text:
    Sam STIGERS and Lila Stigers, Appellants, v. Richard M. HARLOW, Respondent.
    No. 52336.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.

      C. Dudley Brandom, Gallatin, Stephen J. Millett, Kingston, for appellants.
    Somerville, Cleaveland & Macoubrie, Ronald L. Somerville, David P. Macoubrie, Chillicothe, for respondent.
   SEILER, Judge.

Plaintiffs sued defendant for the wrongful death of their seventeen-year-old son, struck by defendant’s automobile. From a verdict and judgment in favor of defendant, plaintiffs appeal. At the outset we are met with respondent’s motion to dismiss the appeal on the ground that appellants have failed to file the transcript on appeal within the time allowed by rules 82.18 and 82.19, that in obtaining a ninety-day extension from the trial court on the eighty-sixth day after filing the notice of appeal, appellants failed to show they had complied with rule 82.19 by ordering the transcript in writing from the court reporter within thirty days after filing the notice of appeal and filing a duplicate copy of the order in the case within fifteen days thereafter. Absent compliance with such conditions, the trial court has no authority to make such extension, rule 82.19; Gaddy v. State Board of Registration for Healing Arts, (Mo.App.) 397 S.W.2d 347, 349.

At the oral argument, counsel for appellant offered to introduce a carbon copy of a timely letter to the court reporter, ordering a transcript, and stated that a carbon copy had been sent to the circuit clerk. Counsel for respondent stated this was the first knowledge he had that such a letter ever existed. Being reluctant to dismiss the appeal in the face of the assertion that appellants did comply with rule 82.19, we have obtained a supplemental transcript from the circuit clerk and court reporter on the point involved and on the strength thereof overrule the motion to dismiss the appeal.

However, we caution counsel that it is their duty and responsibility where an extension of time in which to file the transcript has been granted by the trial court under rule 82.19, to see that the transcript on appeal shows affirmatively the trial court had authority to act. Counsel cannot rely on us to do this for them. The safest procedure would be for counsel to see that the trial court’s order extending the time recites the date on which the transcript was ordered from the reporter and the date on which the copy of the order was filed in the case.

The fatal accident happened at night on highway 13 between Gallatin and Hamilton, around ten o’clock. The highway runs north and south and has a blacktop surface, 21 feet wide. The son’s automobile, a 1958 Chevrolet four-door sedan, was stopped on the right-hand or east side of the highway, headed north. Some of the witnesses testified most of the car was on the east shoulder; others that it was half on the blacktop and half on the shoulder. The sheriff testified the flat surface of the shoulder was about 3 feet wide and it then sloped off about 3 feet into the ditch. The youth apparently was changing the left rear tire. The left rear corner of the car had been raised with a bumper jack, which left an indentation on the blacktop surface, 18 to 24 inches west of the east edge thereof. Three of the nuts on the bolts on the left rear wheel were fairly well tightened and three barely started on the threads. There was a wheel wrench near the rear wheel. A flat tire was lying on the east shoulder, south of the car. Witnesses found part of a flashlight on the edge of the blacktop, between the jack and the flat tire. Snow was falling, some describing it as ordinary medium snow, others as a heavy wet snow. The blacktop surface was wet and slick. There was a dispute as to what lights, if any, were burning on the stopped car. Plaintiffs’ witnesses testified that when they passed the scene, driving south, a few minutes before the accident, the headlights were on and one said as they passed she saw the reflection of the taillights. Defendant, called as a witness by plaintiffs, testified there were no lights burning on the car, front or rear, as did his wife. The first witnesses to arrive on the scene after-wards testified there were no lights burning on the stopped car.

Those who passed the car shortly before the accident testified the trunk lid was up. One said the car was jacked up with the left rear wheel off. They noticed a young man standing closely behind the back end of the car. One witness observed a lighted flashlight in his hand; others did not.

The only eyewitnesses were defendant and wife. Defendant testified he was driving 45 to 50 miles per hour, on the east half of the road, looking straight ahead, windshield wipers operating, headlights on bright; that it was snowing, that he did not at any time see the decedent, that the first thing he saw ahead was what “seemed like a blur”, right in front of him, 25 to 30-feet ahead, that this turned out to be the youth’s car. He swerved to his left or west to miss the car and as he swerved he felt an impact. As to visibility, he testified on direct examination he could only see ahead 25, 30 or 40 feet because of the snow. On cross-examination he first said the snow did not affect the visibility, but then said it did interfere with his ability to see ahead.

Mrs. Harlow testified visibility was poor, because of the falling snow, that they could see around 40 feet ahead, that they missed the car about three feet, that when the two cars were “approximately even” there was an impact and what must have been the body struck the right-hand side of the windshield. Defendant then started to stop, pumping his brakes.

The sheriff testified, without objection, that defendant told him he met a car, had his lights on low beam, and when he raised the lights to high beam, there was the car. Another witness said defendant said the son “just raised right up in front of my lights” and “I hit him.”

The damage on the defendant’s vehicle was a broken right front headlight, right front fender dented, rear view fender mirror on the right knocked off and windshield broken in the lower right-hand corner. There was no damage to the decedent’s vehicle, except the sheriff observed a slight dent at the left rear, not otherwise elaborated upon. The sheriff testified further he saw nothing at the scene or on either car indicating any contact between the two vehicles.

The body of the deceased was found on the east shoulder, about 30 feet in front or north of his car. There was no testimony as to the color of the clothing, except the jeans might be blue. The injuries were not described with particularity, except there was a “good sized indenture in the back of the head”.

The witnesses who were travelling south before the accident testified they observed the lighted headlights on the stopped car from a distance of a half to quarter of a mile away. There was testimony that the road to the south from the location of the stopped car was straight and slightly down grade with no obstruction to cut off the view of approaching headlights of a northbound car for distances variously estimated from a quarter of a mile to a mile.

Turning now to the merits, we rule the court did not err in overruling plaintiffs’ motion for a directed verdict against defendant on liability, made at the close of all the evidence. Plaintiffs submitted their case on failure to keep a careful lookout or driving at an excessive speed under the circumstances. There was sufficient evidence in the record to support such submissions, but it cannot be said that under the evidence all reasonable men would conclude defendant was liable for the regrettable death of plaintiffs’ son, even though some of the evidence against defendant came from defendant himself. For example, part of the evidence (including defendant’s testimony) was to the effect there were no lights burning on the son’s car and that it was standing half way on the northbound lane of the paved portion of the blacktop highway in bad weather; also that there was no light being displayed by the son or on his person. The jury could conclude there was no reason why decedent’s person should have been observed any sooner by defendant than the stopped car. There was also some indication defendant’s vision was impaired by meeting the lights of an oncoming car just before coming upon decedent’s car. Defendant swerved to his left sufficiently to miss the other vehicle by three feet after he saw a “blur” some 40 feet ahead. There was no evidence defendant should have anticipated the presence of an unlighted vehicle stopped partly on his side of the road. The accident occurred at an hour when lights were required on stopped vehicles. Under these circumstances the inference of negligence on the part of defendant was for the jury, not the court, Vincent v. Raffety, (Mo.App.) 344 S.W.2d 293, 295-296. In addition, contributory negligence was a live issue in this case and before plaintiffs would be entitled to a directed verdict on liability it would have to appear conclusively that defendant had not made a submissible issue on this defense, Hartford Acc. & Indem. Co. v. Farmington Auction, (Mo.App.) 356 S.W.2d 512, 518. Finally, it is very doubtful if a directed verdict for plaintiffs on liability would be proper in any event in a case resting entirely upon oral testimony as to the facts of an automobile accident, Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559; Beezley v. Spiva, (Mo.Sup.) 313 S.W.2d 691, 695.

Going to the other points which were properly raised in the motion for new trial and carried forward in appellants’ brief, Rules 79.03, 83.05 and 83.13, appellants contend the following submissions in defendant’s main instruction, namely:

“Your verdict must be for the Defendant, whether or not defendant was negligent, if you believe:
First, that Plaintiff’s son, Larry P. Sti-gers, deceased, either:
had his vehicle stopped or parked partially on the travel portion of said public highway and partially on the shoulder of said public highway at night time without any light on or burning, or
had his person on the travel portion of said highway at night time during adverse weather conditions * * * ”,

in effect told the jury the mere existence of such acts or omissions, if so, constituted negligence in themselves. It is apparent from reading the above that it is not open to the objection made. Moreover, the instruction in question, in accordance with Missouri Approved Jury Instructions, contains the additional requirement in the next paragraph that:

“Second, Plaintiff’s son’s conduct, in any one or more of the respects submitted in paragraph First, was negligent”,

so that the jury was required by the instruction not only to find the fact of the hypothesized conduct but also that it was negligent. “ * * * An instruction which requires the jury to find the defendant negligently did the acts does not assume negligence. * * * ” Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449, 456. We therefore overrule this contention.

Appellants’ remaining points are that defendant’s main instruction was erroneous because there was no evidence supporting the submission of decedent’s failure to keep a careful lookout for defendant’s oncoming vehicle or that decedent “knew or by exercise of the highest degree of care should have known there was a reasonable likelihood of being struck by defendant’s oncoming vehicle in time to have removed himself to a place of safety out of the path of the oncoming vehicle but failed to do so”. The only definition of negligence given was MAI 11.03, offered by defendant, defining the term as “failure to exercise the highest degree of care”, etc., and appellants make no contention of error in this regard. There was evidence that the ground contour was such that the lights of an approaching northbound automobile for as far as a mile away could be seen by a person standing on the highway at the location of decedent’s automobile; that other drivers were able to and did see headlights of cars at or approaching the scene for distances of a mile or so; that the public highway involved carried a fairly heavy flow of traffic; that defendant was approaching at a speed of between 45 to 55 miles per hour, which would mean his headlights would be in the visibility area while approaching the decedent for perhaps as much as a minute and a third, during which time, judging from the testimony of defendant and wife, there was nothing in the manner of defendant’s steady approach to indicate defendant was aware of the car or the son ahead in his path. The evidence indicated that plaintiffs’ son was struck by the right front corner of defendant’s car when defendant was in the act of clearing the stopped vehicle by about three feet, evidently when defendant’s vehicle was about abreast of the other. It is not clear what the son was doing in the position where he was when struck or how he got there, but it is clear that he did not stay behind his car or put himself at least as far from defendant’s path of travel as his car was. Had he done so the accident would not have occurred, because defendant succeeded in missing the car by three feet. A step or two to the right or east would have removed the son from the path of danger. We cannot say on this record there was no substantial evidence to support the portions of the instruction of which appellants complain, 7 Am.Jur.2d Automobiles and Highway Traffic, Sec. 381, pp. 930-932, and also overrule these contentions.

Finding no error in the points raised, we accordingly affirm the judgment.

Judgment affirmed.

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

HOLMAN, J., not sitting.

      . Plaintiffs refer to this latter alternative as an attempt to use humanitarian or last clear chance negligence against plaintiffs, and say it is difficult to find any Missouri cases where such a defense was used. However, we do not believe the instruction involves humanitarian negligence (without expressing any opinion as to the consequences if it did), because it is obviously a modification of MAI 17.04 (primary negligence) used to submit contributory negligence, as authorized by Notes on Use, Missouri Approved Jury Instructions, p. 120.


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Willie HILL, Jr., Appellant.
    No. 52831.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.
    Frank Mashak, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, James R. Reinhard, Special Asst. Atty. Gen., Paris, for respondent.
   SEILER, Judge.

Defendant was charged witfy armed robbery with one previous felony conviction, waived trial by jury, was tried by the court and found guilty as charged, sentenced to ten years’ imprisonment, and appeals. Defendant is represented here by appointed counsel, who has briefed and argued the case.

Defendant first contends the state failed -to make a submissible case. The state’s witness Eddie Giles was a route salesman serving stores for a potato chip company. On August 30, 1966, around 12:30 p. m., in the 1300 block on North Leffingwell, in St. Louis, while working in the van part of his parked truck getting an order together, he was robbed by a man who stepped inside the truck with a pistol in his hand. The light inside the truck was good and Giles described the man as about five feet, ten inches in height, brown skinned, short haircut, wavy hair, shaved off around the forehead, face narrow, small, thin moustache, 25 or 30 years old, weighing 145 to 150 pounds or more, dressed without a hat, in a light blue sport shirt with the tail out, light blue trousers, holding a black derringer style pistol with one barrel on top of the other, with a front sight. Giles said that when he saw the gun he was surprised, but that he wasn’t frightened or excited until it was all over. The two stood facing each other four to six feet apart for what Giles estimated as a minute or two and then the man told Giles to turn around, put the pistol to his temple, took the money he had collected on his route from his front trouser pockets ($102.75) and told Giles to lie on the floor until he left. After remaining on the floor a few minutes, Giles left the truck and reported to the police and his employer. A week later Giles identified defendant at the precinct station as the man who robbed him and also identified defendant in the courtroom. Giles also identified at the trial a small black derringer pistol, with stacked barrels, which the police showed him at the station, as being the same size and appearance as the gun used in the holdup. It is apparent from the foregoing that the state produced substantial evidence to support the charge and defendant’s contention the state failed to make a submissible case is overruled.

Defendant next contends that he was illegally arrested and searched. The evidence on this was that on September 6, 1966, seven days after the robbery, two St. Louis police officers accosted defendant on the sidewalk in front of 1121 North Jefferson, around 12:30 p. m. There had been a pattern of four or five robberies in about a week’s time in this general area at about the same time of day and in all of these the general description of the perpetrator was approximately the same— a negro male, around 25, five feet ten or eleven inches in height, weight 150 to 175 pounds, brown skinned, using the same sort of gun as in the Giles holdup. The police pulled their car over to the curb. Detective Fowler got out, showed his badge and said “Police”, and told defendant he wanted to talk to him. Defendant was wearing a light colored, knit type jersey slipover shirt and pair of slacks, no hat, and the detectives considered he fitted the description of the man they were looking for, although they did not know defendant and had no warrant. Defendant put his right hand under his jersey and stepped backwards into the street. Fowler pulled his revolver, again said “Police”, told defendant he was under arrest suspected of robbery, and to remove his hand from underneath his shirt. As defendant did so the officers saw something fall down his left trouser leg and drop into view on the street. It was a loaded .22 caliber stacked derringer, which the officers took into possession, marked, and which Giles identified at the trial as stated above. Under these circumstances, the arrest was legal, either on the ground that the officers had reasonable grounds based on bona fide information communicated to them in their police work, for believing defendant, who appeared to fit the description they had received, was involved in the recent holdups in the same area at about the same time of day, State v. Witt, (Mo.Sup.) 371 S.W.2d 215, 218-219, or on the basis that the response of the defendant in reaching under his shirt and backing off gave the officers grounds to believe defendant intended to breach the peace, State v. Sampson, (Mo.Sup.) 408 S.W.2d 84, 87; Section 84.090, RSMo 1959, V.A.M.S. Following a lawful arrest the officers could have, of course, searched defendant for weapons and thus discovered the gun, although under the facts the gun was actually disclosed by defendant’s own act in dropping it on the ground in -front of the officers and not through a search at all, State v. Harris, (Mo.App.) 325 S.W. 2d 352, 356. In any event, defendant is in no position to challenge the use of the pistol in evidence, because counsel filed no motion to suppress and further, when the pistol was offered in evidence, stated, “I have no objections”. We overrule defendant’s contentions as to the alleged illegal arrest and seizure.

This case was tried January 4, 1967, after Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and defendant next contends his rights under these decisions were violated in regard to certain incriminating statements which he made to the detectives at the police station. However, this case was tried before the court, not a jury, and the court, after hearing the testimony of the officers, sustained defendant’s objections, ordered the statements stricken and said that the court would not “take them into consideration in any respect in reaching a decision in this case”. Defendant’s counsel argues that even so, the testimony “subconsciously left its indelible imprint in the mind of the Judge”, but there is nothing to show this, there is ample evidence in the record to sustain the court’s finding without reference to the statements, and we think we should take the court at his word. This contention of defendant is also overruled.

Finally, defendant contends that the method of identification in the police station violated his constitutional rights, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, which was held, however, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, to affect cases which involve confrontations for identification purposes conducted in the absence of counsel only after June 12, 1967. The facts on this are that Giles was called by the police to the precinct station the day defendant was arrested. When Giles got to the station “they said that they wanted me to say if I could identify the man that had robbed me”. Giles went into a small office where there were two officers, with defendant sitting at one of the officer’s desks. Giles testified, “I recognized him before I got in the room * * * I saw him sitting at the side of the desk, and as soon as I saw him I recognized him. * * * I walked in the door, and the first thing I said was, ‘This is the man here,’ before they could ask. me anything.” He was cross-examined at length on the details of the holdup, his description of the gun, the length of time he and the robber were confronting each other at the time of the holdup, what kind of a look he had of the man, and the description he gave the police immediately thereafter, without shaking his testimony or disclosing any discrepancies as to identification.

Under the evidence, Giles had a good opportunity for observation of the man at the time of the crime and his station house identification was made only seven days later, when his recollection should still have been quite clear. Although this case was tried before the court, defendant did not take the stand or offer any evidence and there was no testimony that the physical features and characteristics which Giles related to the police within minutes after the event did not in fact fit defendant as of that date. Despite the leading and suggestive way in which the police showed defendant to Giles at the station house, there actually is nothing in the particular record before us to indicate that Giles’ in-court identification of the defendant as the guilty man was as a result of suggestive influences of the police, or the “one-man line-up” method used, or that it was only fancied. While the method used here by the police has an inherent unfairness and is not to be recommended, it does not appear that it produced on the facts before us a lack of due process as to this particular defendant, and we therefore overrule this contention.

We have examined those parts of the record required under rule 28.02, V.A.M.R. and find no error therein.

The judgment is affirmed.

HENLEY, P. J., and STORCKMAN, J., concur in result.

      . The gun was seized by the police at the arrest of defendant, as stated later herein.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Wendell WILLIAMS, Appellant.
    No. 52484.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1967.

      J. Whitfield Moody, and J. Arnot Hill, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Charles C. Hatley Asst. Atty. Gen., New Madrid, for respondent.
   STOCKARD, Commissioner.

Wendell Williams was found guilty by a jury of assault with a deadly weapon with intent to kill and sentenced to imprisonment for a term of twenty-five years. He has appealed from the ensuing judgment. At the trial and on this appeal defendant was represented by representatives of the Legal Aid and Defender Society of Greater Kansas City.

Defendant does not specifically attack the sufficiency of the evidence. The jury reasonably could find the occurrence of the following events. About 11:45 o’clock of the evening of November 13, 1965, Ruby Peltier was waiting at 37th Street and Prospect Avenue for a bus. A Plymouth automobile stopped, and defendant pointed a gun at her and told her to get into the automobile. She did so and the automobile moved on. Defendant then told Ruby he needed a lot of money, and she told him that she had only $35.00. Ruby noticed a police car was following and she began pounding on the rear window to attract attention, and when she did this defendant shot her twice in the stomach. The officer in the police car knew defendant and recognized him as the man in the rear seat of the automobile in front of him. The officer turned on his red light and siren and pursued the Plymouth. It collided with a utility pole and defendant jumped from the automobile, landing in “a prone position, spread-eagle, on the street,” and after leaving his hat he ran away. The driver of the automobile, Richard Lee Warren, was arrested, and defendant was arrested about four hours later at his home. A few days later, when in jail, defendant obtained medical attention for an injured knee.

Defendant testified that about 8:00 o’clock that evening he had loaned his automobile to Richard Lee Warren. He admitted that the hat found at the scene was his, but he said he had left it in the automobile when he gave it to Warren. He also testified that at 11:00 o’clock that evening he met his wife and they ate at Mim’s restaurant. He left the restaurant about one o’clock and went home. His sister was there watching television, and shortly thereafter he went to a service station and bought some cigarettes and then returned home. Defendant’s witnesses supported his alibi, but with some rather material inconsistencies in their testimony.

Defendant’s brief contains nine points, but in his reply brief he states that “after re-examination” of his and the State’s briefs he “abandons Points IV, V, VI, and VIII.”

Defendant’s first point is that “it was error for the State to argue that if the defendant were released a repetition of the offense would transpire.” The record shows that in the closing argument the prosecuting attorney said this: “And what are we going to do ? What should be done ? Should we put him in jail for two years and put him back out to kill somebody ?” Counsel for defendant objected and asked that the jury be instructed to disregard the statement. The court sustained the objection and instructed the jury as requested. Counsel then asked that the jury be discharged, and the trial court denied that request. The assignment of error in the motion for new trial, and the point in defendant’s brief, does not present as error the refusal of the trial court to discharge the jury. However, the argument is to that effect.

Defendant cites State v. Groves, Mo., 295 S.W.2d 169; State v. Renfro, Mo., 408 S.W.2d 57; and State v. Satterfield, Mo., 336 S.W.2d 509. In the Groves case an objection to argument and a request that the jury be instructed to disregard the argument were both overruled. That case does not rule the situation we have here where the objection was sustained and the jury was instructed to disregard the argument. In the Renfro case the court impliedly sustained the objection to argument somewhat similar to that in this case, and it was stated on appeal that no further relief was requested. However, noting that there was but “an instance of a single breach” where the trial court’s ruling served to divert the speaker, it was stated that “we do not believe the argument complained of was prej-udicially erroneous.” The Satterfield case pertains to argument alleged to have been based on excluded evidence. It does not rule the issue of defendant’s contention here.

The control of arguments of counsel is largely within the discretion of the trial court, State v. Benjamin, Mo., 309 S.W.2d 602, 606, and the granting or refusal of a mistrial for improper argument lies largely within the discretion of the trial court. State v. King, Mo., 334 S.W.2d 34, 40; State v. Hardy, 365 Mo. 107, 276 S.W. 2d 90, 95. There was no abuse of discretion in this case in view of the corrective action taken by the trial court.

Defendant’s next point is that it was error to permit the introduction of testimony of an oral statement by him to the police because it was “not proved to be voluntary.” As subsequently demonstrated, the record disproves this contention.

The statement of defendant referred to was made to Officer Swan after his arrest. The statement was not a confession of the offense charged nor was it a declaration against interest. It was offered in rebuttal by the State apparently on the ground that it conflicted with defendant’s testimony at trial as to where he was at the time of the commission of the robbery. Assuming, but not deciding, that the rule announced in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.E.2d 908, requires a preliminary determination by the trial court that the above statement of defendant was voluntarily made, that requirement was met. After Officer Swan testified that he had talked to defendant, the trial court conducted a hearing out of the presence of the jury on the issue of the voluntariness ■ of defendant’s oral statement. At this hearing the police officer testified that before defendant made the statement he had advised defendant that he did not have to make a statement, that if he did it could be used against him in court, and that he could call a lawyer. In this hearing out of the presence of the jury the defendant then testified, and we shall set forth his entire testimony.

“Q. [By defense counsel] You have heard Detective Swan’s testimony, have you not?
“A. Yes.
“Q. Now, tell His Honor whether or not you were advised that you did not have to make a statement, if you did it could be used in court, and you could call a lawyer, by Detective Swan, before you told him anything, whether or not he told you these things.
“A. He did not tell me those things. I already knew them, because I had been in jail several times before that, and I don’t never say nothing, I always call my lawyer because I had-.
“Q. Did you call your lawyer?
“A. Yes.”

The trial court specifically found that the statement of defendant to Officer Swan was voluntarily made. On this appeal defendant presents nothing which indicates that the finding was wrong, and the record clearly establishes that the finding was correct/

Defendant’s third point is that it was error “to permit testimony of his previous arrest unrelated to the offense for which he was being tried.” The police officer who arrested defendant testified about the arrest and was cross-examined extensively. On redirect examination he was asked “How did you happen to know where he lived?” The officer answered as follows : “I arrested — he had been arrested once before at 1604 East 11th.” Defense counsel objected to “the question and response” and asked that the answer “be stricken” and that the jury be discharged. The trial court sustained the objection and instructed the jury to disregard the answer, but it denied the request to discharge the jury. As was true in connection with defendant’s first point, the assignment of error in the motion for new trial and the point in defendant’s brief pertaining to this incident does not present as error the refusal of the trial court to discharge the jury, but the argument includes this contention.

Defendant cites various cases which hold that as a general rule separate and distinct crimes by the defendant cannot be shown, with certain exceptions, and proof of conduct not related to the offense charged which subjects defendant to ill repute cannot be shown. See State v. Anderson, Mo., 384 S.W.2d 591; State v. Slaten, Mo., 252 S.W.2d 330. In view of the cross-examination of the arresting officer, the reason the officer knew where defendant lived was not totally irrelevant. However, assuming that even under these circumstances the reference to the previous arrest was improper, the trial court did not, as asserted in the point, “permit testimony of his previous arrest.” The testimony was stricken out by the court and the jury was instructed to disregard it. Also, whether a mistrial should be declared in a circumstance such as this is a matter which rests largely within the discretion of the trial court. State v. Hadley, Mo., 249 S.W.2d 857; State v. Baker, Mo., 293 S.W.2d 900; State v. Ruyle, Mo., 318 S.W.2d 218. In view of the corrective action taken by the trial court, if any such action was required, we find no abuse of discretion.

Defendant’s seventh point is that “it was error to characterize the appellant as ‘Whizzo’ as there was no proof of such appellation.”

In his opening statement to the jury the prosecuting attorney referred to defendant as “Wendell Williams, also known as ‘Whizzo’ Williams.” The defendant interrupted and said, “My name is Wendell.” On cross-examination, after asking defendant if he was Wendell Williams, the prosecuting attorney asked this: “You are also known by your friends as ‘Whizzo’ Williams, is that not correct?” Defendant answered, “That is not correct.” In oral argument by the prosecution, reference was made to “Wendell ‘Whizzo’ Williams.” No objection was made at any time, and no action was requested from the trial court.

The name “Whizzo” is not necessarily derogatory. As noted, no objection was made, and no action by the trial court was requested. The alleged error was not presented to the trial court for corrective action, and since this obviously does not constitute plain error within the meaning of Supreme Court Rule 27.20(c), V.A.M.R. there is nothing before this court preserved for appellate review. State v. Carter, Mo., 399 S.W.2d 74; State v. Eaton, Mo., 394 S.W.2d 402.

Defendant’s last point is that the trial court erred “in refusing [his] request that other counsel be appointed to defend him, thereby denying him rights guaranteed by the Sixth Amendment of the Constitution of the United States.” This contention was not presented in the motion for new trial, but it is presented in the brief in “Anticipation of it being made hereafter in a motion to set aside his sentence under Supreme Court Rule 27.26.” Denial of a constitutional right of counsel would constitute plain error affecting substantial rights within the meaning of Supreme Court Rule 27.20(c). Therefore, we shall rule this issue on this appeal.

On March 16, 1966, counsel for defendant, apparently privately employed and of defendant’s selection was permitted to withdraw upon request, and “J. W. Moody and Associates,” which constitutes The Legal Aid and Defender Society of Greater Kansas City, were appointed as counsel. Trial started on May 17, 1966, after the parties announced ready for trial, and defendant was represented by Mr. James H. Harrington, an associate of J. W. Moody, who was an experienced trial lawyer in criminal cases.

At the noon recess after four witnesses had testified, and apparently after the State had put on all the evidence it had then contemplated to offer, defendant told the court that he wanted “to have some witnesses in this case that don’t seem to be subpoenaed. For instance, the arresting officer, Cecil Stockdale, * * The court advised defendant he could use the power of subpoena, and the prosecuting attorney advised defendant that he would bring Officer Stockdale and call him as a witness if the defendant would agree that he could be indorsed on the information. Defense counsel said that he would agree “if this is what Mr. Williams feels is in his best interest,” but he added that he had discussed this matter with defendant and that it was his “opinion it would not be in his best interest.” After further discussion defense counsel stated that he would “defer to his [defendant’s] view.” Defendant then stated that “There were some more witnesses that wasn’t on my sheet that I didn’t subpoena because I didn’t think they were involved in this, but I see since the time they brought out, there are about 10 or 15 witnesses.” The court told defendant to talk to his attorney about that. After the recess, Officer Stockdale was called as a witness for the State. He testified only as to the circumstances of the arrest. At the conclusion of his direct testimony defense counsel advised the court, out of the hearing of the jury, that “the defendant has just advised me I cannot defend him against his will, and unless he gets a recess and an opportunity to tell the court he doesn’t want to continue with the trial.” Counsel added that he was “ready, willing and able to continue.” The defendant then told the court that he “would like to get a recess because I haven’t talked to my lawyer since he has been assigned to my case but one hour, and I hardly think that is enough time for him to try this case, and there is a lot he don’t know about this case. And I would like to get a continuance until he knows more, until we can come to a conclusion on how the case is to be tried.” Defense counsel then related that a staff member of The Legal Aid and Defender Society had conferred with defendant, names of prospective witnesses had been obtained and some had been subpoenaed, a comprehensive report had been prepared, and he had discussed the case with defendant and was ready to proceed with the trial. When the court asked defendant how much time he wanted to talk to his counsel, he stated he wanted a continuance for a week. Defendant also mentioned that he wanted a witness by the name of Newton, but an investigator for The Legal Aid and Defender Society stated that he had not located this person to serve a subpoena on him, and defense counsel stated that he did not believe this witness’s testimony “would be to his best interest.” It also developed that two other witnesses that defendant stated at trial he wanted to substantiate his alibi had been interviewed and both stated that they did not know defendant. Defendant then told the court: “I don’t want this man to defend me unless we have more conferences together.” The court said that it was its “view that this request of the defendant is frivolous” and that it was made “for the purpose of either delaying the trial or causing a mistrial,” and directed that the trial proceed. Defendant then asked: “You mean you [are] going to make him defend me against my will and my right to have a choice of attorney? If I don’t think he is defending me fully and properly you mean you are going to make him defend me against my will?” The trial court stated that counsel had been appointed by the court, and “He is to defend you.”

The point in defendant’s brief is that the court erred in refusing to appoint other counsel, but from what we have above set out it is apparent that at about halfway through the trial defendant became dissatisfied with his lawyer, or perhaps with the course of the trial, and requested a continuance so he could confer with the counsel he had. However, he advanced nothing to indicate the need of additional conferences, and the trial court indicated that reasonable time would be granted, but not one week.

The constitutional right to counsel does not mean that an accused is entitled to any particular attorney, or that during trial he can arbitrarily discharge his attorney without reason or justification. Staff members of The Legal Aid and Defender Society of Greater Kansas City had investigated defendant’s case, and a file and report had been made to his experienced and highly qualified trial attorney who had interviewed defendant and the witnesses. In his professional judgment, defense counsel considered himself ready for trial, and when he announced ready at the call of the case, as far as is shown by the record, defendant made no protest. Supreme Court Rule 4.22 admonishes that the conduct of a lawyer before the court should be characterized by candor and fairness. “Thus, while a prisoner, indigent or otherwise, is entitled to his lawyer’s best efforts, the lawyer is not required to surrender his integrity and self-respect and make claims known to be untenable or wholly false.” State v. Ball, Mo., 408 S.W. 2d 17, 19. Defense counsel in this case was faced with a difficult situation. Witnesses suggested by defendant to establish his alibi denied knowing him. We have not set out the testimony, but the defense witnesses used testified inconsistently, and defendant affirmatively admitted from the witness stand that he had lied to police officers as to his whereabouts on the night of the robbery, and that in his testimony he had lied before the jury. Our examination of the record discloses a most commendable performance by counsel for the defense. The contention that defendant was denied his constitutional right of counsel is completely without merit.

We have examined those parts of the record as required by Supreme Court Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

BARRETT and PRITCHARD, CC.-, concur.

PER CURIAM:

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    William E. BALL, Respondent, v. Elmo Doyle KEMP, Orla Carwin Kemp and Lafern Kemp, Appellants.
    No. 52004.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 9, 1967.

      Robert B. Baker, Ellington, for appellants.
    John J. Cole, Fred Leicht, Jr., Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Roy W. McGhee, Jr., Piedmont, for respondent.
   BARRETT, Commissioner.

This is an unlawful detainer action by William E. Ball, the assignee-purchaser of a “sale and lease agreement” in which the appellant Kemps (Orla Kemp was in fact the operator and principal in the business) were the lessee-purchasers of a bowling alley in Piedmont. The plaintiff sought to recover delinquent rent of $11,215.84 which doubled under the statute (RSMo 1959, § 534.330, V.A.M.S.; Bierkenkamp v. Bierkenkamp, 88 Mo.App. 445) would confer appellate jurisdiction on this court. Const. Mo.Art. 5, Sec. 3, V.A.M.S.; RSMo 1959, § 477.040, V.A.M.S. A jury returned a verdict finding the defendants guilty of unlawful detainer but found the value of the rents and profits to be $1.00 and the plaintiff’s damages to be $1.00. Accordingly judgment was entered for -restitution and $2.00 damages and $2.00 rent. Both parties filed timely motions for a new trial. The defendants’ motion on all issues except damages was overruled. The plaintiff’s motion for a new trial as to all issues except damages was also overruled and “as to the monthly value of the rents and profits and the amount of damages only is granted, for the reason that the verdict on said issues was contrary to the overwhelming weight of the evidence submitted on said issues.” The ensuing judgment entered upon these orders was designated as final and the defendants have appealed.

The respondent has filed a motion to affirm the judgment or to dismiss the appeal for the stated reason that appellants’ brief, points and argument do not meet the requirements of Civil Rule 83.05, V.A.M.R., particularly in that they “fail to inform Respondent’s counsel precisely what Appellants’ contentions really are, and what Respondent is required to answer.” In some respects the assignments of error are abstract and vague but the thorough brief the respondent has filed disproves the claim of un-understandability, the court has encountered no insuperable difficulties and the motion taken with the submission of the case is overruled.

The appellants, recognizing the effect of the court’s action in granting a new trial as to damages and rents on the stated ground that the verdict in this regard was “against the weight of the evidence” (RS-Mo 1959, § 510.330, V.A.M.S.; Sapp v. Key, Mo., 287 S.W.2d 775), make only the claim that neither the magistrate court, in which of necessity the cause was instituted (RSMo 1959, § 534.060, V.A.M.S.) nor the circuit court on appeal (RSMo 1959, § 534.390, V.A.M.S.) had jurisdiction of the cause. It is asserted that there was a lack of jurisdiction for the reasons (1) that the complaint in magistrate court did not state a cause of action and the circuit court’s jurisdiction being derivative acquired none, (2) the circuit court erroneously permitted an amendment, a departure, to plaintiff’s petition, (3) the amended complaint in failing to allege termination of the lease did not state a cause of action and, in any event, (4) the evidence was “insufficient to support any judgment for the plaintiff.”

The controversy arose in this background: In July 1962 the Kemps transferred two parcels of land in Piedmont, one an acre or more, to Ladue Supply, Inc., Mr. Ball’s predecessor in the lease and sale, for the nominal sum of $200.00. Ladue Supply as lessor-vendor constructed a bowling alley on one of the lots at a cost of $72,599.00. In this agreement, called a “lease and sale,” the Kemps became the lessees and during a term of 20 years beginning on September 15, 1962, agreed to pay a yearly rental of $8400.00 in monthly installments of $700.00. The agreement is quite detailed and need not be set forth in full but repairs and alterations were to be made by the lessees who were to carry $70,000.00 insurance. In the event of failure to pay any installment of rent the lessors had “the option to terminate this lease by giving Thirty (30) days’ written notice of such termination to Lessees” and upon termination lessees agreed to deliver immediate possession of the premises to lessor. There was a provision that forfeiture did not relieve of the obligation to pay rent until the lessor sold the property or otherwise disposed of it. The lease provided that acceptance of past due rent would not constitute a waiver of forfeiture. At the end of five years the lessees had an option to purchase for $70,200.00.

On January 1, 1964, a fire damaged the building and each of the parties collected about $14,000.00 for their respective losses. Ball applied $4000.00 to replacing the roof and retained $10,000 which he says belongs to whoever becomes the purchaser of the property. In any event, the Kemps as lessees paid the first installments of rent but for 1964 the rent was in arrears $5,081.93 and in 1965 $6,133.91, a total arrearage of $11,215.84. On June 25, 1965, the sheriff of Wayne County served Orla Kemp with a notice to vacate for failure to pay rent. The Kemps nevertheless remained in possession but as Orla said, especially after he also got into the automobile business, “with problems” and, admittedly, “under present conditions” could not pay the specified rent. Even taxes and insurance had been paid by Ball and the Kemps were in default to the mortgagor of the bowling lanes and pin-setting machinery. It should be said that Kemp attributed a large part of his troubles to Ball’s failure to properly repair the building after the fire — leaving a leaky roof and foundation that injured three or four of the bowling lanes.

While these facts are necessary as background, in view of the circuit court’s granting a new trial as to damages and rents on the ground that the jury’s verdict as to these issues was against the weight of the evidence, they are no longer issues insofar as this appeal is concerned. In all this background the question is whether for the reasons now asserted the magistrate court in the first instance and the circuit court on appeal and trial “anew” (RSMo 1959, § 534.550, V.A.M.S.) had jurisdiction to try the cause and finally enter the judgment it did.

The appellants’ claim of lack of jurisdiction has to do with their assertion that the original “complaint” (forcible entry and unlawful detainer, a code unto itself, employs the common-law language of medieval England) fails to state a cause of action and therefore the magistrate court had no jurisdiction initially and, since its jurisdiction is derivative, the circuit court likewise had no jurisdiction and could acquire none. Because of the failure of the complaint to state a case in unlawful detain-er in the court of original jurisdiction, it is said that it could not be amended to state a cause of action in the circuit court. The deficiency asserted is that plaintiff “failed to allege when, where and how the lease on this property was terminated,” hence no way to determine “the time when the defendants are holding over after the termination of the lease.” And in this connection it is said that there is no allegation that plaintiff “owned the land on which the building was located.” Even after amendment it is said that there is “no allegation of the termination of the lease at any particular time or allegation of facts showing a termination of lease at any particular time.”

It is not necessary to explore these assignments of error in detail, they have all been specifically urged and considered heretofore and decided adversely to the appellants’ present contentions. In the first place, as to ownership of the land, “(forcible entry and detainer is a possessory action, and in such action it is immaterial whether the party dispossessed by the forcible entry had title or even rightful possession.” Kimes v. Conran, Mo.App., 9 S.W.2d 549. Since it is a possessory action and does not involve title to the land, “the law does not call for the same degree of accuracy in describing lands in such a case as the one at bar as is required in a boundary dispute”. Steinke v. Leicht, Mo.App., 235 S.W.2d 115, 121. And while by statute original jurisdiction is in the magistrate court and, of course, both courts must have jurisdiction of both parties and subject matter (State ex rel. Kelly v. Trimble, 297 Mo. 104, 247 S.W. 187), “on appeal the complaint may be amended in any respect not involving the changing of the cause of action as originally stated.” Safety Savings & Loan Association v. Williams, 228 Mo.App. 595, 599, 71 S.W.2d 848, 850. In that case it was claimed that “as the justice court has exclusive original jurisdiction in unlawful detainer actions, the jurisdiction of the circuit court is derivative * * * that if the justice court has no jurisdiction the circuit court had none on appeal” and “that the making of C. M. Grimes a party to the cause in the circuit court is a change in the cause of action and a departure from the cause as it existed in justice court.” The court agreed that Grimes was not properly made a party in the circuit court but it was held that the cause was not to be reversed for that reason because “it has been uniformly held that the substitution of a party having the legal right to sue, in the place of the one improperly named as plaintiff, is permissible and does not change the cause of action.” Here in both the magistrate court and in the circuit court the complaint contained a legal description (too lengthy to insert here) of the land upon which the bowling alley was constructed and while it may not have been necessary to amend (Folger v. Lowery, Mo.App., 210 S.W.2d 1011,1015), “the complaint may be amended so as to obviate the defects of uncertainty and indefiniteness in the description of the land, or in any other respect not involving a change in the cause of action originally stated.” Allen v. Jackson, Mo.App., 216 S.W. 539, 541.

As to allegations as to termination, the complaint alleged and attached as exhibit A the entire lease-sale agreement, it alleged the defendants’ occupancy under the lease and that beginning in 1964 they “have failed, neglected and refused to pay the rent provided in said lease,” that they had been served with notice of the default, a demand and notice to vacate and as previously stated by its own terms the lease provided that “(i)n the event of the failure on the part of the Lessees to pay any installment of rent promptly * * * the Lessor shall have the option to terminate this lease.” In Kansas City Building & Loan Ass’n No. 6 v. Harding, Mo.App., 58 S.W.2d 795, 796, the court said, “The point of jurisdiction is placed upon an alleged insufficient statement and a lack of proper affidavit. The complaint is in conventional form and charges all necessary jurisdictional facts and states that plaintiff at a given time had the legal right of possession to certain described premises, it being an apartment, and that defendant willfully, unlawfully, and without force holds over and detains said apartment ‘after the termination of the time for which said apartment was demised or let to her or the person under whom she claims.’ * * * The complaint in this case is made in the usual manner and is ample to meet a substantial compliance with all necessary requirements, and is sufficient to confer jurisdiction and support the judgment rendered.” See also Folger v. Lowery, Mo.App., 210 S.W.2d 1. c. 1014 and Equity Building & Loan Ass’n v. Murphy, 75 Mo.App. 57, 61.

The final point which hardly goes to jurisdiction in the sense urged here, that the evidence is “insufficient to support any judgment for the plaintiff,” is based upon the assertions that the notice “relied upon by plaintiff to give him a right to possession is wholly insufficient” and that on June 19, 1965, plaintiff accepted $400.00 in part payment of rentals and therefore “waived any right to forfeiture until another rent month has passed, at least.” These claims all but answer themselves and are really directed against what the appellants characterize as the “harsh remedy of unlawful detainer.” As stated, Orla Kemp admitted the arrearages and his inability to' make the payments. Unlike the provisions in Waring v. Rogers, Mo.App., 286 S.W.2d 374, in which the terms relied on were held to he “convenants” not “conditions,” the provision of this lease as to failure to pay rent and consequent termination “was not a mere convenant, but was a valid and enforceable condition subsequent imposed upon defendant’s leasehold interest.” Wilson v. Watt, Mo., 327 S.W.2d 841, 850. On January 4, 1965, Mr. Ball’s lawyer wrote Orla advising that lessees were “several months delinquent in your rent” and concluded by “declaring a forfeiture of the lease.” The sufficiency of this letter as notice is challenged because it provides for less than 30 days’ notice and was not a demand on the day due for the precise sum due. Carbonetti v. Elms, Mo.App., 261 S. W. 748. But in addition to counsel’s letter, on June 28, 1965, the sheriff served Orla Kemp with a notice to vacate in 30 days “because of default in payment of rent.” There was no claim of failure to serve any notice whatever as in Folger v. Lowery, supra, and in any event the assignment and argument do not prove or demonstrate the claim of no proof “to support the judgment entered in this case.” Wilson v. Watt, 327 S.W.2d 1. c. 851. All this is to the point that there was an unequivocal “intention to claim a forfeiture and demand possession, (will be) equivalent to a re-entry. * * * And if this be true the respondent here did in legal effect make a re-entry, or at least its conduct was such as to preclude a holding as a matter of law that it waived the forfeiture of the lease.” Lucas Hunt Village Co. v. Klein, 358 Mo. 1054, 218 S.W.2d 595, 598. In any event as the court said of a petition, these claims even if meritorious in part would not render the proceeding “an absolute nullity” (Utt v. Winfrey, Mo.App., 235 S.W. 185, 186), neither do they establish the appellants’ basic claim here of no evidentiary support for the judgment.

For the reasons indicated -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: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. George L. ARNOLD, Appellant.
    No. 52525.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.

      Thompson Mitchell, Douglas & Neill and Joseph P. Logan, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   HIGGINS, Commissioner.

Appeal from order denying motion to withdraw guilty plea under Criminal Rule 27.25, V.A.M.R., considered as proceeding to vacate sentence under Criminal Rule 27.26, V.A.M.R. State v. Harris, Mo., 382 S.W.2d 642, 643.

By information filed September 24, 1965, Cause 1854-N was commenced, and it was charged that Morris Watson and George L. Arnold did feloniously and unlawfully and by means of deceit obtain a certain narcotic drug, Dilaudid tablets, by uttering, offering and passing as true and genuine a certain false prescription to Mack Gas-away, a druggist.

On September 29, 1965, appellant appeared in court in person and by his court-appointed attorney, Joseph Noskay (Public Defender), and entered a plea of not guilty.

On October 8, 1965, appellant appeared in person and with his retained counsel, Curtis C. Crawford.

“THE COURT: You are George Arnold? THE DEFENDANT: Yes, sir.

“THE COURT: In Cause number 1854— N, you have an announcement to make? MR. CRAWFORD: At this time, Your Honor, George Arnold will withdraw his former plea of not guilty and enter a plea of guilty and ask sentence be deferred to allow him to make an application for parole.

“THE COURT: What did he do? MR. HEINBECKER (Assistant Circuit Attorney) : Your Honor, on the 9th of September, 1965, the defendant remained in a car while one Morris Watson entered the Gasa-way Pharmacy with a false prescription, and according to the State’s evidence, he was with this man trying to get the prescription filled. The State recommends three years in the Department of Corrections.

“THE COURT: You were there in the car, is that right, Mr. Arnold? THE DEFENDANT: Yes, sir.

“THE COURT: You picked up a prescription lying on the seat of the car and put it in your purse, the other man was in the drug store getting the prescription filled? THE DEFENDANT: Yes, sir. THE COURT: You said you didn’t know anything about it, is that correct? THE DEFENDANT: Yes, sir.

“THE COURT: On your plea of guilty, and your admission in case number 1854-N, the Court hereby accepts your plea of guilty and on your admission of obtaining narcotic drugs by means of deceit by forgery, and on your plea of guilty and on your admission, defers sentence to the 23rd day of December, to permit you to make an application for parole.”

On December 27, 1965, appellant appeared in person “and by his attorney, Joseph Noskay, standing in for Curtis C. Crawford, attorney for the defendant.”

“THE COURT: What is the State recommending in this case? MR. KUNDERER (Assistant Circuit Attorney): Three years as charged, Your Honor.

“THE COURT: In cause number 1854-N you pleaded guilty to obtaining narcotics by means of deceit by forgery of a written order, is that correct? THE DEFENDANT: Yes, sir.

“THE COURT: On this day the Court hereby sentences you to three years in the Department of Corrections. Your parole is denied, jail time allowed.”

On October 26, 1966, appellant filed his motion to set aside plea of guilty. The grounds for his motion are, in substance, (1) that the court erred in accepting his plea because there was no determination that it was made voluntarily and was in fact made equivocally; (2) that he was misled by the court in chambers in unreported matters relating to the sentence he might draw if a plea was entered; (3) that it was error to sentence him in the absence of his retained lawyer. The motion was denied November 14, 1966, and this appeal resulted.

The first charge is dispositive of this appeal and requires a reversal of the order denying the motion to vacate.

Criminal Rule 25.04, V.A.M.R., provides that the court “shall not accept (a plea of guilty) without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant * * * pleads equivocally, * * * the court shall enter a plea of not guilty; ” and, under Criminal Rule 27.25, V.A.M.R., “to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.” Exercise of this latter provision is discretionary with the trial judge and the action of the judge should not be overthrown except for an abuse of that judicial discretion. State v. Parker, Mo., 413 S.W.2d 489, 493-494 [2-7]; State v. Skaggs, Mo., 248 S.W.2d 635, 636 [1]; State v. Reynolds, 355 Mo. 1013, 199 S.W.2d 399, 402 [1] ; and see also State v. Hodges, Mo., 383 S.W.2d 551.

This case requires application of the exception. State v. Blaylock, Mo., 394 S.W.2d 364, involved the same judge, the same “stand-in” attorney, and nearly identical, yet more persuasive, proceedings. In that case the following transpired at the time the plea of guilty was entered:

“‘THE COURT: This is cause No. 1027-1 one James Clifton Blaylock, Jr. is charged with Murder in the First Degree, and is represented by Mr. Joseph Noskay. You may proceed, Mr. Noskay.

“‘MR. NOSKAY: In this case the defendant withdraws his former plea of not guilty and enters a plea of guilty as charged.

“ ‘THE COURT: What did this man do, Mr. Draper?’ Mr. Draper, Assistant Circuit Attorney, then gave the State’s version of the facts of the case and made a recommendation of life imprisonment.

“All that thereafter occurred was as follows: ‘THE COURT: You did do this, did you? THE DEFENDANT: Yes. THE COURT: In Cause No. 1027 — 1 the Court hereby accepts your plea of guilty and your admission, James Clifton Blaylock, of Murder in the First Degree end on your plea of guilty and your admission you are sentenced to life imprisonment.’ ” 394 S.W.2d 366.

This court reversed the denial of the motion to withdraw the guilty plea because “In this case, the transcript does not show any discussion with or inquiry of petitioner by the Judge except the one leading question after the recital of facts by the Assistant Circuit Attorney, namely: ‘You did do this, did you?’ Moreover, the transcript shows no inquiry at all by the Judge of Mr. Noskay as to what information or explanation of the charge and the plea he entered had been given petitioner. * * * Our conclusion is that what appears in the transcript is not sufficient to show petitioner ‘understood the consequences of his plea of guilty.’ ” 394 S.W.2d 367.

The transcript in this case is even more lacking in any showing that the court explained, or that appellant understood, the consequences of the plea or that appellant assented to it. There was no explanation of range of punishment; there was no determination whether counsel had explained the consequences. Even the circumstances related by the assistant circuit attorney do not compel a finding of appellant’s guilt of the charge. The record shows further that in the court’s own language, “he didn’t know anything about” the commission of the alleged crime. This shows not only a lack of understanding of the proceedings and their consequence, necessary to a voluntary plea of guilty, but demonstrates also that the plea was, at best, equivocal. See State v. Williams, Mo., 361 S.W.2d 772.

State v. Blaylock, supra, quoted United States v. Davis, 7 Cir., 212 F.2d 264, 267, construing Federal Rule 11, similar to Missouri Rule 25.04, supra: “This rule is stated in mandatory language and the court is not relieved of the duty which it imposes solely because the accused, as here, is represented by counsel of his choice.” See also State v. Macon, Mo., 403 S.W.2d 630, 632 [4,5].

For these reasons, and without reaching appellant’s other allegations, the order denying the motion to withdraw plea of guilty and to vacate sentence is reversed and the cause is remanded.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

■ All of the Judges concur.


text:
    Gloria BROWN and George Brown, Appellants, v. Henry Eugene BRYAN, Respondent.
    No. 52292.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 9, 1967.

      Robert L. Shirkey, Dale Beal, Kansas City, for appellants.
    E. E. Thompson, Thos. J. Conway, Jr., Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   HIGGINS, Commissioner.

Action by Gloria Brown in Count I for $40,000 damages for personal injuries, and by George Brown in Count II for $10,000 damages for loss of services. They appeal from verdict and judgment for defendant.

Count I averred that plaintiff Gloria Brown was riding as a paying group rider in an automobile owned, operated, and in the exclusive possession and control of defendant Henry Bryan; that as the automobile was turned left at an intersection, the right front door suddenly flew open causing plaintiff to be thrown out of the automobile onto the pavement and injured; that the door was caused to open by reason of negligence of defendant, the exact cause being unknown to plaintiff but peculiarly within the knowledge of defendant.

Count II adopted these allegations in making claim for plaintiff husband’s loss of services.

Defendant’s answer admitted plaintiffs’ residence and marital status and that plaintiff wife was a paying group rider in his automobile. All other allegations were denied and Mrs. Brown’s injuries were attributed to her own negligence.

The sufficiency of evidence to make a case under plaintiffs’ petition is not in question.

Appellants complain of the court’s ruling on the voir dire examination where the following took place:

“MR. SHIRKEY (for plaintiffs) : Now, this case here is brought against the defendant upon a theory of the law which we call the fact that it happened speaks for itself and inferentially, or we can infer from the way it happened, that the defendant was negligent, in that, ordinarily, when cars are driven down the street and corners are turned, doors do not come open and passengers fall out, or as we may use the term, circumstantial evidence to indicate that such a driver was negligent in the maintenance, the care and operation of his automobile. Now, if His Honor tells you—

“MR. CONWAY (for defendant) : Your Honor I would like to object to that at this point. The case has not been submitted yet and the theory upon which it will be submitted will be determined at the time.

“THE COURT: The objection will be sustained.

“MR. SHIRKEY: Will you require this lady to show to your satisfaction the specific reason of why this door came open if His Honor instructs—

“MR. CONWAY: Your Honor, I’d like to make the same objection. THE COURT: The objection will be sustained and the jury will disregard the last remark. MR. SHIRKEY: I would like to make a record.

“WHEREUPON, the following proceedings were had WITHIN THE PRESENCE BUT WITHOUT THE HEARING OF THE JURY:

“MR. SHIRKEY: My question was, I propose to propound to the jury, would they require this lady to show the specific reason why this door came open and what was wrong with it — MR. CONWAY: I can hear him back here.

“MR. SHIRKEY: (Continuing) — before you would ever award any money damages for her injuries. I should like to know if anyone feels this way because I’m going to rely upon the law that in certain situations it is impossible for us to prove exactly what caused her injury and we’re going to rely upon the circumstantial evidence to speak to cause us to believe that it happened as a result of negligence of the law of res ipsa loquitur.

“THE COURT: I understand your theory but — and the Court will instruct the jury as to the law at the conclusion of the case, and I believe you’re getting into the field here — a dangerous field, in regard to this. Until the Court hears the evidence I can’t tell you how the law will be and I presume you’re basing your theory on what you hope and expect the evidence to be and I think it would be prejudicial to make this statement.

“MR. SHIRKEY: But the point of my question is this; I want to know if the jury is going to require us or any one of them, such as Mr. Hamm expressed a feeling a moment ago about a certain situation, would require us to show to them what happened and if we didn’t show that then we’re not entitled to recover, but I want to know if there’s anybody with such a feeling.

“THE COURT: I think we’re getting into dangerous territory.”

The gist of the argument is that appellants were precluded from their constitutional right to “a fair and impartial jury,” Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 698[6], 127 A.L.R. 711; Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 116 S.W.2d 27, 29[5]; McMonigal v. North Kansas City Development Co., 233 Mo.App. 1040, 129 S.W.2d 75, 83[14]; Tate v. Guinta, Mo., 413 S.W. 2d 200, from determining if any juror “has formed or expressed an opinion concerning” the case, Section 494.190, V.A.M.S., or from determining grounds of disqualification other than statutory grounds, Barb v. Farmers Ins. Exchange, Mo., 281 S.W.2d 297, 301[1], Lineker v. Missouri-Kansas-Texas R. Co., Mo.App., 142 S.W.2d 356, 359[6], because they were circumscribed in inquiring whether the jurors would require proof of a specific reason for the door to come open and what was wrong with it before awarding damages in this res ipsa loquitur or circumstantial evidence of negligence case.

Control and extent of the voir dire examination rests necessarily in the sound discretion of the trial judge and an appellate court will interfere only upon demonstration of manifest abuse of that discretion and probability of injury to the complaining party. Olsten v. Susman, Mo., 391 S.W.2d 331, 335[6,7]; Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, 807 [7-10]; Bunch v. Crader, Mo.App., 369 S.W.2d 768, 771[4]; Linstroth v. Peper, 203 Mo.App. 278, 218 S.W. 431, 435[2,3].

Appellants say that “the individual juror’s feeling concerning circumstantial evidence is unknown” but they neither asked nor offered to ask whether any of the prospective jurors would refuse to find defendant negligent on circumstantial evidence. Instead, they announced “the theory of law” which they intended to invoke and were proceeding in the manner of an attempt to have the jurors speculate or commit themselves as to what they would do under instructions which the court might give later in the trial.

A similar situation arose in State v. Katz Drug Co., Mo., 352 S.W.2d 678, 684[4], where the state was permitted to question several jurors and receive affirmative answers to such as the following: “‘Now, if I prove * * * that February 22, 1959, was a Sunday, and that the Katz Drug Company * * * sold goods, wares and merchandise which were not medicines or drugs and not items of immediate necessity, and if the Court instructs you that that is a violation of the law, will you convict?’ This was an improper attempt to commit jurors before they had heard evidence, instructions of the court or argumeht of counsel. As we said in State v. Heickert, Mo.Sup., 217 S.W.2d 561, 562: ‘[Cjounsel has no right on voir dire to cause the prospective jurors to pledge or speculate as to their action in certain contingencies which may later occur or arise during trial.’ ” See also State v. Katz Drug Co., Mo.App., 362 S.W.2d 80, 82-83[2], In State v. Bolle, Mo., 201 S.W.2d 158, 159[2, 3], appellant’s complaint of undue restriction in the voir dire was denied and, appropriate to this case, the court approved the trial judge’s comment: “ ‘I am going to sustain the objection. I will grant you the privilege of examining, but I will not accord you the privilege of explaining the law or what I will instruct on.’ ” For an extensive review of the law governing voir dire examinations, see Smith v. Nickels, Mo.App., 390 S.W.2d 578, 581[3-5]. The voir dire question asked by defendant was: “Would any of you hesitate to find in favor of my client if you felt that my client wasn’t to blame for this accident?” Plaintiff’s objection was that the question was an attempt to get a commitment from the jury prior to hearing the evidence. Defendant had a verdict and award of a new trial to plaintiff was affirmed. Among other observations on voir dire, the court said it “should be liberally permitted where calculated to expose prejudice; conversely, where it is calculated to create prejudice, it should be denied. * * * An established limitation prevents those questions tending to commit the prospective juror to a course of action, or asking that he speculate what his reaction might be in sucli manner that he might not feel free to react otherwise.” See also National Bank of Rolla v. Romine, 154 Mo.App. 624, 136 S.W. 21, 22[1].

Appellants have not demonstrated an abuse of discretion. Eickmann v. St. Louis Public Service Co., supra, 323 S.W. 2d l.c. 807[10]. Their citations of State v. West, 69 Mo. 401, State v. Young, 119 Mo. 495, 24 S.W. 1038, State v. Punshon, 133 Mo. 44, 34 S.W. 25, State v. Miller, 156 Mo. 76, 56 S.W. 907, simply held that it was not error to excuse prospective jurors who stated they would not convict on circumstantial evidence. They did not involve propriety of voir dire questions and, as previously mentioned, the panel here was not asked if any member would refuse to infer negligence from circumstantial evidence. State v. Hoelscher, 217 Mo.App. 156, 273 S.W. 1098, and State v. Miller, Mo., 207 S.W. 797, simply held that it was error to refuse examination on whether jurors were members of the Ku Klux Klan or of a certain church, matters clearly involving possible prejudice in those cases. Similarly, the question in Shepard v. Harris, Mo., 329 S.W.2d 1, was not an attempt to pledge jurors to the award of an amount, but was a determination of the existence of “any conscientious scruples about awarding that amount.” The propriety of the question in Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, was not ruled but it was assumed improper for purposes of the opinion; and in Moore v. Middlewest Freightways, Inc., Mo., 266 S.W.2d 578, an unexcused juror had admitted his prejudice against the “big fellow” corporation.

At the request of plaintiffs the court gave Instruction No. 4:

“Your verdict must be for the plaintiff, Gloria Brown, if you believe:
“First, the defendant, Henry Eugene Bryan, was the driver and operator of the automobile, and
“Second, the right front door suddenly opened, and
“Third, such opening of the door and Gloria Brown being thrown from the automobile was the direct result of defendant, Henry Eugene Bryan’s negligence, and
“Fourth, as a direct result of such negligence plaintiff Gloria Brown, sustained damage.”

and Instruction No. 5:

“Your verdict must be for the plaintiff, George Brown, if you believe:
“First, the defendant, Henry Eugene Bryan, was the driver and operator of the automobile, and
“Second, the right front door suddenly opened, and
“Third, such opening of the door and Gloria Brown being thrown from the automobile was the direct result of defendant, Henry Eugene Bryan’s negligence, and
“Fourth, as a direct result of such negligence plaintiff, George Brown’s wife, Gloria Brown, was injured and plaintiff, George Brown, therefore sustained damages.”

Appellants charge that it was error to give these instructions “as required to be given by plaintiffs under Supreme Court Rule 70.01 for the reason that said instructions constitute a misstatement of the law of Missouri in that they are incomplete in failing to advise the jury that ‘the opening of the door and Gloria Brown’s being thrown from the automobile was sufficient circumstantial evidence to warrant a finding by the jury that the defendant was negligent, and that such occurrence would not ordinarily happen if the defendant had exercised the highest degree of care, and that the defendant possessed superior knowledge or means of information as to the cause of the occurrence than did the plaintiff.’ ”

Appellants concede that Instructions 4 and 5 are MAI 26.02(2). Their argument is that they are inadequate for a res ipsa loquitur case in that McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559[2], 92 A.L.R. 641, required three conditions to exist for res ipsa loquitur to apply: “(a) the occurrence resulting in an injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumental-ities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence”; that “the mandatory res ipsa M.A.I. Instruction 26.02(2) does not set forth the above three requirements nor is the jury told as * * * in Harke v. Haase (335 Mo. 1104, 75 S.W.2d 1001), l.c. 1004, supra: ‘Then you are instructed that such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent.’ ”

This contention fails for three reasons. First, the instructions follow MAI 26.02(2) and do require the findings of the conditions delineated in McCloskey v. Koplar, supra, and Harke v. Haase, supra. The finding required by paragraph first necessarily covers the element of management and control of the instrumentality involved; paragraph second supplies the element of an occurrence which does not ordinarily occur where the party in charge uses due care; the element of superior knowledge of the occurrence is implicit in the required finding that defendant was the driver and operator of the faulty instrumentality, and the finding of negligence is authorized upon the findings required by paragraphs first and second. McCloskey v. Koplar, supra, is recognized as the source of MAI 26.02(2), Committee’s Comment MAI p. 216, and it is likewise the authority cited in Harke v. Haase, supra. Second, since there was an MAI applicable to this res ipsa loquitur case, it was required to be given “to the exclusion of any other on the same subject,” Civil Rule 70.01(b), V.A. M.R. And third, “Plaintiffs, of course, cannot complain here about the Instruction^) given on their behalf and at their request.” Leathem v. Longenecker, Mo., 405 S.W.2d 873, 876[1].

Appellants charge error “in permitting the issue of seat belts and plaintiff (Gloria Brown) not using these being injected into the case by the defense over plaintiffs’ objection for this was not contributory negligence as there was no legal obligation under our law to so fasten a seat belt.” The argument is that “in the circumstances of the instant case a false, fictitious and collateral issue was injected into the case * * *. The fact that the prejudicial effect of such collateral and false issue poses difficulty in assessing what effect it may have is the very foundation upon which to base the assumption that this was prejudicial. To rule otherwise is to say that defense counsel was merely on a mission of distracting the jury from the central issue * * *. While certainly it must be conceded that it was an honorable effort on his part, nevertheless, with no legal obligation to do so it was indeed prejudicial for such issue to be injected into the case.”

All references to seat belts are contained in the following portions of the record.

On the recross-examination of Mrs. Brown the following occurred:

“Q. Mrs. Brown, this car that you were riding in was equipped with seat belts in the front seat, was it not? A. I really don’t know. Q. You don’t know whether it had seat belts or not? A. No, sir.

“(DEFENDANT’S EXHIBIT NO. 7 MARKED FOR IDENTIFICATION.)

“Q. (By Mr. Conway) I want to hand you Defendant’s Exhibit 7, Mrs. Brown, and ask you if that looks like the car that you fell out of? A. It could be, yes. Q. Well, is it a fair representation of Mr. Bryan’s automobile? A. I would say so. MR. CONWAY: All right. We want to offer in evidence Defendant’s Exhibit No. 7. MR. SHIRKEY: May I see it, please ?

“(WHEREUPON, the following proceedings were had WITHIN THE PRESENCE BUT WITHOUT THE HEARING OF THE JURY:)

“MR. SHIRKEY: Your Honor, there has been no pleading that any seat belts should have been fastened in this case and there has been no legal case ever decided that failure to fasten a seat belt is in any way negligent and that it is imperative on behalf of any rider in any automobile and I would object to that picture and the injection of seat belts into this case for that reason. THE COURT: Overruled.

“(WHEREUPON, the following proceedings were had WITHIN THE PRESENCE AND HEARING OF THE JURY:)

“Q. (By Mr. Conway) Now, looking at this exhibit, Mrs. Brown, doesn’t that refresh your recollection that there were two seat belts in the front seat that you were riding in? A. I don’t recall it at all. Q. You don’t recall it at all? A. No.

“Q. Do you recall Mr. Bryan and the other ladies in the car mentioning seat belts at any time before this accident ? A. No, sir, I do not. Q. Do you ever recall sitting on the seat belt buckles? A. No, sir. Q. Or having trouble with them falling out of the car and you had to put them back in? A. If I recalled that I would remember there were seat belts.

“Q. Your answer is that you don’t remember but you’re not denying that they were there? A. I do not know. Q. You don’t know one way or the other ? A. No, sir.

“MR. CONWAY: I would like to have the jury look at that, please.”

Further testimony bearing on this contention follows:

From the direct examination of Mr. Bryan: “Q. Now, did that car have any special equipment in it of any kind, Hank? *' * * A. Special equipment, I put seat belts in it * * *. Q. How many seat belts did it have in the front seat ? * * * A. Well, there was two regulation seat belts for adults and I had one in for my little boy * * * It was in the middle, between the other two * * *. Q. Did you ever make any mention of the fact that you had seat belts in the car? A. Well, to my knowledge it was brought up once for sure, maybe more, because I made some comment about my little boy’s seat belt and I said, Well, the one on the outside could wear the one and Thelma could put the other one around her.’ I chuckled over that because it was a little bit small. Q. Okay. Now, did you use your seat belt in the car, Hank? A. Yes, sir. Q. Did you do that routinely? A. Yes, sir. Q. Did you do that on the night this accident occurred? A. Yes, sir. * * Q. Hank, I want to show you what’s been marked for identification purposes, Defendant’s Exhibit 7 and I wonder if you could tell me what that is, please? A. That’s the side view of my old car, ’59 Rambler, taken from the right side of the car. Q. And does that fairly and accurately depict the interior of your car as it would look on the night of this accident, October 4, 1963? A. Yes, sir. MR! RUSSELL: I would like to offer Defendant’s Exhibit 7 at this time. MR. SHIRKEY: I have no objection. I thought it was offered. MR. RUSSELL: I don’t think it was received at that time.”

And from his cross-examination: “Q. She (the passenger in the middle of the front seat) was not fastened in any seat belt either, was she? A. No, sir. Q. The ladies in the back seat weren’t fastened by any seat belt, sir? A. They could not. * * * There wasn’t any in the rear seat.”

And a subsequent owner, Ray Evans, testified: “Q. Now, in the car when you purchased it, Mr. Evans, were there any seatbelts? A. Yes. Q. How many? A. Two sets, one in the front seat, one on each side.”

Other trial incidents related to this contention were:

Defendant’s answer charged that plaintiffs’ injuries resulted from Mrs. Brown’s own negligence; and defendant offered an instruction on contributory negligence, refused by the court, based on failure to use a seat belt, and defendant’s jury argument included the following: “ * * * Let’s look at this car. It had seat belts. You all saw the pictures. She got into that car and got out of that car seventy-two times. Here are the seat belts over here in Defendant’s Exhibit 7, and you know, folks, if you get in and get out of there seventy-two times you’ve got to sit on that seat belt, you’ve got to kick it or do something to know that it’s there. You have to be aware that it’s there if you’ve gotten in and out seventy-two times, no doubt about that. * * * If she wanted to be so safe why didn’t she reach around and grab that, seat belt and ‘click’, she would have been right in, couldn’t have fallen out. That’s what seat belts are for, folks. It’s just as plain as anything, you all know that all the car manufacturers are putting them out-now. They have to. Put that seat belt on, ‘click’; if she had done that, this accident couldn’t have happened, just couldn’t have happened. * * * When Mrs. Brown fell out Hank was in the front seat. He had his seat belt on. He stopped the car, turned the motor off, undid his seat belt, went around the car back to where she was * * *. Folks, I just have a few minutes here to talk to you on behalf of the defendant. It seems to me that this is a case that’s quite simple. It’s a situation where the plaintiff just didn’t do what she should have done. She should have buckled that seat belt. You know, you go down the highways these days now and here are these signs, ‘Buckle up for Safety’. That’s just what this plaintiff didn’t do. She just didn’t buckle that seat belt.

“MR. SHIRKEY: Your Honor, I object to this. There’s no charge of that in the petition, no charge of that made to the jury and beyond the instructions of the Court.

“THE COURT: Objection will be sustained.”

These excerpts show that the first mention of seat belts came in the recross-examination of Mrs. Brown and there was no objection to the questions or answers. Next came Exhibit 7 which was objected to on the ground that there was no pleading relating to seat belts and that there was no obligation to fasten a seat belt as an avoidance of contributory negligence. However, a general charge of contributory negligence was pleaded against Mrs. Brown, Martin v. Turner, Mo., 306 S.W.2d 473, 477[2-3], and the picture of the interior of the car was a fair and accurate representation of the interior of the car from which Mrs. Brown fell. It was ultimately received in evidence with plaintiffs’ counsel stating “I have no objection.” Mrs. Brown then continued to be cross-examined about seat belts without objection, and there was no objection to any of the other witnesses testifying about seat belts. When objection ultimately was made to defendant’s argument, and then only after several previous references to seat belts without objection, the court granted all the relief requested by plaintiffs. At no time was there a request to instruct the jury to disregard, to strike or to withdraw any of the testimony, exhibits, or argument relating to seat belts. It is not necessary to determine whether there is any legal obligation in Missouri to fasten a seat belt or whether failure so to do is contributory negligence (for discussions in other jurisdictions on this question, see Brown v. Kendrick, Fla.App., 192 So.2d 49; Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154; Kavanagh v. Butorac, Ind.App., 221 N.E.2d 824; Mortensen v. Southern Pacific Co., Cal.App., 53 Cal.Rptr. 851; Bentzler v. Braun, Wis., 34 Wis.2d 362, 149 N.W.2d 626; Lipscomb v. Diamiani, Del., 226 A.2d 914) because, although pleaded and tendered, no instruction was given submitting that issue. Consequently, this point is simply one of admissibility of evidence and propriety of argument, and the record does not convict the court of prejudicial error in either respect. Section 512.160, V.A.M.S.; Prater v. Atchison T. & S. F. R. Co., Mo., 410 S.W.2d 76, 79[2]; Appelhans v. Goldman, Mo., 349 S.W.2d 204, 207[46].

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.


text:
    Jeanne M. GODWIN, Appellant, v. DINKLER ST. LOUIS MANAGEMENT CORPORATION, Respondent.
    No. 52496.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 9, 1967.
    Israel Treiman, Gary S. Heifetz, Shifrin, Treiman, Schermer & Susman, St. Louis, for plaintiff-appellant, Jeanne M. Godwin.
    Jerome Kalishman, Blumenfeld, Kalish-man, Marx & Tureen, St. Louis, for defendant-respondent, Dinkier St. Louis Management Corp.
   BARRETT, Commissioner.

Plaintiff, Jeanne M. Godwin, in this action in two’ counts against Dinkier St. Louis Management Corporation sought to recover $34,267.75 damages for breach of an alleged employment contract and $50,-000.00 actual and $50,000.00 punitive damages for alleged false representations with respect to her employment. The first count alleged in substance that when the defendant purchased the Diplomat Motel in which she was employed at a salary of $600.00 a month, “the Defendant offered to employ, and the Plaintiff agreed to he employed, as Manager of said Motel * * * for the same salary she had been receiving from Diplomat, Inc. Plaintiff and Defendant both knew, understood, and intended that the term of said employment was to be for a substantial period of time, to wit, not less than five (5) years.” (Emphasis supplied.) The second count alleged that in the course of negotiations leading up to the purchase of the motel “Defendant repeatedly stated and represented that it contemplated making no changes in the management staff of said Motel after it acquired it, and that it would retain Plaintiff as Manager of the Motel for a long and indefinite period of time. Alleging her reliance on the representations, she charged that “Defendant well knew that it had no intention of employing Plaintiff except for the aforesaid short period of time (transition period), but Defendant nevertheless did fraudulently and with wilful disregard of the consequences to Plaintiff, induce and entice Plaintiff to remain as Manager of said Motel by representing and pretending to keep her in said position for a long and indefinite period of time.” Upon the pleadings, plaintiff’s petition and defendant’s answer, answer to interrogatories, and plaintiff’s deposition the defendant moved for summary judgment upon the ground that upon the record thus made there was no genuine issue as to any material fact and that as a matter of law the alleged causes of action were barred by the statute of frauds. The trial court was of the opinion that plaintiff’s entire cause was based upon the defendant’s oral promise to continue her employment for some indefinite time into the future and that when made defendant had no intention of keeping the promise. The court was of the further opinion that upon this theory the plaintiff had no cause of action under existing Missouri law and accordingly entered summary judgment against the plaintiff and she has appealed.

In her brief here these are appellant’s three points relied on: (1) “The rule applied by the trial court is contrary to the overwhelming weight of authority.” (2) “The rule applied by the trial court is illogical and would operate to encourage rather than prevent fraud.” (3) “The rule applied by the trial court has been unnecessarily invoked in Missouri cases that seem to follow it.” These points or assignments of error are in no way related to the facts of the cause or to the court’s ruling other than in a most abstruse manner and of course are made without regard to the rules of this court, particularly Civil Rule 83.05, V.A.M.R. They constitute a more flagrant violation of the rules than the brief in Yates v. White River Valley Electric Co-operative, Mo.App., 414 S.W.2d 808, but there is no motion to dismiss the appeal and it is possible, perhaps, to understand the underlying issue and accordingly dispose of the appeal. The respondent’s brief likewise has no factual relationship, its abstract point one in response is this: “The undisputed law of this state is that fraud cannot be predicated on a mere promise even though accompanied by a present intention not to perform it. This rule of law has worked well and justly, and should not be disturbed.” Its second point is that “The case at bar should not be used as the basis for a re-examination of the existing law because it would also require a re-examination of the law concerning the Statute of Frauds and because plaintiff would not have a good cause of action even if the law were overturned.” In fairness to counsel it should be said that they have written scholarly briefs abstractly supporting on the one hand and abstractly attacking on the other hand what is conceded to be the rule in Missouri “ ‘that fraud cannot be predicated upon a mere promise even though accompanied by a present intention not to perform it on the ground that even under such circumstances the promise is not a misrepresentation of an existing fact.”’ Reed v. Cooke, 331 Mo. 507, 515, 55 S.W.2d 275, 278; Yerington v. Riss, Mo., 374 S.W.2d 52, 59; Younger v. Hoge, 211 Mo. 444, 111 S.W. 20, 18 L.R.A.,N.S., 94; Wade v. Ringo, 122 Mo. 322, 25 S.W. 901.

The appellant does not claim that there is no factual basis for the court’s summary judgment, she admits that “The trial court applied what seems to be the existing rule of law in the State of Missouri to bar plaintiff’s case in fraud.” The entire thrust of her argument is that these four Missouri cases follow a minority view and are unsound and that “(t)he case at bar presents an ideal opportunity for reexamination of the rule of Reed v. Cooke.” In her argument the only attempt to correlate the facts of this case with her contention that the rule should be changed and these cases overruled is this single statement: “In the case at bar the record indicates that there was no way for plaintiff to be aware of defendant’s true intention. She was constantly assured that her employment would be for a substantial time, she was sent to Chicago for what she thought was not only to get new business, but to make initial acquaintances in the defendant’s organization which hopefully would last a long time. * * * Defendant’s intention became known to plaintiff only upon her discharge (which was in less than a month) after defendant had availed itself of plaintiff’s knowledge and skill to get through the transition period.” In these circumstances it may only be said as to the count in fraud that the court’s judgment upon this phase of the cause is not in error: “It is the opinion of the Court that the rules as set out in the case of Yerington v. Riss, 374 S.W.2d 52, 1. c. 59, quoting from Reed v. Cooke, the rule to be applied in this state is ‘that fraud cannot be predicated upon a mere promise even though accompanied by a present intention not to perform it on the ground that even under such circumstances the promise is not a misrepresentation of an existing fact.’ ”

In the first count the petition alleged that the term of employment was “to be for a substantial period of time, to wit, not less than five (5) years.” It is not claimed that there was a written contract between plaintiff and defendant and in the course of her deposition her counsel stipulated that there was “no written employment contract.” There is in the file two interoffice letters, one from Mr. Dinkier to Mr. Rosenberg which contained this statement: “We want all the employees to feel secure and we do not ever contemplate making any changes as we would like to keep the same staff.” Then on the stationery of Transcontinental Investment Corporation, the parent company, on June 14, 1962, Mr. Bechler wrote this to Mr. Rosen-burg: “I have just spoken to Howard about the management situation in the Diplomat, and he has confirmed the prior agreement to continue with the present staff. I therefore suggest that the staff be told this if they are concerned.” This correspondence was not addressed to Miss Godwin, the subject of the statute of frauds has not been briefed by her, and in these circumstances the action alleged in count one is barred by the statute of frauds; “No action shall be brought * * * upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized * * RSMo 1959, § 432.010, V.A.M.S.

For the reasons indicated 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.