author: YOUNG, Justice.

text:
    Lauro MANCILLAS, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 1082.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 18, 1976.
    Rehearing Denied Dec. 9, 1976.

      Steve Q. McManus, Kilgore, Cole, Seer-den & McManus, Victoria, for appellant.
    J. W. Wray, Jr., Dyer, Redford, Burnett, Wray, Woolsey, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

The primary question to be decided in this workmen’s compensation case is whether certain findings of the jury are in fatal conflict. We hold that they are not.

Judgment on the verdict was rendered by the trial court in favor of cross-plaintiff Lauro Mancillas against cross-defendant Texas Employers’ Insurance Association for workmen’s compensation benefits, plus medical expenses and interest. Mancillas, the employee, appeals from that judgment.

In answers to fourteen special issues the jury found: 1) that appellant received an accidental injury in the course of his employment for Texas Concrete Company on or about May 6, 1974; 2) and 3) that the injury was a producing cause of temporary total incapacity; 4) and 5) that the beginning and ending dates of the total ineapacity were May 10,1974, and May 12,1974; 6) and 8) that the injury was a producing cause of temporary partial incapacity; 7) and 9) that the beginning and ending dates of the partial incapacity were May 7, 1974, and August 16, 1974; 10) that the average daily wage was $26.00 for the year preceding the injury; 11) that the average weekly earning capacity during the partial incapacity was “0”; 12) that compensation paid in weekly installments instead of in a lump sum would cause hardship to Mancillas; 13) and 14) that medical care was reasonably required as a result of the injury at a reasonable cost of $3,756.60.

After the jury returned their final verdict containing the above findings, the appellant moved the trial court to instruct the jury that there was a conflict between special issues 5 and 7 and further requested that the jury be sent back to the jury room to reconsider such conflict. This motion was overruled and the verdict was received and filed.

Thereafter the appellant employee filed his motion for mistrial contending that several of the jury findings were in conflict while appellee moved for judgment on the verdict. The trial court overruled appellant’s motion for mistrial and granted ap-pellee’s motion for judgment. Whereupon the trial court, in accordance with appellee’s motion, entered judgment in favor of appellant for compensation for 143Aths weeks beginning May 7, 1974, at $63.00 per week, the maximum compensation rate allowed by law for $3,756.60 in medical expenses, plus interest.

In the first three of his five points of error, the appellant alleges conflicts upon which he relies for reversal. Those alleged conflicts are categorized as follows:

1. The finding of temporary partial incapacity from May 7, 1974 to August 16, 1974, (answers to issues 6, 7, 8 and 9) conflicts with the finding of zero earning capacity during that period (answer to issue 11).
2. The finding of total incapacity from May 10, to May 12 (answers to issues 4 and 5) conflicts with the finding of zero earning capacity during the period of temporary partial incapacity (answer to issue 11).
3. The finding of total incapacity from May 10 to May 12 (answer to issues 4 and 5) conflicts with the finding of partial incapacity from May 7 to August 16 (answers to issues 7 and 9).

About the first category, there is conflict in those findings because one who has no wage earning capacity is totally and not partially incapacitated for workmen’s compensation purposes. Insurance Company of North America v. Brown, 394 S.W.2d 787 (Tex.1965). About the second category, there is also conflict in those findings because of the jury’s answer of total disability for a period and the answer of no wage earning capacity during a subsequent period of disability. Insurance Company of North America v. Brown, supra. And about the last category, there is conflict in those findings because, within the meaning of the workmen’s compensation law, a person cannot be both totally incapacitated and partially incapacitated during the same or overlapping periods of time. Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955 (1940); Texas Employers Ins. Ass’n v. Phelan, 103 S.W.2d 863 (Tex.Civ.App.-Amarillo 1937, no writ).

So it is obvious that the verdict in our case contains apparent conflicts of findings. Even so, we cannot presume that the jurors intended to return conflicting answers and it is our duty to reconcile apparent conflicts if we can reasonably do so. Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.1963); Hogg v. Washington National Insurance Company, 503 S.W.2d 325 (Tex.Civ.App.-Tyler 1973, no writ). In that vein, a party may waive a favorable finding in order to resolve a conflict. Fidelity & Casualty Co. of New York v. McLaughlin, supra; Whaley v. Angelina Casualty Company, 423 S.W.2d 448 (Tex.Civ.App.-Dallas 1967, writ ref’d n. r. e.).

In our case, before the trial court had entered judgment, the appellee carrier moved for judgment on the verdict. In this motion, the appellee asked the trial court, among other things, to award the appellant compensation as follows:

“. . . 148/7ths weeks compensation beginning the 7th day of May 1974, and ending the 16th day of August 1974, . at the rate of $63.00 per week

In Whaley, the jury found that the plaintiff employee sustained a period of temporary partial incapacity but found an average weekly wage earning capacity equal to his stipulated average weekly wage prior to the accident. This was a conflict in Whaley for the same reason that a zero earning capacity during a period of partial incapacity creates a conflict in our case. The carrier stipulated in Whaley, however, that the plaintiff was entitled to compensation at the maximum rate for partial incapacity. With that stipulation, the trial court received the verdict and entered judgment on the verdict. On appeal the plaintiff argued irreconcilable conflict. The appellate court met that argument as follows:

. . Such admission had the legal effect of eliminating the necessity for the submission of and jury answer to the issue relating to average weekly wage earning capacity . . .”

That court reasoned further:

“. . The judgment awarded to him the maximum that he could have possibly recovered under the Workmen’s Compensation Law based upon the answer of the jury to the number of weeks of partial incapacity. No harm could have resulted to appellant by appellee’s action in judicially admitting a figure which resulted in a computation of an amount to be the maximum which he could possibly obtain. Thus, in effect, any possible error concerning the judgment based upon the issue of amount of average weekly wage earning capacity during the period of partial incapacity militates in favor of appellant who is in no position to complain on appeal . . ” (Emphasis supplied.)

In our case, the carrier by its motion for judgment eliminated the necessity of a jury finding relating to average weekly wage earning capacity as effectively as the carrier in Whaley by its judicial admission eliminated the necessity of a finding. There was no error, therefore, by the trial court in our case when it entered judgment in spite of a jury finding of zero for average weekly earning capacity. This is so for the same reasons that there was no error by the trial court in Whaley when it entered the judgment it did.

All of this leaves us with a resolution of the additional apparent conflict of findings of temporary partial incapacity and temporary total incapacity existing during the same period of time. This matter is complained of by the appellant as set out in the third category above. This conflict can be reconciled as follows: As we have noted, the trial court entered judgment awarding the appellant the maximum rate ($63.00) based upon the maximum period of incapacity (May 7 to August 16) found by the jury. Whether the appellant was partially or totally incapacitated during this period would make no difference in the total amount that could be awarded to him. The amount was the maximum. Consequently, the finding of total incapacity becomes immaterial when we consider that the period of total (May 10th, May 12) found by the jury falls completely within the period of partial (May 7 to August 16) found by the jury. Appellant’s first three points are overruled.

In his fourth point of error, the appellant claims error by the trial court by its failure to grant a new trial because of conflict between the jury’s findings of the beginning and ending dates of temporary partial and temporary total incapacity (issues 4, 5, 7 and 9) with the finding of the cost of reasonably required medical care resulting from appellant’s accidental injury (issues 13 and 14). According to the appellant, the findings are conflicting because the periods of time of disability (May 7 to August 16) do not correspond to the periods of time during which the appellant was being treated and hospitalized (primarily during the following September). We overrule this point for at least two reasons.

First, the jury answers to be in conflict, they must concern the same subject matter. Rhoades v. Castillo, 488 S.W.2d 528 (Tex.Civ.App.-Waco 1972, writ ref’d n. r. e.); Turner v. Victoria County Electric Co-Operative Company, 428 S.W.2d 484 (Tex.Civ.App.-Waco 1968, no writ). In our case, the answers under complaint relate to periods of disability in one instance and the amount of reasonably required medical expenses caused by injury in the other instance. The answers are, therefore, not in irreconcilable or fatal conflict because they do not concern the same subject matter.

Second, to determine whether there is an apparent conflict in answers, the reviewing court examines the verdict on its face. Here the appellant asks us to look behind the verdict and to examine the evidence and therefrom to determine conflict. There is authority for an appellate court’s examining the evidence (together with the pleadings and the charge) to reconcile apparent conflicts. Grabes v. Reinhard Bohle Machine Tools, Inc., 381 S.W.2d 395 (Tex.Civ.App.-Corpus Christi 1964, writ ref’d n. r. e.). But appellant has not suggested authority, and we have found none, for our examining the evidence to establish conflicts. Appellant’s fourth point is overruled.

In his final point, the appellant asserts error by the trial court in basing a judgment on the jury’s answers to special issues 4, 5, 7 and 9 because those answers are contrary to the greater weight and preponderance of the evidence. As we have heretofore pointed out, those answers relate to the beginning and ending dates of temporary partial incapacity and temporary total incapacity.

As is our duty in the type of point urged here, we have examined all the evidence in the case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In that regard, Dr. Shields testified that he had been appellant’s family physician since April 7, 1958; that he examined the appellant on May 8, 1974 (two days after the injury complained of) and treated him several times thereafter for the May 6 injury; that in his opinion, the appellant had sustained a fracture of the sacral segment (tail bone); that from his examination of the appellant on August 16, 1974, Dr. Shields found that the appellant had recovered from the injury sustained on the job; that on August 16 the appellant did not have any indication of disc injury or anything else.

Dr. Hohf, on the other hand, said that he saw appellant on September 6, 1974, and made tests which were positive; that as a result, he hospitalized the appellant and performed disc surgery on the appellant’s spine on September 20; that in his opinion, the injury sustained by the appellant on May 6 was the cause of his disc problems; that the disc problems necessitated the disc surgery.

So what we have is one doctor’s opinion that the appellant did not have incapacity after August 16 because of his May 6 injury and another doctor’s opinion that the appellant did have incapacity until and after September because of the injury.

That it is within the province of the jury to determine the credibility of the witnesses is fundamental. And in this connection, the jury may accept or reject all or any part of the testimony of any witnesses. Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App.-Tyler 1964, writ ref’d n. r. e.). The jury, therefore, was entitled to accept Dr. Shields’ testimony and thereby find a briefer period of incapacity than the longer period of incapacity the testimony of Dr. Hohf tended to show. Appellant’s final point is overruled.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    James H. MARTIN, Independent Executor, Appellant, v. Iva FLENER et al., Appellees.
    No. 978.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 18, 1976.
    Rehearing Denied Dec. 9, 1976.

      Esir Tobolowsky, Dallas, for appellant.
    Barney B. Hemphill, Dallas, for appellees.
   DUNAGAN, Chief Justice.

Appellant, James H. Martin, Independent Executor of the Estate of Gus T. Flener, deceased (plaintiff) brought this suit under the Uniform Declaratory Judgment Act asking the Court to declare appellant entitled to the entire amount of a condemnation award to be paid by the city to Gus T. Flener, deceased, and his divorced wife, Iva Flener (appellee-defendant). Appellee Iva Flener demanded one-half of the award as a tenant in common. Trial was held without a jury. The court rendered judgment in favor of appellee. The trial court pursuant to appellant’s request filed its findings of fact and conclusions of law. Appellant alleges 41 points of error.

Gus Flener, deceased, and appellee were married in 1942. In 1948 Flener purchased real property in Dallas receiving title solely in his name. Appellee and Flener were divorced in 1951. The petition for divorce did not mention the property here in question, nor did the judgment. The divorce decree did not incorporate the property settlement agreement as a part thereof nor ratify or approve same. The decree merely states “property rights adjusted by agreement.” The decree does not make any disposition or adjudication of any of the property of the Fleners, nor purport to do so. It only dissolved the marriage of the parties. An agreed property settlement was executed but no mention of the property purchased by Flener in 1948 was made in the settlement. Flener died in 1972 and appellant became executor of his estate. Subsequently, the city of Dallas condemned the property in question and appellant and ap-pellee were jointly awarded the sum of $10,500.00. Plaintiff brought suit for the entire amount, contending in the trial court as on appeal that:

(1) the divorce property settlement, in making no mention of the property, gave the property to Flener as his separate property; or, alternatively, that

(2) appellee was barred from making any claim to the property by the ten, five and three year statute of limitations;

(3) that the divorce property settlement was a judicial admission that the land was not community property; or, alternatively, that

(4) if the property was community property, the appellee is barred from asserting her interest by the doctrine of laches, judicial estoppel, estoppel and res judicata.

Pursuant to these general contentions, appellant alleges that the court erred in finding that:

(1) the property was community property;

(2) the divorce property settlement did not determine rights to all property; and that

(3) the parties exercised joint dominion over the property after the divorce, with each having made expenditures on the property.

The last paragraph (other than the formal parts) of the written property settlement reads:

“Each of the parties hereto represent to the other that the above properties are all of the community property owned or possessed by either of them and each party hereto agrees to sign and execute any and all papers, deeds and instruments which may be necessary in the conveyance of title and delivery of possession of such properties to the other.”

The property settlement bore an acknowledgment but no jurat. The court, in part, found:

(a) that the property in question was acquired as community property during the marriage of Gus Flener and Iva Flener;

(b) that such property was owned by Gus Flener and Iva Flener from the time of its acquisition and purchase and was so owned and possessed by them and remained on hand as community property on July 7,1951 (the date of the divorce judgment);

(c) that the judgment of divorce in its entirety failed to adjudicate the property rights of the parties thereto or make any mention of the property or to approve any property settlement agreement of the parties;

(d) that the property settlement agreement (dated March 2, 1951) “was filed in the aforesaid divorce cause, but such was not acted upon by the Court, and such is entirely silent as to, and makes no partition, award or division” of, said property; that such property settlement is also silent as to other property of the parties as set out in the original petition for divorce;

(e) that Gus Flener and Iva Flener “by their oral agreement made at or about the time of their divorce, that the * * * [property in question] after the divorce, remain as their community property, was and constituted an agreement that such property, after the divorce, continue to be jointly and equally owned by them, and their respective conduct thereafter in regard to such property and with each other supported and ratified such agreement.”

(f) that after the divorce Gus Flener and Iva Flener “both continuously exercised joint dominion thereover, and jointly used and occupied such * * * property, neither of them residing thereat, without interruption or hindrance from the other, from the time of such divorce until the death of Gus T. Flener” in December, 1972; “[t]hat both parties, during all of such time, had and exercised the right of access thereto and possessed keys for entrance thereto, and that at and after the death of said Gus T. Flener, defendant Iva Flener was using and used such premises, had certain of her property thereat, and had keys and access thereto;” and

(g) “[t]hat after the divorce, and from the time thereof until the death of said Gus T. Flener, * * * Iva Flener, from time to time throughout such period, furnished money, materials and labor to keep up, maintain and repair such * * * property.”

The law is well established that when a divorce is granted without a partition of the land accumulated during the marriage, in a division of the estate of the parties in the divorce judgment, title to the land vests in the divorced parties as co-tenants or joint owners thereof. Clendenin v. Krock, 527 S.W.2d 471, 473 (Tex.Civ.App.-San Antonio 1975, n. w. h.); Dessommes v. Dessommes, 461 S.W.2d 525 (Tex.Civ.App.-Waco 1970, n. w. h.); Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970); Howle v. Howle, 422 S.W.2d 252 (Tex.Civ.App.-Tyler 1967, n. w. h.). In Clendenin v. Krock, supra, the court stated:

“ * * * The rule permitting a subsequent suit for partition of unpartitioned community property is applicable even when the divorce decree recites that the parties acquired no community property during the marriage. The recitation in a divorce decree that no community property was acquired during the marriage ‘is not res judicata so as to prevent’ plaintiff from bringing a suit to partition property shown to have been community property. Harkness v. McQueen, 207 S.W.2d 676, 679 (Tex.Civ.App.-Galveston 1947, no writ). Since the property here involved was not brought within the jurisdiction of the court in the divorce proceedings, it cannot be said that the divorce decree operates as a bar against the bringing of this action. Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.-Dallas 1973, no writ).
“ * * * As was clearly pointed out in Busby, the actual division made in connection with the divorce proceeding has no effect on a subsequent suit seeking partition of property not disposed of by the divorce decree. * * * ”

This court in Howle v. Howle, supra, said:

“Moreover, it seems to be a well established rule of law in this state that a decree of divorce which does not purport to make a partition of the property between the husband and wife, or to settle their rights to property claimed by either, does not preclude a suit by either party for such partition, or for the establishment of such rights as either spouse may have.” (Emphasis added.)

Insofar as this record shows, the property in question was the only property belonging to the community estate of the parties that was not divided at the time the partition suit was instituted. Under well settled principles of law, where a husband and wife own community property and are divorced without a division thereof by the divorce decree they become joint owners or tenants in common in the property. Ex Parte Williams, 160 Tex. 314, 330 S.W.2d 605 (1960); Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942).

Because the property settlement agreement, which was signed by both of the parties, stated that the parties “represent to the other that the above properties [which did not include the subject property] are all of the community property owned or possessed by either of them * * * ” it did not operate to give Gus Flener any better title to the subject property than it gave Iva Flener. Where such is the case, the settlement agreement cannot be held to preclude either party from demanding a partition of the community property not there included nor can it prevent the establishment of such rights as either spouse may have. Kirberg v. Worrell, 44 S.W.2d 940, 942 (Tex.Com.App.1932, holding approved).

It is the established law that in a non-jury case the trial court, as the trier of the facts in the cause, is the judge of the credibility of the witnesses and the weight to be given their testimony and that even though the evidence is conflicting, where there be evidence of probative force, the findings of the trial court will not be destroyed. Waters v. Waters, 498 S.W.2d 236, 240 (Tex.Civ.App.-Tyler 1973, writ ref’d n. r. e.); Hayes v. Easter, 437 S.W.2d 652, 654 (Tex.Civ.App.-Texarkana 1968, n. w. h.); Black v. Shell Oil Company, 397 S.W.2d 877, 882 (Tex.Civ.App.-Texarkana 1965, writ ref’d n. r. e.).

“In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. * * * ” Waters v. Waters, supra; also see State v. Williamson-Dickie Manufacturing Company, 399 S.W.2d 568, 570 (Tex.Civ.App.-Fort Worth 1966, writ ref’d n. r. e.).

We find in the record evidence of probative force to support the trial court’s findings of fact, conclusions of law and judgment. We have considered each of appellant’s points of error. They are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: JONES, Justice.

text:
    Francis E. DUNN, Individually, etc., et al., Appellants, v. MARSHALL COUNTY HOSPITAL DISTRICT OF the COUNTY OF MARSHALL, Kentucky, et al., Appellees.
    Supreme Court of Kentucky.
    Nov. 12, 1976.
    William H. Cunningham, Eddyville, Earl T. Osborne, Paducah, for appellants.
    Joseph R. Rubin, Franklin P. Hays, Louisville, Martin W. Johnson, Pal G. Howard, Benton, Dandridge F. Walton, Paducah, for appellees.
   JONES, Justice.

The Fiscal Court of Marshall County approved a plan for establishing a Marshall County hospital district and for its financing. A declaratory judgment action was instituted by the appellants, Francis E. Dunn, and others, to test the validity of the proposal. The appellants, R. W. Blalock, and others, were permitted to intervene for the same purpose. The trial court approved the proposal. In addition, the trial court sustained the appellees’ motion for summary judgment. This appeal is from that judgment.

The appellants present three issues for this court’s determination. They contend: (1) that the election of November 6, 1973, where the voters of Marshall County approved Marshall County’s authority to impose an annual special ad valorem tax of four cents on each one hundred dollar’s worth of property assessed for local taxation for the maintenance and operation of the Marshall County Hospital District was invalid; (2) that Marshall County Hospital District had no right to form the Marshall County Public Hospital District Corporation to accomplish its plan of financing; (3) the Marshall County Hospital District had no right to create a holding company to finance the acquisition of the Benton Memorial Hospital and to retire the general obligation bonds of the city of Benton. They contend that such action is discriminatory to Marshall County residents living outside the city of Benton.

In order for a proper resolution of the issues presented, it is necessary to summarize the pertinent facts.

On August 21,1973, a certified petition of over 100 names of qualified voters was filed with the Fiscal Court of Marshall County. That petition requested the Fiscal Court of Marshall County to adopt a resolution submitting to the voters of Marshall County the question of whether a Marshall County Hospital District should be established, and a special ad valorem tax be imposed for the maintenance and operation of the district, “not to exceed ten cents on each one hundred dollars of assessed valuation of all property in the county.”

On the same day that the petition was filed, the fiscal court adopted such a resolution. It ordered an election to be held at the general election on November 6, 1973, to determine whether the voters of Marshall County were in favor of such resolution. The resolution was properly advertised as required by the publication statute. KRS 424.130(l)(d). On September 25, 1973, a resolution was introduced to amend the resolution of August 21 from “not to exceed ten cents” to “a special ad valorem tax of four cents.” The fiscal court determined that the imposition of four cents on each one hundred dollar’s worth of property assessed for taxation was all that was necessary to establish and maintain the Marshall County Hospital District. That resolution was adopted. Notice as to the change of the resolution was properly advertised. At no time, during these proceedings or after-wards, was any protest made.

The question placed on the ballot and advertised to be voted upon, was as follows:

“Are you in favor of Marshall County, Kentucky, participating in a hospital district composed of Marshall County, for which Marshall County shall have the authority to impose an annual special ad valorem tax of four cents (4$) on each One Hundred Dollars ($100.00) worth of property assessed for local taxation in the District for the maintenance and operation of the Marshall County Hospital District?”

Opposite such question were placed the words “yes” and “no” on the voting machines.

The voters of Marshall County cast 2,318 in favor of the question and 1,261 votes against it.

On November 20, 1973, a resolution was adopted by the Fiscal Court of Marshall County acknowledging receipt of certifications establishing that the voters had approved the question. The resolution approved the establishment of a hospital district and the levying of an annual special ad valorem tax of four cents on each one hundred dollars of assessed valuation for the operation and maintenance of the district. The resolution recommended to the Commissioner of Health of the Commonwealth of Kentucky that the commissioner established the Marshall County Hospital District in accordance with KRS 316.320.

An order was entered by the Commissioner, Bureau of Health Services, on February 19, 1974, establishing the Marshall County Hospital District for the medical service area of all of Marshall County.

On May 7,1974, a resolution was adopted by the Fiscal Court of Marshall County appointing five members to serve as the initial Board of Trustees for the hospital district. The resolution also approved the creation of a “holding company,” to be known as the Marshall County Public Hospital District Corporation. This was for the purpose of enabling the corporation to finance the cost, not otherwise provided, of the acquisition and construction of an addition to the Benton Memorial Hospital. The issuance of the corporation’s first mortgage bonds were to be secured by the hospital property pursuant to the “holding company plan of financing.” The resolution also designated as members of the corporation, the three initial officers of the Board of Trustees of the Marshall County Hospital District.

On August 12, 1974, the Board of Trustees of the Marshall County Hospital District met for the purpose of organization. The terms of office of the commissioners were confirmed, officers were elected, and a resolution was adopted finalizing the plan for financing.

The Marshall County Hospital District created a holding company which was to act as its agent. The holding company was authorized to purchase the Benton Memorial Hospital. The purchase price was to be covered by bonds secured by the acquired property. In turn, the holding company was to lease the hospital to the Marshall County Hospital District. The rental payments were to be used to retire the newly issued bonds. The lease was to be renewed each year at the option of the Marshall County Hospital District. As part of the agreement, the holding company assumed the obligations of the city of Benton to retire the original bonds issued to finance the original construction of the Benton Memorial Hospital. When the bonds were paid and the new addition built, the holding company was to convey the Benton Memorial Hospital properties to the Marshall County Hospital District.

This court now directs its attention to the issues presented by the two groups of appellants.

(1) The election

In this period of inflation the mention of the word “taxes” raises the dander of most citizens. It is obvious that the voters of Marshall County felt otherwise. The overwhelming vote of Marshall County citizens in favor of the proposal indicates the need for a hospital district.

This court is of the opinion that it was not necessary to state, at the time the election was called, the exact amount of the tax which would be levied. It was appropriate at that time to provide that the tax not exceed 10$ on each $100.00 worth of property assessed for local taxation. See KRS 216.317(l)(a). There is no merit to the appellant’s argument that the fiscal court’s changing the amount of ad valorem tax from “not to exceed 10$” to the exact amount of 4$ per $100.00 of assessed property after the 60-day deadline period had expired violated KRS 216.317. The Fiscal Court of Marshall County had the right under the statute to set a definite amount as long as that amount did not exceed 10$ per $100.00 assessed valuation of the property in Marshall County. Since the fiscal court determined that 4$ per $100.00 of assessed valuation of property was needed to maintain the hospital district, this court is of the opinion that the Marshall County Fiscal Court complied with the provisions of KRS 216.317(b).

Furthermore, this court is of the opinion that the appellants cannot now complain that the election was invalid. They could have challenged the election within 30 days after it was held. See KRS 122.140 (now KRS 120.250). Having failed to challenge the election within the required time, the appellants are now barred from contesting it.

(2)The financing

Appellants contend that KRS 216.353, providing that hospital districts “may issue revenue bonds pursuant to KRS Ch. 58, in addition to all other methods provided by law,” means that before a plan may be used other than Ch. 58, there must be a statute providing the method. They also argue that KRS 216.335(7) is not broad enough to authorize a board which governs the hospital district to create a nonprofit corporation acting as a governmental agency for the construction and equipping of a hospital or hospitals and leasing them to the district. A reading of the statute convinces this court that KRS 216.335 specifically and clearly outlines the governmental policy of a hospital district. The portions of the statute pertinent to the issue under consideration is as follows:

“The government of the hospital district shall be vested in the board which shall have general control of the property and affairs of the district and shall have all the powers necessary to carry out the purposes of KRS 216.310 to 216.360 including, but not confined to, the following:
“(1) To construct, acquire, add to, maintain, operate, develop and regulate, sell and convey all lands, property rights, equipment, hospital facilities and systems for the maintenance of hospitals, buildings, structures and any other facilities;
* * * * * *
“(3) To receive, acquire, hold, manage, expend, sell and convey donations and bequests of real and personal property for hospital purposes within the district;
“(4) To establish and maintain a public hospital or hospitals in the district and where necessary make provision for education of needed personnel to operate such hospitals;
“(5) To lease existing hospital or hospitals and equipment and other property used in connection with the operation of a hospital, and to pay such rental therefor as the board shall deem proper;
“(6) To enter into contracts and agreements with any person or corporation, public or private, affecting the affairs of the district, including contracts with cities, counties, other municipalities, the commonwealth or the United States of America and any of its agents or instru-mentalities;
“(7) To enter into contracts with a nonprofit corporation acting as a governmental agency for the construction and equipping of a hospital or hospitals, and the leasing of the same to the district; (Emphasis added)
$ * * * * * ti

The appellants, Blalock, et al., contend that KRS 216.335(7) only permits the hospital district to enter into contracts with nonprofit corporations acting as governmental agencies for the construction, equipping and leasing of hospital facilities. They contend that it does not authorize such contracts for financing the facilities. This court is of the opinion that they construe the statute too narrowly. Blalock apparently overlooked the word “acting” in KRS 216.335(7). The question, as this court views it, is whether or not the nonprofit holding corporation will be “acting” as a governmental agency for the construction and equipping of a hospital. This court is of the opinion that under the provisions of KRS 216.335(7) the “holding corporation” does not have to be a governmental agency; it need only act as one.

(3) Discrimination

Finally, appellants argue that the use of the tax money by the “holding corporation” to acquire the Benton Hospital, which was financed by the city of Benton, is discriminatory. They contend that those bonds should be paid by the taxpayers of the city of Benton. This court is of the view that the trial court, in a well-reasoned opinion, effectively answered the argument of discrimination in the following manner:

“When the proposed plan is consummated, the existing hospital acquired from the city of Benton, Kentucky, will be for the benefit of all residents and taxpayers of the district which comprises Marshall County . . . .”

In the past this court has upheld the validity of financing plans similar to the one presented here; Booth et al v. City of Owensboro, 274 Ky. 325, 118 S.W.2d 684 (1938); Warren County Fiscal Court v. Warren County Tuberculosis Sanitorium Corporation, Ky., 272 S.W.2d 331 (1954); Sizemore v. Clay County et al, 268 Ky. 712, 105 S.W.2d 841 (1937); Baker v. City of Lexington, Ky., 273 S.W.2d 34 (1954).

The judgment is affirmed.

All concur.


author: SEILER, Chief Justice.

text:
    Verna Mae CRAIG et al., Appellants, v. The CITY OF MACON, Missouri, et al., Respondents.
    No. 59281.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1976.

      Charles E. Rendlen, Jr., Douglas F. Browne, Rendlen, Rendlen & Ahrens, Hannibal, for appellants.
    John C. Danforth, Atty. Gen., Dan R. Summers, Asst. Atty. Gen., Jefferson City, for respondents.
   SEILER, Chief Justice.

Pursuant to § 260.215, RSMo Supp.1975, the city of Macon enacted ordinances which provide a comprehensive system for the collection and disposal of solid waste produced within the city’s limits. Appellants are residents of the city who have their own means of waste disposal, and therefore, do not avail themselves of the services provided by the city’s contract hauler. Appellants claim that the $2.45 per month waste disposal charge is invalid as an improperly levied tax and dispute the validity of this mandatory service charge imposed upon them for waste disposal services that they do not use. Appellants sought injunctive relief against the city, which counterclaimed for the unpaid charges. The trial court found that the disposal charge was a valid service charge, not a tax, and denied relief. Moreover, the trial court found both the ordinances and enabling legislation valid as reasonable exercises of the police power and awarded judgment to the city on its counterclaim for unpaid waste disposal charges. An appeal was taken directly to this court since this case involves construction of the revenue laws. Art. V, § 3, Mo.Const.1969. We affirm.

Appellants’ primary contention is that the city’s solid waste disposal charge is a tax, and as such it is invalid because it was never put before the people for approval as required by § 260.245, RSMo Supp.1975.

The legislature enacted §§ 260.-200-.245 to prevent public nuisances, public health hazards, and the despoliation of the environment that necessarily accompany the accumulation and unmanaged disposal of garbage, refuse, and filth. Throughout human history this menace has led to and intensified disease and plague. The legislature, in its wisdom, has forbidden the dumping of solid waste on the ground, in streams, springs, and other bodies of water except through licensed solid waste processing facilities, solid waste disposal areas, and other means that do not create public nuisances or adversely affect the public health.

Section 260.215, the provision pursuant to which the city enacted its ordinances, in part provides:

“. . . each city . . . shall provide . . . for the collection and disposal of solid wastes within its boundaries; shall be responsible for implementing their approved plan . . . as it relates to the storage, collection, transportation, processing, and disposal of their solid wastes . . Each city . . . may levy and collect charges for the necessary cost of providing such services, and may levy an annual tax . . .for solid waste management, and ... do all other things necessary to provide for a proper and effective solid waste management system . .” Section 260.245 qualifies a municipality’s authority to levy a tax under § 260.215 by requiring that such an annual tax be approved by a majority of the voters in the governmental unit.

First, it must be noted that nothing in the statutory scheme compels the conclusion that all payments made pursuant to § 260.215 are taxes. To the contrary, the permissive language of the section authorizes either a service charge or a tax. Moreover, if only a tax were contemplated by § 260.215, the language referring to “charges” would be rendered mere surplus-age.

The term “tax” has been defined variously, but the appropriate definition for us is found in Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833, 875 (Mo. banc 1960) in which we stated: “Taxes are ‘proportional contributions imposed by the state upon individuals for the support of government and for all public needs.’ . . . Taxes are not payments for a special privilege or a special service rendered. . . . Fees or charges prescribed by law to be paid by certain individuals to public officers for services rendered in connection with a specific purpose ordinarily are not taxes . unless the object of the requirement is to raise revenue to be paid into the general fund of the government to defray customary governmental expenditures rather than compensation of public officers for particular services rendered. . . .” See also Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95, 100-101 (1943).

In the case before us, the charge was only incidental to the regulatory scheme. The payments went only to pay the cost of the waste collection and disposal. The ordinances authorized only those charges necessary to pay the expenses of the service; the hauler’s bid proposal, which was incorporated into the waste hauling contract, called for $2.45 per month; the city billed the appellants at the rate of $2.45 per month, and the city seeks to collect unpaid charges of $2.45 per month. None of the money subsidized the operation of the city or went into general revenue. Rather, the payments were collected for a specific purpose, to pay the cost of the service. Hence, the charge is not a tax, but a service charge. See Mayor and Aldermen of City of Milledgeville v. Green, 221 Ga. 498, 145 S.E.2d 507, 509 (1965); City of Lake Charles v. Wallace, 247 La. 285, 170 So.2d 654, 655, 660-61 (1965); Tayloe v. City of Wahpeton, 62 N.W.2d 31, 36-37 (N.D.1953).

Having found the waste collection and disposal fee to be a service charge, it remains to be determined whether the mandatory nature of this charge is a reasonable and valid exercise of the city’s police power.

Generally, the function of the police power has been held to promote the health, welfare, and safety of the people by regulating all threats either to the comfort, safety, and welfare of the populace or harmful to the public interest. City of St. Louis v. Brune, 520 S.W.2d 12, 15 (Mo.1975) (per curiam); Kalbfell v. City of St. Louis, 357 Mo. 986, 211 S.W.2d 911, 916-17 (1948). More specifically, the preservation of the public health is recognized as a goal of the highest priority, Schroeder v. City of St. Louis, 360 Mo. 293, 228 S.W.2d 677, 678 (1950); Edmonds v. City of St. Louis, 348 Mo. 1063, 156 S.W.2d 619, 622 (1941), and the accumulation of garbage is a serious threat to the public health. Valley Spring Hog Ranch Co. v. Plagmann, 282 Mo. 1, 220 S.W. 1, 3 (banc 1920); Campbell v. City of Frontenac, 527 S.W.2d 643, 645 (Mo.App.1975); Harper v. Richardson, 222 Mo.App. 311, 297 S.W. 141, 145 (1927). Nonetheless, appellants contend that because they do not have their garbage removed, they do not use the service for which they are billed, and therefore, the ordinances are unreasonable. Appellants, however, erroneously assume that the only benefit conferred by the statute is the removal of one’s own garbage. The legislative intent and the purpose of the city’s ordinances are not primarily to remove waste from the community for the convenience of residents, but rather to protect the public health by regulating the collection and disposal of garbage, and thereby minimizing or eliminating a source of disease. Although the appellants may not have waste to be collected, the regulatory scheme protects the entire public, not just those who have waste for disposal, by responsibly removing a source of disease from the community. As we said in Lakewood Park Cemetery Ass’n v. Metropolitan St. Louis Sewer Dist., 530 S.W.2d 240, 247 (Mo. banc 1975) (per curiam) quoting Whitsett v. City of Carthage, 270 Mo. 269, 193 S.W. 21, 24 (1917): “ ‘The public health is menaced and endangered by the aggregation of filth and refuse of the entire district, and is not limited to accumulations thereof upon or about each separate lot or tract of ground located therein.’ ” The same result requiring mandatory payment of waste disposal charges regardless of use has been reached in other jurisdictions. See City of Glendale v. Trondsen, 48 Cal.2d 93, 308 P.2d 1, 5-6 (banc 1957); Cassidy v. City of Bowling Green, 368 S.W.2d 318, 319-20 (Ky.1963); City of Hobbs v. Chesport, Ltd., 76 N.M. 609, 417 P.2d 210, 214 (1966); Borough of Coopersburg v. Cliff, 16 D&C2d 576, 579 (Pa.Com.Pl.1958); Owens v. City of Beresford, 201 N.W.2d 890, 891, 894 (S.D.1972).

“When a city is given the power to do a certain thing it is necessarily left with large discretion as to the method to be adopted and the manner in which it is to be done.” Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95, 98 (1943), citing Arkansas-Missouri Power Corp. v. City of Kennett, 348 Mo. 1108, 156 S.W.2d 913 (banc 1941); City of Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202 (1894); Ex parte Smith, 231 Mo. 111, 132 S.W. 607 (1910). And there exists a presumption of reasonableness that attaches to such ordinances. California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 318-19, 26 S.Ct. 100, 50 L.Ed. 204 (1905); Lakewood Park Cemetery Ass’n v. Metropolitan St. Louis Sewer Dist., 530 S.W.2d 240, 248 (Mo. banc 1975) (per curiam); Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 634-35, 639 (Mo.1929). Appellants have wholly failed to demonstrate the unreasonableness of the city’s regulatory scheme.

Although there is some doubt whether the issue was properly pleaded and preserved, appellants also contend that the billing practices of the city violate the equal protection clauses of the United States Constitution. As evidence of this discrimination, they argue that a large industrial plant in the city was not billed and that while 1,849 residences and 327 commercial establishments were billed, the 1970 census shows 2,015 households in the city.

The equal protection clause as it applies to the exercise of the police power only requires that classifications established pursuant to this power be reasonable and bear a rational relation to the ends of the enactment. Mathematical nicety is not required. Whitney v. California, 274 U.S. 357, 369-70, 47 S.Ct. 641, 71 L.Ed. 1095 (1926); State v. Ewing, 518 S.W.2d 643, 646-47 (Mo.1975); Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 637-38 (Mo.1929).

Even assuming that the issue is properly before us, it does not follow from the facts presented by appellants that they have been the subjects of discrimination. Appellants have not demonstrated that the 1970 census figure of households bears any relation to the number of residences and commercial establishments billed by the city commencing in 1974 or that the residences and commercial establishments billed in 1974 and thereafter were irrationally or arbitrarily selected or classified.

Finally, appellants claim that the trial court improperly allowed the city to file its counterclaim for unpaid waste disposal charges on the day of trial. Contrary to their contention, appellants had notice of the city’s claims against them. The parties stipulated that the city had billed appellants in the amount of $2.45 per month for solid waste service which appellants did not use and appellants brought suit to prevent the city from collecting the fees. Further, since payment is an affirmative defense, § 509.090, RSMo 1969, which appellants did not raise by their general denial to the city’s counterclaim for unpaid charges, nonpayment was properly found on the pleadings.

Judgment affirmed.

All of the Judges concur.


author: FINCH, Judge.

text:
    The MISSOURI CHURCH OF SCIENTOLOGY, Plaintiff-Appellant, v. James E. ADAMS et al., Defendants-Respondents.
    No. 59377.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1976.

      Thomas J. Frawley, St. Louis, for appellant.
    Michael P. Casey, St. Louis, for respondents.
   FINCH, Judge.

Plaintiff, a Missouri not-for-profit religious corporation, sued two writers for and the publisher of the St. Louis Post-Dispatch for libel on the basis of a series of five articles which were published March 3 through 7,1974. The petition sought $500,-000 actual plus $2,000,000 punitive damages. Defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted. That motion was sustained and plaintiff appealed to the Missouri Court of Appeals, St. Louis District, which affirmed. We then sustained plaintiff’s application under Rule 83.03 to transfer and we now decide the case as though here on direct appeal. We affirm.

Plaintiff seeks recovery on the basis of libel per se, not libel per quod. In such a case, “[p]ublished words in a written communication which are defamatory within the meaning of Section 559.410, RSMo 1959, V.A.M.S., without the aid of extrinsic facts, referred to as libelous per se, are actionable. Langworthy v. Pulitzer Publishing Company, Mo., 368 S.W.2d 385; Chambers v. National Battery Co., D.C., 34 F.Supp. 834; 53 C.J.S. Libel and Slander §§ 8 and 162.” Brown v. Kitterman, 443 S.W.2d 146, 149 (Mo.1969). Whether the allegedly libelous words or statements are libelous per se is a question of law which the court may decide on a motion to dismiss. Brown v. Kitterman, supra, at 150.

A petition seeking recovery for libel per se should recite in the petition the specific words or statements alleged to be libelous. Lorenz v. Towntalk Pub. Co., 261 S.W.2d 952 (Mo.1953). That was not done in this case. Instead, plaintiff attached the complete text of the five lengthy articles as exhibits which were incorporated by reference. The reason for the rule we state is obvious. To do otherwise requires a court to search lengthy articles or books to discover whether they contain words which are libelous per se. Plaintiff knows the words claimed to be libelous and for which recovery is sought and should be and is required to specify them with particularity.

Instead of reciting the specific words claimed to be libelous per se, plaintiff merely alleged six innuendoes stating its interpretation of the meaning of the articles attached as exhibits. That is not sufficient to state a cause of action for libel per se and the trial court could have dismissed the petition on that basis. However, it did not do so. Instead, it held that the five articles could not be read to constitute a malicious defamation under Missouri’s law and, hence, did not state a cause of action.

Under these circumstances, we have concluded to decide this appeal on the ultimate issue of whether the five articles were libelous per se under § 559.410, RSMo 1969, rather than on the basis of the insufficiency of the petition because if we ruled the case on the latter basis we would be inclined to remand the case'to give plaintiff an opportunity to file an amended petition wherein it could specifically set out the statements claimed to be libelous per se. Since we have concluded that' the articles are not libelous as a matter of law, it would be unwise and wasteful to remand for further pleadings and proceedings.

Even so, we follow this course somewhat reluctantly because by reviewing the entire five articles, unaided by allegations of the specific statements therein claimed to be libelous per se, we risk encouraging other plaintiffs to file similar petitions. We seek to avoid that result by the caveat that courts are not required to search through publications seeking words which might fit a plaintiff’s claim that an article or a book is libelous per se and that petitions which do not specifically allege those statements claimed to be libelous are subject to dismissal for failure to state a claim on which relief may be granted.

We have examined carefully the five articles written and published by defendants. Some portions relate to plaintiff corporation but substantial portions are devoted to the international organization of Scientology and its founder, L. Ron Hubbard, rather than to plaintiff corporation. The articles detail complaints and criticisms by ex-members but point out that for every dissenter there are numerous devotees who are enthusiastic. Frequent statements and explanations by Scientology leaders are contained in the articles. In our judgment, the articles do not constitute a malicious defamation of plaintiff corporation and as to it are not libelous per se. Accordingly, we affirm the action of the trial court in dismissing plaintiff’s petition for failure to state a cause of action on which relief can be granted.

In view of the foregoing disposition of this appeal, we need not and do not reach other questions raised and briefed in the court of appeals and in this court as to whether plaintiff is a public or private figure under New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) and Time, Inc., v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 258 (1976); whether plaintiff’s petition sufficiently pled malice; and whether a not-for-profit church can maintain an action for libel on the basis of statements as to its tenets and practices in the light of the First Amendment to the United States Constitution and such cases as Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) and United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).

Judgment affirmed.

All concur.

      . All references to rules are to V.A.M.R.

      . We recognize the rule that in deciding whether words alleged to be libelous per se are in fact defamatory, they must be read in connection with the whole publication rather than in isolation. Thomson v. Kansas City Star Co., 387 S.W.2d 493 (Mo.1965); Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6 (banc 1911). Consequently, it would be permissible under Rule 55.12 to attach the whole publication as an exhibit, although this court has held that this is not required. Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47 (Mo. banc 1955). However, as we have held herein, attaching and incorporating the entire series of articles, as here, is not a substitute for specifically setting forth in the petition the particular words alleged to be libelous per se.

      . Plaintiff did not seek such opportunity in the trial court but that is understandable because defendant did not seek dismissal on that basis and the trial court did not base its order of dismissal on that ground.

      . Plaintiff asserts on appeal that its pleading of malice was sufficient under Walker v. Kansas City Star Co., 406 S.W.2d 44 (Mo.1966), but defendant claimed that under the later cases of Brown v. Kitterman, 443 S.W.2d 146 (Mo.1969) and Woolbright v. Sun Communications, Inc., 480 S.W.2d 864 (Mo.1972), plaintiffs petition was insufficient in that it failed to allege facts from which it could be found that the articles were published with knowledge of their falsity or with reckless disregard of whether they were true or false.


author:
DONNELLY, Judge.
      SEILER, Chief Justice
      BARDGETT, Judge

text:
    Roger L. McQUEEN, Appellant, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, et al., Respondents.
    No. 59320.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1976.

      Marvin Tofle, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondents.
   DONNELLY, Judge.

This appeal challenges the constitutionality of portions of the Agreement on Detain-ers (§ 222.160, Laws of Missouri, 1971, p. 278). Appellant is incarcerated in the Missouri State Penitentiary.

On October 12,1972, at the request of the State of North Carolina, two detainers were placed against appellant at the Missouri State Penitentiary. On September 8, 1975, the State of North Carolina asked for temporary custody of appellant under the Uniform Agreement on Detainers. On September 11, 1975, appellant filed suit for declared judgment and injunctive relief in the Circuit Court of Cole County, Missouri. On October 15, 1975, that Court issued a temporary restraining order. On November 12, 1975, a hearing was had. At the conclusion of the hearing, the Court dismissed the petition and dissolved the restraining order. An appeal was taken and, on November 18, 1975, a temporary restraining order was issued by this Court.

The State of North Carolina seeks temporary custody of appellant under the provisions of Article IV of the Agreement on Detainers (§ 222.160, Laws of Mo.1971). Article IV reads as follows:

“1. The appropriate officers of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with paragraph 1 of article V of this agreement upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of the indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
“2. Upon receipt of the officer’s written request as provided in paragraph 1 of this article, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. The authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
“8. In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
“4. Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph 1 of this article, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
“5. If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to paragraph 5 of article V of this agreement, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

There is no express provision in the Agreement on Detainers for judicial review of the proceedings for transfer.

The State of North Carolina, had it desired, could have sought custody of appellant under the provisions of the Uniform Criminal Extradition Act (§§ 548.011-548.-300, RSMo 1969). Section 548.051, RSMo 1969, reads as follows:

“1. When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings of his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.
.“2. The governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in section 548.231 with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily. Laws, 1953, p. 425, § 5.”

The Uniform Criminal Extradition Act provides for judicial review of the proceedings for transfer. Section 548.101, RSMo 1969, reads as follows:

“No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state. Laws 1953, p. 425, § 10.”

The determinative question presented is whether the denial to persons extradited under the Agreement on Detainers, supra, of those procedural rights which are afforded to persons who, at the request of a demanding state, are extradited under the Uniform Criminal Extradition Act, supra, would violate Article I, § 2 of the Constitution of Missouri, which guarantees all persons “equal rights and opportunity under the law * * We must hold that it could. “ * * * The Legislature may pass laws applicable to a particular class of individuals, but such laws must bear equally upon all individuals coming naturally within the class * * Ex parte French, 315 Mo. 75, 83, 285 S.W. 513, 515 (banc 1926).

The inequality of rights and opportunity resulting from differing utilizations of § 222.160, supra, and § 548.051, supra, is manifest. For example, Prisoner A and Prisoner B are incarcerated in the Missouri State Penitentiary. They are similarly situated. A detainer from North Carolina is lodged against Prisoner A. A detainer from Virginia is lodged against Prisoner B. The State of North Carolina seeks custody of Prisoner A under § 222.160. The State of Virginia seeks custody of Prisoner B under § 548.051. Prisoner B is, by statute, expressly given judicial review of the transfer proceeding in the asylum state. People ex rel. Lehman v. Frye, 35 Ill.2d 343, 220 N.E.2d 235, 237 (1966). Prisoner A is not, by statute, expressly given judicial review of the transfer proceeding in the asylum state.

In our opinion, the statutes must not be construed so as to deny to one individual the benefit of certain protective procedures and yet give them to another similarly situated. Accordingly, we must construe § 222.160 so as to make available to persons transferred under its provisions procedures similar to those afforded to persons transferred under § 548.051.

In Moen v. Wilson, 536 P.2d 1129, 1133 (Colo.1975), the Supreme Court of Colorado concluded:

“Thus, a prisoner does have the right, even when the detainer act is the basis for transfer for the purpose of trial (1) to contest his presence in the receiving state at the time the alleged crime was committed, (2) to question whether he is a fugitive from justice or whether the de-tainer documents are supported by either an indictment or an information supported by an affidavit establishing probable cause, and (3) to determine whether he is substantially charged with a crime under the laws of the receiving state.”

We believe this limited right of judicial review, recognized in Moen, supra, should be made available in Missouri to detainees whose transfer is sought under the Agreement on Detainers. We make the following additional observations:

First, this limited judicial review should be made in the circuit court of the county in which the detainee is incarcerated.

Second, there should be no right of appeal from the determination made by said circuit court.

Third, the review procedure should be nonadversary in character and there is no requirement that it include the full panoply of adversary safeguards such as the rights to confrontation, cross-examination, and compulsory process for witnesses. Cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

Fourth, “in considering the sufficiency of the * * * [request documents submitted by the receiving state], it is not for the * * * [sending] state * * * to pass upon the quality, persuasiveness or weight of the evidential matter on the basis of which the * * * [request was made], for it is solely a question of law whether on the face of the papers accompanying the * * * [request] there was sufficient to say * * *” that the Moen questions, supra, may be answered in the affirmative. United States ex rel. Vitiello v. Flood, 374 F.2d 554, 556 (2 Cir. 1967).

Fifth, the Moen questions, supra, are the only questions “that may be inquired into by a judicial tribunal.” State ex rel. Gaines v. Westhues, 318 Mo. 928, 933, 2 S.W.2d 612, 615 (banc 1928). Appellant’s assertion that he should not be transferred to North Carolina because he has been denied a speedy trial is an issue properly left to the State of North Carolina.

The judgment is reversed and the cause remanded to the Circuit Court of Cole County for a review in accordance with the directions contained in this opinion.

MORGAN, HOLMAN, HENLEY and FINCH, JJ., concur.

SEILER, C. J., concurs in separate concurring opinion filed.

BARDGETT, J., concurs in separate concurring opinion filed.

SEILER, Chief Justice

(concurring).

I concur with the principal opinion as to Article IV of the Agreement on Detainers, but also believe something should be said about the claim of appellant regarding the operation of Article III of the Agreement. Article III affords a prisoner the means to dispose of a detainer, while Article IV affords a foreign state the means to obtain custody of a prisoner against whom it has lodged a detainer.

Appellant contends that in November 1972 he requested North Carolina to make a final disposition of the charges against him on which the detainers were based, but that despite his request, the detainers remained outstanding and it was not until September 1975 that North Carolina attempted to secure custody over him. Meanwhile, appellant was prevented from participating in furloughs, release programs, and outside job assignments. Respondent meets this contention by asserting that appellant did not make his request in proper written form.

Much has been written about the baleful effect of detainers. In Smith v. Hooey, 393 U.S. 374, 379, 89 S.Ct. 575, 578, 21 L.Ed.2d 607 (1969), the court quoted the former director of the Federal Bureau of Prisons, as saying:

“ ‘[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.’ ”

Bennett, The Last Full Ounce, 23 Fed.Prob. 20, 21 (1959). These deleterious effects have been well documented.

“ ‘The inmate who has a detainer against him is filled with anxiety and apprehension and frequently does not respond to a training program. He often must be kept in close custody, which bars him from treatment such as trustyships, mod-erations of custody and opportunity for transfer to farms and work camps. In many jurisdictions he is not eligible for parole, there is little hope for his release after an optimum period of training and treatment, when he is ready to return to society with an excellent possibility that he will not offend again. Instead, he often becomes embittered with continued institutionalization and the objective of the correctional system is defeated.’ ”

Dauber, Reforming the Detainer System: A Case Study, 7 Crim.L.Bull. 669, 671 (1971) quoting Council of State Government’s Handbook on Interstate Crime Control 86 (rev.ed.1949). See also Wexler and Hershey, Criminal Detainers in a Nutshell, 7 Crim.L.Bull. 753 (1971); Note, Detainers and the Correctional Process, 1966 Wash. U.L.Q. 417.

To remedy the evils of the detainer system, the Missouri Legislature adopted the Agreement on Detainers and declared:

“The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informa-tions or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.”

Agreement on Detainers, Art. I, Sec. 222.-160, RSMo, Supp.1975.

The legislature provided further that “[t]his agreement shall be liberally construed so as to effectuate its purposes.” Agreement on Detainers, Art. IX, supra.

In my opinion, by the undisputed facts before us, the prison authorities are not complying with the spirit or the letter of § 222.160, and I would hold that the detain-ers under which North Carolina is attempting to proceed should long ago have been vacated.

According to appellant, when he arrived at the penitentiary in October 1972, the records officer asked him if he wanted final disposition of the charges against him and appellant said he did. The records officer told him to write a letter to that effect and also had him sign “Agreement on Detainers Form 1”, which purports to inform the prisoner of the Agreement on Detainers. This document, however, by no means makes clear what the prisoner must do in order to be in literal compliance with the terms of Article III of the Agreement on Detainers.

Appellant did write a letter within 30 days to court officials in North Carolina where the charges were pending. He wrote: “I have signed the Agreement on Detainers pact to go to your county for trial last month (October) but I would further like to serve notice on you that I want to be brought to trial before 180 days. Or in the alternate remove the detainer from me here in Missouri. I am serving a life sentence here.” He testified that he assumed the records officer meant for him to write the letter to the authorities in North Carolina. At various times following the lodging of the detainers appellant asked his caseworker and the assistant warden for help in disposing the charges against him, but received no word that he was proceeding incorrectly, until the present suit.

The form which appellant signed is highly ambiguous as to how the prisoner is to proceed. It informs him that he has the right to request the foreign state to proceed to a final disposition of the charges against him. It refers to his “request for final disposition”. It states that if he desires such a request for final disposition, he is to notify the records office. Under the evidence, appellant did all this. He wrote the court in North Carolina and he informed the records officer that he wanted a final disposition of the North Carolina charges. Nowhere does the form state that the prisoner must make a written request to the records office.

In my opinion, if on remand the court finds the facts to be as appellant has testified, the detainers should be vacated. See Baker v. Schubin, 72 Misc.2d 413, 339 N.Y. S.2d 360, 368 (1972), citing United States ex rel. Jennings v. Pennsylvania, 429 F.2d 522 (3d Cir. 1970); Kane v. Virginia, 419 F.2d 1369 (4th Cir. 1970); United States ex rel. Watson v. Norton, 335 F.Supp. 1324 (D.Conn.1971); Caruth v. Mackell, 7 Crim.L. Rep. 2414 (E.D.N.Y.1970); Weiss v. Blackwell, 310 F.Supp. 360 (N.D.Ga.1969), and Lawrence v. Blackwell, 298 F.Supp. 708, 714 (N.D.Ga.1969). I would not permit the prison officials to take refuge in the unclear, ambiguous form which was presented appellant. He made a substantial compliance with his part of the proceedings under Article III. He made it clear to North Carolina and to the prison authorities in Missouri that he wanted a final disposition of the charges against him. When we consider the stated purpose of the Agreement on Detainers, quoted above, the command of Article IX that it be liberally construed so as to effectuate its purposes, and the ease with which a detainer may be placed, together with the known fact that prison populations consist generally of poorly educated individuals and that literal compliance with the Agreement is highly technical, then, under the facts of this case, the detainers which have remained outstanding since 1972 should no longer be given any force or effect. The Missouri officials had verbal notice of appellant’s desire to have the detainers removed and it would be unfair to allow them to defeat appellant’s attempts through their omission.

BARDGETT, Judge

(concurring).

I concur in the principal opinion and agree that the hearing the prisoner is now entitled to is that which is set forth therein.

I have reached this conclusion because, on the evidence introduced in the circuit court hearing, I conclude that the prisoner did not comply with Article III of the Agreement on Detainers (sec. 222.160) and for that reason he is not entitled to have the North Carolina detainer quashed nor is he entitled to prevent extradition under the provisions of Article III.

      . The trial court having sustained respondent’s motion for a directed verdict at the close of appellant’s case, we must on appeal consider the evidence from a view most favorable to appellant, take appellant’s evidence as true, and reject evidence to the contrary.

      . While we cannot dismiss the indictments pending in North Carolina, there is no question but that we can order the detainers vacated and require prison officials to treat appellant as though no detainers are lodged against him.


text:
    STATE of Missouri ex rel. Donald L. CAIN et al., Relators, v. James MITCHELL et al., Respondents.
    No. 59532.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1976.
    Donald L. Cain, Kierst, Cain & Gordon, Kansas City, for relators.
    Willard B. Bunch, John E. Cash, Kansas City, for respondents.
   SEILER, Chief Justice.

Relators are attorneys licensed to practice in Missouri who have been appointed at various times by the judges and commissioners of the 16th Judicial Circuit to represent indigent juveniles in the Jackson County Juvenile Court. Contrary to the orders of these judges and commissioners, the respondent county director of revenue has refused to disburse funds to relators for their services and expenses in the representation of indigent juveniles. Relators petitioned the Court of Appeals, Kansas City district, to issue a writ of mandamus to compel the director of revenue to pay rela-tors. On the recommendation of the Kansas City district, we ordered the application for this writ transferred here. Rule 83.06.

Relators contend that the term “costs” as used in § 211.281, RSMo 1969, which governs the taxing of costs in the juvenile courts, includes attorneys’ fees. Therefore, they maintain the orders to the director of revenue were simply exercises of the courts’ inherent power through this statute to tax costs. Consequently, relators argue that the writ of mandamus should issue to compel the director of revenue’s compliance with lawful orders of the circuit judges and commissioners. We disagree.

The premise that “costs” include attorneys’ fees is crucial to relators’ position because they rely upon the express provisions of § 211.281 as the source of the court’s inherent power. Section 211.281 provides: “The costs of the proceedings in any case in the juvenile court may, in the discretion of the court be adjudged against the parents of the child involved or the informing witness . . . . All costs not so collected shall be paid by the county.” It is apparent from the language of this section that the court has the power to determine who will pay costs. Relators argue further, however, that the court has the inherent power through this statute to denominate any or all expenses surrounding litigation as costs.

At the outset, it must be noted that rela-tors’ use of the term “inherent power” does not comport with its accepted meaning. Inherent powers do not depend upon statutory authorization as their source. Inherent power is defined as “an authority possessed without its being derived from another.” Black’s Law Dictionary (4th ed. 1968). See State ex rel. Weinstein v. St. Louis County, 421 S.W.2d 249, 255 (Mo.banc 1967); State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181, 183 (1943). Rather, by relying on § 211.281 relators are in truth arguing that the court has the implied (not inherent) power to tax attorneys’ fees as costs, because their position is that such power is deduced from the language of the statute and is “. . . necessary to carry into effect those powers which are expressly granted . . . .” Black’s Law Dictionary, supra. This conclusion is unwarranted and we have expressly held to the contrary.

Historically, “[t]he right to recover attorneys’ fees from one’s opponent in litigation as a part of the costs thereof [did] not exist at common law.” Prudential Ins. Co. v. Goldsmith, 239 Mo.App. 188, 192 S.W.2d 1, 4 (1945). Likewise, it has been held that whether attorneys’ fees are recoverable depends upon either express statutory authority or agreement of the parties. City of Kansas City v. Kindle, 446 S.W.2d 807, 818 (Mo.1969); Munday v. Thielecke, 290 S.W.2d 88, 93 (Mo.1956); City of St. Louis v. Meintz, 107 Mo. 611, 18 S.W. 30, 31 (1891); Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157, 161 (Mo.App.1973); Herhalser v. Herhalser, 401 S.W.2d 187, 194 (Mo.App.1966); Willis v. American Nat. Life Ins. Co., 287 S.W.2d 98, 107 (Mo.App.1956). In the case before us there is no express statutory authorization for an attorney’s fee, as there is found, for example, in § 202.807, RSMo Supp.1975, which relates to the judicial procedure for hospitalizing the mentally ill on court order. Even more compelling are holdings in this state that the term “costs” as used in a statute does ■ not include attorneys’ fees, with certain exceptions. Leslie v. Carter, 268 Mo. 420, 187 S.W. 1196, 1197 (1916); Burns v. Ames Realty Co., 31 S.W.2d 274, 275 (Mo.App.1930). For a list of the exceptions to this rule see Johnson v. United Rys. Co., 247 Mo. 326, 152 S.W. 362, 366 (banc 1912). None apply here.

Relators then continue their argument by analogizing between the circumstance before us and the appointment of guardians ad litem. They contend that since guardians ad litem represent interests similar to counsel appointed to defend juveniles and receive compensation through costs when no statute expressly authorizes such payment, counsel appointed to represent juveniles should be similarly compensated. Re-lators cite Ragan v. Looney, 377 S.W.2d 273 (Mo.1964) and Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321 (banc 1952) for the proposition that the power of a court to order the payment of a guardian ad litem is implied from the court’s power to appoint. The inapplicability of this statement to the facts before us becomes apparent when it is recognized that in the guardian ad litem situation of Tracy, there was a fund in the court from which the guardian could be compensated. Such a fund in court from which counsel could be compensated does not exist in juvenile cases. In Ragan, contrary to respondents’ implication, this court did not allow the guardian’s fee as costs. In an underlying action in that case, the guardian ad litem successfully defended an action to quiet title, and the court allowed him a $500 fee from his clients, the minor defendants. Later, one of the minor defendants moved that the fee allowance be set aside. The motion was sustained. The guardian then brought suit against his former clients for his fee, obtained judgment, and levied on real property of his former clients. The sheriff sold this property to satisfy the guardian’s judgment. Many years later in a cross bill in a quiet title suit an attempt was made to invalidate the execution sale which was forced by the guardian’s successful suit. The circuit court invalidated the sale and an appeal was taken to this court. In that appeal, to justify the invalidation of the execution sale, it was argued that the guardian’s fee should have been assessed as costs against the defeated plaintiff. Although the relators in the case before us draw our attention to the fact that the fee was upheld in Ragan, we refused to assess it as costs against the defeated party. The guardian was required to turn to his own clients for compensation. This distinction between a guardian turning to his client for compensation and turning to someone else, a governmental unit, was recognized by the case upon which both Ragan and Tracy rely—Jones v. Yore, 142 Mo. 38, 43 S.W. 384, 387 (1897).

The fees of appointed counsel representing indigent juveniles are not included in the term “costs” as used in § 211.281 and the analogy between guardians ad litem and appointed counsel in this case does not compel a different result.

The parties having stipulated to a waiver of the issuance of the alternative writ, and the cause having been considered on the petition and the return thereto, the peremptory writ is denied for the reasons set forth above.

MORGAN, HOLMAN, BARDGETT, HENLEY and DONNELLY, JJ., concur.

FINCH, J., dubitante.


author: DOWD, Judge.

text:
    Wesley Earl BEAVER, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37540.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 12, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Michael G. Ravetta, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant Wesley Earl Beaver entered a plea of guilty to the charge of burglary second degree. The court sentenced defendant to six years imprisonment and allowed credit for jail time from the date of arrest. Prior to his plea, defendant was free on bond for a period of time which is unclear from the record. During his imprisonment following judgment, defendant filed a petition for writ of habeas corpus for bail time, which was considered by the court as a motion to correct sentence pursuant to Rule 27.26, V.A.M.R. Said motion to correct sentence by crediting the time defendant was unconfined on bail as jail time was denied. Defendant appeals therefrom, and raises only one point on this appeal: he contends that the conditions of his bond restricted his freedom of movement so that he was “in custody” while on bail and, therefore, entitled to credit as jail time the time he was “out” on bail. Defendant sought to have his confinement reduced by the amount of time he was subject to the terms of his bail.

This court is limited, on appeal in post-conviction proceedings, to a determination of whether the findings, conclusions and judgment of the trial court were clearly erroneous. Williams v. State, 530 S.W.2d 740, 742 (Mo.App.1975); Rule 27.26(j), V.A. M.R. The trial court correctly found that a defendant on bail is not in custody, and that the law does not allow credit against a sentence for time on bail.

The only Missouri statute requiring credit against sentence for time served prior to conviction is Section 546.615, RSMo 1975 Supp.:

A person convicted of a felony in this state shall receive as credit toward service of the sentence imposed all time spent by him in prison or jail or both awaiting trial and pending transfer to the division of corrections. (Emphasis added).

This statute does not either explicitly or implicitly authorize credit for time spent free on bail. A defendant who is not confined “in prison or jail” does not fall within the ambit of this section.

Defendant mistakenly relies on a federal statute, 18 U.S.C. § 3568, which is substantially similar to the Missouri statute (546.-615) to support his contention. Cases interpreting the federal statute uniformly hold that no credit against sentence shall be given for bail time. Ortega v. United States, 510 F.2d 412 (10th Cir. 1975); Polakoff v. United States, 489 F.2d 727 (5th Cir. 1974); United States v. Peterson, 165 U.S.App.D.C. 368, 507 F.2d 1191 (1974); Sica v. United States, 454 F.2d 281 (9th Cir. 1971); Hogan v. United States, 383 F.Supp. 850 (D.S.Car.1974); Lopez v. Attorney General of United States, 377 F.Supp. 1351 (D.P.R.1974).

The judgment is affirmed.

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


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Joseph William LEADY, Appellant.
    No. 37482.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 26, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 12, 1976.

      Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Joseph William Leady, convicted of first degree robbery and forcible rape of a 45-year-old woman, raises four points on appeal.

First, he asserts error in overruling objections and motions for mistrial on three occasions when reference was made to the prosecuting witness viewing and identifying “police pictures” or “police photographs” of defendant, which were shown to her by Detective Bradbury. Appellant argues that the jury was thereby notified that defendant had a criminal record or had been arrested previously, and therefore identified him as a “police character”; that this method of identification was unnecessary, irrelevant to the issues and lacked probative value to establish defendant’s guilt; that it tended to buttress unim-peached identification testimony and denied defendant the presumption of innocence.

At no time was any reference made to defendant having a criminal record or that he had previously been arrested. The terms “police pictures” and “police photographs” do not necessarily indicate that the likenesses in question depict persons who have been arrested, or “police characters.” In State v. Harris, 534 S.W.2d 516 (Mo.App.1976), the terms “mug shots” and “photographs of subjects on file in our department” were held not to improperly place defendant’s prior criminal activity before the jury. The burden is on the defendant to show that such terms constituted evidence of, or necessarily referred to or connoted, prior arrests and that the court erred to his prejudice in its rulings and appellant has failed to meet this burden.

Although identification of the defendant was not denied these references were not irrelevant. Corroborative evidence of defendant’s identity properly may be received, State v. Pitchford, 324 S.W.2d 684, 687 (Mo.1959); State v. Jenkins, 516 S.W.2d 522, 526 (Mo.App.1974), even when identification is not a contested issue.

Second, appellant would have a new trial on the ground of newly discovered evidence. The prosecuting witness testified that she was forcibly picked up off the street by a truck driver, while awaiting a bus to take her to work. The newly discovered evidence is that of her estranged husband, who testified at the hearing of the motion for new trial that on several occasions in the past his wife had accepted rides from strangers to get to work; that on one occasion a man tried to pick her up and that as he tried to put her in his car she tore the steering wheel out and kicked off his front dash in resisting his advances; that her reputation for morality and chastity in the community was good but that he knew of instances of “sexual flurries” on her part. At worst the husband’s testimony may be said to have reflected on the alleged victim’s character. A new trial will not be granted on the ground of newly discovered evidence where the latter goes merely to impeachment of the character of a witness, State v. Harper, 473 S.W.2d 419, 421 (Mo. banc 1971), and consequently the court did not abuse its discretion in disallowing a new trial on this ground. State v. Boykins, 434 S.W.2d 484 (Mo.1968).

Next, appellant contends the guilty verdict on the charge of rape is contrary to the medical records, which indicate no trauma to the throat or neck of the alleged victim and fail to substantiate her account of a forcible sexual act; that examining doctors found no trauma to the sexual area; that the State failed to present any medical evidence to support the contentions of the prosecuting witness. Her testimony was that a truck pulled up behind her; that she was pulled into the truck from the driver’s side and across the driver's body onto the passenger side of the vehicle; that the trucker put his arm around her throat and lifted her up; that she was choked and unable to breathe; that she tried to open the truck door to get out but was prevented from doing so; that she begged to be released, and offered the driver money to let her go on to work; that the man drove to a secluded spot, stopped the truck and told her to take off her clothes; that when she opened the truck door he grabbed her around the throat and threatened to kill her, choking her and tightening the grip around her throat; that she begged him to leave her alone; that she resisted but under threat that he would kill her she undressed and submitted to a completed act of sexual intercourse, following which he robbed her of fifty dollars, and let her out at a shopping center with a $5 bill for taxi money, admonishing her not to report to the police. She had no injuries as a result of the assault. The medical records report no contusions, lacerations, abrasions, or trauma. They do show that she was “anxious and trembling” when examined shortly after the occurrence. A vaginal examination revealed 2 to 3 c.c. of whitish mucous discharge, “sperm suspected.”

We find sufficient evidence to support a conviction of forcible rape. The prosecuting witness testified unequivocally to a forcible abduction and a sexual encounter forced upon her by threat of death, reported by her immediately after she was released. See State v. Quinn, 405 S.W.2d 895, 898 (Mo.1966), and State v. Beck, 368 S.W.2d 490 (Mo.1963). There was some corroborating medical evidence, but to the extent that the medical evidence failed to support the woman’s account it went only to the weight and credibility of her testimony, which was a matter for the jury to consider. In State v. Bateman, 198 Mo. 212, 94 S.W. 843 (1906), in which there was no medical evidence of the forcible rape charged, the court said, 1. c. 845:

“It is absurd to say that there should not have been a conviction in the absence of medical proof of the perpetration of the outrage, when the prosecuting witness testified to it in unequivocal language, and the defendant himself acknowledged that he had connection with her at the time and place stated, but with her consent. Medical proof, was wholly unnecessary under such circumstances.”

Although defendant did not take the stand and admit intercourse with the prosecuting witness the fact of intercourse with him at the time and place in question was tacitly conceded by the manner in which the alleged victim and other witnesses for the State were cross-examined, and by the examination of the defense witness (who testified to the impossibility of the woman’s story as to how she was forced into the truck), as well as defendant’s final argument to the jury, which tacitly conceded the fact of intercourse between the two and plainly implied that it was voluntarily engaged in by the prosecuting witness. (“She wanted the sex. She got the sex.”)

The specific act of intercourse shown here was not accompanied by physical force and violence. Medical testimony of tearing, laceration, bleeding, swelling of the genitalia, etc. is not necessary to make a submissible case of rape where consent to intercourse and submission is induced by threats against the life of the victim. The prosecuting witness so testified and the jury was entitled to accept her story as credible.

Finally, it is urged that it was plain error to allow the detective to testify that the prosecuting witness identified defendant from the photographs shown her, and that she identified him at the lineup; that this was hearsay and constituted buttressing unimpeached testimony, prejudicial under State v. Degraffenreid, 477 S.W.2d 51 (Mo. banc 1972). Under the Degraffen-reid opinion this evidence was inadmissible, but under the circumstances of this case nonprejudicial. The real issue in this case was consent or no consent; defendant’s identity was not contested. In Degraffen-reid the defense was alibi; the question of identity was crucial. It is not likely in this case that the inadmissible evidence “tipped the scales against defendant,” as in Degraf-fenreid, because the evidence here related to a question on which there was no real or apparent disagreement. While it is error to admit testimony of third persons corroborating the fact that the identifying witness identified defendant, absent the introduction of evidence to establish statements contradicting the testimony given by the identifying witness, the error is not necessarily prejudicial, and where the question of defendant’s identity is conceded, or is not a real issue in the case, as here, the error in admitting the evidence is not necessarily prejudicial. See State v. Brown, 528 S.W.2d 503[6, 7] (Mo.App.1975).

Judgment of conviction affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . In the State’s opening statement and in the testimony of both the victim and a detective.