text:
    STATE of Missouri, Respondent, v. Roosevelt SAIN, Appellant.
    No. 52151.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.
    James A. Bell, St. Louis, for appellant,
    Norman H. Anderson, Atty. Gen., Gerald L. Birnbaum, Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

Defendant was found guilty of the illegal possesion of a narcotic drug. Trial was by the Court, sitting without a jury. Defendant was sentenced to a term of ten years. Section 195.020, RSMo 1959, V.A. M.S., as amended, Laws 1965. A prior federal conviction and imprisonment for a narcotic violation was also alleged, to which we shall refer later. The waiver of a jury trial was shown by entry made of record, in conformity with Criminal Rule 26.01, V.A.M.R.; the Court made general findings as required by that Rule, and also filed a memorandum opinion. No specific findings or declarations were requested. This appeal was taken after a motion for a new trial was overruled. Defendant was represented at the trial by counsel of his own choice, who has also briefed the case for him here.

The sole question raised on this appeal is the alleged error in overruling defendant’s motion to suppress evidence and in the admission of certain exhibits, all of which depends upon the existence of probable cause for defendant’s arrest. Counsel state that a pretrial motion to suppress was overruled, but the one we consider here, the only one appearing in the transcript, was filed at the beginning of the trial and was heard and ruled upon a part of the trial evidence. It was then overruled and the trial proceeded. The motion alleged that at the time of defendant’s arrest he was not committing any felony or misdemeanor, that the police had no warrant, that the arrest and the search incident thereto were unreasonable, unlawful, and in violation of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and of Sections 15 and 19 of Article 1 of the Missouri Constitution, V.A.M.S., and that any evidence so seized should be suppressed.

The facts came solely from testimony of the State’s witnesses. Detective William Cox and his partner Detective James Schultz were in a drugstore at 1000 North Sarah in St. Louis on the morning of January 23, 1965. Defendant, whom Cox had known previously, came in; he walked to the service counter where the owner was standing, but began looking around and “fidgeting”; Cox also testified that he made “a few gyrations with his body,” the druggist asked him what he wanted, that he stuttered, and he then asked for some cigarettes. At that'point the officers moved over to a position a few feet behind the defendant and, while standing at the counter, he began “rummaging” in and out of his pockets, “all of them.” He put his hand in his right “suit coat pocket” and when he pulled it out it contained “a tinfoil packet, rolled, having a brown piece of paper around it, this being about two inches by two inches; also contained was a piece of wax paper which was approximately one inch by three inches, rolled; * * Upon looking at these things, defendant hurriedly shoved them back in his pocket, glanced around, and continued searching until he found some bills in his pants pocket. He then got some change and purchased his cigarettes, but he kept “glancing around * * * looking at us.” Defendant then hurried out of the store; the officers followed and called to him; he turned and looked at them but started to “continue on”; Officer Cox ran up to him, grabbed his arm and “placed him under arrest,” but as he did so the defendant “shoved his hand into his right front coat pocket and withdrew these items which I observed previously and attempted to try and throw them; however, I grabbed his hand and he had his fist clenched with it, and after a brief tug I retrieved these objects from his hand.” At this point defendant’s counsel was allowed to cross-examine the officer in support of his motion to suppress, and we shall relate anything new or different which was developed. Defendant paid for the cigarettes; the officers had no warrant; they stopped defendant upon a suspicion “based on experience”; and he was arrested because they suspected him of possession of narcotics; they did not know positively what the packets contained, but they wanted to determine this because of his suspicious actions and because they had seized “narcotics of this type” before. Officer Cox also testified: that a few months earlier defendant had told him that he had been a user of narcotics; that he stopped defendant and arrested him because he had a “firm conviction of what these packets; contained”; that he had seen numerous packages like that before, having been on the narcotics detail for two years out of district stations, and that he had seen literally hundreds of such packages which had been seized in raids; that some had contained heroin and some amphetamine; that he had seen no similar packages used for anything else; that while in the drugstore defendant had pulled the packages entirely out of his pocket when Cox was two or three feet to his rear. He further described the wax paper packet as being about one inch by three inches with the ends “curled or folded over into a sort of like sealed package.”

At this point the Court overruled the motion to suppress and the two packets were offered and received as exhibits, having been specifically identified and traced to and from the police laboratory. Officer Cox testified further to certain oral statements made by defendant soon after his arrest; these were to the effect that he was driving a cab, that a man by the name of Hemphill entered it, asked him if he wanted to make some money and upon receiving an affirmative reply gave him the packets in question, told him to buy some gelatin capsules and that they would meet and “make up the caps” and sell them (later amended by the witness by stating that defendant was to fill the capsules); that he, defendant, knew that the packets contained heroin, but that Hemphill did not keep the appointment. Cox also testified: that they learned that defendant did have a cab outside the drugstore; that he had advised defendant before he made the statements that he need not make any statement which might be used against him; that he was “allowed counsel” and that they could call one for him; that Detective Schultz was present at the time, and that no threats or promises were made. The Court overruled an oral motion to suppress the statement, which motion was based upon the contention that it was not made voluntarily. The Court thus ruled that the oral statements were voluntarily made.

The other officer, Detective James Schultz, substantially corroborated the testimony of Officer Cox. He, too, saw the defendant remove the two small packets from his pocket in the drugstore; he testified that when defendant was arrested the two packets were taken from him and also a box of gelatin capsules; and he related defendant’s oral statements concerning the man in his cab who “gave him a package of heroin.” At that time an oral motion to suppress the statement was again overruled. This witness testified also: that the packages which they saw in defendant’s possession in the drugstore were similar to ones which had contained narcotics to his knowledge in previous cases; that they arrested defendant “for possession” of narcotics and to determine what he had in the packages.

A chemist from the police laboratory in St. Louis testified that inside the wax paper package there was another piece of paper; that this paper contained 6.05 grams of heroin, a narcotic derived from morphine; that this was enough to fill about 200 capsules of the size found on the defendant. The silver or foil package apparently contained nothing. Both of these exhibits and the green box of empty capsules were received in evidence. Officer Cox, recalled, testified somewhat more specifically to the mode in which the wax paper was folded and “curled” at the time of defendant’s arrest, stating that he had seen that kind of wrapping before and that it was unusual.

It was stipulated that the allegations in the information of a prior conviction were true, and that certain exhibits proffered by the State would so show; these were offered and received but they are not in our transcript. Defendant’s counsel contended only that such a conviction was not for an offense which would “constitute a felony in the State of Missouri,” presumably having in mind our Second Offender Act. Section 556.280, RSMo 1959, V.A.M.S. The Court took this contention along with the case. After allowing time for briefs, the Court found that beyond a reasonable doubt defendant was guilty of illegal possession of heroin, and further found: that the defendant had been convicted in January, 1958, in the United States District Court for the Eastern District of Missouri of unlawfully acquiring and transferring marihuana, and that he was sentenced and imprisoned therefor; that such offense was not one which would have been punishable under Missouri law by imprisonment in the penitentiary, but that it did constitute a felony violation of the laws of the United States “relating to narcotic drugs” under § 195.200, subd. 1(2), RSMo 1959, V.A. M.S., and that defendant was thus subject to imprisonment for a term of from five years to life. We need not consider further these latter findings, for even under § 195.200, subd. 1(1), as a first offense, defendant would be subject to imprisonment for a term tip to a maximum of 20 years. He was sentenced to serve ten years.

We thus reach the basic question, —namely, was there probable cause for defendant’s arrest? We have concluded that very clearly there was. The officers first observed defendant’s “fidgety” and rather furtive actions in the drugstore; they then saw him pull out of his pocket two “packets” which were definitely recognized by them as being of the type frequently used for narcotics; one officer had been told by defendant that he had been a narcotics user; when the officers called to defendant outside the store he did not stop but continued on, until one of them took hold of him and placed him under arrest. He was ;arrested because he was suspected of possessing narcotics, and we hold that under these circumstances he was reasonably so suspected. Our conclusion is fully justified by the following cases: State v. Jefferson, Mo., 391 S.W.2d 885; State v. Owens, Mo., 391 S.W.2d 248; State v. Cantrell, Mo., 310 S.W.2d 866; State v. Byrth, Mo., 395 S.W.2d 133; State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551; State v. Napper, Mo., 381 S.W.2d 789; State v. Witt, Mo., 371 S.W.2d 215. In Jefferson, supra, the Court said at 391 S.W.2d loc. cit. 888: “What constitutes reasonable grounds to believe that an offense has been committed by the person arrested is incapable of an exact definition beyond saying that the officer must not act arbitrarily, must exercise his discretion in a legal manner, must use all reasonable means to prevent mistakes and must be actuated by such motives as would influence a reasonable man acting in good faith. State v. Cantrell, Mo., 310 S.W.2d 866, 869[6]; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 225[2, 3], 228[10]; 13 L.Ed.2d 142.” In that case when defendant opened a door the officer saw a syringe and needle in his hand and a cloth wrapped around his arm. This was held to constitute “reasonable grounds to believe” that he was in possession of a proscribed drug, and his arrest was held to be lawful. In Owens, supra, the defendant was seen, while walking across a parking lot at about 1:00 a. m., to drop or throw a “shiny” object to the ground; when the officers came up he dropped a small paper package; this was picked up and found to contain capsules containing a powder. He was then arrested and his arrest was held to be lawful. In Humphrey, supra, it was held that officers might lawfully arrest one who had been carrying papers in his hand which the officers recognized as “policy” sheets. In Cantrell, supra, a car was being driven in an unusual manner on a city street, at 1:45 a. m., namely, by stopping and then moving very slowly. while the occupants “looked around”; the officers stopped the car and saw in plain view a 30-30 rifle and a box of shells on the rear seat; the rifle was found to be loaded. The arrest and subsequent search of the car were held to be lawful. State v. Napper, supra, is also directly applicable.

Some of the cases cited by defendant are only applicable in that they recognize the general requirement of probable cause for an arrest, in the absence of a warrant. There can be no dispute about that. The only cited cases which, in our view, merit discussion, are Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, and Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, both of which we find to be distinguishable. In Beck, the Court recognized, at loc. cit. 96 of 379 U.S., at loc. cit. 228 of 85 S.Ct., that: “When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would ‘warrant a man of reasonable caution in the belief’ that an offense has been committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543.” There officers had stopped a car, arrested the defendant, searched the car and found nothing; later, upon a further search at police headquarters, “numbers slips” used in a form of gambling were found in the car. The arrest was held to have been unlawful because at the time the officers saw nothing to indicate any violation of law, and the only evidence concerning their information or knowledge was that one of them knew that defendant had a record of arrests or convictions concerning “schemes of chance.” This was held “too scant” to constitute probable cause to suspect that the defendant was at the time violating the law. In Henry, defendant was seen on two occasions carrying cartons to a car occupied by another and stopped in an alley; the officers had heard that the other man might be involved in thefts from interstate shipments. The agents stopped the car as it was driven away and took both men and the cartons to their office; there the contents were examined and the men placed under formal arrest. Upon that search it was found that the cartons contained stolen radios. The Court held that the information and observations of the officers at the time of the arrest did not constitute probable cause for the arrest. It was conceded that the actual arrest took place at the time the car was stopped; at that time the officers were said to have had no knowledge that the packages were “contraband”; the Court further held that the rumor about defendant’s companion was “practically meaningless,” and that the arrest could not be justified by what the subsequent search disclosed. We do not find that these cases, or any others cited, are controlling or persuasive here. The arrest in the present case was lawful, and it was made upon reasonable and probable cause to suspect that defendant was then committing a crime.

Little need be said concerning the so-called “search”; reference is made more or less incidentally to its supposed unlawfulness. It is clear that officers may conduct a prompt and reasonable search as an incident to a lawful arrest. State v. Green, Mo., 292 S.W.2d 283; State v. Edwards, Mo., 317 S.W.2d 441; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; Arwine v. Bannan (CA 6), 346 F.2d 458; State v. Brookshire, Mo., 353 S.W.2d 681, certiorari denied 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119; State v. Witt, Mo., 371 S.W.2d 215. A search of defendant’s person here was a reasonable incident of his arrest. So far as concerns the packets and the heroin taken from him, there was no search; when he was stopped he took these from his pocket and held them up to open view, trying to dispose of them. The seizing under those circumstances was not a search and was entirely lawful. State v. Jefferson, Mo., 391 S.W.2d 885; State v. Napper, Mo., 381 S.W.2d 789; State v. Owens, Mo., 391 S.W.2d 248; State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551. The only object apparently seized as the result of a search was the box of empty capsules; defendant did not complain specifically of that in his motion for a new trial, and makes no such point concerning it here; moreover, it is obvious that a search of defendant’s person at the time and the seizure of such an object was entirely lawful. We hold that none of defendant’s constitutional rights, federal or state, were violated.

We have thus dealt with the only questions raised in defendant’s brief. We have examined those parts of the record required by Rule 28.02 and find no error. The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    Maxine AUBUSCHON, Appellant, v. John WITT, Respondent.
    No. 51610.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Rehearing Denied March 13, 1967.

      Hubert I. Binowitz, St. Louis, for plaintiff-appellant.
    R. E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   PRITCHARD, Commissioner.

The jury verdict and judgment were against plaintiff in her $65,000 action for personal injuries she alleged were sustained as a result of an automobile collision which occurred in the state of Illinois on Highway 50 Bypass.

The issues involve (1) whether plaintiff was entitled to have given her offered and refused Instruction No. C: “If you find the issues in favor of plaintiff, and if you find that plaintiff’s injuries were not accurately diagnosed by her physician and as a result thereof plaintiff suffered damage, you are instructed defendant is liable to plaintiff for such damage. ‘Not in MAI.’”, embodying the legal proposition that the risk of improper treatment rendered by the physician is borne by the tort-feasor; (2) whether the trial court erroneously sustained an objection to plaintiff’s closing argument that the validity of the discogram (a diagnostic procedure) was not in issue; (3) whether the trial court erred in permitting defendant’s counsel in argument to inform the jury that absence of two of plaintiff’s medical witnesses allowed the adverse inference that their testimony would be unfavorable; (4) whether the trial court erred in allowing defendant to argue that he was not guilty of driving the trailer which struck plaintiff onto the wrong side of the road; (5) whether under the best evidence rule there was error in permitting defendant’s medical witness to testify as to results of a discogram experiment without producing X-rays; (6) whether there was error in giving for defendant Instruction No. 4 permitting the jury to find that it was not the result of negligence on defendant’s part that caused or permitted the trailer to travel on the left half of the highway, or that plaintiff was not damaged as a direct result of the negligence submitted in Instruction No. 3, in that it was given without evidence to support it and was contrary to the direction of Missouri Approved Instructions; and (7) whether the court erred in permitting defendant to argue that Dr. Schaerer, a medical witness, was a “Swiss” and had a “Swiss accent” as invoking base prejudices on the part of the jurors serving to deny plaintiff a fair trial.

As to issue (1) above, plaintiff says that the risk of improper treatment rendered by the physician is borne by the tort-feasor, a proposition which has long been recognized, not only in Illinois, which is the law governing this case, but by the majority of other jurisdictions, including Missouri, citing Pullman Palace Car Co. v. Bluhm, 109 Ill. 20; 100 A.L.R.2d 815.

Defendant’s two-wheel trailer (belonging to a Boy Scout Troop) became detached from his truck and struck plaintiff’s husband’s automobile, in which she was a passenger, in the side. After the collision, which happened on November 25, 1962, plaintiff stated to a man that she didn’t believe she was hurt, but after leaving the scene her neck started “burning” and swelled slightly on the left, and she vomited. She went to Centerville Hospital and was seen subsequently by a Dr. Anderson who administered heat treatments, later ultrasonic treatments and medication for pain, which she never had before the collision. At Dr. Anderson’s recommendation plaintiff saw Dr. Lloyd Hill on December 20, 1962, who in turn referred her back to Dr. Anderson whom she saw until March, 1963. She had learned of Dr. Jacques P. Schaerer, a neurosurgeon, from friends, and she requested her Illinois counsel to make an appointment for her, which he did.

Plaintiff saw Dr. Schaerer, whose discography techniques are questioned with respect to Instruction No. C, above, once a month until May, 1963. She entered Missouri Baptist Hospital at which time a dye was inserted into her neck (the challenged discogram diagnostic technique for ascertaining ruptured cervical discs). Dr. Schaerer saw plaintiff once a month until September, 1963, when she again entered the hospital when two discs were removed from her neck and a bone from her hip was grafted in her neck.

Dr. Schaerer testified that ' plaintiff’s discogram X-rays showed the left side of the 4th, 5th, 6th and 7th cervical vertebrae with a radio-opaque substance being introduced by two-needle technique in the disc. At the time of injection of the dye, plaintiff experienced pain in the left shoulder with most of the pain in the right shoulder and arm. The dye was going to the right side, while in a normal disc the substance remains in the center except in older persons. The extrusion to the right of the dye means a space or cleavage present in the tough outer right of the annulus fibrosis which represents a tear, a disc that is not functioning properly, but the main significance in plaintiff’s case was pain produced by the injection.

After the operation, plaintiff’s recuperation was uneventful, and on October 27, 1963, Dr. Schaerer noted that she had considerable improvement with no attacks of pain, but there was spot tenderness. She still has limitation of the spine from the presence of the bone dowels. Her injuries would give her difficulty in her occupation as a seamstress. X-rays taken January 21, 1964, showed a better position and alignment (of the vertebrae) and on August 26, 1964, an X-ray showed the result to be good.

Discography is a relatively new controversial procedure requiring experience. Dr. Schaerer had performed discograms since 1960, and recently published an article in a medical journal. He lectured on the subject in 1962 in Switzerland and Germany. He discussed the risks of discography with plaintiff, a potential risk of carrying germs bn the skin into the depth and produce inflammation of the disc. He has performed probably between 300 and 400 discograms in the neck, averaging probably two injections each. Out of 195 patients 98% have had what he considers to be abnormal, deranged, herniated or ruptured discs. Of the 14 neurosurgeons practicing in St. Louis only Dr. Schaerer uses the discogram as a diagnostic procedure. It could not be ascertained from the actual removal of the disc whether it had been herniated or ruptured.

Dr. Earl P. Holt, M.D., specializing in orthopedic surgery, testified for defendant. He has performed discograms which he described as a test in which a sterile, hollow needle is introduced into an intervertebral disc. The procedure consists of injection of a small amount of radio-opaque material which would cast a shadow on an X-ray which is taken immediately after so that the pattern of distribution can be shown. Dr. Holt did research study during the course of which he performed discographies on patients or people who have no complaints of injury or pain or disability in their necks. According to Dr. Holt, it appeared at first glance to be something which might be useful in establishing whether a disc in the neck was ruptured. He performed a few on patients and was struck by the fact that they were all positive. He set out to find a group of individuals with no neck pain at all and no neck injury and no history of an old injury. He was permitted to make a study of inmates at the Missouri State Penitentiary in the early fall of 1963, of whom, after screening, he found fifty between the ages of 21 and SO. On testing every one of forty-nine had a positive disco-gram — the majority of them had leakage of the contrast material (opaque dye) or extra-vasation of the so-called abnormal pattern in at least two of the three spaces tested — of the 148 discs tested in this manner, 138 or 93 and a fraction per cent were positive. In the positive pattern the material injected had appeared to run out in one or the other direction and could be detected by X-ray.

Dr. Holt’s opinion was that the use of the discogram for the purpose of diagnosis was quite invalid and misleading — a cervical myelogram is of diagnostic value which is rather time-honored and is of known value, and to date is the proper test to apply. Dr. Henry E. Lattinville testified that from his familiarity with the discogram he concluded that it was unreliable because most persons over 20 years of age have degenerated discs which permit the leaking of the dye, which also leaked in his experience when he jiggled the pressure and re-injected the dye. In Dr. Lattinville’s opinion the discogram has no diagnostic value.

It is undoubtedly the law in Illinois, Pullman Palace Car Co. v. Bluhm, supra; Chicago City Ry. Co. v. Saxby, 213 Ill. 274, 72 N.E. 755, 68 L.R.A. 164; Variety Mfg. Co. v. Landaker, 227 Ill. 22, 81 N.E. 47; Horney v. St. Louis & Northeastern Ry. Co., 165 Ill.App. 547, that an injured plaintiff may recover from the original tort-feasor damages for additional harm for misdiagnosis by her physician. Respondent so concedes. The law is such in many other jurisdictions. Anno. 100 A.L.R. 2d 808. There is a requirement in Illinois and other jurisdictions that the plaintiff use ordinary care in the selection of her physician. Pullman Palace Car Co., supra; 100 A.L.R.2d 815. It is doubtful that the evidence created an issue that plaintiff herself was negligent in selecting her physician, but we need not consider whether Instruction No. C should have submitted that proposition for a finding, as urged by defendant. We note that the regular damage instruction (No. 6, MAI No. 4.01) is: “If you find the issues in favor of the plaintiff, then you must aware the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any injuries and damages you believe she sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in evidence.” (Emphasis added.) Thus, it is apparent that the regular damage instruction covered the entire injury theory of plaintiff, and there was no limitation or restriction upon plaintiff’s right to argue to the jury the matter of recovery for not only the original injury but for any further damage occasioned by treatment which would directly and proximately result from the negligence of defendant. The instruction given (being short and simple) follows that required by MAI. We find no error in refusing Instruction No. C, and that issue is ruled against plaintiff.

As to issue (2) above, the record reveals that on closing argument plaintiff’s counsel said: “Take these instructions and read them two times, three times, four times. They don’t say in here anywhere if you find the discogram was a bad technique. If you do find for Mr. Witt, I dare Mr. Keaney to point out that sentence, because it had no bearing in this situation. MR. KEANEY: Your Honor, I’m going to object to that. There may not have been any instruction submitted to the jury. He is inferring I did not submit such an instruction. THE COURT: Objection sustained.” Plaintiff says the ruling limited her in making an observation in argument which was consistent with the instructions. Nothing was mentioned in the instructions except the issues of negligence, no negligence, and damages. The argument was not consistent with the instructions given. As pointed out by defendant in his objection and here, the argument does infer that he should have offered such an instruction. The court’s ruling was not error.

Defendant argued that the jury might infer that from the nonproduction as witnesses two of plaintiff’s treating and examining physicians, Dr. August and Dr. Hiebert, that their testimony would be contrary to the position “they” (meaning plaintiff) now take. Although it would have been better to have used a word other than “contrary” to argue the permissible inference (Block v. Rackers, Mo., 256 S.W.2d 760, 764; Williams v. Ricklemann, Mo., 292 S.W.2d 276, 283) that such testimony would be unfavorable, there is no error. We do not attribute to counsel’s word “contrary” in the context used, Webster’s New Twentieth Century Dictionary, Unabridged, 1963, plaintiff’s urged definition, “altogether different, opposite, in an opposite direction, antagonistic or opposed.” There are other definitions: “Opposed to one’s interests or desires; unfavorable or prejudicial.” (Our emphasis.) Webster’s New International Dictionary, 2nd Ed., Unabridged. Under medical testimony (Dr. Lloyd James Hill) in the case, which we do not detail, there was a question as to whether plaintiff suffered a disc injury in the collision. Thus, it was a permissible inference that the absent physicians’ testimony would be “contrary” to other testimony that she thus had such injury. The contention is ruled against plaintiff.

With respect to issue (4) above, the facts are: John Witt was operating a Chevrolet pickup truck upon which he had attached a steel bumper assembly, which he had made. The bumper assembly, being welded to the frame, had a hole in it for a trailer bar. A chain was welded to the tongue of the two-wheel trailer with its two ends going forward from it. For the trip on the day of the collision, Witt himself connected the trailer hitch to the back of the truck, by loosening a long screw, sliding the wedge back and dropping the tongue over the ball on the truck. Then the wedge was pushed forward by running the screw back down to where it locked under the ball so it could not raise off. Then the chains (two ends) on the tongue were brought forward and bolted onto the bumper itself on the truck. He screwed down with pliers the lock to prevent the bolt threads from unscrewing. At the time the trailer (being loaded with Boy Scout equipment for an overnight trip) came loose from the pickup truck, Witt made a left turn onto Highway 50, and while he was still in low gear he heard an abnormal noise. He slowed and the trailer came up even with his left side, slid on at an angle with the highway with the tongue making sparks. The left front corner of the trailer slid into the side of the Aubuschon car, which was then stopped, at the front door pushing it in. Witt’s speed was 15 miles an hour or less at the time he heard the noise indicating that something was wrong. Witt had moved over to the right so there was room for the trailer to go between him and the Aubuschon car, and he stopped directly across from it.

After the collision Witt made an examination of the hitch on the back of his truck. The ball was still in the socket and its shaft was broken off. He had been using the hitch on the back since he built it and put it on. The ball was a purchased item, it being a continuous piece with the shaft which was threaded and protruded through the boiler plate and a reinforced lock washer -and a large nut were locked up underneath the bumper. A link of chain'was welded to the shaft of the trailer with two ends thus provided to go forward to the bumper. The free end of each part of the chain was placed around the bumper, with a bolt through the chain — the way the Scout trailer had always been used, and he merely used it as they had.

On cross-examination, Witt testified that the chain welded to the tongue was one chain, anchored in the center. The chain did not break at the weld but its links broke. He had the ball about two years and it was not very old when he obtained it.

Plaintiff read into evidence portions of the motor vehicle statutes of Illinois relating to the definition of a motor vehicle (every device in, upon or by which any person or property is or may be transported or drawn upon a highway, here a Boy Scout trailer), driving on the right side of the highway, and passing vehicles proceeding in opposite directions on the right, and the requirement that trailers have, in addition to the regular coupling device, suitable and adequate safety chains or devices attached to the corners of the trailer frame of sufficient strength to pull the trailer and its maximum load, and provided that trailers having a gross weight of 3,000 pounds or less may be coupled to the towing vehicle by means of clamp-on hitches which hitches shall be designed and installed to effectively transfer stresses to the chassis of the towing vehicle, and of sufficient strength to hold and control such trailer when fully loaded. Such trailers shall be equipped with two safety chains or cables which are permanently affixed to the tongue of the trailer, the two free ends of which shall be attached to the towing vehicle.

The verdict-directing Instruction No. 3 submitted negligence of defendant in causing or permitting the trailer to travel on the left half of the roadway. Defendant’s converse Instruction No. 4 submitted that it was not the result of any negligence on his part that caused or permitted the trailer to travel on the left half of the highway. Plaintiff says that in permitting defendant’s counsel to argue, “Did he drive the trailer over there ?” was error because even if such act were not done it would constitute no defense to plaintiff’s submission of causing or permitting (emphasis plaintiff’s) the trailer to travel to the left, which includes an act of omission rather than commission. The overruling of plaintiff’s objection to the argument, she says, validated the same as a defense, and the law does not permit counsel to urge theories of defense which conflict with the trial court’s instructions or which extend beyond the issues in the case (to which defendant agrees.) As noted, plaintiff read in evidence the statute relating to driving vehicles on the right side of the highway. The issue here is obviously whether there was a violation of the statute in the use of devices to attach the trailer to the truck, which if so would be negligence proximately causing (or permitting) the trailer to become detached and travel to the left into collision. It was not driving the trailer to the left, and in this circumstance defendant had a right to comment on it. The jury could not have been misled, and this is amply demonstrated by consideration in full of the questioned argument:

“Now the Court has told you — here’s the instruction concerning liability, that the defendant caused or permitted the trailer to travel on the left half of the roadway. You heard the statutes of Illinois. Did he drive that trailer over there ?
“MR. BINO WITZ: Your Honor, that is contrary to the definitions under the statutes.
“THE COURT: Objection overruled.
“MR. KEANEY: If Mr. Witt drove that trailer over to the wrong side of the highway with his truck, then there is no question about it, but that is the very thing they are telling you may not do, and that isn’t what he did at all. This trailer, through no fault of his, broke. The Court tells you you have got to find he was negligent in causing or permitting it to get over there.”

Plaintiff’s next point, (S) above, that the X-ray films taken by Dr. Holt during the course of his experiments on fifty inmates of the State Penitentiary is the best evidence and it was error to permit Dr. Holt to testify as to the results of the X-rays, is not well taken under the facts of this case. The record reveals that Dr. Holt had some 11 or 12 slides which were shown to the jury with his explanation of what he found. Plaintiff’s right to cross-examine him with respect to the X-rays he took was not infringed, considering also that there was no demand for their production. Besides, X-rays, being subject to expert testimony as to their interpretation, would not in and of themselves be the best evidence as showing the fact or condition on their face without technical explanation. See 32A C.J.S. Evidence § 792(7), p. 124. The point is overruled.

Instruction No. 4, given for defendant, told the jury that their verdict must be for defendant "if you believe” that it was not the result of any negligence on his part that caused or permitted the trailer to travel on the left half of the highway, and that plaintiff was not damaged as a direct result of the negligence submitted in Instruction No. 3. (See notes and comments on the use of the words “if you believe,” “if you do not believe,” and “unless you believe.” MAI No. 29.01 et seq.)

We deem that the instruction, although ineptly using the words “if you believe” rather than “if you do not believe,” was a true converse instruction requiring no evidence to support it, “because, absent a judicial admission by a litigant having the negative that the testimony in favor of the litigant having the affirmative and the burden was true, the credibility of the witnesses giving oral testimony establishing the affirmative remains for the jury.” Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464 [3, 4] ; Terrell v. Missouri-Kansas-Texas Railroad Co., Mo., 327 S.W.2d 230, 234. The argument that the instruction, by its use of the words, “if you- believe” made it an affirmative converse instruction, was ruled in the case of Morris v. Klein, Mo.App., 400 S.W.2d 461, 464, 466, where plaintiff’s verdict-directing instruction required a finding of causation and defendant’s instruction required a verdict “if you believe that plaintiff’s injuries were not directly caused by defendant’s failure to operate his automobile on the right half of the roadway.” The court held that it was not correct that the mere use of the affirmative words “if you believe” shifted the burden away from the plaintiff and cast upon defendant the burden of proving the absence of causation, and summarizing, “[a] true converse instruction — one which merely negates one or more of the essential elements of plaintiff’s case — does not require evidence to support it; and this is true even though it is ineptly prefaced by the affirmative phrase ‘if you believe’ instead of the proper negative phrase ‘if you do not believe.’ ” Issue (6), above, is ruled against plaintiff.'

The argument about which plaintiff complains under issue (7), above, must also be ruled against her because she made no objection thereto nor did she request any other relief. Olsten v. Susman, Mo., 391 S.W.2d 328, 330 [3-6], The claimed inflammatory matter above alluded to is not such as to require our consideration under plaintiff’s cited cases of Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214; Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643; and Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482. Issue (7) is ruled against plaintiff.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur,


author: PER CURIAM.

text:
    William L. COX and Florence R. Cox, Respondents, v. Charles E. JONES and Myrle H. Jones, Appellants, Phillip E. King, Alan F. Wherrltt, Trustee, Defendants, Ted E. Dyer and Virginia Lee Dyer, Intervenors, Respondents. Charles E. JONES and Myrle H. Jones, Appellants, v. Sydney O. SCHROEDER and Margaret L. Schroeder, William L. Cox and Florence Cox, Fred Koenigsberg and Erma F. Koenigsberg, Ted E. Dyer and Virginia Lee Dyer, Arthur Kincaid, Trustee, and Alan F. Wherritt, Trustee, Respondents.
    No. 51882.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.
    Opinion Modified Feb. 13, 1967.
    Motions for Rehearing or for Transfer to Court En Banc Denied Feb. 13, 1967.
    Motion for Rehearing or for Transfer to Court En Banc, Responsive to Modification of Opinion on Feb. 13, 1967, Denied March 13, 1967.

      Thomas M. Sullivan, Downey, Sullivan & McCormick, Kansas City, for appellants.
    Paul C. Dugan, Kansas City, for plaintiffs-respondents.
    Conn Withers, Liberty, for respondents-intervenors.
   PER CURIAM.

This is principally a suit for dissolution of a partnership between two physicians and for accounting. The basic issue is that of which physician was the “withdrawing partner” so as to make applicable a provision of paragraph 11 of the written agreement (dated April 1, 1962) below set forth.

We have appellate jurisdiction by reason of Dr. Jones’ claim from Dr. Cox of $19,962.51; and also by reason of inter-venors’ (Dentist, Dr. Dyer, and wife) claim to contractual restrictive rights and preemptive rights concerning title to a medical building and parking lot where the parties practiced their professions in Liberty, Missouri. Appellant also had filed a suit in partition of his claimed interest in the real estate, which suit was consolidated herein, which partition claim was denied by the trial court.

The trial court concluded that Dr. Jones by his acts and conduct and by his announcement of withdrawal made on or about August 25, 1963, terminated the partnership on October 1, 1963, and became the withdrawing partner within the meaning of the partnership agreement; that Dr. Cox is the owner of the partnership accounts receivable in existence on October 1, 1963, and the collection therefrom; that Drs. Cox and Jones each have an undivided one-half interest in the accounts receivable from October 1, 1963 to February IS, 1964; that Dr. Cox is entitled to rents collected for partnership assets (rented to one Dr. Phillip E. King) subsequent to February 15, 1964; that Dr. Cox is indebted to Dr. Jones for a $900 error in computing the value of his interest in the parking lot purchased by the partnership; that Dr. Cox is obligated to purchase Dr. Jones’ capital investment at book value ($6,370.22) in cash or over a S-year period in equal monthly installments with 5% interest per an-num; that Dr. Jones and wife have no interest in partnership assets; that Dr. Jones is entitled to recover from Dr. Cox amounts paid by him from personal funds on a Koenigsberg note and a Schroeder note (mortgagees) subsequent to February IS, 1964; that Dr. Cox is entitled to recover from Dr. Jones the unpaid balance of Dr. Jones’ notes (originally $1,970.20 and $3,-272.71, representing one half of the equity value of furniture, fixtures and cash, and one half of the real estate equity values, furnished by Dr. Cox at the outset of the partnership). It was further concluded that further accounting would be required to determine the balances due on the Koenigsberg and Schroeder notes, the status of accounts receivable between April 1, 1962 and October 1, 1963, and those arising under the “de facto” partnership from October 1, 1963 to February 15, 1964; the status of receipts and disbursements on the medical building and adjacent property from February 15, 1964 to the present time; and payments, offsets and credits, if any, on notes executed by Dr. Jones to Dr. Cox.

With respect to intervenors, Dr. Dyer and wife, the trial court found and declared they were entitled to enforce a recorded contract (pre-emptive agreement and option) to acquire the undivided 35% real estate interest of the partner (and wife) found to be the withdrawing partner (Dr. Jones), said pre-emptive right to be executed by Dyers within 30 days after this judgment becomes final, at a purchase price of $8,374.42, less depreciation from October 1, 1963. The judgment entered was declared to be a final order for purposes of appeal.

Dr. Cox began his practice of medicine in Liberty, Missouri, as an associate of Dr. Sydney O. Schroeder, M.D., at a salary of $500 per month. At that time Dr. Dyer had his dental offices in the medical building, owning with his wife, an undivided 30% thereof. On December 31, 1956, Drs. Schroeder and Cox made a written partnership agreement pursuant to which one half of Dr. Schroeder’s interest in the building was conveyed to Dr. Cox and wife. This partnership was dissolved by written agreement on June 30, 1960, and Dr. Cox acquired by note for $10,235.50 Dr. Schroeder’s one half of the then accounts receivable at about 55% of total value. Thereafter, Dr. Cox practiced his profession alone, except for two months when he had an associate, and for six months when another physician shared office space.

Then on July 17, 1961, Dr. Jones, who had completed his residency at St. Luke’s Hospital, Kansas City, Missouri, came to Liberty as an associate to Dr. Cox at $1,-000 per month. The employment contract recited that it r .emplated at its completion a partner;, -xip. That agreement was consummated on April 1, 1962, in writing. At that time, Dr. Cox (and wife) had a record title to an undivided 35% of the medical building. Dr. Schroeder owned 35%, and Dr. Dyer owned 30%. The agreement between Dr. Cox and Dr. Jones recited that the Coxes owned %o, but actually the 35% interest conveyed to Dr. Jones and wife came from Dr. Schroeder. The agreement between Drs. Cox and Jones provided that Jones was to pay $1/70.21 for the one-half interest in personal property and equipment, and $3,272.71 for the Cox equity (35%) in the real estate, both figured at book value (cost less depreciation). There was also added to the note $500 advanced by Dr. Cox as Dr. Jones’ one half of a starting bank account. The note bore interest at 4% per annum and was payable in monthly installments, chargeable against the withdrawal account of Dr. Jones. Dr. Cox also paid Dr. Jones $336.87 for one half of the book value of equipment which Dr. Jones brought with him.

At the time Dr. Jones became a partner, Dr. Cox’ medical practice included some obstetrics, pediatrics and internal medicine, minor surgery and assisting in general or major surgery as well as a 15 or 20 per cent allergy practice. Dr. Jones undertook general practice with no allergy practice.

On May 28, 1962, Dr. Cox had a coronary thrombosis for which he was hospitalized to June 16 or 17, 1962. He then returned home for a period of convalescence, returned to part-time practice (10:00 a. m. to 2:00 p. m.) on August 16, 1962 until September 1, 1962, at which time he resumed full-time practice. During the illness and convalescence, Dr. Jones took care of all the practice, but starting in July, 1962, a modification in the partnership agreement was made in that Dr. Cox received $1,400 per month and Dr. Jones received the balance. On returning to full-time practice the then percentage of net profits was resumed: 60% to Dr. Cox; 40% to Dr. Jones, which continued to December, 1962. At that time a written amendment was made so that each partner thereafter was to receive 50% of the profits rather than wait until April 1, 1964, as provided in the original agreement.

After January 1, 1963, the relations between the partners seemed pretty good up to March 21, 1963, when Dr. Jones offered certain amendments or changes in the partnership agreement, but to which the parties were not able to agree. Dr. Jones wanted the doctor who took less days off per year to be compensated therefor; to delete the provision for note payments to be charged against his withdrawal account; a different provision for disability; decrease of office personnel when one partner was out for any reason; and to delete the forfeiture provision above alluded to if Dr. Cox terminated the partnership before April 1, 1964. Thereafter Dr. Jones complained about Dr. Cox taking too much time off and devoting too much time to his allergy practice (of which he did more than before his coronary attack).

On Sunday afternoon, August 25, 1963, Dr. Jones informed Dr. Cox orally that he was going to leave Liberty after September 30 — that is, he was going to be gone October 1, 1963, to Kansas to practice medicine. The reason given was that he liked the Kansas school system better and Mrs. Jones did not like Liberty. Dr. Cox told Dr. Jones that he would have to tell Mrs. Reed (the office receptionist) so she would' know how to book patients — not to book any more patients. (Mrs. Reed testified that Dr. Jones told her not to schedule any more obstetric patients for him after October 1, 1963, that he was leaving.) Dr. Cox then went to San-Francisco and returned August 30, 1963, at which time he talked with interns or residents at General Hospital who would be available for joining a general practice in Liberty. When he returned to Liberty he learned that Dr. Jones was not leaving as of October 1, 1963, but had patients scheduled for that month, about which Dr. Cox asked Dr. Jones who replied that he was not going to be leaving then, he had changed his mind.

Dr. Cox thereafter pressed Dr. Jones at every opportunity, asking “When are you going to leave?” Dr. Jones would not give him an answer. Dr. Cox testified that “Then we continued our practice of medicine.” Dr. Cox could not get a definite date as to when Dr. Jones was going to remove himself from Liberty, so he decided that he should remove' himself “since he (Jones) had already dissolved the partnership.” On November 9, 1963, Dr. Cox wrote Dr. Jones the following letter (Plaintiffs’ Exhibit 13):

“C. E. Jones, M.D.,
101 W. Kansas,
Liberty, Missouri.
■“As you know, we signed a written agreement for the partnership-practice of medicine April 1, 1962. You are also aware of the fact that these terms were discussed prior to its construction, and you signed this contract without influence or encouragement on my part.
“On May 28, 1962, I was hospitalized because of Coronary Thrombosis until June 17, 1962. On June 27, 1962, you visited me in my home for the purpose of leaving insurance papers for my signature. On this date you registered your first complaint to me that you felt you were overworked for the compensation you were receiving. On July 3, 1962, I offered you all the cash receipts from the income' from our ‘partnership’ except for my usual withdrawal salary of $1400.00 per month. As you know, Dr. Jones, this offer on my part was strictly a generowsity, in as much as such a situation had been considered during the original construction of our partnership agreement. The partnership agreement was so constructed that either you or myself would be protected in the event of an emergency requiring absence from office participation. Remember, this contract was made for your bemfit as well as mine.
“In September 1962, you again complained that you felt your share of the undivided profit was not commensurate with your effort. Again may I remind you that these percentages of the undivided profits were described and agreed to by yourself in the original agreement. An equal share of the undivided profits was given to you for a Christmas present in 1962 in as much as your contentment seemed to depend largely upon your monetary gain.
“In March 1963, new demands were made on your part to ‘delete’ certain .parts and paragraphs of the amended contract.
“Please bear in mind, Dr. Jones, that all the giving has been on my part, and the receiving has been on your part. You have incicated discontentment to our employees that I have been taking more time from our practice than has been allowed. Time off for vacation and post graduate education was part of the original agreement.
“On August 25, 1963, you made known to me your plans to separate yourself and family and move to the state of Kansas for residence and the practice of medicine. You stated that your move would be effective October 1, 1963. Since that time you have changed your time of leaving and have avoided stating a positive date. You have avoided discussion both with me and with our mutual advisors, Professional Management Midwest. This is also contradictory both to your partnership agreement, your statement of August 25, 1963, and any personal or professional loyalty. I feel that you owe me at least this courtesy so that I can best plan for your replacement and the replacement of Mrs. Stow-ell until she is able to return to her job.
“In closing, let me say how deeply disappointed I am at your tactless, untimely ultamatums made during my near and progressive convalescent period following my arrival home June 17, 1962. At that time you indicated very clearly that your written word was both undependable and insincere. It is my hope and wish that your word, both verbal and written, is given with more meaning and sincerity in your future associationships.
“In the medical profession, the spoken word is as binding as the written word, therefore, according to paragraph 11 of our original agreement, may I have your withdrawal date from our partnership as December 31, 1963. This date being based upon your oral statement August 25, 1963, that you would be departed, October 1, 1963.
“If you decide to defer your date of said withdrawal, please be informed of my withdrawal from the partnership of William L. Cox, M.D.,-Charles E. Jones, M.D., as of February 15, 1964.
William L. Cox, M.D.
/s/ William L. Cox MD.”

By printed letter dated February 6, 1964 (Dr. Cox testified it was erroneously dated and was sent out about a month earlier), Dr. Cox notified his friends and patients that he would close his offices in Liberty on February 15, 1964, and would open a new office at 1212 West Truman Road, Independence, Missouri, on February 17, 1964, solely for the treatment of asthma, hay fever and other allergic diseases. By the fourth paragraph of this letter, Dr. Cox advised his patients: “As you are aware, Dr. Jones is a capable physician. I have always felt that your health and safety have been well guarded by him when my absence has been necessary. It is my wish that you will continue to let him care for you in the future as you have allowed me this privilege in the past.”

On cross-examination, Dr. Cox testified that in October, 1963, November and December, 1963, January, 1964, and to some extent in February, 1964, Dr. Jones devoted full time to the operation of the partnership practice of medicine. The following figures relate to the partnership activities (the net profits divided 50-50) during this period of time:

Partnership Business Done Expenses
October, 1963 $10,161.50 $2,953.03
November, 1963 8,329.50 2,838.54
December, 1963 9,329.50 3,290.92
January, 1964 8,530.00 2,844.20
February, 1964 611.00 1,525.08

After February 20, 1964, Marvin J. Weishaar, a Certified Public Accountant in Liberty, at the request of Drs. Cox and Jones, collected $16,309.45 paid by patients on accounts and deposited the same in the National Commercial Bank of Liberty to await the outcome of this suit. $12,979.88 was collected by him and deposited to August 15, 1964, with no disbursements being made at any time.

After October 1, 1963, Dr. Cox made no tender or offer of the book value to Dr. Jones for the building and equipment of the partnership. Shortly after February 15, 1964 (on March 13, 1964), Dr. Jones made a demand upon Dr. Cox to convey his interest in the building and fixtures based upon book value.' After October 1, 1963, up to February 15, 1964, Dr. Cox continued his drawing account — the full percentage to which he was entitled.

There was an amount of $8,444.20 owed by Dr. Cox to Dr. Schroeder on the previous accounts receivable as of April 1, 1962 (the original amount was $10,235.50 for Dr. Schroeder’s one-half interest therein). On March 31, 1962, Drs. Cox and Jones and wives executed a new note to Dr. Schroeder for the $8,444.20, with provision that $85.30 be paid thereon by Dr. Jones monthly as a charge against his drawing account. (Apparently, this $85.30 was one half of a principal payment on the note to Dr. Schroeder, which with interest was paid from partnership funds in a total amount of approximately $229.00 per month, but we cannot tell from this record the source of such payments. We note that the trial court reserved this item for further accounting between these physicians.) The old accounts (previously due Dr. Cox) were not on that date or thereafter separated on the partnership books from those accumulated by the Cox-Jones partnership, but Dr. Jones began receiving immediately his proportionate share of all accounts receivable as paid by patients.

Dr. Jones’ version of the events preceding the final parting of the parties is that at the outset he told Dr. Cox he wanted nothing to do with the old accounts receivable — he did not specifically remember signing the $8,444.20 note, but probably did so. The accounts receivable on April 1, 1962, consisted of some that Dr. Cox had put on the books himself, and some that had been put on the books for a number of years — that Dr. Schroeder had accrued. (The accounting firm, Professional Management Midwest, showed the total of $45,-278.32 as of April 1, 1962.)

After Dr. Cox’ heart attack, he was away from the office for three months and Dr. Jones practiced alone. Thereafter, Dr. Cox’ practice became more concerned with allergy practice than with general medicine. This put more burden on Dr. Jones in that he was doing more obstetrical work; seeing more emergency patients; and doing more night and weekend work.

In September, 1963, Dr. Jones went to Dr. Cox’ home and told him he had decided to leave the partnership. He discussed the problems they had and told Dr. Cox there didn’t seem to be any solution, and he believed they would be better off dissolving the partnership. Dr. Cox asked Dr. Jones if he were leaving before October 1, to which he answered that he was not. He didn’t know because he had no plans at that time. Dr. Jones did not ever tell Dr. Cox that he was going to leave on a certain day.

After Dr. Cox sent Dr. Jones the letter of November 9 (above set forth), Dr. Jones stopped by his office to talk to him about it and told him that he thought it was a threat — trying to get him to leave before the April 1st dating on the partnership agreement. He further told Dr. Cox that he was not leaving before April 1, and that he could go ahead and dissolve the partnership as he had written in his letter.

In the fall of 1963, Dr. Jones requested the receptionist, Mrs. Reed, to take no more new obstetrical patients for him. The reason given by Dr. Jones for this request was that he planned to leave the partnership April 1, and would not have time to deliver any new obstetrical patients before then.

In February, 1964, Dr. Jones contacted Dr. Phillip E. King and made arrangements to rent him the building (70%) for $600 per month, to be paid into an escrow account. Dr. Jones, after October 1, 1963, gave to Dr. Bradford at Overland Park, Kansas, a $1,000 check as a deposit on some equipment in that office which he was planning to go into after April 1, 1964.

On cross-examination, Dr. Jones testified that in the middle of 1963 he became aware that monthly payments were being made to Dr. Schroeder on the $8,444.20 note from the partnership accounts. Dr. Jones protested to Dr. Cox and reminded him that originally he told him he didn’t want any part of his accounts receivable (a 60-40 per cent of collections of which he shared at the outset, the total amount of which was then $39,035.61). Dr. Jones determined from what was reported by a collections attorney that $15,555.22 of $45,793.90 accounts receivable (old and new) existing on February 15, 1964, was uncollectible.

Dr. Jones denied practicing medicine in Overland Park, Kansas, prior to February 15, 1964, but testified he could have paid an application fee to the Eugene Bryan Realty Company of Kansas prior to November 9, 1963, and that he did deal with the Kansas architectural firm of Boyle and Wilson.

Paragraph 7 of the partnership agreement of April 1, 1962, provided that first parties (Dr. Cox and wife) sell and agree to convey to Dr. Jones an undivided 35% interest in the real estate, “subject to all the terms and conditions of partnership agreement dated August 30, 1954, by and between Ted E. Dyer and Virginia Dyer, his wife, and Sydney O. Schroeder and Margaret L. Schroeder, his wife, which said agreement is of record in Book 511 at page 611 of the deed records of Clay County, Missouri.” Paragraph 5 of this latter agreement provided that “the sale or lease of all or any part of the parties’ respective interest in said real estate shall be subject to the reasonable approval of the opposite party and no sale of either of the parties’ interest therein shall be made without giving the opposite party at least 30 days within which to meet the bid of the proposed buyer thereof.” Paragraph 6 thereof provided, “In the event either of the parties hereto should desire to sell all of said real estate, for the purpose of partitioning the proceeds therefrom, the opposite party shall have the opportunity, if so desired, to purchase the interest of the party desiring to sell, and if agreement can not be reached as to the value of such interest the price thereof shall be fully and finally determined by 3 appraisers, one to be selected by each of the parties hereto and such appointees to thereafter select the third appraiser.” Paragraphs 11 and 12 of the Cox-Jones partnership provided as follows:

“11. This agreement shall continue in effect until the death of one of the parties or until dissolved by mutual agreement or by the giving of one partner to the other of thirty (30) days’ written notice of his intention to terminate the partnership agreement. If either party withdraws from the partnership business as herein provided, such withdrawing partner’s capital investment, including real estate, will be purchased at book value, that is, cost less depreciation, excluding accounts receivable, which shall be frozen and all collections made in such accounts within the following six (6) months will be distributed at the then existing percentages. At the end of this period, all accounts become the property of the remaining partner. Said purchase may be in cash or over a five (5) year period in equal monthly installments with interest at the rate of five per cent (5%) per annum. Should second party terminate the partnership before April 1, 1964, all accounts receivable shall be the sole property of first party.
“12. The withdrawing partner shall sell his interest in the real estate herein described to the remaining partner or to some person or persons satisfactory to the remaining partner. If the parties cannot agree upon the reasonable value of said real estate, the same shall be determined by three appraisers, one to be selected by each party and the two so chosen to select a third appraiser.”

Although our rules provide that our review in an equity case such as this requires that the judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses, Civil Rule 73.01(d), V.A.M.R., § 510.310, RSMo 1959, V.A.M.S., our review is in nature de novo, where we make our own findings of fact, weigh the evidence relating thereto, and reach our own conclusions. Hogan v. Krohn, Mo., 318 S.W.2d 163, 167 [1]. Here, there is little disagreement as to the facts surrounding the parting of the partners in this venture in the medical practice. Dr. Cox testified that in August, 1963, Dr. Jones told him (orally) that he would be leaving on October 1. (Dr. Jones testified that he was not leaving October 1, 1963, or on any certain day, because he had no plans.) The difficulty arises with the undisputed facts of what happened thereafter. Dr. Cox did not then, or as of October 1, 1963, treat the partnership as dissolved, with no more association between the partners. Nor did Dr. Jones. Rather, Dr. Cox took a trip to San Fran-ciscoj returning August 30, 1963. The most that he did was to talk with interns or residents at General Hospital as to their availability for joining a general practice in Liberty. This inquiry was apparently fruitless ; at any rate the record is devoid of any evidence that Dr. Cox changed his position in reliance upon Dr. Jones’ oral statement or that he brought home to Dr. Jones any acceptance of the oral termination before Dr. Jones retracted it. When Dr. Cox returned, there was apparently a retraction of Dr. Jones’ oral withdrawal before his stated effective date thereof. Dr. Jones had changed his mind. The parties thereafter continued as partners under their written arrangements as before. Dr. Cox did not insist that Dr. Jones’ oral termination date was effective. Each physician continued to practice medicine as before. There was no new “de facto” partnership relation created. The parties continued devoting their time to their professions (albeit strained in their personal relations), paying expenses, and sharing the net profits. Compare the statutory provisions of the Uniform Partnership Law, § 358.230, RSMo 1959, V.A.M.S., providing that where a continuation of a partnership beyond a fixed term or particular undertaking is had the rights and duties of the partners remain the same, and that the continuation of the business by the partners, without any settlement or liquidation of the partnership affairs, is prima facie evidence of a continuation of the partnership. “Where a partnership contract provides that if one partner should ‘want’ the partnership dissolved before a certain date he shall lose all his interest as a partner, the partnership is not dissolved by his mere expression of a desire to dissolve where no affirmative action is taken by the other partner, either by notice or abandonment, and the activities of the partnership continue.” 68 C.J.S. Partnership § 332, p. 845; and see the there cited case of Rubens v. Rubens, 101 Wash. 675, 172 P. 831, 832 [1,2], so holding. The partnership here continued up to February 15, 1964, when these physicians physically severed their professional relations.

The letter of November 9, 1963, from Dr. Cox to Dr. Jones, which we have set forth in detail above, has no legal significance except as a written notice of partnership termination by Dr. Cox effective February 15, 1964. It is clear that as of the date of the letter the partnership had not been dissolved by Dr. Jones’ acts or conduct as of October 1, 1963. The record shows only that he withdrew his oral notice of dissolution before it was acted upon (accepted) by Dr. Cox. This Dr. Jones could do as is elementary in contract law. Sokol v. Hill, Mo.App., 310 S.W.2d 19; 17 C.J.S. Contracts § 50, p. 706. Dr. Cox testified that Dr. Jones told him he had changed his mind before the oral termination date of October 1, 1963. It thus appears from all the evidence that Dr. Jones was not the withdrawing partner as of October 1, 1963. Dr. Cox’ letter of November 9 could not have the effect of forcing Dr. Jones to give a notice and become a withdrawing partner (before April, 1964) and thus work a forfeiture of his interest in the accounts receivable, in accordance with paragraph 11 of the April 1, 1962 partnership agreement. On this record we can conclude only that by the November 9, 1963 letter, Dr. Cox became the withdrawing partner as of his own termination date, February 15, 1964. It is pursuant to that notice that the trial court must act on Dr. Cox’ petition for dissolution of partnership and the winding up of its business affairs under § 358.320, RSMo 1959, V.A.M.S. The result which we reach is that Dr. Jones does not forfeit his interest in the accounts receivable, but under the terms of these parties’ agreement, each partner must share equally in all the accounts receivable for six months after February 15, 1964 ($12,979.88 collected to that date by escrow holder Weishaar), after which the remaining accounts and collections thereon are the property of Dr. Jones.

We determine next whether intervenors Dr. Dyer and wife are entitled to enforce their “pre-emptive agreement and option” as recorded and described and referred to in the Cox-Jones partnership agreement as to what was denominated by the trial court as Tract 1 (the medical building and land). The partnership agreement does not describe or refer to the adjoining parking lot, acquired by Drs. Dyer, Cox and Jones on April 19, 1962, after the April 1 partnership agreement, and which was denominated as Tract 2 by the trial court. It is intervenors’ position (their Point IV) that the “Conduct of the Parties, Cox-Jones-Dyer in re the Parking Lot (Tract No. 2) of Decree Brought the Same Within the Purview of the Pre-Emptive Rights of Intervenors.” We rule that intervenors’ position is well taken. The parties treated the parking lot [acquired by the joint efforts of Drs. Cox and Dyer at the outset of the partnership, about April 1, 1962, but the deed to which (April 19, 1962) ran also to Dr. Jones and wife] as appurtenant to the medical building and land. The interests were the same— 30% Dr. Dyer and 70% Drs. Cox and Jones. The parking lot was included at a $6,000 value in the report of Professional Managers Midwest dated March, 1962, which was the method used to arrive at the amount of the note to Dr. Cox by Dr. Jones (the building portion being $3,272.71). Dr. Jones is the only person now urging the point that Tract 2 was not included in intervenors’ recorded instrument, but he himself so regarded it, as the evidence shows, in his attempts to negotiate a settlement with Dr. Cox.

Dr. Jones and wife here contend that the Dyer pre-emptive agreement and option does not extend to the partnership land (both Tracts 1 and 2), and that Dr. Jones did not agree or covenant to “reinstate the Dyer-Schroeder agreement.” Dr. Jones cites Hall v. Morgan, 79 Mo. 47, and 37 Am.Jur. § 998, p. 325, but those authorities refer to deeds “subject” to existing mortgages, wherein it is held that no contractual obligation to pay the mortgage arises absent an express assumption and agreement to pay it. Thus, different facts govern the case at bar. Intervenors correctly proceed on the theory that their rights are governed by the law of third party beneficiaries to contracts. See Handlan-Buck Company v. State Highway Commission, Mo., 315 S.W.2d 219, where it was alleged that the City of St. Louis and the State Highway Commission had (pursuant to an ordinance) entered into a contract to leave a certain street open, which contract was held (loc. cit. 315 S.W.2d 222 [3] [4]) to be for the benefit of plaintiff. See also Crow v. Kaupp, Mo., 50 S.W.2d 995; Allen v. Globe-Democrat Publishing Company, Mo., 368 S.W.2d 460. Intervenors are directly benefitted by the partnership agreement provision in that they have the right to purchase the interest of the withdrawing partner, whom we have determined to be Dr. Cox, and they are entitled to enforce it as to both tracts of land here involved at the price agreed to by Drs. Cox and Jones in their partnership agreement, i. e., cost less depreciation (book value).

What we have said disposes of the basic contentions of the parties. No points are made with respect to mathematical computations of the trial court.

As to Dr. Jones’ contention that he is entitled to a credit of one half of the $8,444.20 note to Dr. Schroeder on the ground that such one half is Dr. Cox’ personal obligation, and that the same is without consideration, we deem that the parties are joint obligors on this note; that Dr. Jones’ liability thereon is one half, for which he was to receive (ultimately) one half of existing accounts receivable on April 1, 1964. Any claim by Dr. Cox over and above such one half would be without consideration, but we rule further that the contention of error in the denial of Dr. Jones’ claim to one half the original amount of this note is without merit. As noted, the trial court retained jurisdiction to ascertain by further accounting the source of credits on the Dr. Schroeder note. Thus, the respective liabilities of the parties may be settled as to the Schroeder note.

The following findings, conclusions and judgment of the trial court are reversed: That Dr. Jones is the withdrawing partner and Dr. Cox is the owner of the partnership accounts receivable on October 1, 1963, and the collections therefrom; that Drs. Cox and Jones each have an undivided one-half interest in the accounts receivable from October 1, 1963 to February 15, 1964; that Dr. Cox is entitled to rents collected for partnership assets (rented to Dr. Phillip E. King) subsequent to February 15, 1964; that Dr. Cox is obligated to purchase Dr. Jones’ capital investment at book value ($6,370.22) in cash or over a five-year period in equal monthly installments with 5% interest per annum; that Dr. Jones and wife have no interest in partnership assets; that Dr. Jones is entitled to recover from Dr. Cox amounts paid by him from personal funds on a Koenigsberg note and a Schroeder note subsequent to February 15, 1964.

The case is ordered remanded for further proceedings and entry of our following findings, conclusions and portions of the final judgment upon full accounting had: That Dr. Cox is the withdrawing partner; that each partner (Dr. Cox and Dr. Jones) is entitled to one half of the collections of the partnership accounts receivable for six months after the February 15, 1964 dissolu-" tion date given by Dr. Cox (to August 15, 1964); that, thereafter, Dr. Jones is the owner of the remaining uncollected accounts receivable and Dr. Cox has no interest therein; that Dr. Dyer and wife, inter-venors, are entitled to enforce their preemptive agreement and option to purchase the interest of Dr. Cox and wife in all the partnership real estate (Tract 1, the medical building and land; Tract 2, the parking lot) at a purchase price of $8,374.42, less depreciation from October 1, 1963, within thirty days after this judgment becomes final; that Dr. Jones and wife are tenants in common with Dr. Dyer and wife and Dr. Cox and wife in said real estate (until such time, if so, that Dr. Dyer and wife exercise said pre-emptive agreement and option to purchase Dr. Cox’ interest therein); that in the event Dr. Dyer and wife fail to exercise their options to purchase the interest of Dr. Cox in said real estate, Dr. Jones is obligated to purchase Dr. Cox’ interest therein and his interest in the partnership personal property at book value as determined by the court; that the partition suit by Dr. Jones and wife seeking to partition their undivided interest in the real estate as against the owners of the remaining undivided interest therein is ordered reinstated and Dr. Dyer and wife shall be given the right and opportunity therein to assert and to have adjudicated their rights, if any, under the terms of the Dyer-Schroeder contract dated August 30, 1954, and recorded in Book 511 at page 611 of the deed records of Clay County, Missouri.

In all other respects the findings, conclusions and judgment, and the order for further accounting to ascertain the source of payments on the $8,444.20 note to Dr. Schroedei", the Koenigsberg and Schroeder mortgages (liens on said real property) are affirmed.

On Motion for Rehearing

Intervenors, in a motion for rehearing, contend that by permitting reinstatement of the Jones partition petition we act in derogation of pre-emptive rights of inter-venors. They recognize that we have provided, as indeed we did, an opportunity for them to exercise pre-emptive rights to purchase the 35 per cent interest of Cox as the withdrawing partner pursuant to the provisions of paragraph 11 of the Cox-Jones contract dated April 1, 1962. What they complain of is that this court has not adjudicated their asserted pre-emptive right to acquire the 35 per cent interest already vested in Jones, whom we have determined to be the surviving partner.

We consider it neither feasible nor appropriate on the record before us to determine the asserted pre-emptive right of intervenors to purchase the 35 per cent interest which Jones owns and continues to hold as the surviving partner. The right of intervenors to purchase this interest necessarily rests on paragraphs 5 and 6 of the original Dyer-Schroeder agreement. The record before us does not disclose whether intervenors are asserting a right to purchase pursuant to paragraph 5 or paragraph 6 of that agreement. It does not sufficiently disclose the position of Jones with respect to alleged rights of intervenors under those provisions, and on the record before us we cannot determine the relief to which intervenors may be entitled.

We have not undertaken to determine any right of intervenors under the Dyer-Schroeder contract to buy the interest of Jones as the surviving partner. We do not intend by our opinion to cast any doubt thereon or express any view with respect thereto. We have not determined that Jones is entitled to partition. That is for the trial court to determine. We merely have reinstated his petition and hold that if he desires to proceed with the sale of his interest (which is what he seeks to do by partition), intervenors shall have the opportunity to assert rights with reference thereto based on the Dyer-Schroeder agreement and to have those asserted rights adjudicated if not acquiesced in by Jones.

In view of the foregoing, the motion of intervenors-respondents for rehearing or, in the alternative, for transfer to court en banc is overruled.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. James PATTON, Appellant.
    No. 52358.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.
    J. Whitfield Moody, Sloan Richard Wilson, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, James T. O’Brien, Asst. Atty. Gen., St. Louis, for respondent.
   DONNELLY, Judge.

Appellant, James Patton, was convicted of first-degree robbery under § 560.120, RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Jackson County, Missouri, at Kansas City, and his punishment under the provisions of the Habitual Criminal Act, § 556.280, RSMo 1959 (as amended Laws 1959, S.B. No. 117), was assessed at imprisonment in the custody of the Department of Corrections for a term of fifteen years. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court.

The information charged appellant under § 556.280, supra, and evidence was adduced supporting the charge. The information further charged that “on the 16th day of October, 1965, at the County of Jackson and State of Missouri, the said James Patton, with force and arms, in and upon one Sylvia Mesh unlawfully and feloniously did make an assault with a dangerous and deadly weapon, to wit, a pistol loaded with gunpowder and leaden balls, and Nine Dollars ($9), lawful money of the United States of America, of the aggregate value of Nine Dollars ($9), the money, goods, chattels, and personal property of the said Sylvia Mésh, from the person and in the presence and against the will of the said Sylvia Mesh, then and there by force and violence to the person of the said Sylvia Mesh and by putting the said Sylvia Mesh in fear of an immediate injury to her person, feloniously did rob, steal, take and carry away; against the peace and dignity of the State.”

According to the evidence, on October 16, 1965, Sylvia Mesh was employed as a clerk-switchboard operator at the Capri Motel, 1437 Independence Avenue, Kansas City, Jackson County, Missouri. At about 10:40 p. m., she came out of the rest room and discovered two men in the office of the motel. Appellant told her “it was a holdup.” Appellant aimed a gun at Sylvia Mesh, told her he “could shoot” her, and he wanted her watch and money. A cab driver then drove up, Sylvia Mesh gave the men several one-dollar bills and her coin purse, and the men walked out. The cab driver came into the office, Sylvia Mesh told the cab driver she had been “held up”, and asked him to follow the two men. She then called the police.

The cab driver followed the two men, one of whom had a white scarf or handkerchief in his hand. The driver maintained radio contact with his dispatcher, and finally observed and reported the two men going into a hotel at 1000 Paseo. Police officers met the cab driver, entered the hotel, and learned the two men had gone to Room 220. They went to the room, knocked on the door and were admitted. They arrested appellant and his companion. They and three other officers searched the premises and found a gun wrapped in a white scarf and the coin purse belonging to Sylvia Mesh.

Sylvia Mesh identified appellant in a lineup at police headquarters later the same evening. She also identified him at the trial as the man who aimed the gun at her and took the money.

Appellant was represented at trial by The Legal Aid and Defender Society of Greater Kansas City. They state in their brief filed in this Court: “We find no prejudicial error in this record. Therefore, we rest this appeal upon our statement of fact.” We construe this to mean that appellant questions the sufficiency of the evidence. We have reviewed the entire record and have concluded the evidence is sufficient to sustain the conviction.

An examination of the record as required by Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Eugene Melvin GARNER, a/k/a Geno Garner, Appellant.
    No. 52112.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Eugene Melvin Garner, pro se.
    Norman H. Anderson, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, for respondent.
   FINCH, Judge.

This is an appeal from the denial without an evidentiary hearing of a motion and amended motion to vacate judgment and sentence filed in the trial court pursuant to Rule 27.26, V.A.M.R. Defendant filed briefs and argued his case pro se.

Defendant was charged in the Circuit Court of Franklin County by information filed July 14, 1965, with uttering and delivering a check for $305.00 to Missourian Publishing Company, Inc., with intent to defraud, knowing at the time of uttering and delivering the check that he did not have sufficient funds in or credit with the drawee bank for payment in full of said check on presentation.

The transcript on appeal indicates that counsel for defendant was appointed in the trial court, that defendant and his appointed counsel appeared for arraignment, that a plea of guilty was entered, and that defendant was sentenced to imprisonment for a term of four years. The transcript further indicates that on defendant’s application an order granting probation was entered, that a probation bond of $1,000.00 was fixed and filed, and that defendant signed a probation agreement setting forth the terms of probation. All of these orders were entered July 14, 1965.

The transcript next discloses an order of the Circuit Court on October 16, 1965, which states that it appears to the court that defendant has violated the terms of probation granted him and that a capias warrant is ordered issued for defendant.

The next order appearing in the transcript was on December 9, 1965. It recites that an informal hearing was held on that date and that the probation granted July 14, 1965, is revoked “because the defendant admits that he has violated his probation.” The record discloses that defendant was then taken to the Department of Correction to serve the four-year sentence.

Several of the assignments in the motion to vacate are too general to present anything for review. The motion does seem to allege, however, that the plea of guilty entered for defendant was without his consent and that he was not present in court when judgment and sentence was pronounced. This is contrary to what the transcript on appeal shows, for it recites appointment of counsel, the granting of time for counsel to consult with the defendant, interrogation of defendant by the court, and finally the entry of a plea of guilty with pronouncement of sentence thereafter. However, the contentions of defendant in this respect do raise issues of fact as to what occurred and defendant is entitled to an evidentiary hearing thereon.

The fact that this proceeding is to be remanded for an evidentiary hearing makes it unnecessary for us at this time to consider any other assignments in the motion to vacate.

A revised Rule 27.26 was adopted by this court on January 9, 1967, effective September 1, 1967. The delay in effective date was necessary in order to comply with a constitutional requirement of publication of proposed changes in rules. The motions and briefs in this case demonstrate the desirability of the procedure incorporated in that revised rule. Much of the content of the defendant’s briefs consists of his version of conversations he had at various times with numerous people concerning his troubles. The briefs ramble and at times are difficult to understand.

The revised Rule 27.26 provides for appointment of counsel in cases such as this one to present the matter to the trial court and to handle the case on appeal. Use of such procedure prior to September 1, 1967, is discretionary with the trial court, but we cannot help but observe that assistance of counsel in preparing and filing an amended motion adequately stating all issues involved, in presenting the evidence in a clear and orderly manner, and finally in briefing the case as contemplated by applicable rules would make much easier the task of the trial and appellate courts in resolving the questions involved.

The judgment is reversed and the motion is remanded for an evidentiary hearing.

All of the Judges concur.