author: PRITCHARD, Commissioner.

text:
    Carol Maher EDWARDS, Administratrix of the Estate of Joseph James Maher, Jr., Deceased, Appellant, v. Patricia ZAHNER, Administratrix of the Estate of Robert B. Zahner, Deceased, Defendant, National Insurance Underwriters, and National Associated Underwriting Company, a Corporation, Respondents.
    No. 51327.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 8, 1965.

      George H. Jones, Terrance W. Imes, Kansas City, for plaintiff-appellant.
    Clem W. Fairchild, Kansas City, Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel, for respondents.
   PRITCHARD, Commissioner.

The basic purpose of appellant’s petition in equity was to reach and apply insurance money under an aircraft liability policy issued by respondents to the satisfaction of a $50,000 default judgment rendered in favor of appellant against Patricia Zahner, Administratrix of the Estate of Robert B. Zahner, deceased. See §§ 379.195 and 379.-200, RSMo 1959, V.A.M.S. The defense of respondents is that Robert B. Zahner was not an insured under the policy of passenger liability insurance when the aircraft accident occurred and which resulted in the deaths of appellant’s intestate, a passenger, and said Robert B. Zahner. The action which resulted in said default judgment was filed in the United States District Court in Kansas City, Missouri. Respondents were duly notified of the action but refused to defend it.

The judgment in the trial court was against appellant on her second amended petition. Count I of such petition was to reform the insurance contract so as to include said Robert B. Zahner as a named insured; Count II was the action in equity to collect (under said § 379.200) on the contract as (and if) reformed; and by Count III recovery under the policy was prayed because respondents had by their acts, as alleged, in paying in full for the loss of the aircraft with knowledge of the facts waived any defects in the contract and affirmed that it was applicable while the aircraft was being operated by Zahner.

On November IS, 1956, Robert B. Zahner entered into a written lease agreement with option to purchase with the Airway Flight Service, Inc., of a Mooney Mark 20 aircraft, Number NS213B, for a price of $14,804.01. Payment was specified at $2,900 down payment and the balance was payable over 36 months at about $330 per month until paid in full. At the expiration of the lease agreement Airway Flight Service, Inc., was to transfer the title to the aircraft to Zahner free of all encumbrances for $1.00. Zahner agreed to maintain the aircraft in airworthy condition at his own expense. It was specified that “Airway Flight Service, Inc. shall not be held liable for passenger liability.” This written instrument was executed by Zahner and by Karl McAnally, “Sec. Mgr. Airway Flight Service, Inc., 424 Richards Road, Kansas City, Mo.”

In connection with the lease agreement and option to purchase, Zahner executed a promissory note to the Airway Flight Service, Inc., in the amount of $11,904.01, the purchase price of the aircraft less the $2,900 down payment, which was payable monthly over a three-year period. The purchase price was made up of these items: The base price of the aircraft, $12,112.50; gasoline, $20.00; insurance for one year, $847.-64; registration fee, $8.00; and interest for three years, $1,815.64. Zahner never did make the entire down payment, but did pay $500 deposit on November 9, 1956; $1,000 on November 28, 1956; and $750 on January 8, 1957. At the time of his death in the aircraft accident near Memphis, Tennessee, Zahner apparently still owed $650.00 of the down payment to Airway Flight Service, Inc. The note was sold to Dr. H. J. Mc-Anally, who was President of Airway Flight Service, Inc., and whose practice it was to purchase its note paper and to finance its operations.

Karl McAnally, admittedly respondents’ agent to solicit business and submit applications to respondents, handled the transaction of the sale by Airway Flight Service, Inc., of the aircraft to Zahner, and also for the insurance. The initial quotation of the premium on the aircraft for “Demonstration, Charter 20 hrs. per mo., and Pilot 350 hours” was made to McAnally by Raymond C. Goebel, the head of respondents’ underwriting department, at the same premiums as set forth in the policy. The policy of insurance was issued specifying Airway Flight Service, Inc., as named insured. Coverage A. (B.I.) was for $100,000 each person, $300,000 each occurrence; Coverage B. (P.D.) was for $100,000 each occurrence; Coverage C. (Pass.) was for $50,-000 each person, $150,000 each occurrence. The premium for all these coverages is apparently included in that specified under “C.” at $347.64. The physical damage portion of the coverage referred to in the record as “hull insurance” had as coverage D. (Gr.) $10,000 less $50 deductible; Coverage E. (Taxi) $10,000 less $250 deductible (premium $206.10); and Coverage F. (Flight) $10,000 less $250 deductible (premium $293.-90). For the policy, Airway Flight Service, Inc., remitted the total premium, $847.-64, to respondents from the proceeds of the note sale to Dr. McAnally. On February 29, 1957, Airway Flight Service, Inc., paid Dr. McAnally the balance on the note, less discounted interest, for $9,678.80, and on March 18,1957, Airway Flight Service, Inc., received from respondent National Insurance Underwriters $9,750 for the total loss of the aircraft, being “hull insurance” Coverage “F.” $10,000 less the $250 deductible. Zahner’s name was not mentioned in any place in the policy, nor in the binder of coverage telegrams, nor in any documents of respondents produced at the trial. The purpose of the use of the aircraft was specified to be pleasure and business; commercial excluding instruction. The face of the policy also contained the provision: “Pilots: This policy applies when the aircraft is in flight, only while being operated by the following pilot(s): Any Pilot employed by the Named Insured and who holds a valid Commercial Pilot Certificate.”

During the months of November and December, 1956, and during January, 1957, Zahner made charter flights which had been arranged by Airway Flight Service, Inc., and referred to him. Zahner was paid $222.65 on December 31, 1956, and a check was issued to his order on January 31, 1957 for $250.51, for these chartered flights. It was the practice for Airway Flight Service to retain 10% of the charter rental for its service in providing flights to various pilots, and to pay the balance to such pilots, including Zahner. At the outset, Zahner was urged to purchase the aircraft by H. F. Jack Jones, Airway Flight Service, Inc., salesman, and Karl McAnally, upon the inducement that charter flights procured by it would be thrown to Zahner.

H. F. Jack Jones testified by deposition for plaintiff. In July, 1956, he started working with Karl McAnally with Airway Flight Service, Inc. Jones had been in the aircraft business, a “fixed base” operation, for twenty-five years. He became acquainted with Zahner after he started working with McAnally on the Mooney aircraft sales. Jones gave Zahner flying instructions and spent quite a little time with him in checking him out in the handling and procedure of the Mooney aircraft. Zahner had a commercial license — single engine land, which entitled him to fly for hire. After Zahner purchased the aircraft he kept it at Airway Flight Service, Inc., which he used as his base of operations, and no one flew the aircraft but Zahner up to the time it crashed. He discussed with Zahner the flight to Mississippi which resulted in the fatalities. Jones also had a conversation with decedent, Maher, prior to that flight in which Maher remarked, “If this trip works out real well, why, they [his employer, Smith-Loveless Company] would give me permission to go ahead and learn to fly and buy an airplane.” (Bracketed portion added.) Jones helped with the search for the missing aircraft, and found enough parts of it on the west banks of the Mississippi river to identify it.

An objection by respondents was made to the reading of the following question and answer upon the grounds that it called for hearsay, that it was not binding on them (as Jones was not the agent of respondents), and was indefinite to the point that it had no probative value: “Question: And do you know whether or not any discussion was made concerning insurance? Answer: Well, Mr. Zahner asked us if the aircraft was insured and we informed him that it was insured, I believe, with the — with Dave Kratz or Aviation Underwriters, isn’t it, out of St. Louis?” The objection was sustained by the court.

Jones further testified that the insurance cost was figured in the cost of the airplane, and that he was sure that McAnally told Zahner that he had insurance. Jones could not remember the exact words, but he did know that it was inquired about because Zahner said that he would not be able to come up with enough money to pay his insurance and pay his down payment right to start with, but he was informed then that there was seat coverage, which was required on charter work — there was public liability, property damage, hull, and seat coverage. Jones testified further that he would not say positively that McAnally told Zahner that he was covered by the policy, but he was sure that he did, “Otherwise, Mr. Zahner would not have flown the ship.” On cross-examination, he stated that it was his practice, and it is customary in the business, that the purchaser of an aircraft pays for the hull insurance whether he owns it or whether someone else owns the aircraft in order to protect the financing — whoever finances the aircraft requires that. In chartering planes, he makes sure there is insurance coverage, and he expects the owner of that plane to pay for the insurance, and he, in turn, pays such owner sufficiently to carry the extra coverage, which is part of the charter clause.

For defendant, Raymond C. Goebel testified. He was at the time of trial in charge of the legal and research department of National Insurance Underwriters. At the time of Zahner’s transactions with Airway Flight Service, Inc., Goebel was the chief underwriter for respondents. He had a telephone conversation with Karl McAnally relative to insurance coverage of the Mooney aircraft purchased by Zahner, and made computation of the premium thereon. He wrote the policy of insurance in question pursuant to a quotation of premiums given to McAnally, and also issued an interim binder of coverage to Airway Flight Service. Goebel testified that he computed the premium based upon the fact that Airway Flight had previously been insured by respondents, the use to which the aircraft was to be put, the number of hours of passenger charters per month, and previous experience with Airway Flight Service, Inc. Goebel had never heard of Zahner, and he testified that in order to cover him in a policy he would have to know the circumstances, his experience, and number of years of operation to be able to arrive at a definite premium figure. The rates would have been different if Zahner was named insured. There are no rates filed with the Insurance Commission in aviation insurance. The terminology used in the insurance industry is that this is a “judgment rate,” whereby the rating factors are past loss history, type of pilot experience, quality of maintenance and the length and quality of operation. In the case of Airway Flight Service, Inc., the rates were modified off by 20% because of its good experience. With respect to the hull insurance, Goebel ascertained that Airway Flight Service, Inc., had the title to the aircraft at the time, and he was asked to protect it at all times, which resulted in a 5% rate, with no policy fee of 10% because Airway Flight Service, Inc., was a previous policyholder. He testified further that there was a mistake in issuing the policy restricting hull insurance in the same manner in which the liability portion was because it was intended that Airway Flight Service, Inc., be covered by hull insurance at all times.

We will dispose first of respondents’ contention that appellant is not entitled to the remedy of reformation in this case because, it is said, there is no ambiguity in the contract of insurance which would permit explanatory parol evidence. The policy is not ambiguous on its face, but ambiguity is not the only basis for reformation of a written instrument. There may exist also a mistake of the scrivener of the instrument who does not incorporate therein the true prior intention of the parties which will entitle either to the remedy in equity of reformation of the instrument. See 76 C.J.S. Reformation of Instruments § 20, p. 344; 44 C.J.S. Insurance § 279c, p. 1117; 45 Am.Jur.Reformation of Instruments § 54, p. 616; Annotation, 26 A.L.R. 504, and the Missouri cases there discussed. In this case the allegation of the petition is that Karl Mc-Anally was the agent of respondents, that he handled the transaction, that respondents through their agents had full knowledge that Zahner had paid the premium on the policy, that Zahner was intended to be a named insured, and that the failure to include him as named insured was by mutual error and mistake of all the parties, and that said policy should be reformed to state the true intent of the parties. A cause of action for the reformation of the policy was thus stated. See Snider v. Miller, Mo.App., 352 S.W.2d 161, 164, and cases and authority there cited; and 29 Am.Jur. Insurance §§ 341, 346, pp. 304, 307. Curiously, we note that respondents by their evidence showed that a mistake of scrivener, Goebel, was made in restricting the hull insurance to times when the aircraft was being operated by commercial pilots in the employ of Airway Flight Service, Inc., it being testified to by Goebel that it was intended that such hull coverage exist at all times. No ambiguity exists in that portion of the policy, yet respondents insist that the policy was reformed by mutual consent to show full-time coverage of hull insurance by reason of Goebel’s mistake, apparently as a defense to appellant’s third count.

The problem here is not one merely of law but is more evidentiary in nature. In this situation we will give due deference to the trial court who observed and judged the credibility of those witnesses who testified before him, “[A]nd his finding will be sustained unless the proof is palpably insufficient in clarity and cogency to warrant the finding made by him.” Snider v. Miller, supra, loc. cit. 352 S.W.2d 162 [1, 2], The burden of proof in this reformation case was upon appellant to show by clear and convincing evidence that the agreement of the parties was that Zahner was intended to be a named insured and covered at all times under the liability portion of the policy. Allan v. Allan, Mo., 364 S.W.2d 578, 581 [1-5]; Leimkuehler v. Shoemaker, Mo., 329 S.W.2d 726, 730 [1-3]; Allen v. Smith, Mo.App., 375 S.W.2d 874, 880 [9-11]; Binswanger v. Employers’ Liability Assur. Corp., 224 Mo.App. 1025, 28 S.W.2d 448, 453 [2, 3].

Appellant’s Points I and II relate to her right to bring an action in equity to reform the policy of insurance to include Zahner as insured. We discuss these matters no further than above. Points III and IV present appellant’s claimed error that the trial court erred in refusing to find that McAnally’s knowledge (as agent) was that of respondents; and that when the premium ($847.64) was added to the promissory note signed by Zahner it constituted payment of the premium by him; and by Point V error is claimed in the court’s refusal to rule that when Zahner paid the premium it is presumed that he intended to get what he bought, to wit, insurance, and that it cannot be presumed that McAnally intended to take the premium without giving Zahner the protection he bought. As a general principle, the knowledge of McAnally, as agent, would be imputed to his principals, the respondents. Bledsoe v. Farm Bureau Mutual Insurance Co., Mo.App., 341 S.W.2d 626, 629 [3]; Heindselman v. Home Insurance Company, Mo.App., 282 S.W.2d 191, 192 [3]; State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes, Mo., 152 S.W.2d 132, 134 [2-7]. The difficulty here is with the sufficiency of appellant’s proof as to what McAnally knew with respect to any agreement made prior to the issuance of the insurance policy. Karl McAnally did not testify in the case although present under subpoena issued at appellant’s request according to the statement made by her counsel during argument before this court. In Snider v. Miller, supra, loc. cit. 352 S.W.2d 165 [7], Dougherty v. Dougherty, 204 Mo. 228, 102 S.W. 1099, 1101 is quoted: “ ‘A mutual mistake in a written instrument presupposes a prior or preceding agreement between the parties. To show the mutual mistake in the written instrument, the preceding agreement must ex necessitate be shown.’ ” Here, the only testimony as to any prior agreement is to the effect that insurance was discussed between Zahner and McAnally; that Zahner thought that he had insurance; witness Jones testified that he was sure but not positive that McAnally told Zahner he was covered by the policy; and it is clear that Zahner paid the premium thereon. The record is silent, however, as to any agreement or intent of the parties (McAnally, as agent, and Zahner) that the premium paid was to cover anything beyond what was specified in the policy, i. e., “Any Pilot employed by the Named Insured and who holds a valid Commercial Pilot Certificate.” Absent such evidence, the trial court was justified in concluding from other evidence adduced that it was intended (as respecting passenger liability here in issue) that the policy cover Zahner and Airway Flight Service, Inc., only when Zahner was flying as an employee of that named insured. There was substantial evidence that Zah-ner was so employed; Jones testified it was his custom in his charter flights to have the pilot pay for seat coverage— Jones carried his own insurance and charged the pilot therefor; Goebel, the underwriter, had never heard of Zahner, and if he had been the named insured pilot, the rate would have been computed differently. Although the fact that Zah-ner paid the premium could create a re-buttable presumption, that he was expecting liability coverage in his own name, we cannot say from this fact, when coupled with other facts, that the prior agreement was to include him as a named insured so that he would be protected by liability insurance when on charter flights of his own not connected with any employment by Airway Flight Service, Inc.

Appellant’s cited cases do not sustain her argument. Malone et al. v. State Life Ins. Co., 202 Mo.App. 499, 213 S.W. 877, held merely that a policy of life insurance took effect and remained in force until a note given for the first annual premium became due and default was made in payment. Here we have held that Zahner did pay the premium by its inclusion in his promissory note, but that the evidence was insufficient to show that the payment of premium was for any more than the coverage specified in the policy as issued by respondents. Vail v. Midland Life Ins. Co., Mo.App., 108 S.W.2d 147, 151 [11], is a like holding that where an insured gave a note for the first premium so far as he was concerned the premium was paid. So also with New York Life Ins. Co. v. Silverstein (C.C.A.Mo.), 53 F.2d 986. None of these cases had a question as to the sufficiency of the evidence to establish the type of insurance coverage intended.

Under Point V, appellant cites the case of Falkenberg v. Industrial Fire Ins. Co. et al., 53 Ohio App. 481, 5 N.E.2d 935. In that case a mechanic’s lien holder on property purchased a fire insurance policy which erroneously showed his interest to be that of a mortgagee. Defendant’s admitted agent had dealt with the plaintiff in which his interests in buildings being constructed had been satisfactorily insured. The court remarked, loc. cit. 5 N.E.2d 936 [2], “There cannot be the slightest doubt that Walls understood perfectly just what the plaintiff wanted.” Here, the evidence does not clearly establish what Zahner and McAnally agreed to, and the other rebutting evidence, above alluded to, was for the trier of the fact. So also was any unfavorable presumption against respondents which could have been drawn by reason of the failure of McAnally, respondents’ agent, to testify. Earley v. Automobile Ins. Co. of Hartford, Conn., Mo.App., 144 S.W.2d 860, 862 [2, 3]. Such presumptions are not evidence of any fact, but are drawn for the purpose of persuasion of, or argument to, the trier of the fact, and in the light of other evidence he may accept or reject them. 31A C.J.S. Evidence § 156(1), p. 398.

Appellant’s Point VI presents the general proposition, with which we cannot disagree and above have held, that “Equity will reform a contract to meet the true intent of the parties even though there may have been mistake, negligence or fraud on the part of one of the parties.” By Point VII she urges again that she has shown by clear, convincing and cogent evidence that she is entitled to reformation. Under all of the facts of this case we agree with the trial court’s finding as we have ruled above.

The remaining Point VIII states that the court erred in refusing to rule that by payment for the loss of the aircraft after knowledge of the death of both Zahner and Maher, and with full knowledge that Zahner was not an employee of Airway Flight Service, Inc., the respondents affirmed the contract and that they intended to cover said aircraft while it was being operated by Zahner and waived the provision of nonapplicability.

The lease-purchase agreement here is a security transaction. It is a well-known fact that in the sale of property under deferred payments the sellers protect Ijheir interest by the use of physical damage insurance coverage (here hull insurance), and that the purchasers pay the premiums, as a part of finance arrangements, on the policy. Here it was for the trial court to believe Goebel’s testimony that there was an erroneous restriction of coverage in the policy as specified: commercial pilots in the employ of Airway Flight Service, Inc. That company and respondents agreed that a mistake had been made. They achieved by mutual consent their own reformation of the policy with respect to hull coverage, in that it was intended that such coverage be in force at all times. Such agreement would not be an acknowledgment of passenger liability, a separate coverage, for Zahner’s flights outside of his employment. The respondents have paid nothing upon that portion of the policy, hence appellant’s cited waiver cases, wherein insurance companies paid to mortgagees and others the amount of their interests under the identical and contested coverage provided in the policy, are not applicable.

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.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Earl E. STONER, Appellant.
    No. 51150.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City, Donald L. Manford, Asst. Atty. Gen., Kansas City, for respondent.
    Charles A. Moon, Springfield, for appellant.
   HIGGINS, Commissioner.

Earl E. Stoner was convicted as charged by the information of concealing mortgaged property of the value of $2,800, a felony, and the jury assessed his punishment at 2-years’ imprisonment. Section 561.570, RSMo 1959, V.A.M.S. Sentence and judgment followed and defendant has appealed.

Respondent contends that the appeal should be dismissed for failure of appellant to file a timely motion for new trial. Criminal Rule 31.01, V.A.M.R., provides that in computing time, the day of the act, event, or default after which the designated period of time begins to run is not to be counted or included, and the last day of the prescribed time is to be counted or included unless such last day be a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a legal holiday. The verdict in appellant’s trial was received October 16, 1963, and the time for filing motion for new trial was properly enlarged as provided in Criminal Rule 27.20(a), V.A.M.R., until on or before November 25, 1963. Appellant’s motion for new trial was filed November 26, and such late filing would preclude review unless November 25, 1963, was Sunday or a legal holiday. We take judicial notice that November 25,1963, was proclaimed by President Lyndon B. Johnson to be a National Day of Mourning for the State Funeral of John F. Kennedy, 34th President of the United States. November 25, 1963, was thus constituted a holiday, the courts were not open for business and appellant’s motion, ordinarily due on that date, was properly and timely filed the following day. See Shannon County ex rel. Winona Consolidated School Dist. v. Shannon County Bank, 229 Mo.App. 895, 86 S.W.2d 1070, 1072 [2, 3], and cases there cited.

The main question presented is that of the sufficiency of the evidence to support the verdict, the contention being that the evidence is not “of the character required to justify an inference of defendant’s guilt of the crime charged.”

The information charged defendant with the felonious concealment of 5 Guernsey cows, 4 to 6 years old; 2 Holstein cows, 6 to 8 years old; 4 Angus cows, 3, 4, 5, and 8 years old; 1 Holstein heifer, 2 years old; 1 black heifer, 2 years old; 2 white-faced heifers, 1 year old; 1 Angus bull, 2 years old; 1 roan white-faced steer; 1 Holstein steer; 5 Angus steers; 8 Holstein and Angus steers; 7 yearling mixed breed steers; all of the value of $2,800, with intent to defraud the mortgagee, Bank of Raymond-ville, under a chattel mortgage covering such property and given to that bank by defendant and his wife April 9, 1962, to secure their note in sum $2,756.75.

E. L. Daugherty, cashier and loan officer of the Bank of Raymondville, testified that his first dealings with appellant occurred February 10, 1962, when he made appellant a personal loan of $300. On March 2, 1962, appellant obtained a loan of $1,250 which paid the $300 loan. On March 26, 1962, appellant obtained a loan of $1,756.75 and pledged 22 head of mixed cattle as security. On April 9, 1962, appellant obtained a loan of $2,756.75 which paid the $1,756.75 loan and provided an additional $1,000 needed for the purchase of some cattle in Iowa. This last loan was represented by a 6-months’ term note and was secured by a chattel'mortgage on 38 head of unmarked cattle generally described as above in the information. The mortgage was executed by appellant and his wife and was recorded in the office of the Recorder of Deeds for Texas County, Missouri, April 12, 1962. It did not specify where the cattle were located.

The purchase of cattle in Iowa took place March 6, 1962, from the Iowa City Sales Company and it involved 24 cattle costing $2,762.59. According to witness Herman Pottebaum, he furnished $2,762.59 for the Iowa purchase and appellant gave him a note dated March 9, 1962. Mr. Pottebaum understood that appellant was to secure the loan by giving a mortgage on 32 head of cattle, 8 of which were supposed to be on the place where appellant lived near Simmons and 24 of which were in the Iowa sale yard. Witness Pottebaum testified also that on an occasion between the 10th and 20th of March, 1962, he went to a place near Simmons about a quarter of a mile from where appellant lived, and earmarked 1 black horse and 32 head of cattle which he described as 2 Angus cows, one 10 and one 8 years old; 1 Angus cow, 3 years old; 1 Angus cow, 6 years old; 2 roan cows, 3 years old; 1 roan redneck cow, 4 years old; 1 roan mottle-faced cow, 6 years old; 1 Guernsey cow, 4 years old; 2 Guernsey cows, 5 years old, 1 Guernsey cow, 10 years old; 1 Guernsey cow, 4 years old; 1 Guernsey cow, 5 years old; 2 Holstein cows, 5 and 6 years old; 1 Hereford steer calf, 300 pounds; 1 Angus bull, 350 pounds; 4 Angus steer calves, 250 pounds; 1 Holstein calf, 275 pounds; 1 Holstein heifer yearling, 500 pounds; 1 black white-faced ring-eyed steer calf, 250 pounds; 1 black heifer calf, 150 pounds; 1 roan heifer calf, 160 pounds; 1 roan Guernsey yearling heifer, 500 pounds, 1 black-faced brown heifer yearling, 500 pounds; 1 Hereford mottle-faced heifer yearling, 500 pounds; 1 Hereford heifer, year and a half, 515 pounds; 1 Hereford heifer yearling, 350 pounds. This was all the cattle that appellant was supposed to own at the time. The earmarking was done by taking a little piece out of the top of each ear of the cattle which is called “overbit.” Several days went by without appellant executing the chattel mortgage promised to Pottebaum, and then he learned that the cattle were mortgaged to the Raymondville bank. On April 18, 1962, he sued appellant, and Earl Hutche-son, Deputy Sheriff of Texas County, attempted to obtain service on appellant.

In the first part of May, 1962, witness Jim Wells told appellant that some of appellant’s cattle were on the Wells property which was south of the Johnson farm leased by appellant. There were 12 to 15 cattle on the Wells place. “ * * * they was two or three pretty old 'shally’ cows, and they was some good stuff. * * * there wasn’t nothing there under a yearling, from that on to old cows. * * * they was one Holstein that I can recall, and the rest of them were blacks. * * * they had an earmark, and I’ve seen them on the other place * * *. They come from the north. * * * He come and got them the next day.”

Payton Smyers testified that he owned a place which cornered with the Johnson place, and that in May, 1962, he saw appellant put in a cattle guard at the southeast corner of the Johnson place. Appellant told the witness that he had leased the Johnson farm. During the summer the witness fished the Piney River a number of times near the Johnson farm and counted fifteen head of Stoner cattle on the Johnson farm. He also saw nine of them in his garden twice on the same day. “There was Holsteins, swayback Jerseys * * * just a — mixed herd of — of cattle.” The other cattle and calves did not get in the garden. The cattle got out twenty times but fifteen head was the most he saw.

Nettie Juanita Akeman testified that she rented a 40-acre fenced part of her 200-acre Tottingham farm to appellant in the summer of 1962. She saw him bring two or three head of black cows or calves to the place. Later he brought an old, thin cow and two smaller calves. She never did see over five or six cows, “all black ones,” and he came and got them later. She did not notice whether the cattle were earmarked. Appellant was out there later to report some cattle missing and was to come back to look for them. He never returned for the search, but her own boys and Dan Coates went over the place and did not see any cattle. Her son, Donald Tottingham, testified that he saw two cows and two calves on his mother’s place which belonged to appellant. He helped appellant put one cow and one calf there. Four head was the most cattle appellant ever had there. The fence was in good shape and he saw no place where cattle had gone through or jumped the fence.

Doyle Van Genderen was on the Totting-ham farm in September, October, and November, 1962, to cut hay on a tract adjacent to that rented to appellant by Mrs. Akeman. He never saw but two or three old Angus cows and a couple of calves and the hayfield lay next to the only water on the farm.

Several conversations took place between Mr. Daugherty and appellant during the time following execution of the note and chattel mortgage and the fall of 1962. On one occasion following an injury to appellant, appellant said he would probably need an extension and that he would have to get the cattle up because they had strayed. The injury occurred in early September. In that conversation, appellant said the cattle were on the Tottingham farm. On October 13, 1962, appellant told witness Daugherty that the cattle had strayed on the Tottingham farm but that he could see them and was having trouble getting them up because they were wild. On that date the bank extended the note upon payment of interest due. The witness went on a combined business trip and quail hunt in the vicinity of the Tot-tingham farm on the 10th and 15th of November and saw no cattle. The note was never paid.

Mrs. Delta Krewson testified that on July 2,1962, appellant sold two white-faced heifers to the Licking Livestock Auction Company which brought $174.78, and that on July 9, 1962, he sold the company a black cow and calf for $146.37 net. Merle Smith testified that on October 18, 1962, appellant sold a black steer for $88.35 and a Holstein heifer for $87.50 at the Summersville Livestock Bam.

Earl Hutcheson, Deputy Sheriff of Texas County, testified to a telephone conversation on November 26, 1962, in which appellant stated he had some cattle that had strayed or had been stolen from the Tot-tingham farm. The witness did not look for any cattle on the Tottingham farm because appellant told him that he had been there on his horse and they were not there.

Appellant placed advertisements in The Cabool Enterprise on November 29, 1962, and December 6, 1962, which said: “Strayed, 12 Angus cows and calves, 1 dry Angus cow and 9 Holstein cows, from Tot-tingham farm at Bado several weeks ago. If seen, notify Rock Stoner, Cabool, Missouri, or ’phone 58J1.”

Appellant commenced bankruptcy proceedings in January, 1963, and in his schedule stated under oath that he had “22 head of cattle strayed or stolen from pasturage north of Cabool, Missouri.” At another place in the schedule he stated that “1 Jersey cow, 21 or 22 Angus and Hereford unregistered stock lost or strayed or stolen from pasturage North of Cabool, Mo., mortgaged to Bank of Raymondville.” Appellant later amended his bankruptcy schedule to show thirty-eight head of cattle mortgaged to Bank of Raymondville lost, strayed, or stolen, and a further amendment showed fifty-five cattle in all. The trustee in bankruptcy was able to trace the cattle to the time of appellant’s injury and then they disappeared, except for two which were sold to pay interest, one which died, and one which had been put in appellant’s deep freeze.

Bette Stoner, wife of appellant, testified that it was her judgment that appellant purchased 27 cattle after the April 9th purchase and she did not know whether appellant sold any of the mortgaged cattle — “I never caught him at it.” She aided her recollection by canceled checks and testified to purchases by appellant of a bull and heifer for $174.97 from Cabool Livestock Sales, Inc., a heifer and calf for $90.00 from Charles McKee, and 3 heifers for $138.60 from Nolan Hutchison. She testified also to purchases from Bill E. Jones and John Fuller amounting to $250 each, and of 12 cows and 4 calves from Gene McClung of Little Rock, Arkansas, for $900. Appellant and his wife also ran a saddle shop which they closed in January, 1963. They then moved to Springfield and she could not remember the location of any cattle at the time of the move. She did not know what happened to the Bank’s cattle.

Delmar Poe stated that he rented 38 acres to appellant beginning September, 1962; that the greatest number of cattle he observed on the place was five or six, and when appellant moved he left but one cow, a “milk type” in poor condition.

The facts have been stated in the light most favorable to the state as is the rule in determining the sufficiency of the evidence. State v. Walker, Mo., 365 S.W.2d 597, 599 [2], In that light, the circumstances pointing to guilt are the loose handling and transfer of cattle from place to place, appellant’s unfulfilled promise to Herman Pottebaum to mortgage some cattle as security for a loan from Pottebaum, the sales of some cattle during the term of the Bank’s note, the bankruptcy proceeding, and the failure to locate and account for the cattle listed on the Bank’s mortgage. However, where, as in this case, the conviction must stand, if at all, on circumstantial evidence, the circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and inconsistent and irreconcilable with his innocence, and must point so clearly to guilt as to exclude every reasonable hypothesis of innocence. State v. Walker, supra, 365 S.W.2d 601 [5]; State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282 [2], Under this test, the inferences drawn above would be justified, but they are not sufficient to establish guilt beyond a reasonable doubt. In order to convict appellant, it would be necessary to show that he actually took steps to conceal the specific mortgaged cattle for the purpose of defrauding the Bank of Raymond-ville, and the evidence does not permit such inferences. The evidence shows only that appellant mortgaged some cattle which were neither marked nor specifically described. He was not obliged to keep them at any certain place, and the evidence of their whereabouts and handling is as consistent with a theory that the cattle strayed into rough country as it is with a theory that the cattle were hidden with fraudulent intent. Likewise, the sales are of cattle so generally described that they cannot be traced definitely to the mortgage and an intent to violate its terms. The proceeds of a sale of one of the mortgaged animals went to pay the interest on the note at the time the note was extended, and such is inconsistent with an intent to defraud. The facts and circumstances thus raise at most a suspicion of guilt and a verdict so based on surmise, conjecture, or suspicion cannot stand. State v. Murphy, supra, 201 S.W.2d 2d 282 [3, 4]; State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17, 20 [4], There being a lack of substantial evidence of appellant’s guilt, his motion for acquittal should have been sustained.

Accordingly, the judgment is reversed and, since it does not appear that a submis-sible case might be made upon retrial, the defendant is ordered discharged.

HOUSER and WELBORN, CG, concur.

PER CURIAM.

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

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Robert WRAGG, Appellant.
    No. 51206.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Seldon M. Jones, Special Asst. Atty. Gen., Kansas City, for respondent.
    J. C. Kretschmer, Kirkwood, for appellant.
   HOUSER, Commissioner.

Robert Wragg, convicted of burglary in the second degree and stealing, §§ 560.070 and 560.156, V.A.M.S., and of two previous felonies under § 556.280, V.A.M.S., was sentenced to be committed to the department of corrections for 4 years. He has appealed from the judgment of conviction.

At 2 p. m. on Sunday, June 7, 1964 police officers received radio-dispatched calls to answer an alarm at Comet Tool & Die Company at 3560 Chouteau Avenue in St. Louis. Officer Strode proceeded immediately to the address, observed a window partially open on the south side of the building, stopped the police car and walked up to the window. Looking in he observed a Negro male, 30 to 40 feet north of him, running west through the building. The officer yelled at him to stop but he kept running. The officer entered the building through the open window and ran to the center aisle, where he saw the man starting to leave the building through a window on the west side of the building. The man was wearing a light-colored shirt and dark-colored pants. The officer again hollered at him to stop. He did not stop. The officer fired two shots at him, which missed. The officer ran up to the window but by then the man was out of sight. The officer then observed an electric saw, later identified as Exhibit A, the property of Comet, lying on the driveway. The officer picked up the saw and brought it back into the building. The areaway immediately outside the building adjacent to the escape window is completely enclosed by a cyclone fence 6-8 feet high with two strands of barbed wire at the top. A description of the man (Negro male, approximately five feet nine inches tall, wearing light-colored shirt and dark pants) was broadcast on police radio. Two detectives patrolling the area received the description of the wanted man over the radio. They went west on Chouteau from Jefferson and on reaching 3325 Chouteau they observed a Negro male, the defendant, who answered the radio description. Defendant was sweating unusually. His shirt was soaked with perspiration, as if he had been running. He had several scratches and a jagged cut on his arm. The cut appeared to be ripped open, more of a tear than a gash. These lacerations were fresh and bleeding. Since he fitted the general description of the man wanted for burglary the officers placed him under arrest and took him to the Comet building. The officers brought defendant to the Comet building some 10 to 20 minutes after his description was broadcast. The officers removed his shoes, in which aluminum chips were imbedded. At the place in the factory where entry to the building had been forced there was a grinding machine, where fresh grinding had been going on. The window was broken. The table and floor were completely covered with aluminum chips. The subject was taken to a police station, where his light blue print pullover-type sport shirt and his dark grey trousers were removed. The shirt had a tear on the sleeve and a tear in the front. No tears were found in the trousers. He was supplied with hospital clothing and taken to the hospital to have the lacerations on his arm examined.

Defendant’s shoes, shirt and trousers, and samples of the aluminum chips picked up on the floor in the area of the grinding machine were tested and analyzed in the police department laboratory. Debris removed from the trousers and shirt was examined under the microscope. It contained metallic shavings and fragments. Aluminum particles were found imbedded in the loafer-type shoes. A spectograph comparison of the metal removed from the shoes with the metal chips indicated that the objects examined consisted mainly of aluminum of the same chemical composition as the metal fragments. The electric saw was examined for fingerprints. No fingerprints could be lifted because the surface of the saw had an oily film on it. Officer Strode could not identify defendant as the man whom he saw in the building, because the building was very dimly lit and when the subject left by the window his back was toward the officer. Nor could the officer observe whether the man was carrying the saw as he went out the window.

At midnight on Friday, June 5, employee Klump locked all doors and windows of the Comet building and turned on the alarm system. Klump saw the Black and Decker electric saw the night of June 6, just inside the door on the floor of the shop office.

Defendant through his counsel relies upon three points on this appeal.

He first contends that the court erred “in admitting illegally obtained evidence over the objection of the defendant.” This of necessity refers to the admission in evidence of the trousers, shirt and shoes which were taken from him when arrested and the particles of metal found on and imbedded in these articles. When these exhibits were identified defendant did not object. When they were offered in evidence the court asked counsel for defendant if he had any objection. Counsel answered that he had already objected to them but that his objection had been overruled. (Counsel was in error, for there had been no previous objection.) Counsel then indicated that he wished to renew his objections and said: “Well, I am objecting to them at this time again.” He assigned no reason for his objection. Such failure has been held alone sufficient to justify overruling an objection, State v. Washington, Mo.Sup., 368 S.W.2d 439, 443 [5], but we prefer to base our conclusion that there was no error in admitting this evidence upon other and stronger grounds.

In our judgment there was no error in overruling the objection and in admitting these articles in evidence for the reason that they were seized as a result of a lawful search incident to a lawful arrest, notwithstanding the arrest was made without a warrant. Officers may arrest without a warrant if they have reasonable cause to believe that the person arrested is guilty of a recent felony. State v. Phelps, Mo.Sup., 384 S.W.2d 616, 619. In this case the officers had received information by police radio that a burglary had occurred and they knew where it occurred (3560 Chouteau Avenue). They were also given a description of the man wanted (Negro male, wearing dark trousers, light shirt'). They immediately drove to the vicinity and within a matter of 3 or 4 minutes after receiving the information they observed a Negro male fitting the general description of the wanted person, going east, in the second block from the place of the burglary. The man’s shirt was soaked with perspiration “as if he had been running.” The man went into the rest room of a filling station at 3325 Chouteau Avenue. When he came out of the filling station the officers stopped him. They noticed that he had several scratches on his arm — a fresh cut — and that his shirt sleeve was ripped. This combination of circumstances gave the officers reasonable cause to believe that this person committed the burglary at Comet — justified more than mere suspicion. In arresting defendant under these circumstances the officers did not act arbitrarily but exercised a reasonable discretion and demonstrated apparent good faith.

Defendant places sole reliance upon Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666. In that case the arrest of an intoxicated Negro one and one-half hours after the burglary, at an unspecified distance from the scene of the crime, largely because he happened to be wearing a trench coat, was held to be an arrest without probable cause. There was nothing shown indicating that he had been running or that he had scratched his body in trying to effect an escape. The differing elements of time and distance of the arrest from the time and place of the crime and the differing physical conditions of the two persons arrested differentiate the cases on the facts.

“When a person has been lawfully arrested officers may take from him articles of evidentiary value without violating his constitutional guaranties against unreasonable searches and seizures.” State v. Phelps, supra, 384 S.W.2d, l. c. 619, and authorities there cited. In State v. Menard, Mo.Sup., 331 S.W.2d 521, as in this case, the proof of burglary rested largely on microscopic comparison of materials found on defendant’s clothing at the time of his arrest and materials taken from the burglarized premises. In that case defendant’s clothes were removed at a police station and forwarded to the police laboratory. The court rejected defendant’s claim of error in admitting evidence of the specimens taken from defendant’s clothing and that the search of the clothing and seizure of those particles was not unreasonable under constitutional provisions. We find no error in admitting the evidence in the case under review, holding as we do that these articles were seized as a result of a lawful search incident to a lawful arrest.

Had the arrest been unlawful the evidence seized, which was otherwise competent and material, would not have been inadmissible in evidence since there was no timely pretrial motion to suppress. State v. Garrison, Mo.Sup., 305 S.W.2d 447, 451 [6].

Defendant’s second point is that “the verdict is against the weight of the evidence.” It is no longer necessary to cite authority for the proposition that this point is too general to preserve anything for appellate review.

Defendant’s third point is that “the court erred in overruling defendant’s Motion to Dismiss at the close of the State’s case and at the end of the whole case, in conformity with the findings in Gatlin vs. U. S. [117 U.S.App.D.C. 123], 326 Fed.2nd, page 666.” If we correctly understand the contention under this point defendant is claiming that the evidence obtained from the defendant’s person was inadmissible as the fruit of an illegal arrest without warrant and that without this evidence the state failed to make a case, as a result of which the judgment should be reversed. What we have said under the first point indicates that the evidence was properly admitted as the fruit of a lawful arrest but in any event defendant is in no position to complain because, as indicated, he did not make a pretrial motion to suppress and did not make a sufficient and proper objection to the introduction of this evidence.

The information, verdict, judgment and sentence on the record before us are proper in form and substance. Criminal Rule 28.02.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Russell SMITH, Appellant.
    No. 51232.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for respondent.
    Russell Smith, appellant, pro se.
   HENLEY, Judge.

Defendant was charged by information with assault with intent to maim with malice aforethought. Section 559.180. (References to statutes are to RSMo 1959 and V.A.M.S.) A jury found him guilty and assessed his punishment at imprisonment in the penitentiary for a term of two years. After his motion for a new trial was overruled, judgment was entered and he was sentenced in accordance with the verdict.

Counsel appointed by the court represented him throughout the trial and also filed and argued his motion for new trial. Defendant filed a printed brief pro se and argued the case in this court in person.

This was the second trial of the case. The first trial, held on February 13, 1963, resulted in the same verdict, judgment and sentence. On appeal to this court that judgment was reversed and the cause remanded for a new trial. See: State v. Smith, Mo., 377 S.W.2d 241.

Defendant’s brief is wholly argument and does not approach compliance with our rules. Accordingly, we shall examine the entire record presented for review, the assignments of error stated in the motion for a new trial which are sufficiently specific to comply with the rules, and make such use of his brief as may be possible. Supreme Court Rules 28.02 and 27.20, V.A.M.R.; State v. Russell, Mo., 324 S.W.2d 727; State v. Mace, Mo., 295 S.W.2d 99.

Evidence presented by the state would warrant a finding by the jury that on October 6, 1960, shortly after 6 o’clock, P.M., the defendant, with malice aforethought and intent to maim, assaulted Levi Donovan (better known as Ted Donovan) by throwing muriatic acid into Donovan’s face at defendant’s home in Monroe City, Missouri. The defense was an alibi: that at the time the acid was thrown in Donovan’s face defendant was not in Monroe City but was in Quincy, Illinois. Supplementing this defense, defendant also endeavored to show who, in fact, had thrown the acid and why. His daughter, Caroline, testified that it was she who had thrown the acid and that she did so to repel Donovan’s immoral advances.

Unlike the first trial, defendant was permitted to prove all that he offered to prove. See: State v. Smith, supra, 377 S.W.2d l. c. 244, 245, 246 [6-9], The case was well tried and there were few objections to evidence by either side. The court and counsel for the state and for defendant did everything possible to see that he had a fair and impartial trial notwithstanding the deleterious efforts of defendant.

Ted Donovan testified that he had known the defendant for over 20 years, that they had been friends and that he had visited in defendant’s home and had meals there many times. On October 6, Donovan went to defendant’s home during the noon hour to see whether defendant’s sons, Fred and Jack, could work for him the next day. He found the two sons cleaning turtles for their father. They told him they would not know until later whether they would have the turtles finished in time to work for him; that he should come back that evening when they could expect to be able to tell him definitely. As Donovan left, defendant said “be sure and come back tonight and have supper with us and we will know how the boys come out with their turtles.” That evening he returned to defendant’s home, walked up on the porch and knocked on the front door. When no one answered this knock he started to leave, but turned around and knocked again. This time a voice he recognized as that of defendant answered “come on in, Ted, I got something to show you.” The front part of the house was dark, but Donovan could see a light in the kitchen. At about the same time he heard defendant’s invitation, he saw defendant’s wife “shoot out the back door.” He said he opened the door, stepped into the darkened room, and, not being able to see, asked “where you at, Russ?”; that immediately he (defendant) “plastered me * * * he threw something in my face and I never had such black smoke and clouds in my face in my life”; that defendant tried to grab him and whirl him into the bedroom, but that he managed to shove him away; that during this tussle he asked defendant, “what is this all about” and he replied, “you know, you know.” Donovan left immediately and went to his home where he lay down under a hydrant and let water run in his face.

Donovan at no time actually saw defendant on this occasion, but positively identified him by recognition of his voice.

The next day Donovan went to a hospital where he remained for six to eight days. He was treated by Dr. W. J. Smith, who died between the first and second trial. The Doctor’s testimony in the first trial was read to this jury. His testimony was that his examination revealed acid burns about Donovan’s face and eyes, that he had -a “derosion of each cornea * * * and burns over the face”; that muriatic acid is commonly known as hydrochloric acid; that after discharge from the hospital Donovan’s vision was 20/50 in the right eye and 20/40 in the left.

Billy Ray Hunter testified that he had known Donovan and defendant 20 or 25 years; that he saw Donovan the evening of October 6 at the latter’s home; that Donovan’s face was red and he told him it looked like acid burns, but that Donovan said it was from paint thinner on a rag used in his work; that on his way home he (Hunter) stopped at defendant’s house for a visit; that defendant asked him whether he had seen Donovan and, if so, “how did he look”; that he told defendant Donovan “had got paint thinner in his eyes”, and defendant said “he never got paint thinner either, it was muriatic acid because I threw it in his face.” When Blunter asked why he had thrown the acid, defendant said “because he (Donovan) had been making passes at his (defendant’s) wife.” Later that evening Hunter took Donovan to his (Hunter’s) home for the night and told him what defendant said had been thrown in his eyes.

Evalene Hunter, wife of Billy, testified that sometime after dark that evening, during her husband’s absence, defendant came by her house and asked if she had seen Donovan. She said, “No.” Defendant then said, “Well, I done him just like I done the other one.” She said she did not know what he meant by those words.

Henry and Eula Mefford, husband and wife, testified that defendant was at their home that evening about 9 o’clock; that defendant said to them: “I have put another man in the hospital”; that Mrs. Mefford asked: “Who is it this time”, and defendant replied: “Ted Donovan”; that defendant further told them he had put Donovan in the hospital by throwing acid in his face.

Sheriff Mark Bodine testified that he arrested defendant on the morning of October 7, at the latter’s home; that defendant voluntarily told him at that time that “he had put another man in the hospital * * * Ted Donovan”; that defendant had said, “Well, I threw some acid in his face.'” The sheriff also testified that at the City Hall, later in the morning, defendant told him, “that he asked Ted in, and stepped behind the door and as soon as Ted got in he throwed acid in his face.”

Leo F. Pringer, a member of the Missouri State Highway Patrol, testified that he was at the City Hall on the morning of October' 7, 1960, in the presence of the Sheriff and other officers and heard defendant make the voluntary statement that he had thrown muriatic acid in the eyes of Ted Donovan.

Seven of the twenty-one numbered paragraphs of defendant’s motion for a new trial, being paragraphs 1, 2, 3, 5, 6, 7 and 8, although vague and not stated with the particularity required, appear to question the sufficiency of the evidence to support the verdict and judgment. The above-recited evidence is substantial, and is sufficient to support the verdict and judgment. Essentially the same evidence was presented by the state in this trial as was presented in the first. In that case the court stated at l. c. 244: “The recital of the evidence presented by the state leaves no doubt that, if believed, it constituted substantial evidence of the defendant’s guilt.” We remain of the same mind and opinion. The first case was reversed and remanded for a new trial because the trial court had erroneously excluded certain evidence pertaining to alleged Improper interest of Donovan in the young girls in the defendant’s household and alleged improper advances by him toward them and one of their friends. In this trial the evidence erroneously excluded in the first was freely and fully presented and received, and such few objections as may have been sustained to evidence on this or any other subject was not met with an offer by defendant to prove such matters.

In paragraphs 4 and 9 of defendant’s motion he says the court erred in admitting in evidence the testimony of Henry Mefford, Eula Mefford, Evalene Hunter, Sheriff Bodine, and other unnamed witnesses, regarding his admissions that he threw acid in Donovan’s face, because “no proper foundation was laid for the testimony” and because all “the circumstances of the[se] occurrence[s] were not testified to by the State’s witnesses.” No objection was made by defendant to any portion of the testimony of any of the named witnesses. Having made no objection at the time the testimony was presented, he is in no position now to claim the trial court erred. State v. Brookshire, Mo., 353 S.W.2d 681, 688 [17] and cases there cited. Defendant does not state what “circumstances” were not testified to by the State’s witnesses, and neither this court nor the trial court is required to speculate on what he has in mind by this conclusion. The record shows that his counsel fully cross-examined these witnesses and had ample opportunity to show such “circumstances” as may have been relevant. Moreover, defendant testified at length, without objection, as to why he made the admissions and had full opportunity to relate all circumstances under which they were made.

In paragraphs 10, 15, 17 and 18 of his motion, defendant says the court erred in sustaining objections to testimony of certain witnesses. Paragraph 10 does not name the witnesses nor state the testimony to which he has reference. Paragraph 15 complains of error in excluding testimony of Jack Smith pertaining to immoral statements and advances by Donovan toward Jack Smith’s wife. We have carefully read the testimony of Jack Smith and do not find in the record anything that might even remotely relate to the error of which defendant complains. Paragraph 17 complains of error in excluding testimony of Jack Smith that he had not worked for Donovan for some time prior to October 6, and did not intend to work again for Donovan. The record shows that this testimony was not excluded. Paragraph 18 complains of error in excluding testimony that the Sheriff and Prosecuting Attorney “showed a pronounced animus toward defendant Smith and his family at the time of arrest/’ This assignment too does not name the witnesses to which he has reference. The record shows that all witnesses to the arrest at defendant’s home testified fully without objection. Assignments 10, 15, 17 and 18 are so vague they obviously are without merit and present nothing for review.

Assignments numbered 11, 12, 13, 14, 16 and 19 either do not state that the court erred in any respect, or are obviously so unrelated to any material issue in the case, or are so vague and unintelligible, that they do not merit discussion.

In paragraph 20 defendant assigns as error improper argument of the Prosecuting Attorney. The transcript does not contain the arguments of counsel. It was approved by counsel for the state and for the defendant. Had there been any merit in this assignment the argument of the Prosecuting Attorney would no doubt have been included. Without the argument in the transcript we may not review this assignment of error. State v. Cross, Mo., 343 S.W.2d 20, 25 [4].

In paragraph 21 of defendant’s motion, his last assignment, he alleges: “that such errors on the part of the Court greatly prejudiced the rights of the defendant to a fair and impartial trial.” We understand that in this assignment he refers to the alleged errors set out in paragraphs 1 to 20, inclusive, of his motion. We have ruled on those that conceivably presented anything for review, holding that the trial court did not err in any respect. We have carefully read and examined the transcript and the briefs and do not find wherein all the matters alleged in the motion would, in their totality, constitute the denial to defendant of a fair and impartial trial. Assignment 21 is also too general to present anything for review. State v. Rowe, 324 Mo. 863, 24 S.W.2d 1032, 1038 [16].

The information is sufficient in form and substance. The verdict is in proper form and responsive to the information and issues submitted. Allocution was granted and the sentence and judgment are proper and responsive to the verdict.

The judgment is affirmed.

All concur.


text:
    Patricia Rose BEUTTENMULLER, an Infant, by Paul A. Beuttenmuller, Next Friend, and Paul A. Beuttenmuller, Appellants, v. VESS BOTTLING COMPANY OF ST. LOUIS, Defendant, the Great Atlantic and Pacific Tea Company, Inc., a Corporation, Respondent.
    No. 51435.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      J. C. Jaeckel, Moser Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
    Gerritzen & Gerritzen, Ray A. Gerritzen, St. Louis, for appellants.
   HIGGINS, Commissioner.

Patricia Rose Beuttenmuller, a minor, and her father, Paul A. Beuttenmuller, sued Vess Bottling Company of St. Louis (Vess) and The Great Atlantic and Pacific Tea Company, Inc., a corporation (A & P), for $25,000 for personal injuries to Patricia (Count I) and for $2,000 for medical expenses expended by her father (Count II). The action is alleged to arise from injuries sustained by Patricia when a bottle manufactured by Vess exploded in a store operated by A & P.

Defendant A & P filed a separate motion to dismiss on the ground that the petition does not state claims upon which relief can be granted against it. This motion to dismiss was sustained and a subsequent motion to set aside the order sustaining the motion to dismiss was overruled.

Defendant Vess filed a separate answer and also has filed a separate motion to dismiss . or, in the alternative, for a more definite statement. The transcript on appeal does not show any disposition of the motion to dismiss or the case in chief as to defendant Vess, and the reply to our direct inquiry of the Clerk of the Circuit Court of the City of St. Louis states that the Vess motion “has not been ruled on and is still pending in this court.”

Plaintiffs’ appeal is from- the order dismissing their petition against defendant A & P, and although the issue has not been raised, it is our duty to determine whether there is a final appealable judgment disposing of all parties and issues in this cause. Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 379 [1-3].

The motion to dismiss of defendant A & P was concerned only with whether the petition stated a claim as to that particular defendant, and the ruling on the motion was no broader. Such an order of dismissal did not affect the action as against defendant Vess who had also filed a motion to dismiss and an answer. The cause was thus at issue, pending and undisposed of as to defendant Vess; and there being no judgment disposing of all parties and issues, there is no final judgment and the appeal is premature. Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., Mo., 215 S.W.2d 444, 445 [1, 2]; State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487, 489 [1, 2].

The appeal is dismissed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


text:
    John A. BOLAND, Appellant, v. Ferenc JANDO, Respondent.
    No. 51534.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Sherman Landau, St. Louis, for appellant.
    Murphy & Kortenhof, Joseph M. Kor-tenhof, St. Louis, for respondent.
   HIGGINS, Commissioner.

John A. Boland sued Ferenc Jando for $35,000 damages for personal injury and injury to his automobile alleged to arise from a rear-end collision between their automobiles. A jury returned a verdict for plaintiff, Boland, for $500 personal injuries and $200 property damage, and he has appealed on the ground, inter alia, that by reason of inadequacy of the verdict he is entitled to a new trial. The amount in dispute is the difference between the $35,-000 claimed and the $700 received, and jurisdiction is thus in this court. Mo.Const., Art. V, § 3, V.A.M.S.; Section 477.040 RSMo 1959, V.A.M.S.; Davidson v. Schneider, Mo., 349 S.W.2d 908, 909 [1].

Plaintiff, aged 50, a graduate electrical engineer, was engaged in the television and radio repair business. At 8:55 a. m., March 12, 1964, he was traveling southbound on Grand Avenue in St. Louis, Missouri, in his 1963 Dodge Dart station wagon. He stopped at a stop sign at the intersection of Grand Avenue and Lierman Avenue and, while stationary, he was struck at the rear by a 1953 Chevrolet operated by defendant. The impact knocked plaintiff’s hat from his head and caused his head to strike the windshield and to receive “a slight scratch.” Repairs to the Dodge cost $188.25 and to the Chevrolet, $10. Defendant was not injured. Later on the day of the collision, plaintiff went to Dr. Roy E. Gladney, a chiropractor, who took X rays of plaintiff’s back and spine and he testified that his X rays and those in the hospital record showed that plaintiff had a fracture of the third cervical vertebra. Defendant’s examiner, Dr. Louis A. Reuter, disputed this claim by stating that none of the X rays suggested a possibility or probability of such a fracture. Plaintiff testified that he subsequently developed dizzy spells, and he also testified that he had a broken cervical vertebra. Four or five days after the collision he was examined by Drs. Robert Potashnik and Hugh R. Waters who sent him to Barnes Hospital for treatment by Dr. Herbert E. Rosenbaum. He was at the hospital March 20 through March 24,1964, where additional X rays were taken. Plaintiff’s medical expenses amounted to $464.50.

In 1955 plaintiff had a position with the Federal Aviation Authority at an annual salary of $9,000. He had been notified of a promotion to a position at an annual salary of $12,000 which he never enjoyed because of an electrical shock injury which incapacitated him for about three years. Subsequently, he went into television and radio repair and the transcript shows an agreement that plaintiff paid federal income tax on $1,372.67 in 1963; that the 1962 return did not show any income from the repair business, and that there was no- record of plaintiff’s earnings in January, February, March, and April, 1964, in the company books.

Appellant’s first contention is that the court erred in excluding an- X-ray interpretation contained in the hospital record. The excluded interpretation was: “There is a small spur-like projection off the anterior inferior surface of the body of C3 which could be a small chip fracture.” Defendant objected to reading it into evidence on the ground it was speculative and the court excluded the interpretation because “ ‘could be’ is not with enough definiteness to make it admissible in evidence.”

Qualification of a hospital record under the Uniform Business Records Aet, Sections 490.660 to 490.690, RSMo 1959, V.A.M.S., does not necessarily make all parts of the record automatically admissible; objectionable parts may be excluded if proper specific objection is made, Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 666 [4]; and it would be proper to exclude an X-ray interpretation couched in terms of “could be a small chip fracture,” upon objection that such interpretation was speculative, LaMantia v. Bobmeyer, Mo.App., 382 S.W.2d 455, 462 [15]. Even if the exclusion were thought to be erroneous, there would be no prejudice here because the evidence sought from the hospital record was given directly by plaintiff when he was permitted to testify that he had a broken cervical vertebra and by plaintiff’s Dr. Gladney who stated that he examined the X rays in question and that they showed a fracture of the third cervical vertebra. Boring v. Kansas City Life Insurance Co., Mo., 274 S.W.2d 233, 239 [7]; Drummond v. Hartford Fire Insurance Co., Mo.App., 343 S.W.2d 84, 89.

Appellant’s principal contention is that the verdict is grossly inadequate, claiming that the $500 recovery for personal injuries compensated him for medical expense only and did not compensate him for his injuries, loss of time and loss of earnings. He does not quarrel with the $200 recovery for property damage. In support of his contention, appellant cites Breland v. Gulf, Mobile & Ohio R. Co., Mo., 325 S.W.2d 9, 16 [8], to the effect that “a reasonable uniformity of amounts of verdicts and judgments must be maintained,” and urges that he should have a new trial because of inadequacy of the verdict.

Plaintiff’s bills for doctors and hospitalization totaled $464.50. Plaintiff told defendant at the collision scene that he was not hurt and that he sustained a slight scratch on his head. The scratch went away in a couple of days. Dr. Gladney saw defendant following the accident and he found “no scars, * * * no abrasions, lacerations or anything like that.” The testimony as to vertebra fracture was disputed, plaintiff and Dr. Gladney claiming a chip fracture and Dr. Reuter being unable to find any such injury from any of the X rays in evidence. There was no record of earnings by defendant in January and February preceding the collision March 12, 1964; there was no evidence that the shop was closed after the collision; and the earning power of the position defendant held with the FAA concluded with the disability following the electric shock sustained on that job. These circumstances are examples of other facts and circumstances in this case from all of which the jury could reasonably have found little, if any, physical injury and little, if any, income-producing time lost from work as a result of the described collision; and determination of the amount of damages is primarily for the jury. Spica v. McDonald, Mo., 334 S.W.2d 365, 368 [1]. Neither is this verdict out of line with similar cases. In Polizzi v. Nedrow, Mo., 247 S.W.2d 809, the prayer was for $10,000 damages and the court rejected a claim of inadequate damages where the jury allowed $100 ($50 more than the doctor bill) for severe nervous shock, sprain or strain of the back and a contusion of the chest. Another claim of inadequacy was rejected' in Davidson v. Schneider, supra, where plaintiff recovered $531.50 for a herniation of the lower lumbar disc. There was no wage loss; the doctor bill was $231; and property damage was $300. Another example is Coghlan v. Trumbo, Mo., 179 S.W.2d 705, where the court affirmed a $250 verdict for concussion and bone injury to plaintiff’s sternum. Artstein v. Pallo, Mo., 388 S.W.2d 877, 882 [7, 8], and Davis v. City of Mountain View, Mo.App., 247 S.W.2d 539, 541 [3, 4], cited by plaintiff, are not in point because in the first situation the parties agreed that if plaintiff was entitled to recover at all the award was inadequate, and in the second ease the undisputed evidence showed that if plaintiff was entitled to any verdict he was entitled to something more than his $26 doctor bill.

Accordingly,, it does not appear that the verdict is so inadequate as to justify retrial, and the judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph Edward REEDER, Defendant-Appellant.
    No. 51418.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, James D. Anderson, Special Asst. Atty. Gen., Kansas City, for respondent.
    Gerald J. Bamberger, St. Louis, for appellant.
   DONNELLY, Judge.

Defendant, Joseph Edward Reeder, was convicted of first-degree robbery under Section 560.120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment under the provisions of the Habitual Criminal Act, Section 556.280 RSMo 1959, V.A.M.S. (as amended Laws 1959, S.B. No. 117, § 1), 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 in accordance with the verdict, an appeal was perfected to this Court.

According to the evidence, a man wearing a white straw hat and dark-colored glasses entered Martin’s Bar on Olive Street in the City of St. Louis on the night of June 20, 1964, and robbed the bartender of a roll of bills, about $75 in value. This roll consisted of one-dollar bills with a few five-dollar bills on top. Immediately after the robbery, the robber entered a motor vehicle which was driven west on Olive Street. Police Officers Roth and Guelker, who were patrolling the area, stopped across the street from Martin’s Bar. People from the Bar told the officers they had been robbed by a white male who had entered a car with three other white youths. The officers obtained a description of the subjects and drove west on Olive Street to try to find the car.

After circling the area, and as they crossed St. Charles at Nineteenth Street, they observed Officer Strauss had a car stopped. They proceeded to the car, found defendant in the rear seat, and placed the four occupants under arrest. Officer Guelker took a roll of bills from defendant. The roll of bills matched the description given by the bartender. The officers returned the four men to the Bar and the bartender and the owner of the Bar identified one of the men as the person who committed the robbery.

The bartender and owner of the Bar identified defendant in the courtroom as one of the four men returned by the police officers to the Bar after the arrest.

James W. Brown, Jr., testified for defendant and stated that on June 20, 1964, he (Brown) robbed Martin’s Bar; that he had never seen defendant prior to the night of the robbery and did not know defendant; that after the robbery he started running down Olive Street and defendant was passing by in a car; that defendant stopped for him and he told defendant three guys were chasing him; and that he did not give defendant any of the money from the robbery and did not discuss the robbery with defendant.

Bobby Lee McGaha testified for defendant and stated that he was with defendant from 11:00 or 11:30 the night of June 20, 1964, until they were arrested and that he and defendant did not go to Martin’s Bar at any time until after they were arrested.

Instruction No. 4, given by the Court, reads as follows: “The Court instructs the Jury that though the testimony of an accomplice in crime, that is, a person who actually commits or participates in a crime, is admissible in evidence, such evidence should be received by the Jury with great caution, and the Jury should be fully satisfied of its truth before they can acquit the defendant on such testimony unless such testimony is corroborated by some person or persons not implicated in the crime.”

It is proper, in some instances, to give the type of instruction given here with the word “convict” substituted for the word “acquit” in the instruction, and when the witness accomplice has testified for the State. (For cases see Mo.Digest, Criminal Law, <®==>780.) Here, however, witness Brown, the alleged accomplice, testified for the defendant. We, therefore, consider whether the giving of the instruction was error prejudicial to defendant. See People v. Bonney, 98 Cal. 278, 33 P. 98; People v. O’Brien, 96 Cal. 171, 31 P. 45; Joseph v. State, 34 Tex.Cr.R. 446, 30 S.W. 1067; People v. Touhy, 361 Ill. 332, 197 N.E. 849.

In 23A C.J.S. Criminal Law § 1217, p. 549, it is stated: “Great care should be observed in the exercise of Judicial discretion to the end that no shifting of the burden placed on the prosecution to prove guilt results in requiring to any degree or extent that an accused prove his innocence. An instruction is erroneous which improperly deprives accused of his presumption of innocence and leads the jury to believe that the burden of proof is on him to prove his innocence”, citing State v. Walser, 318 Mo. 833, 1 S.W.2d 147; State v. Sanford, 317 Mo. 865, 297 S.W. 73.

In the case of State v. Malone, 327 Mo. 1217, 39 S.W.2d 786, this Court exhaustively reviewed the subject of burden of proof in a criminal case. The burden of proof is on the State throughout the trial to establish by evidence the guilt of the accused beyond a reasonable doubt.

We are of the opinion that Instruction No. 4 was prejudicially erroneous. Here, the jury could reasonably have understood the instruction to mean that though the testimony of Brown was admissible in evidence, Brown’s evidence should be received with great caution, and that, unless Brown’s testimony was corroborated by some person or persons not implicated in the crime the jury should be fully satisfied of the truth of Brown’s testimony before they could acquit defendant. Bobby Lee McGaha testified for defendant but there is some question as to whether his testimony did or did not corroborate Brown’s testimony. In any event, the instruction clearly and erroneously shifted the burden of proof from the State to defendant.

The defendant, through his present counsel, who was not defendant’s counsel in the trial court, concedes that this point was not preserved in his Motion for a New Trial under Rule 27.20, V.A.M.R., but urges that he is entitled to relief by virtue of the provisions of Rule 27.20(c), V.A.M.R., which reads as follows: “Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

We note the case of State v. Kent, Mo.Sup., 375 S.W.2d 40, 43, where this Court reviewed instructions under Rule 27.20(c), V.A.M.R., although finding no prejudicial error therein. We note further a long line of cases denying relief where points were not properly preserved in a motion for a new, trial. 9A Mo. Digest, Criminal Law, «=>1064 (7).

However, when, as here, under the facts and evidence in this particular case, the presumption of innocence of an accused is violated and the jury in effect instructed that the burden of proving his innocence is on the accused, the accused has been deprived of a fair and impartial trial. The historical significance of approving such a deprivation of rights compels us to hold that manifest injustice has resulted here. The case will be reversed for this reason.

The other point briefed by the defendant concerned the giving of an alibi instruction. It may be that, under the evidence presented at a new trial, the question will not be pertinent. However, we suggest that an alibi instruction, if requested, would be proper, if there is evidence adduced to the effect that defendant was not present at the time of the alleged offense. State v. Simon, Mo.Sup., 375 S.W.2d 102, 105, 107; State v. Howe, Mo.Sup., 343 S.W.2d 73, 75; State v. Williams, 309 Mo. 155, 274 S.W. 427, 435.

The judgment is reversed and the cause remanded.

All concur.


author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. James DAVY, Sr., Appellant.
    No. 51407.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Timothy D. O’Leary, Special Asst. Atty. Gen., Kansas City, for respondent.
    Shulamith Simon, James W. Singer, III, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellant.
   HYDE, Presiding Judge.

Defendant convicted of burglary, second degree, and stealing was sentenced to imprisonment in the penitentiary for two years for burglary and two years fcr stealing in accordance with the verdict of the jury, the sentences to run consecutively. Secs. 560.045, 560.095, 560.110, 560.156. Statutory references are to RSMo and V.A.M.S. Defendant has appealed from the judgment entered after his motion for new trial was overruled.

Defendant was charged with breaking and entering the dwelling house of Mrs. Dorothy Heagler in the City of St. Louis and stealing two American Express traveler’s checks, $20.00 each. Mrs. Heagler and her husband left their house about 6:40 P.M. to go out to eat and returned about 8:00 P.M. The doors and windows were locked when they left. When they returned they found a broken glass window in the front door, near the door knob. Drawers in the bedroom were overturned and certain articles (typewriter, picture machine) packed up and placed so they could be taken away. All they found missing was a blue folder containing the two traveler’s checks. Defendant was arrested for speeding about two blocks from the Heagler residence soon after 8:00 P.M. and taken to the police station. Defendant was searched and the folder with the traveler’s checks taken from his pocket and laid on the desk. One of the officers noticed the checks were made out to Dorothy Heagler and asked “Who is Dorothy Heagler?” Defendant snatched the folder out of his hand, tore out the checks, put them in his mouth and tried to eat them. About half of each check was recovered from defendant’s mouth.

The defense was alibi, defendant having four witnesses who testified he was at a picnic, a considerable distance from the Heagler residence between 6 and 8 P.M. Defendant also testified that he was at the picnic and had a flat tire driving from it. He said while changing his tire he found the folder containing the traveler’s checks in the street. He said he tried to eat the checks because he was scared by the police saying he would get five years in the penitentiary.

Defendant claims error in giving Instruction No. 4, on three grounds: (1) It authorized a finding of guilt on an offense not charged in the information, saying it authorized consideration of stealing not in the commission of a burglary; (2) It failed to require a finding that defendant stole the property described in the information, the instruction not submitting the stealing of any specific property; and (3) It seems to submit a violation of Sec. 560.161, subd. 2 (1), taking from a person, but fails to require a finding of the statutory elements.

Instruction No. 4 might be construed as defective in these respects. Obviously something was omitted from this instruction because it does not indicate any property the taking of which was intended to be submitted. Moreover, it authorizes punishment provided by Sec. 560.161, subd. 1(2) for stealing anywhere property of the value of “at least fifty dollars” (which that herein involved was not) instead of submitting stealing less than fifty dollars if the jury found defendant not guilty of burglary as should have been done. It actually does not submit a taking either “from a dwelling house or a person” but only from the possession of Dorothy Heagler which could be possession other than on her person or in her dwelling house.

In this case, the court did instruct on burglary (No. 1), on stealing in connection with burglary (No. 2) and also (No. 5) that defendant could be found guilty of both burglary and stealing in connection with burglary, or not guilty on both offenses, or guilty of burglary and not guilty of stealing, or not guilty of burglary and guilty of stealing. Since the value of the traveler’s checks charged to have been stolen was less than fifty dollars, the court should have given an instruction on the offense of stealing less than fifty dollars, Sec. 560.161, subd. 1(1), instead of Instruction No. 4 which would not have been proper under the evidence in this case even if it had submitted stealing the property described in the information. However, the verdict of the jury was as follows: “We, the jury in the above entitled cause, find the defendant guilty of Burglary 2nd degree and Stealing as charged; and assess the punishment at imprisonment in the State Penitentiary for the term of 2 years for the Burglary 2nd degree and a term of 2 years for the Stealing.”

This is substantially the same situation we ruled in State v. Crow, Mo.Sup., 388 S.W.2d 817, 821, where likewise the court erroneously failed to give an instruction on the offense of stealing less than fifty dollars, for the following reasons: “It is true that if defendant had not been charged with burglary, or if being so charged and the jury had not found him guilty of burglary, the jury could have found him guilty of stealing less than $50, a misdemeanor. Section 560.161, V.A.M.S. But here the jury found the defendant guilty of the separate and distinct offense of burglary, and therefore any stealing done in conjunction therewith could not have been a misdemeanor. While it was error not to instruct on the offense of stealing less than $50, under the circumstances here where the jury found defendant guilty of the burglary, it was not and could not have been prejudicial to the defendant that the jury was not instructed on stealing less than $50:” See also State v. Loges, 339 Mo. 862, 98 S.W.2d 564, 569; State v. Moss, 216 Mo. 436, 115 S.W. 1007; for other cases holding error not prejudicial in similar situations where defendant was convicted on another charge submitted see State v. Swiney, Mo.Sup., 296 S.W.2d 112, 116; State v. Herron, Mo.Sup., 349 S.W.2d 936, 941; See also State v. Smith, Mo.Sup., 365 S.W.2d 505, 507.

We further note that the only assignment of error concerning this instruction in the motion for new trial was: “The Court erred in giving Instruction number 4, on the offense of stealing from a dwelling, for the reason that there was no evidence to substantiate the giving of this instruction.” This was not sufficiently specific to preserve anything for appellate review. State v. Townsend, Mo.Sup., 327 S.W.2d 886, 889; Criminal Rule 27.20(a), V.A.M.R. As authorized by Rule 27.20(c), if we found the giving of Instruction No. 4 plain error from which we deemed manifest injustice or miscarriage of justice had resulted, we could consider it as a ground for relief but for the reasons hereinabove stated we do not do so. We have examined the record as required by our Rules 28.02 and 28.08, V.A.M.R., and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

All concur.


text:
    CITY OF MT. VERNON, a Municipal Corporation, Respondent, v. Elva B. GARINGER et al., Defendants, State of Missouri, Director of Public Health and Welfare, Appellant.
    No. 51358.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Robert Stemmons, Mt. Vernon, for respondent.
    Norman H. Anderson, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for appellants.
   HYDE, Presiding Judge.

Appeal by the State of Missouri Director of the Department of Public Health and Welfare, from a declaratory judgment authorizing annexation by the City of Mt. Vernon of land owned by the State and used for the Missouri State Sanitorium. The judgment was rendered in a proceeding authorized by Sec. 71.015, known as the Sawyers Act. (Statutory references are to RSMo and V.A.M.S.) Our jurisdiction is invoked on the ground that a state officer as such is a party. Sec. 3, Art. V, Const. The Division of Health of the Department of Public Health and Welfare has control over the Sanitorium (Sec. 192.010) and this division is not given authority to sue and be sued. See Dunnegan v. Gallop, Mo.Sup., 369 S.W.2d 206, 208; as to divisions of the department see Sec. 191.010. Authority to sue in the name of the Director of the Department of Public Health and Welfare for wrongs to real or personal property of the institutions under department control is given the Director by Sec. 191.130. We, therefore, consider that the Director is a party as a state officer in resisting this annexation of the State’s land and also that the State is the real party in interest. See Department of Penal Institutions v. Wymore, 350 Mo. 127, 165 S.W.2d 618. We hold we have jurisdiction.

No other defendant in the declaratory judgment action has appealed and a stipulation has been entered into by the Director and the City providing: “The State of Missouri and the Director of the Department of Public Health and Welfare will not raise, brief or argue any question in the Supreme Court respecting lands described in plaintiff’s petition, other than the lands owned by the State of Missouri, the Department of Public Health and Welfare, on which is located the Missouri State Sanitorium.” The land owned by the State is described in the stipulation and it is included in the decree of the court in describing the land which the court designated as reasonable and proper for the city to annex.

Annexation of four separate tracts was provided for in two separate ordinances (334 and 335, adopted April 2, 1963) being land adjoining the city on the east and west. Thereafter, on April 2, 1963, ordinance 341 was adopted providing for annexation of the land owned by the State north of the city. The decree of the Circuit Court de-dared the annexation of all five tracts reasonable and necessary to the proper development of the city and ordered an election to be held on the first Tuesday in April 1965. It is from this decree that the State has appealed.

The city has filed a motion to dismiss for the reason that the State did not file a motion for new trial. No such motion is necessary for review of a case tried by the court without a jury. Rule 73.01(d), V.A.M.R.; Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 1167, 200 S.W.2d 55, 63; Crispin v. St. Louis Public Service Co., Mo.Sup., 237 S.W.2d 153, 156; Handlan v. Handlan, 362 Mo. 1180, 247 S.W.2d 715, 718; 1 Carr 880, Sec. 813; Morris v. I. C. T. Insurance Co., Mo.Sup., 316 S.W.2d 636, 640. The motion to dismiss is overruled.

It now appears (agreed by both parties) that, prior to the election, ordinance 341 was repealed and that annexation of the State’s land was not submitted to the voters at the election. (Apparently annexation of each of the other tracts was submitted separately.) Nevertheless, there is still in existence a decree of the court authorizing annexation of the State’s land and that is the reason for the State’s appeal. At the oral argument of this case, counsel for the city stated that the city did not now desire to annex the State’s land and would consent to a remand to the Circuit Court for modification of the decree to eliminate from it all approval of and authorization for annexation of the State’s land. In view of this concession, the issue raised by the State as to the city’s failure to prove that the defendants specifically named and served were fairly chosen and adequately ahd fairly represented the class involved is moot on this appeal.

It is therefore ordered that the decree be modified by striking from it the description of the land owned by the State and all provisions thereof approving or authorizing the annexation by the City of Mt. Vernon of any land owned by the State and that the cause be remanded for the purpose of so’ modifying the court’s decree and for such other proceedings as the court may deem proper not inconsistent with the views herein expressed.

All concur.


text:
    Russell G. DETERT et al., Respondents, v. Fred J. LEFMAN et al., Appellants.
    No. 51132.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    H. Townsend Hader, Lexington, D. W. Sherman, Jr., Lexington, of counsel, for respondents.
    W. R. Schelp, Ike Skelton, Jr., Lexington, Skelton & Bradley, Lexington, of counsel, for appellants.
   HIGGINS, Commissioner.

Respondents, as plaintiffs below, alleged title in defendants to a lot and title in themselves to an adjoining lot in Higgins-ville, Missouri. They alleged also that a driveway seven feet wide ran from the street between and partially on both of the lots, and that for more than thirty years plaintiffs, defendants, and their tenants and predecessors used the driveway for ingress and egress. Plaintiffs charged that defendants placed an obstruction in the driveway which deprived them of their use of the driveway to their great damage and, after further allegation of no adequate remedy at law, prayed for injunctive relief.

Defendants’ answer set up failure to state a claim, res adjudicata, and license, and otherwise denied the paragraphs of plaintiffs’ petition.

On trial, the judge stated in his requested memorandum opinion that the manner of use of the driveway had resulted in “reciprocal easements by prescription.” The judgment and decree declared the driveway to be a common driveway and, after further finding plaintiffs to be entitled to the relief prayed for in their petition, enjoined defendants and their successors from obstructing or interfering with use of the driveway by plaintiffs or their successors.

Appellants seek the jurisdiction of this court on the authority of Dalton v. Johnson, Mo.App., 319 S.W.2d 66. In that case the prayer was for an adjudication that plaintiffs had acquired an easement across defendant’s farm, and there was no prayer for injunctive relief. The Springfield Court of Appeals, in transferring the cause to the Supreme Court, recognized that an easement is an “interest” in land, and held that the direct effect of the judgment appealed from was to deny plaintiffs an easement interest in defendant’s land, and that title was thus directly involved.

Our case is different, however, and Judge v. Durham, Mo., 274 S.W.2d 247, is directly in point. That action was also for an injunction to prevent interference with an alleged driveway easement and, in granting the injunctive relief sought, the trial court found that “plaintiff and her predecessors acquired an easement by prescription.” The appeal went first to the court of appeals which transferred the case to this court on the same theory that appellants urge here, i.e., that the judgment established an easement on defendants’ property by prescription and that title to real estate was thus involved. Judge v. Durham, Mo.App., 265 S.W.2d 437, 439. We retransferred the case because title to real estate was not directly involved within the meaning of Article V, Section 3, 1945 Missouri Constitution, V.A.M.S., so as to give this court appellate jurisdiction. In reaching that conclusion, we said (274 S.W.2d l. c. 250 [1]) : “The mere fact that it may be necessary to determine the existence or the ownership of an alleged easement in order to rule the ultimate issue presented in the cause, and that such is done by the trial court, does not give this court appellate jurisdiction on the ground that title to real estate is involved, * * * where neither party seeks an adjudication of that issue and the trial court grants no relief with reference thereto.”

Here, plaintiffs alleged the existence of a common driveway only as a foundation of their claim for injunction to prevent interference with their use of the driveway; they prayed only for injunctive relief and sought no relief in respect to adjudicating the easement or determining ownership of it. Under such circumstances the finding on the issue of whether respondents had an easement was collateral and incidental to the relief sought and granted; title to real estate was not involved, and this court does not have jurisdiction over this appeal.

The cause is transferred to the Kansas City Court of Appeals.

HOUSER and WELBORN, CC, concur.

PER CURIAM:

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

All concur.