author: SOMERVILLE, Judge.

text:
    MISSOURI PUBLIC SERVICE COMPANY, Plaintiff-Appellant, v. PLATTE-CLAY ELECTRIC COOPERATIVE, INC., et al., Defendants-Respondents.
    No. KCD 26458.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Rehearing Denied Feb. 9, 1976.

      Gary J. Brouillette, Co. Counsel, Judith J. Paxton, Asst. Co. Counsel, Kansas City, for plaintiff-appellant.
    David R. Clevenger, Platte City, for defendants-respondents.
    Before PRITCHARD, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Missouri Public Service Company (hereinafter referred to as plaintiff) brought suit against Platte-Clay Electric Cooperative, Inc., and its general manager and directors (hereinafter referred to as defendant) for injunctive relief and declaratory judgment. At the trial level the pendency of a quo warranto action in the Supreme Court created what appeared to be an insoluble impasse and an adverse judgment was rendered against plaintiff from which it appealed.

Plaintiff, a public utility, had been granted a franchise by Platte City, Missouri (a fourth class city) to provide electric service to consumers within its corporate limits. Prior to the time plaintiff filed suit, Platte City initiated and completed the following procedural steps to effect annexation of a twenty-three square mile unincorporated area contiguous to and adjoining its then existing corporate limits: (1) an ordinance of annexation pursuant to present Sec. 79.-020, RSMo 1969, was enacted; (2) a declaratory judgment action pursuant to Sec. 71.-015, RSMo 1969 (commonly referred to as the Sawyers Act), was filed and a judgment was obtained in the Circuit Court of Platte County, Missouri, on May 25, 1970, declaring the annexation to be reasonable; and (3) on July 28, 1970, said annexation was submitted to the voters of Platte City at a duly called election at which time voter approval of said annexation was obtained. No appeal was ever taken from the declaratory judgment entered by the Circuit Court of Platte County declaring the reasonableness of the annexation and it became a final judgment. According to City of Sugar Creek v. City of Independence, 466 S.W.2d 100 (Mo.App.1971), Platte City complied with all applicable procedures required by law to properly effect annexation of the twenty-three square mile unincorporated area. It is implicit in City of Sugar Creek v. City of Independence, supra, that the effective date of the annexation of additional territory by a fourth class city such as Platte City, provided the procedural steps outlined therein have been complied with, is the date that voter approval of said annexation is obtained. In this case, as previously noted, voter approval was obtained on July 28, 1970.

On November 13, 1970, the State of Missouri, by John C. Danforth, Attorney General, at the relation of Kansas City, Missouri, filed a petition in the nature of quo warranto in the Supreme Court of Missouri against Platte City, Missouri, attacking the legality of said annexation, same bearing case No. 56282. The Supreme Court issued a “show cause order” directed to and served upon Platte City, Missouri, to appear and show by what authority it claimed to exercise jurisdiction, power and authority in the annexed area and to show cause why it should not be ousted from exercising jurisdiction, power and authority therein.

Subsequent to July 28, 1970, Platte-Clay Electric Cooperative, Inc., which was subject to the provisions of Sections 394.020 and 394.080, RSMo 1969, began contacting consumers within the corporate limits of Platte City, in certain areas included by reason of said annexation, and began providing electric service to certain consumers therein and allegedly intended to contact and provide service to other consumers therein. Sec. 394.080, supra, so far as pertinent, empowered it to provide electric service to consumers in “rural areas”. Sec. 394.020, supra, among other things, defines “rural area” as any area “not included within the boundaries of any city, town or village having a population in excess of fifteen hundred inhabitants”. It stands undisputed that Platte City, Missouri, had more than fifteen hundred inhabitants.

On September 5, 1972, the suit precipitating this appeal was filed by plaintiff to enjoin defendant from contacting and servicing any new or additional electric consumers within the corporate limits of Platte City, as extended by the annexation, on or after July 28,1970, and for a declaration of plaintiff’s rights under the franchise granted to it by Platte City, Missouri. A temporary restraining order was issued by the trial court. At the conclusion of plaintiff’s presentation of its case on the merits, the trial court dissolved the temporary restraining order and denied plaintiff all relief prayed for. It is fair to say, on the basis of the record below, that defendant conceded that, but for the pending quo warranto action, plaintiff was entitled to the relief prayed for in its petition. This concession is quite understandable, and in fact no other conclusion could have been reached under the facts of this case, in light of Sections 394.020 and 394.080, supra, and the construction given them in Missouri Public Service Company v. Platte-Clay Electric Cooperative, Inc., 407 S.W.2d 883 (Mo.1966).

Nevertheless, because of the pending quo warranto action, the trial court entered judgment denying all relief prayed for by plaintiff. Why the trial court did so is far from clear. The trial court apparently concluded, upon the vigorous insistence of defendant, that the annexation was surrounded with an aura of questionable finality until such time as final disposition was made of the pending quo warranto action. The potentially protean corporate limits of Platte City, depending upon the final outcome of the quo warranto action, appears to be the only logical explanation for the judgment entered by the trial court. It does not behoove this court to discuss whether a stay of proceedings, rather than rendition of a final judgment adverse to plaintiff, would have been a more appropriate course of action for the trial court to have pursued.

After the case was argued and submitted to this court on appeal the quo warranto action pending in the Supreme Court was voluntarily dismissed with the end result that no judgment of ouster was ever rendered.

Prior to dismissal of the quo warranto action pending in the Supreme Court, Platte City held a deannexation election and a portion of the twenty-three square miles originally annexed was deannexed and no longer lies within the corporate limits of said city. The boundaries of the deannexed area are unknown to this court and, necessarily, it does not know whether any of the consumers of electric energy being served by defendant, or which defendant may seek to serve, which plaintiff complains of, are in the deannexed area.

As matters now stand, the corporate limits of Platte City, as extended by the annexation which received voter approval on July 28, 1970, subject only to any reduction brought about by the deannexation election, are no longer in doubt or under a pall of legal suspicion because of the previously pending quo warranto action.

When defendant chose on and after July 28, 1970, to enter the area newly annexed by Platte City for the purpose of soliciting and serving consumers with electric service, it did so at its own risk. School District of Kirkwood R-7 v. Zeibig, 317 S.W.2d 295, 301 (Mo. banc 1958). It apparently did so on the mistaken assumption that the pending quo warranto action would ultimately result in a final judgment of ouster. But such was not the case and defendant must suffer the consequences of what turned out to be a mistaken assumption on its part.

Although no cases have been cited by counsel or found by this court mirroring the present posture of this case, common sense dictates the following disposition. The judgment below is reversed and the case is remanded to the trial court with directions to enter judgment in favor of the plaintiff as prayed for, but only insofar as such relief relates to those areas remaining within the extended corporate limits of Platte City, Missouri, after the deannexation which occurred subsequent to July 28, 1970. Upon remand, because of the deannexation that occurred after the case reached this court on appeal, the trial court may deem it necessary to hear additional evidence in order to be properly advised as to the present corporate limits of Platte City since they circumscribe the area in which plaintiff is entitled to relief. Additionally, the trial court may deem it necessary to hear evidence to set up a reasonable time schedule in its judgment to alleviate any hardship on consumers that might otherwise occur because of a change of suppliers. For these reasons the trial court in equity and good conscience should have and is hereby afforded the opportunity to hear additional evidence regarding the matters immediately heretofore mentioned should it deem it necessary to do so.

Judgment reversed and cause remanded to the trial court with directions.

All concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Billy Eugene CANNON, Appellant.
    No. 35630.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 9, 1975.
    Rehearing Denied Jan. 23, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
    Greensfelder, Hemker, Wiese, Gale & Chappelow, Joseph R. Meives, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Coram nobis. Petitioner Billy Eugene Cannon pleaded guilty to four felonies in 1961 and the court sentenced him to twelve years’ imprisonment. In 1968, having been discharged, Cannon was tried under the Second Offender Act for armed robbery, found guilty by a jury and on the basis of his four prior convictions the court sentenced him to 18 years’ imprisonment. He is now serving the 1968 sentence. Petitioner now contends his guilty pleas in 1961 were invalid and the ensuing judgments were not a lawful basis for applying the Second Offender Act to his 1968 convictions. The 1961 guilty pleas and sentences were before Judge Michael J. Scott, who also presided at the instant 1974 coram no-bis hearing. Following an evidentiary hearing on the coram nobis petition the trial court denied relief and the petitioner appeals.

In challenging his pleas of guilty to the underlying 1961 charges, the petitioner contends (1) he was not represented by counsel, (2) counsel did not render effective assistance and (3) his 1961 guilty pleas were not entered knowingly, intelligently and voluntarily. These contentions in turn.

On the lack of counsel point, petitioner called as a witness Mr. Jack Koehr, a public defender whose name appeared on court file jackets concerning the four 1961 guilty pleas. Mr. Koehr had no recollection of having represented petitioner some 13 years before. Petitioner testified he did not “have a lawyer” when his guilty pleas were entered.

This testimony, supporting petitioner’s contention of no counsel, is countered by the court’s formal judgments which state in each of the four cases: “ . . . comes . . . the defendant herein, in person, in the custody of the sheriff of the city, and in the presence of Jack Koehr, Public Defender, in open court; whereupon . . etc. Against this solemn record showing petitioner did have counsel (in 1961), the petitioner stated (in 1974) that he did not. Mr. Koehr’s testimony was qualified and inexact. While he did say he was not involved in petitioner’s plea, the statement was made in indefinite terms. Certain things he found he could not recall; he doubted he had been involved as a participant in the plea. Those questions he felt should be answered, were answered, “As best I can recall.” Mr. Koehr was hesitant to frame his answers with exactitude, failing to respond definitely yes or no. Reviewing a dry record we cannot discern the weight to be given testimony; this is for the trial court. The court found a 13-year-old court record more reliable than this testimony. The trial court properly considered the 13-year lapse of time and the petitioner’s seif interest, and had the right to — and did — disbelieve the petitioner. Hamel v. State, 508 S.W.2d 288[6-8] (Mo.App.1974). No error appears in the trial court’s denial of petitioner’s point that he had no counsel when he entered his four guilty pleas in 1961. Petitioner’s first point is denied.

We treat petitioner’s second and third contentions together. These are that the trial court erred in ruling against his contentions of ineffective assistance of counsel and that his 1961 pleas were entered unknowingly, unintelligently and involuntarily-

At his evidentiary hearing, the petitioner testified that after his arrest in 1961 the police beat him and he confessed because the police told him the beating could go on all night. He further testified the prosecutor offered to recommend a sentence of seven years in exchange for his plea of guilty but that the court sentenced him to twelve years. He testified that if counsel was appointed he was not aware of it. He also testified that when his pleas of guilty were entered the court did not advise him of the range of punishment; that he was waiving his right to appointed counsel; that the State had to prove its case beyond a reasonable doubt; that he had a right to withdraw his plea if the sentence was greater than that recommended by the prosecutor; he said he did not inform the court of the seven-year recommendation because he felt it would do no good once he had signed “[his] papers.”

We follow two principles in assessing the trial court’s denial of post-conviction relief. First, the petitioner had the burden of proof to establish his allegations by a preponderance of the evidence. Howard v. State, 493 S.W.2d 14[5] (Mo.App.1973). Second, it was for the trial court to weigh and it had a right to reject, as it did, the petitioner’s testimony. This applies even though there was no evidence to the contrary. See Shoemake v. State, 462 S.W.2d 772[1 — 4] (Mo.1971).

In denying relief the trial court found that “petitioner’s credibility lacks reliability when considered in the background of his extensive familiarity with criminal involvement, arrest procedures, his previous experience with the operations of the circuit courts of the State of Missouri, and in view of the additional experience the petitioner had had with juvenile proceedings.”

Following the instant evidentiary hearing the trial court ruled on this, finding “ . Accordingly, the Court finds that there was a formal opportunity for the petitioner to have attacked his 1961 convictions before a court of law in the year 1968. The Court feels that it would be incredible to now credit the defendant’s assertions in the fact of his inferentially voluntary confession that he had been so convicted of four prior felonies in 1961. . . . At no time during his testimony did the defendant at the 1968 trial, the petitioner here, offer any suggestions or statement to the Court other than he had pleaded guilty to these charges and was in fact responsible under the law for his activities in those four prior felony cases. Accordingly, the Court discredits the petitioner’s evidence to the effect that he was ever afforded any opportunity to do anything about the Court’s action in 1961.” The Court found it “incredible to believe that the defendant sat in the courtroom in 1968 and participated in making a record of his guilt in those four prior felonies and now requests this Court to accept his contentions of complaint about the direction, manner and method of dealing with his pleas in the year of 1961.”

The trial court’s denial of petitioner’s writ of error coram nobis was not clearly erroneous.

Judgment affirmed.

KELLY and STEWART, JJ., concur.

      . Judgment affirmed, State v. Cannon, 465 S.W.2d 584 (Mo. banc 1971).

      . Plea proceedings in 1961 did not have to be transcribed and filed and by 1974 the court reporter’s notes were lost.

      . In Hamel v. State, 508 S.W.2d 288[6-8] (Mo.App.1974), we held “the trial court also had the right to consider the lapse of time in determining the good faith and credibility of the appellant who was seeking the post-conviction relief.”


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Wesley NELSON, Defendant-Appellant.
    No. 35990.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 16, 1975.

      William J. Shaw, Public Defender, Timothy Braun, Mary E. Fiser, Asst. Public Defenders, Clayton, for defendant-appellant.
    John C. Banforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   KELLY, Judge.

James Wesley Nelson, the appellant, was convicted in the Circuit Court for St. Louis County, on two counts of Robbery in the First Degree. Count two alleged and proved that the robbery charged therein was perpetrated by means of a dangerous and deadly weapon. §§ 560.120 and 560.135 RSMo 1969. He was sentenced to a term of seven years on the conviction under Count I and ten years on the conviction under Count II of the information in custody of the Missouri Department of Corrections, each to run concurrently with the other. This appeal followed.

Appellant does not contest the sufficiency of the evidence to support his conviction on the charges but espouses two grounds for reversal thereof. His first complaint is the failure of the trial court to sustain his challenge to the jury panel because of the absence of any Blacks thereon, which he contends prejudiced his Sixth Amendment rights to an impartial trial by a jury of his peers. The second ground for reversal is the action of the trial court in overruling his motion for new trial on the basis of what he contends was newly discovered evidence unavailable at the time of trial and which would have established his innocence. We affirm.

The evidence on both Counts is that on July 23, 1973, appellant and two others— another Black man and a Black woman— entered the Pick-N-Save Grocery Store on Natural Bridge Road in St. Louis County, Missouri, and after one of the two men— the taller of the two — displayed a gun, appellant — the shorter of the two men — and the woman, went to the cash register at the check-out counter where the woman removed the money contents of the cash register drawer. Although it was later established how much money was taken, no witness testified to this amount. While the robbery of the grocery store was in progress, Wyllis Lennon, a customer in the store at the time, became aware of that fact, was then ordered by the appellant who was displaying a gun, to come over to where the appellant was standing, and when he arrived there, Mr. Lennon was ordered to lie down on the floor. While in that position his wallet containing approximately $250.00 was removed from his pocket. The three robbers then ran from the store and fled the scene. Two of the witnesses — Mr. Eugene Moore, the manager of the store, and Wyllis Lennon — identified the appellant at trial as the shorter of the two Black males who participated in the robbery. The third witness, Dorothy Waite, testified that appellant’s face resembled the shorter man she saw taking part in the robbery, but she testified that she could not say positively it was he.

Appellant presented alibi evidence although he himself did not testify. The jury denied the alibi testimony credibility.

Appellant’s counsel called attention of the trial court to the composition of the jury panel prior to the commencement of the voir dire examination for selection of the jury to try the cause and pointed out that there was no Black among the 34 persons comprising the jury panel. The trial court stated that he would take judicial notice of that fact. A motion to discharge the panel and a request that a new panel, more representative of a cross-section of the inhabitants of St. Louis County and containing some Blacks be brought to the courtroom was made of the trial court. The motion and request were both overruled. Thereupon defense counsel moved for a mistrial and this too was denied. Voir dire examination of the jury panel commenced and a jury consisting of twelve jurors plus one alternate was selected from the 34 prospective jurors. The jurors were then empanelled and the cause proceeded to trial. No further objections were made to the make-up of the trial jury until raised in the motion for new trial filed by the appellant following the jury verdict. There the point was raised as a violation of the appellant’s . rights guaranteed by the Sixth Amendment to the United States Constitution to a trial by a jury of his peers representative of a cross-section of the inhabitants of the community. This is the point we shall consider on appeal.

Appellant cites as authority a line of cases commencing with Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879) for the principal that a state conviction cannot stand if it is based on the verdict of a petit jury from which Blacks were excluded by reason of their race because of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Since Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) the Sixth Amendment right to a trial by a petit jury has been made applicable to state trials by the Due Process Clause of the Fourteenth Amendment, and it is now clear that a defendant in a state criminal prosecution, regardless of his race, is constitutionally endowed with standing to challenge the system used to select the petit jury by which he was tried and convicted on the ground that members of any race were excluded arbitrarily or in a discriminatory manner therefrom by reason of his Due Process rights guaranteed by the Fourteenth Amendment to the United States Constitution. Peters v. Kiff, 407 U.S. 493, 504[2], 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972).

Appellant made no effort to adduce any evidence in the trial court concerning the manner or method by which the jury panel afforded him was selected or chosen either at the time he made his initial objection to the composition of the jury panel nor in support of this point as presented in his motion for new trial on those grounds. He rested his point there, as he has here, on the sole basis that the absence of Blacks from the jury panel from which the petit jury was selected to try his case, created a presumption that their absence was due to discrimination by reason of race and it was then the burden of the State to reverse that presumption. In support of his argument he relies on Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) and Avery V. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). Both of those cases were decided in the context of evidence clearly establishing the discriminatory practices of Georgia jury commissioners whereby Blacks were excluded from serving on both grand and petit juries in that state. Whitus, supra, l.c. 385 U.S. 550, 87 S.Ct. at 646, held that the burden was on the petitioner in a habeas corpus proceeding “to prove the existence of purposeful discrimination,” i. e., to make a prima facie showing, and once this was done, the burden shifts to the respondent to overcome the prima facie case made by the petitioner. In Avery, supra, the record contained evidence adduced in the trial court by the defendant in support of his challenge to the array of the petit jurors elected to try his case on the grounds of discrimination in the selection process and the use of different color tickets for Black and White citizens whose names were taken from the county tax returns and then placed in the jury box from whence the array was picked. These circumstances taken together with the fact that there was not a single Black among the panel of sixty jurors in the array was the basis for the court’s conclusion that a prima facie case of discrimination had been established by the defendant, that the burden then shifted to the prosecution to overcome that prima facie case, and in view of the evidence in the record, the state had failed to meet its burden.

Because of the absence of any evidence whatsoever as to the manner or method by which the thirty-four member jury panel in this case was selected, we find that those cases are not controlling here, and that the appellant did not make a prima facie case in the first instance so that the burden never shifted to the state to overcome a prima facie case of discrimination in the selection of the jury panel afforded defendant. We find no error and hold that on the basis of the record before it the trial court correctly denied appellant’s motions and request for mistrial.

Appellant’s second point is that the trial court erred in overruling his motion for a new trial on the grounds of newly discovered evidence which was not available to him at the time of trial and which would establish his innocence of the charges for which he was convicted.

An evidentiary hearing in support of this point as raised in appellant’s motion for new trial was held in the trial court prior to the ruling on his motion for new trial. One witness, Jerome Whitfield, was produced and gave testimony in support of the motion. This witness’ testimony, reduced to its essentials, was that he and another man known to him as “John Doe” had perpetrated the robbery of the Pick-N-Save Grocery Store on the 23rd of July, 1973; that appellant did not participate in the robbery; that between the time he had pleaded guilty to the robbery and while a pre-sentence investigation was being conducted, he had been asked by the appellant to testify on behalf of the appellant, but he had refused to do so for the reason that if he did so he feared he might thereby “blow” whatever chance he had of making probation. He did not testify at the appellant’s trial. He was not granted probation. According to this witness he met “John Doe” only a couple of days before the holdup and he knew appellant for only 5 to 6 days prior to the robbery. Both he and “John Doe” had been to the appellant’s home earlier the day of the robbery. He did not know where “John Doe” lived nor had he seen him since the day of the robbery. On cross-examination the witness testified that if he had been subpoenaed by the appellant to testify he would have claimed his Fifth Amendment rights but if the trial judge had ordered him to testify he would have done so and would have told what occurred at the grocery store the day of the robbery. To the best of his knowledge “John Doe” had not been taken into custody for this robbery; neither had the woman who was also a participant.

Appellant relies on State v. Harris, 413 S.W.2d 244 (Mo.1967). Harris held, among other things, that for an appellant to obtain a new trial on the grounds of newly discovered evidence he must prove: (1) the evidence has come to his knowledge since the trial, (2) it was not owing to his want of due diligence that he did not discover it sooner, (3) that the evidence is so material that it would probably produce a different result on retrial, and (4) that it is not cumulative alone or merely serves to impeach the credibility .of the witnesses against him. Duncan v. State, 520 S.W.2d 123, 124[4] (Mo.App.1975) has reiterated these criteria. By his own evidence appellant demonstrates that the evidence offered in support of his motion for new trial on the ground of newly discovered evidence does not meet the Harris criteria. His own witness testified that appellant requested that he testify in his behalf. Are we to conclude from this evidence that the appellant did not know prior to trial when this request was made what this witness’ evidence would be? Appellant’s counsel took the stand and testified that the appellant was aware of the fact that Mr. Whitfield would have testified at his trial if the presentence investigation was not hanging over his head at that time. The defense made no attempt to subpoena the witness nor did it at any time request a continuance for the purpose of obtaining his testimony. Furthermore, the brazenness of this witness in identifying his alleged accomplice as “John Doe” is a sufficient basis, in our opinion, for the trial court to disregard, in its entirety, his testimony and to conclude that this evidence if offered in a new trial would not produce a different result. For another ease where a similar effort to set aside a conviction on these grounds failed, see State v. Stegall, 485 S.W.2d 414, 416[1] (Mo.1972).

We hold that the trial court did not err in denying appellant’s motion for new trial on the grounds of newly discovered evidence.

We have examined those portions of the record as required by Rule 28.02 and find them to be sufficient.

We affirm.

CLEMENS, P. J., and STEWART, J., concur.

      . Appellant, for the first time, in the Argument portion of his brief in this court argues that rights guaranteed to him by Art. I, Sec. 18(a) of the Constitution of the State of Missouri, 1945, were violated for the same reasons his federally guaranteed constitutional rights were allegedly violated. He has, therefore, failed to preserve this for review in this court by his failure to raise it in his motion for new trial. Rule 78.07 V.A. M.R. However, for the same reasons we have denied his claim of a violation of his Sixth Amendment rights we would deny this claim had it been properly preserved.

      . Peters v. Kiff, supra, was not decided on the basis of Duncan v. Louisiana, supra, because Peters’ indictment by the grand jury, his trial and conviction by the petit jury preceded the Duncan decision which was held to apply retrospectively only in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). Peters rested on the Due Process Clause of the Fourteenth Amendment alone.


text:
    Marion DOUGLASS and Napoleon Douglass, Plaintiffs-Appellants, v. MISSOURI CAFETERIA, INC., d/b/a Miss Hullings Cafeteria, Inc., Defendant-Respondent.
    No. 35939.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 16, 1975.
    Howard, Richardson & Edwards, Raymond Howard, Jr., St. Louis, for plaintiffs-appellants.
    Dolgin, Juncker & Beilenson, Joseph J. Dolgin, Clayton, for defendant-respondent.
   KELLY, Judge.

Marion and Napoleon Douglass, plaintiffs-appellants, sought damages against defendant for Mrs. Douglass’ personal injuries sustained when she was on defendant’s premises and for Mr. Douglass’ loss of consortium and incidental monetary losses sustained as a direct result of his wife’s injuries. The suit was instituted by the filing of plaintiffs’ (as they shall hereinafter be referred to) petition on October 27, 1971, and this was superseded by a First Amended Petition filed on October 24, 1972. The gist of plaintiffs’ cause of action is that while Mrs. Douglass was on the premises of the defendant on May 22, 1970, as a business invitee, and “as plaintiff was descending the front stairs” she tripped over a piece of metal stripping located at the threshold of a doorway causing her to fall on the floor and “down the steps” by reason of the negligence of the defendant, and that she thereby sustained injuries to her person and was caused to incur bills for medical treatment and hospitalization as well as loss of earnings. Plaintiff Marion Douglass sought $100,000.00 damages in Count I of her First Amended Petition and Napoleon Douglass $35,000.00 damages in Count II of his First Amended Petition. A jury trial was had and plaintiffs were awarded damages of $15,000.00 on Count I of their petition and $500.00 on Count II of same. Defendant filed a motion for new trial alleging as grounds therefor the following which are, for the purposes of clarity, numbered as they appeared in the motion for new trial, omitting those grounds not relevant to a decision in this case:

2) refusal of the trial court to permit defense counsel to use certain allegations in plaintiffs’ First Amended Petition for the purposes of cross-examining Mrs. Douglass,
3) refusal of the trial court to admit into evidence plaintiffs’ First Amended Petition for purposes of impeaching Mrs. Douglass’ testimony concerning how the accident occurred and the extent of her injuries,
5) refusal of the trial court to strike all evidence of medical bills offered by the plaintiffs because there was no evidence that said bills were reasonable and necessary,
8) error in permitting a doctor, over objection, to read to the jury an x-ray report of a hospital contained in his files,
12) error in giving and reading to the jury MAI 4.01 on the grounds that it was not supported by the evidence,
16) error in refusing to permit the defendant to introduce into evidence and read to the jury excerpts from letters of plaintiffs’ attorney re medical expenses and loss of earnings as admissions of the plaintiffs, and
22) misconduct on the part of two jurors who, during the course of the trial, made separate visits to the premises of the defendant to inspect the metal stripping alleged by the plaintiff Mrs. Douglass to be the cause of her fall and reporting to the jury by one of these jurors his findings in this respect during the jury’s deliberations.

Defendant attached to this motion affidavits from each of the jurors in support of this ground number 22. An evidentiary hearing was conducted in support of the motion whereupon the two jurors who had visited the premises and viewed the metal strip over which plaintiff allegedly tripped, testified without objection.

In due time the trial court denied defendant’s motion for judgment on Counts I and II but sustained its motion for new trial on all of the grounds aforementioned and set aside and vacated the judgment in favor of both plaintiffs. The plaintiffs filed their notice of appeal and this appeal followed.

In this court the plaintiffs have briefed two contentions:

1. the trial judge did not err in denying the defendant the right to cross-examine the plaintiff, Mrs. Douglass, on her First Amended Petition nor in permitting defendant’s counsel’s request to read to the jury said petition for the reason that it was not abandoned;
2. the trial court did not err in admitting into evidence plaintiff’s medical expenses and instructing the jury regarding her future damages because there was sufficient evidence to support a fair inference that plaintiff’s medical expenses were necessarily incurred and would reasonably incur in the future.

These are directed at grounds 2, 3, 5 and 12 of defendant’s motion for new trial. She has failed to brief any of the other grounds upon which the trial court granted the defendant’s motion for new trial, contending that “they do not appear to be of sufficient merit.”

In reviewing the action of a trial court in granting a new trial, an appellate court is more liberal in upholding the grant of a new trial than it would be had the motion been denied. Liberty Loan Corp. of Antioch v. Brown, 493 S.W.2d 664, 685[1] (Mo.App.1973). See 3A Mo.D. Appeal & Error 977(3). The reason behind this distinction was stated in Boyer v. Oldham, 209 S.W. 617, 618 (Mo.App.1919) as follows: “This rule is founded on the distinction between granting and refusing a new trial. In the former instance justice will yet be done, while in the latter there is no other relief.” The presumption is always in favor of the correctness of the rulings of the trial court and it has committed to it much discretion in the matter of granting a new trial. Hoepper v. Southern Hotel Co., 142 Mo. 378, 44 S.W. 257, 259 (1898). The court in Hoepper also pointed up that an appeal from an order granting a new trial involves the correctness of the order and nothing more, and that in order to sustain the order, in case the new trial was not properly granted for the reasons given by the trial court, the reviewing court could inquire whether or not the new trial was properly granted upon some other ground assigned in the motion for new trial. 44 S.W. 1. c. 260[2]. That this is still the law today is evidenced by Davis v. Perkins, 512 S.W.2d 868, 870[1] (Mo.App.1974), and Vaughn v. Ripley, 446 S.W.2d 475, 479[5] (Mo.App.1969).

One of the grounds for granting the defendant a new trial was the misconduct of two of the jurors in visiting and viewing the scene of the plaintiff’s fall during the course of trial and for the purpose of assisting them in judging the case and then talking about it with the other jurors during the deliberations of the jury prior to the return of their verdict into court. Plaintiff’s counsel did not brief this point because he takes the position that since one of these two jurors joined the other eight in returning the verdict for his client and the other did not that this “represented a ‘mex-ican stand-off.’ ”

We are not here confronted with the question whether a juror may be heard to impeach the verdict of the jury of which he was a member, because the evidence in support of the jurors’ misconduct came in without objection. As defendant contends, this case is controlled by Middleton v. Kansas City Public Service Co., 348 Mo. 107, 152 S.W.2d 154[4] (1941) and we hold therefore that the trial court did not err in granting defendant a new trial.

Because the other matters raised on this appeal by plaintiffs may not reoccur on retrial we leave them to another day and do not pass upon the issues raised in those points presented by the plaintiffs.

CLEMENS, P. J., and STEWART, J., concur.

      . We discern from the evidentiary hearing on Mrs. Douglass’ motion to appeal as a poor person, which was denied by the trial court, that Mr. Douglass died on January 10, 1974.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry Darnell LONG, Defendant-Appellant.
    No. 36587.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 16, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, Joseph W. Warzycki, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Timothy Verhagen, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant-appellant Larry Darnell Long was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon. The trial court found him to be a second offender and imposed sentence at fifteen (15) years imprisonment. He appeals. For reasons hereinafter stated we affirm.

Since appellant does not question the sufficiency of the evidence, only those facts necessary for the disposition of the points raised on this appeal need be related.

The evidence produced by the state reasonably supports the following statement of facts:

At approximately 4:26 P.M., on October 29, 1973, Melvin White, an employee of the AFCO Wholesale Grocery Company located at 5022 Martin Luther King Drive, heard a knock at the store’s rear door. Through a window in the door he could see two men standing outside. He called the manager, Frank Friedman, to let them in. Mr. Friedman admitted the two men and “they immediately pulled guns.” They directed Friedman and White to lie on the floor. Two other employees, James Lee and William Parker and some customers who were present were directed to the “counter area” and held there at gunpoint. One of the robbers, subsequently identified as defendant Long, was wearing a gray overcoat, a black hat, and was carrying a revolver. His accomplice, later identified as Rodney Jones, wore a black overcoat, a multi-col-ored hat, and was carrying an automatic pistol. The two men went through Friedman’s pockets and ordered him to give them money. Jones ordered Friedman to get up and marched him to the cash register area. The defendant guarded the others at the rear of the store. Jones took some money out of the cash register and then went through Friedman’s desk drawers, removing some money from Friedman’s wallet which was in one of the drawers. The defendant then forced Friedman to the warehouse area of the store where he was forced to lie down on the floor and was threatened with his life unless he gave them some more money.

At that point, Detective Anthony Pona entered the store and observed that there was a holdup in progress. Pona ordered the robbers to drop their guns, but instead they ran out the back door with Pona in pursuit. Pona chased the two through an alley, firing a couple of shots in their direction as they ran. At the mouth of the alley Jones and the defendant split up. Pona pursued the defendant without losing sight of him until he finally caught up to him at a nearby White Castle restaurant. Defendant dropped his revolver as he entered the White Castle building. At the trial Detective Pona testified that the revolver dropped by defendant was fully loaded and cocked when he found it. The state’s attorney asked Pona if the ammunition was live over defendant’s objection. Pona answered that the ammunition was live. Defendant’s basis for his objection was that only a firearms expert was qualified to answer that question.

While Detective Pona was in the process of apprehending the defendant, Patrolman Jerry Jones arrived at the AFCO store. He heard gunshots and then spotted Rodney Jones emerging from the alley. He chased Jones through the streets and apprehended him a- few minutes later. Both suspects were brought back to the AFCO store and were identified by Friedman and his employees. At the trial, Patrolman Jones was asked by the state’s attorney whether Rodney Jones, at any time after his arrest, stated to him that the defendant was not involved. Patrolman Jones answered that he had not. The defendant objected to the question and answer. The trial court initially sustained the objection on hearsay grounds. The defendant also pointed out that there had been no indication that the suspect Jones had been apprised of his Miranda rights at the time. The trial court subsequently reversed its decision and overruled the objection on the assurance that Rodney Jones was to testify later.

Testifying in his own behalf, the defendant stated that: (1) he was at the White Castle at approximately 4:30 P.M., on October 29, 1973, (2) he did not have a hat or coat on, (3) Detective Pona entered the White Castle with his gun drawn and arrested him while he was standing in line for food, (4) other officers standing outside gave him the gray overcoat and black hat and made him put them on, and (5) Detective Pona then escorted him to the AFCO grocery. Mary Long, the defendant’s mother, testified that defendant was living at home at the time of the robbery and that he did not, at that time, own a gray overcoat or a black hat like the one allegedly worn by him during the robbery. Rodney Jones testified that it was not the defendant, who participated with him in the robbery, but a friend of Jones’ named Kevin. On cross-examination, Jones was asked whether at any time after his arrest he told the police or any of the other people present at the grocery that defendant was not involved. Jones answered that the officers didn’t ask him any questions or give him any time to talk. Jones had previously pled guilty to a charge arising out of the robbery of the AFCO store.

In rebuttal, the State presented Margaret Bresnahan, the official court reporter, who had transcribed Jones’ guilty plea. Reading from the notes that she had taken on July 30, 1974, when Jones entered his plea, Ms. Bresnahan testified that after the Circuit Attorney had finished reading the facts which the State hoped to prove if the case went to trial, that Jones indicated that the facts were correctly stated. Among the facts read was the statement that Jones had committed the robbery along with Long. Ms. Bresnahan further testified that the trial judge then specifically asked Jones if he committed this robbery along with Larry D. Long, to which Jones answered in the affirmative.

When the trial began on September 24, 1974, the State introduced as its first witness William Swyers, a laboratory technician assigned to the Graphic Arts Section. Defendant objected to the testimony of Swyers on the ground that he had not been formally endorsed as a witness. The trial court overruled the objection and permitted Swyers to testify.

On this appeal, appellant raises four points: (1) that the trial court erred in denying defendant’s motion for a mistrial when the State opened its case with Mr. Swyers because Mr. Swyers was an unen-dorsed witness and defendant was prejudiced by the lack of endorsement, (2) that it was error for the trial court to overrule defendant’s objection to the prosecutor’s asking Patrolman Jones “whether he heard Rodney Jones state after his arrest that defendant Long was not his partner in the commission of the robbery,” because the question solicited hearsay testimony and the answer was prejudicial to defendant’s case, (3) that the trial court erred in overruling defendant’s objection to the testimony of Detective Pona that the gun allegedly used by the defendant “contained live ammunition and was a deadly weapon,” because these subjects were not susceptible of opinion testimony and defendant was prejudiced by the testimony, and (4) that it was plain error for the trial court to “comment on the evidence to the effect that the jurors themselves knew the ammunition was live,” because “this concerned a matter directly in issue” and “it was highly prejudicial to the defendant.”

In his first point, appellant contends that he was prejudiced by the failure of the State to endorse Mr. William Swyers as a witness as required by Supreme Court Rule 24.17. It appears from the record that on September 16, 1974, eight (8) days prior to the trial, the State endorsed as a witness “Technician, Graphic Arts Section Wilbert Shatmer.” On September 24, 1974, the State began its case by calling as a witness Mr. William Swyers who is also a graphic arts technician with the St. Louis Police Department. Mr. Swyers was to testify concerning two diagrams he drew of the scene of the crime and the surrounding area. Defense counsel objected to this witness on the grounds that he had never been formally endorsed. In the colloquy which followed at the Bench, defense counsel admitted several times that he was aware of the content of the testimony that was to be presented by Mr. Swyers and was not surprised by the fact that the State was going to “put a plat man on.” Defense counsel further admitted that he had never made any attempt to contact anyone from the Graphic Arts Section including Wilbert Shatmer. Defense counsel maintained that the basis of the objection was that he believed Wilbert Shatmer was going to testify and the man in fact introduced, Mr. Swyers, was not an endorsed witness. The court overruled the objection.

Rule 24.17 provides that the names of all material prosecution witnesses shall be endorsed on any indictment or information filed. The names of other witnesses may be added at any time upon order of the court and after notice to the defendant or his attorney. There is no doubt that the trial court has broad discretion in permitting the endorsement of the names of additional witnesses, State v. Thost, 328 S.W.2d 36, 38 (Mo.1959), and a judgment of conviction will not be reversed because of a late, irregular or imperfect endorsement absent an abuse of that discretion. State v. Strawther, 476 S.W.2d 576, 579 (Mo.1972); State v. Fraley, 369 S.W.2d 195 (Mo.1963) and State v. Whaley, 512 S.W.2d 431 (Mo.App.1974).

In State v. Fraley, supra, the trial court permitted the vice president of a bank to testify for the State although his name was not endorsed on the information that was filed. The record in that case indicated that five (5) days prior to trial the prosecutor, by leave of court, endorsed “Cashier, American National Bank, 6637 S. King-shighway” on the information. The Missouri Supreme Court ruled that although the endorsement of a witness by the title of the office he holds in an organization and not by name was irregular inasmuch as the defendant had not complained of the omission of the name and did not attempt to discover the name of the proposed witness and because the bank vice-president who did testify, though not a “cashier,” could be expected to have as much knowledge of the particular facts as a cashier, permitting him to testify was not an abuse of discretion.

In State v. Whaley, supra, the information referred to a witness only by his middle and surnames. This court found no abuse of discretion on the part of the trial court in permitting the witness to testify where the defendant failed to prove that he was surprised by the testimony or demonstrate any prejudice by such testimony. In so ruling, we rejected the defendant’s position that imperfect endorsement of a witness rendered that witness unendorsed and, more importantly, we held that “. . . the simple allegation that an unendorsed witness was allowed to testify is not sufficient to warrant a finding of reversible error by the trial court.”

We find no abuse of discretion in permitting William Swyers to testify concerning two diagrams which he drew of the scene of the crime and the surrounding area. The defendant was aware that a representative of the Graphic Arts Section was going to testify and was also aware of the content of the testimony that was to be presented. Although Wilbert Shatmer was endorsed as the Graphic Arts Technician who would testify at trial, defense counsel admitted that he had not made any attempt to contact Mr. Shatmer or anyone else from the Graphic Arts Section prior to trial. Furthermore, we point out that it was Mr. Swyers who prepared the diagrams of the scene of the crime and the surrounding area. We therefore, fail to see how defendant has been prejudiced by the fact that it was Swyers and not Shatmer who testified concerning these diagrams. Under the circumstances, in the absence of surprise or prejudice, we find no abuse of discretion in permitting Mr. Swyers to testify.

Appellant’s second point is not so easily disposed of. At trial, on direct examination, the prosecutor asked Officer Jerry Jones whether Rodney Jones, the alleged accomplice of the defendant whom Officer Jones arrested shortly after the robbery, stated at any time after his arrest “that Mr. Long was not the individual with him at the time of the holdup. . . . ” The witness replied “No.” Defense counsel objected and the court sustained the objection. A discussion at the Bench followed. The trial court indicated that it had sustained the objection on hearsay grounds. Thereafter, upon the “assurance” that Rodney Jones was going to testify later, the trial court reversed its ruling and overruled the objection.

On this appeal, appellant contends in this regard that (1) “the question solicited hearsay testimony” and (2) “the answer was highly prejudicial to the defendant.” Thus, the only objection to the testimony which appellant has preserved, from the trial, through his motion for new trial and on this appeal is the hearsay objection.

We are in agreement with appellant to the extent that he contends that the question asked of Officer Jones solicited hearsay testimony. The only fact established by the question and answer was that Rodney Jones was silent concerning the complicity of the defendant in the robbery. Evidence of Rodney Jones’ silence in this regard was being offered in order to take advantage of the inference that if Jones did not verbally exculpate the defendant, then defendant must, in fact, have been his accomplice. Thus, viewed in the context of the prosecutor’s question, Jones’ silence was presented as an out of court assertion that the defendant was, in fact, a participant in the robbery. Viewed in this light, we cannot say, as respondent urges, that the evidence of Jones’ conduct (i. e., silence) while returning to the scene “was elicited solely to prove the fact of its occurrence.” Rather, we conclude that this evidence was offered to prove the truth of the matter asserted and in this vein must be regarded as hearsay. Thus, it was error to admit such testimony into evidence.

We turn now to the question of whether the admission into evidence of this hearsay testimony “was [so] highly prejudicial to the defendant” as to constitute reversible error.

The objection to the admissibility of hearsay testimony stems from its general unreliability. The policy reasons behind the exclusion of such evidence are, generally speaking (1) that there is no opportunity for cross-examination, (2) that the statements offered were not made under oath, and (3) the jury has no opportunity to judge the credibility of those making the statements.

At trial, Rodney Jones testified on behalf of the defendant that defendant was not his accomplice. Jones had previously pleaded guilty to a charge arising out of the robbery. On cross-examination, Jones was asked if he had ever told the police “or anybody else” that defendant was not his accomplice and he replied that he had not. Jones explained that the police did not give him the opportunity to say anything. This testimony was not objected to. Thus, Rodney Jones’ recollection of his conduct while returning to the scene of the crime corroborated the testimony previously given in this regard by Officer Jones that Rodney Jones at all times after his arrest remained silent concerning the complicity of the defendant in the robbery. The fact that Rodney Jones testified to this effect while under oath, subject to cross-examination and under circumstances such that the jury could judge his credibility seems to cure any defect in the testimony of Officer Jones arising out of the unreliability of the evidence. While we decline to hold that the technical impropriety in admitting Officer Jones’ hearsay testimony was erased, the same facts having been elicited by other and competent evidence, the appellant was not thereby prejudiced.

Thirdly, appellant contends that the trial court erred in permitting testimony from one of the arresting officers (Detective Pona) to the effect that the gun used by defendant was a dangerous and deadly weapon and was loaded with live ammunition. Essentially, appellant complains that Detective Pona was permitted to give his opinion regarding the dangerousness of the gun under circumstances which did not lend itself to opinion testimony. Whether Detective Pona’s testimony was in fact an opinion concerning the dangerousness of the gun used by defendant in the robbery is of no consequence. It was sufficient for the State to prove that the robbery was accomplished by the use of a gun. State v. Payne, 452 S.W.2d 805, 808 (Mo.1970). A gun in and of itself is considered a dangerous and deadly weapon whether it is, in fact, operative as a firearm or not. See State v. Dorsey, 491 S.W.2d 301 (Mo.1973). Thus, we conclude that, inasmuch as the issue of the dangerousness of the weapon was not before the jury, Detective Pona’s testimony concerning the weapon was not prejudicial and a reversal is not required.

Finally, appellant contends that the trial court erred in making the comment in the presence of the jury that “the jurors themselves know it [the ammunition found in the defendant’s gun] is live ammunition.” This assignment of error has not been properly preserved for appeal. The record discloses that no objection was made to the court’s comment during trial, nor is there any claim of error covering such comment in appellant’s motion for new trial. Appellant urges, however, that we review this point as “plain error.” Supreme Court Rule 27.20(c), Y.A.M.R., provides that plain errors may be reviewed, though not properly preserved, when the court deems that “manifest injustice or miscarriage of justice” has resulted therefrom.

As was pointed out previously, the question of whether the ammunition found in defendant’s gun was live or expended is immaterial to the issue of whether a gun is a dangerous and deadly weapon, as “. a pistol is universally classified as a dangerous and deadly weapon even though not loaded.” State v. Dorsey, supra, at 304. Therefore’, while the court’s comment may have led the jury to believe that the defendant’s gun was loaded with live ammunition this cannot reasonably be said to have influenced the jury to the detriment of the defendant. See State v. Brotherton, 266 S.W.2d 712 (Mo.1954) and State v. Hopkins, 500 S.W.2d 264 (Mo.App.1973).

Moreover, in light of the overwhelming evidence against the defendant, including positive identification by four (4) eyewitnesses, we cannot say that manifest injustice or a miscarriage of justice has resulted from the trial court’s comment on an immaterial issue.

We rule this point against appellant.

We have reviewed the record and considered the authorities cited by both appellant and respondent and, finding no prejudicial error, we affirm the judgment of the trial court.

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . Mr. Friedman testified that the front and back doors were normally kept secured and a person had to identify himself before he could gain entrance.

      . In the discussion at the Bench following defense counsel’s objection, the prosecutor indicated that he did not know which of the two men, Shatmer or Swyers, was going to make the drawings, “so I put down technician.” In his brief, appellant admits that,
      “. . . Apparently, the Assistant Circuit Attorney had mistakenly endorsed the name of one Wilbert Shatmer, another technician in the graphic arts section, as the witness who was to testify about the crime scene.

      . Defense counsel interjected that he would extend his objection to the ground that there was no showing that Rodney Jones . was given any rights before he made this statement.” The court rejected this basis stating “those rights are personal to the individual . .”

      . In the discussion that took place at the Bench, the prosecutor indicated that Rodney Jones was going to testify later on during the trial. The trial court then asked defense counsel if Jones would, in fact, testify. Defense counsel replied, “He may.” The prosecutor then stated, “He did last time,” apparently referring to defendant’s previous trial for the same robbery, which resulted in a hung jury. The trial court then overruled the objection.

      . We have some question as to the probative value of this evidence in light of the fact that Rodney Jones had a constitutional right to remain silent following his arrest. However, we need not consider this matter on this appeal inasmuch as defendant did not challenge the relevancy of the evidence either at trial or in his motion for new trial. See McCormick on Evidence, § 184, pp. 433-434 (2d Ed. 1972).

      . We express no opinion as to the propriety of attempting to impeach a defense witness in the State’s case-in-chief prior to the defense witness testifying.


author: DOWD, Judge.

text:
    George LAMB, Plaintiff-Appellant, v. E. J. HEILIGERS and Gilbert Buick, Inc., a corporation, Defendants-Respondents.
    No. 36330.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 16, 1975.

      Howard, Richardson & Edwards, St. Louis, for plaintiff-appellant.
    George F. Heege, Clayton, for defendants-respondents.
   DOWD, Judge.

Plaintiff appeals from a judgment entered after a jury found in favor of the defendants in an action for personal injuries arising from an automobile collision. We affirm.

The plaintiff claims that the trial court erred in: (1) allowing defendants’ investigator to explain measurements of damages on photo-copies of the autos involved; (2) in submitting a contributory negligence instruction; (8) in withdrawing the issue of lost wages from the jury; (4) in not permitting the plaintiff to call the defendant Heil-igers as an adverse witness; (5) in not permitting plaintiff’s witnesses to relate complaints relative to his injuries; (6) in not directing a verdict in favor of plaintiff; and (7) in failing to admonish defendants’ attorney.

On December 15, 1970, the plaintiff, George Lamb, stopped for a traffic signal in a line of traffic facing east on Gravois Avenue, west of the intersection of Grand and Gravois Avenues in the City of St. Louis. The defendant, Edward J. Heiligers, an employee for defendant Gilbert Buick, Inc., had stopped for a few moments behind plaintiff’s auto. As defendant Heiligers attempted to pass plaintiff on the left, the right side of defendant Heiligers’ auto scraped against the left side of plaintiff’s auto.

Plaintiff claims that defendant Heiligers carelessly drove his auto into the rear fender of the plaintiff’s Cadillac while plaintiff was stopped. Defendant claims that plaintiff allowed his (the plaintiff’s) auto to roll back as he lawfully attempted to pass. Pictures showed that the damage was mainly to the left side of plaintiff’s auto and to the right side of Heiligers’ auto.

Plaintiff testified that upon impact he blacked out for 2 or 3 seconds. After regaining consciousness he was beckoned by defendant Heiligers to proceed to a nearby parking lot. There the two men exchanged names and addresses. The police were not called. The autos were able to be driven from the scene. At the scene, the plaintiff made no complaints about being injured.

Dr. Vaughn C. Payne, who treated the plaintiff, diagnosed the plaintiff as having a severe whiplash injury to the neck, upper and lower back and aggravation of a spon-dylosis of the neck and back. He stated that spondylosis is a form of arthritis. Dr. Payne testified that it was his opinion that the injury was due to the December 15, 1970 accident, and that the aggravation of spondylosis was a permanent injury. Plaintiff’s counsel was permitted to read into the record, before the jury, the deposition' of Dr. Jacques P. Schaerrer, who was not made available for testimony at trial. It was Dr. Schaerrer’s opinion that the accident of December 15, 1970 caused the traumatic aggravation of the preexisting spon-dylosis. Plaintiff’s hospital bill was $860 and his doctor bill was $450.

Dr. Belmont R. Thiele, who examined plaintiff for the defendants testified that it was his opinion that the plaintiff’s arthritic changes were present on December 15, 1970, and were not the result of the accident.

Lela Lamb, wife of the plaintiff, Charles Jackson, plaintiff’s nephew, and Dorothy Jackson, wife of Charles Jackson, each testified about the plaintiff’s decrease in activity since December 15, 1970. Plaintiff’s counsel, referring to plaintiff, asked Mr. Jackson: “Q. Does he complain to you a lot?”, and to Mrs. Lamb: “Q. Has he been complaining more or less now, than he did immediately after the collision?” The court sustained objections to both of these questions as hearsay.

Plaintiff testified that on the day of the accident he was to start a new job as a custodian for the St. Louis Board of Education, but was unable to do so because of the accident. On cross-examination, however, plaintiff stated that he was unemployed on the day of the accident, and was looking for electrical parts. The testimony of Geraldine Tapp, who was in charge of hiring uncertified (non-teaching) personnel for the St. Louis Board of Education, is unclear as to the date a job was made available to Mr. Lamb. Of the two notations in her records, one says, “Hold. Going into hospital.”, and. is dated December 16, 1970. The second notation is to the effect that she wrote a letter to a lawyer saying she had called Mr. Lamb on December 15, 1970 concerning the job opening. This letter was dated December 21,1970. However, Ms. Tapp’s testimony in court shows that she is not sure when she called Mr. Lamb, but that it was “approximately” December 15, 1970. Mr. Lamb had been on the Board’s job waiting list for seven or eight months, and Ms. Tapp stated that she would not have known when she would have called him.

As part of the plaintiff’s case, plaintiff’s counsel read into the record portions of a deposition given by the defendant Heiligers. After reading the deposition, Mr. Heiligers was called as a witness by the plaintiff.

Thomas Aurelia; an investigator for defendants testified that he had gone to plaintiff’s residence to observe plaintiff’s auto on December 30, 1970, and January 19, 1971. Photographs of the car were taken by Mr. Aurelia at the December 30,1970 visit. Aurelia had taken the measurements of the damages to plaintiff’s auto. Mr. Aurelia was present when a fellow employee, who did not testify, took measurements of the damage to defendants’ auto. These measurements were incorporated into photocopies of the pictures of both autos. The court overruled the objection of plaintiff’s counsel to having Aurelia explain the measurements to the jury. Photocopies of both autos showing the measurements of the damages were admitted into evidence.

Included in the court’s instructions to the jury were instructions on contributory negligence (Instruction No. 6 — MAI 32.01, Modified); measure of damages instruction (Instruction No. 8 — MAI 4.01); and an instruction (No. 8a) withdrawing from the jury’s consideration the issue of plaintiff’s loss of wages from the Board of Education. The plaintiff’s objections to Instructions No. 6 and No. 8a were overruled.

Defendants’ attorney suggested to the jury during argument that the plaintiff had been referred to Dr. Payne by an attorney for plaintiff. The court sustained an objection to these remarks, and the jury was instructed to disregard the comment. The court did not admonish defendants’ attorney as was requested by plaintiff’s counsel.

Plaintiff’s first contention on appeal is that the trial court erred in permitting defendants’ investigator Aurelia to explain to the jury certain measurements of damages which were on the photocopies of plaintiff’s and defendants’ autos. Plaintiff argues that this testimony was hearsay and inadmissible' because the measurements were not made by Aurelia. However, the record shows that the measurements of the damages of plaintiff’s auto were made by Aurelia. Therefore, we are concerned solely with whether it was proper for Aurelia to explain a fellow employee’s measurements of damages on defendants’ auto.

We believe that the court properly permitted Aurelia to explain the measurements of damages on defendants’ auto. The pictures from which the photocopies had been taken had been identified by the witness as the basis of the photocopies and were themselves properly admitted. Aurelia had personally observed the auto and was present when the measurements were being taken by a fellow employee. Thus the explanation of the measurements which had been incorporated into the photocopies was a correct and accurate representation of the relevant facts personally observed by the witness. McCormick, Handbook of the Law of Evidence, 2d ed., p. 580. Mr. Aurelia’s availability to be cross-examined as to the circumstances of the taking of the measurements, which were observed by him, relieves one of the major objections to the hearsay rule. In Powell v. Kansas City Rys. Co., 226 S.W. 916, 923[4] (Mo.1920), the Supreme Court held that a physician could testify about the measurements taken by another physician, when the physician had observed the measurements being made. See also Greene County v. Hermel, Inc., 511 S.W.2d 762, 768[3] (Mo.1974) wherein a vice-president in charge of construction was allowed to testify about construction costs in tax assessment case; Willis v. Buchanan County Quarries Co., 218 Mo.App. 698, 268 S.W. 102, 105[8] (1924) in which a doctor was permitted to testify about analysis conducted in laboratory supervised by the doctor.

Plaintiff next contends that the court erred in submitting the contributory negligence instruction to the jury. The plaintiff contends that his auto was struck as the defendant Heiligers carelessly passed his auto on the left, while the defendants contend that the plaintiff’s auto rolled back as Heiligers tried to pass. Viewing the evidence in. a light most favorable to the defendants and the verdict, the conflict in the testimony presented a question for the jury to decide, as is ordinarily true for all questions of negligence. Schoessel v. Robertson, 480 S.W.2d 95 (Mo.App.1972); Cox v. Moore, 394 S.W.2d 65, 70[13, 14] (Mo.App.1965). Furthermore, we note that “the jury has the right to disbelieve the plaintiff even though his evidence is not rebutted.” Cox v. Moore, supra, at 70. The trial court did . not err in submitting the contributory negligence instruction to the jury.

Plaintiff next contends that the court erred in withdrawing from the consideration of the jury the issue of wages allegedly lost from the Board of Education. There is some question whether the lost wages were established with the requisite degree of reasonable certainty. Thienes v. Harlin Fruit Co., 499 S.W.2d 223, 229-30 (Mo.App.1973). However, we do not reach this issue, for the jury found against plaintiff on the issue of liability and thus did not reach the issue of damages. Gardner v. McGee, 505 S.W.2d 452 (Mo.App.1973); Haas Baking Co. v. Luzio, 512 S.W.2d 428, 431[7] (Mo.App. 1974). In this case the issue of fault was strenuously contested. Plaintiff testified that while he was stopped for a traffic light, the defendant Heiligers collided with the left rear fender of his auto. Defendant Heiligers, however, testified that the plaintiff’s auto rolled backwards while Heiligers was attempting to pass plaintiff’s auto on the left. The pictures of both autos appear to corroborate defendant Heiligers’ version. The pictures show a “scraping” type damage to the left side of plaintiff’s auto and a “scraping” type damage to the right side of Heiligers’ auto.

From the jury’s finding, which we must accept, it is obvious that the jury believed defendant Heiligers’ version, and, accordingly, returned a verdict for the defendants on the issue of fault and did not reach the issue of damages. Since the claimed error in this case relates to damages, we hold that the trial court’s withdrawal from the jury of the issue of lost wages, if error at all, was not prejudicial error. Haas Baking Company v. Luzio, supra; Gardner v. McGee, supra.

Plaintiff next contends the trial court erred in not permitting him to call defendant Heiligers as an adverse witness. At the time plaintiff called Heiligers as a witness, the defendants’ attorney objected on the grounds that “it is improper to call him [Heiligers] as his witness.”

The trial court, however, permitted plaintiff’s attorney to call Heiligers as his witness. The plaintiff then proceeded to briefly examine defendant Heiligers. The applicable statute is 491.030 RSMo 1969, which in part states:

“Any party to a civil action or proceeding may compel any adverse party . to testify as a witness in his behalf, in the same manner and subject to the same rules as other witnesses; provided, that the party so called to testify may be examined by the opposite party, under the rules applicable to the cross-examination of witnesses.”

The plaintiff has the right to call the defendant as his witness and is entitled to cross-examine him, § 491.030, and the plaintiff is not bound by the defendant’s testimony unless it is the only testimony in the case on that point. Frank v. Wabash Railroad Co., 295 S.W.2d 16, 22 (Mo.1956). Likewise, plaintiff has the right to introduce evidence contradicting that given by the defendant, but a party cannot directly impeach the credibility of his own witness even though the witness is the other party to the suit. State ex rel. State Highway Commission v. Davis, 466 S.W.2d 172 (Mo.App.1971); Wells v. Goforth, 443 S.W.2d 155 (Mo. banc 1969); Hutchinson v. Steinke, 353 S.W.2d 137, 146 (Mo.App.1962).

Here the trial court permitted the plaintiff to call the defendant Heiligers to the stand as a witness in his behalf. Likewise, the plaintiff had the right to cross-examine Heiligers and was not prohibited from so doing by the trial court. There was no error by the trial court.

Next, the trial court did not err in sustaining objections to plaintiff’s counsel asking the witness, Charles Jackson: “Does he [the plaintiff] complain to you a lot?”, and the witness Lela Lamb: “Has he [the plaintiff] been complaining more or less now than immediately after the collision?” Such questions do not meet the requirement that they be directed to “present, existing conditions so as to be the natural and spontaneous expression, of his [the ailing person’s] feelings at the time.” Kenney v. J. A. Folger & Co., 192 S.W.2d 73, 77[9] (Mo.App.1946).

Plaintiff next raises the issue whether the trial court erred in failing to grant his motion for a directed verdict at the close of all the evidence. In viewing the evidence in the light most favorable to the defendants we cannot say that a factual dispute is lacking to the extent that the evidence and the inferences to be drawn therefrom would require us to find for plaintiff as a matter of law. This is not such an unusual case as to warrant the exceptional measure of taking the fact-finding function away from the jury. Alaska Federal Savings and Loan Ass’n v. Hoffman, 485 S.W.2d 118, 120 (Mo.App.1972).

Plaintiff’s final contention is that the trial court erred in not admonishing defendants’ counsel, as requested, for suggesting that plaintiff had been sent to see Dr. Payne by an attorney for plaintiff. Here the trial court took corrective action in sustaining the objection and instructing the jury to disregard the remark. The matter of admonishing counsel is discretionary with the trial court. Hunt v. Hunt, 423 S.W.2d 682, 684[2] (Mo. banc 1968); Wilkins v. Cash Register Service Company, 518 S.W.2d 736, 753[25] (Mo.App.1975). We hold that the trial court did not abuse its discretion.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.

      . The court’s instructions included:
      Instruction No. 6
      “Your verdict must be for the defendants whether or not defendant E. J. Heiligers was negligent if you believe:
      “First, plaintiff allowed his automobile to move backwardly from a stopped position, and
      “Second, plaintiffs conduct as submitted in paragraph one was negligent, and
      “Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff might have sustained.’’
      Instruction No. 8
      “If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence.”
      Instruction No. 8a
      “The issue of the plaintiffs bed, chair, and loss of wages from the Board of Education is withdrawn from the case, and you are not to consider such evidence at arriving at your verdict.”

      . The exception to the ban against direct impeachment is where the adverse witness is confronted with his own prior inconsistent statement. Wells v. Goforth, 443 S.W.2d 155, 160 (Mo. banc 1969).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie WILLIAMS, Defendant-Appellant.
    No. 36616.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 16, 1975.

      Neal P. Murphy, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

The defendant was convicted by a jury of robbery in the first degree, § 560.120 RSMo 1969, and was sentenced by the court to twenty years imprisonment pursuant to the Second Offender Act, § 556.280 RSMo 1969.

The sufficiency of the evidence is not challenged. The facts can be stated very simply. Defendant was convicted of the robbery of Paul Bolduc, a Religious Brother from Maine, who was in St. Louis for four days in June 1974 to attend a conference. On June 23, 1974, Brother Bolduc went for a walk along Vandeventer Avenue in St. Louis. During his walk he stopped at a phone booth to look up an address in the telephone directory, and while in the phone booth the defendant brushed up against him. Brother Bolduc then told the defendant he would “move along” and the defendant could use the phone. Defendant grabbed for Brother Bolduc’s right wrist, but the Brother was able to pull away. Brother Bolduc then started to walk away, but the defendant followed right behind asking for money. Brother Bolduc gave the defendant some change, and then continued walking.

Brother Bolduc then saw the defendant pick up an iron pipe and come towards him. The defendant struck Brother Bolduc across the mouth, lip and cheek with the weapon. Brother Bolduc was then in a state of “fright and shock” and stated to the defendant: “Why did you hit me? I gave you some money.” Brother Bolduc then gave the defendant a ten dollar bill. The defendant then told the victim: “I’m going to kill you.” The defendant struck Brother Bolduc again, this time across the legs.

The defendant with an iron pipe in his hand was apprehended near the scene of the robbery. The defendant told the officer: “Yes, I had hit the gentleman in the mouth, but he owed me some money.” Defendant further stated that the victim owned a junk yard and that he worked for him.

Defendant’s first contention is that the trial court erred in overruling his objections to the testimony of Brother Bolduc concerning the physical injuries received at the time of the robbery. The defendant’s attorney objected to the victim relating that he was taken to the hospital where 25 to 30 stitches were taken in his lip and mouth. Defendant claims this testimony was “irrelevant as proof of other crimes (battery) and was calculated to invoke the sympathy of the jury.”

We first note that evidence as to the extent or effect of injuries received by the victim of a criminal assault or similar offense of violence (including robbery) has generally been held admissible because such evidence is relevant to an issue in a case involving physical violence. See Annotation, 87 A.L.R.2d 926 (1963), and cases cited therein. Missouri has followed this trend. In a rape case, for example, evidence of the type, extent of injury sustained, and medical treatment received is admissible to show the use of force and the extent of the violence. State v. Foster, 490 S.W.2d 662[5] (Mo.App.1973). In assault cases the extent of injury and the physical condition of the victim is admissible to show the nature and character of the assault. State v. Jackson, 500 S.W.2d 306, 311[10] (Mo.App.1973).

A material element of the offense of robbery in the first degree is the taking of property from the victim by violence to his person or by putting the victim in fear of some immediate injury to his person. § 560.120 RSMo 1969; State v. Haislip, 411 S.W.2d 81 (Mo.1967). Here the evidence was that the victim was in a state of “fright and shock” after being struck in the mouth with an iron pipe by the defendant. It was then that the victim gave money to the defendant. This certainly is relevant to prove that the robbery was committed by violence and that the victim was put in fear of immediate injury to his person. We further believe that proving the injuries sustained as a result of the violence is the best possible proof of the violence committed on the robbery victim’s person. This has been the holding in other jurisdictions. People v. Heller, 131 Ill.App.2d 799, 267 N.E.2d 685, 690 (1971); Levell v. State, 453 S.W.2d 831 (Tex.Cr.App.1970). People v. Hopkins, 29 Ill.2d 260, 194 N.E.2d 213, 216 (1963). We fully agree with the rationale of these decisions.

The victim’s testimony concerning the nature and extent of the injuries received during the robbery was properly admitted. Defendant’s first contention is rejected.

Defendant’s second contention is that the trial court erred in overruling his objection to the state’s cross examination of defendant with regard to his prior convictions. Defendant argues that since he brought out information of his prior crimes in a “truthful and accurate manner” on direct examination, the state had no right to introduce his entire criminal record again. Defendant contends the double mention of his crimes was presented to the jury not as an attack on his credibility, but rather “as character evidence to show that since defendant had committed earlier crimes of a similar nature, he probably committed this crime also.”

The prosecutor has a statutory right to attack a criminal defendant’s credibility by inquiring about his prior convictions when the latter testifies in his own behalf. § 491.050 RSMo 1969; State v. Lee, 492 S.W.2d 28[13] (Mo.App.1973). This form of impeachment, however, is limited to matters concerning the nature and number of the prior offenses; the prosecutor may not go into the details of the prior offenses. State v. Scott, 459 S.W.2d 321 (Mo.1970).

In this case the defendant on direct examination did not disclose all of his prior convictions, nor did he recount his prior offenses in an accurate manner. The prosecutor here was justified in questioning defendant about two prior offenses — a 1956 Illinois robbery conviction and a 1967 Oklahoma conviction for assault — that defendant had not mentioned on direct examination.

The remainder of the prosecutor’s cross examination concerning defendant’s prior offenses was an attempt to clarify for the jury the defendant’s inaccurate and often misleading direct testimony. (1) On direct examination defendant said he had not been convicted of a 1959 Iowa charge, but rather had pleaded guilty. Since the jury might reasonably believe that a guilty plea was not a conviction, the prosecutor attempted to clarify this conviction on cross examination. The defendant admitted the Iowa conviction, then volunteered the information that he had been placed on probation but had violated the probation within 24 hours “for no reason at all.” (2) On direct examination defendant admitted a 1965 Oklahoma conviction for “check.” The prosecutor later clarified this as a bad check conviction. (3) Defendant admitted a 1967 Louisiana conviction for “burglary, attempted burglary.” The prosecutor later had defendant explain that his conviction was not for both burglary and attempted burglary, but rather for attempted burglary alone. (4) Defendant then gave particularly confusing information about a 1971 Louisiana conviction: “I was tried for armed robbery, which it was — the verdict was returned attempted robbery, which I received two and a half years. I appealed it to the Supreme Court, which was overruled and I was released — ordered released by the Supreme Court of the United States.” On cross examination defendant said his conviction was for attempted robbery which conviction was overturned by the Supreme Court.

This detailed comparison of the defendant’s direct and cross examination shows the prosecutor did not impermissibly delve into the details of the prior convictions. The prosecutor’s questions clarified for the jury the defendant’s inaccurate and misleading direct testimony. If a prosecutor cannot correct or clarify a criminal defendant’s misleading and inaccurate statements about his prior crimes, then the prosecutor’s right to impeach him through his prior crimes is a hollow right. We believe the trial court properly overruled defendant’s objections to the prosecutor’s cross examination of defendant with regard to his prior convictions.

The defendant next contends the trial court erred in not giving his offered instruction A-l (MAI-CR No. 2.50) regarding his character. Defendant claims the prosecutor’s “improper” cross examination emphasis on defendant’s prior convictions had “the effect of casting improper inferences on defendant’s character.”

The first “Notes on Use” under MAI-CR No. 2.50 states: “This instruction must be given in all felony cases, whether requested or not, ‘whenever necessary,’ Rule 26.02(6), which means whenever there is evidence of defendant’s general reputation of good character.”

The second “Note” under MAI-CR No. 2.50 enumerates what does not constitute an attack on defendant’s character: “An attack upon the credibility of the defendant as a witness by proof of his reputation for truth or veracity or by cross examination or by proof of prior convictions does not constitute evidence putting the defendant’s character as a party in issue.” (Emphasis in original).

We believe the prosecutor’s review of defendant’s prior convictions was a legitimate exercise of his right to show prior convictions for the purpose of attacking defendant’s credibility. § 491.050 RSMo 1969; State v. Lee, supra. The prosecutor was not attempting to cast improper inferences on defendant’s character, and the trial court correctly refused to give defendant’s offered instruction.

Defendant’s final contention is that the trial court erred in overruling his objection to that part of the state’s rebuttal argument wherein the prosecutor commented on defendant’s failure to produce certain witnesses. The defendant contends the effect of the prosecutor’s remarks was to mistake the burden of proof.

During the state’s rebuttal argument the following exchange occurred:

“PROSECUTOR: We have a man who claims he was drinking with three or four other people, yet ladies and gentlemen, there isn’t one of those three or four people here.
“DEFENSE COUNSEL: I object to that. He knows full well the burden of proof lies with the State.
“THE COURT: State your objection.
“DEFENSE COUNSEL: It is improper final argument. He is commenting upon the burden of proof which the State of Missouri has.
“THE COURT: Objection overruled. Proceed.
“PROSECUTOR: The defendant is telling you he was out there with three or four other men. Where are those three or four other men? Where is the substantiation to his testimony? . . . ”

It was reasonable to conclude that the three or four men with whom defendant said he had been drinking on the day of the crime would have substantiated at least part of his version of the encounter with Brother Bolduc. The prosecutor may comment on the failure of the defendant to call a witness who would be expected to testify favorably to his case. State v. Jenkins, 516 S.W.2d 522, 528[19] (Mo.App.1974); State v. Barron, 465 S.W.2d 523, 529[8] (Mo.1971). Thus the trial court properly overruled defendant’s objection to the prosecutor’s remarks.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: SMITH, Chief Judge.

text:
    Nellie C. VORHOF, Plaintiff-Appellant-Respondent, v. Elmer E. VORHOF, Defendant-Respondent-Appellant.
    Nos. 35894-35897, 35908 and 36236.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 16, 1975.

      Hal B. Coleman, Clayton, for appellant.
    Murphy & McCarthy Associates P. C., Edward E. Murphy, Jr., Clayton, for respondent.
   SMITH, Chief Judge.

This matter reaches us on a series of cross-appeals arising from post-judgment actions in a divorce ease. While plaintiff wife has filed five appeals from orders quashing her attempts to obtain execution against defendant husband, the issue on appeal is the same — whether the court ordered or the parties contracted for alimony. Defendant’s cross-appeal is from the action of the trial court in ordering an income assignment against defendant and in favor of plaintiff “to satisfy defendant’s obligation to pay maintenance to plaintiff

The parties were divorced, after 32 years of marriage, in March 1958. The decree contained the following: “Plaintiff awarded alimony in the amount of $850.00 per month, commencing on the 15th day of March, 1958, and payable monthly thereafter. Stipulation and agreement dated January 28, 1958, and entered into by the parties, settling all of the property rights of the parties and providing for the future alimony of plaintiff, having been submitted to the Court when the cause was tried, the same is hereby approved by the Court. A copy of said Stipulation is identified, approved and ordered filed.”

The Stipulation referred to encompasses 10 pages of the transcript and contains seventeen separately numbered paragraphs. It contractually provides for disposition of the real estate of the parties and encumbrances thereon, repairs to that property, taxes on the real estate, agreement for payment of support “as provision in the nature of alimony” for wife, continuing support payments (reduced somewhat) after defendant’s death and until closing of his estate, a lump sum award to plaintiff from defendant’s estate, disposition of the personal property, payment of court costs and attorney’s fees and provision for payment of any tax deficiencies.

In August 1973, husband filed a motion to modify the divorce decree to reduce the amount of support for wife. Wife filed a motion to dismiss that motion based in part upon the contention that the Stipulation constituted a contract and was not subject to modification. The motion to dismiss was granted upon the sole basis “that alimony provided in decree of March 6, 1958, is contractual in nature.”

Four days after this order of the Court, husband moved to quash all executions and all garnishments on the basis that husband’s obligations were contractual in nature and that until reduced to judgment were not subject to execution. This motion was granted and wife appealed.

Since the notice of appeal was filed prior to Jan. 1,1974, the effective date of the Dissolution of Marriage Act, the law in effect at that time governs the appeal. Sec. 452.415(4) RSMo Supp. 1973. The language used there “the law in effect at the time of the order sustaining the appeal” was taken almost exactly from the Uniform Marriage and Divorce Act. There is _ no requirement in Missouri for a court to issue an order allowing an appeal. Appeal is generally a matter of right in Missouri. See Sec. 512.020 RSMo 1969. The appeal here was pending prior to January 1, 1974, and is governed by the law in effect prior to the new act.

The courts of this State have been perpetually troubled with the distinction between contractual support and decretal alimony. No useful purpose would be served in reviewing the variety of factual situations and tests applied in making such a determination.

Under the cases in Missouri, we have no hesitation in saying that the award to the wife was contractual in nature, not decretal. See North v. North, 339 Mo. 1226, 100 S.W.2d 582 (1936); Nelson v. Nelson, 516 S.W.2d 574 (Mo.App.1974). The stipulation here purported to cover all facets of the parties property rights. It included areas which could not have been decreed as part of the judgment by the court awarding the divorce. While wife characterizes the judgment as a consent decree, the power of a court in a divorce action was limited by the provisions of Sec. 452.070 RSMo 1969. That section specifically provided that the court “may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, . . . .” Delineating the judgment as a consent judgment does not alter the limits of the court’s power. Under Sec. 452.070 decretal alimony is subject to modification, whether decreed by consent or otherwise. Wife is estopped to now assert that the alimony was decretal. In successfully defeating husband’s attempts to modify the award, plaintiff contended and the Court held that the award was contractual in nature and not subject to modification. Decretal alimony is subject to modification without the consent of both parties; contractual support is not. Plaintiff is now precluded from asserting the award was decretal. See Wesson v. Wesson, 271 S.W.2d 214 (Mo.App.1954); Gunnerson v. Gunnerson, 379 S.W.2d 861 (Mo.App.1964). The trial court’s action in quashing the executions and garnishments was correct and is affirmed.

In January, 1974, plaintiff filed a motion in the original divorce action for an order requiring an assignment of earnings and income as provided by Sec. 452.350 RSMo Supp. 1973. This motion was sustained and defendant has appealed.

In ruling this question, we examine the court’s order on the basis that it orders under the new law an assignment of wages to enforce a contract for support of the wife entered into long before the effective date of the new law. Our ruling deals only with that fact situation. Plaintiff contends that a wage assignment is remedial in nature and therefore may be applied retroactively. A wage assignment is like a garnishment, it is a method to execute upon a judgment. See Commissioner’s Note to § 312 of the Uniform Marriage and Divorce Act which is the source of Sec. 452.350 RSMo Supp. 1973. Without in any way deciding whether it is available for contractual or decretal support under the new law or for enforcement of decretal alimony under the old law, it is not available for enforcement of a contract entered into before its effective date.

Under the law in force at the time of the contract between the parties, an execution for breach of contract was not available until the contract breach had been reduced to judgment. To allow execution upon a mere contractual obligation is not simply a change of remedy, or procedure, but is the elimination of defendant’s substantive right to defend the breach of contract action. Sec. 452.415 RSMo Supp. 1973 specifies the circumstances under which Sec. 452.350 applies. We find no circumstance listed which applies to this case. In view of that and the express provisions of Art. 1, Sec. 13, Mo.Const. against retrospective legislation, we conclude that the court’s order granting the assignment of wages was erroneous.

Judgment in causes 35894, 35895, 35896, 35897, and 35908 affirmed; judgment in cause 36236 reversed.

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