author: TURNAGE, Judge.

text:
    Durrell BERNARD d/b/a Bernard Lumber Co., Plaintiff-Respondent, v. John Michael MERRICK and Melba Jean Merrick, a/k/a Mike Merrick, and as successors to A. & M. Construction Co., Sweet Springs, Missouri, and Boonslick Savings and Loan Association, Boonville, Missouri, Defendants-Appellants.
    No. KCD 28255.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Dale Reesman, Williams, Reesman & Tate, Boonville, for defendants-appellants.
    Charles H. Green, III, Green & Green, Higginsville, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Durr ell Bernard brought suit against John Merrick and his wife and Boonslick Savings and Loan Association to establish a mechanic’s lien on certain property owned by Merrick. It was further sought to establish such mechanic’s lien as prior to a deed of trust held by Boonslick on the same real estate. The trial court adjudged a mechanic’s lien in favor of Bernard superior to the deed of trust.

On this appeal Boonslick primarily raises the point the mechanic’s lien statement filed by Bernard was insufficient. Reversed.

John Merrick was engaged in the building of homes near Concordia, Missouri. At one time he was in business with a partner, but later severed that relationship and was wholly independent. He purchased materials from the Bernard Lumber Company for the construction of these homes. When Merrick fell into financial difficulty, he filed a petition in bankruptcy and was later adjudged a bankrupt by the U.S. District Court. Prior to being adjudged a bankrupt, Merrick had obtained a loan from Boonslick and gave as security a deed of trust to secure such loan on the two lots on which he was building homes. It was on these same lots that Merrick used the materials he purchased from Bernard.

Subsequent to adjudging Merrick a bankrupt, the District Court gave Bernard leave to proceed against Merrick to the extent of perfecting a mechanic’s lien on the houses and lots on which Boonslick also had a deed of trust. For that reason the parties on this appeal are only Bernard and Boonslick.

Bernard filed his mechanic’s lien statement with the circuit clerk. In his statement he stated the account was “as per attached bills, incorporated herein and made a part hereof, the unpaid balance of which totals $11,756.04.” The attached bills were on printed forms of the usual type used in business with the name of the lumber company at the top and the name of the person to whom the sale was made filled in with handwriting. The bill then contained the following:

The statement contained ten sheets of bills and all of them were exactly as that shown above. In short, the itemization on the bill as to the material or item furnished was described only by the insertion of a number. The amount charged was given and the running balance was then totaled.

On this appeal Boonslick contends the account, as described above, was not a “just and true account” as required by § 429.080, RSMo 1969. The contention is further made that since the account did not comply with the statute, Bernard is not entitled to a mechanic’s lien.

On the trial of this cause, Mr. Bernard testified the number appearing in the “item” column referred to his invoice number. At trial he produced invoices which corresponded to the numbers listed on the account. Each invoice contained a complete list of the items and materials which were furnished at that time. Mr. Bernard further stated a copy of this invoice was given to Merrick each time materials were delivered.

The reason the “just and true account” is required is stated in Wadsworth Homes, Inc. v. Woodridge Corporation, 358 S.W.2d 288, 291[2] (Mo.App.1962) to be:

“so that the landowners and others interested may learn from the lien statement what the lien claimant asserts he has furnished, thus permitting an investigation to be made to determine whether the materials actually went into the building; whether they were lienable items, and whether the amount charged is proper. Grace v. Nesbitt et al., 109 Mo. 9, 18 S.W. 1118; State ex rel. O’Malley v. Reynolds, 266 Mo. 595, 182 S.W. 743.”

The statement filed by Bernard must be judged by the above standard. Based on that standard it cannot be said the statement here informed anyone what Bernard asserted had been furnished. This being so, it would be impossible for anyone to examine Bernard’s statement and conduct any investigation to determine whether the materials went into the building, whether they were lienable items or whether the amount charged was proper. Bernard’s statement simply does not contain any information in any respect concerning the nature of the material that was sold and furnished. The bare number appearing under the “item” column would convey no meaningful information to anyone save Merrick, yet the statement is required to contain sufficient information to allow a third party to make an investigation. This the statement wholly, fails to do.

Bernard relies on statements found in many cases to the effect the mechanic’s lien law is to be liberally construed. This is undoubtedly true as is stated in Wadsworth, but that rule is also coupled with the fact stated in Wadsworth at 358 S.W.2d 291[1]:

“the fact remains that there must be substantial compliance with the requirements of the statute in order for one to avail himself of its benefits.”

It should be noted Bernard does not seek to bring this case within the lump sum contract rule announced in Wadsworth, and indeed his statement reveals he did not have a lump sum contract but rather furnished material on an open end basis and now seeks to recover the reasonable value thereof. In that situation it was held in Bremer v. Mohr, 478 S.W.2d 14, 17[3] (Mo.App.1972) that a lien statement which is not itemized does not substantially comply with § 429.080 and does not constitute a “just and true account.”

Bernard also argues that since the invoices were all brought into court at the time the case was tried and Boonslick in fact examined all of them, this supplied the deficiency in the statement. This was held not to validate an insufficient lien statement in H. B. Deal and Co. v. Hamilton-Brown Shoe Company, 349 Mo. 275, 160 S.W.2d 719, 721[3] (1942).

Further, it was held in Mississippi Woodworking Company v. Maher, 273 S.W.2d 753, 756[6, 7] (Mo.App.1954):

“The items must be contained in the lien statement filed with the circuit clerk.”

Thus the fact the invoices containing the specific information as to the materials furnished were made available at the trial does not supply the deficiency in the statement filed with the circuit clerk.

The requirement that the lien statement contain an itemization sufficient to satisfy the requirement stated in Wadsworth, has recently been restated by this court in Mal-oti Electric Co., Inc. v. Bryan Enterprises, Inc., Mo.App., 549 S.W.2d 558 handed down February 28, 1977.

Bernard has filed a motion to dismiss the appeal by Boonslick because of the failure of its brief to comply with the rules. The deficiencies in Boonslick’s brief are not of sufficient magnitude to merit dismissal of the appeal. The motion to dismiss is overruled.

Because of the deficiency in Bernard’s lien statement as filed with the circuit clerk, the judgment is reversed.

All concur.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    Brian WINTJEN, a minor, et al., Appellants, v. Rose KLOEPPEL, Respondent.
    No. 37198.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 1, 1977.
    Motion for Rehearing and for Transfer Denied April 15, 1977.
    Steven A. Cox, Fenton, for appellants.
    Carter, Brinker & Doyen, Bernard C. Brinker, Daniel E. Wilke, Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Brian Wintjen, a minor, sought damages for personal injuries resulting from being struck by an automobile operated by Rose Kloeppel, and Noel Wintjen, his father, sought damages for medical expenses incurred by him. At the close of plaintiffs’ case the trial court directed a verdict for defendant, and plaintiffs have appealed. We reverse and remand.

Plaintiffs pleaded both primary and humanitarian negligence on the part of defendant. If a submissible case was made as to any pleaded theory the directed verdict was improper.

As primary negligence plaintiffs pleaded, among other things, that defendant operated her automobile at a high, excessive and unreasonable speed under the circumstances, and also that she failed to sound a warning of the approach of her automobile, to slacken speed and to swerve.

Brian, then twelve years of age, was a student at the Twillman Grade School located on Bellefontaine Road. He had been released from school about 3:30 o’clock, and he and other school children were walking northward on the west shoulder of Belle-fontaine Road. There was no sidewalk, but there was a white line at or near the edge of the blacktop pavement to indicate a walking area for pedestrians. The shoulder area where the children were to walk varied in width and at places narrowed to about three feet in width. There was no occasion for Brian to cross Bellefontaine Road to reach his home, but he testified that while he did not remember running into the street, he “guessed” that he did so, and he “thought” he remembered seeing defendant’s automobile and that he tried to get out of the way.

Certain statements of the defendant made on deposition were admitted as statements against interest. She stated that the place of the accident was in an area primarily residential and that Bellefontaine Road was straight and flat with no obstructions in her view. When she first saw the group of children of which Brian was a member they were on the shoulder of the road “five or six houses down” to the south, and the speed of her automobile then was 30 to 35 miles an hour. When she first saw Brian “as an individual” she was traveling about 25 miles an hour, and at the time of impact she was traveling between 20 and 25 miles an hour. Her automobile was “centered” in the south bound lane, which was 10½ to 11 feet in width. When Brian was on the shoulder of the road, and about four seconds after the time she first saw him, he looked toward the defendant, she was able to see his face, and to use her language, that was “seconds, I don’t know,” or “two seconds? I don’t know,” before the impact. While Brian was on the shoulder she saw him “turn and pivot.” She told a police officer after the accident, that he “ran” into the road and she tried to stop but could not avoid hitting him. Brian was struck by the left front part of the automobile, “the left headlight.” Defendant also stated on deposition that she did not attempt to swerve and did not sound her horn. There was no evidence concerning the presence or absence of skid-marks.

In determining whether a submissi-ble case was made we review the evidence from the standpoint most favorable to the plaintiffs and give them the benefit of all reasonable inferences therefrom. Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918, 922 (Mo.1959).

“Every person operating a motor vehicle on the highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.” § 304.010 RSMo 1969. There are no exceptions to these statutory requirements, Ficken v. Hopkins, 389 S.W.2d 193 (Mo.1965), and a motorist is not absolved from a charge of negligence in connection with his speed at the time of an accident by showing only that he was not exceeding the limit posted in the area as the maximum permissible. Gerdel v. Broceard, 428 S.W.2d 492 (Mo.1968).

In the exercise of the highest degree of care a motorist is charged with the duty to recognize that a child engaged in play or other preoccupation on or near a roadway is almost entirely devoid of any appreciation of danger, Ozbun v. Vance, 323 S.W.2d 771 (Mo.1959), and thoughtless and impulsive acts of children are to be expected and guarded against. Schmidt v. Allen, 303 S.W.2d 652 (Mo.1957); Wood v. Claussen, 207 S.W.2d 802, 808 (Mo.App.1948); Graham v. Conner, 412 S.W.2d 193 (Mo.App.1967); Hults v. Miller, 299 S.W.2d 85 (Mo.App.1927); Price v. Burton, 155 Va. 229, 154 S.E. 499 (1930). See also the cases cited in §§ 37 and 108 of the Annotation entitled Duty of motor vehicle driver approaching place where children are playing or gathered relating to the duty of a motorist to anticipate childish conduct.

It is uniformly held that when a motorist knows of the presence of children in, near, or adjacent to the street or highway, he has the duty not to operate his vehicle at a high, dangerous, unreasonable or excessive speed. Haake v. Davis, 166 Mo.App. 249, 148 S.W. 450 (1912); Wood v. Claussen, supra; Collins v. Kamper, 272 S.W. 1053 (Mo.App.1925); Hults v. Miller, supra. See also the cases cited in §§ 13, 40 and 110 of the above cited Annotation. What would constitute an excessive or dan gerous speed would depend upon the circumstances, and if the speed is excessive or dangerous there is a duty to slow down, Ballman v. H. A. Lueking Teaming Co., 281 Mo. 342, 219 S.W. 603 (1920); Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174 (1924), to such extent that the operator has sufficient control of his automobile to avoid injury in the event an impulsive childish act occurs. Koelling v. Union Fuel & Ice Co., 267 S.W. 34 (Mo.App.1924). See also the cases cited in §§ 14, 48 and 115 of the above cited Annotation.

In this case the defendant was oper: ating her automobile on a street where children had just been released from school and where they were walking home on the shoulder of a blacktop road without curbs. Defendant saw a group of children ahead of her on the shoulder, and there was no sidewalk or curbing between the children and the traveled portion of the road; only a white line. Whether it was negligence on her part to proceed with her automobile at the speed she did under the circumstances was a question for the jury, and it was not an issue to be ruled as a matter of law by the court. Neither can we say as a matter of law that in view of Brian’s age and the other circumstances, he was guilty of contributory negligence.

By reason of the result we have reached as to a pleaded charge of primary negligence, we need not rule whether a submissi-ble case was made under the humanitarian doctrine. We only comment that the evidence is most unsatisfactory and much is left to inference, some being very questionable. For example, as to the failure to slacken speed, swerve, sound a warning, or stop after Brian entered a position of immediate danger, there is no direct evidence that defendant’s automobile was equipped with brakes, a horn, or a steering apparatus, and that they were in working order.

The judgment is reversed and the cause remanded.

SMITH, P. J., and NORWIN D. HOUSER, Special Judge, concur.


text:
    STATE of Missouri, Respondent, v. Darryl HENDERSON, Appellant.
    No. 37224.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 1, 1977.
    Motion for Rehearing or Transfer Denied April 15, 1977.

      Robert A. Hampe, St. Louis, for appellant.
    John Danforth, Atty. Gen., Preston Dean, Christopher R. Brewster, Asst. Attys. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Darryl Henderson, charged pursuant to the Second Offender Act, § 556.280 RSMo 1969, and also with having previously been convicted of the misdemeanor of illegally possessing marijuana, was charged by Information with, and found guilty by a jury of, a subsequent illegal possession of marijuana in an amount less than 35 grams.

Appellant does not challenge the sufficiency of the evidence to support a finding of guilt, but he has appealed from the ensuing judgment and contends that the Circuit Court of the City of St. Louis was without jurisdiction to try him because (a) that court does not have jurisdiction to try misdemeanor cases, (b) the possession of marijuana in an amount less than 35 grams is a misdemeanor unless it is a second or subsequent offense, and (c) the proof by the State of a prior conviction of appellant for possession of marijuana “failed to show that [he] had been represented by counsel at the time of his guilty plea, or that he had waived his right to counsel.” Appellant makes no claim that he was denied the right to counsel.

The first offense for the possession of marijuana in an amount less than 35 grams is a misdemeanor, § 195.200.1(l)(a), and the second or subsequent offense is a felony, § 195.200.1(l)(b), Laws of Missouri 1973. The State proved that on July 11, 1974, appellant entered a plea of guilty in the St. Louis Court of Criminal Corrections to a charge of illegal possession of marijuana in an amount of less than 35 grams. We accept for the purposes of this appeal that, although the Public Defender was appointed to represent him and entered his appearance, and subsequently filed and argued a motion, appellant did not have counsel with him in court at the time he entered the plea of guilty, and there is no record entry of a waiver of counsel or evidence from which it could be determined that he knowingly and understandingly waived counsel. The sentence imposed was a fine of $125.00 and confinement in the “City Workhouse” for 60 days.

No Supreme Court Rule or Statute of this State invalidates the judgment of conviction of appellant in the St. Louis Court of Criminal Corrections of the misdemeanor of possessing marijuana because he was not represented by counsel when he entered the plea of guilty. Therefore if that conviction cannot form the basis for a first offense for the possession of marijuana, it is because of some federally imposed limitation.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), ruled that the right to counsel guaranteed by the Sixth Amendment to the United States Constitution, is applicable to the states by virtue of the Fourteenth Amendment, and that it is not constitutionally permissible to try a person for a felony in a State court unless he has a lawyer or has validly waived one. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), ruled it to be impermissible to use a prior conviction which was “constitutionally infirm” under the standards of Gideon v. Wain wright to authorize increased punishment pursuant to a state recidivist statute. Neither of these cases pertained to the use in another case of a prior conviction of a misdemeanor, or to the necessity of counsel at trial when the offense for which an accused is on trial is a misdemeanor.

In Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972), it was ruled that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial,” but in the course of the opinion it was expressly stated that the court was not considering “the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, * The rule of the Argersinger case is not directed to the validity of the judgment of conviction of a misdemeanor; it proscribes certain punishment.

In this case appellant entered a plea of guilty in the Court of Criminal Corrections to a misdemeanor, and was sentenced to a fine of $125 and imprisonment for 60 days. From the record before us we do not know whether appellant was in fact imprisoned. If so, he could have obtained his release by habeas corpus; not on the basis that the conviction was invalid, but because punishment in the form of imprisonment was not permissible.

If an appeal had been taken the case would have been remanded for the imposition of a permissible sentence, or that part of the sentence imposing imprisonment would have been vacated. State v. Jones, 487 S.W.2d 586 (Mo.App.1972).

Neither Burgett v. Texas, supra, nor Ar-gersinger v. Hamlin, supra, precludes the proof in the present case of the prior conviction of appellant in the Court of Criminal Corrections of the misdemeanor to which he entered a plea of guilty. Therefore, the subsequent possession of marijuana, which forms the basis of the charge in this case, constituted a felony, and the trial court had jurisdiction to try the case.

The judgment is affirmed.

SMITH, P. J., and NORWIN D. HOUSER, Special Judge, concur.


author: McMILLIAN, Presiding Judge.

text:
    Emmett L. COLEMAN, Plaintiff-Appellant, v. Gene McNARY et al., Defendants-Respondents.
    Nos. 38020 and 38391.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 8, 1977.
    Rehearing Denied April 15, 1977.

      Whitfield, Montgomery & Walton, Harold L. Whitfield, St. Louis, for plaintiff-appellant.
    Donald J. Weyerich, Clayton, for defendants-respondents.
   McMILLIAN, Presiding Judge.

Plaintiff Emmett L. Coleman appeals from an order entered by the circuit court of St. Louis County, Missouri, dismissing his suit against defendants, St. Louis County, Gene McNary, county supervisors, Jessee Horstman, Joe Cole, and Dorothy Wallace, agents and employees of St. Louis County. Plaintiff alleged the defendants tortiously interfered with a contractual agreement entered into by him with approximately twenty-five home buyers (Count I), and slandered and disparaged him (Count II).

The trial court sustained the defendants’ motion to dismiss as to all defendants in Count I, and as to all defendants except Dorothy Wallace in Count II. On December 8, 1976, in response to a motion by defendants to dismiss plaintiff’s appeal, we denied the motion as to Count I, and granted it as to Count II. While all the issues and parties had been disposed of in Count I, there still remained the charge against defendant Wallace in Count II. § 512.020 RSMO 1969; Cooper v. Barr, 413 S.W.2d 219, 221 (Mo.1967).

On this appeal the sole issue is whether the trial court erred in dismissing Count I on the grounds of sovereign immunity. We hold that it did not and affirm the judgment.

The defendants argue that the trial court did not err in granting the motion to dismiss because they acted in their representative capacities as agents of the county and, as such, were protected against all claims by sovereign immunity.

The plaintiff argues that St. Louis County is not protected by sovereign immunity in the present case because it was engaged in a proprietary rather than a governmental function. The fallacy of plaintiff’s argument is that this distinction between a proprietary and governmental function determines whether a municipality, not a county is protected by sovereign immunity, with one exception, in all of the cases cited by the plaintiff to support his argument, the defendant was a city or town. In State v. Kopp, 330 S.W.2d 882 (Mo.1960), where the defendants included a city and the county zoning board, the court again reiterated that the distinction between proprietary and governmental functions for sovereign immunity purposes pertained to municipalities only. Id. at 889-90.

In addition, the Missouri courts have consistently distinguished between the two governmental entities and have been willing to abrogate the sovereign immunity doctrine only as to municipalities engaged in proprietary functions:

“. . . [I]t is important to bear in mind the distinction between municipal corporations (in the strict and proper sense), such as cities, towns and villages, and quasi corporations, such as counties and townships. Municipal corporations exercise both governmental and proprietary (sometimes called corporate) functions. Their liability or nonliability in tort depends on the character of the particular function involved as being governmental on the one hand, or proprietary on the other.” Cullor v. Jackson Township, Putnam County, 249 S.W.2d 393, 395 (Mo.1952).

In Wood v. County of Jackson, 463 S.W.2d 834 (Mo.1971), the court again pointed to the Missouri policy of treating counties and municipalities differently with regard to sovereign immunity and rejected an argument that such a policy was a denial of equal protection or due process.

In summary, it seems well established that while a municipality is protected only against claims which arise from the exercise of its governmental function, a county is protected against all claims by sovereign immunity. Because the defendants here are St. Louis County and its agents, they are protected by sovereign immunity.

The sovereign immunity of a county extends to its agents when they are acting in their representative capacities, Lloyd v. Garren, 366 S.W.2d 341 (Mo.1963). Here, the defendants Horstman, Cole, and Wallace were acting within their capacities as executives in the St. Louis Office of Community Development and the Meacham Park Project when the alleged torts occurred. Also, the defendants were sued in their representative capacities only, therefore, the sovereign immunity doctrine extends to them.

Although the doctrine of sovereign immunity has been heavily criticized by the Missouri Courts, it would not be appropriate for this court to modify the doctrine. The Missouri Supreme Court has stressed repeatedly that this is a task the legislature rather than the courts should perform, O’Dell v. Sch. Dist. of Independence, 521 S.W.2d 403, 407-8 (Mo. banc 1975); Smith v. Consolidated Sch. Dist. No. 2, 408 S.W.2d 50, 54 (Mo. banc 1966); Wood v. Jackson County, 463 S.W.2d 834, 836 (Mo.1971). Numerous issues must be resolved before the doctrine of sovereign immunity is modified. These include — whether certain limitations or exceptions will be recognized, whether special funds will be created or liability insurance obtained, whether provisions will be made to process and defend the large number of claims against the state.

Moreover, in states where the courts have attempted to alter the doctrine, the results have “. . . open[ed] up a Pandor[a]’s box of complex and possible chaotic problems . . ..” Payne v. County of Jackson, 484 S.W.2d 483, 486 (Mo.1972). In California, when the courts suddenly rejected the sovereign immunity doctrine, Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); Lipman v. Brisbane Elementary Sch. Dist., 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465 (1961), the number of tort claims against the state made it necessary for the legislature to immediately enact a moratorium until the subject could be considered at the next legislative session, Kennedy and Lynch, Some Problems of a Sovereign Without Immunity, 36 Southern Calif.L.R. 161, 172 (1963). In Indiana, following Perkins v. Indiana, 252 Ind. 549, 251 N.E.2d 30 (1969), in which the court authorized recovery against the state for negligent acts arising from a nongovernmental function, the attorney general’s office was overwhelmed. Within the two years following the decision approximately eighty-five cases were filed against the state. The state could not settle the claims, nor did it have enough attorneys to defend the claims. There were no procedural mechanisms to deal with the caseload and, perhaps more significantly, there were not sufficient funds appropriated for successful plaintiffs to obtain an execution of their judgment, Payne v. County of Jackson, supra, at 486-87. In Arkansas, the state Supreme Court abolished sovereign immunity as to torts caused by employees of municipalities while engaged in a governmental capacity. Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (Ark.1968). One year later the Arkansas legislature restored the immunity. This experience in other states indicates that any modification in the sovereign immunity doctrine is best treated by the state legislature.

In conclusion, we affirm the trial court’s granting of the defendants’ motion to dismiss as to Count I. The defendant St. Louis County enjoys full sovereign immunity whether its acts be labelled as governmental or proprietary. Defendants Gene McNary, Horstman, Cole and Wallace are agents of St. Louis County and, because they were sued in their representative capacities, the immunity extends to them also. Lastly, despite the fact that the sovereign immunity doctrine has been heavily criticized it would not be appropriate for this court to modify it in light of the many complex policy considerations which underlie the doctrine.

Accordingly, judgment is affirmed.

STEWART, J., concurs.

SMITH, J., concurs in result.


author: CLEMENS, Presiding Judge.

text:
    Jewell Daniel SIMMONS, Appellant, v. WILSON FREIGHT COMPANY, Respondent.
    No. 38258.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 8, 1977.
    Rehearing Denied April 15, 1977.
    Igoe & Igoe, John R. Igoe, St. Louis, for appellant.
    Julian C. Jaeckel, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff Jewell Daniel Simmons has appealed the denial of his workmen’s compensation claim following adverse rulings by the Labor and Industrial Relations Commission and the circuit court. The issue is causation (1971) of subsequent disability (1974).

March 15, 1971 plaintiff injured his knees in a fall from loading machinery. He received palliative treatment from Dr. J. A. Costrino. One year later plaintiff returned to Dr. Costrino who at that time recommended orthopedic consultation. Plaintiff’s counsel states in his brief, without transcript reference, that the employer refused to afford further treatment; the transcript does not support this assertion.

Plaintiff filed his compensation claim a year after his 1971 injury, but no action was taken on it until 1974. For three years after his injury plaintiff lost no time from work. In June of 1974 he underwent knee surgery three times and thereafter was substantially disabled. Medical testimony was pro and con as to a causal connection between plaintiff’s 1971 injury and his 1974 surgery.

Two instances in plaintiff’s medical history reflect on the validity of his contention of causation. Following surgery he made claim to his union’s insurance carrier wherein his surgeon answered “no” to the question: “Is injury or sickness due to patient’s employment or occupation?” Plaintiff later reported that his knee surgery did not result from “on-the-job injury” and was paid $1,028 in “sick leave” by his union.

Plaintiff’s credibility was further weakened by his 1974 hospital records. Therein it is stated that for two years he had been having pain in his knees; records show he had been injured more than three years before surgery.

On review of its referee’s ruling denying compensation, the Commission adopted the referee’s findings of fact and conclusions of law declaring: “Although the employee did sustain an accident on March 15, 1971, for which he was treated by Dr. Costrino, his claim for disability must be denied because he has failed to show that the condition from which he is presently suffering comes as a result of the accident of March 15, 1971. There are too many areas of testimony, particularly the testimony of the employee, wherein his credibility was put to the test and found wanting. . . . The record contains other contradictions which though not important each one in itself, when these are all taken together, lead me to my conclusions that although the employee has proved up an accident, and I do so find, he has failed to show causal connection between the disability from which he is presently suffering and said accident which occurred 3-15-71.”

The circuit court affirmed the Commission’s ruling upholding denial of plaintiff’s claim on the ground of lack of credibility. Judge Bloom cited Lawson v. Lawson, 415 S.W.2d 313[4] (Mo.App.1967), holding that the Commission “may decide a claim solely upon a finding of lack of credibility of uncontradicted and unimpeached testimony.” To the same effect, see Ricks v. H. K. Porter, Inc., 439 S.W.2d 164[4] (Mo.1969).

We rely further on the recent case of Ferguson v. Hood, 541 S.W.2d 19[2, 3] (Mo.App.1976). There, the factual issue was dependency — comparable in law to the factual issue of causation. Judge Stone wrote (omitting citations): “Dependency was a question of fact and compensation properly might have been denied, as indeed it was, for the failure of claimants, upon whom the burden of proof rested, to establish dependency. In considering and resolving the issue of dependency, it was for the Commission, as trier of the facts, to draw from the evidence such inferences as were reasonably permissible and, if conflicting inferences might have been drawn, the choice rested with the Commission as to which should be accepted. Likewise, matters of credibility and the weight to be given conflicting evidence were for the Commission.” So it is here; the plaintiff’s lack of credibility warranted the denial of his claim.

Judgment affirmed.

DOWD, and WEIER, JJ., concur.

      . The referee added his opinion that plaintiff had “tailored his testimony in an obvious attempt to find a compensable accident to which he might attach this disability.” For comparable grounds for denying compensation see Duncan v. A. P. Green Refractories Co., 522 S.W.2d 639[2] (Mo.App.1975).


author: ARTHUR LITZ, Special Judge.

text:
    Edmond CLARK, Plaintiff-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Defendants-Respondents.
    No. 37757.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 22, 1977.
    Paxton E. Ackerman, Clayton, for plaintiff-appellant.
    Rick V. Morris, Div. of Emp. Security, Charles B. Fain, Jefferson City, for Labor & Industrial Relations Commission.
   ARTHUR LITZ, Special Judge.

Plaintiff-appellant appeals from a judgment of the circuit court affirming an order of the Labor and Industrial Relations Commission which denied his application for review of the decision of an appeals referee of the Division of Employment Security rejecting his appeal for benefits. The sole issue of the appeal is whether termination of appellant’s employment was voluntary without good cause attributable to his work, thus disqualifying him from unemployment benefits.

If the findings of the Commission were supported by competent, substantial evidence and not contrary to the overwhelming weight of the evidence, they must be affirmed. LaPlante v. Industrial Commission, 367 S.W.2d 24 (Mo.App.1963); § 288.210, RSMo 1969. Viewed in the light most favorable to the finding of the Commission, the evidence reveals that appellant was an electrician employed by John L. Gammage, an electrical contractor. Previous to 1975 Gammage withheld various required taxes from appellant’s wages. Prior to being given his first paycheck in January, 1975, the employer told appellant that he, the appellant, would have to henceforth pay his own taxes, whereupon appellant voluntarily quit his employment, claiming he did so for good cause, i. e. although his net pay would be the same, he would need to get his “own bookkeeper” and that would be “an extra expense on me.”

Section 288.050 RSMo 1969 provides:

“1. Notwithstanding the other provisions of this law a claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if the deputy finds
(1) That he has left his work voluntarily without good cause attributable to his work or to his employer . . . ”

There is no dispute that Mr. Clark quit his job. The mere fact that he did leave his employment does not automatically mean that the leaving was voluntary. Kilgore v. Industrial Commission, 337 S.W.2d 91 (Mo.App.1960); Bussmann Mfg. Co. v. Industrial Commission, Division of Employment Security, 335 S.W.2d 456 (Mo.App.1960); LaPlante v. Industrial Commission, 367 S.W.2d 24 (Mo.App.1963). A claimant has the burden of proof to establish his right to benefits. LaPlante v. Industrial Commission, supra.

In reviewing the testimony appellant’s sole reason for quitting was the anticipated burden of attending to his own tax liability. The Commission ruled that this was not sufficient and that he voluntarily left work without good cause attributable to his work or his employer. This ruling was supported by competent and substantial evidence and we hold that it was not contrary to the overwhelming weight of the evidence. Meyer v. Industrial Commission, 240 Mo.App. 1022, 223 S.W.2d 835 (1949); Union-May-Stern Co. v. Industrial Commission, 273 S.W.2d 766 (Mo.App.1954); LaPlante v. Industrial Commission, supra.

The judgment of the circuit court is therefore affirmed.

KELLY, P. J., and GUNN, J., concur.


author: GUNN, Judge.

text:
    CARL O. HOFFMANN CONSTRUCTION CO., INC., Plaintiff-Appellant, v. SCHOOL DISTRICT OF the CITY OF ST. CHARLES et al., Defendants-Respondents.
    No. 37500.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 22, 1977.

      V. Jack Muehlenkamp, Dellwood, for plaintiff-appellant.
    Niedner, Moerschel, Ahlheim & Bodeun, Paul F. Niedner, St. Charles; Claiborne P. Handleman, St. Louis, for defendants-respondents.
   GUNN, Judge.

Plaintiff-appellant (Contractor) brought suit on a school addition construction contract for money allegedly due by reason of change orders issued by defendants, St. Charles School District (School District) and the project architect, Lorenz, Sorkin & Matthews (Architect). The trial court dismissed the Contractor’s second amended petition for failure to state a cause of action. The Contractor has appealed; we affirm.

The facts are deduced from the Contractor’s second amended petition. According to the petition, in September, 1971 the Contractor and the School District entered into a written contract for the construction of an addition to the Jefferson Junior High School in St. Charles. The contract price was set at $884,955. On January 10, 1972, pursuant to instructions from the Architect, additional work on the project was commenced by the Contractor. After the additional work was completed, on January 31, 1972 a change order was executed by the School District authorizing the alternate work at an additional cost of $298,436.00. Again, on March 10, 1972 pursuant to informal authorization from the Architect and School District alternate work on the project having a cost of $1,629.84 was commenced and completed before a written change order authorization from the School District was received by the Contractor on April 5, 1972. The original contract price and costs for the two written change orders for alternate work totaled $1,185,020.84. The School District has either paid or tendered for payment the sum of $1,185,020.84.

The Contractor’s petition further alleges that subsequent to the two instances involving written change orders, the Architect by letter ordered extra earth excavation work for an additional amount of $70,368.45. The Contractor does not allege in his petition that the work was authorized by the School District. The Contractor also alleges that the Architect ordered (apparently by oral instruction) the Contractor to regrade certain areas at the construction site on a time and material basis for a cost totaling $4,913.11. Again, there is no suggestion in the petition (or elsewhere) that the regrading work was authorized by the School District.

Finally, the Contractor in its petition alleges that, relying upon the construction contract and the authority of the Architect, it performed the excavation work and regrading work in accordance with directions from the Architect; that if the Architect exceeded its authority or acted outside its jurisdiction in directing the extra work to be done the Architect should be liable for the cost totaling $75,281.56.

The Contractor prayed for damages for $75,281.56 against the School District and Architect for the extra excavation work and regrading and for an additional $49,-080.20 balance due on the basic construction contract including costs for the written change orders. The School District has in fact tendered the $49,080.20 to the Contractor and has not refused to pay that amount. Thus, there is no controversy over the initial $884,953.00 contract price or the written change order work of $298,436.00 and $1,629.84, which totals $1,185,020.84. The School District has either paid or offered to pay the foregoing amounts. The only controversy centers on the $75,281.56 claimed for the extra excavation and regrading work allegedly ordered by the Architect without written authorization from the School District.

The trial court sustained the School District’s and Architect’s motions to dismiss the Contractor’s petition for failure to state a cause of action. On this appeal from the dismissal of the Contractor’s petition we are required to consider the sufficiency of the petition giving the averments a liberal construction. Dix v. Motor Market, Inc., 540 S.W.2d 927 (Mo.App.1976). Even with such monition to guide us, we conclude that the trial court did not err in dismissing the Contractor’s petition.

The Contractor’s first point on appeal concerns Count I of its petition relating to the balance due of $49,080.20 on the basic construction contract plus the additional work performed pursuant to written change orders approved by the School District. The Contractor in its Points Relied On asserts that:

“Count I Sets Out a Cause of Action for the Balance Due on the Contract Price Originally Agreed to by the Parties Without Regard to the Additional Work Done by Stating That Such a Tender, When an Amount Greatly in Excess Is Claimed to Be Due, Would Constitute a Waiver by Appellant [Contractor] of Any Additional Amount Under the Said Contract.”

We first observe that this point is a mere abstract statement destitute of meaning and fails to present any justiciable issue. This point fails to comport with Rule 84.04 and is dismissed. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627 (Mo.App.1976). We also note that the School District has at all times tendered and has remained ready to make payment of the $49,080.20, so our ruling is not prejudicial to the Contractor.

The next points raised by the Contractor deal with the Architect’s actions and specifically relate to the $75,281.56 allegedly due for the extra excavation and regrading work ordered by the Architect. Counts II and III of the Contractor’s petition state that1 the Architect orally instructed the Contractor to do the extra excavation and regrading work, but the prayer for damages on these two counts is solely against the School District. There is no allegation in Counts II or III that such extra work was ever authorized by the School District, either verbally or by written change order as required by the construction contract. Counts II and III recite that the Architect met with the Contractor and orally authorized the extra work to be done. The two Counts are barren of any reference to the School District regarding the extra work except for the prayer for judgment.

The Contractor seems to infer subtly that the two prior change order authorizations established some pattern of written approval for change orders after the work had been completed; that the Architect’s oral instruction somehow bound the School District. If such were the case, it was not alleged in the petition. Nowhere in the petition is reliance on prior conduct alleged nor is there any allegation that the course of conduct constituted a waiver of the contract provisions requiring written authorization for change orders. In the first two change orders, there was allegation and documentary proof that the School District knew of and informally authorized the first two items of additional work before the work was done. But Counts II and III neither allege nor suggest that proof would be offered to establish that the School District authorized or had any knowledge of the changes upon which recovery is sought. The allegations of Counts II and III utterly fail to state any cause of action against the School District. As the allegations of Counts II and III are insufficient to support a theory of recovery outside the terms of the construction contract, the Contractor must rely on the terms of the contract, which clearly provide that change order modifications are to be in writing. The contract is clear and unambiguous and the parties are bound by the terms thereof. South Side Plumbing Co. v. Tigges, 525 S.W.2d 583 (Mo.App.1975).

Count IV of the Contractor’s petition is aimed at the Architect alone; but this Count, too, is misdirected. Count IV alleges that the Contractor relied on the Architect’s authority regarding the change orders and that if the Architect acted outside its authority it should be liable. The written construction contract specifically negates any such authority. Without a specific written instrument from the School District, the authority of the Architect to issue change orders was interdicted by the contract documents. And the Contractor’s petition makes no allegation that there was any such written instruction from the School District modifying the Architect’s authority. The Contractor was bound to know of the Architect’s absence of authority to issue change orders without written authorization from the School District. Dickinson v. Bankers Life & Casualty Co., 283 S.W.2d 658 (Mo.App.1955). The written contractual provisions firmly ligate the Contractor to the construction contract. The contract must be enforced according to its terms. Willman v. Beheler, 499 S.W.2d 770 (Mo.1973); South Side Plumbing Co. v. Tigges, supra.

The Contractor’s second amended petition fails to negate the specific contract terms and does not state a cause of action. The dismissal of the Contractor’s second amended petition is affirmed.

KELLY, P. J., and JOHN L. ANDERSON, Special Judge, concur.

      . Section 432.070 RSMo.1969 requires coi writing. ;racts entered into by school districts to be in

      . The Contractor’s petition recites:
      “ . . . That if in fact defendants Lorenz, Sorkin and Matthews [Architect] acted outside their jurisdiction and authority in directing plaintiff [Contractor] to proceed with the work set out in Count II [the excavation work] and Count III [the regrading work], plaintiff by relying thereon has been damaged in the sum of $70,368.45 for the work as set out in Count II and for the sum of $4,913.11 as set out in Count III.”

      . The construction contract as a part of the petition specifically provides that any change order must be a written order signed by the School District and the Architect. Paragraph 12.1.2 of the construction contract provides:
      “A Change Order is a written order to the Contractor signed by the Owner and the Architect, issued after the execution of the Contract, authorizing a Change in the Work or an adjustment, in the Contract Sum or the Contract Time. Alternatively, the Change Order may be signed by the Architect alone provided he had written authority from the Owner for such procedure and that a copy of such written authority is furnished to the Contractor upon request. A Change Order may also be signed by the Contractor if he agrees to the adjustment in the Contract Sum or the Contract Time. The Contract Sum and the Contract Time may be changed only by Change Order.”

      . In a letter, attached to the petition, from the Architect to the Contractor there is a vague reference to certain excavation work, and an indication that a carbon copy of the letter was sent to a Dr. Colaw — whoever he might be.

      . Paragraph 2.2.2 of the construction contract provides:
      “ . . . The Architect will have authority to act on behalf of the Owner [School District] to the extent provided in the Contract Document, unless otherwise modified by written instrument which will be shown to the Contractor. . . ”
      Paragraph 2.2.17 of the construction contract reads:
      “The duties, responsibilities and limitations of authority of the Architect as the Owner’s representative during construction as set forth in Articles 1 and 14 inclusive of these General Conditions will not be modified or extended without written consent of the Owner, the Contractor and the Architect.”


text:
    STATE of Missouri, Plaintiff-Respondent, v. Enoch BUTLER, Defendant-Appellant.
    No. 37665.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 22, 1977.

      Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis finding him guilty of first degree robbery by means of a dangerous and deadly weapon, and a sentence of ten (10) years in the Missouri Department of Corrections pursuant to the Second Offender Act, § 556.280, RSMo 1969. For reversal, the defendant urges that the trial court erred: (1) in denying his motion for mistrial based upon allegedly improper voir dire; (2) in overruling defendant’s objections to questions by the Assistant Circuit Attorney to a defense witness which assumed a fact not in evidence; and (3) in overruling the defendant’s objection to statements made by the Assistant Circuit Attorney during his closing argument as to the credibility of Mrs. Hudson, defendant’s grandmother. We find no merit in these allegations of error and accordingly, affirm.

Because the defendant does not question the sufficiency of the evidence, we shall give only a brief review of the facts. On April 21, 1975, at 10:00 a. m., an individual identified as the defendant and another man robbed a Jack-in-the-Box restaurant, on Kingshighway Boulevard. Both men came up to the counter and pulled their guns, the other individual announced, “This is a holdup.” The individual identified as the defendant jumped over the counter, replaced the gun in his breeches, took approximately twenty (20) dollars from the cash register, and ran out the Kingshighway door. Meanwhile the other individual had gone upstairs and returned a minute or two later with the manager, at gunpoint. He immediately left out the back door with $1500 in cash, taken from the upstairs safe. A few days later, Mrs. Jeanetta English, the Jack-in-the-Box employee who was working at the counter at the time of the robbery, identified the defendant as the man who stole the twenty (20) dollars from the cash register.

Appellant’s defense was based upon the testimony of his grandmother with whom he lived. She stated that Dwayne Ransom, a friend of the defendant’s came to see Butler about 9:00 a. m. on April 21. The two men had a short conversation, after which Mr. Ransom left and the defendant returned to bed until 11:30 a. m. when Mr. Ransom returned to see Butler.

Based on the above evidence the jury found the defendant guilty of first degree robbery.

Appellant’s first claim of error is that the trial court failed to grant his motion for a mistrial for improper voir dire. The following exchange took place between the prosecuting attorney, Mr. O’Toole and Mr. Charles Westbrook, a venireman during voir dire:

“MR. O'TOOLE: Do you have a son named Charlie?
“MR. WESTBROOK: Right.
“MR. O’TOOLE: Did you used to live over on Swan, near Manchester?
“MR. WESTBROOK: No, I lived at Norfolk and Newstead.
“MR. O’TOOLE: Yeah, I used to know your son because I used to work at the YMCA. He’s a good kid.”

Defendant relying on State v. Holliman, 529 S.W.2d 932 (Mo.App.1975), argues that these comments indicating that the prospective juror was acquainted with the prosecuting attorney were prejudicial. As such, they deny the defendant his right to a full panel of qualified jurors before he makes peremptory challenges. Nothing in the transcript shows that defendant in fact used one of his peremptory challenges to remove Mr. Westbrook. The only thing we have is defendant’s bald assertion contained in his brief that he used a peremptory challenge to remove the venireman. We do not, however, decide the issue on this basis.

The trial court did not err in finding that this questioning was not prejudicial as to this juror or to the jury as a whole, or in denying the motion for mistrial. In the Holliman case, supra, relied on by the defendant it was the cumulative effect of the venireman’s relationship with the victim which rendered it error not to sustain the challenge for cause. In that case the challenged juror knew the slain policeman, was a friend of the policeman’s father, had a son who not only was a policeman subjected to the same danger but was also assigned to the same district where the killing had occurred. State v. Holliman, supra. The tenuous acquaintance established between Mr. O’Toole and Mr. Westbrook cannot compare to the close relationship in Holliman. Moreover, the courts have been willing to find a juror competent in spite of a close relationship between that juror and counsel. State v. Doepke, 536 S.W.2d 950 (Mo.App. 1976) (The trial court did not abuse its discretion in denying a motion to quash the jury panel even though the prosecuting attorney was known to all jury members.) (State v. Grant, 394 S.W.2d 285, 289 (Mo.1965) (The trial court did not err in failing to sustain the challenge of a prospective juror who had known the prosecutor all his life and was represented by the prosecutor “in any legal matters [he] might have.”) State v. Jones, 64 Mo. 391 (1877) (That the juror was the father-in-law of the prosecuting attorney did not render him incompetent.)

Even if the above remarks were prejudicial as to Mr. Westbrook a mistrial and discharge of the entire jury panel is an inappropriate remedy. A mistrial is reserved for more serious errors. Whereas the defendant could have used the less drastic challenge for cause the record does not disclose that he even made such a challenge so as to allow the trial court to rule on it. In addition, the disqualification of an individual juror for bias is not sufficient grounds for a challenge of the entire panel. State v. Weidlich, 269 S.W.2d 69, 71 (Mo.1954).

Lastly, even if the remarks were prejudicial, any objection to them was waived by the defendant when he expressly accepted the panel as satisfactory. State v. Turnbough, 498 S.W.2d 567, 570 (Mo.1973).

In light of the standard of review in Holliman, supra (the decision of the trial judge to include a juror is reversible “only for an abuse of discretion and ‘all doubts should be resolved in favor of the finding of the trial court.’ ”) and the minimal acquaintance established between the venireman and Mr. O’Toole, the trial court should be affirmed.

The second error claimed by the defendant is that the questions asked by the prosecuting attorney when cross-examining the defense witness, Mrs. Hudson, assume facts not in evidence and were argumentative. In substance the prosecutor asked Mrs. Hudson if she was aware that her grandson bought a car the day after the robbery, if she had seen him driving a car, and if she saw a car parked outside her house. To all questions she responded negatively.

The state does not discuss whether these questions were, in fact, improper but claims that even if they were, any prejudicial effect they may have had was cured by the answers given. Recently the Supreme Court reaffirmed this principle. State v. Hemphill, 460 S.W.2d 648 (Mo.1970) (Question which sought evidence of unrelated crime held improper but because the answer was negative, the testimony did not show facts counsel claimed were inadmissible and, therefore, there was no error.) State v. Kinnamon, 314 Mo. 662, 285 S.W. 62, 64 (1926) (Questions with regard to declarations made and acts done after the purpose of the alleged conspiracy were held improper, but because the negative answers tended to exonerate the defendant, there was no error.) State v. Davis, 284 Mo. 695, 225 S.W. 707 (1920) (Question which asked for a conclusion by the witness was improper but the defendant was not harmed because the answer given by the witness was a specific fact.)

To support his case the defendant relies on State v. Woods, 508 S.W.2d 297 (Mo.App.1974) for the principle that “ ‘Impeachment must be bottomed on something more substantial than the insinuations of the cross-examiner.’ ” From this, the defendant argues that because no evidence was introduced to support these questions, they too were based merely on insinuations by the prosecutor. Besides the fact that this argument goes to the propriety or impropriety of the questions, which is not debated, this principle has limited precedential value for the case at hand. In State v. Woods, supra, this court affirmed the trial court’s refusal to admit evidence on the grounds that the only indication that the event with which the evidence was concerned had any relation to the robbery in question was the insinuations by the defense. That case cannot be controlling here because in Woods the question was admissibility of impeaching evidence, while here it is the propriety of cross-examination.

Lastly, the instructions given to the jury by the court not to assume as true any fact solely because it was included in a question asked, served to remove any possible prejudice caused by the prosecutor’s questions. Cf. State v. Ware, 449 S.W.2d 624, 626 (Mo.1970); State v. McFadden, 530 S.W.2d 440, 443 (Mo.App.1975) (In both of these cases where the court held that the instructions removed possible prejudice of improper questions, the questions were also stricken from the record.)

In summary, because any possible prejudice resulting from the allegedly improper questions was removed by the answers given and the instructions to the jury, they are not cause for reversal.

The defendant’s last allegation of error is that the prosecutor’s closing remarks as to the common experience of parents and grandparents testifying for their children was prejudicial. In closing, Mr. O’Toole stated:

“ . . . As I pointed out before, she’s down here trying to help her grandson who’s in trouble. If these walls to these courtrooms had voices, they’d tell you numerous stories of parents—
[Objection made and overruled]
—endless stories of people who come down to try to help their sons and daughters in trouble.
[Objection made and overruled]
That is what I’m pointing out, ladies and gentlemen. That is our common experience. Relatives want to help their sons out, and Mrs. Hudson is the type of grandmother, the type of woman who wants to help her grandson out. . . ”

This argument was not improper as indicated by this court’s holding in State v. Gay, 523 S.W.2d 138, 143 (Mo.App.1975) where a prosecutor’s similar challenge to the credibility of the defendant’s mother was upheld. There the prosecutor stated that it was a difficult choice to balance helping one’s son and lying under oath and he thought Mrs. Gay had been less than candid.

Defendant alleges that this type of argument is not supported by the evidence. However, such an assertion ignores the development of this principle in Missouri cases. Concededly a prosecutor can comment on the credibility of witnesses only as long as his comments are supported by the evidence. State v. Griggs, 445 S.W.2d 633 (Mo.1969). Applying this principle, this court in State v. Franklin, 526 S.W.2d 86, 90 (Mo.App.1975), held that evidence that the principal defense witness “liked” the defendant supported the prosecutor’s attacks on her credibility. In State v. Gay, supra, and the present case this principle is similarly applicable because even though evidence has not been directly introduced to show that Mrs. Hudson or Mrs. Gay “liked” their offspring or were partial to them, it is a valid assumption. Thus attacks upon the credibility of the defendant’s mother or grandmother are as much supported by the evidence as were the attacks on the defendant’s girlfriend in Franklin, supra. Therefore, this argument was proper and is not grounds for reversal.

Accordingly, judgment is affirmed.

SMITH and STEWART, JJ., concur.


text:
    Robert Lee ENDRES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36977.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 22, 1977.
    Robert C. Babione, Public Defender, Mary Louise Moran, James W. Whitney, Jr., Asst. Public Defenders, St. Louis, for mov-ant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant Robert Lee Endres appeals the denial of his Rule 27.26 motion contending he had been denied a speedy trial. That same issue was raised and denied on direct appeal. See State v. Endres, 482 S.W.2d 480 (Mo.1972) for pertinent facts concerning trial delay and the speedy trial issue defendant persistently raised from the time of his pretrial motions until submission to the supreme court.

The speedy trial issue now raised is the same issue raised on the earlier appeal.

Rule 27.26(b)(3) provides “a proceeding under this Rule ordinarily cannot be used . as a substitute for a second appeal.” In Sweazea v. State, 515 S.W.2d 499[1] (Mo.1974) the court said: “We have consistently ruled that provision to mean that where an issue is raised and decided on direct appeal defendant cannot obtain another review thereof in a 27.26 proceeding.” The court adopted the rationale of Gailes v. State, 454 S.W.2d 561[2] (Mo.1970): “If issues, apparently finally decided, may be reopened and reviewed simply because a litigant has an additional citation to offer or a different theory to suggest there would never be an end to litigation. The constitutional rights of defendant were fully protected when the issue presented was reviewed by this court on the original appeal.”

It follows that Movant’s Rule 27.26 motion is but an attempted second appeal and relief is precluded by Rule 27.26(b)(3).

In his brief movant stresses the speedy trial case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). If his right to a speedy trial is based on a constitutional pronouncement made after his prior appeal it would not now be barred by that appeal. The Barker court adopted a balancing approach on a case-by-case basis to determine if an accused had been denied a speedy trial, and it ruled the factors to be considered are length of the delay, reason for the delay, whether the accused asserted the right to a speedy trial and whether he was prejudiced. The analysis in Endres is fundamentally the same as that in Barker. Movant’s motion is not based on a new constitutional pronouncement so it is barred by his prior appeal on the speedy trial issue.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


text:
    Sharon KUHLMANN, by and through her next friend Walter J. Kulmann, Appellant, v. Charles Fred ROWALD, Respondent.
    No. 36927.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 22, 1977.
    Sommers & Holloran, Inc., James P. Hol-loran, St. Louis, for appellant.

      Fitzsimmons & Fitzsimmons, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff-pedestrian, a 12-year-old girl, was struck by defendant’s car near the edge of Lemay Ferry Road in St. Louis County. She submitted her case on defendant’s failure to keep a lookout; he countered by submitting that she was contributorily negligent by having moved onto the roadway. Verdict was for defendant and plaintiff has appealed.

Defendant’s contributory negligence instruction directed a verdict for him if plaintiff negligently moved into the path of defendant’s automobile, etc. Plaintiff’s sole contention on appeal is error in giving that instruction because it lacked evidentiary support.

We have searched the transcript for evidence of plaintiff’s movement into defendant’s path. Defendant testified he last saw plaintiff 150 feet ahead of him as she and two companions were walking along the shoulder of the road “shoving each other back and forth.” Defendant’s witness Cayce was driving north as plaintiff walked and defendant drove south. Mr. Cayce saw plaintiff and her two companions walking abreast along the shoulder, with plaintiff about two feet off the pavement. Mr. Cayce said the other two children were jostling and bumping each other; the child on the inside hit plaintiff, knocking her into the roadway. She fell momentarily and as she was regaining a standing position defendant’s car struck her.

We have also searched plaintiff’s evidence to find if it lends evidentiary support to defendant’s submission that plaintiff negligently “moved” into his path. Plaintiff did not recall being pushed into the roadway. She testified that as she walked along the road shoulder it was slick, she slipped in mud which she felt but had not seen and fell into the roadway; as she straightened up defendant’s car struck her.

In sum, defendant’s evidence was that plaintiff was pushed into his path; plaintiff’s evidence was that she stepped in mud, slipped and fell into the roadway. Plaintiff’s conduct in getting into defendant’s path was contributorily negligent only if she did so voluntarily, and conversely, she was not contributorily negligent if her being in the roadway was involuntary.

A comparable issue of liability for negligence depending on the voluntariness of the allegedly negligent act was ruled in Stokes v. Carlson, 362 Mo. 93, 240 S.W.2d 132 (1951). There, plaintiff-driver was injured when defendant, a rear-seat passenger who had been sleeping, suddenly pushed the driver’s seat forward, causing her to lose control and run off the road. Admittedly, defendant was then asleep or not fully awake; “his actions were purely involuntary and without any volition whatever.” In denying liability the court adopted the statement of 65 C.J.S., Negligence, § 3b: “. . .to create liability for an act alleged to be negligent, it must be shown to have been the act of a person’s volition. . ” And, quoting Restatement, Torts, Vol. 1, § 2: “There cannot be an act without volition.” In denying liability in Carlson the court reasoned that involuntary movements are not negligent because of “lack of opportunity to make a choice or to determine a course of action.”

Here, plaintiff’s “movement” into the path of defendant’s oncoming car was not an act of her own volition. To the contrary, she came into the position of danger either by the involuntary act of slipping and falling, or by being pushed there by one of her companions. Neither was a voluntary act and so it follows there was no evidentiary support for defendant’s contributory negligence instruction.

Judgment reversed and cause remanded for a new trial.

DOWD and WEIER, JJ., concur.

      . Carlson was cited and applied in Ballew v. Aiello, 422 S.W.2d 396 [1-3] (Mo.App.1967), in denying liability where defendant-passenger grabbed the steering wheel “while being roused from sleep.”


author: DOWD, Judge.

text:
    Keith BENNETT, Movant-Appellant, v. STATE of Missouri, Respondents.
    No. 38012.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 22, 1977.
    Joseph F. Beatty, St. Louis, for movant-appellant.
    John Ashcroft, Atty. Gen., Wm. F. Arnet, Preston Dean, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondents.
   DOWD, Judge.

Appellant-movant is serving concurrent life sentences pursuant to his pleas of guilty to charges of robbery by means of a dangerous and deadly weapon, § 560.120 RSMo 1969, and first degree murder, § 559.010 RSMo 1969. Coterminously, he is serving three years imposed upon a guilty plea to a charge of carrying a concealed weapon, § 564.610 RSMo 1969. The crimes to which movant had pleaded guilty involved the murder of Don Harris which occurred at Yashon High School and a robbery of Harris’ black leather jacket. Movant appeals from the trial court’s denial of appellant’s Rule 27.26 motion to vacate these sentences following an evidentiary hearing.

In his first point on appeal, movant argues that the trial court erred in denying movant’s 27.26 motion to vacate because the judgments were entered on involuntary guilty pleas induced by the allegedly threatening statements of movant’s attorney. We must determine whether, in fact, these pleas were involuntary and whether, in fact, movant’s attorney coerced the plea.

We review the trial court’s judgment to determine whether the finding, conclusion and judgment of the trial court are “clearly erroneous.” Rule 27.26(j); Brown v. State, 495 S.W.2d 690, 694[2] (Mo.App.1973). A finding is “clearly erroneous” if, after reviewing all the evidence, the court is left with the definite and firm conviction that a mistake has been committed. Crosswhite v. State, 426 S.W.2d 67, 70-71 (Mo.1968). We are required to give due regard to the trial judge’s opportunity to hear the witnesses and to defer to his determination of credibility unless it clearly and convincingly appears that he has abused his discretion. Walster v. State, 438 S.W.2d 1, 2-3[1] (Mo.1969).

In support of his Rule 27.26 motion, mov-ant testified that trial counsel told movant that if he did not plead guilty he would never see the streets again and would be the permanent head man at the license plate factory at the Missouri State Penitentiary. Movant claimed further that trial counsel told movant that if he refused to proceed with the plea after he entered the courtroom, the judge would be upset and would take action against movant. Movant contends that such statements made mov-ant’s plea involuntary, relying upon State v. Rose, 440 S.W.2d 441 (Mo.1969) and Brown v. State, supra, 495 S.W.2d at 695.

The trial court found that movant’s claims of coercion were refuted by the evidence. At the Rule 27.26 hearing, trial counsel denied making the coercive statements claimed by movant. An examination of the transcript of the pleas of guilty reveal that Trial Judge Harold L. Satz fully complied with Rule 25.04 which provides that the trial judge shall not accept a plea of guilty without first determining that the plea is made voluntarily with understanding of the nature of the charge. Judge Satz was very thorough and detailed in his questioning of the movant at the time of the plea. The movant was fully advised of his rights and the range of punishment. As a result of the judge’s questioning the movant denied that anyone had “threatened, intimidated, mistreated, or in any way forced [him] to plead guilty against his will”. Thus, movant’s testimony at the time he entered his guilty pleas refuted his allegations that he was coerced.

The trial court is not required to believe movant’s testimony at the 27.26 hearing. Cooper v. State, 520 S.W.2d 666 (Mo.App.1975); State v. Hurtt, 509 S.W.2d 14 (Mo.1974); Trice v. State, 540 S.W.2d 613, 615[3] (Mo.App.1976). In the case at bar, the trial court specifically found that movant’s testimony at the 27.26 hearing was not credible, based upon movant’s demeanor “on the witness stand and his method and manner of answering questions both on direct and cross-examination.” We do not believe that this finding or the denial of movant’s 27.26 motion was clearly erroneous.

In his second point on appeal, movant contends that the trial court erred in denying his Rule 27.26 motion because he was denied effective assistance of counsel. Appellant alleges that counsel failed to investigate adequately and failed to raise an alibi defense. In particular, appellant cites counsel’s failure to locate and interview two potential alibi witnesses.

If a plea of guilty is entered, the determination of the adequacy of counsel is immaterial except to the extent it bears on the voluntariness and understanding of the plea. Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971); Guilbeaux v. State, 544 S.W.2d 855, 856[2] (Mo.App.1976).

The appellant is “bound by his plea and conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.” Floyd v. State, 518 S.W.2d 700, 704 (Mo.App.1975).

In order to be entitled to relief due to ineffective assistance of counsel, movant must prove that (1) the performance of counsel did not reach the level of normal and reasonable competence and (2) the inadequate representation prejudiced movant by causing him to enter each of his pleas involuntarily. Guilbeaux v. State, supra, 544 S.W.2d at 856[3]. Movant failed to meet this burden in the case at bar. The record clearly indicates that appellant’s counsel attempted to locate the two possible witnesses suggested by the appellant. In fact, the attorney told the appellant’s mother of his inability to locate these possible witnesses and of the importance and urgency of locating them. Furthermore, the attorney later told the appellant of the lack of response from the mother or the possible witnesses.

In order to sustain an allegation of inadequacy of investigation by counsel it is necessary to show that an adequate investigation would have disclosed something beneficial to the defense. Curry v. State, 504 S.W.2d 97, 99[1] (Mo.1974). The record fails to show that if appellant’s counsel had interviewed the purported witnesses the alibi defense would have been supported. In fact, movant told trial counsel that he had committed the crimes charged after counsel told appellant that he had not located the potential witnesses for the defense. Thus, appellant’s trial counsel would have suborned perjury had he further searched for the potential witnesses and called them to court. There is no duty of counsel to call witnesses in this situation. Rather, the attorney is under an absolute obligation not to present perjured testimony in support of his client. Allen v. State, 518 S.W.2d 170, 172[1] (Mo.App.1974); McNamara v. State, 502 S.W.2d 306, 308 (Mo.1973).

Our examination of the record revealed that movant’s attorney had performed extensive pre-trial preparation. Movant’s attorney had at least six conferences with movant, had obtained the police report, reports from the high school investigation, report on the lineup identification in which six witnesses identified the movant, the grand jury notes, and a ballistic report'. We are convinced that the movant was afforded competent counsel who was well prepared. The record clearly shows that movant’s pleas were voluntarily and understandingly made. The findings of the trial court are not clearly erroneous.

The judgment is affirmed.

CLEMENS, P. J., and WEIER, J., concur.


text:
    SUBSCRIBERS AT the AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE and Club Exchange Corporation, Attorney-in-Fact for the Automobile Club Inter-Insurance Exchange, Plaintiffs-Appellants, v. Michael W. KENNISON et al., Defendants-Respondents.
    No. 37695.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 22, 1977.

      Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, F. Douglas O’Leary, St. Louis, for plaintiffs-appellants.
    Robert Brown, James F. Koester, St. Louis, for defendants-respondents.
   DOWD, Judge.

This is an action for declaratory judgment. Plaintiff, Auto Club Inter-Insurance Exchange (Auto Club) sought to have the trial court declare that an automobile insurance policy issued by plaintiff to Bobby Joe Brown did not afford coverage regarding an automobile collision involving Brown because the collision was caused by the intentional acts of Brown. Following a court trial, the court below denied plaintiff-appellant’s prayer for relief and plaintiff appeals. Respondents did not file a brief here.

Defendant Bobby Joe Brown is insured under an automobile liability policy issued by Auto Club. On May 3, 1974, a collision occurred between an automobile driven by Brown and an automobile driven by defendant Kennison and owned by defendant Lee. Kennison instituted a civil action in the Circuit Court of St. Louis County against Brown, in which he seeks damages for personal injuries and damage to Lee’s automobile, allegedly caused by Brown’s negligence.

Part I of the policy issued by Auto Club to Brown requires the Auto Club to pay on behalf of Brown all sums which Brown shall become legally obligated to pay as damages because of bodily injury or property damage arising out of the use of Brown’s automobile and to defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of the policy, even, if the allegations of the suit are groundless, false, or fraudulent. The policy contains this exclusion: “This policy does not apply under Part I: . to bodily injury or property damage caused intentionally by or at the direction of the assured.” Auto Club’s investigation led it to inform Brown that it could not provide coverage for the collision because it was not an accident but a deliberate act by Brown.

Auto Club prayed for a declaratory judgment that the collision was caused by the intentional acts of Brown, that the insurance policy did not cover the intentional acts, and that it was not required to defend Brown and was not liable for any judgment that might be obtained against Brown. The trial judge found that Brown’s actions were wanton and reckless, but that he did not intend to injure Kennison or do substantial damage to Kennison’s car.

The issue before us is whether the trial court’s finding that Brown did not intend to cause injury to Kennison or the automobile and that therefore the exclusion did not apply was against the weight of the evidence and an erroneous application of the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. Banc 1976).

In our review, we bear in mind that the appellate courts in a court tried case should exercise the power to set aside a judgment on the ground that it is “against the weight of the evidence” with caution and with a firm belief that the judgment is wrong. Murphy v. Carron, supra, p. 32. However, where the oral evidence is largely undisputed and much of the evidence consists of documents and writings, as is the case here, the trial court is not given as much deference in its findings as in cases involving disputed oral testimony. Prior v. Hager, 440 S.W.2d 167, 172[1] (Mo.App.1969).

Brown did not appear or testify in the proceedings, but a long hand statement signed by him was introduced into evidence. In his statement Brown recited that Kenni-son’s car, with Kennison at the wheel, blocked Brown’s car in the traffic lane of a parking lot. Brown sounded his horn, then twice requested Kennison to move his car. After the second request, Kennison said “you make me move it.” Brown then backed his car up a few feet and “intentionally drove forward and ‘rammed’ into the left rear of the Kennison car.” Brown estimated his speed at impact as 10 miles per hour.

The only other evidence relevant to Brown’s intention came from a St. Louis County police officer who investigated the accident and took statements from both drivers. He testified that both statements confirmed Brown’s statement, that both cars were damaged and Kennison was hurt, that Brown said he was trying to push the vehicle out of the way.

The most recent authority in Missouri on when injury or damage is caused intentionally within the- meaning of liability insurance exclusion clauses is Farmers Alliance Mutual Insurance Co. v. Reed, 530 S.W.2d 470 (Mo.App.1975), which is a well reasoned opinion written by Judge George M. Flani-gan. In that case the court set forth two different lines of authority on the issue, quoting from 2 A.L.R.2d 1238 “Liability Insurance: specific exclusion of liability for injury intentionally caused by insured”:

“The courts have generally held that injury or damage is ‘caused intentionally’ within the meaning of an ‘intentional injury exclusion clause’ if the insured has acted with the specific intent to cause harm to a third party, with the result that the insurer will not be relieved of its obligations under a liability policy containing such an exclusion unless the insured has acted with such specific intent. Under this view, it is not sufficient that the insured’s intentional, albeit wrongful, act has resulted in unintended harm to a third person; it is the harm itself that must be intended before the exclusion will apply. There is, however, some authority for the proposition that such a clause will operate to relieve a liability insurer of its duty to indemnify an insured whose intentional act has caused harm to a third person where the nature or character of the act is such that an intent to cause harm is thereby inferred as a matter of law.”

Farmers was an action for declaratory judgment and the policy language was identical to that in the case at bar. The insured collided with the rear of a car, then followed “right on his bumper,” accelerating as the other car did. A second collision occurred, when the insured’s car was traveling at 55 to 60 miles per hour, and the other car was forced off the road. The insured pounded on the hood of the car, grabbed a witness by the shoulder, and said he was going to whip everybody. At the time of the accident the insured stated that the people in the other car “were out to get him” and “I just got them first.” In a later statement, he said he was trying to stop the car, and “so I ran up beside a couple of times and finally I just cut around kind of in front of him and he ran off” the road. The court held that the evidence justified the trial court’s conclusion that the insured intended the collision and intended to cause damage to the vehicle and its occupants under either of the lines of authority set forth above on the meaning of “caused intentionally.”

The only other Missouri decision on the issue is the case relied upon by the trial court in its memorandum opinion, Crull v. Gleb, 382 S.W.2d 17 (Mo.App.1964). In that case the evidence revealed that the insured and the driver of the other vehicle had a dispute over the boundaries of their land. The insured saw the other driver at one of the contested boundaries, drove over to him and collided with his vehicle three times. The evidence as to the intent of the insured was in dispute: the insured stated he did not intend to hit the other car, that he was unfamiliar with his truck, that his foot slipped from the slick clutch pedal, and that he lost his presence of mind. The court apparently took the viewpoint that specific intent to cause injury was necessary for the insurance exclusion to apply, and defined intentional as not only intending the acts themselves, but also “intending that harm result from said acts.” 382 S.W.2d at 21. The court held that the evidence was sufficient to raise an issue of fact for the jury on whether an insured’s actions were intentional or wanton and reckless and therefore refused to set aside a jury verdict against the insurance company on the grounds that the acts were intentional and excluded from coverage.

In our opinion, Crull v. Gleb supports the first line of judicial authority set forth in Farmers, supra, namely that specific intent to cause damage or injury is required for the intentional injury exclusion to apply. However, the trial court erroneously applied the requirement of specific intent to cause harmful results to the facts of the present ease. Intended results are not only those results which are desired. ’ If a person knows consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, § 8A (1965). Therefore, an admission of specific intent is not the only way to show intent to cause harm; it can be inferred from facts and circumstances surrounding an act. For instance, in Farmers, supra, the court found that the collision and the resultant injury was intentional, although the insured did not admit intent to cause harm or even the intentional nature of the collision, and in his statement only said that he wanted to stop the car and therefore went “beside it” and “cut in front” of it. One is presumed to intend the natural and probable consequences of his acts and conduct. Camp v. John Hancock Mut. Life Ins. Co., 165 S.W.2d 277, 281[5] (Mo.App.1942). When an intentional act results in injuries which are the natural and probable consequences of the act, the injuries as well as the act are intentional. Rankin v. Farmer’s Elevator Mutual Ins. Co., 393 F.2d 718 (10th Cir. 1968); see Camp, supra.

In the present case, unlike Farmers, supra, and Crull v. Gleb, supra, the insured admitted that the collision was intentional. The circumstances indicate Brown might have been angry when Kennison refused to move his car. Brown did not gently push the car to move it out of his way; he states that he backed up first and then “rammed” into the car. Injury to the automobile and its occupant was a natural and probable result of the deliberate collision which should have been expected and hence intended. We conclude that the weight of the evidence showed not only intent to collide but intent to cause harmful results.

We arrive at the same conclusion under the second view of the applicable law set forth in Farmers, supra, namely that intent to cause harm can be inferred as a matter of law from the nature or character of an intentional act. Intentional “ramming” of an occupied vehicle is a dangerous act from which at least some harm is almost certain to result. It is not like throwing a missile to frighten and unintentionally hitting someone. Courts have rejected fine distinctions between intentional acts and intentional injuries in deliberate automobile collisions. See Allstate Insurance Co. v. Hiseley, 465 F.2d 1243 (10th Cir. 1972) (collision following incident outside bar and chase); Rankin v. Farmer’s Elevator Mutual Ins. Co., 393 F.2d 718 (10th Cir.1968) (truck deliberately drove into motorcycle at 50 m. p. h.); Transamerica Ins. Co. v. Cannon-Lowden Co., 400 F.Supp. 817 (D.Mont. 1975) (commission of suicide by driving into path of oncoming car at 60 m. p. h.); Wigginton v. Lumbermen’s Mutual Casualty Co., 169 So.2d 170 (La.App.1964) (intentionally backed into taxi that refused to move).

Thus under either line of authority on what constitutes intention within the meaning of intentional injury exclusions, we hold that the weight of the evidence requires a finding that Brown intended the collision and the resultant damage to the vehicle and its occupant. To hold otherwise, would, we believe, establish a subjective standard of intent which would make intentional injury liability insurance exclusions inapplicable without an admission by the insured of specific intent to injure.

Reversed and remanded for judgment to be entered in accordance with our holding herein.

CLEMENS, P. J., and WEIER, J., concur.


author: SMITH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Merdise PITTMAN, Defendant-Appellant.
    No. 37006.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 22, 1977.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
    Daniel P. Reardon, St. Louis, for defendant-appellant.
   SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury of two counts of armed robbery and the resulting sentences of fifteen years on each count, to be served consecutively. Defendant raises as error the failure of the trial court to declare a mistrial as a result of the alleged cumulative prejudicial effect of the prosecutor’s argument, and the consecutive sentences imposed. No attack is made on the sufficiency of the evidence.

The evidence indicated that Defendant and another man, Clarence Millett, robbed at gunpoint the owner of a used car lot and a business guest of the owner. Defendant was identified as one of the participants by the guest and a third man, an employee of the owner. Defendant’s defense was alibi.

It is defendant’s contention that the prosecutor made five unwarranted statements during the final part of his closing argument and that cumulatively these required a mistrial. Objection was made and sustained to each of the statements and the jury was admonished in each instance. No request for mistrial was made until the end of the argument. The state contends that the failure to request a mistrial immediately after each instance constitutes a failure to preserve the matter for appellate review. We disagree. Defendant makes no claim that any one of the instances was sufficiently grievous to warrant mistrial, but that the cumulative effect did warrant such relief. In that situation we cannot conclude that the failure to request relief, that one does not believe he is entitled to at the time, can constitute a waiver. Nor is defendant’s counsel in a position to know what the last instance will be. Here the request for mistrial was made immediately upon the completion of the argument upon the ground of cumulative effect. This case therefore differs from those where either the delayed mistrial request was based upon one improper argument or the request was made following some lapse of time after the argument was concluded. Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96 (1952); Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487 (1949); Shields v. American Car & Foundry Co., 293 S.W. 77 (Mo.App.1927). We find the matter was properly preserved.

While we are loathe to set out long extracts of the transcript in an opinion we find it necessary here for an understanding of defendant’s contentions. Those portions of the prosecutor’s argument complained of were as follows (numbering identifies the five different comments objected to):

“Now another thing he says is that this guy is getting set up — telling you how the Police are doing it. Not only do they lie about the gun but they stick him in a line-up and say ‘okay’ and once the guy has picked the two people out of this line-up, they put the same two people with three different people and there’s no problem picking out those two. Okay. There’s one problem with that. If you look and you have got to look and be observant. You notice this gentleman standing here? Okay, the one with the hat, standing next_this is Clarence Mil-lett. Guess who that is? [1] Take a close look. That’s Ricky Millett. Take a look in this line-up picture. There’s Mr. Pittman, there’s Mr. Millett and look whose standing next to him_Ricky Millett. Okay. This man here_
MR. REARDON: Judge, I object to that. That isn’t in the evidence.
THE COURT: I’ll sustain the objection. There is no evidence as to identification of those persons.
MR. REARDON: I ask that the jury be instructed to disregard the last remark of counsel.
THE COURT: There is no evidence of the identification as to anybody on those pictures except this defendant and Mil-lett. The jury will disregard the last argument of counsel.
MR. MOSS: [2] You heard the evidence, this part of the evidence. You can look at the third man in each of these pictures_Mr. Pittman, Mr. Clarence Millett_
MR. REARDON: I object to the next thing he is going to say.
THE COURT: I’ll sustain the objection as to identification of anybody on those photographs other than this defendant and the Millett that has been pointed out. No reference is to be made by anybody because there is nothing in evidence regarding that. Proceed.
MR. MOSS: You have the photographs. Look at them and make your own decision on it and you’ll see what I’m telling you. Okay. Now, in regard to the argument about clever rob-bers_these people are clever robbers and clever robbers, Number one, don’t rob their friends, former acquaintances and clever robbers once they realize they are robbing their friends are they going to say ‘the jig’s up’ and everybody is going to go and hide_that’s one way. The other way is if this robber who recognized Hogan, if he really recognized him, what would you do if you were a smart robber? Would you lead him around and give the police your name? [3] You would ‘x’ (or ‘ax’) him right there and he wouldn’t be a witness; would he?
MR. REARDON: I object to this as being improper_
THE COURT: I’ll sustain the objection to that line of argument.
MR. REARDON: I ask that the jury be instructed to disregard the last remark of counsel.
THE COURT: Members of the jury, you will disregard the last remark of counsel.
MR. MOSS: . You know_sure your burden would be easier if you had money_sure, it would be easier if he said, ‘Yeah, I did it.’ But he didn’t and that’s why we are trying the case. He’s not going to tell you he did it because he’s got a lot to lose. Number 1, he is going to catch some time on this case if convicted and [4] Number 2, he’s already got some time on another case that he is going to have to serve_
MR. REARDON: I object to that_ THE COURT: I’ll sustain that objection. There is nothing in the evidence in regard to that. Let’s proceed.
MR. REARDON: I ask that the jury be instructed to disregard the last remark of counsel.
THE COURT: Members of the jury: you will disregard that last remark of counsel and not consider that in your deliberations.
MR. MOSS: .Now under all the evidence here you have had two people come in and positively identify this man and within three hours had him connected up by being at the other man’s house who is named_within hours after the robbery you have him identified, as I said, within hours after the robbery and [5] have him with the gun that’s simi-lar_
MR. REARDON: He wasn’t with the gun_I object to this. He was not with the gun.
THE COURT: I’ll sustain the objection.
MR. REARDON: I ask that the jury be instructed to disregard the last remark of counsel.
THE COURT: I’ll sustain the objection and members of the jury you will disregard the last argument of counsel. The gun was found at the premises. Let’s proceed, sustained.
MR. MOSS: Officer Franklin testified he walked into the bedroom and he was there sitting- on a couch within arm’s reach of that gun. That’s what he testified to.”

The first two objected to statements were made in response to defendant’s attorney’s prior argument that the only two people who appeared in common in both a photograph shown to the witnesses before the lineup and in the lineup were Clarence Millett and defendant. The prosecutor was arguing that additionally Ricky Millett, who was arrested with defendant, also appeared in both. But no testimony had identified anyone in the two pictures except Clarence Millett and defendant. While the statement identifying Ricky Millett was beyond the evidence and objection thereto was properly sustained we are unable to see its prejudicial effect upon defendant. Defendant opines that it suggested to the jury that there may be some criminal action involving Ricky Millett in which defendant might be implicated. We do not consider this particularly evident from the argument. Additionally the jury was already aware from the testimony that Ricky Mil-lett and defendant were arrested together. Defendant’s second objected to statement was not completed and we cannot presume what the remainder would have been, or more important, what the jury thought the remainder might be.

The third statement was again in response to defendant’s counsel’s argument. Hogan, the employee at the used car lot, stated he recognized one of the robbers, Clarence Millett, because he had gone to school with him. Defendant’s counsel argued that if that were true then Millett would have recognized Hogan, told defendant and defendant would not have gone to Millett’s home after the robbery. The prosecutor’s argument, to refute that Millett recognized Hogan, was that a smart robber in that situation might have killed the witness. While we cannot condone the argument we believe it was hypothetical and to the degree it was specific was directed to Millett, not defendant.

The fourth comment was clearly objectionable, but again we do not find substantial prejudice. The jury was aware from defendant’s testimony and from his counsel’s argument that defendant was on parole. We cannot conclude the remark told the jury anything it did not already know.

The last comment was only marginally objectionable and the court’s statement removed any prejudice that might exist. It was inaccurate in the sense that when defendant was apprehended, a gun similar to the one used in the robbery was within a few feet of him on a table in Millett’s home. It was not actually in his possession.

It is to be noted that in each case the court took action to admonish the jury. The court further expressed its belief, upon the motion for mistrial, that the admonishment was sufficient and that mistrial was not required. We defer to this exercise of discretion unless clearly abused. We cannot find, either singly or cumulatively, sufficient prejudice in the prosecutor’s argument to require the drastic step of a mistrial.

Defendant was sentenced prior to the decision in State v. Baker, 524 S.W.2d 122 (Mo.banc 1975), holding unconstitutional Missouri’s mandatory consecutive sentencing law, Sec. 546.480 RSMo.1969. The record fails to establish the basis upon which the court imposed the consecutive sentences. We must therefore presume it was done in accordance with that statute rather than on discretionary grounds. Gallup v. State, 542 S.W.2d 616, 617 (Mo.App.1976); State v. Harris, 541 S.W.2d 686, 687[4] (Mo.App.1976). We therefore remand for resentencing.

Judgment affirmed, cause remanded for resentencing.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.