Counts I, II and V were tried to the court simultaneously with the submission of Count VII to the jury.

The jury returned a verdict for plaintiff against defendant, Ichuepfer Company, for $8,482.40. The court decreed title to the 200 acres of land and to the personal property to be in plaintiff. Plaintiff dismissed her Counts IV and VI, and the court found against her on Count III, and these counts are not in issue here. The court also decreed defendants Zona Brown and Lydia Parks take nothing on their counterclaims and dismissed same, which defendants say is error inasmuch as they say they dismissed such counterclaims in the chambers of the court prior to submission of the case to the jury. All of the defendants appeal from the' judgment and decrees against them.

The investment account was alleged to be $8,000.00 ; the farm was appraised in the estate at $14,000.00; and the personal property was appraised in the estate at $7,601.00. The evidence showing how plaintiff was deceived and mulcted of her property by her supposed husband for over 17 years when they were living together is as follows:

Plaintiff testified that her maiden name was Ida Winheim and that she was born May 27, 1915. She first met a man who introduced himself to her as Arthur McHenry on February 6,1941, at a dance. She thereafter kept company with him from that night on. McHenry always told her that he was single and had no family, which she believed. He told her he was 9 years older than she was (but she learned after his death he was 22 years older). She was married to him on March 28, 1942, by a Justice of the Peace in Salem, Arkansas. After the marriage she continued to.use her own name on income tax papers for which she made a separate return at his request. Plaintiff and McHenry lived together as husband and wife at -various places in St. Louis (city and county) until 1959 when both retired and moved to the 200 acre farm in Washington County (near Potosí and Caledonia). During all of this time the electric meter receipts, water bills and purchases for household use were made in the name of A. H. McHenry.

During the marriage to McHenry plaintiff acquired with her own money a small confectionery or delicatessen in St. Louis for $2,200, using her U. S. Savings bonds accumulated prior to 1942. She and Mc-Henry operated the delicatessen until she sold it in May of 1949 for $5,000. McHenry took that money, plaintiff being ill at the time She later went with McHenry to talk to Paul G. Tucker about purchasing t’"' farm, and she was then introduced to Tucker as Mrs. McHenry. The farm was purchased from Tucker for $5,500 on February 1, 1950, and McHenry told plaintiff that the farm was bought in both their names, and that the title would be held in their two names. The closing of the farm purchase was done by the Fred C. Schuep-fer Realty and Investment Company, and plaintiff had no knowledge that at that time Fred C. Schuepfer or his investment company was setting up a straw party to hold title to the property in order to keep it out of her name. (The deeds referred to in evidence, and the testimony of Schuepfer, all show that title from Tucker was transferred to one Fred Herchert, who, with his wife, gave back a deed of trust on the property securing a note for $7,500 to Schuep-fer, called a “Protective Deed of Trust” customarily used in the St. Louis area when straw parties hold title to real estate. Fred Herchert and wife also gave a deed to Schuepfer in 1956 which was recorded. In 1950, the straw party, described as single, made a deed to Archie H. Parks and wife Lydia, which was held by Schuep-fer in his office safe until 1963 when he mailed it to Mr. Larry Casey, counsel for Zona Brown, the administratrix. Mr. Casey caused the 1950 deed to be recorded.) Plaintiff testified further that she had never inspected the deed from Tucker, and never authorized anyone to transfer the title to the farm from the name of Herchert to Schuepfer or to Archie Parks and Lydia Parks, his wife, and that she had no knowledge thereof.

McHenry received injuries from a tractor accident from which he died two or three days later on July 7, 1962. On the day of his death, plaintiff learned for the first time that McHenry was really Archie H. Parks and that he had a wife, Lydia Parks, and two children, Zona Brown and Leonard F. Parks, living. Subsequently she found in the tool shed on the farm a steel ammunition box which had papers in it belonging to deceased. Among them was a statement of the Fred C. Schuepfer Investment and Realty Company, “Int. from 10/15/59 to 4/15/60 at 6% on Principal Balance of $8,000.00, Interest $240.00.” On October 13, 1959, plaintiff withdrew from her separately accumulated funds in the Southern Commercial and Savings Bank, by cashier’s check, $7,020.18, payable to the Schuepfer Company, wherein it was deposited. The investment account there, according to the statement and the testimony of Schuepfer, was in the names of “Archie H. Parks or Ida Winheim.” McHenry’s name . was added to the Southern Commercial account on February 11, 1955, making it read, “Miss Ida Winheim or Arthur H. McHenry.”

On June 25, 1957, plaintiff furnished another cashier’s check to McHenry from her savings for $3,000.00 for the purchase of an automobile. Plaintiff also introduced evidence of her social security earnings from 1942 until 1959 (when she retired) showing a total of $26,148.68 earned. Her testimony was that McHenry got all of that money.

Among other papers in the ammunition box were licenses to motor vehicles: a 1957 Ford Ranchero pick-up registered in the name of A. H. McHenry, and a 1944 GMC truck registered in the name of A. H. Parks. Registration papers to a Hereford bull were in the name of A. H. McHenry. Receipts for a pump and a propane tank were in the name of A. H. McHenry, as was a farm soil test report. A purchase of a “Turbomatic” from Sears, Roebuck and Company was in the name of A. H. Parks, Rt. 1, Box 286, Potosí, Missouri, but the directions for delivery and installation thereof were to A. H. McHenry near Caledonia, Missouri. Plaintiff testified that McHenry always picked up the mail from the mail box, and had a habit of tearing off the addresses on magazines and papers received by him.

Guy McHenry testified that he was a first cousin of deceased, and had known him about 55 years. He knew his real name was Archie H. Parks and that he was living with plaintiff near Caledonia, and that Parks was going under the name of McHenry. During the time they were living together, McHenry (Parks) told him that when plaintiff was employed she gave him her checks. Guy McHenry never did say anything to plaintiff about deceased’s name being actually Parks, and Archie Parks (McHenry) knew that Guy McHenry was aware of his previous marriage and family, and Guy supposed that was the reason Archie was going under the name of McHenry.

Mr. and Mrs. Paul G. Tucker, Arthur and Willard Rieffer, Robert Crow, Guy McHen-ry, Aaron Gamble, Mr. and Mrs. Bill Warden, Donald Warden (all residing in the neighborhood of the farm) and plaintiff all testified that McHenry introduced plaintiff as his wife. They did not know Mc-Henry as Parks or that he had another wife and two children. Tucker testified that at the time they purchased the farm from him, McHenry told him the reason the closing was handled by the Schuepfer Company was that he was putting up stocks and bonds which he didn’t want to cash in and the company was advancing him the money to buy the property. Tucker did not know of the straw party. The Rieffers bought cattle from McHenry, paying by check to him, one of which was so endorsed and also by the name of A. H. Parks, whom the Rieffers did not know. During the time after 1959 when plaintiff and McHenry moved to the farm, she worked with him in improving the residence and a small tenant house, the barn, and in caring for the cattle. She also did all of the housework, cooking and gardening on the farm.

Before retirement, McHenry worked at the American Car Foundry and plaintiff testified that she tried to telephone him there under the name of A. H. McHenry and was told there was no one there by that name. When she questioned McHenry about it, he answered that he was probably out when she called, so she never investigated the matter further.

When they were operating the confectionery business, plaintiff and McHenry had a joint account in the Bank of St. Louis, wherein they accumulated money which was used to buy part of the livestock, machinery and other property which are listed in the inventory of deceased’s estate. The remainder of the property was purchased from the salary earnings of both of them. From her earnings and property which she had before or during the marriage, plaintiff testified that she had nothing.

For defendants, Charles D. Holub, Employment Manager of the American Car and Foundry Company, testified that he knew deceased as Archie H. Parks. That from 1942 through 1959, Parks earned with that company $101,275.33, and he retired in September, 1959, at the age of 66. Parks then started drawing retirement benefits of $157.00 per month plus free insurance (a $7,680.00 insurance benefit was paid to Lydia Parks, the named beneficiary in the policy).

Larry Casey, attorney for the adminis-tratrix, testified that she requested mail addressed to deceased to be delivered to him. Among these papers were magazines addressed to A. H. Parks, Route 1, Box 286, Potosí, Missouri, and an Ark-Mo Power electric bill dated February 21, 1963, addressed to A. H. Parks and Ida McHenry at the same address. Mr. Casey did not know whether the meter billing was changed after the death of deceased. The administratrix took over in July, 1962.

Fred C. Schuepfer testified that he had been in the real estate business since 1929. He met the Parks family in 1942 when they purchased a home next door to his residence. He had never known deceased to use any other name than Parks, and he had never met plaintiff. He testified to various additions and withdrawals of the investment account by deceased. In answer to interrogatories he stated under oath on November 16, 1962, that his firm had an investment account, # 480, in the name of Archie H. Parks or Ida Winheim in the amount of $8,000.00. His testimony at the trial was that, by reason of withdrawals by Parks, $5,793.88 was all that was due. The investment account apparently began in 1946, when the Parks used his company to invest the net received by them in the sale of their home, and was continued by Parks to the date of his death. Parks asked him if he could hold the title to the farm because he didn’t want to divulge it — which is common practice in real estate; and that Parks requested him to put the title in the name of Fred Herchert on February 24, 1950. In 1959, Parks entered into a loan purchase agreement with Schuepfer Company for $8,000.00, and paid for it in two checks, $7,020.18 and $979.82. Schuepfer testified that he had no knowledge of how the deed from the straw party, Herchert, to him was made or recorded in 1956, but that it was a serious error. He delivered the deed from Herchert, made in 1950 with grantees as Parks and his wife, to Casey after holding it 13 years.

Leonard F. Parks testified that his parents are Lydia E. and Archie H. Parks. He is a Colonel in the U. S. Army. While stationed in San Antonio, Texas, in 1959, Archie Parks and Lydia Parks visited him for three or four days. They did not come there together. Zona Brown testified that she is the daughter of Lydia and Archie Parks, and is administratrix of his estate. Her mother (Lydia) has lived with her since 1946, after which her father came and gave Lydia money, occasionally staying overnight. Archie H. Parks came by regularly, each year up to the time of his death, to have Lydia Parks sign the income tax returns.

Mrs. Lydia Parks, age 73, testified that she and Archie H. Parks were married November 22, 1916, and were never divorced. They lived together until 1946 when they sold their home. She then moved in with her daughter, Zona, and Archie told her he was going to live close to his work at American Car and Foundry Company. Parks gave her $60.00 a month to begin with and as time went on this was reduced to $100.00 every three months. After his retirement, Mrs. Parks got nothing from him by way of support. She never knew that her husband was living under the name of Arthur McHenry. She made inquiry of him about what he was doing and where he was spending his time, and he told her not to bother about him; that if she kept asking questions he would never come back.

No funds of Parks were found by defendants in any bank after his death.

Defendants’ first point is that the trial court erred in denying their motion to dismiss plaintiff’s petition because of her failure to file her claim against the estate of Archie Parks, deceased, which defendants say is required by § 473.367 (action considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator, and filing written notice of institution of the action in the probate court) and § 473.360 (requiring written notice of actions instituted or revived under § 473.363 or § 473.-367 to be filed within nine months from the first published notice of letters). [Statutory references are to RSMo 1959, V.A.M.S.]

The allegations of Count VII of plaintiff’s petition are to establish a constructive trust. . They are that plaintiff earned money during the cohabitation which was deposited in the Southern Commercial and Savings Bank, and in the Fred C. Schuepfer Investment and Realty Company, to which she contributed and which had been unlawfully appropriated by Archie H. Parks, also known as Arthur H. McHenry. She prayed for a decree that she is the owner of all beneficial interest in these accounts. Counts I, II and V, read together with adopted initial factual allegations of her petition, are also for the establishment of a constructive trust. Plaintiff did not plead her case upon the theory that deceased owed her money, an obligation due from his estate.

Although the parties and the trial court apparently treated Count VII (for the investment account) as an action at law, no allegations of such an action are stated. If it were an action at law, as for debt owed by deceased, defendants’ point that §§ 473.-360 and 473.367 barred the claim would be well taken because that claim was not filed in the probate court. We deem that Count VII and all other counts of the petition are ones for the enforcement of a constructive trust of property purchased and an account established from moneys procured from the plaintiff by fraud. It was therefore erroneous to submit Count VII to the jury. In such case we disregard the submission, except insofar as the verdict may be advisory. Northrip v. Burge, 255 Mo. 641, 164 S.W. 584, 590 [8, 9]; and Blood v. Sovereign Camp W.O.W., 140 Mo.App. 526, 120 S.W. 700, 704. Considering all of the evidence we make our own independent finding, in nature de novo. Civil Rule 73.01(d), V.A. M.R.; Four-Three-O-Six Duncan Corp. v. Security Trust Co., Mo., 372 S.W.2d 16, 17 [1].

The claims in all of the submitted counts of the petition are in effect that deceased had in his possession certain properties belonging to plaintiff and not belonging to him, and which were not a part of his estate and to establish a trust thereof. In addition, plaintiff asks that title be quieted to her interest in the real estate as found. In that situation jurisdiction to hear all the claims was in the circuit court, and plaintiff was not required to file a copy of her claims in the probate court within nine months from the notice of letters of administration. Orr v. St. Louis Union Trust Co., 291 Mo. 383, 236 S.W. 642, 649 [8]; Hess v. Sandner, 198 Mo.App. 636, 198 S.W. 1125, 1126, et seq.; Strumberg v. Mercantile Trust Company, Mo., 367 S.W. 2d 535, 538 [3-5]. Point I is overruled.

Point II, in part, is that the trial court erred in giving Instruction No. 2 to the jury upon Count VII. This being a suit in equity, as we have held above, the instruction has no proper place in the case and is to be disregarded. Pixlee v. Osborn, 48 Mo. 313; Baker v. Satterfield, 43 Mo.App. 591; Baker v. Payne, Mo.App., 198 S.W. 75, 76 [5]. Other portions of Point II relate to the propriety of a judgment for interest upon Count VII of the petition; and an allegation of error in failing to reduce the judgment thereon, and the sufficiency of the evidence to support the decree on Count VII.

It was clearly and unequivocally established by plaintiff that on October 13, 1959, she withdrew from her separate funds $7,020.18 for which she received a cashier’s check made payable to the Schuepfer Company, and which was deposited therein by deceased. The account was placed in the names “Miss Ida Winheim or Archie H. Parks.” [We note that such account would not create a joint tenancy to which plaintiff would be entitled by right of survivor-ship. Compare Longacre v. Knowles, Mo., 333 S.W.2d 67.] Plaintiff’s evidence did not show specifically (as is required, see 90 C.J.S. Trusts §§ 436, 437, p. 839, et seq.) that the other check, $979.82, was any of her money, and the record is silent as to its source other than that deceased had a check for that amount. Defendant Schuepfer complains that the court erred in not reducing the principal amount of this item (the verdict) to $5,793.88, which his testimony at the trial indicated was all that was due in the account by reason of withdrawals by deceased from the original $8,000.00 deposited. Interrogatories addressed to Schuepfer Company were answered by defendant Schuepfer that the account at the time of deceased’s death was $8,000.00. Apparently the jury, in its advisory capacity, rejected Schuepfer’s trial contention. The court overruled the allegation of error in the motion for new trial that the judgment against Schuepfer Company should be reduced and entered judgment upon the jury’s verdict. With respect to the weight and credibility to be accorded Schuepfer’s testimony, we defer to the jury in its advisory capacity and the court below before whom the witness testified. We remark, in passing, that it is probable that the solemn admission of the amount due ($8,000.00) in the answer to interrogatories on November 16, 1962, less than five months after deceased’s death and when Schuepfer Company had ready access to its records, is of greater weight than the trial testimony of a lesser amount due.

Schuepfer Company also complains of the allowance of interest to plaintiff upon the account ($482.40 as fixed by the jury). In this it is correct, but only because plaintiff’s evidence failed to show whether or not Schuepfer Company had in its possession any interest due on the account to the trustee, Archie H. Parks, deceased. In 90 C.J.S. Trusts § 338a, p. 583, it is said, “Where the trustee invests the trust funds, he is chargeable with the interest received, although the amount received is greater than the legal rate or the current rate of return on trust investments.” At page 584 of 90 C.J.S. (Trusts § 338a) it is said, “In the case of a constructive or implied trust, the court, proceeding on equitable principles, may compensate those losing the use of their money by allowing interest. * * * Where a husband, as his wife’s agent, uses her money in the purchase of real estate in his own name, interest is payable thereon from his estate.” (Emphasis ours.) Plaintiff may have had a claim against her trustee or his estate for interest on her funds, but such fact would not render the investment company which held the trust funds liable for interest, unless it should be shown that the company was still holding the accrued interest at the time of suit.

We rule that plaintiff is entitled to judgment from defendant Schuepfer Company on the investment account for $7,020.-18, but without interest thereon prior to the original judgment below, and that the other defendants have no interest therein by reason of a trust arising in plaintiff’s favor.

Count I is for a constructive trust upon the 200 acre farm. Plaintiff’s claim and the trial court’s decree were that she is entitled to all interest in the farm upon that theory. The evidence is convincing to us that plaintiff turned over to deceased her $5,000.00 realized by her from the sale of her delicatessen business; that this money in part was used by deceased in the purchase of the farm. Deceased fraudulently represented to plaintiff that the title to the farm would be placed in both their names, but unknown to her he procured the title to be placed in a straw party to conceal it from her. Plaintiff having furnished a part of the purchase price of the farm, $5,000.00 of the $5,500.00 paid therefor, is entitled to an interest in the farm proportionately as the amount of the price furbished by her bears to the entire price on the theory of a constructive trust because of deceased’s fraud. Davis v. Roberts, 365 Mo. 1195, 295 S.W.2d 152, 157 [10, 11]; Isenman v. Schwartz, Mo., 335 S.W.2d 112, 116 [2-7]; 90 C.J.S. Trusts § 190, p. 93; 89 C.J.S. Trusts § 122, p. 975.

Although there is evidence that both plaintiff and deceased worked and expended their funds for the improvement of the farm, there is no evidence of how much each contributed. Defendants do not plead or prove that deceased’s funds went into the improvements, and absent such evidence a setoff, charge or lien upon plaintiff’s interest in the farm could not be sustained. Plaintiff’s interest in the farm attached at the instant title passed, 89 C.J.S. Trusts § 102e, p. 950, Davis v. Roberts, supra. She is entitled to any augmentation of her interest by reason of increase in market value of the farm since the time her interest attached. 90 C.J.S. Trusts § 438, p. 848. We hold that plaintiff has clearly established her right to 194iths interest in the 200 acre farm. See the analogous constructive trust case, based upon a fraudulent marriage, Davis v. Cummins, Mo., 195 S.W. 752.

Plaintiff’s testimony was that in June, 1957, she withdrew $3,000.00 more from her savings for the purchase of an automobile (the Ford Ranchero pick-up). The title to that vehicle was placed by deceased in his own name. Plaintiff is entitled to impress a trust thereon and to have the entire title decreed to be in her name. This, because she has definitely traced her funds to the automobile.

There are two aspects of plaintiff’s case. The one is that she was able to trace her money into property acquired by deceased, as her trustee, and specifically and definitely identify that property: the farm, the investment account and the Ranchero automobile (for which she furnished $3,000.00, also from her separate savings, to purchase). These properties were distinguishable from other assets standing in deceased’s name at the time of his death. The other aspect is that the money of plaintiff and that of deceased were commingled in a joint bank account. The money in the bank account, including plaintiff’s and the earnings of plaintiff and deceased (who told his cousin Guy McHenry that he got plaintiff’s salary checks), was used to purchase the livestock, machinery and other property listed in the inventory in deceased’s estate, and the property which plaintiff’s funds purchased, and the property deceased’s funds purchased, if any, were commingled.

As we compute it, plaintiff’s money was procured from her over the years in this manner: $5,000.00 on the farm; $7,020.18 in the investment account; and $3,000.00 for the purchase of the Ranchero, totalling $15,020.18. Plaintiff’s earnings from 1942 to 1959 were $26,148.68, as established by her social security report. She had $2,200.00 in savings bonds prior to 1942. She used that money to purchase the delicatessen, and sold it in 1949 for $5,000.00. That is a total of $31,148.68 of her funds all of which was gotten by deceased. Subtracting $15,020.18 (specifically traced money) from total funds leaves $16,-128.50, which went into the other inventoried property. Plaintiff made no attempt to show what of her funds went to purchase any specific item of the commingled assets standing in the name of deceased. In this situation and under the facts of this case we hold that she was not required to perform the impossible task in making a specific identification of the changed trust funds and follow them precisely. Her testimony that her funds and deceased’s funds (commingled) were used and went into the purchase of inventoried items (likewise commingled) is sufficient to establish her interest. “Where the trustee exchanges the mingled mass for other property, the beneficiary is entitled at his option either to claim a proportionate share of the product, or to enforce an equitable lien upon it to secure his claim for reimbursement.” A.L.I., Restatement of the Law of Trusts, § 202h. See also Scott on Trusts, § 516; Bogert, Trusts and Trustees, § 923 ; 90 C.J.S. Trusts § 439b, p. 849. In this state the old rule that the beneficiary must specifically trace and identify commingled property purchased with trust funds has long been abrogated. The 1888 case of Snorgrass v. Moore, 30 Mo.App. 232, 239, cited Harrison v. Smith, 83 Mo. 210, as overruling Mills v. Post, 76 Mo. 426, and quoted National Bank v. Insurance Co., 104 U.S. 54, 26 L.Ed. 693, ‘that as long as trust property can be traced and followed, the property into which it has been converted remains subject to the trust, and if a man mixes trust funds with his own money the whole will be treated as trust property except so far as he may be able to distinguish what is his.’ ” The writer of the opinion in Snorgrass, supra, went on to say (30 Mo.App. loc. cit. 240) : “The idea I gather from these cases is, that if there be difficulty or impossibility in distinguishing or separating the money or funds, the misfortune is thrown on the party who has wrongfully mingled the property. If there is no means of separation, the beneficiary of the fund will take the entire mass till he has satisfaction.” Among subsequent Missouri cases affirming the Snorgrass rule are: Tufts v. Latshaw, 172 Mo. 359, 72 S.W. 679, 683; Orr v. St. Louis Union Trust Co., supra, loc. cit. 236 S.W. 649 [10]; Mann v. Bank of Greenfield, 329 Mo. 862, 46 S.W.2d 874, 875 [1, 2]; Moore v. First Nat. Bank, 154 Mo.App. 516, 135 S.W. 1005, 1006; Nelson v. McClean’s Estate, 236 Mo.App. 718, 161 S.W.2d 676, 678. Upon the modern doctrine of following or tracing commingled trust funds see also Evangelical Synod of North America v. Schoeneich, 143 Mo. 652, 45 S.W. 647, 649, and Pundmann v. Schoeneich, 144 Mo. 149, 45 S.W. 1112, 1114.

In this case defendants made no effort to show the purchase price of any of the inventoried property, or to show that deceased’s own funds went to purchase same or any part thereof. Plaintiff having established that $16,128.50 of her funds over the years went into the personalty on hand, to the extent of which she is entitled to enforce a constructive trust on all of the commingled property under the above cases and authority, defendants had the burden of going forward with the evidence to show what property was deceased’s own. The remaining property of deceased, as inventoried, the record being silent as to what happened to deceased’s earnings over the years, is subject to plaintiff’s trust, and she is entitled to take the entire mass of inventoried personal property until she has satisfaction. Snorgrass v. Moore, supra.

Defendants also say that the court erred in entering judgment on the counterclaims of Zona Brown, administratrix, and Lydia Parks, when at the close of the evidence and in the court’s chambers they voluntarily dismissed same. Although the record is silent as to the voluntary dismissal, the parties seem to agree that such did occur in the court’s chambers. Defendants had a right voluntarily to dismiss their counterclaims under Civil Rules 67.01 and 67.04 before submission. After dismissal there was nothing before the court as to the counterclaims and it was error to include in the judgment entries that these defendants take nothing by their counterclaims and the same are dismissed.

The judgment and decree is affirmed except for the following modifications, for the entry of which the case is remanded: The judgment against defendant Fred C. Schuepfer Investment and Realty Company is reduced to $7,020.18, upon Count VII of the petition; a decree granting plaintiff a 1%iths interest, and defendants, Zona Brown, Leonard F. Parks and Lydia Parks a Ynth interest in the real estate in question shall be entered upon Count I of the petition; and that part of the decree granting judgment against defendants, Zona Brown, administratrix, and Lydia Parks on their counterclaims shall be set aside.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Lawrence William COOLEY, Appellant.
    No. 50677.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.

      Norman H. Anderson, Atty. Gen., Thomas F. Eagleton, former Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    Morris M. Hatchett, St. Louis, for appellant.
   WELBORN, Commissioner.

The appellant, Lawrence William Cooley, was charged by indictment filed in the Circuit Court for Criminal Causes of the City of St. Louis with assault with malice aforethought with a dangerous weapon. The jury returned a verdict of guilty of assault with intent to kill and assessed the punishment of appellant at five years’ imprisonment. This appeal is from the sentence and judgment entered on the verdict.

Trial began on January 6, 1964 and verdict was returned on January 7, 1964. The transcript on appeal recites that “on January 17, 1964, the Court, by an order duly made and entered of record, granted defendant thirty days additional time from January 17, 1964 to February 17, 1964, in which to file motion for new trial.” Motion for new trial was filed on February 17, 1964.

The court’s order extending the time for filing of motion for new trial for thirty days from January 17, 1964 to February 17, 1964 was in error inasmuch as the date specified amounted to an extension of thirty-one days. Insofar as the order purported to enlarge the time for motion for new trial beyond the limits fixed by Supreme Court Rule 27.20, V.A.M.R., the order was a nullity. State v. Crocker, Mo.Sup., 335 S.W.2d 32.

Supreme Court Rule 27.20 provides that motion for new trial “shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion.” Time and time again the requirement of this rule has been held to be mandatory and the motion for new trial filed beyond forty days after the return of the verdict has been held to be a nullity. State v. Knicker, Mo.Sup., 364 S.W.2d 544; State v. Hooper, Mo.Sup., 364 S.W.2d 542; State v. Crocker, supra; State v. Kenton, Mo.Sup., 298 S.W.2d 433; State v. Ash, Mo.Sup., 286 S.W.2d 808. Time for filing being mandatory and nonwaivable by the state (State v. Brown, 339 Mo. 1014, 98 S.W.2d 777, 779 (5, 6) ), we notice the matter although it has not been raised by the state.

The motion for new trial being a nullity, it preserved nothing for review. A review of the matters of record which we are required to consider by Supreme Court Rule 28.02, V.A.M.R., reveals no error. The indictment properly charged the offense as assault with intent to kill with malice aforethought with a deadly weapon as that defined in Section 559.180 RSMo 1959, V.A.M.S. Upon formal arraignment, the appellant pleaded not guilty. Appellant was represented by an attorney at the trial and the record affirmatively shows the presence of appellant and his attorney throughout the trial.

The verdict was in proper form, the finding of guilty of assault with intent to kill in violation of Section 559.190 RSMo 1959, V.A.M.S., being authorized under the indictment charging assault with malice, Section 556.230 RSMo 1959, V.A.M.S. The period of imprisonment is within the limits prescribed by Section 559.190 for the offense of which the appellant was found guilty. Appellant was accorded allocution and judgment in proper form entered in accordance with the verdict.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM: The foregoing opinion by WELBORN, G, is adopted as the opinion of the Court.

All of the Judges concur.


text:
    Betty Dean CRAWFORD, Respondent, v. Veri Leonard McNECE, Appellant.
    No. 50949.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Briney & Welborn, Joe Welborn, James E. Spain, Bloomfield, for plaintiff-respondent.
    Powell, Jones & Ringer, Dexter, for defendant-appellant.
   PRITCHARD, Commissioner.

Plaintiff, Betty Dean Crawford, on February 24, 1963, was operating a Valiant automobile on Missouri Highway 25, and at its intersection with Stoddard County, Missouri, Route AA, at which she was stopped and intending to make a left turn onto Route A A, the Valiant was struck from the rear by a Plymouth automobile owned by defendant Carl McNece, but operated by defendant Veri Leonard McNece. At the beginning of the trial, plaintiff dismissed her case as to defendant Carl McNece without prejudice.

The trial was to a jury which returned a verdict for plaintiff for $17,500 upon which judgment was entered against defendant Veri McNece, and from which he appeals.

At the point of the collision Highway 25 runs in a generally north-south direction, and as one goes north thereon it slopes slightly downward on a gradual curve to the right. It is a concrete pavement 20 feet in width with a shoulder on the east side 11 feet wide. The east edge of the pavement also has a concrete lip and just opposite of where westbound Route AA intersects is a concrete drainage sluice into which the lip of the highway directs surface water. Route AA is of a bituminous or blacktop surface, and as it intersects Highway 25 it flares out so that its greatest width next to the pavement of Highway 25 is 80 to 100 feet. Route AA leads into Bloomfield, Missouri, to the west from Highway 25. February 24, 1963, was a clear day and the highway surface was dry.

In addition to giving the foregoing physical characteristics of the scene of the collision, Highway Patrolman Vernon Hopkins testified that he investigated the collision. He arrived there at 2:15 p. m., about an hour after it happened. He observed dirt and debris in the northbound lane of Highway 25, nine feet south from where the north edge of Route AA meets the west edge of Highway 25. There were skid marks on the concrete pavement starting at a point about 40 feet south of where the dirt and debris were and continuing north and angling toward the east. From the point of impact (location of dirt and debris) one can see to the south 800 to 1,000 feet. Trooper Hopkins made a test of the signal and brake lights on the rear of the Valiant and found that they were working, but that they were covered with dirt and road film. He could, however, see the lights through the road film. He testified further that the normal stopping distance of a 1960 Valiant automobile at a speed of 20 miles per hour is about 45 feet, and at 20 to 25 miles around 50 to 55 feet. For a 1961 Plymouth the average stopping distance at 35 miles per hour would be: excellent, 9254 feet; good, 101 feet; and fair, 120 feet, including reaction time.

Mr. and Mrs. Shelton Baker were eyewitnesses to the collision. They were approaching from the north in a pickup truck, and saw the Valiant car stopped in the northbound lane at the intersection with the front left signal light on and blinking. Just as the pickup got even with the Valiant, another car struck the Valiant in the rear, and they both saw plaintiff’s head snap back. The Bakers went on for about 54 mile to the County Farm on Highway 25, turned around there and came back. The Valiant was then on the right shoulder of Highway 25 opposite Route AA, and Mr. Baker observed that its tail lights were dirty and covered with road film.

Plaintiff testified that she was 24 years old and a legal secretary to Mr. Roger Bailey of Sikeston, Missouri, where she resided. On the day of the collision, a Sunday, she was driving alone to her parents’ home west of Bloomfield, and was driving north on Highway 25 initially at a speed of around 55 miles per hour. For several miles prior to the collision she saw a white vehicle following her. As she approached the intersection of the two highways, and when she was about 200 yards to the south thereof, she turned on her signal light for a left-hand turn. The green arrow on the panel was blinking, indicating that the signal light was operating. She gradually slowed down to about 35 miles per hour, and then slowed more— 15 to 25 miles per hour, and when she was 35 to 50 feet away from where she was going to stop to allow some southbound cars to pass her, she put on her brakes and came to a stop in the northbound lane with the front of her car about a foot or so north of the center line dividing Route AA. As she was stopped, plaintiff heard a screeching of brakes, she looked in her rear-view mirror and saw the following white car right upon her, and it hit her. Plaintiff’s neck was jerked backwards, then forward, and she was dazed and blinded. She thought her car was going out of control, and knowing there were cars coming from the north, she jerked her steering wheel to the right to avoid hitting them. Her car came to a rest on the right shoulder of the road about four or so car lengths away from the point of impact. At 20-25 miles per hour, plaintiff’s estimated speed, it would take her three or so car lengths to stop. Her vehicle was about 16 feet in length.

Defendant Veri McNece, the driver of the Plymouth car, was enroute to St Louis from Bernie, Missouri. As he passed the County Farm south of Bloomfield (about mile from the scene of the collision) he noticed plaintiff’s vehicle. He was then following it 150 to 200 yards to its south. Plaintiff’s speed was then about 35 miles per hour, as was McNece’s speed. McNece continued to trail plaintiff up to the time of the accident. After entering the city limits, the speeds of the two vehicles were slowed to about 25 miles per hour, and McNece was following plaintiff two and a half to three car lengths (about 48 feet). He testified as he was following her, all of a sudden she threw on her brakes and stopped; and as soon as he could see that plaintiff was stopped, he “slammed” on his brakes too, and tried to stop. He could not go left because a pickup truck right even with them was going south, and he could not go right because a culvert (highway surface drain) was on the right-hand side. McNece testified further that he saw no signal of any kind from plaintiff’s car.

Witness Roy Woods and his wife were riding in the back seat of the McNece Plymouth. Mr. Woods testified he saw the Valiant car stopped in the middle of the highway when the Plymouth was about three car lengths behind. He saw no stop or turn signal on the Valiant. He did not think plaintiff skidded her wheels in order to stop. He testified that when the dirt was wiped off of the rear signal lights they could be seen better; and that before they were wiped off he could barely see them from 3 to 4 feet back, but he didn’t go farther away to see how far away the lights could be seen.

Defendant’s first point is that the court should have directed a verdict for him because plaintiff was contributorily negligent as a matter of law in that her “un-contradicted evidence shows that no emergency existed requiring plaintiff to stop suddenly and that plaintiff did stop her motor vehicle suddenly on said highway without visible, timely and adequate signal to, and, in disregard of and while failing to keep a lookout for defendant’s closely following vehicle.”

Plaintiff submitted her case to the jury in Instruction No. P-1 upon the rear end doctrine of this state: “ * * * [T]he doctrine or rule of law which recognizes that if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.” Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, 362 [3]; Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, 917 [2].

The fallacy of defendant’s argument is that the evidence does not conclusively show that plaintiff stopped suddenly, or that she stopped without visible, timely or adequate signal. Defendant’s own testimony was that as plaintiff approached the intersection and when about 200 yards therefrom she slowed gradually from her previous speed of about 55 miles per hour to 35 then to 25 miles per hour. Plaintiff's testimony was that she continued to slow until she was going 15 to 25 miles per hour, and when she was 35 to 50 feet away from where she was going to stop to allow northbound vehicles to pass her, she put on her brakes and came to a stop in her proper southbound lane, at which time defendant struck her car from the rear. Although defendant testified that plaintiff stopped suddenly without visible signal, his testimony was that prior to the stop both vehicles slowed gradually to about 25 miles per hour. Although defendant testified he could not see a stop or turn light signal, and there was testimony that dirt and road film were on the tail lights, the Trooper testified he could still see through it before it was cleaned, and the signal lights were working. Under plaintiff’s evidence her movement in gradually slowing her vehicle did not convict her of contributory negligence. The space which she consumed in stopping after applying her brakes does not appear to be extraordinarily short under the evidence of normal stopping distances at her speed. There is nothing in this case to show as a matter of law that plaintiff’s use of the road in slowing and stopping was unreasonable, or that there was any fact about the following vehicle which would impose a duty on her as a matter of law to maintain a vigilant lookout to her rear. Plaintiff was entitled to assume that defendant would keep his vehicle under such control as not to interfere with her free use of the lane in which she was travelling to make a lawful and safe left turn. 60 C.J.S. Motor Vehicles § 322, p. 744. All of these questions were for the jury to determine under all of the evidence. It is only where the evidence and inferences therefrom are such that reasonable minds could reach only one conclusion that a verdict should be directed. Zumault v. Wabash Railroad Company, Mo., 302 S.W.2d 861, 862 [2]; Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277, 284 [8-10].

We have examined each of the cases cited by defendant under his Point I, and none of them is in point upon the facts of this case. Defendant’s theory that plaintiff was contributorily negligent in bringing her vehicle to a sudden and abrupt stop, and in failing to give a timely signal of her intention to stop, was submitted to the jury for a finding in defendant’s Instruction No. D-5. Instruction No. D-3 submitted these same acts as a sole cause of the collision for a finding exonerating defendant. There was no error in not directing a verdict for defendant. Point I is overruled.

Defendant says in Point II-A that plaintiff’s Instruction No. P-1, in its submission that plaintiff’s Valiant automobile was stopped in the northbound lane of the highway near the intersection “with its electric signal flashing for a left turn,” was confusing and in conflict with Instruction No. D-5, and ignored the “uncontradicted” evidence that the tail light of plaintiff’s automobile was “dirty and covered with road film.” He says that the instruction unduly and unfairly emphasized evidence that the front turn signal was visible to witness Shelton Baker meeting plaintiff’s vehicle and that plaintiff turned on her left turn signal and saw a green light on her dash. The contention is further that the instruction ignored the essential fact issue of whether an effective rear left turn signal was visible to defendant.

There was uncontradicted evidence that the tail lights on plaintiff’s Valiant were dirty and covered with road film. The testimony of Trooper Hopkins was that the lights were working, and although dirty he could see through such dirt and film. Under the facts and circumstances it was for the jury to determine if the signal lights were visible under defendant’s Instruction No. D-5. Plaintiff was not required to hypothesize this defensive matter (i. e., that the signal lights were dirty and inadequate) in her verdict directing instruction. Glowczwski v. Foster, infra.

Witness Shelton Baker did testify that he saw the front left turn signal light on plaintiff’s vehicle as he approached it. Plaintiff’s instruction did not mention the front light specifically. As it related to defendant’s negligence in colliding with the rear of plaintiff’s vehicle the reference to flashing left turn signal could only have meant the rear signal, and the jury could not have been misled. Plaintiff’s testimony that her inside green indicator was flashing is merely corroborative of the Trooper’s testimony that her rear turn signals (and stop lights) were working, but she did not submit that fact in the instruction.

Plaintiff’s Instruction No. 1 properly submitted the essential facts for finding under the above-defined rear end doctrine of this state. She was not required to submit more, and her instruction properly negatived her own contributory negligence under Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14. In Glowczwski v. Foster, Mo.App., 359 S.W.2d 406, 410 [5], it is said, “A plaintiff’s verdict directing instruction properly hypothesizing his affirmative facts and theory of recovery is not erroneous in omitting reference to or ignoring the defendant’s evidence which merely tends to disprove the plaintiff’s affirmative allegations and evidence.” Point II-A is overruled.

For his Point II-B defendant cites Doggendorf v. St. Louis Public Service Company, Mo.App., 333 S.W.2d 302, which held it was error to omit from a rear end doctrine instruction the sharply disputed fact of how long the plaintiff had been stopped. Defendant argues that such fact was sharply disputed here. Such is not the case. The only thing disputed was whether plaintiff made a gradual or a sudden stop. That fact was submitted' to the jury in Instruction No. D-5 as a defense. The time that plaintiff was stopped is not an issue.

Under Point II-C defendant again brings up his contention that plaintiff’s verdict directing Instruction No. P-1 erroneously omitted the issue of whether the signal light, if given, was timely and visible to defendant, stating that there was removed from the jury’s consideration the uncon-tradicted testimony that the signal light could not be seen until it was wiped off. That such evidence was not uncontradicted is above ruled. Defendant, however, introduces a new contention here. It is said that plaintiff’s testimony that the Valiant was owned by her husband introduced the element of a non-negligent act as being the cause of the collision, i. e., that plaintiff’s husband was responsible for the dirty and road film covered tail lights. Plaintiff was in charge of the Valiant as an operator. There was no evidence that her husband had control over the automobile. It was her responsibility to see that it was in proper functioning condition, including seeing that the rear signal lights were clean. Plaintiff made no attempt to fasten any responsibility for the condition of the automobile’s tail lights upon her husband. She does not concede that such signal lights were dirty to the extent that it was conclusive that a signal could not be seen. As stated in Glowczwski, supra, such fact was a defensive matter. Branch v. Gordon’s Transports, Inc., Mo.App., 375 S.W.2d 418, where an instruction was condemned which ignored skidding, which fact was adduced by plaintiff there, as a non-negligent cause exonerating defendant, is inapplicable. The contention is without merit. Point II-C is overruled.

Defendant claims by Point III that he is entitled to a new trial by reason of the failure of plaintiff to call as witnesses her medical doctors who saw her and treated her after the collision. This fact, says the defendant, permitted the jury to arrive at its verdict by conjecture and such verdict was not based upon substantial evidence in that the jury was permitted only a partial view of evidence bearing upon the nature and extent of plaintiff’s injury.

The evidence bearing upon this question is that on the afternoon of the collision plaintiff entered the Missouri Delta Community Hospital in Sikeston, where she remained for six days. A member of the staff of that hospital, Dr. Wilson Ferguson, M.D., saw plaintiff initially, and according to entries in her hospital record (which was admitted in evidence) he diagnosed her injuries as a sprain of the cervical muscles, and a contusion of the larynx with swelling and discoloration. On February 25, the doctor recorded that plaintiff’s neck was still tender, and she had soreness in both shoulders, and some pain along the extension of the forearm muscle. On February 27, the doctor recorded that plaintiff still had much neck pain; the larynx was much improved. Plaintiff was discharged in a wheelchair on March 1, 1963, and went home where she was in bed a week taking medication, and using a heating pad and hot towels on her neck. She went back to her secretarial work about 2(4 weeks after the collision, but did not resume her normal duties, but sat around and used a cot in the back room. Dr. Ferguson gave her a collar and traction set to use at home. In about two weeks plaintiff developed pain in her low back and her left leg and foot. She wore a sacrum belt for eight or nine months.

About two and a half weeks after the collision she went to see Dr. Robert B. Bennett, a Chiropractor. He treated her with deep heat and traction, and she continued to see him until July, 1963. Plaintiff also took treatment from the therapist in the Ferguson Clinic, consisting of hot packs and ultra-sonic heat. At the time of trial, plaintiff’s back, hip and foot still bothered her, her neck was still stiff and sore and she had difficulty sleeping. Prior to the collision plaintiff had none of these symptoms. Plaintiff also saw Dr. Frank Tull, M.D., an Orthopedist, in August or September, after Dr. Ferguson ended his treatment in July, 1963. She also saw a Dr. Otto in Cape Girardeau.

Dr. Robert B. Bennett, Chiropractor, was the only medical witness who testified. He treated plaintiff from March 12, 1963, on forty-two occasions. His examinations and findings indicated that plaintiff’s injuries were in the muscle and not in the bone, and his diagnosis was a strain in cervical area of plaintiff’s neck, soft tissue only; the sciatic nerve was involved in both legs, affecting her with pain and lack of motion due to pain. His treatment consisted of chiropractic management, a brace for the lower part of the back, heat physiotherapy, and cervical traction. Plaintiff was relieved by the treatments, but not cured. Her injuries were permanent — ■ 10% “whole man impairment,” based upon a 14% functional ability impairment of different areas of her body. In answer to a hypothetical question, Dr. Bennett testified further that in his opinion plaintiff’s injuries which he described certainly could have been caused by the automobile collision. Dr. Bennett concluded his treatment of plaintiff on July 21, 1963, but examined her again on March 17, 1964, for the purpose of testifying.

On the hearing of the motion for new trial it was conceded by counsel for plaintiff that subpoenas were issued for Doctors Tull and Ferguson, delivered to plaintiff’s counsel but were not served. It was admitted by counsel for defendant that many months before trial they received a signed authorization from plaintiff to consult with her doctors, and they did receive a copy of the medical report concerning plaintiff’s injuries.

Defendant did not have plaintiff examined medically as was his right under Civil Rule 60.01, V.A.M.R.

Considering all of the evidence upon plaintiff’s injuries—witnesses Mr. and Mrs. Baker who saw her head snap back upon the collision; plaintiff herself, her hospital record; and Dr. Bennett, whose qualification as a medical witness and to give a medical opinion stands unchallenged —we do not consider that there was unsubstantial evidence for the jury to find the nature and extent of such injuries—a cervical sprain and a low back injury all involving tissue, but with permanency to the extent testified to by Dr. Bennett. Nor was the jury required to conjecture as to the nature and extent of the injuries.

It does not appear why the issued subpoenas were not served upon Doctors Tull and Ferguson. Plaintiff, however, was not required to call them as witnesses in her behalf if she chose, as apparently she did, to run the risk of the strong presumption that their testimony would be unfavorable. Block v. Rackers, Mo., 256 S.W.2d 760, 764; Williams v. Ricklemann, Mo., 292 S.W.2d 276, 283 [12, 13]. There is no evidence in this record that plaintiff wrongfully concealed or suppressed evidence which fact would have been admissible as showing an admission that she (or her counsel) was conscious of being in the wrong and that her cause was unjust under State of Missouri ex rel. St. Louis County Transit Company v. Walsh, Mo.App., 327 S.W.2d 713, 717.

Defendant cites Spaeth v. Larkin, Mo., 325 S.W.2d 767; Whitmore v. American Ry. Express Co., 219 Mo.App. 294, 269 S.W. 654; and McClanahan v. St. Louis & S. F. R. Co., 147 Mo.App. 386, 126 S.W. 535, in support of his contention that he is entitled to a new trial because of the absence of the testimony of the two medical doctors of plaintiff. In Spaeth, an action to set aside a deed (reviewable de novo) on the ground, among others, of mental incapacity of the grantor, the court applied the unfavorable inference which attached to the failure of plaintiffs to offer themselves as witnesses on the issue of mental capacity. In Whitmore, a judgment for plaintiff was reversed and remanded because the only medical witnesses who could establish that deceased’s death was caused by being struck by a truck did not testify. In the McClanahan case, the court was unwilling to say that there was no substantial evidence to sustain the verdict, but did reverse and remand the case because plaintiff failed to call witnesses to prove that the injury was solely and directly traceable to the accident alleged. There were also conflicts between plaintiff’s conduct and known physical laws. No facts are in this case which are comparable to those of the foregoing cases. There was substantial evidence of the nature and extent of plaintiff’s injuries as stated, and there exists only the unfavorable inference against the credibility of her case, an issue for the jury. See Transamerican Freight Lines v. Monark Egg Corp., 236 Mo.App. 1047, 161 S.W.2d 687, 690 [2-4].

Furthermore, defendant had full opportunity to have plaintiff medically examined and to present thereby to the jury any testimony contrary to that of Dr. Bennett concerning the nature and extent of plaintiff’s injuries. This he did not do, and therefore he may not now be heard to complain of any weakness of plaintiff’s medical witnesses and evidence to support the verdict.

Defendant made no allegation in his motion for new trial that the verdict in itself is excessive. The allegation, “The verdict is so excessive as to indicate passion and prejudice on the part of the jury,” does not present the issue of excessiveness under the rule of uniformity of verdicts whereby a remittitur may be made. Skadal v. Brown, Mo., 351 S.W.2d 684, 689 [12-14]; Brown v. Kroger Company, Mo.App., 358 S.W.2d 429, 435 [11, 12]. There is no evidence in this case of any misconduct engendered during the course of the trial as to indicate the verdict was the result of bias and prejudice. We will not infer bias and prejudice because of the size of this verdict, although it is quite liberal under the evidence. Defendant’s allegation that the verdict is against the weight of the evidence is insufficient to raise the question of the excessiveness thereof. Johnson v. Flex-O-Lite Manufacturing Corporation, Mo., 314 S.W.2d 75, 85 [14]. Defendant’s Point III is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Glen E. CROW, Appellant.
    No. 50863.
    Supreme Court of Missouri, Division No. 2.
    March 8, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 12, 1965.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Glen E. Crow, appellant pro se.
   STOCKARD, Commissioner.

Glen Eugene Crow was found guilty by a jury of burglary, second degree, and stealing, and sentenced to imprisonment for ten years for burglary and five years for stealing, the two sentences to run concurrently. Upon appeal that judgment was reversed and the cause remanded for allocution and resentencing because allocution was held without the presence of counsel over the objection of defendant. State v. Crow, Mo., 377 S.W.2d 129.

When the case was here previously the transcript did not contain a motion for a new trial, but it did show that at the time of allocution defendant insisted that he had attempted to mail one from the jail where he was confined, and it also indicated that defendant handed to the trial court what he said was a copy of his motion. In our previous opinion we said this: “At the time of allocution when this matter was presented, the trial court should have determined the factual issue, and made a record of its findings, of whether such motion, if mailed at the time defendant asserted it was, would have been timely, and if so, whether its failure to reach the clerk was the result of any unlawful interference on the part of public officials. * * * An alternative action would have been to incorporate into the record the copy of the motion for new trial, if in fact one was presented by the defendant to the court at that time, and if, as a matter of law, each assignment of error therein was without merit, defendant could not have been prejudiced by the fact the motion was not filed, regardless of the reason.”

The transcript now shows that if a motion for new trial had been mailed by defendant at the time he claimed, in the normal course of mail service it would have been received and timely filed. After a hearing the trial court found that a motion for new trial was not filed, but it made no findings as to whether defendant did in fact attempt to mail one from the jail, and if so, whether the reason it was not received and timely filed was because of any unlawful interference on the part of public officials. The copy of the motion which defendant asserted he had handed to the trial court at the time of the first allocution could not be located. However, the trial court then granted defendant permission to file a motion for new trial within ten days, and defendant filed such a motion which he said contained all the assignments of error which were in the motion he had attempted to mail to the court from the fail. He also filed what he called a “Supplemental Motion for New Trial” which he admits contained new and other assignments of error. A hearing was held on the two motions, and each assignment of error contained therein was argued to the court by counsel, considered by the court, and overruled.

We have repeatedly held that the provisions of Supreme Court Rule 27.20, V.A.M.R. are mandatory, State v. Franklin, Mo., 379 S.W.2d 526, and that a motion for new trial must, in all events, be filed within the time therein provided. State v. Knicker, Mo., 364 S.W.2d 544; State v. Hooper, Mo., 364 S.W.2d 542; State v. Ash, Mo., 286 S.W.2d 808; State v. Crocker, Mo., 335 S.W.2d 32. The trial court was without “power” to extend the time beyond forty days after the return of the verdict for filing a motion for new trial, and the motions in this case, filed long thereafter, were a nullity, State v. Crocker, supra, and preserve nothing for appellate review. See State v. Hooper, supra. However, defendant has provided the alternative referred to in our previous opinion, and if, as a matter of law, each assignment of error in the motion he asserts he attempted to mail from the jail is without merit, defendant could not have been prejudiced by its failure to have been timely filed, regardless of the reason therefor. We shall, therefore, examine the assignments of error in that motion.

The first assignment is that the trial court erred in “overruling defendant’s personal objection to trial on March 5, 1962, upon the grounds of insufficient notice to defendant of the amendment of the information, which was amended to include allegations of prior convictions.” At the trial defendant was represented by employed counsel of his own selection. The transcript shows that on February 23, 1962, the prosecuting attorney notified appellant’s counsel by letter of his intention to amend the information to include allegations invoking the habitual criminal act, that the amendment was made on February 28 and appellant’s counsel received a copy. On March 5, the day the case was set for trial, appellant’s counsel announced that he was ready for trial. Appellant then stated that he “should have three days notice, sufficient time to prepare a defense against this criminal act.”

Supreme Court Rule 24.02, V.A. M.R., authorizes the amendment of an information at any time before verdict “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” The amendment to incorporate allegations invoking the application of the habitual criminal act did not constitute a separate or different offense, and in view of notice to appellant’s counsel of the amendment, and counsel’s announcement that he was ready for trial, no prejudice could or did occur. Defendant offered nothing to the trial court to substantiate his oral request for a continuance, made contrary to the announcement of his counsel that he was ready for trial, and whether or not the trial court abused its discretion in its ruling is to be determined from what was then presented to it. This assignment of error is of no merit.

The second assignment is that the “trial court erred in overruling defendant’s objection to use of an alleged prior felony conviction and sentence for attempting to break jail.” He asserts that this was a misdemeanor, and in that he is correct. Section 557.410, V.A.M.S. However, on the previous appeal this matter was discussed in detail, and it was there held that it was alleged in the amended information that defendant had previously been convicted and sentenced for the offense of stealing chickens in the nighttime, which is a felony and which is punishable by confinement in the penitentiary, and the allegation and proof of the previous offense of attempting to break jail, and the finding by the trial court in respect thereto was surplusage. See State v. Crow, supra, 377 S.W.2d at p. 132. This assignment of error is of no merit.

The third assignment is that the “trial court erred in overruling defendant’s objection to the prosecuting attorney’s cross-examination of defense witness, Mrs. Marsella Crow, wife of the defendant, wherein said prosecutor asked the following question, ‘Wasn’t your house raided by the police and a lot of stolen articles taken out of it.'” The transcript shows that there was no objection to this particular question, and that an objection, made after the three immediately following questions, “to any further questioning along this line” was sustained. All the relief requested by appellant was granted. No error occurred, State v. Velanti, Mo., 331 S.W.2d 542, 546, 547, and this assignment of error is without merit.

The fourth assignment is that “the trial court erred in failing to give the jury, as a matter of law of the case, an instruction setting out the applicable law to guide the jury on the matter of guilt and punishment relating to a verdict of guilty on stealing alone.” He also asserts the court was required to instruct the jury that “upon a finding of ‘Guilty of stealing and not guilty of burglary’ the value of the property being less than fifty dollars, such offense is a misdemeanor and the jury is required to fix the punishment of not more than one year in the county jail, or a fine not exceeding $1,000, or both such fine and Sentence.” Defendant argues that by reason of the above, Instruction No. 4 which submitted stealing in connection with burglary, was confusing and that it misled the jury “that stealing alone was a felony.”

We should first note that no objection whatever was made to any instruction. Instruction No. 3 submitted burglary, second degree, and hypothesized that defendant broke and entered a building where goods and things of value were kept with the intent to steal. It provided that “unless you so find the facts to be you will acquit the defendant of burglary.” Instruction No. 4, submitted stealing in conjunction with burglary, and hypothesized that defendant broke and entered the building with intent to steal and that after breaking and entering defendant did feloniously steal six dollars, and also provided that “unless you so find the facts to be, you will acquit the defendant of stealing as defined to you herein.” Contrary to the contention of defendant, stealing of six dollars, or for that matter, any amount, in conjunction with burglary is a felony. Section 560.110, V.A.M.S.; State v. Worley, Mo., 353 S.W.2d 589. It is true that if defendant had not been charged with burglary, or if being so charged and the jury had not found him guilty of burglary, the jury could have found him guilty of stealing less than $50, a misdemeanor. Section 560.161, V.A.M.S. But here the jury found the defendant guilty of the separate and distinct offense of burglary, and therefore any stealing done in conjunction therewith could not have been a misdemeanor. While it was error not to instruct on the offense of stealing less than $50, under the circumstances here where the jury found defendant guilty of the burglary, it was not and could not have been prejudicial to the defendant that the jury was not instructed on stealing less than $50.

The motion for new trial contains another point pertaining to alleged newly discovered evidence which defendant admits was not in the motion which he attempted to file by mailing it from the jail. It and the assignments in the “supplemental” motion were not timely filed, and no attempt was made to file them timely. They are a nullity and preserve nothing for appellate review. We note, however, that we have examined them pursuant to Supreme Court Rule 27.20, V.A.M.R., and each assignment is totally without merit.

Each and every assignment of error in the motion for new trial which appellant says he attempted to file is without merit, as above demonstrated, and for that reason when we give defendant the benefit of every assertion he has made, we find that he was not prejudiced by the failure of his motion for new trial to have been timely filed.

Defendant challenges the propriety of his sentence under the habitual criminal act, a matter we examine as part of the record before us, Supreme Court Rule 28.02, V.A.M.R., on the ground that while the trial court found that he had priorly been convicted of an offense punishable by imprisonment in the penitentiary, it made no finding that he had been sentenced and subsequently imprisoned, or fined, paroled or placed on probation as required by Section 556.280, V.A.M.S. Defendant does not contend that the evidence at the hearing before the trial court did not authorize such a finding, and it does clearly show sentence and subsequent imprisonment. We need not determine on this appeal whether the finding of the trial court made at the time it found the prior conviction was sufficient. After the judgment in this case was reversed and remanded for allocution, the trial court held a hearing on several motions. In one of them defendant presented this precise issue to the court, and it then made the finding of sentence and imprisonment. This was done before allocution, and before the sentence was imposed and the entry of the judgment from which this appeal is taken. As to the sufficiency of such a finding see State v. Hill, Mo., 371 S.W.2d 278; State v. Collins, Mo., 383 S.W.2d 747.

When defendant was resentenced on May 13, 1964, he was given the exact sentence he had received on April 24, 1962, but the trial court directed that he receive no credit for the period of approximately two years he had been confined in the penitentiary awaiting perfection of and final ruling on his previous appeal. Defendant now challenges the validity of this new sentence on several grounds, all of which are directed to the failure or refusal of the trial court to credit to the sentence the previous confinement in the penitentiary. We shall not set forth these various contentions, but shall and do adjudge and direct that the actual time spent by defendant in the penitentiary pursuant to the sentence and judgment dated April 24, 1962, be credited on the time to be spent in the penitentiary pursuant to the sentence and judgment dated May 13, 1964, and that a copy of the mandate of this court be transmitted to the appropriate officials of the Missouri Department of Corrections.

We find no error in those parts of the record which we examine pursuant to Supreme Court Rule 28.02, V.A.M.R.

Other than as above set forth pertaining to credit for time previously served in the penitentiary the judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.

On Motion for Rehearing or in the Alternative to Transfer to Court En Banc

PER CURIAM:

In defendant’s motion for rehearing he states that we did not rule on points numbered 12 and 13 in his brief in which he contended that he was denied a fair trial “because of personal interest and prejudice of the trial judge,” and that the trial court erred in overruling his motion to “disqualify the trial judge.” First, the motion to disqualify was not timely filed in compliance with Supreme Court Rule No. 30.12, V.A.M.R. Therefore, the motion and affidavit, assuming it to have been otherwise sufficient, did not automatically disqualify the trial judge. Second, the allegations in the affidavit of the motion did not support a finding that the judge was in anywise interested or prejudiced. The only statements therein were conclusions to the effect that the trial court had previously made some rulings asserted to have been erroneous. Assuming the rulings to have been erroneous, that fact alone does not demonstrate bias and prejudice.

Defendant also asserts that we failed to rule on his points number 11 and number IS. In point 11 he makes general assertions that he was denied due process of law because employed counsel of his own selection did not do certain things that defendant now thinks he should have done. What was or was not done by trial counsel could well have been the result of considered trial strategy, and the point is without merit. Point 15 is quite lengthy, but by it defendant asserts he was prejudiced “by the trial court’s action in sentencing him upon the basis of assumptions concerning a prior criminal record and prior criminal activity, and misinformation as to other material matters, or carelessness in that respect.” Defendant was properly charged and sentenced under the habitual criminal act, and the sentence imposed was within the statutory limits.

Points in a brief totally without merit, such as these, are automatically ruled in the order affirming the judgment. We mention them in this per curiam only because we made no general statement in the principal opinion to that effect. Other matters in the motion for rehearing are reargument of issues previously ruled.

The motion for rehearing, or in the alternative to transfer the case to the court in banc, is overruled.