author: BOHLING, Commissioner. PER CURIAM.

text:
    Enoch R. NEEDLES, Ruben N. Bergendoff, Ellis E. Paul, Theodore J. Cambern, Josef Sorkin, James P. Exum, Elmer K. Timby, and Carl L. Erb, partners, doing business as Howard, Needles, Tammen & Bergendoff, Appellants, v. KANSAS CITY, Missouri, a municipal corporation, Respondent.
    No. 49336.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Motion for Rehearing on Count One or to Transfer to Court En Banc Denied Oct. 14, 1963.

      Clyde J. Linde, Billy S. Sparks, Kansas City (Linde, Thomson, VanDyke, Fair-child & Langworthy, Kansas City, of counsel), for appellants.
    Keith Wilson, Jr., City Counselor, Herbert C. Hoffman, Associate City Counselor, Ned B. Bahr, Asst. City Counselor, Kansas City, for respondent.
   BOHLING, Commissioner.

Plaintiffs Enoch R. Needles, Ruben N. Bergendoff, Ellis E. Paul, Theodore J. Cambem, Josef Sorkin, James P. Exum, Elmer K. Timby and Carl L. Erb are partners engaged in business as consulting engineers under the name of Howard, Needles, Tammen & Bergendoff with fully staffed offices in Kansas City, Missouri, New York, New York, and elsewhere. The firm originated in Kansas City and has specialized in major bridges, turnpikes and interstate highway systems. The plaintiffs, herein referred to as “Engineers,” sued the City of Kansas City, Missouri, in three counts. They sought a judgment in Count I for a balance of $106,938.59, with interest, on a claimed fee of $654,761.34 for professional services to the City in connection with what is known as the “Broadway Bridge” project in the vicinity of the Kansas City Municipal Airport. Counts II and III of the Engineers’ petition are alternative counts, each seeking the recovery of $110,005.00 out-of-pocket expenses incurred by the Engineers in performing additional work required of them in connection with additional plans adopted during the construction of the Broadway Bridge project for expanding said facilities; Count II on the theory an emergency situation existed making the City liable and Count III on the theory that the said services fell within certain general clauses of an agreement of April 3, 1952.

The trial was to the court. The City admitted a balance of $29,753.26 was due the Engineers under Count I, and plaintiffs had judgment on said count for $29,753.26, with interest from April 2, 1957, of $8,211.85. The judgment, entered on general findings, was in favor of the City on the alternative Counts II and III. Following the overruling of their motion for new trial, plaintiffs appealed. Plaintiffs question the judgment on each count.

The issue under Count I involves the interpretation of the following portion of the contract provision (later quoted in full) covering the Engineers’ compensation; to-wit: “a fee of Five and ¾0 Per Cent (5.8%) on the total, principal amount on the bonds required to finance this project.” The Engineers contend their 5.8% should be based on $11,288,988.66, an amount obtained after deducting, as provided in the contract, from a $13,000,000 bond issue the interest on the bonds during construction and the Engineers’ compensation. The City bases the 5.8% on a lesser amount, $9,-958,207.15, which we understand is claimed to be the actual construction costs of said project shown by the City records as of February 17, 1961.

Ordinance 15,368 of Kansas City, March 10, 1952, authorized the Mayor to contract with the Engineers for services in connection with the location, construction and financing of a new bridge across the Missouri River; and a contract between the City and the Engineers was entered into April 3, 1952, for what is known of record as the Broadway Bridge project, which was to be financed by $4,500,000, principal amount, revenue bonds of the City, payable solely out of toll revenues derived from said project. (Consult RSMo 1949, §§ 234.210-234.300, V.A.M.S.) This contract provided for “a fee of six per cent (6%) on the total principal amount on the bonds required to finance this project” to the Engineers. It was a “package deal” contract and embraced unusual features in that the Engineers were to furnish, among others, financial and legal services in addition to engineering services of designing and supervising the construction work.

Further investigation and study resulted in enlarging the project for much greater user by the public. This involved, among other things, the acquisition of additional land and easements for the construction of said project and all appurtenances incident to such construction, including, for instance, increasing the traffic lanes of said bridge from three to four lanes, and the proposed revenue bonds from $4,500,000 to $13,000,000. The Engineers so recommended to the City in a Feasibility Report dated March 29, 1954, revised June 1, 1954.

Stifel, Nicolaus & Company, investment bankers of Chicago, Illinois, were the financial advisers on this project. The Feasibility Report submitted by the Engineers was prepared after consultations with the financial advisers, particularly with respect to the contingent fund stated therein.

This Feasibility Report (approved in Ordinance 18,107, July 23, 1954) carried the Engineers’ estimated costs of the project, which was copied in the Prospectus for the sale of the $13,000,000 Broadway Bridge Revenue Bonds. Said estimate of the costs read: “Construction cost of the Main River Bridge between Fifth and Broadway and the Airport Terminal Plaza $7,250,000. Airport Plaza, Richards Road and Extension with Connection to U, S. 71 $2,000,000. Toll Facilities and Equipment $200,000. Total Construction Cost $9,450,-000. Utility Relocation $150,000. Right of Way $245,000. Engineering, Fiscal Agent and Testing $650,000. Administration and Financing, including Bond Discount $300,000. Interest During Construction $1,137,500. Allowance for Contingencies $1,067,500. Total Bond Issue $13,000,000.” (Emphasis supplied.)

The record indicates the City objected to the 6'%' Engineers’ fee of the original contract on the enlarged project, and the Engineers reduced it to 5% (see “Engineering * * * $650,000” item of Feasibility Report). The City also objected to the fee being based on the item for Engineers’ fees and the interest during construction. Negotiations resulted in an agreement upon a fee of 5.8%' “on the total principal amount on the bonds required to finance this project,” after deducting the interest paid on the bonds during construction and the Engineers’ fee.

Ordinance 18,107, July 23, 1954, as above indicated, approved the Engineers’ general plan for said project and authorized the issuance of $13,000,000, principal amount, of “Broadway Bridge Revenue Bonds,” estimated to be necessary therefor.

Ordinance 18,167, August 13, 1954, authorized the execution of a “Supplemental Agreement” between the City and the Engineers amending certain provisions of their agreement of April 3, 1952. It was executed by the parties August 24, 1954.

Later, February 25, 1955, Ordinance 18,-746 directed the establishment of specified allocations of the Broadway Bridge Construction Fund, including, among others, the following: “Architectural and Engineering Services $655,000”; and “Contingencies $1,218,245.’’

The Broadway Bridge Revenue Bonds, authorized July 23, 1954, by Ordinance 18,-107, § 2, were sold October 7, 1954. Actual construction of the project started November 11, 1954. The bridge, substantially completed, was opened to traffic September 5, 1956, and a certificate of completion was issued November 14, 1957.

By February or March, 1955, contracts had been awarded or bids had been received for all major construction connected with the original project under the Supplemental Agreement and other matters had so progressed that the final costs could be generally established. This disclosed that funds were available from the sale of the bonds for additional construction, the actual costs having been less than the Engineers’ estimated costs. For instance, on Contract No. 1: “Three River Piers,” “Original Estimate, June 1954, $1,513,000.00.” “Gross Contract Amount $932,300.00.” “Final Contract Amount $821,527.98.” “Contingent Item in Contract $100,000.” The Engineers had testimony $81,250 was saved on interest during construction because the project was finished in less than the estimated time. These differences between the Engineers’ estimate and the actual costs amounted to $1,718,207.03. Said amounts were put in the contingent fund as they occurred, and the $1,067,500.00 contingent fund shown in the 1954 Feasibility Report reached $2,769,152.78, we understand, about January, 1957. The Engineers term this difference “savings.” The City terms it “overestimates,” carelessly and negligently made by the Engineers. There was testimony from R. N. Bergendoff (one of plaintiff Engineers and their principal witness who went into some detail respecting the costs of materials and the bids received) and James L. Jeffers (a vice-president of Stifel, Nicolaus & Co., investment bankers of Chicago, Illinois) that the low bids received on this project were the result of a drop in the price of steel and the fact that the contractors engaged in this type of construction were looking for jobs at that time. We find no contrary testimony of record.

The City also questions the $1,067,500 allowance for contingencies made by the Engineers in their official estimate of the costs. The evidence established that this estimate was made after consultation with the financial advisers. Mr. Jeffers and Mr. Ber-gendoff gave testimony to the effect that investors want ample funds on hand to complete a project of this nature, one financed by revenue bonds and not revenue producing until completed; that an allowance for contingencies in the estimated costs of the project is absolutely necessary for marketing the bonds and financing it, and the contingent item is generally 10 to 15% of the issue, but sometimes is higher. The allowance for contingencies on the Broadway Bridge project was approximately 11.2%' on estimated construction costs of $9,450,000. We are directed to no testimony that a contingent fund of 10 to 15% would be improper.

At a meeting on February 18, 1955, between five administrative officers of the City and four representatives of the Engineers the enlargement of the improvements north of the Missouri River was discussed. The Engineers drew detailed plans and specifications for this additional work. Out of the $1,718,207.03 “savings” or “overestimates,” $1,676,959.00 was expended for this additional construction for public user in connection with the Broadway Bridge project. The City takes the position these funds were used on the Broadway Bridge project and states its computation of the 5.8%' for the fees and expenses of the Engineers includes this $1,676,959.00. This is the work for which the Engineers now seek reimbursement of their out-of-pocket expenses in alternative Counts II and III, hereinafter discussed.

It is not disputed that as of February 15, 1961, $1,001,272.78 of the proceeds from the sale of the bonds had been used to redeem outstanding bonds; and the City states $216,189.02 was on hand after the completion of the expanded project. An Engineers’ exhibit places the “Unused Project Funds” at $1,103,042.76 as of December 17, 1958.

I. That portion of the paragraph of the Supplemental Agreement involved in Count I reads:

“The City agrees to pay and the Engineers to accept in full payment for their services and expenses performed after this agreement becomes binding upon the City for the payment of money, a fee of Five and ¾0 Per Cent (5.8%) on the total principal amount on the bonds required to finance this project, except that said fee shall not be payable upon the amount payable to the Engineers for their comprehensive services, nor upon the portion of such bond issue represented by interest during construction.” (Emphasis supplied.)

The “comprehensive services” embraced, as hereinbefore indicated, financial and legal as well as engineering services.

The Engineers claim that under the above-quoted portion of the “Supplemental Agreement" they are entitled to a fee of 5.8%' of $11,288,988.66, or $654,761.34. They place the interest on the bonds during construction at $1,056,250.00, which is admitted to be correct in the City’s answer, and their fee, as stated, at $654,761.34, a total of $1,711,011.34. Subtracting said $1,-711,011.34 from the total authorized bond issue of $13,000,000.00, the Engineers arrive at the above $11,288,988.66 figure for calculating their 5.8% fee for comprehensive services and expenses. They sue for a balance due of $106,938.59, the City having paid $547,822.75.

The City bases the Engineers’ fee of 5.-8% on $9,958,207.15, which, after excluding interest on the bonds during construction and the Engineers’ fee, is stated to be the actual expenditures on the project shown on the City’s records as of February 17, 1961. This calculation places the Engineers’ fee at $577,576.01. Having paid $547,822.75 on the fee, the City admits a balance of $29,753.26 remained due.

The parties agree that the language involved is unambiguous. The fact that the parties do not now agree upon the proper construction of their contract does not make it ambiguous. Mickelberry’s Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731[6]; Prentice v. Rowe, Mo.App., 324 S.W.2d 457[14], Accordingly, we are to give effect to the expressed intention of the parties. Hahn v. Forest Hills Construction Co., Mo.App., 334 S.W.2d 383, 385[1]. The emphasized words were copied from the Original into the Supplemental Agreement, both agreements having been prepared by the Engineers.

The parties say “total” was used in the sense of all, the whole, entire. Glaze v. Hart, 225 Mo.App. 1205, 36 S.W.2d 684, 688[9]; Webster’s Third New International Dictionary. The City says “principal” as used means main, chief, the highest where there are several elements, citing 72 C.J.S. Principal, pp. 502, 503. The word has various meanings, e. g.: “2: a matter or thing of primary importance: a main or most important element: as a (1) : a capital sum placed at interest, due as a debt, or used as a fund”. Webster, supra. As used, “principal amount” appears to be synonymous with “principal sum,” which has been held to mean: “The main sum— the amount originally paid for, and invested in, something.” 49 C.J. 1349, nn. 23, 24. Consult Simmons Hardware Co. v. City of St. Louis, Mo., 192 S.W. 394[8]. Thus, “the total principal amount on the bonds” refers to the par or face amount of the bonds; that is, $13,000,000; which amount is immediately subject to the limiting phrase “required to finance this project.” The City says the most harmonious meaning of the use of the word “require” in the contract is “need,” stressing Moran Bolt & Nut Mfg. Co. v. Caldwell, 240 Mo. 358, 366, 144 S.W. 472, 474, 475, which quotes the following from Brewster v. Brewster, 52 N.H. 52, 58: “ ‘The verb “require” is not absolutely the synonym of the verb “need,” though it is of the verb “demand.” Crabb’s Synonyms, 228. Although the verb “require” may, undoubtedly, be properly used in the sense of the verb “need," such is not its primary nor its usual signification. * * * It means * * * to “demand,” or, as Webster defines it, “to ask as of right and by authority.” ’ ” “Required” is the past tense of the verb “require,” which, among other things, means: “3a: to call for as suitable or appropriate in a particular case: need for some end or purpose * * * b: to demand as necessary or essential * * * c: to demand as a necessary help or aid: need as an essential: stand in urgent need of: need, want * * *.” Webster, supra. See 77 C.J.S. Require, p. 271. “Finance” is here used as a verb, and is considered to mean, among other things, “to provide capital for.” 36A C.J.S. pp. 410, 411. “To finance” means “1: to raise or provide funds or capital for * * * a new venture 2: to provide with necessary funds in order to achieve a desired end * * *.” Webster, supra. “To finance” a corporation “means simply to loan it money” (Hobgood v. Ehlen, 141 N.C. 344, 53 S.E. 857, 861) or to loan the company money as needed to carry on the business (State v. Walla Walla Fruit Growers, Inc., 140 Wash. 94, 98 [2], 248 P. 54, 55, 56; Fred G. Clark Co. v. E. C. Warner Co., 188 Minn. 277, 247 N.W. 225[3], 230). The Engineers’ case of Reese v. Walker, Ohio Mun., 151 N.E.2d 605, 608, considered the words “necessary financing” to mean more than the face amount of a loan and to include the interest rate, repayment rate and other terms. It was there pointed out that the parties must act in good faith and honestly in their dealings with each other.

“Business contracts must be construed with business sense as they naturally would be understood by intelligent men of affairs and in the same sense as is uniformly attached to them by the business world.” Contracts, 12 Am.Jur. § 231, p. 754, § 226. 17A C.J.S. Contracts § 294, p. 23. “It is to be presumed that the parties contracted with reference to fair, reasonable, and practical results, and the language employed by them should have a fair, reasonable, and practical construction.” Arnot v. Alexander, 44 Mo. 25, 29, 100 Am. Dec. 252; Tureman v. Altman, 361 Mo. 1220, 239 S.W.2d 304[6], 26 A.L.R.2d 729. Consult Worthington Drainage Dist. v. Elm Twp., 339 Mo. 270, 96 S.W.2d 374[1]; Liberty Storage Co. v. Kansas City Term. Warehouse Co., Mo.App., 340 S.W.2d 189, 192[4, 5].

An engineers’ estimate of the costs of construction work is contemplated to be a reasonable approximation of the costs. City of Boonville v. Rogers, 125 Mo.App. 142, 101 S.W. 1120[2]; City of Boonville ex rel. Cosgrove v. Stephens, 238 Mo. 339, 141 S.W. 1111[8].

We conclude “required to finance this project” was used in the sense of whatever was reasonably and in good faith “needed,” “wanted,” or “called for” to •finance the project.

The result might differ had the clause involved read “the total principal amount on the bonds issued to finance this project.”

The City points out that it may not pay public funds for services or expenditures on its behalf without a prior duly approved written contract.

Section 432.070, RSMo 1959 and 1949, provided: “No * * * city * * * shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless * * * such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto * * Consult Mo. Const. 1945, Art. III, § 39, fifí (3) and (4), V.A.M.S.

Kansas City Charter provisions, Article IV, are to the following effect:

Section 82 provides that no contract purporting to impose any financial obligation shall be binding upon the city “unless it be in writing and unless there is a balance, otherwise unencumbered, to the credit of the appropriation to which the same is to be charged sufficient to meet the obligation thereby incurred, and unless such contract * * * bear the certificate of the director of finance so stating * * *
Section 95 provides that all contracts or obligations made contrary to the provisions of Article IV are void; and, further, “nor shall any act or omission on the part of * * * any officer or employee * * *, contrary to the provisions of this article, waive or qualify the limitations fixed by this article, or impose upon the city any liability whatever in excess thereof.”

The provisions of § 432.070 have been considered mandatory, and not merely directory. Burger v. City of Springfield, Mo., 323 S.W.2d 777[1], We think the following from Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570, 574 [5-8], applicable:

“No contractual obligation is incurred by a Missouri city in the absence of the writing prescribed. * * * The contract, absent the prescribed writing, is void. The fact a municipality has received the benefit of a performance by the other party does not make the municipality liable either on the theory of a ratification, es-toppel or implied contract.” See authorities there cited.

Contractors are charged with notice of the restrictions imposed on the power of officials to contract on behalf of a municipality; and acts of municipal officials beyond the scope of their authority do not bind the city. Fleshner v. Kansas City, 348 Mo. 978, 156 S.W.2d 706, 707; Cook & Son v. City of Cameron, 144 Mo.App. 137, 144, 128 S.W. 269[2], 270; Fulton v. City of Lockwood, Mo., 269 S.W.2d 1 [17, 18]

II. According to the Engineers’ evidence “savings,” termed “overestimates” by the City, of $1,718,207.03 were effected and $1,676,959.00 was expended for additional construction north of the Missouri River. The Engineers performed services of design and supervision on said construction; and, as stated, seek reimbursement of their out-of-pocket expenses of $110,005.00 in connection therewith in Counts II and III on the alternative theories (a) in Count II of the existence of an emergency and (b) in Count III that said services fall within certain general clauses of the Original Agreement of April 3, 1952, remaining in effect. No authorities are cited by the Engineers in support of their position under Counts II and III. There was no ordinance or written contract with the City authorizing the reimbursement of these out-of-pocket expenses to the Engineers.

A meeting was held on February 18, 1955, between the City Manager; Directors of Public Works and Aviation; Traffic Engineer; City Engineer, and Chief Engineer, City Plan Commission, with four representatives of the Engineers for .enlarging the improvements north of the Missouri River for public user. A letter of February 19, 1955, by plaintiff Bergendoff outlined for record the decisions for additional work proposed by the Engineers at said meeting. The Engineers drew and filed with the Director of Public Works detailed plans and specifications for this additional work, embracing work at the Airport Plaza, the dualization of the road leading north from the bridge, an interchange with U. S. Highway 71, and other improvements. A four page letter of March 23, 1956, from plaintiff Bergendoff brought a reply from the City Manager on March 30, 1956, stating: “The Council has authorized the enlargement of the project to include this additional work” provided written approval of the bondholders be obtained. The approval of the bondholders was not obtained until about June 20, 1956.

(a) Whether the emergency services began “immediately after the February 18, 1955, meeting,” as the Engineers say in one place, or later, we are unable to sustain this payment to the Engineers on the ground of an emergency situation justifying the omisssion of a written contract otherwise required. Gray v. Kansas City, 239 Mo.App. 675, 194 S.W.2d 207[3], 209, defining “emergency”; Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874[15], 179 S.W.2d 108.

(b) The Engineers here stress the emphasized portions of the following from the concluding covenant of the Agreement of April 3, 1952, not “amended” by the Supplemental Agreement of August 24, 1954:

“It is also understood that all other costs of the entire completed project not included under this agreement, including rights of way, material, labor, all construction operations, contractual services of testing bureaus and of persons engaged for special services, substructure, superstructure, approaches, bridge office and accounting equipment, toll booths, and everything complete ready to begin operation as a toll bridge shall be paid for solely from the Bond Fund.”

As hereinabove stated, the Engineers agreed “to accept in full payment for their services and expenses,” performed after the agreement became binding upon the City, “a fee of Five and 8/10 Per Cent (5.8%) on the total principal amount on the bonds required to finance this project,”' subject, however, to certain stated deductions. The services performed by the Engineers on this additional work and the expenses incurred in connection therewith were of the same nature as the services-, and expenses connected with the project as originally planned. The City’s position-is that it is paying 5.8% of the costs of this $1,676,959.00 under the Supplemental Agreement upon paying the $29,753.26 admittedly due the Engineers under Count I. The Agreements of April 3, 1952, and August 24, 1954, when read together are to the effect that the expenses of the Engineers were to be met by the Engineers and, the City was not obligated to reimburse-them therefor. The Engineers’ presentation does not establish that the portion of' the agreement stressed by them imposed a legal obligation on the City to reimburse-them for these out-of-pocket expenses. Consult the provisions of the Kansas City-Charter, § 82, quoted supra.

Appellate courts review court-tried cases upon both the law and the evidence as in suits of an equitable nature^ Civil Rule 73.01(d), V.A.M.R. However, we have been unable to determine with satisfaction to ourselves the amount the Engineers should receive in reason and good faith for their services and expenses under the Supplemental Agreement on the record before us. It may be, for instance, that some or all of the $1,001,272.78 used to redeem outstanding bonds and any additional surplus of the bond fund on hand after the completion of the Broadway Bridge project was not reasonably and in good faith required to finance the project. Civil Rule 83.13(c) provides: “Unless justice requires otherwise, the court shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears.” The Engineers’ fee for “services and expenses” is to be calculated on the total principal amount of the bonds reasonably and in good faith “required to finance this project.” We are of the opinion and so rule that bond discount, excluded on the City’s exhibit in the amount of $187,330.00, was part of the amount required to finance the project; that under the evidence in this record a contingent fund of approximately 11.2 or 11.4% is properly allowable against construction costs, and, in accord with the position of the City, that the amount required to construct the additional features north of the Missouri River should be taken into consideration.

The judgment entered on Count I is reversed and said Count is remanded for further proceedings in conformity hereto. The judgments entered on Count II and Count III are affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.

All of the Judges concur.

ON RESPONDENT’S MOTION FOR REHEARING ON COUNT ONE OR, IN THE ALTERNATIVE, TO TRANSFER TO THE COURT EN BANC.

PER CURIAM.

The City, respondent, has filed a motion for rehearing on Count I or, in the alternative, to transfer to the Court en Banc.

The principal complaint in the City’s motion is that the testimony of appellants, the Engineers, witnesses Bergendoff and Jef-fers on, for instance, an allowance for contingencies as a proper item for consideration in arriving at “the total principal amount on the bonds required to finance this project” was not believed by the trial court and that said court cannot be convicted of error in so holding.

The City’s presentation on original submission based the Engineers’ compensation on the actual costs of construction, $9,958,-207.15; whereas the Engineers based their compensation on $11,288,988.66; that is, the $13,000,000 principal amount of the bonds less interest during construction and the Engineers’ compensation. The City claims the Engineers’ estimate of $13,000,000 for the costs of the project was a careless and negligent “overestimate”. The City tacitly concedes, as we read its motion for rehearing, that a reasonable allowance for contingencies and, also, for bond discount is proper in arriving at the total principal amount of bonds “required to finance this project.” It may be that the Engineers overestimated the costs of the project. The record before us is to the effect their 5.8% compensation should be based on an amount between the City’s $9,958,207.15 costs of construction and the Engineers’ $11,288,-988.66 figure, which includes allowances for contingencies and other items but, as stated, deducts interest during construction and the Engineers’ compensation from the $13,000,000 principal amount.

As indicated, the judgment on Count I was reversed and said Count was remanded for a new trial. The figures set forth in the opinion are based upon the record made on this appeal and are not to be taken as controlling upon a new trial. See Feinstein v. McGuire, Mo., 312 S.W.2d 20, 24[2, 3]; Laughlin v. Boatmen’s National Bank, 354 Mo. 467, 189 S.W.2d 974, 977 [4, 5, 7].

The City’s motion for rehearing or, in the alternative, to transfer to Court en Banc is overruled.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lewis Elbert JACKSON, Appellant.
    No. 49821.
    Supreme Court of Missouri, Division No. 2.
    Oct. 14, 1963.
    Lee Vertís Swinton, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Lewis Elbert Jackson was found guilty by a jury of robbery in the first degree. Section 560.120, RSMo 1959, V.A.M.S. After finding that the defendant had previously been convicted and sentenced for the offenses of burglary and grand larceny, as alleged in the amended information, punishment was fixed by the trial judge at imprisonment for twenty-five years. Sentence and judgment followed, and defendant has appealed to this court.

Defendant has filed no brief in this court. In this situation we review all assignments of error properly preserved in the motion for new trial. A brief summary of the facts which a jury reasonably could find from the evidence will suffice.

On May 12, 1962 William R. Raymond was assaulted and knocked down by two men, one of whom was the defendant. Raymond attempted to escape and ran into the hallway of an apartment building but defendant and his companion followed him and continued to assault him. Raymond was knocked to the floor, and by reason of the vicious beating and stomping administered by defendant and his companion, he was caused to lose an eye. Between seventy and seventy-five dollars was taken from Raymond’s person.

The motion for new trial contains three assignments. The first is, “Because the court erred in giving instruction No. 2 over the objection of the defendant.” This assignment is totally inadequate to preserve anything for appellate review under Supreme Court Rule 27.20, V.A.M.R. It fails to set forth with particularity the specific reason why it is contended the instruction is erroneous. See State v. Martin, Mo., 347 S.W.2d 680; State v. Brewer, Mo., 338 S.W.2d 863.

The second assignment is, “Because there is no evidence adduced from the witness that the defendant had any of the money allegedly taken in the robbery.” It is not known who is referred to by “the witness.” Four witnesses testified. The evidence clearly authorized a finding by the jury that defendant and another person assaulted and robbed William R. Raymond of seventy to seventy-five dollars. The following day when defendant was arrested he had only a few dollars on his person. This was a factual matter which could be argued to the jury on the issue of defendant’s guilt, but the fact that there was no proof that at the time of his arrest he had in his possession some of the money taken from Raymond does not constitute a defense as a matter of law. This assignment is without merit.

The third and last assignment is, “That the punishment assessed by the court is excessive.” The permissible punishment for the crime of which the defendant was found guilty is imprisonment in the penitentiary for a term of not less than five years. Section 560.135 RSMo 1959, V.A. M.S. The punishment imposed is within the statutory limits, and in such event an assignment in a motion for new trial only that the punishment is excessive presents nothing for appellate review. We note that the trial judge advised defendant that he had fixed the punishment at imprisonment for twenty-five years because “you are a second offender,” and because “you not only robbed this man, * * * but you or the other man — we don’t know which— beat him and stomped him and finally somebody stomped his right eye out, * * It was an act of violence and not only of robbery. You weren’t satisfied to take this man’s money, but you destroyed his-eye. You made a cripple out of him for the rest of his life.”

Pursuant to our discretionary authority to determine whether there occurred plain-error affecting substantial rights, Supreme Court Rule 27.20(c), V.A.M.R., we have carefully read and examined the entire transcript, and our examination discloses no such error. We have also examined those matters in the record for which no assignment of error is required. Supreme Court Rule 28.02, V.A.M.R. The information is in proper form and sufficient. The verdict of the jury is in proper form and is responsive to the issues, and as above noted the punishment fixed by the trial court is within the limits prescribed by law. The record shows that the defendant was arraigned and pleaded not guilty. Defendant was granted allocution, and the judgment is responsive to the issues and the verdict.

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.


author: COIL, Commissioner.

text:
    TERMINAL WAREHOUSES OF ST. JOSEPH, INC., a Corporation, Plaintiff-Appellant, v. Amelia Lynne (Phillips) REINERS, Respondent. Amelia Lynne (Phillips) REINERS, Counter-claimant-Respondent, v. TERMINAL WAREHOUSES OF ST. JOSEPH, INC., a Corporation, et al., Counterclaimant-Appellants.
    No. 49636.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.
    Motion for Rehearing or to Transfer to Court En Bane Denied Oct. 14,1963.

      Joseph M. Garvey, Brown, Douglas & Brown, R. A. Brown, St. Joseph, for appellants.
    John B. Ewing, Jr., James E. Lockwood, Kansas City (Brenner, Ewing, Lockwood & O’Neal, Kansas City, of counsel), for respondent.
   COIL, Commissioner.

Terminal Warehouses of St. Joseph, Inc., hereinafter sometimes called Terminal, brought an action against Mrs. Amelia Reiners for $2,500 for alleged damage to its truck. Mrs. Reiners (then Miss Phillips) counterclaimed against Terminal and Walter Bollman as an additional counterclaim defendant for $250,000 as damages for personal injuries she received on July 28, 1956, when the automobile she was driving came into collision with Terminal’s truck being driven by Bollman. The jury found against Terminal on its claim and for Mrs. Reiners on her counterclaim against both counterclaim defendants and fixed her damages at $110,000. Terminal and Bollman have appealed. Both claim, inter alia, that respondent failed to make a submissible case.

Respondent submitted her case on Bollman’s alleged humanitarian negligence in failing to swerve. In determining whether there was evidence to support the submitted hypothesis that after respondent came into a position of imminent peril Bollman, in the exercise of the highest degree of care, could have swerved and thereby have avoided the collision, we review the evidence from a standpoint favorable to respondent, give her the benefit of any part of appellants’ evidence favorable to her, give her the benefit of all reasonable inferences from all the evidence and disregard appellants’ evidence unfavorable to her. Fenneren v. Smith, Mo., 316 S.W.2d 602, 606 [3], So stating the evidence, a jury reasonably could have found the facts to be as stated herein.

Terminal operated a cold storage warehouse and a rendering plant. The truck Bollman was driving was owned by Terminal; it weighed 8,800 pounds, was seven feet wide, and had been specially constructed for the hauling of dead animals. Just prior to the accident in question Boll-man had picked up a dead cow and was proceeding to obtain another animal at the time of the collision. He was traveling generally south on Highway C in Clinton County and at the time of the collision was negotiating a curve traveling downhill southeastwardly. The left front of his truck came into collision with the left front of a Cadillac being driven by respondent in the opposite direction, i. e., around the curve traveling uphill north-westwardly. (For clarity we shall refer to Bollman’s right-hand side of the road as west and Mrs. Reiner’s right-hand side of the road as east, as though the road at the place in question ran north-south.) The asphalt highway was 22 feet wide and had no center line painted thereon. The west •shoulder was two feet wide. The day was clear, the highway and its shoulders were •dry, and there was no other traffic in the 'vicinity.

Respondent remembered nothing of the accident other than that as she was proceeding northwardly (she thought on her side of the road) toward the top of the hill she saw a flash.

Bollman was driving 35 miles per hour at the time he saw respondent’s car approaching at 35-40 m. p. h. Although Bollman claimed that the vehicles were then 100 feet apart, there was testimony to the effect that Bollman’s right rear outside dual tire left a continuous mark near the west edge of the road beginning at a place 48 feet north of the point of impact. At that place the tire mark went onto the shoulder and led to the rear of the truck which had come to a stop in a ditch some 24 feet south of the rear of the Cadillac which remained on the highway. The Cadillac did not move substantially from the point of impact and after the accident its left side was eight feet from the west edge of the road and 10 feet from the edge of the west shoulder. There was a 10 to 12-inch ditch immediately west of the shoulder.

The evidence supported a reasonable inference that the Cadillac was traveling in the middle of the road, probably straddling an imaginary center line, but traveling in a relatively straight line and not, as appellants contend is an established fact, at an angle toward the left front of the truck. That inference is supported by the testimony of both Bollman and a highway patrolman, who testified to the distance from the east and west edges of the road to the left side of the Cadillac. Their testimony was so stated that the jury could have found from it that the Cadillac’s left front was no closer to the west or east edge of the road than its left rear, indicating a relatively straight line of travel; and certain of the photographic exhibits picturing the automobile at the scene of the accident, while not conclusive, support the same conclusion. The main damage to the automobile was to the left front corner and along its left side which was damaged as far back as the rear wheel.

Assuming that Bollman’s reaction time was three fourths of a second, his truck at 35 m. p. h. traveled 38½ feet while he reacted. Thus he saw respondent and, the jury reasonably could have found from his actions, recognized her position of imminent peril when he was more than 86 feet from the point of impact. But be that as it may, and whatever his reaction time, the important thing as to submissibility is that the tire mark made by Bollman’s outside rear dual tire began 48 feet north of the point of impact, clearly indicating that he had more than a second (speed of 35 m. p. h. and sufficient braking to leave a tire mark for 48 feet) in which to have swerved or driven to his right. Indeed, Bollman contends that he did swerve and drive to his right as far as possible and, in fact, swerved so far that he went into the 10 to 12-inch ditch in an attempt to avoid the collision, but that he could not avoid it because respondent’s car kept coming toward him. Physical facts, however, to which the highway patrolman testified demonstrate that Bollman’s testimony was inaccurate in that respect because at the time of the impact apparently the truck was on the surface of the road and did not go onto the shoulder or into the ditch until after the collision. Consequently, it seems to us and we have no doubt that the jury was justified in finding that Bollman recognized respondent’s position of imminent peril in ample time to have swerved to or driven upon the west shoulder with safety to himself.

The close question as to submissibility as we see it is whether, even if Bollman had swerved or driven to his right as far as reasonably possible, the left front of his truck or its widest part (7 feet) would have avoided contact with the Cadillac. That question is made difficult by the facts that there is no positive evidence as to how close to the west edge of the road the right rear tire of the truck was as it approached and reached the impact point and there is no definite evidence of the extent to which the left front of the truck and car overlapped at the time of collision.

The highway patrolman said that the 48-foot tire mark up to the impact point was at the “very edge” of the roadway, but he said he did not measure the distance from the west edge of the roadway to the west side of the tire mark and that he did not know exactly how far the tire mark was west of the west side of the Cadillac. Some of Bollman’s testimony indicated that his right rear tire was about six inches from the west side of the road until he left the pavement and went into the ditch. On the other hand, if the jury believed the highway patrolman’s testimony that the driver’s side of the Cadillac was eight feet from the west edge of the road, then the jury could have reasoned further from the facts in evidence that the left side of the truck must have been more than eight feet from the west edge of the road, else a collision would not have occurred; and, further that if Bollman had driven his truck so that its right side was one foot onto the west shoulder, at least two feet would have separated the left sides of the vehicles. The jury reasonably could have so found because, as noted above, the evidence showed that the left (driver’s) side of the Cadillac was eight feet from the west edge of the road when it stopped, that its position indicated that it had been traveling in a relatively straight line, that the truck at its widest point was seven feet and, consequently, there would have been no collision had Bollman driven as far to his right as reasonably possible.

As noted above, the answer to this question is further complicated by the fact that there was no direct evidence to indicate the extent to which the left fronts of the two vehicles overlapped when they collided. As we have stated heretofore, the pictures in evidence indicate extensive damage to the Cadillac, but it is true that the severest damage is to the left front corner and along the left side, and the pictures indicate that the main damage to the truck is to the left front and along the left door of the cab: In our view it was for the jury to decide whether, under all the facts and circumstances in evidence, the overlapping of the left fronts was slight and that Bollman, by turning to his right an additional foot or foot and a half, would have avoided the collision.

It is our conclusion that it was peculiarly a matter for the jury to determine whether, in the exercise of the highest degree of care, Bollman, by swerving or driving to his right within the distance available and with reasonable safety to himself, could have avoided the collision. See Fenneren v. Smith, supra, 316 S.W.2d 607.

The liability of Terminal depended upon whether Bollman at the time of the accident was its agent or servant. That issue was submitted to the jury and was determined favorably to respondent. The first evidence pertaining to the “agency” issue was adduced by Terminal’s witness, counterclaim defendant Bollman. He testified that he and his partner, Rullman, were and had been for about ten years engaged in picking up dead animals and delivering them to Terminal’s rendering plant where they sold them at so much a pound; that they (Bollman and Rullman) would receive calls from various places and on July 28, 1956, the day of the accident, they had received calls and Bollman was to make stops at Easton and Kearney and, as heretofore noted, he had made one of the stops prior to the accident; that the truck Bollman was driving was owned by Terminal; that they were using the Terminal truck because theirs was being repaired so he (Bollman) “borrowed” the truck under an arrangement whereby he and his partner were to furnish or pay for the gas and oil at regular service station prices and, in addition, pay Terminal so much a mile, the amount to be determined by speedometer readings taken before and after the trip; that although Rullman took care of or perhaps usually took care of paying for the truck, Rullman was not present on the day in question when Boll-man obtained the truck and it was he, Bollman, who made arrangements for the truck and who agreed to pay therefor; that he paid for the gas aid oil but did not know how much he paid; that he paid for the use of the truck but did not know how much he paid, although he had a ticket at home showing payment; that he has four trucks of his own, the beds on two of which belong to Terminal and the other two belong to someone other than Terminal.

Eldon McKee, Terminal's vice-president, was respondent’s witness. He testified that Terminal operated a cold-storage warehouse and a rendering plant; that it used to own eight or nine trucks which it used to pick up dead animals but due to the advent of many independent haulers, Terminal had sold four or five of those trucks and had rented Mr. Rullman two truck beds; that Terminal would still pick up dead stock when a call came direct to the plant; that Terminal had no record which reflected the July 28th transaction with Bollman or Rullman, although ordinarily, as we understand, such a transaction would have been shown by its records; that there was no written contract with either of them but he, the witness, had an independent recollection of the July 28th transaction. Mr. McKee’s version was that he talked with Mr. Rullman (not Bollman) about the truck both before and after the accident; that Rullman called him at his (the witness’s) home and he gave Rullman authority to use the truck upon Rullman’s request to rent the truck; that he assumed the truck was to be used for the purpose of lelivering a dead animal to Terminal’s endering plant but that the truck could lave been used for any purpose; that the ruck was verbally leased to Rullman under the same terms as other of Terminal’s trucks were leased to other independent haulers, i. e., the hauler to pay his own gas and oil expense and pay the company three cents a mile for each mile the truck was driven; ordinarily the trucker would be charged mileage based on speedometer readings, but the speedometer on the truck involved in the present accident was not available because the truck was demolished; that there was no payment made for the use of the truck on July 28, 1956, because the basis for payment could not be determined. The witness testified further that neither Bollman nor Rullman had ever worked for Terminal in any capacity; that neither belonged to the union which operated in the plant; and that no social security tax was ever withheld for either.

Terminal contends that there was no substantial evidence that Bollman was its agent or servant at the time of the accident in question.

Respondent, to justify the submission of that issue, relies upon a presumption which she says arose from the fact of the ownership of the vehicle, viz'., the presumption that the driver thereof was the agent or servant of and was driving the vehicle at the time in the service of the owner. She contends that such presumption arising from admitted ownership could not be destroyed except by “positive, unequivocal and unimpeached” evidence showing that Bollman was not the agent or servant of Terminal or was not engaged in its service at the time of the accident. Respondent-proceeds from those asserted principles to the supporting argument that the testimony of Bollman and McKee which we have heretofore reviewed was contradictory and unconvincing and certainly not “positive, unequivocal and unimpeached.” Respondent points out the discrepancies and contradictions in the testimony of the two witnesses; for example, that Bollman claimed that he had paid Terminal for the use of the truck and had a ticket showing such payment, but Mr. McKee said no payment had been made because a subsequent speedometer reading could not be obtained, despite the fact, says respondent, that pictures of the truck introduced in evidence clearly show that there was not sufficient damage to the cab of the truck to have damaged the speedometer and certainly the truck was not demolished as Mr. McKee stated; that Bollman testified that he had borrowed the truck, whereas McKee stated that he had leased the truck to Rull-man. It is also pointed out that in Terminal’s original petition to recover for damage to its truck, the allegation was that its truck was “being then and there driven by Walter W. Bollman” without any allegation as to Terminal’s having leased it or without any other description of Bollman’s status; that there was no written evidence pertaining to any rental of the truck on the day of the accident; that Bollman said he paid for the gas and oil used, and Terminal denied that anything was paid therefor; that Rullman in his answer (the case was dismissed as to Rullman) denied that Bollman was his agent or employee and that Rullman did not appear as a witness in this case.

Respondent concludes from all the foregoing that the contradictory and evasive testimony adduced on the question of agency did not destroy the presumption of agency and thus there was a submissible issue as to Bollman’s agency. We are unable to agree. We are of the view, for the reasons which will appear, that there was no substantial evidence that Bollman was Terminal’s agent or servant at the time of the accident and that consequently the trial court erred in submitting the issue of Terminal’s liability.

We shall assume, as seems to be indicated in some of the cases, that proof of the ownership of a vehicle is sufficient to raise a presumption that the vehicle was being operated at a given time by the servant or agent of the owner and that such agen'- or servant was then acting in the scope of his agency or employment. See Rockwell v. Standard Stamping Co., 210 Mo.App. 168, 241 S.W. 979; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717, 723; Sowers v. Howard, 346 Mo. 10, 139 S.W.2d 897, 902 [4,5], (Such a presumption, however, differs from and should be distinguished from the one usually discussed in the cases, i. e., that upon proof that a certain employer owned a certain vehicle which was being driven at the time in question by one of his regular employees, a presumption arises that such employee was driving the vehicle in the service of his employer. See, for example, Rosser v. Standard Milling Co., Mo., 312 S.W.2d 106, 111 [6] and cases there cited.) Assuming, however, as noted above, that a presumption of agency arises from ownership alone and applying to that presumption the language of some of the cases dealing with the presumption arising from both ownership and the fact that the vehicle was being driven by a regular employee of the owner, it is true that some of the cases did hold, as contended by respondent, that the presumption having once arisen remained in the case unless destroyed by positive, unequivocal and unimpeached evidence. See, for example, Staley v. Lawler, 224 Mo.App. 884, 27 S.W.2d 1039. But this court, in State ex rel. Steinbruegge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802, made it clear that any presumption of the agency of the operator of a vehicle arising from proof of the ownership of that vehicle or arising from proof of ownership coupled with proof that the operator was then a regular employee of the owner, disappeared upon the adduction of substantial evidence on the issue of agency. That has been the well-established rule since that time and is in accord with the oft-expressed view of this court that a presumption is a rule of law (unless it is a conclusive presumption, i. e., a rule of substantive law) which puts the burden of producing some substantial evidence on the party presumed against; but that when substantial evidence is adduced, the presumption disappears and the jury receives the issue free of any presumption. Of course, the facts which gave rise to the presumption in the first place remain in the case and those facts, as well as the facts to the contrary, are for the jury. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 139 [1-4].

(It is true that in Rosser v. Standard Milling Co., supra, as well as in some other cases, we have stated with reference to such presumptions that the question was whether there was “sufficient substantial evidence” to destroy or to overcome the procedural presumption. But, of course, when substantial evidence on the question of agency is adduced, the presumption is gone and no longer exists; so that it is not accurate to say that the issue is whether certain evidence is sufficient to overcome or destroy a presumption which no longer exists. If the evidence adduced is not “substantial evidence,” the presumption, of course, remains. An examination of the Rosser case, however, at 312 S.W.2d 112 [7, 8], clearly indicates that the court used the language that the evidence adduced (although substantial) was “not sufficient to destroy the presumption” to express the idea that the facts upon which the original presumption was based (ownership coupled with the general employment of the driver) were sufficient under the circumstances of that case to constitute substantial evidence of agency and thus it was for the jury to say whether the employee-driver was at the time of the accident acting within the scope of his employment.)

This court has held that substantial evidence “is evidence which, if true, has probative force upon the issues, i. e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced. State v. Miller, Mo.Sup., 202 S.W.2d 887, 889; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739, 752; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 51, 52.” Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 820 [5,6].

Applying the principles heretofore stated to the facts of the present case, it is apparent that inasmuch as we properly may not rule as a matter of law that the probative force of the testimony of Bollman and McKee on the issue of Bollman’s agency was totally destroyed by reason of the noted contradictions and discrepancies appearing therein, their testimony, despite those alleged contradictions and discrepancies in and the alleged evasiveness of that testimony, had probative force upon the issue of Bollman’s agency and, consequently, constituted substantial evidence. Collins v. Division of Welfare, supra.

It follows that the presumption of Boll-man’s agency disappeared upon the adduction of that substantial evidence but, as noted above, the facts which originally gave rise to that presumption remained. In this case, the only fact which gave rise to the presumption of Bollman’s agency was that Terminal owned the truck involved in the accident. That fact, standing alone, could not be substantial evidence that Boll-man was the agent or servant of Terminal or that he was acting within the scope of his employment at the time of the accident. It is true, as respondent points out, that admittedly Bollman was on a mission which would result in a dead animal being delivered to Terminal to be rendered in Terminal’s plant. That fact, however, even when considered with the fact of ownership of the truck does not support a reasonable inference that Bollman was Terminal’s agent. Nor may we say that Bollman’s and McKee’s testimony, considered separately or as a whole, supported any inference of Bollman’s agency. (Other cases relied on by respondent, such as State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, 287 Mo. 139, 229 S.W. 1059, and Herrin v. Stroh Bros. Delivery Co., Mo.App., 263 S.W. 871, 875 [6], did not rest upon a “mere presumption arising out of the ownership” but upon substantial evidence and reasonable inferences therefrom.)

The burden was upon respondent to prove Bollman’s agency and while agency may be implied from the facts in evidence in a given case, no reasonable construction of the facts here supports an inference of agency. Mere suspicion that one may have been another’s agent at a time in question is not enough. Pashalian v. Big-4 Chevrolet Co., Mo.App., 348 S.W.2d 628, 632 [2-4], In our view, respondent did not make a submissible case on the issue of Bollmaris agency and the trial court should have directed a verdict for Terminal.

Our ruling above, that a verdict should have been directed for Terminal, makes it unnecessary to consider other points briefed having to do only with Terminal.

We decline the invitation in point V of appellants’ brief to furnish an advisory opinion with respect to the proper scope of cross-examination under the stated circumstances in view of appellants’ concession that the point is not vital and in view of the record which demonstrates that there was no undue curtailment of appellants’ counsel’s cross-examination.

Appellants contend the trial court erred in overruling their objections to allegedly improper jury argument made by respondent’s counsel. The only new-trial assignment in appellants’ joint motion for new trial pertaining to jury argument deals with counsel’s argument as to “the degree of care required of various parties to the lawsuit.” The portion of the record referred to in the brief shows the following:

“MR. SIMMONS: * * * We want people to be very careful when they are on the roads, and they are under the same duty to be very careful toward others on the roads. And we made another agreement in the very beginning, that a person should exercise every opportunity to avoid injuring another person.
“MR. BROWN: I object to that statement. That is not the law, and it is an improper argument. An automobile driver must use the highest degree of care.
“THE COURT: The Court instructed the jury on that particularly, that particular point as I recall. The Jury will be governed by the Court’s Instructions and apply them accordingly.
“MR. SIMMONS: To finish my statement, exercise every care if he can do so with safety to himself, and we agreed that was fair. Now, I want to talk about this law in regard to Mrs. Reiners counterclaim. This law, as every other law, is not complicated, it is what is right and what is wrong, and what is fair I think. If a person is driving along a highway and has the opportunity without hurting themselves, to avoid hurting someone else, they ought to do so.
“MR. BROWN: I object to that. That is not the law. It is the exercise of the highest degree of care. I object to the argument and ask that it be stricken and the jury instructed.
“MR. SIMMONS: I said he ought to do so, and I object to Mr. Brown continually interrupting. I said he ought to do so. I ask that Mr. Brown be reprimanded for this type of conduct.
“THE COURT: The Jury has been instructed on the law governing this case.
“MR. BROWN: I must object to the insufficiency of the ruling and must request an absolute ruling. If I am not right maybe I deserve to be overruled, but—
“THE COURT: (Interrupting) Then you are overruled. The Court instructed on the law of the case.”

The foregoing quoted portion of the record effectively demonstrates that there was nothing in the statements of respondent’s counsel, considering those statements as a whole, which indicated or tended to indicate to the jury that the degree of care a motorist must exercise was anything other than the highest degree of care. Under those circumstances, no purpose would be served in examining the question as to whether and, if so, when certain suggested general statements by a trial judge, such as “the jury will remember the evidence” or “the jury will be governed by the court’s instructions” do or do not constitute proper or sufficient “rulings.”

The judgment as to Walter W. Bollman is affirmed.

The judgment as to Terminal Warehouses of St. Joseph, Inc., a corporation, is reversed.

HOUSER, C., concurs.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Arthur BURRINGTON, Appellant.
    No. 49850.
    Supreme Court of Missouri, Division No. 2.
    Oct. 14, 1963.
    Richart, Titus & Martin, Joplin, for appellant.

      Thomas F. Eagleton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

On April 22, 1941, Arthur Burrington was convicted of robbery in the first degree and sentenced to IS years' imprisonment. On August 1, 1962, under rule 27.26, V.A.M.R. he filed a motion to vacate the sentence and judgment alleging as grounds that in his April 1941 trial his constitutional rights had been infringed in two respects:, (1) that he was denied the “effective assistance of counsel” in that his court appointed attorney, also one of his lawyers in this proceeding, was appointed to represent him on April 19, 1941, that “knowledge of such appointment did not come to said attorney until 9:00 a. m. April 21, 1941” after the case was set for trial and “said attorney was allowed only until April 22, 1941, the following day, to prepare for trial” and (2) that the information upon which he was tried and convicted was insufficient to charge the offense of robbery in the first degree in that it “failed to charge that the offense was committed either by violence to the person of the person robbed, or by putting the person robbed in fear of some immediate injury to his person.” Upon these allegations under this proceeding to vacate the judgment there was a hearing before the Circuit Court of Jasper County, the county in which Burrington was tried in 1941, he was represented by counsel procured by him, a supporting deposition from a witness in Alaska was filed and at the conclusion of the hearing “by consent the said motion is taken up, and after being seen, heard and fully understood by the court the same is overruled.”

There is however an insuperable obstacle to this court’s consideration of either of these claims. Appellant’s counsel does not claim that either of these matters is shown or demonstrable upon the transcript filed in this court. On the contrary, appellant’s brief says “Before proceeding with Statement of Facts, Points and Authorities, * * * Counsel respectfully begs leave to point out to the Court certain points in which the Transcript differs in material matters from what Counsel’s file shows and Counsel’s understanding of the material facts; keeping in mind that this brief is being written a distance of some 200 miles or more from Joplin, where the trial involved took place, and without access to the original file in the office of the Circuit Clerk of Jasper County.” Counsel then attaches to their brief two papers designated as “Exhibit A” and "Exhibit B” and "(appellant prays this Court to consider the foregoing matters, in connection with the Exhibits attached to this Brief, and to make such order correcting said errors as' this Court shall deem proper.” The insuperable obstacle to all these claims and this court’s consideration of them is that after the hearing of the motion and after the entry of the indicated judgment, and after the appellant was allowed to appeal as a poor person, the official court reporter prepared a certified transcript and on March 13, 1963, that transcript was formally approved by the prosecuting attorney of Jasper County and by appellant’s counsel and was duly filed in this court on March 15, 1963. There is then on file in this court an official transcript agreed to by the parties, and there was no attempt to have it corrected and approved by the trial court. Sup.Ct. Rule 82.12(c).

And while the review of an appeal from an order denying a motion to vacate is de novo (Sup.Ct. Rule 28.05), the transcript agreed to by the parties and filed in this court contains the information, defendant’s arraignment and plea, his presence and that of his counsel throughout the trial, the verdict, allocution and judgment. Sup.Ct. Rule 28.08. The consequence is that of necessity the appeal will be disposed of upon the solemnly agreed to and officially filed transcript. State v. Thompson (Mo.) 324 S.W.2d 133. Matters contained in appellant’s brief or elsewhere not incorporated in or made a part of the officially approved transcript may not be considered hy this court. State v. Deckard, (Mo.) 354 S.W.2d 886; State v. Richardson, (Mo.) 315 S.W.2d 139; State v. Hite, (Mo.) 298 S.W.2d 411. In these circumstances there is no basis in fact for the appellant’s asserted reasons for vacating the 1941 sentence and judgment. State v. Marlin, (Mo.) 177 S.W.2d 485. Of course, in robbery in the first degree violence to the person or putting in fear of some immediate injury is essential (RSMo 1959, Sec. 560.-120, V.A.M.S.; State v. Howerton, 59 Mo. 91) but the information in the officially agreed to transcript alleges in this regard that Burrington “with a dangerous and deadly weapon, to wit, a revolver, and against the will of the said LeRoy Worley, then and there by force and violence to the person of the said LeRoy Worley, feloni-ously did rob, steal, take and carry away” money and property of the value of $20 and is therefore not void for failure to charge an offense. State v. Herron, (Mo.) 349 S.W.2d 936. And of course a defendant’s constitutional rights may be infringed because of failure to grant a continuance or by reason of denying him the right to the “effective assistance of counsel.” State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595; State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843. But upon the officially agreed to transcript there was no application for a continuance, the parties announced ready for trial, there was no request for a delay and there was no claim that counsel was unprepared. The deposition of the witness from Alaska reveals that there may have been some reason for the appellant’s willingness to proceed to trial on March 22, 1941, namely the availability on that day of his friend and transient vagrant Kiteley as a witness. In any event, there is no basis in the official transcript for the defendant’s complaint that he was denied the effective assistance of counsel. State v. Stucker, 352 Mo. 1056, 180 S.W.2d 719; State ex rel Stewart v. Blair (& Smith), 357 Mo. 287, 208 S.W.2d 268.

Since under the officially certified and agreed to transcript the appellant is unable to factually support or demonstrate his claims the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.-

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Phillip Martin TIERNEY, Appellant.
    No. 49454.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.

      Abe J. Garland, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Allen J. Roth, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   WELBORN, Commissioner.

Phillip Martin Tierney appeals from a judgment of conviction entered upon a jury’s verdict finding him guilty of burglary in the second degree. Section 560.070, RSMo 1959, V.A.M.S. He was charged under the habitual criminal act. The trial court found that he had been previously convicted of two felonies and assessed his punishment at five years in the custody of the Department of Corrections.

No brief has been filed on behalf of the appellant in this court. We will, therefore, consider the assignments of error in his motion for new trial. The motion contains eight assignments of error. The first five are as follows:

“1. The verdict is contrary to the law.
“2. The verdict is contrary to the evidence.
“3. The verdict is contrary to the weight of the evidence.
“4. The Court misdirected the jury in material matters of law.
“5. The Court failed to instruct the jury upon all questions of law necessary for their guidance.”

None of these assignments is sufficient to preserve anything for review by this court. Rule 27.20, V.A.M.R.; State v. Washington, Mo.Sup., 364 S.W.2d 572; State v. Jonas, Mo.Sup., 260 S.W.2d 3; State v. Hadley, Mo.Sup., 364 S.W.2d 514.

The sixth and seventh assignments relate to the sufficiency of the evidence to sustain the conviction. Assignment 6 charges that the evidence fails to support the charge that the appellant “forcibly did break and enter the premises numbered 5915 Easton Avenue, St. Louis, Missouri.” Assignment 7 charges that the evidence shows that the appellant could not have entered and did not enter the premises in question. Therefore, we will consider the evidence offered by the State. (No evidence was presented by the defendant.)

Harry Friedman owned a pawnshop at 5915 Easton Avenue in the City of St. Louis. His business was conducted under the trade name, “Cross-Town Loan Company.” The entrance to the place of business was recessed from the sidewalk and from the front of the building. Along either side of the entry-way was a plate glass window. When Friedman closed his place of business on the evening of August 11, 1961, various items of merchandise, including rings, musical instruments, radios and medals, were displayed behind the plate glass windows in the entry-way.

At approximately 3:25 A.M., on the morning of August 12, 1961, Officer Leo Seithel of the St. Louis Metropolitan Police Department was walking his beat in the 5900 block of Easton Avenue. When he was in the vicinity of No. 5910 Easton Avenue, he observed an old model automobile proceeding slowly eastward on Easton Avenue. The driver of the vehicle made a left turn at Hamilton Avenue and parked the vehicle a short distance north of Easton. Two men got out of the car. One, whom the officer later identified as the appellant, was carrying a garbage can. The appellant walked across Hamilton to the north side of Easton and proceeded to the Cross-Town Loan Company. Upon reaching the location of the Cross-Town Loan Company, he placed the can down about two feet from the entrance, came to the front of the store and looked up and down Easton Avenue. Officer Seithel stepped behind a lamp post and observed the appellant. Appellant then stepped inside the entrance-way two or three feet and threw the garbage can through the plate glass window along the west side of the entrance-way, shattering the window. Officer Seithel, who had continued to observe appellant’s actions, started to cross the street and stepped from the curb just as the garbage can was thrown through the window. He testified that the appellant reached through the broken window and “grabbed” the articles in the window. When near the center of Easton Avenue, which the officer described as forty to fifty feet wide, Officer Seithel drew his gun and ordered the appellant to raise his hands. Appellant did so and the officer placed him under arrest.

Upon being questioned at the scene, the appellant stated that he would not have done what he did had he not been drinking. Both Officer Seithel and Officer Mas-trantuono who reached the scene shortly thereafter and examined the appellant stated that, although appellant appeared to have been drinking, he was not intoxicated.

The evidence presented is sufficient to establish the requisite elements of breaking and entering in the crime of burglary in the second degree. The testimony of the officer who witnessed the appellant’s actions at the scene clearly showed the breaking. He further testified that the appellant reached through the broken window and grabbed articles on display there. The scene was illuminated by an electric street light, which, according to the officer, permitted him to observe the appellant’s actions and to see him put his hands inside the broken window and start grabbing the objects there.

We have in recent cases pointed out that, to establish the element of entering in burglary, any entry, however slight, by any part of the body is sufficient. State v. Pigques, Mo.Sup., 310 S.W.2d 942, 945; State v. Whitaker, Mo.Sup., 275 S.W.2d 316, 319. See also 9 Am.Jur., Burglary, Section 16, page 249; 12 C.J.S. Burglary § 10, page 674.

The appellant here, upon breaking the glass window, achieved access to the contents of the building by placing his hands within the interior of the building. He was then able to “grab” the articles on display in the window, and was in a position to effect his felonious design. To require the further entry of any particular portion of his body or all of it would be unwarranted.

Mr. Friedman testified that he found no merchandise missing from the display after the window had been broken. However, the fact that no property was taken does not preclude the completed offense of burglary. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273. Certainly the circumstances surrounding the appellant’s activities were such that the jury could find that his breaking and the entry made were with the intent to steal the merchandise on display. State v. Whitaker, Mo.Sup., 275 S.W.2d 316, 319.

In its instruction the court defined the term “entered” as any entry, however slight, by any part of the body. This is a correct statement of the law. The jury obviously believed the testimony of the police officer that the appellant had placed his hands through the broken window and inside the display area of the window. The evidence supports such finding.

In his assignment 8 in his motion for new trial, the appellant objects to Instruction No. 1 which was given by the court. Instruction No. 1 contained the following sentence: “All persons are equally guilty who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly is the act of all and of each one so acting.” It also authorized the finding of guilt in the event that the jury found that the defendant “either acting alone or jointly with another” did feloni-ously break and enter. The objection to this instruction is that there was no evidence that any other person acted with the defendant in the commission of the crime. Further objection is made on the grounds that the instruction permits a verdict of guilt if the jury should find that the defendant acted either alone or jointly with another.

There was, however, evidence of joint action in this offense. Two persons were in the automobile in which the appellant arrived at the scene of the crime. Both of the occupants of the vehicle got out of the car. There was also evidence that, after the appellant had been taken to the police station, Officer Seithel returned to the scene of the offense and placed under arrest a second individual whom he identified as the person who got out of the car with the appellant. This evidence is sufficient to show joint action and to authorize the instruction which was given. State v. Price, Mo.Sup., 362 S.W.2d 608, 611. As to the instruction permitting a finding of guilt on finding that appellant acted either jointly or alone, this is a proper statement of law and we find no error in its inclusion in the instruction in this case. State v. Price, supra.

The record matters which we are required to review have been examined and no error has been found in them.

The judgment of the trial court is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Joseph Ward ANDREWS, Appellant.
    No. 49426.
    Supreme Court of Missouri, Division No. 2.
    Oct. 14, 1963.

      No attorney for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, George D. Chopin, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   STOCKARD, Commissioner.

Joseph Ward Andrews was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon. Section 560.120 RSMo 1959, V.A.M.S. After finding that the defendant had previously been convicted and sentenced for the felony of assault with intent to rob and also for the felony of grand larceny, as alleged in the information, punishment was fixed by the trial judge at life imprisonment. See Section 560.135, RSMo 1959, V.A.M.S. Sentence and judgment followed, and defendant has appealed.

Defendant has filed no brief in this court. In this situation this court will review the assignments of error properly preserved in the motion for new trial. State v. Parks, Mo., 331 S.W.2d 547. The first two assignments are that the trial court erred in denying defendant’s motions for judgment of acquittal filed at the close of the state’s case and at the close of all the evidence. Defendant offered no evidence, but the record shows that he twice made the identical motion for judgment of acquittal at the close of the state’s evidence. The resulting question is whether the state made a submissible case, and in ruling this question we consider all the evidence, and the reasonable inferences therefrom, from a standpoint favorable to the state. When so considered a jury reasonably could find the following facts and circumstances.

At nine o’clock in the morning of September 1, 1961, appellant and Charles Gar-ton entered the Farley State Bank in Farley, Missouri. Appellant took a revolver from his shirt, pointed it at those present including Mr. James W. Farley, executive vice president of the bank, and announced that “this is a hold up, everybody do what you are told and nobody will get hurt.” All the persons present except Mr. Mike Jaro-witz, the cashier, were directed to go to the directors’ room. Charles Garton then directed Mike Jarowitz to open the vault and to put currency in a bag which Garton produced, and to give to Garton a money bag containing 647 silver dollars. Jarowitz was then required to enter the directors’ room with the others, and appellant and Garton ran from the bank, got into an automobile and drove off. The Reverend Mr. George Zunker, a Lutheran minister who was standing nearby, wrote down the license number of the automobile. The amount of money taken from the bank in the robbery was $13,613.00.

Jack Streater, the driver of the “getaway” automobile used in the robbery, testified for the state. The substance of his testimony was that he, appellant and Garton drove from Kansas City to Farley, Missouri, and appellant and Garton entered the Farley State Bank. After Streater turned the automobile around, appellant and Garton came out of the bank, and appellant had some money and a gun in his hands. He drove “out in the country” where appellant and Garton got out of the automobile and Streater then drove to his farm. That evening when Streater picked up appellant and Garton they told him that they had hidden the silver dollars in a hollow tree. They then returned to Kansas City where the money was divided, and Streater’s share was $4,100. He was to divide the silver with appellant at a later time. Appellant gave Streater $3,000 of his share to hide for him, and the next day when appellant went to Streater’s farm, Streater returned the $3,000 to him and gave him a bucket in which to hide the money. After Streater was arrested he went with some state troopers and located the hollow tree, and they then found a bag containing a shotgun, a revolver, a sack with 637 silver dollars in it, some shotgun shells, ten loose shells and three hats. In Streater’s automobile when he was arrested the police found $2,330, and the serial numbers on a “sampling” of the bills were the same as the numbers on bills received on June 2, 1961, from the Federal Reserve Bank in Kansas City, Missouri.

There is no question, in view of the above facts, that a jury was authorized to find that appellant was guilty of robbery in the first degree by means of a dangerous and deadly weapon. See State v. Ray, Mo., 354 S.W.2d 840; State v. Martin, Mo., 346 S.W.2d 71; State v. Griffin, Mo., 339 S.W.2d 803, certiorari denied 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849. However, in each of the two motions for judgment of acquittal, appellant asserted that while the information charged that he robbed James W. Farley, the evidence showed that Mike Jarowitz signed for the money, was in control of it, and therefore it was from Jaro-witz and not Farley that the money was taken.

Mr. Jarowitz testified that he, as cashier, was “responsible for the money.” However, all the employees took money from the vault and placed it in the tellers’ cages. All employees worked in each teller cage when needed, and the money was not under the exclusive care or custody of any one person. Mr. Farley was the executive vice president of the bank and all the employees including Mr. Jarowitz, were under his “direct supervision and control.” Mr. Farley accepted the money for the bank when it was received from the Federal Reserve Bank. As the executive officer all the money in the bank was under his custody, and his custody and control were exercised through the various employees, including Mr. Jarowitz. The evidence establishes that by reason of the use by appellant of a dangerous and deadly weapon Mr. Farley was placed in fear of immediate injury to his person, and that money in his care and custody was taken therefrom by appellant. The proof did not vary from the allegations of the indictment but conformed thereto. See State v. Pope, 338 Mo. 919, 92 S.W.2d 904; State v. Davis, Mo., 58 S.W.2d 305. The first two assignments are without merit.

Assignments of error numbered 3 and 8 are totally insufficient to preserve anything for appellate review under Supreme Court Rule 27.20, V.A.M.R. Those assignments, with authority for holding them to be insufficient, are as follows: “3. That the verdict is contrary to the weight of the evidence when taken as a whole,” State v. Pruett, Mo., 342 S.W.2d 943, and “8. That the court erred in granting the instructions offered by the state over defendant’s objections for the reason that the instructions were vague, ambiguous, redundant and failed to properly state the law of the case.” State v. Pinkerman, Mo., 349 S.W.2d 951, 952.

Assignments of error numbered 4 and 7 are as follows: “4. That the verdict is not supported by substantial credible evidence,” and “7. That the state failed to prove all the elements of the offense beyond a reasonable doubt as required by law.” Insofar as these two assignments may be considered to challenge the sufficiency of the evidence, that question has been previously ruled by our holding concerning the first two' assignments of error. As to any other issue these assignments are insufficient under Supreme Court Rule 27.20, V.A.M.R., to present any issue for appellate review.

Assignment of error numbered 5 is that the trial court erred in failing to grant appellant’s motion to quash the jury panel “for the reason that no women were on the panel in violation of defendant’s constitutional rights.” There is no provision in the statutes or in the constitution requiring that women be called on every jury panel. The constitution even grants a woman the option to be exempted from serving on a jury if she chooses. Article I, Section 22(b), Constitution of Missouri. “An ‘impartial jury of the county’ is the constitutional right expressly granted an accused in a criminal prosecution. * * * There is nothing in the constitution or statutes which requires an accused, man or woman, to be tried by a jrtry composed of both men and women, or now of men only, or of women only, or of any definite proportion of the two sexes. While an accused has the right to a jury fairly selected, still his right is not to pick out the jury, but to reject any who are unqualified or prejudiced. He is only guaranteed an impartial jury, fairly selected.” State v. Taylor, 356 Mo. 1216, 205 S.W.2d 734, 738. Appellant does not claim that there was a purposeful and systematic exclusion of women from the prospective jurors, nor does the record show that such occurred. The fact that there were no women on the panel, without anything more, does not establish that the jury was improperly selected to the prejudice of appellant. There is no merit to this contention.

The remaining assignment of error is that the trial court “erred in overruling defendant’s objections to the introduction of all the state’s exhibits for the reason that said exhibits were not connected with the defendant.” This assignment properly could be considered too indefinite and general to present any issue for appellate review. However, we have examined carefully the circumstances surrounding the admission into evidence of all exhibits in the case, of which there were twenty-five in number, and we find that all were properly admitted. For example, exhibit 1 was the revolver identified by four employees as the one used by appellant in the robber}'. Exhibit 2 was an olive drab bag taken from the hollow tree and identified as being similar to the one in Garton’s possession on the morning of the robbery and used by him during the robbery. Exhibit 3 was the Federal Reserve money bag taken from the hollow tree which was identified as being similar to the one taken from the bank vault containing the silver dollars. We could continue to describe each exhibit and by so doing demonstrate that without exception each exhibit was properly identified, was admissible, and that each was “connected with the defendant.” Instead of extending the length of this opinion, it is sufficient to say that our examination discloses that the contention of appellant is totally without merit.

Pursuant to our discretionary authority to determine whether there occurred plain error affecting- substantial rights, Supreme Court Rule 27.20(c), V.A.M.R., we have carefully read and examined the entire transcript, and our examination discloses no such error. We have also examined those matters in the record for which no assignment of error is required. Supreme Court Rule 28.02, V.A.M.R. The information is in proper form and is sufficient. The verdict of the jury is in proper form and is responsive to the issues, and the punishment fixed by the trial judge is within the limits prescribed by law. The record shows that appellant was arraigned and pleaded not guilty. Appellant and his counsel were present throughout the trial. Appellant was granted allocution, and the judgment is responsive to the issues and the verdict.

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.