author: TURNAGE, Judge.

text:
    James CURTAIN, Plaintiff, v. Charles H. ALDRICH, Defendant, and Vanguard Insurance Company, Garnishee. VANGUARD INSURANCE COMPANY, Appellant, v. James CURTAIN et al., Respondents.
    No. KCD 30160.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Danny L. Curtis, Niewald, Risjord & Wal-deck, Kansas City, for garnishee.
    Robert L. Shirkey, Kansas City, for respondent James Curtain.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

James Curtain obtained judgment in the amount of $8,500 against Charles Aldrich for personal injuries and instituted a garnishment action against Vanguard Insurance Company to recover such amount. Vanguard filed a declaratory judgment suit against both Aldrich and Curtain to obtain a declaration of its rights under its policy issued to Aldrich with reference to the coverage for the incident here involved. The trial court consolidated the actions and heard the evidence on both before a jury. At the conclusion of the evidence the court directed a verdict in favor of Curtain against Vanguard on the garnishment action and declared Vanguard’s rights under its policy to be consistent with its judgment which in effect declared Vanguard was obligated to pay the judgment against Aldrich.

Vanguard appeals and contends the court erred in directing a verdict against it in the garnishment action and alternatively contends that even if its policy affords coverage to Aldrich there was a factual issue to be determined by the jury. Reversed and remanded.

The underlying incident occurred in November, 1973. At that time Aldrich and his wife were separated with Aldrich remaining in the family home. An agreement had been reached for the wife to remove certain items from the family home but apparently Aldrich did not know exactly when or how these items were to be removed. One evening when Aldrich returned home he was working in his garage, which was under the living portion of the house, when he heard footsteps upstairs. According to his testimony, he thought there was an intruder in the house, grabbed a crowbar and ran out of the garage and around to the front. He stated it was about 9:00 P.M. and dark and he could only see a man with something in his arms. Aldrich stated he thought it was a burglar and ran up to the man and struck him with the crowbar. The man began to run and Aldrich struck him again, knocking him to the ground. At this time the figure on the ground called out, “Charlie, this is Jim” and Aldrich stated that for the first time he realized the man he had struck was James Curtain.

Curtain and Aldrich had married sisters. Curtain and Don Martin, who had married another of the sisters, had attached a U— Haul trailer to Martin’s pickup truck to assist Mrs. Aldrich in moving some of her belongings. On the night in question, Curtain testified he, Martin and Mrs. Aldrich had made one trip to the Aldrich home and had removed some of the belongings and at the time in question had returned to make a second trip. Curtain stated it was dark but there was at least a dim light on the Aid-rich front porch. Curtain stated the trailer attached to the pickup was backed up to the porch which was a few steps above ground level. He stated he was arranging some blankets in the trailer to protect the sides and was walking toward the house with the blankets under his arm when he was suddenly attacked by Aldrich. Curtain stated he was knocked down by the first blow and started crawling when he was struck by a second blow which rendered him unconscious for about a minute. When he regained consciousness, he called out to Aid-rich to identify himself.

There was evidence that Curtain and Aid-rich were on good terms without any history of bad feeling between them. Aldrich testified the incident was an accident because he struck Curtain only because he thought he was a burglar and if he had known it was Curtain he would never have struck him. There was also evidence that Aldrich, of course, was well acquainted with Martin and Martin’s pickup truck since Martin was married to the sister of Ald-rich’s wife. There were discrepancies between the versions related by Curtain and Aldrich. Curtain told a police officer who investigated the incident that Aldrich had the crowbar taped to his right wrist, yet Aldrich denied this. There was also a dispute as to the amount of light in the vicinity emanating from a street light and the porch light. In addition, Vanguard introduced evidence of the first petition Curtain filed against Aldrich in which it was alleged Aldrich intentionally assaulted Curtain. Aldrich admitted that he pleaded guilty to a charge of assault as a result of this incident.

Vanguard issued a homeowners policy to Aldrich and Vanguard urges the exclusion that the policy does not apply “to bodily injury or property damage which is either expected or intended from the standpoint of the insured” relieves it from liability to pay the judgment in favor of Curtain.

Vanguard’s position at the trial and here is that Aldrich intended to strike the person he saw and intended to inflict some injury on that person, and, for that reason, the injury was intentional from the standpoint of Aldrich and the exclusion applies. The directed verdict by the trial court undoubtedly resulted from the opposite views held by Curtain and Aldrich as to whether the admitted fact that Aldrich intended to strike the person he actually struck was sufficient to invoke the exclusion, even if Aldrich’s version was accepted that he only struck Curtain because he mistook him for a burglar and if he had known it was Curtain he would never have struck him. The trial court was led to believe that a resolution of this question would resolve both lawsuits and based on Cooper v. National Life Ins. Co., 212 Mo.App. 266, 253 S.W. 465 (1923) decided the question in Curtain’s favor by ruling that the unintended result of injury to Curtain which followed the intended striking did not invoke the exclusion.

Cooper did not involve a case of mistaken identity but did declare the distinction between an intended act and an unintended result.

The exclusionary clause relied on by Vanguard is the same exclusion as that considered in Hanover Insurance Company v. Newcomer, 585 S.W.2d 285 (Mo.App.1979). In that case this court adopted the reasoning contained in Continental Western Ins. Co. v. Toal, 309 Minn. 169, 244 N.W.2d 121 (1976). In Toal the court stated an exception clause identical to the one here was to be interpreted the same as the exception rather commonly used in insurance policies of “ ‘bodily injury * * * caused intentionally by or at the direction of the insured.’ ” 244 N.W.2d 124, n. 1. The same exclusionary clause as that in this case was considered in Lyons v. Hartford Insurance Group, 125 N.J.Super. 239, 310 A.2d 485, 488[2] (1973). There the court stated the New Jersey public policy denied insurance indemnity for the insured’s intentional acts and stated the exclusionary clause involved there and here probably had no more effect than the law would imply in its absence. The public policy of Missouri with respect to insurance coverage for intentional acts is the same. Crull v. Gleb, 382 S.W.2d 17 (Mo.App.1964). In light of Toal and Lyons this court construes the exclusionary provision in this case to exclude intentional acts on the part of the insured. The question then becomes whether an intentional assault committed because of mistaken identity comes within the exclusion for intentional acts.

Cases applying exclusionary clauses for intentional acts involving a mistake of identity uniformly draw a distinction between the intentional act induced by the mistaken identity and the unintended results which flow therefrom.

The earliest case to consider an intentional act induced by mistaken identity is Utter v. Travelers’ Ins. Co., 65 Mich. 545, 32 N.W. 812 (1887). In that case Utter was an army deserter who was being sought by police officers in Los Angeles. The officers located Utter in a house and when Utter opened a door one of the officers fired and killed him. It developed, however, the officer thought he was firing at someone else and thereafter entered the house and demanded to know which person was Utter. The opinion states at 32 N.W. 815:

It seems to me that the design intended by the terms of this policy must be the design that intended the actual result accomplished, and not in the design of the act itself, which act resulted in the killing of one contrary to the design of the act. If, when Berry [the officer] fired this shot, he did not know the man he fired at was Utter, and did not. intend to kill Utter, it cannot be said that Utter lost his life by the design of Berry.

The exclusion in that policy was that the death not be the result of design, either on the part of the deceased or any other person. The court obviously considered design to be synonymous with intent.

In Newsome v. Travelers’ Ins. Co., 143 Ga. 785, 85 S.E. 1035 (1915) the policy excepted injuries “ ‘intentionally inflicted upon the insured by any other person, . . ..’ ” The court held “such exception will not relieve the insurer from liability for an injury to the insured inflicted by another person, where the other person, intending to injure someone other than the insured, mistook the insured for the person intended to be injured and intentionally inflicted upon him a bodily injury . . ..” The court cited Utter in support of its holding.

In Mah See v. North American Acc. Ins. Co., 190 Cal. 421, 213 P. 42 (1923) the policy excluded injury intentionally inflicted on the insured. There was some question whether the insured was the intended victim or whether he was killed as a result of mistaken identity. The court relied on Utter and held if the insured were killed when the assassin intended to kill someone else, the policy exception did not apply. In an annotation following Mah See in 26 A.L.R. 129 (1923) it is stated that “the provisions of accident policies excepting or limiting liability in case of injuries intentionally inflicted upon the insured, are generally held inapplicable where the insured is injured or killed by one who mistakes him for another person.”

In Brooks v. Continental Casualty Company, 13 La.App. 502, 128 So. 183 (1930) the policy excepted injury resulting from the intentional act of the insured or any other person. The court stated at page 185[2, 3]:

In the construction of a proviso of that character those courts have about uniformly held that the company is not exempted from liability where the party shooting intended to shoot someone else, and by mistake shot the party injured or killed. Here it is unquestionably shown that Legendre intended to shoot holdup men, and by mistake shot the unfortunate Moses Brooks.

The court also discussed the distinction between intentional acts and unintentional results.

In Cooper, supra, the policy excepted injuries caused by the intentional act of any person other than the insured. In that case an altercation broke out in a soft drink parlor between a man and woman. When the man flourished a gun the woman jumped behind the insured, who had no part in the argument, and when the man started firing, the insured was struck. The court discussed the distinction between the intentional act in the man firing the gun but the unintentional result of the insured being struck.

In Wildblood v. Continental Casualty Co., 182 La. 202, 161 So. 584 (1935) the exception in the policy was for intentional acts of the insured or any other person. The court considered Brooks and Mah See and concluded the unintentional result following the intentional shooting of a person which follows a mistaken identity prevents the exclusionary clause from operating. However, the court held whether or not the intentional act is the result of a mistaken identity is a question of fact.

Vanguard relies principally upon Subscribers At Auto Club, etc. v. Kennison, 549 S.W.2d 587 (Mo.App.1977) in which the policy excepted intentional acts on the part of the insured. The court in that case considered injuries resulting when the insured intentionally drove his car into another car. The court did not discuss the rationale of cases involving mistaken identity and that case has no application to the case at bar.

This court concludes after a careful review of all the cases involving injuries inflicted as a result of mistaken identity that a distinction must be made between intentional acts which lead to injury or death and the unintended results of such acts when the act itself is the product of a mistake of identity. This is simply an extension of the rule already adopted in Cooper that there may be unintended results from intentional acts. Thus, in this case Vanguard’s position is not well taken that since Aldrich intentionally struck Curtain the exclusionary clause applies without further examination. For that reason the court correctly overruled Vanguard’s motion for a directed verdict.

However, as held in Wildblood, the question of whether or not the injury to Curtain was inflicted as the result of a mistaken identity is one of fact. Here there was evidence from which the jury could have found the attack on Curtain was, in fact, intentional and not induced by a mistaken belief as to Curtain’s identity. There was evidence that Curtain’s first petition alleged the assault on him by Aldrich was unlawful and maliciously done with intent to injure Curtain in a cruel and inhuman manner. This pleaded an intentional tort in plain language and the word “maliciously” also alleges an intentional tort. Voss v. American Mutual Liability Insurance Co., 341 S.W.2d 270, 279[11-13] (Mo. App.1960). Although this pleading was supplanted by an amended petition which omitted any reference to intentional acts on the part of Aldrich, the abandoned pleading is admissible as an admission against interest. DeArmon v. City of St. Louis, 525 S.W.2d 795, 803[24—28] (Mo.App.1975). Further, the evidence that Aldrich pleaded guilty to a charge of assault as result of this incident was admitted without objection. A plea of guilty to a criminal charge is admissible for consideration by a jury, but, of course, is not conclusive. Ferguson v. Boyd, 448 S.W.2d 901, 903[3, 4] (Mo.1970).

There was also a dispute of whether there was enough light for Aldrich to have been able to identify Curtain or Martin’s pickup or both. In addition, Curtains statement that Aldrich had the crowbar taped to his wrist would be evidence from which the jury could infer an intention to attack Curtain rather than the attack resulting from a spontaneous reaction to the thought of an intruder in the house.

All of the foregoing evidence was sufficient to make an issue of fact as to whether the assault upon Curtain was induced by a mistaken identity or was intentionally directed at Curtain from the very beginning. In this posture the trial court should not have directed a verdict in favor of Curtain and against Vanguard in the garnishment action, but should have let the jury determine the factual dispute of whether Aldrich did intentionally assault Curtain or whether the assault, even though intentional, was induced solely by reason of the mistaken belief on the part of Aldrich that Curtain was a burglar.

Likewise, the trial court should not have directed a verdict in favor of Curtain and Aldrich in the declaratory judgment suit brought by Vanguard. The court should have declared that the exclusionary clause did apply if Aldrich intentionally assaulted Curtain knowing who he was, but did not apply if Aldrich assaulted Curtain under the mistaken belief that Curtain was a burglar and except for this mistaken belief Aldrich would not have committed the assault.

The judgment is reversed on the garnishment suit and the cause is remanded for a new trial. The court is directed to enter judgment in the declaratory judgment suit declaring that the exclusionary clause applies if the trier of fact concludes Aldrich assaulted Curtain with the intent to injure Curtain, but does not apply if Aldrich assaulted Curtain under the mistaken belief that he was a burglar and did not, in fact, intend to injure Curtain.

All concur.


source: Caselaw Access Project

author: CLARK, Judge.

license: Public Domain

text:
    Kenneth Ray GARNER, Appellant, v. Ted L. JONES, Respondent.
    No. KCD 30494.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Edward J. Murphy, Butler, for appellant.
    Spencer J. Brown, Gary M. Cupples, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   CLARK, Judge.

This action arose out of a vehicular accident which occurred when automobiles driven by plaintiff and defendant collided at the intersection of Routes 52 and J in Bates County. Following entry of judgment on a jury verdict for defendant, plaintiff appeals.

Points raised by plaintiff in this appeal are that the trial court erred in receiving testimony from an investigating police officer regarding his ability to locate the point of vehicle impact and that the court erred in giving an incorrect coercive instruction which was not warranted by the status of jury deliberations. Affirmed.

At the accident location, access from Route J to Route 52, the through roadway, is controlled by a stop sign. Although the evidence established that plaintiff’s automobile, southbound on Route J, was in a stopped position as defendant’s car approached on Route 52 from the east, the testimony of the witnesses was in dispute as to whether a portion of plaintiff’s car occupied part of the westbound lane of Route 52. Defense in the case was predicated on the contention that plaintiff had failed to yield the right-of-way by pulling onto and blocking the portion of Route 52 on which defendant was traveling.

The testimony claimed by appellant to have been erroneously admitted was that of a highway patrolman who investigated the accident and arrived at the scene soon after the occurrence. On cross-examination of the officer by defendant, the question was asked, “Were you able to tell, Officer, where the two cars had come together?” After plaintiff’s objection that the answer would be an impermissible conclusion invading the province of the jury was overruled, the witness answered, “No, sir, I was not.” Plaintiff contends that testimony of the police officer, not otherwise qualified as an expert, may not be given to show point of impact and cites Chester v. Shockley, 304 S.W.2d 831 (Mo.1957) in support of this proposition.

Accident reconstruction by non-expert witnesses giving opinions or conclusions is error because an invasion of the province of the jury. Penn v. Hartman, 525 S.W.2d 773 (Mo.App.1975); State v. Gibson, 502 S.W.2d 310 (Mo.1973). The expressed rationale supporting this rule is .that the collective knowledge and experience of the jury is adequate to determine point of impact given evidence of location of vehicles after impact, distribution of debris and other physical features found at the scene. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242 (1948). Opinion evidence may only be received when the witness by experience and knowledge is peculiarly qualified to draw conclusions from the facts and the jury, from want of such experience and knowledge, is not capable of drawing the correct conclusions from the facts proved. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601 (1946).

This case on the facts is not appropriate for application of the rule excluding non-expert opinion evidence and is therefore distinguishable. The subject witness disclaimed ability to ascertain the point of impact. The jury was supplied no conclusion of opinion by the officer to be substituted for a decision required by the jurors themselves and the factor essential to application of the rule excluding this type of opinion evidence is therefore absent.

Plaintiff anticipates this aspect of the question and suggests that prejudice nevertheless was the consequence of admitting the officer’s statement as to point of impact, albeit a disclaimer of opinion. He argues that disclosure to the jury of the investigating officer’s inability to determine at the scene where the cars had collided would discourage the jurors from deciding the issue and, because plaintiff’s case turned on this question, plaintiff is thereby denied a verdict.

Such implication of adverse effect is entirely speculative and cannot be confirmed as a necessary or even a probable result of the officer’s testimony. Regardless of the conjectural nature of this argument,, however, it fails to aid plaintiff in advancing any claim of prejudice. While it is true that plaintiff’s case under his wrong side of the road submission required a factual determination that the collision did occur on plaintiff’s side of the road, defendant similarly was striving to prove, in support of his defense, that plaintiff had pulled onto the through roadway, a point of impact confirming that version of the accident. Any unfavorable inference to be drawn by the jury from the officer’s inability to establish the point of impact therefore fell with similar weight on the issues important to each party.

Additionally it is to be noted that after the question and response by the officer as to point of impact, inquiry by counsel established that investigation by the officer at the scene failed to reveal physical confirmation of the collision point because of snow and ice on the roads and because other traffic between the time of the accident and the arrival of the officer had obscured or confused wheel and skid marks. The jury’s resolution of the disputed issues of fact in the case was based on the sworn testimony of all the witnesses, the court’s instructions and the arguments of counsel and thus was far broader in scope than the single question of point of impact considered by the officer from physical evidence at the scene. Plaintiff’s claim of prejudice under these facts is subjective, conjectural and insubstantial.

Plaintiff next contends that the trial court erred in the giving of Instruction No. 10 over the objection of both parties. Such instruction duplicates a like instruction quoted in full and condemned by this court in Cowan v. McEIroy, 549 S.W.2d 543 (Mo.App.1977). The instruction, often described as the “hammer,” exhorts the jury to “endeavor to bring the deliberations of the whole jury to an agreement upon a verdict” and follows a form employed in criminal cases but not approved by MAI for use in civil cases. The vice inherent in the instruction is, as plaintiff observes and as was noted in Cowan, supra, reference to agreement by the whole jury upon a verdict in contradiction of MAI No. 36.01 which authorizes a verdict by nine or more jurors, thus leaving the jury in doubt as to whether a unanimous verdict is required.

While the instruction in question is not commended for use generally or in the form given, the critical issue is the examination of prejudicial effect as required under Rule 70.02(c). Deviation from MAI does not, of necessity, always result in prejudice and require reversal. State Farm Mutual Automobile Insurance Co. v. Jessee, 523 S.W.2d 832, 836 (Mo.App.1975). The distinctive feature in the Cowan case was that the jury returned a unanimous verdict some thirty minutes after receiving the erroneous verdict coercive instruction thus prompting the decisive statement in the opinion: “But in the case at bar, a civil action, it [the instruction] could only be confusing and misleading and tantamount to a violent, coercive misdirection, reflected indelibly by the unanimous jury verdict.”

In the subject case, defendant’s verdict was returned by nine jurors, a fact which conclusively demonstrates that erroneous reference in the challenged instruction to “agreement of the whole jury” did not mislead or coerce the jury to depart from the original instruction authorizing a less than unanimous verdict. While plaintiff argues that agreement of nine jurors on verdict after delivery of the erroneous instruction indicates some persuasive effect from the instruction, such was a consequence of the general effect of the instruction and not from any confusion or misdirection on the subject of a unanimous verdict. The error in the instruction was, by reason of the verdict returned not prejudicial.

Plaintiff also suggests that the giving of the verdict coercive instruction was not justified in this case by the state of jury deliberations, a factor of significance as noted in Cowan, supra. In contrast to Cowan, however, where no deadlock or impasse was reported, the jury reported to the court in the subject case after more than two hours’ deliberation that they could not reach a verdict. Admonitions to the jury regarding its duties and powers when report of deadlock is conveyed may be given by the trial court in the exercise of its discretion. Nash v. Plaza Electric, Inc., 363 S.W.2d 637 (Mo.1962). As in Nash, supra, a conclusion that the instruction was not coercive is supported by the fact that three jurors did not agree to the verdict. The court properly exercised its discretion in affording the jury sufficient opportunity and instruction to bring the case to a verdict under the circumstances evident from the record in this case.

Finally, plaintiff has advanced and briefed alleged error in defendant’s right-of-way instruction patterned after MAI 32.01(2) and 14.05 and the absence of evidence to support this contributory negligence instruction. On argument, this instruction question has been abandoned as the issue is resolved by reference to effective dates of MAI revisions as incorporated in the Rules of the Supreme Court of Missouri. Sufficiency of the evidence to warrant submission of the defense has been reviewed, however, and no error is found in the giving of the instruction.

The judgment is affirmed.

All concur.


author: DIXON, Presiding Judge.

text:
    DON ANDERSON ENTERPRISES, INC., a Missouri Corporation, and the Levee, Inc., a Missouri Corporation, Plaintiffs-Respondents, v. ENTERTAINMENT ENTERPRISES, INC., a Missouri Corporation, and Mel Kleb, Sr., Defendants-Appellants.
    No. KCD 30504.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Motion for Rehearing and/or Transfer-Denied Oct. 29, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Charles C. Shafer, Jr., Kansas City, for defendants-appellants.
    Prank P. Barker, III, Barker, Rubin & Sonnich, Kansas City, for plaintiffs-respondents.
    Before DIXON, P. J., TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

Entertainment Enterprises, Inc., and Mel Kleb appeal from a judgment in a court-tried case on a promissory note given as part of the purchase price of three taverns.

Review is pursuant to Rule 73.01 as circumscribed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The sole issue is the fact and propriety of acceleration of the note sued upon by the plaintiffs.

Don Anderson Enterprises, Inc., and The Levee, Inc., owned and operated three taverns. Don Anderson, as an officer and director of the plaintiffs, entered into an agreement with Entertainment Enterprises for the sale of the three taverns. The agreement provided for a down payment of $8,000 with a promissory note of $24,000 payable in initial monthly payments of $750 increasing to $1,000. Mel Kleb, Sr., executed his personal guarantee of that note.

The sale agreement provided, among other things, that the promissory “note shall provide for acceleration in the event of default in the payment of any installment . . Default shall be construed as failure to pay amount due within fifteen (15) days after notice to Buyer.”

The clause in the Note provided: “Should default be made in payment of any installment when due, the whole sum of principal shall become due and payable at the option of the holder of the Note after fifteen (15) days from deposit of written notice of default . .

It was also provided in the agreement and the note that upon involuntary termination of the tenancy for twelve (12) months from the date of notice all installments due after the date of notice shall be void, and the note shall become void.

Timely monthly payments on the note of $750 per month were made through November, 1975. In December, Entertainment Enterprises made a payment of $64.74 with notations of deductions for utility payments. Upon receipt of the December, 1975 check, Mr. Anderson called Mr. Kleb, Sr., and asked about the difference. Mr. Kleb told him Entertainment Enterprises had paid certain utility accounts owed by Mr. Anderson for periods before the closing date, and deducted them from the note payment.

Entertainment Enterprises made timely payments on the note for the months of January, February, and March, 1976. However, Entertainment Enterprises failed to make the April, 1976, payment on April 1, when due. Don Anderson mailed to Entertainment Enterprises two notices on April 7, 1976. One notice demanded payment for the balance of the December, 1975, payment, and the other demanded the entire April, 1976, payment.

On April 21, 1976, Mr. Anderson sent a second notice. That notice stated:

Notice is hereby given that the note dated October, 1975 in the face amount of $24,000 is in default. Demand is hereby made for the sum of $1,525.62 which is in default. Notice is hereby given that the note dated October, 1975, in the face amount of $24,000 is in default, and that the holder thereof has declared the whole sum due and payable. Demand is hereby made for payment of the entire amount of the outstanding debt. The holder of the note, by giving this notice, does not waive any other right under the terms of this Note.

Thereafter, Entertainment Enterprises paid the April, 1976 payment. Don Anderson, on May 12,1976, sent to Entertainment Enterprises a letter and two notices of default, one for the $1,000 May payment then overdue and the other for the balance of the December, 1975 payment still not paid.

Each notice contained the following:
Notice is hereby given that the note dated October, 1975, in the face amount of $24,000 is in default, and that the holder thereof has declared the whole sum due and payable. Demand is hereby made for payment of the entire amount of the outstanding debt. The holder of the note, by giving this notice, does not waive any other right under the terms of the Note.

On May 30, 1976, a fire destroyed the three taverns which were the subject of the sale agreement.

Suit was filed on July 19, 1976, to determine the rights of the parties and to collect the balance of the note pursuant to the acceleration option of the note and sale agreement. The trial court entered judgment against Defendants Entertainment Enterprises and Mel Kleb, Sr., individually, in the amount of Nineteen Thousand Seven Hundred Seventy-Five and no/100 Dollars ($19,775.00) plus interest.

Defendants argue the court erred in awarding judgment to Anderson because an unequivocal, affirmative election to accelerate had not been made and that, even if the notices be considered as such an election, they were not timely because the fire terminating the leases occurred before a valid acceleration.

An option to accelerate the entire balance of a note is not a self-executing provision. A clear, unequivocal affirmative act is necessary to invoke an option to accelerate. Capital City Motors, Inc. v. Thomas W. Garland, Inc., 363 S.W.2d 575 (Mo.1962); Wolfley v. Wooten, 220 Mo.App. 668, 293 S.W. 73 (1927); Putthoff v. Walker, 213 Mo.App. 228, 248 S.W. 619 (1923).

The language of the sale agreement and note made the acceleration clause optional. Plaintiffs did take such affirmative action. The notices mailed from respondents to Entertainment Enterprises on April 21, 1976, and on May 12, 1976, were clear and unequivocal in stating the acceleration provisions were being invoked. The contention of the defendants that the notices were mere expressions of intent to accelerate at some future time is without merit.

The April 21 and subsequent notices are set forth above. These notices were more than merely notices to accelerate. They were affirmative, overt acts evidencing an intention to accelerate the note. Thus, the instant case can be distinguished from Wolfley v. Wooten, supra, where the court held several letters from the creditor were only threatening letters and were not sufficient alone to exercise the acceleration option.

The second branch of the argument, that the notices were not timely, depends upon defendants’ further contention that the language of the acceleration clause in the sale agreement and the language of the acceleration clause in the note must be construed together.

The sale agreement provided:
Such note shall provide for acceleration in the event of default in the payment of any installment and shall provide for prepayment, at anytime without penalty. Default shall be construed as failure to pay amount due within fifteen (15) days after notice to Buyer.
The clause in the note provided:
Should default be made in payment of any installment when due, the whole sum of principal shall become due and payable at the option of the holder of this Note after fifteen (15) days from deposit of written notice of default in the United States Mail .

Defendants contend the only logical reading of the provisions is to read them together. They claim a default occurs if there is a failure to pay the installment due 15 days after notice, and when default occurs then the whole balance of the principal becomes due and payable at the option of the holder after another 15 days from date of notice. Thus, a minimum of 30 days is required for the holder to exercise his option to accelerate.

Assuming without deciding that the contended construction is correct, there was still a proper exercise of the option. Plaintiff sent a demand letter for payment of the overdue balance of the December, 1975, payment and the overdue April, 1976, payment on April 7, 1976. If this notice was according to the terms of the sale agreement, a default would have occurred 15 days after April 7th. A subsequent notice was postmarked April 21, 1976. Thus, in any event, the option to accelerate could be exercised after 15 days of the April 21 notice.

The April payment was paid; however, the balance of the December payment remained in default. On May 12, 1976, more than the 15-day period of continuing default under defendants’ theory, a demand letter for the balance of the December payment and for the now overdue May payment, which clearly and unequivocally exercised the acceleration clause, was sent. Therefore, as to the unpaid balance of the December payment and any conceivable view of the documents, a default and acceleration were declared.

Defendants, apparently recognizing the inherent fault in the notice argument, contend there can be no acceleration of the December balance due. They argue one cannot accelerate a note when the holder of the note is not entitled to anything.

Anderson testified Mel Kleb told him by telephone the remaining balance of the December payment was deducted to offset utility accounts paid by Entertainment Enterprises. Anderson further testified that he had agreed to allow such an offset provided he was furnished with evidence of such payment. Anderson never received any such evidence from Entertainment Enterprises or Mr. Kleb up to the date of trial.

Neither was there any evidence produced at trial in support of the claimed utility payments by way of either cancelled checks or receipts.

It is well established in Missouri that the burden of proving payment on a note rests with the party asserting payment. General Electric Company v. Construction Associates, Inc., 426 F.Supp. 986 (E.D.Mo.1977); Williams v. Cobb, 239 S.W.2d 770 (Mo.App.1951); Johnson v. Johnson, 352 Mo. 787, 179 S.W.2d 605 (1944); Miller v. Gayman, 482 S.W.2d 414 (Mo.1972). The defendants failed to meet the burden of proof to support that branch of the argument.

Defendants’ brief contains a second point which can be dismissed with a brief discussion. The contention is that the trial court erred in failing to give any accord to the “good faith” requirement of Section 400.1-208 RSMo 1978. The statute clearly reflects that it is concerned with situations where a creditor can deem itself “insecure” and accelerate the balance due “at will.” Neither the sale agreement nor the note in the present case provided for such an option. Section 400.1-208 RSMo 1978 is inapplicable to this case.

There was substantial evidence to support the judgment. The judgment was neither against the weight of the evidence nor was the law erroneously declared or applied. Murphy v. Carrón, supra.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Chief Judge. SHANGLER, Judge,

text:
    General David PARRISH, Petitioner, v. Donald W. WYRICK, Warden, Respondent.
    No. KCD 30533.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Alex Bartlett, Duane E. Schreimann, Hendren & Andrae, Jefferson City, for petitioner.
    John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, C. J., and SHANGLER, PRITCHARD, SWOFFORD, SOMERVILLE, CLARK and KENNEDY, JJ.
   WASSERSTROM, Chief Judge.

Petitioner, by pro se application for writ of habeas corpus, sought his release from the Missouri State Penitentiary. This court issued its writ and appointed counsel for the petitioner. It is fitting to remark that appointed counsel have performed that assignment with a high degree of professional skill.

The issue made up by the pleadings and the briefs of the parties concerns the treatment which should be accorded to the “good time” which has accrued to petitioner’s benefit. Petitioner argues that he is entitled to have all of that good time credited against his sentence, that after such credit his sentence has been fully served, and that he is therefore entitled to release. Respondent admits the accrual of all of the good time claimed, but he resists the conclusion that petitioner has any absolute right for said time to be credited against the sentence, and he argues instead that giving effect to such a credit lies within the complete discretion of the Governor.

Petitioner has experienced a tortuous, serpentine history of criminality and consequent litigation leading to his present situation. He entered the Missouri State Penitentiary on September 22, 1955, under sentences by the circuit court of the City of St. Louis on three charges of first degree robbery, the sentences being ten years on each charge, to run concurrently. On May 29, 1960, he escaped from the Penitentiary. Upon recapture he was charged with escape, two charges of robbery and two charges of auto theft. He pleaded guilty in the circuit court of Cole County and was sentenced to five years on the escape, five years on each charge of stealing and 25 years on each charge of robbery.

On December 15, 1962, petitioner completed the St. Louis sentences and started serving the Cole County sentences. However, on August 5, 1968, the Cole County sentences were set aside, the guilty pleas were withdrawn, and new guilty pleas were entered under which petitioner was sentenced to seven years on each robbery charge and two years on each of the other charges.

On April 9,1970, petitioner pleaded guilty to first degree murder for the homicide of another inmate, and he received a life sentence. Shortly thereafter a declaratory judgment was entered on April 23,1970, to the effect that the 1968 sentences were to be served consecutively. On December 11, 1972, another declaratory judgment was entered to the effect that petitioner should receive additional credit for jail time of five years, eight months and 27 days.

Thereafter on November 15, 1974, petitioner was allowed to withdraw his plea of guilty to the charge of first degree murder, and he entered a plea of guilty to murder in the second degree on which a new sentence of ten years was entered. Then, on July 16, 1975, a judgment was entered in a proceeding under Rule 27.26 holding that the 1960 escape and theft convictions (as modified in 1962) were nullities, that the two robbery convictions had begun to run in 1962 and became completed May 10, 1973, and that the latter date marked the commencement of service by petitioner under the murder conviction.

By November, 1975, petitioner had accumulated credits for merit time, blood time and special time totaling 1,828 days, which if applied to his remaining sentence then being served would result in his release on November 6,1975. The responsible officials in the Division of Corrections did so report to the Governor, but the Governor declined to issue an order of commutation of sentence.

Petitioner thereupon filed application for habeas corpus addressed to the circuit court of Cole County, but that petition was denied on November 24,1975. However, petitioner was admitted to parole on May 24, 1976, under which he remained at liberty until June 7, 1978, when the parole was revoked.

Shortly thereafter petitioner again sought a writ of habeas corpus in the circuit court of Cole County, which was denied on September 6, 1978. That led to the institution of the present proceedings in this court on October 20, 1978.

I.

Respondent raises a threshold objection that the issue in this case has become moot. He points out that the new Missouri Criminal Code took effect on January 1, 1979, and that concurrently with the effective date of that new Code, the giving of all merit time has been discontinued. He points to the adoption of a new rule effective January 1,1979, which provides: “Merit time will be discontinued for both inmates convicted of criminal acts prior to and after January 1, 1979.” That regulation, supplementing the new concept of “conditional release” provided for in Sec. 558.011, subd. 4 of the Criminal Code, further provides that “Any person who shall serve %2ths of the time he/she was sentenced to serve in an orderly and peaceful manner without a serious violation, as later defined, will be eligible for consideration for release by commutation on that date.”

Respondent’s argument in this respect is untenable. If petitioner’s basic position is correct, then he had fully earned sufficient merit time in November, 1975, to be entitled to release. This release date would have been more than three years before the effective date of the new criminal code and the subsequent change in regulations. Those subsequent changes should not be permitted to operate so as to destroy a right which petitioner claims to have fully vested in 1975, if it did so vest. Of course, the fundamental question still remains to be answered, whether in fact petitioner did have a vested, protectable right to be released from confinement by reason of the accrued merit time.

II.

“Good time” in Missouri has been of two kinds. The first category is the so called “three-fourths time” granted under Section 216.355, RSMo 1969. The second category of “good time” is set forth in administrative Rules and Regulations, and has been referred to in the administrative Rules and Regulations as “merit time.” This merit time is subdivided into basic merit time, administrative awards and special merit time. That merit time could be awarded at a rate not to exceed a specified number of days per month.

At one time the administrative Rules and Regulations lumped together in legal theory the two categories just mentioned. Thus in the Inmate Informational Pamphlet — Rules and Procedures, dated September, 1967, it was stated: “Reduction of your sentence resulting from the three-fourths rule, institutional merit time, and blood time is a commutation of sentence.” That statement was erroneous as regards the three-fourths rule, although it would have been correct in that respect under the Laws of Missouri as it existed a hundred years ago. Under the Laws of 1865-1866, the predecessor to Section 216.355, the statute provided: “when any persen [sic], imprisoned in the Penitentiary of the State of Missouri shall have, during the whole time of his or her imprisonment, behaved according to the rules and regulations of that institution, to the full satisfaction of the Inspectors, then the said Inspectors, on the expiration of three-fourths of the time for which such person was sentenced, shall write and sign a testimony to that effect and present the same to the Governor of Missouri, with a recommendation that such person be pardoned; * *.”

However, the statute was amended in 1879 so as to provide what has existed in substantially the same form from that date until January 1, 1979. Under the 1879 amendment, good conduct by a prisoner no longer triggered merely a recommendation to the governor. Instead, the amendment provided that the inmate “shall be discharged in the same manner as if said convict had served the full time for which sentenced, and in such case no pardon from the governor shall be required.” (Emphasis added.) See Ex parte Collins, 94 Mo. 22, 6 S.W. 345 (1887).

Thus between 1879 and 1979, prisoner release under the three-fourths rule was not done pursuant to the governor’s power to pardon or commute sentence. Instead, the legal theory was that the three-fourths rule was referable to the legislature’s power to define punishment for crime, and “the conditions of the three-fourths rule * * * must be read into every judgment of conviction. They offer a reward in the form of diminished incarceration to every convict for obedience to the rules of the prison and laws of the same.” Ex parte Rody, 348 Mo. 1, 152 S.W.2d 657, 660 (banc 1941). As said in Ex parte Carney, 343 Mo. 556, 122 S. W.2d 888, 890 (banc 1938), these provisions “become a part of every judgment of conviction with as much effect as if actually written therein.” See also State v. Montgomery, 223 S.W.2d 463 (Mo.1949).

The correct legal foundation for the three-fourths rule has been recognized by the more recent institutional rules and regulations. Thus, in Bulletin No. 45 (REVISED), adopted May 15,1974, the director clearly distinguished between statutory three-fourths time and the additional institutional merit time, and that bulletin stated in part: “By statute each person is released after having served ¾2⅛ of his sentence. In addition, each institution will submit a plan setting forth guidelines for the awarding of extra ‘basic’ merit time. * * * In addition to 9/i2th statutory release and basic merit time, special merit time may be awarded for diligence in work and study and for productive participation in correctional treatment programs.” The most recent rule effective January 1, 1979, is even more explicit on the subject when it states: “Inmates released on their ⅜2⅛ date or after will continue to be released under the signature of the director of the Division of Corrections and not through the commutation process.”

In contrast to the legal basis for allowing statutory good time under the above three-fourths rule, the basis for granting nonstatutory merit time is completely different. The grant of nonstatuto-ry good time has always been and continues to be a form of commutation under the governor’s constitutional power to grant pardons or commutations. Whitaker v. State, 451 S.W.2d 11 (Mo.1970) holds that commutation of sentence for good time falls within the authorization of that constitutional provision. Likewise, the more recent administrative rules and regulations spell out this same legal basis in unmistakable terms. So, the 1975 revision of Bulletin No. 45 provides: “Merit time is used as an objective standard in advising the Governor as to whether or not an inmate merits appropriate relief under the Governor’s statutory [sic] power to grant reprieves, commutations and pardons.” Further, the 1976 Inmate Rule Book defines Merit Time as: “time awarded to an inmate for satisfactory or outstanding conduct and work performance. The amount of time awarded shall be used as criteria for recommendation for commutation of sentence by the Governor.” Even more pointedly, the 1976 published rules of the Division of Corrections said with respect to Merit Time: “ . . . The amount of time awarded shall be used as criteria for recommendation for commutation of sentence by the Governor; but is in no way binding on the Governor. Commutation is a constitutional power and many factors must be taken into consideration in determining the actual release date of an inmate.”

The power of commutation is a matter of grace resting purely within the discretion of the governor. Whitaker v. State, supra; Ex parte Webbe, 322 Mo. 859, 30 S.W.2d 612 (banc 1929); Ex parte Reno, 66 Mo. 266, 269 (1877). The case last cited holds: “a pardon or commutation is a mere matter of grace, and until this act of clemency is fully performed, neither benefit nor rights can be claimed under it.”

Inasmuch as nonstatutory good time is granted under the power of commutation, that grant likewise rests within the sole discretion of the governor. Whitaker v. State, supra; Ex parte Collins, supra. The facts and ruling in the case last cited are particularly pertinent. In that case a prisoner had accrued sufficient good time to warrant his release.. However, that was under the old 1865-66 statute, by the terms of which the penitentiary officials merely certified those facts to the Governor and it was up to the Governor to give effect to the good time by way of a pardon. The penitentiary officials did certify the facts, but the Governor declined to issue a pardon. Thereupon the prisoner petitioned for habe-as corpus. The Supreme Court held that the matter of release was purely within the discretion of the Governor and no relief could be granted by the court:

“The status of the petitioner, then, is that he, so far as in him lay, has fully complied with the condition annexed to his case, when he entered the walls of the penitentiary. It may be conceded that he became entitled to whatever benefit an observance of those conditions gave him; but what benefit was that? Simply this: that he became entitled to be recommended to the governor as a fit subject of pardon. This benefit he has received. His right to a pardon does not lie in the terms of the statute. * * * Equitably, the prisoner is perhaps entitled to his discharge; but that is a subject which lies entirely in the discretion of the executive. By virtue of the writ which has been issued, we can only make inquiry into his legal rights in the premises. The result is that he must be remanded to the custody of the warden, and it is thus ordered. (Emphasis in the original.)

To summarize, petitioner is absolutely entitled to credit for statutory good time under Section 216.355 which was in effect at the date he committed murder for which he is now serving time. However, that entitlement does not avail him presently since his statutory three-fourths time will not expire until March 21, 1981. To obtain any earlier release as a matter of right, he must rely upon the accrual of nonstatutory good time; but as already shown, that non-statutory time does not constitute an absolute credit which can constitute an automatic reduction of sentence. Accordingly, under the Missouri statutes and administrative rules, regulations and practices, he was not entitled to release in November, 1975, and he is not entitled to release now.

The dissenting opinion offers two theories (neither of which was ever advocated by the able counsel for relator) upon which to say that relator has obtained an absolute right to the credit for merit time and therefore that he accrued an absolute right to immediate release. The first theory is that the Governor is bound upon contractual principles. One major trouble with this suggestion stems from Section 222.010, RSMo 1978, which suspends all civil rights of a convict during the term of his sentence. That statute disenables a penitentiary inmate from entering into any valid contract. Jandro v. Jandro, 246 S.W. 609 (Mo.App.1923). Therefore, the contract postulated by the dissent would be void and unenforceable.

Moreover, even if relator were legally competent to contract, the contract would be void for want of consideration. In obeying the rules of the penitentiary, relator would be doing only what he was already otherwise obligated to do. Missouri Digest, Contracts,

The foregoing objections make it unnecessary to deal at any length with a still further problem: that is, whether the philosophy of prisoner rights should be extended to a pronouncement that management and supervision of the state’s correctional institutions are to be subjected to a concept of a contractual relation between the inmates and the supervisory staff. Significantly, no existing authority has been cited so holding or even so suggesting.

The dissent’s second theory is that relator was given a “conditional commutation” of sentence as soon as he entered the penitentiary or at least when he received a copy of the rule book. No authority is cited nor has any been found to support such a result. A commutation of sentence implies a present release from or modification of -the sentence. If there is a condition imposed, that simply means that a breach of the condition will result in reinstatement of the original sentence in its full vigor. Whether conditional or unconditional, an effective commutation must act presently. If the supposed commutation does no more than promise to commute in the future, then we are back to the contract theory already discussed and which is subject to the fatal objections already pointed out. So the imaginative suggestion of a conditional commutation cannot avail anything to relator here.

The dissent endeavors to brush aside the opinion of the Missouri Supreme Court in Ex parte Collins, supra, on the ground that Collins is an old case decided in a bygone era in which a different philosophy prevailed as to prisoner rights. The Supreme Court may, if it so chooses, declare that the philosophy of Collins is now obsolete and overrule it on that basis. This court, however, does not have that option.

III.

Petitioner argues that respondent is guilty of “taking away” his merit time without notice and hearing and that such action deprives petitioner of his constitutional rights. In support of this argument petitioner relies on Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) in which it was held that no part of accumulated statutory good time may be disallowed by prison authorities, except in accordance with due process of law, which requires notice and hearing. The rule of Wolff v. McDonnell has no application here.

That rule has been more recently discussed by the United States Supreme Court in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, - U.S. -, 99 S.Ct. 2100, 60 L.Ed.2d 668, decided May 29, 1979. Greenholtz holds that constitutional protection was accorded in Wolff v. McDonnell only because the Nebraska statute granting good time credits was intended to and did create “a liberty interest protected by due process guarantees.” Greenholtz further emphasizes that each such statute has a unique status “and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.”

In the present situation, unlike Wolff v. McDonnell, there is no statute at all granting the good time credit claimed. However, even if we assimilate the administrative rules and practices to a statute, it is plain that those rules and practices do not create a protectible entitlement. The reasons for that conclusion have already been fully discussed under part II of this opinion.

The writ of habeas corpus is quashed and the petitioner is remanded to the custody of the respondent.

PRITCHARD, SWOFFORD, SOMERVILLE and KENNEDY, JJ., concur.

SHANGLER, J., dissents in separate dissenting opinion, in which CLARK, J., concurs.

SHANGLER, Judge,

dissenting.

The petitioner was set free from imprisonment by order of commutation of sentence entered on June 19, 1979. The official action was not reported to this court until after hearing on the habeas corpus petition, so opinion has issued. I agree that the proceeding was not made moot by the commutation but for the reason that others, still imprisoned, have cause to assert the efficacy of merit time earned by compliance with the directives of the prison administrators to reduce sentence. I dissent because the majority do not accord to merit time so earned an absolute reduction of sentence.

The majority rests on the premise, simply, that the power to commute sentence rests by Constitution [Art. IV, § 7] altogether with the grace and discretion of the Governor unconditioned by an entitlement to a reduction of sentence earned under a promulgated administrative procedure. In summary, the opinion holds: “The grant of nonstatutory good time has always been and continues to be a form of commutation under the governor’s constitutional power to grant pardons and commutations . [and] does not constitute an absolute credit [and] automatic reduction of sentence.” Implicit in this posture is the assumption that judicial interference with such a grace granted or withheld violates the constitutional separation of powers [Art. II, § 1] and so rests beyond the jurisdiction of a court to correct.

The conclusion of the majority, that administrative rules cannot compel an Executive commutation of sentence [Whitaker v. State, 451 S.W.2d 11 (Mo.1970)], however, can have no validity when the conditions for reduction of sentence are promulgations of the Executive, itself.

At least from year 1962, systematic provisions in the form of printed “Inmate Regulations” have issued from the successive prison administrators. These publications inform the convict population at the Missouri State Penitentiary for accrual of benefits, in addition to those under the statutory three-fourths rule, towards the reduction of sentence. This good time or merit time is designed as “reward for positive behavior which contributes to the achievement of correctional goals” — that is, to accomplish .rehabilitation. [Bulletin No. 45 (Revised), May 15, 1974]. The year 1967 rule book makes the procedure explicit:

INSTITUTIONAL MERIT TIME:
In addition to the benefits of the statutory three-fourths rule, an inmate may further reduce his sentence with good work and conduct by earning institutional merit time. This time ranges from five days a month through eight days a month on assignments inside the penitentiary and from eight days a month through ten days on minimum-security assignments.
BLOOD TIME:
Over and above the statutory three-fourths rule and institutional merit time, your sentence may be further reduced by donating blood to the Red Cross . You may be credited with fifteen days for each regular blood you give up to a maximum of thirty days for a calendar year.
COMMUTATION OF SENTENCE BY GOVERNOR:
Reduction of your sentence resulting from the three-fourths rule, institutional merit time, and blood time is a commutation of sentence. It is commonly referred to as a discharge and is distinguished from parole. It means that upon being commuted, you have finished that particular sentence and you are not under supervision of any person or agency upon release to the community, [emphasis added].

These provisions in essential terms are repeated in the year 1970 rule book for the penitentiary. They propose good conduct and donation of blood as the quid pro quo for merit time and promise without condition reduction of sentence by commutation to the extent of the merit time so earned— unless forfeited. The early publications [Warden’s Bulletins to Inmates and Personnel of July 1, 1968, and February 1, 1970, for instance] also make provision for forfeiture of merit time “by the Adjustment Board with the approval of the Warden.” In May of 1974 and thereafter [no doubt prompted by the imperatives of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)], the Director of Corrections [now Director of Division of Corrections] issued Bulletin No. 45 to modify the prior perfunctory procedure for forfeiture of merit time earned:

LOSS OF MERIT TIME: The courts have mandated that any loss of merit time must be by procedures which comport with constitutional due process, which includes:
1. Notification of the charges in writing.
2. Confrontation by the inmate of the allegation and accusors. [sic]
3. The right to call witnesses.
The classification/treatment teams shall be responsible for recommendations of merit time loss, and in no case shall merit time be recommended taken from any inmate without a meeting in which the inmate shall be permitted to fully discuss his position and present facts in his behalf ....

The procedure was reannounced by formal rule published on December 31, 1975.

It is conceded that since year 1962 the Governor has granted formal commutation of sentence “[i]n more than 99 percent of the cases that have been submitted” upon notice from the Director of Corrections that a prisoner, by composite computation of statutory three-fourths time and institutional merit time, has reached release date. It is certain that no order to deny a commutation on merit time and statutory time was ever made by the incumbent or predecessor Governor. On this reckoning, the petitioner Parrish was placed by the Director of Corrections on the release list for November 6, 1975, his family gathered to receive him, but without explanation was never released. Hence, the petition for writ of habeas corpus.

The majority opinion holds, nevertheless, that a commutation results only from a completed Executive clemency — a pardon signed, attested and delivered — and that no equity earned by a prisoner compliance with regulatory conditions for discharge can compel the discretion of the Executive to perform that act of grace. The legalism that only formality of the Executive signature suffices to complete a commutation yields to the reality of a bargain struck between the prisoner and Executive administrator, adopted by the Executive, and given effect by unvaried practice from one Executive to the next. I respond to the majority that, taken on its own terms, the circumstances show that the Executive has exercised discretion that merit time, not otherwise forfeited, shall work an absolute reduction of sentence towards commutation on fulfillment by a prisoner of the conditions precedent for good conduct, donation of blood, and other regimen for rehabilitation promulgated by penitentiary regulation. That is the reality of the undisputed circumstances. The regulations to the inmates were formulated and published by the Director of Corrections, appointed by the Governor and subject to his pleasure. [§ 216.110 as amended by the Omnibus Reorganization Act, Laws 1974, p. 530.] They had the dual public purpose to encourage “positive behavior” by a system of reward and at the same time to facilitate penal administration. They held out expectation without condition, that reduction of your sentence from merit time so earned is a commutation of sentence. The incumbent Governor, as had each predecessor, adopted and affirmed the application by his administrator of the distinctive and intimate Executive power to commute as an expression of Executive policy. Thus, formal commutation of sentence has issued as of course on information referred by the prison administrator that a prisoner had accrued a sufficient statutory and merit time to earn release.

A power to pardon or commute, whether under constitution or statute, is construed in terms of the common law. Accordingly, the rules of construction as to deed or other grants apply to pardons and commutations. Ex parte Wells, 18 How. 307, 310, 15 L.Ed. 421 (U.S.1855); United States v. Wilson, 7 Pet. 150, 160, 8 L.Ed. 640 (U.S.1833). A pardon on condition, offered and accepted, in effect concludes a contract between the Executive and the prisoner that the Executive will release the prisoner on fulfillment of condition. State v. Eby, 170 Mo. 497, 71 S.W. 52, 60[3] (1902); Ex parte Seymour, 155 Tex.Cr.R. 112, 231 S.W.2d 448, 449[1] (1950); 67A C.J.S. Pardon and Parole §§ 25-27. On the same figurative principle, a condition of pardon must be construed according to the intention of the parties, and every doubt resolved in favor of the citizen and against the sovereignty. 60 A.L.R. 1410, Annotation: Conditional Pardon, p. 1414; 67A C.J.S. Pardon and Parole § 25.

A commutation may issue with condition or without condition. If on condition, then both the Executive and the convict are bound by that reservation. Silvey v. Kaiser, 173 S.W.2d 63, 64 (Mo. banc 1943); A pardon may reserve a condition precedent or a condition subsequent to the effective operation of commutation. Ex parte Webbe, 322 Mo. 859, 30 S.W.2d 612, 614[l-3] (banc 1929); Mo.Const. Art. IV, § 7 (1945). The condition may be of any nature so long as it is not illegal, immoral or impossible of performance. State ex rel. Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716, 718[2] (banc 1947). Although a matter of Executive grace, a commutation is subject to the election by the convict and does not come into effect until accepted with all attendant conditions. Ex parte Strauss, 320 Mo. 349, 7 S.W.2d 1000[1-4] (banc 1928); United States v. Wilson, supra, 7 Pet. l.c. 160. A condition subsequent of commutation that the prisoner “shall comply with all the rules and regulations of [the] Reformatory” is valid to bind a prisoner who assents. Ex parte Webbe, supra, 30 S.W.2d l.c. 615[2, 3]. The condition precedent that compliance by a prisoner with the institutional regulations earns merit time and entitlement to pro tanto reduction of sentence and the concurrent exercise of discretion to commute on those terms, by a parity of principle, binds the Executive to the expectation of release engendered by such an official practice. The lapse of an Executive signature on a paper when the right to the signature has fully accrued by acceptance and performance of condition becomes merely functus officio.

For these reasons I dissent to Part II of the majority opinion.

I dissent from Part III of the majority opinion as well. The refusal to give effect to the merit time earned in absolute reduction of sentence, without hearing or reason, denies the petitioner and those similarly situated due process of law. The majority dispatch that contention by the tautology that merit time earned under prison regulations prior to 1976 does not create “a liberty interest protected by due process guarantees.” That conclusion proceeds readily from the premise of the majority that a formal act of clemency is required for commutation, that the act was never completed and that no equity can compel the Executive to complete that act of grace. That answer evades altogether the declaration of Wolff v. McDonnell, supra, that the loss of good-time credits lengthens confinement and so is a deprivation of liberty protected by due process. What has become of the merit time earned by the petitioner? The majority answer with an enigma [Ex parte Collins, 94 Mo. 22, 6 S.W. 345, 346 (1887)]:

The status of the petitioner, then, is that he, so far as in him lay, has fully complied with the condition annexed to his case, when he entered the walls of the penitentiary. It may be conceded that he became entitled to whatever benefit an observance of those conditions gave him; but what benefit was that? Simply this: that he became entitled to be recommended to the governor as a fit subject of pardon. This benefit he has received. His right to a pardon does not lie in the terms of the statute . . . Equitably, the prisoner is perhaps entitled to his discharge; but that is a subject which lies entirely in the discretion of the executive. By virtue of the writ which has been issued, we can only make inquiry into his legal rights in the premises. The result is that he must be remanded to the custody of the warden, and it is thus ordered.

That principle was formulated at a time when prisoners were “mere slaves of the State” [Ruffin v. Commonwealth, 62 Va. 790, 794-6 (1871)] and before the due process of law ethic took account of infringement of convict rights from arbitrary action of the state. Wolff v. McDonnell, supra; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). That was a time, also, when any civility to a convict — merit time included — was a matter of “grace.” Morales v. Schmidt, 489 F.2d 1335, 1338 (7th Cir.1973) modified on rehearing en banc, 494 F.2d 85 (1974). Merit time is no longer a grace, but a right. Time earned is time served — unless forfeited for reason, and is an interest in liberty protectible by due process. Wolff v. McDonnell, supra, 418 U.S. l.c. 571[28], 94 S.Ct. 2963.

The right-of the petitioner, and those who stand with him, arises from regulations promulgated under the authority of statute [§ 216.405] by an Executive appointée. Thus, state action gives rise to the right to absolute reduction of sentence to the extent of merit time earned. Regulation before year 1976 also provided that the merit time so accrued could be lost only “by rules which comport with constitutional due process.” Thus, state action also makes provision for forfeiture of merit time for cause shown. These procedures, without doubt, entitle the petitioner and those others to the expectation that their sentences would be reduced to the extent of the merit time earned and retained. They were rights and protections created — at least — by positive state authority and entitled to the due process of the law. Meachum v. Fano, 427 U.S. 215, 225[9], 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); See Note: Procedural Due Process In Prisoners’ Rights, 57 B.U.L.Rev. 387 (1977). To deny commutation of sentence when that release has been earned without hearing or reason deprives a prisoner of a legitimate expectation of liberty. It also contradicts the governmental interest which prompted the regulations: orderly administration of the prisons on the one hand, and encouragement of prisoner behavior conducive to reinstatement into the community, on the other. That it is the Executive who must complete the commutation by formal act does not alter the nature of the expectation to reduction of sentence as a protecti-ble right of liberty or avoid the due process obligation to a hearing to determine cause for the forfeiture of that expectation. The constitutional due process of law protects against any arbitrary action of government to deny a right of liberty or property, no matter by what organ of government. Missouri v. Dockery, 191 U.S. 165, 171, 24 S.Ct. 53, 48 L.Ed. 133 (1903). That right to liberty or property — and thus the existence of a protectible interest — does not rest [as the majority has it] on any routine distinction between “grace” and “right” but on an entitlement to a benefit from state statute, regulation or other source. Board of Regents v. Roth, 408 U.S. 564, 571[9-11], 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Meachum v. Fano, supra, 427 U.S. l.c. 226[9], 96 S.Ct. 2532; Moody v. Daggett, 429 U.S. 78, 86[1, 2], 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). The case of Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, - U.S. -, 99 S.Ct. 2100, 60 L.Ed.2d 668 [1979] cited by the majority on Point III sustains the position of petitioner. That case holds, as the majority cites, “whether any . . state statute provides a pro-tectible entitlement must be decided on [that] basis.” The very source for the right to absolute reduction of sentence time the petitioner claims is state regulations promulgated under authority of statute.

Part II of the majority opinion is wrong, even on the terms assumed, because the Executive exercised a de facto discretion to accord commutation in every case to a prisoner who fulfilled the conditions precedent of the regulations that good conduct earned merit time as an absolute reduction of sentence.

Part III of the majority opinion is wrong because the regulations promulgated by the administrator of the Executive under legislative authority and which, without qualification, accord to merit time earned an absolute reduction in sentence constitute state action which creates a legitimate expectancy of a benefit of liberty — a benefit which cannot be refused effect arbitrarily by the Executive organ of government without the hearing the very regulations direct.

For these reasons I dissent.

      . Subsequent to the submission of this case, the Attorney General has furnished information that petitioner received a commutation of sentence by act of the Governor dated June 19, 1979. Based on that, the Attorney General asks that this proceeding be dismissed as moot. Although the commutation may solve petitioner’s particular problem, the issue nevertheless is not moot because it is a matter of substantial public concern which is likely to recur and unless dealt with here could evade judicial review. O_H_ v. French, 504 S.W.2d 269 (Mo.App.1973); State ex rel. Utility Consumers Council of Missouri, Inc., et al. v. Public Service Commission of Missouri et al., 585 S.W.2d 41 (Mo. banc 1979).

      . Section 216.355 was repealed by Laws 1977 which enacted the Criminal Code, effective January 1, 1979. The section as it stood prior to that date read in pertinent part as follows:
      “1. Any person who is now or may hereafter be confined in any institution within the division and who shall serve three-fourths of the time for which he was sentenced in an orderly and peaceable manner, without having any infraction of the rules or laws of the institution recorded against him, shall be discharged in the same manner as if he had served the full time for which sentenced. In such case no pardon from the governor shall be required.”

      . Article 4, Section 7 of the Missouri Constitution of 1945 provides: “The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper

      . Section 556.031, RSMo 1978, part of the new Criminal Code, provides that “any offense committed prior to January 1, 1979 * * * must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this code had not been enacted * *

      . In Thompson v. Bond, 421 F.Supp. 878 (D.C. Mo. 1976) a federal three-judge court held Section 222.010 unconstitutional. However, the attack in that case focused on the right of inmates of access to the courts, and there seems a serious question whether Thompson should be construed as declaring Section 222.-010 unconstitutional in any sense other than as it prohibits a convict to bring suit. In any event, this court is not bound by decisions of the lower federal courts, that being subject to acquiescence of the Missouri Supreme Court. Hughes v. Dwyer, 546 S.W.2d 733, 736 n. 1 (Mo.App.1977). See Seales v. State, 580 S.W.2d 733 (Mo. banc 1979).

      . The habeas corpus petitioner Parrish contends, and respondent Wyrick admits by return, that petitioner has earned 1,828 days of merit time which, if effective to reduce sentence, entitled him to release on November 6, 1975. The report from the Department of Social Services to Governor Teasdale on the record of commutation certified by the Secretary of State shows, however, an accrual of 609 days of merit time. We are given no accounting of this discrepancy. In any event, by whatever count, the prisoner has been eligible for commutation of sentence for more than a year before actual grant.

      . There is no contention, in fact, that Executive commutation has ever been denied any prisoner [the petitioner now included] who has accumulated a sufficient statutory and merit time for release.

      . The commutation, of course, finally issued on June 19, 1979.

      . The year 1976 Inmate Rule Book, for the first time, propounds merit time, not in terms of absolute reduction of sentence, but as qualified by the possibility of refusal to commute by the Governor. Merit time, for the first time, becomes merely one criterion “for recommendation for commutation of sentence by the Governor.” And for the first time a prison regulation explicitly informs the inmates that the administrative recommendation upon accrual of merit time “in no way bind[s] the Governor” who, in the commutation of sentence, exercises a constitutional power. In any event, no belated rule can abrogate the full right to commutation of sentence already fully earned by the petitioner Parrish or the pro tanto reduction of sentence earned by those other prisoners, similarly situated, under the previous regulations which gave unconditional reduction of sentence as an award for good conduct and blood donations — a procedure for the award of commutation adopted by the Governor as an instrument of Executive policy.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Edmund J. BRANSTUDER, Appellant.
    No. 30651.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.
    Application to Transfer Denied Dec. 6, 1979.
    Julian J. Ossman, Asst. Public Defender, 19th Judicial Circuit, Jefferson City, for appellant.
    John Ashcroft, Atty. Gen., Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before WASSERSTROM, C. J., Presiding, and WELBORN and SMITH, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and sentence to three years’ imprisonment (under second offender act) entered on jury verdict finding Edmund J. Branstuder guilty of carrying a concealed weapon.

A search of the person of appellant, then confined in the Missouri State Penitentiary, on March 16, 1978, produced' “a homemade dining room knife, sharpened down, with tape on the handle.” The corrections officer who conducted the search testified that he found the knife concealed in a shoe appellant was wearing. The officer identified the knife, produced at the trial.

Appellant denied that the knife was in his shoe. He stated that it was under a table and that he carried a knife for protection against homosexual advances by other prison inmates.

On this appeal, the first complaint of appellant is directed at the trial court’s giving of the “hammer” instruction. MAI-CR 1.10. The jury retired to deliberate at 11:03 A.M. on the day of the trial. The jury separated for lunch at 11:58 and resumed deliberation at 1:15 P.M. At 2:58 P.M., the judge called the jury into open court and when the foreman replied affirmatively to the judge’s inquiry as to whether an impasse had been reached in the jury’s deliberation, the court read the “hammer” instruction in the form of MAI-CR 1.10. The jury retired for further deliberation. The judge recalled the jury at 4:00 P.M. and the foreman’s request for a little more time was granted. Subsequently, at a time not shown by the transcript, the jury returned with a verdict of guilty.

Appellant attacks the giving of the “hammer” instruction on the grounds that it “improperly invades the jury function and is tantamount to a judicially mandated verdict which denied appellant his right to trial by an impartial jury.” No good purpose would be served by review of the authorities from other jurisdictions cited by appellant on this proposition. MAI-CR 1.10, promulgated by the Supreme Court and in effect at the time of the trial in this case, recognized the propriety of such an instruction. See MAI-CR 2d 4.50. There is no need to cite cases which have approved such instruction. This court cannot nullify the Supreme Court’s approval of the use of the instruction. The only Missouri authority cited by appellant on this issue, State v. Sanders, 552 S.W.2d 39 (Mo.App.1977), is distinguishable because in that case the trial court, prior to giving the instruction, had been informed that the jury stood nine to three for conviction. Here the court did not know how the jury stood. See State v. Hawkins, 581 S.W.2d 102, 104[2-4] (Mo.App.1979). The time element here involved does not show that the “hammer” had a coercive effect. Hawkins.

Appellant next complains that his trial counsel failed to call as a witness a corrections officer to testify that appellant was under strain and fear of attack by other inmates and that prison authorities were unable to provide adequate protection to him. The transcript is silent on this issue except for trial counsel’s testimony in support of the motion for new trial that after the state rested its case solely on the testimony of the officer who found the knife, counsel advised appellant that “if that is all the state was going to present, * * * we were in a better psychological position with the jury to simply rest at that time and not make a big deal out of the case. And the defendant agreed with me."

Neither the motion for new trial nor appellant’s brief complain of any error on the part of the trial court on this issue. Argument in support of the point is couched in terms of inadequate assistance of counsel. Even if that point were properly raised, there is no showing that the strategic decision of counsel, approved by appellant at the time, approaches inadequate assistance of counsel by any recognized test. Stevens v. State, 560 S.W.2d 599, 600[2-5] (Mo.App.1978).

Appellant contends that the court erred in admitting the knife into evidence because the identifying witness admitted that it was not in his possession after the date of the offense and he did not testify as to its condition when he first saw it. No objection was made to the admission of the knife into evidence. Therefore this question has not been preserved for appellate review. State v. Summers, 362 S.W.2d 537, 540[5, 6] (Mo.1962).

Appellant finally complains of deficiencies in the state’s evidence at the preliminary hearing and of the magistrate’s failure to find that probable cause existed to believe that appellant had committed a crime. No objection in this regard was raised until the motion for new trial. Objection at that stage to preliminary proceedings comes too late to preserve for appellate review matters involving such proceedings. State v. Small, 386 S.W.2d 379, 381[1—4] (Mo.1965).

Judgment affirmed.

All concur.


author: WASSERSTROM, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Leonard D. RALLS, Appellant.
    No. KCD 30561.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.
    Application to Transfer Denied Dec. 6, 1979.
    Clifford A. Cohen, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, C. J., and WELBORN and HOUSER, Special Judges.
   WASSERSTROM, Chief Judge.

The information here charged that defendant did “being confined as a prisoner in the County Jail of Jackson County Missouri after conviction for the crime of Stealing from the Person, on [sic] felony on the 16th day of June, wilfully, unlawfully, feloniously, break custody and confinement and escape therefrom” in violation of Section 557.-380, RSMo 1978. The case was tried to the court on a stipulation of facts, resulting in a sentence of six months, consecutive to the sentence imposed for stealing.

The agreed facts are that defendant was sentenced to the stealing charge on the morning of June 16, 1978. The sentence ordered that he be held in the Jackson County Department of Corrections until transportation was available to the Missouri Department of Corrections. At the same time, the court ordered at defendant’s request that he be allowed to go to the funeral of his father which was being held that same morning and that “he was to be escorted by and be held in the custody of the Jackson County Department of Corrections while at that funeral.”

Defendant was taken to the funeral home in the custody of Lt. James Winn. As defendant’s father’s body was being placed in the hearse, defendant ran away from Winn, necessitating a foot chase by Winn and the shooting of two shots on the ground after asking defendant to stop. Defendant failed to heed the warning, but he was finally stopped and arrested by a member of the Kansas City Missouri Police Department.

Statutory Section 557.380 provides that “[i]f any person confined in any county jail upon conviction for any criminal offense, or held in custody going to such jail, shall break such prison or custody, and escape therefrom,” he shall be guilty of the crime of escape. Defendant’s sole point on this appeal is that the stipulated facts do not bring him within the quoted provisions in that he “was not confined in a county jail or held in custody going to such a jail in that [he], at the time of his escape, was not within the walls of the Jackson County Department of Corrections or being transported thereto.”

Although defendant was not actually within the walls and behind the bars of the Jackson County Jail at the time he broke away from Lt. Winn, nevertheless he was at the time constructively confined in said jail. That was essentially the holding in Ford v. State, 237 Md. 266, 205 A.2d 809 (1965), where the defendant was taken from jail in the custody of a correctional officer in order to attend trial in a criminal court in the City of Baltimore. He there broke away from his guard, ran out of the courtroom, but was soon recaptured. The Maryland Court of Appeals sustained a conviction of escape, against the defendant’s contention that at the time he broke away he was not in “a place of confinement.” In that connection, the opinion states: “As we have seen, Maryland draws no distinction between an escape from within the prison walls and one effected when the prisoner, while still in legal custody, was physically outside the prison area.”

Likewise, in State v. Campbell, 314 A.2d 398 (Me.1974), the defendant was on authorized leave from prison to visit his mother in custody of a prison guard. In his mother’s home, which lacked plumbing facilities, he requested permission of the guard to use an outbuilding. On that excursion he escaped briefly but was recaptured. His conviction for escape was affirmed, the Maine Supreme Court holding in part as follows: “The escape or departure from lawful custody need not be from physical confinement within the walls of an institution but, as we said in Boyce v. State, 250 A.2d 200, 202 (Me.1969), may be ‘from outside the walls,’ and the result is the same whether stich departure be from an authorized or unauthorized assignment.”

So also in State v. Kiggins, 86 S.D. 612, 200 N.W.2d 243 (1972), the defendant was released from county jail on a work release program under which he was released in the morning and required to return in the afternoon. The court held that the defendant’s failure to return from work constituted an indictable “escape from a county jail.” The opinion holds in part:

“Defendant was lawfully confined in the Minnehaha County jail. The privilege of work-release merely extended the limits of his confinement. Until his discharge by due process of law he remained under the legal restraint of his sentence and in constructive custody of the jail. His wilful abscondment from restraint and custody constituted an escape.”

An opinion of this court also bears upon this case. In State v. Heckman, 518 S.W.2d 100 (Mo.App.1974), the defendant had been sentenced to confinement in the county jail, but had been transferred to the Municipal Corrections Institution pursuant to contractual arrangement between Jackson County and Kansas City. The defendant then escaped from the city jail and was charged with escape under Section 557.380. This court held that the city jail “is but an extension of custody, or constructive custody of those in charge of the Jackson County Jail” and that the defendant had therefore committed an “escape” within the meaning of Section 557.380 “from a county jail after conviction.”

As in the above cases, so also here defendant at the time he broke away from Lt. Winn was in the constructive confinement of the county jail. His escape falls within the ambit of Section 557.380.

Defendant seeks shelter under the holding of State v. Owens, 268 Mo. 481, 187 S.W. 1189 (1916). That case is not in point. There the defendant was ordered “placed in custody of the street commissioner of the city of West Plains, a city of the third class, and required to work on the streets of the said city until said fine and costs of said action be paid.” Owens simply held that an allegation that the defendant had escaped from the custody of that street commissioner did not constitute an escape within the statute which is now Section 557.380. Under those facts, the street commissioner was clearly separate from and unconnected with the county jail and his custody was not constructive confinement in the county jail.

Affirmed.

All concur.