author: SOMERVILLE, Presiding Judge.

text:
    Eugene JACKSON, Appellant, v. James WILSON, as Director of Parks and Recreation, Division of the Department of Natural Resources, State of Missouri, Respondent.
    No. KCD 29588.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.

      John J. Schlueter, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Reginald H. Turnbull, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

A significant issue of major import lies at the base of this appeal — broadly stated, does James Wilson, as Director of Parks and Recreation, Division of the Department of Natural Resources, State of Missouri (Wilson), wear any cloak of immunity in an action for damages brought by Eugene Jackson (Jackson) for injuries allegedly sustained on or about July 7, 1973, in the St. Francois State Park while diving “into the Big River from a large boulder which was located near an area that was maintained for swimming on the Park’s grounds.” Jackson alleged he struck his “head and neck” on the bottom of the Big River while so diving and sustained permanent injuries and resultant damages as a direct and proximate result of certain specified negligence on Wilson’s part occurring while the latter was acting in his official capacity.

Two silent hypotheses are necessarily indulged by Jackson in formulating his allegations of negligence against Wilson. The first hypothesis indulged purports to fix liability upon Wilson on the theory of re-spondeat superior because of certain instances of negligence on the part of subordinate employees of the state park system. In this respect Jackson alleges that Wilson’s “employees and agents” on the fateful day in question (1) knew or should have known that the river was “too shallow to allow diving in the area” but failed to so warn Jackson, (2) knew or should have known that said “boulder” had been used for diving into the river but failed to warn Jackson of the danger from doing so, and (3) failed to maintain warning signs in the area and thereby failed to warn Jackson of the dangers. The second hypothesis indulged purports to fix liability upon Wilson on the theory that as titular head of the state park system he was guilty of negligently exercising his discretion and judgment regarding the formulation of policies for supervision of the St. Francois State Park. In this respect Jackson alleges (1) a failure to maintain warning signs in the area, (2) a failure to warn Jackson of the danger, (3) a failure to guard said area, (4) a failure to prohibit persons from diving in said area, (5) a failure to inspect the river, and (6) a failure to barricade the area.

Wilson filed a motion to dismiss Jackson’s petition on alternate, multiple grounds: (1) Jackson’s cause of action, “in reality”, was against the State of Missouri, which in turn was immune from liability under the then (July 7,1973) reigning doctrine of sovereign immunity; (2) as to that portion of Jackson’s cause of action against Wilson predicated upon the latter’s purported negligence of a discretionary character while in the course of performing his official duties, Wilson was the beneficiary of the protective mantle of official immunity; and (3) as to that portion of Jackson’s cause of action against Wilson predicated upon the purported negligence of subordinate employees of the state park system, Wilson was not vicariously liable because the doctrine of respondeat superior was inapplicable. The trial court sustained Wilson’s motion to dismiss without assigning any specific ground or reason for doing so.

Jackson’s efforts to rejuvenate his dismissed petition on appeal may be capsulized into three points. One, the doctrine of sovereign immunity afforded no protection to Wilson because it had been abrogated by establishment of the Tort Defense Fund, Section 105.710, RSMo Supp.1975. Two, the doctrine of official immunity afforded no protection to Wilson because it too had been abrogated by establishment of the Tort Defense Fund, Section 105.710, supra. Three, the doctrine of respondeat superior was applicable and Wilson was vicariously liable for the negligence of subordinate employees of the state park system. Wilson urges vindication of the trial court on essentially four grounds. One, the doctrine of sovereign immunity had not been abrogated as of July 7, 1973, and was applicable because the action in question, “in reality” was against the State of Missouri, rather than Wilson. Two, if the action is deemed to be against Wilson individually he stands under the protective umbrella of the official immunity doctrine. Three, Section 105.710, supra, so heavily relied upon by Jackson, abrogated neither the doctrine of sovereign immunity nor the doctrine of official immunity, and even if it had done so, its retroactive application to events occurring in 1973 would violate Article III, § 39(3), Constitution of Missouri, 1945. Four, Wilson may not be held vicariously liable for the purported negligence of subordinate employees of the state park system because the doctrine of respondeat superior is inapplicable.

An ancillary look at the Omnibus State Reorganization Act of 1974, Appendix B, RSMo Supp.1975, is in order to place Jackson’s reliance upon the Tort Defense Fund (Section 105.710, supra) in proper perspective. Jackson, as hereinafter noted, professes to be suing Wilson individually in his official capacity as Director of the Division of Parks and Recreation, Department of Natural Resources, State of Missouri. However, at the time of the alleged incident which occasioned Jackson’s injuries and the resultant damages claimed, to wit, July 7, 1973, the Division of Parks and Recreation and the Department of Natural Resources, State of Missouri, were nonexistent. The Department of Natural Resources was created by Section 10 of the Omnibus State Reorganization Act, supra, which did not become effective until May 2, 1974. The Division of Parks and Recreation was subsequently established by the Director of the Department of Natural Resources pursuant to an initial departmental plan submitted to and approved by the Governor in accordance with Section 1.6(2) of the Omnibus State Reorganization Act of 1974, supra, on June 28, 1974. The text of this departmental plan as submitted is to be found in Appendix C, pp. 1316-1317, RSMo Supp.1975. Prior to submission and adoption of the referred to departmental plan the State Park Board appointed and prescribed the duties of the Director of State Parks. Section 253.060, RSMo 1969. Under Section 10.3, Omnibus State Reorganization Act of 1974, supra, the State Park Board was transferred to the Department of Natural Resources by a Type I transfer. In essence, the newly created Division of Parks and Recreation succeeded to the responsibilities of the former State Park Board. Wilson, who was the Director of State Parks on both dates in question, to wit, July 7, 1973, and June 28,1974, became Director of the Division of Parks and Recreation, Department of Natural Resources, State of Missouri, by executive implementation of the Omnibus State Reorganization Act of 1974, supra.

Wilson throughout the course of this litigation has spent an inordinate amount of time advancing the proposition that he individually was not being pursued as a defendant but that the State of Missouri, “in reality”, was the sole and only party defendant to the action. Wilson’s obsession for doing so has served no edifying purpose as Jackson has repeatedly disavowed the position taken by Wilson by positive assertions to th,e effect “that the state is not the defendant here”, that he (Jackson) “is suing Mr. Wilson individually ‘for acts arising out of and performed in connection with (his) official duties in behalf of the State’ ”, and that “the director of state parks is the named defendant”. Disposition of this appeal would be alarmingly simple if the State of Missouri rather than Wilson were the true defendant as the accident complained of occurred at a time, to wit, July 7, 1973, when the doctrine of sovereign immunity was still intact since its abrogation in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo.banc 1977), operated prospectively only from August 15, 1978.

Both parties have clouded the issues on appeal by indiscriminately co-mingling the doctrines of sovereign immunity and official immunity. Sovereign immunity and official immunity are distinct legal concepts and, as readily suspected, rest on different premises and serve different purposes. The doctrine of sovereign immunity principally rested upon the tenuous ground that the “king could do no wrong”, a rare and frankly unexplainable surviving vestige of monarchical power. It served to protect the impersonal body politic or government itself from tort liability. Generally speaking, official immunity, on the other hand, serves as a protective aegis for public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties. Its source of sustenance is the variously expressed belief that a vigorous and effective administration of public affairs is best achieved if public officials are freed from the chilling effect of fear of retaliation by way of compensatory damages predicated upon the exercise of their discretion in the conduct of public business; obversely stated, the intimidating effect of an ever present fear of litigation, inimical to the public interest, should be avoided insofar as discretionary functions of public officials in the conduct of public affairs are concerned. Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434 (1959); Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949), cert. denied 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950); and Prosser, Law of Torts 987 (4th ed. 1971).

The doctrine of official immunity is no stranger to the law of this state. In Reed v. Conway, 20 Mo. 22, 50 (1854), it was articulated as follows: “But a public officer is not liable to an action, if he falls into error in a case, where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion — even although an individual may suffer by his mistake. A contrary principle would, indeed, be pregnant with the greatest mischief.” In Fidelity & Casualty Co. of New York v. Brightman, 53 F.2d 161, 165 (8th Cir. 1931), involving a suit by depositors against the Missouri Commissioner of Finance and his surety for negligently permitting an insolvent bank to remain in operation, the extant doctrine of official immunity in this state was more definitively explicated as follows: “The Missouri rule is in line with the general run of authority that a public officer charged with discretionary duties is not liable for a mistake of judgment or ah erroneous performance of said duties unless he be guilty of willful wrong in relation thereto, but that as to ministerial duties he is liable for the violation or neglect thereof to the party injured thereby and that a mistake of judgment does not excuse him.” Similar expressions of the doctrine are to be found in State ex rel. Funk v. Turner, 328 Mo. 604, 42 S.W.2d 594, 598 (1931), Sharp v. Kurth, 245 S.W. 636, 638 (Mo.App.1922), and Schooler v. Arrington, 106 Mo.App. 607, 81 S.W. 468, 469 (1904). The doctrine of official immunity appears to have been kept alive in Jones v. State Highway Commission, supra, the case which sounded the death knell for the doctrine of sovereign immunity in this state, as reflected by the following excerpt from 557 S.W.2d page 230 of the opinion: “We hold that the liability is for torts committed in the execution of activity decided upon, not for the decision itself in matters which go to the essence of governing; that our decision is not meant to impose liability upon the state or any of its agencies for acts or omissions constituting the exercise of a legislative, judicial, or executive function.”

A ministerial function, as opposed to a discretionary function, has been defined as that “of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.” Yelton v. Becker, 248 S.W.2d 86, 89 (Mo.App.1952). On the other hand, a discretionary function may be fairly defined as one necessarily requiring the exercise of reason in the adaption of means to an end, and discretion in determining how or whether an act should be done or a course pursued. 62 C.J.S. Municipal Corporations § 545.a(l) (1949). When clinically viewed, it becomes readily obvious that ease in verbally espousing the discretionary— ministerial distinction inherent in the official immunity doctrine belies the practical difficulties encountered in its application in certain cases. Therefore, application of the official immunity doctrine is susceptible to the ever-lurking danger of becoming nothing more than a labeling process because of the myopic distinction between the discretionary functions and ministerial functions on the part of public officials in certain given cases. By the very nature of the doctrine of official immunity, vigilance must constantly be exercised to prevent the discretionary — ministerial dichotomy therein from becoming nothing more than a continuum with liability coming down on one side and immunity on the other in an atmosphere completely divorced from factual reality. Though it may be said that the discretionary — ministerial approach is not without its critics, they are best placated by want of a better approach. Placing the distinction in the context of conduct at the decisional stage as opposed to conduct at the implementation stage may deflect some of the shadows presently cast upon application of the official immunity doctrine.

A synoptic view of two cases from sister jurisdictions, Boucher v. Fuhlbruck, 26 Conn.Sup. 79, 213 A.2d 455 (1965), and Meyer v. Carman, 271 Wis. 329, 73 N.W.2d 514 (1955), appears helpful at this point. In Boucher, the administratrix of the estate of a deceased minor brought suit against five employees of the city of Hartford for the death of said minor by drowning in a body of water situate in a city park. The grounds of negligence alleged by the ad-ministratrix against the five city employees, as disclosed by the petition, consisted of their failure to post warning signs, their failure to barricade the area, and their failure to adequately supervise the area. After approving a definition of ministerial acts substantially similar to the definition adopted by Missouri courts, the court in Boucher held that the allegations of negligence leveled against the five city employees arose from their performance of official duties of a discretionary nature as opposed to being ministerial in nature. After drawing this distinction, the court in Boucher held that as the specifications of negligence against the five city employees could not be construed as charging them with violation of ministerial duties the common law doctrine of official immunity protected them and their demurrer to plaintiff’s petition had been properly sustained by the trial court. In Meyer, a minor fourteen years of age brought suit against the members of a school board in their individual capacities for damages suffered when he fell from a retaining wall located on school premises. The charge of negligence against the school board members was that they failed to keep the school grounds safe, a duty imposed upon them by statute. On appeal, the court in Meyer, after engaging in the discretionary — ministerial dichotomy invariably pursued by other courts, held that the negligence charged against defendant school board members bespoke of a duty discretionary in character rather than ministerial in character and concluded, as a matter of law, that a cause of action did not lie against defendant school board members by virtue of their official immunity. As aptly pointed out in Meyer, 73 N.W.2d at 515, “[a]t first blush it might appear that the duty to keep the school grounds ‘safe’ is ministerial in character, but it is apparent on closer analysis that a great many circumstances may need to be considered in deciding what action is necessary to do so, and such decisions involve the exercise of judgment or discretion rather than the mere performance of a prescribed task.” Boucher and Meyer are persuasive authority for the conclusion that those charges of negligence leveled directly at Wilson pertained to conduct of a discretionary character thereby entitling Wilson to claim immunity from liability by reason of the doctrine of official immunity.

At this juncture it is appropriate to look at and consider the Tort Defense Fund, Section 105.710, supra. It should be pointed out that Wilson, in his capacity as titular head of the state park system, was never mentioned or included in the provisions of the Tort Defense Fund, Section 105.710, supra, until it was recently amended in 1974, same being a date subsequent to July 7, 1973, the date of the alleged incident in question. The Tort Defense Fund as most recently amended and presently worded is found in Section 105.710, RSMo Supp.1975, and insofar as here pertinent (after exercising certain public officials foreign to the instant case) reads as follows: “As part of the compensation to be paid to . . the head of state parks in the department of natural resources . . . the commissioner of administration is authorized to pay from the ‘Tort Defense Fund’, which is hereby created, all final judgments awarded in courts of competent jurisdiction to any claimant against the aforesaid officers . for acts arising out of and performed in connection with their official duties in behalf of the state. Payment shall be limited to a maximum of one hundred thousand dollars for all claims arising out of the same act . .” (Emphasis added.) Jackson has apparently referred to Wilson in the caption and body of his petition in his capacity as Director of Parks and Recreation, Division of the Department of Natural Resources, State of Missouri, in hopes of bridging a patent void inherent in his claim occasioned by the omission of the titular head of the state park system from the Tort Defense Fund, supra, prior to its most recent amendment in 1974.

Jackson strives to convince this court that Section 105.710, supra, as most recently amended and presently existing, retroactively abrogated the doctrine of official immunity with respect to the complained of acts arising out of Wilson’s performance of his official duties on the fateful day in question. Jackson’s argument fails to wash for the principal reason that the language employed in the statute is unambiguous, conveys a plain and definite meaning, and the legislative intent which prompted its enactment is clearly discernible. When such is the case, this court should and will abstain from foraging among various peripheral rules of construe-, tion for the purpose of rewriting a statute under the guise of construing it. DePoortere v. Commercial Credit Corporation, 500 S.W.2d 724, 727 (Mo.App.1973). The language employed by the legislature in Section 105.710, supra, does not so much as hint or suggest that the doctrine of official immunity was even being eroded, much less abrogated, retroactively or otherwise. From the time the Tort Defense Fund was originally created, Section 105.710, RSMo 1967, to and including the time it was last amended in 1974, Section 105.710, RSMo Supp.1975, the General Assembly was obviously aware of a judicial trend abroad the land to chip away at the concepts of both sovereign and official immunity. Notwithstanding Jackson’s contention to the contrary, Section 105.710, supra, was not a requiem for the doctrine of official immunity. Instead of attempting to legislatively abrogate the doctrine of official immunity, the General Assembly chose to leave the fate of the official immunity doctrine up to the courts and the Tort Defense Fund was a flexible response to whatever course the-courts might take in that regard in the future. Thus, the plain, unadulterated thrust of the Tort Defense Fund was to give greater not less protection to certain named state officials from the consequences of acts performed by them during the course of their official duties. As they were already liable for acts or omissions judicially determined to be of a ministerial nature, abrogation of the doctrine of official immunity, i. e. immunity with respect to acts or omissions falling within the purview of discretionary functions, would substantially increase their exposure to damages, particularly so when perceived in light of the fact that the payment of final judgments qualifying thereunder was limited to a maximum of one hundred thousand dollars. In view of the dollar limitation contained in the Tort Defense Fund it would be no solace to a designated state official to be told that the General Assembly in its benevolence had given him greater job security and protection while at the same time stripping him of the absolute protection previously afforded by the doctrine of official immunity with respect to official acts of a discretionary nature. If the General Assembly had intended such an absurd result it would have been an easy matter for it to have addressed Section 105.710, supra, in terms of the nature and type of official acts falling with the purview of the Tort Defense Fund rather than broadly addressing the matter solely in terms of payment of “final judgments” which necessarily requires a determination of liability by judicial process. The construction heretofore given Section 105.710, supra, subserves rather than subverts the clear legislative intent pervading both the depth and surface of the Tort Defense Fund. This court concludes that legislative establishment of the Tort Defense Fund via Section 105.710, supra, did not abrogate the official immunity doctrine retroactively, contemporaneously or prospectively.

Jackson subtly argues that the following language found in Section 105.710, supra, “to pay from the ‘Tort Defense Fund’ ... all final judgments”, makes the Tort Defense Fund, within its prescribed limits, available to satisfy any final judgment that might be rendered in his favor against Wilson. When the subtlely of this argument is pierced another cogent reason is revealed for rejecting Jackson’s claim that Section 105.710, supra, retroactively abrogated the doctrine of official immunity. Indemnification of certain named state officials up to a maximum of one hundred thousand dollars by the payment of judgments rendered against them for “acts arising out of and performed in connection with their official duties” was carefully cast in terms of “compensation to be paid” to them. Section 105.710, supra. To give the Tort Defense Fund a retroactive application so as to provide even limited indemnification to Wilson for acts or omissions associated with past services would run afoul of Art. Ill, § 39(3), Constitution of Missouri, 1945, which provides that “The General Assembly shall not have power ... (3) To grant or to authorize any county of municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or contractor after service has been rendered or a contract has been entered into and performed in whole or part;”. ... An awareness of Art. Ill, § 39(3), supra, obviously guided the drafters of Section 105.710, supra, as evidenced by the fact that they carefully drew it in terms of a perquisite for future services to be performed and not in terms of a perquisite for past services rendered. In State ex rel. Cleaveland v. Bond, 518 S.W.2d 649, 654 (Mo.1975), involving a somewhat analagous situation, the court held that a statute permitting the retroactive payment of retirement benefits to a judge who had ceased to hold office before the statute’s • effective date would constitute the grant of an extra allowance to a public officer after services had been rendered in violation of Art. Ill, § 39(3), supra.

Those allegations seeking to fix liability on Wilson for the purported negligence of certain subordinate employees of the state park system are legally sterile if the doctrine of respondeat superior is inapplicable. Rennie v. Belleview School District, 521 S.W.2d 423, 425 (Mo.banc 1975), lays to rest any doubt as to the inapplicability of the doctrine of respondeat superior as a vehicle for holding a public officer vicariously liable for the acts or omissions of subordinate public employees. As expressed in Fidelity & Casualty Co. of New York v. Brightman, supra, 53 F.2d at 166, a case arising in Missouri against the Missouri Commissioner of Finance, “[i]t is well-settled law that public officers are not responsible for acts of subordinate officials, if such subordinates are themselves employees of the government, where there is no negligence on the part of such public officials in employing them, unless the superior officer has directed or encouraged or ratified such acts, or has personally co-operated therein. .” Jackson’s attempt to achieve an imperfect application of the doctrine of re-spondeat superior must fail. It is noteworthy that Jackson makes no claim that Wilson was negligent in hiring the unnamed subordinate employees, or that Wilson directed, encouraged, ratified or personally cooperated in any complained of acts on their part.

Having concluded that the doctrine of official immunity has not been abrogated nor become superannuated, and that the facts decry application of the doctrine of respondeat superior, the vulnerability of Jackson’s petition to Wilson’s motion to dismiss for failure to state a claim or cause of action becomes self-evident when appropriate and reigning substantive law is superimposed upon the pleaded facts.

Judgment affirmed.

All concur.

      . Except for Jones and certain other cases raising the issue which were decided concurrently with Jones.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    PAUL A. MEDLEY, INC., Plaintiff-Respondent, v. MONEY TOWN, INC., and Otie S. Petry, Defendant-Appellant.
    No. KCD 29823.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.

      J. Robert Tull, Mallory V. Mayse, Columbia, for defendant-appellant.
    Scott 0. Wright, Columbia, Brown, Wright,,Willbrand & Simon, Columbia, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

The litigation spawning this appeal was a suit by a contractor, Medley, against a tenant, Money Town, who had contracted for remodeling of the leased premises, and against the owner, Petry, for imposition of a mechanic’s lien for the work and labor. The appeal is by the owner, Petry, attacking the trial court judgment imposing the lien.

The single and dispositive issue is the existence of any agency relationship between the tenant, Money Town, and the owner, Petry.

Defendant-Appellant Petry is the owner of a one-story commercial building located in Columbia, Missouri. Prior to the instant dispute, one end of the building was partitioned off as office space; the rest of the building was suitable for warehouse or storage space. Petry had engaged a realtor to find a tenant. In August of 1975, the realtor was contacted by Grothaus, representing Money Town, a company with a state contract to vend government food stamps. Lease negotiations began and concluded with the signing of a three-year lease which required Money Town to pay $300 per month in rentals. The critical portion of the lease to this dispute was Paragraph Three which reads, in pertinent part, as follows:

“3. The parties hereto agree that the business intended to be carried on by the Lessee herein is that of a vendor of food stamps and associated and related activities; and in connection with its business it is necessary that certain modifications and remodeling work be performed in and about the building which is located on the property as herein described. The Lessee has asked and the Lessor herewith grants the privilege to Lessee during the first thirty (30) days of said lease to make certain alterations in the interior of the building, all of which Lessee represents will not affect the building structurally. Said changes shall consist of moving a partition wall, constructing two additional walls, installing a ceiling on the east side of the building and installing a burglar alarm and security system, all of which with the exception of the burglar alarm shall become fixtures at the time of installation and be the property of Lessor. Said alterations shall be made in accordance '• with the plan therefor attached hereto, marked “Exhibit A” and made a part hereof by reference . . .”

The plans mentioned in the lease were not attached at the time of the execution of the lease and were not introduced into evidence. Petry testified that she never saw the plans for the alterations. Grothaus testified that he received a set of plans about a week after he took the lease to St. Louis for the execution by the president of Money Town.

During the time of the lease negotiations, Grothaus was also negotiating with plaintiff’s company, represented by LeMone, superintendent and vice-president. These negotiations concerned the alterations to Pe-try’s building. An estimate of $10,014.20 was given to Grothaus; Petry was not present at any of the meetings.

Because Money Town requested a completion of the alterations by October 1, LeMone applied for and received a building permit on September 12, ten days before the formal lease was actually concluded. Work began on September 15. LeMone testified that from his conversations with Grothaus, he believed that everything was “okay” with the owner.

In the next three weeks, extensive alterations of the building were completed, including the installation of carpeting, paneling, a new ceiling with overhead fluorescent lighting, a bulletproof teller’s cage, a burglar alarm and electronic security system. With the exception of the burglar alarm, security system, and part of the ceiling, none of the alterations were specified in the lease agreement.

Petry did not enter the building, according to her own testimony and that of Gro-thaus, LeMone, and the realtor until the alterations were substantially complete. Petry testified that on entering the building, she was “shocked” and “amazed” to see the extensive alterations. According to Pe-try, she had no knowledge of and had not consented to the carpeting, paneling, electrical work, or the bulletproof glass and steel door. At the time of her entry, she objected to the alterations to the workmen at the site, but could not remember whether she objected to other persons.

Soon after the alterations were complete, Money Town defaulted on the rent payments and abandoned the premises. Plaintiff Medley’s billings to Money Town for the alterations were also not paid. Thereafter, plaintiff filed this suit against Money Town and Mrs. Petry. The building remained vacant until June of 1976, when it was rented to a magazine distribution company for $400 per month. The carpeting installed by Money Town had to be removed, and the paneling protected; other alterations were also necessary before the new tenant could use the building.

Plaintiff Medley’s action is based on § 429.010 RSMo Supp.1975, which in relevant part says:

“Every mechanic or other person, who shall do or perform any work or labor upon, or furnish any material, . for any building, erection or improvements upon land, . . ., under or by virtue of any contract with the owner or proprietor thereof, or his agent, . shall have for his work or labor done, or materials, fixtures, . . ., a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of three acres; ., to secure the payment of such work or labor done, or materials, fixtures, . furnished as aforesaid; . . .”

Thus, to impose the lien, Medley must establish either a contract with “the owner or proprietor thereof, or his agent . . .” There is no evidence of a contract between Medley and the owner, Petry, for the alterations to the property—the arrangement was between Money Town and Medley. Unless Money Town was the agent of Pe-try, either expressly or by implication, the lien cannot be imposed.

The principles used to determine the existence of an agency in a mechanic’s lien situation have long been established in Missouri law. Since the statutory basis for mechanic’s liens has changed very little, the early cases are both definitive and illustrative. See Brasher, “History of Mechanics’ Lien Statutes,” 22 V.A.M.S., pp. 267-76.

The fundamental principle is that the “mere relationship] of landlord and tenant does not in itself create an agency in the tenant within the meaning of the statutes covering mechanic’s liens.” Sol Abrahams & Son Const. Co. v. Osterholm, 136 S.W.2d 86, 92 (Mo.App.1940); Ward v. Nolde, 259 Mo. 285, 168 S.W. 596, 600 (1914); McGuinn v. Federated Mines and Milling Co., 160 Mo.App. 28, 141 S.W. 467, 468 (1911).

A corollary principle is that the mere fact that the landlord or lessor consented to the lessee’s making of alterations for the lessee’s convenience does not create an agency for purposes of the lien. Ward v. Nolde, supra at 601; Curtin-Clark Hardware Co. v. Churchill, 126 Mo.App. 462, 104 S.W. 476, 477 (1907); Winslow Bros. Co. v. McCully Stone Mason Co., 169 Mo. 236, 69 S.W. 304, 305 (1902).

For an agency to exist that would allow the tenant to encumber the interest of the landlord in the property, a right “must spring from [the] contract, express or implied, between the tenant and landlord.” Powell v. Reidinger, 234 S.W. 850, 852 (Mo.App.1921). There must be some intent on the part of the landlord at the time of the signing of the lease to bind or obligate the tenant to make alterations which will amount to a permanent and substantial benefit to the leasehold. Ward v. Nolde, supra at 600. See also Powell v. Reidinger, supra; Philip Carey Co. v. Kellerman Contr. Co., 185 Mo.App. 346, 170 S.W. 449, 451-52 (1914); Curtin-Clark Hardware v. Churchill, supra.

More recent cases have followed the principles enunciated in the early case law. Utley v. Wear, 333 S.W.2d 787 (Mo.App.1960), outlines the principles discussed above and applies those principles to find an implied agency in the facts of that case. See also Newport v. Hedges, 358 S.W.2d 441 (Mo.App.1962). The law generally is in accord with the Missouri authority and is collected in 79 A.L.R. 962 and 163 A.L.R. 992.

Applying these principles to the facts of the instant case, the language of the lease agreement is of prime importance. Paragraph three as set out in the facts includes the following telling phrases:

“The Lessee has asked and the Lessor herewith grants the privilege to Lessee during the first thirty (30) days of said lease to make certain alterations in the interior of the building, all of which Lessee represents will not affect the building structurally . . . .” (Emphasis added).

The alterations itemized in the lease were relatively minor in relation to the size of the building and would not have substantially altered the character of the building or its value to the lessor. The combined effect of the permissive language and the minor nature of the alterations specified in the lease demonstrate that the lessor’s intent at the time of the signing of the lease was to do no more than to consent to minor alterations for the convenience of the tenant.

Medley argues from the language of the lease that the improvements were “necessary” and that they were therefore required by the lease. The authorities do not support the argument. Because improvements are necessary to the tenant does not make them required by the landlord as a condition of the lease. The whole thrust of the instant lease is one of permission for and not a requirement of alterations. In fact, Grothaus denied that the extensive improvements of carpeting and paneling were even “necessary.” Medley’s related argument, that the improvements were of such a permanent or substantial nature that the tenant was impliedly authorized to bind the landlord, is also not valid. First, the improvements actually made were far more extravagant than the landlord would have envisioned from the statements in the lease, and there is no showing that the plans were ever seen by Petry. Beyond that, the undisputed testimony of Mrs. Petry was that changes had to be made before the building could be leased after Money Town’s default, and that some of the alterations installed for Money Town had to be removed or changed before the new tenant could use the building.

The judgment imposing the lien arising from a court-tried case is reviewed by the standards set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The failure of the trial court to enter findings of fact and conclusions of law, even though requested by counsel has not aided the review in the light of Murphy. Assuming the most favorable review of the facts and the reasonable inferences from those facts as contended by Medley, the judgment must be reversed as a misapplication of the law. No agency relationship existed between Money Town and Petry to justify the imposition of a lien upon the Petry property. The case is reversed and remanded with direction's to enter a judgment against the plaintiff Medley and in favor of the defendant Petry on the mechanic’s lien issue.

All concur.


text:
    STATE of Missouri, Respondent, v. Jesus RODRIGUEZ, a/k/a, Jose Garcia Hernandez, Appellant.
    No. KCD 30102.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.

      Jon M. Krebbs, Asst. Public Defender, Seventh Judicial Circuit, Liberty, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was indicted for selling heroin, a Schedule I controlled substance (Section 195.020, RSMo Supp.1975 and Section 195.-200, RSMo Supp.1975). A jury found defendant guilty as charged and fixed his punishment at life imprisonment. Judgment and sentence were rendered and pronounced accordingly.

The sufficiency of the evidence to support the guilty verdict has not been challenged by defendant and a fairly terse recital of the evidence demonstrates why he has not done so. The state’s evidence, which stands uncontradicted, disclosed that at approximately 8:00 P.M. on November 1, 1977, at a motel in Kansas City, Clay County, Missouri, defendant, whose address was Tijuana, Mexico, sold eight or nine ounces of heroin to an undercover agent for the Kansas City, Missouri, Police Department for the price and sum of $16,000.00.

Defendant casts his lot on appeal with the assertion of a single point, namely, error on the part of the trial court in refusing to instruct the jury to disregard a statement attributed to defendant by one of the state’s witnesses. The events which ultimately peaked in this single point on appeal ran the following course: During the course of the undercover agent’s direct testimony, and more particularly while he was testifying about the specifics of the transaction itself, he was asked, without objection, whether there was any discussion about obtaining “other heroin from the defendant”. The undercover agent’s ultimate response to this line of inquiry was to the effect that defendant said he would like to deal in larger quantities and he preferred that arrangements be made for future sales to take place at a house he had in southern California. After this response by the undercover agent, counsel for defendant stated, “I’d like to object” and then approached the bench. At this point an extended colloquy occurred between court and counsel “out of hearing of the jury”, the gist of which, from the standpoint of defense counsel, was that the aforementioned statements attributed to defendant were undisclosed by the state in its response to a proper request for discovery, and the gist of which, from the standpoint of counsel for the state, was that the statements were sprung as a surprise by the undercover agent and had not previously been reduced to writing or known by the state. By way of concluding the verbal sparring between counsel, the trial court announced that defendant’s objection would be sustained. The following then occurred “in the hearing of the jury”:

“MR. KREBBS [Defense Counsel]: Your Honor, I’d also like to request the jury to be told to disregard.
THE COURT: Disregard what?
MR. KREBBS: The portion of his answer that he already gave.
MR. DeCUYPER [Counsel for the State]: Well, I think it should be specifically stated as to what portion.
THE COURT: Would you mind, if you would tell me what you are really requesting.
MR. KREBBS: Well, I would like for the statements attributed to the, to Mr. Rodriguez that this witness just indicated as to, I believe the officer made a statement as to he wanted to make the deal out there, and that he had a house, and all of that stricken from the record.
THE COURT: Those two things?
MR. KREBBS: Yes, sir.
THE COURT: Very well. Those will be stricken from the record.” (Emphasis added.)

Interrogation of the witness from this point on occurred uninterrupted and no motion or request of any kind was made that the jury be “told to disregard” anything. In fact, the matter was never broached again until defendant raised it in his motion for new trial.

Defendant seeks to cast a pall of prejudice over the incident by arguing on appeal that his “theory of defense” was that he was a “patsy” for an informant of the Kansas City, Missouri, Police Department and therefore evidence of his willingness to engage in future sales was highly detrimental to his avowed “theory of defense”. Defendant did not take the stand or call any witness in his behalf.

Common sense dictates that any one or all of five reasons stand in good stead as bases for rejecting defendant’s single point on appeal. One, testimony was previously introduced by the state, without objection, that “he [defendant] wanted to do more business with us and he [defendant] wanted to see this deal go down right so we could do business”, and when the trial court pressed defense counsel for specifics the latter did not direct his objection to statements attributed to defendant about his willingness to engage in future sales but restricted it to particulars as to where the future sales would occur, i. e., that “he [defendant] wanted to make the deal out there, and that he had a house”, all of which is highly inconsistent with defendant’s presently professed “theory of defense” and seems to emphasize the harmless irrelevancy of the statements to which the specific objection was lodged. Two, when the trial court pinned defense counsel down as to specifics the only relief requested was that all reference to defendant wanting “to make a deal out there, and that he had a house” be “stricken from the record”, which is exactly what the trial court did. Inasmuch as defendant received all of the relief which he specified when responding to the trial court’s demand for specifics, he will not presently be heard to complain that he should have been given additional relief. State v. Jackson, 511 S.W.2d 771, 775 (Mo. 1974); and State v. Lamb, 468 S.W.2d 209, 211 (Mo.1971). Three, the trial court at the appropriate stage in the trial (immediately prior to the opening statements of counsel), as it was required to do, instructed the jury per MAI-CR 2.02 which in part told the jury that “[y]ou will also disregard . anything which the Court orders stricken from the record”. Thus, in a very real sense the jury was instructed to disregard all objectionable statements which lie at the root of defendant’s single point on appeal. Four, defendant should not be permitted to complacently sit back and defer seeking a ruling on his earlier request to instruct the jury to disregard the objected to statements attributed to defendant until filing his motion for new trial, particularly in light of the fact that the trial court specifically ordered them stricken from the record in compliance with defense counsel’s highly specific request for relief during the course of the trial. The course of events pursued by defendant smacks of an abandonment of his earlier request that the jury be instructed to disregard the complained of statements. State v. Young, 534 S.W.2d 585, 588 (Mo.App.1976). Fifth, and last, error which might otherwise attain the height of reversible error in a close case doesn’t necessarily attain the height of reversible error in a case where the evidence of guilt is strong and stands uncontradicted. State v. Belleville, 530 S.W.2d 392, 395 (Mo.App.1975).

As any one or all of the five reasons set forth above effectively emasculates defendant’s single point on appeal, the judgment below should be affirmed.

Judgment affirmed.

All concur.


author: CLARK, Judge.

text:
    STATE of Missouri ex rel. LEVERAGE INVESTMENT ENTERPRISES, LTD., a Missouri Corporation, Relator, v. Honorable John M. YEAMAN, Judge of the Circuit Court of Platte County, Missouri, Sixth Judicial Circuit, Platte City, Missouri, Respondent.
    No. KCD 30408.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.

      David Skeer, David W. Howard, Kansas City, for relator.
    Joseph J. Kelly, Jr., Howard P. Sachs, Jerome T. Wolf, Kansas City, for respondent.
    Before SWOFPORD, C. J., and SHAN-GLER, DIXON, PRITCHARD, WASSER-STROM, SOMERVILLE and CLARK, JJ.
   CLARK, Judge.

Relator seeks prohibition against respondent judge of the Circuit Court of Platte County to restrain enforcement of respondent’s orders entered August 18, 1978 in a cause wherein relator is plaintiff and Diversified Mortgage Investors (hereafter DMI) and others are defendants. Preliminary rule in prohibition was issued and, for the reasons here stated, writ of prohibition is made absolute in part and is dissolved in part.

Relator is engaged in the business of land acquisition and development. In connection with a residential sub-division, country club and golf course project, relator and DMI, a real estate investment trust, entered into agreements in 1973, the general tenor of which was a commitment by DMI to finance the project by providing direct loans to relator and through issuance of “take-out letters”. The latter is a vehicle whereby the borrower may obtain temporary construction financing upon the guarantee of a third party (here DMI) subsequently to assume the loan on a permanent basis. Security for advances was by deeds of trust executed by relator conveying the real estate under development to a trustee for the benefit of DMI.

Substantial sums were provided relator by DMI under the agreement, development of the project progressed, but disputes arose as to the extent of DMI’s financing obligations, particularly concerning the “take-out letter” and the diligence and capability of relator in pursuing the project to completion. Such controversies matured in December 1974 when relator commenced an action against DMI in the United States District Court. Alleged there was DMI’s breach of the agreement for project financing and relief sought was restraint against DMI’s threatened foreclosure of the deeds of trust coupled with claims for damages. During pendency of the suit in federal court, however, DMI proceeded with foreclosure and on April 21, 1975, the property was sold at a trustee’s sale to DMI.

Notices of lis pendens were filed by relator in conjunction with the federal court action, such notices being recorded January 13, 1975 and April 21, 1975 in the office of recorder of deeds for Platte County, the situs of the land. The federal court case was eventually dismissed by stipulation and without prejudice when it became apparent that federal jurisdiction was absent. Prior thereto and, in apparent anticipation thereof, relator had initiated the present suit now pending before respondent.

The alleged claim of relator to an interest in the real estate as advanced in the state court was reflected in a third notice of lis pendens filed with the Platte County recorder November 14, 1977. At all material times prior and subsequent to the foreclosure sale, at least one notice of lis pendens was therefore continuously of record and, as a direct consequence of such notices of record, DMI has been precluded from any transfer of the real estate except subject to ultimate disposition of relator’s claim.

Allegations of relator in the present suit include many of the claims appearing in the federal court action but revised to reflect changed circumstances occasioned by the accomplished fact of the mortgage foreclosure. Relator contends, in summary, that initial breach of the project financing agreement was by DMI when a take-out letter was not issued and that such breach excused relator from further repayment obligations to DMI on prior advances. Foreclosure sale of the real estate is contended by relator to have been unwarranted absent a subsisting debt in default. Reconveyance of the property and damages are sought. In response, DMI denies any contract breach by it, asserts the validity of the foreclosure sale and asks judgment on relator’s petition.

On the issues joined, DMI moved for partial summary judgment as to that portion of relator’s Count I seeking to recover title to the real estate, for summary judgment on Count II where actual and punitive damages were claimed, moved for release of the lis pendens and moved to dismiss the remaining claims for failure to state a cause of action. Both motions were sustained by respondent’s orders of August 18, 1978 which read in pertinent portions as follows:

“It is ordered, adjudged and decreed that partial summary judgment be entered against plaintiff and on behalf of said defendant with respect to paragraphs (a) and (b) of the prayer to Count I of plaintiff’s petition herein and that such paragraphs (a) and (b) of Count I of plaintiff’s petition be stricken therefrom;”
“Further that summary judgment is hereby entered against plaintiff and in favor of said defendant on Count II of plaintiff’s petition;”
‘‘Further that the following Notices of Lis Pendens are hereby released, expunged and declared null and void;”
(Followed by detailed descriptions of the three notices filed January 15,1975, April 21, 1975 and November 14, 1977.)
“It is ordered that paragraphs 11 and 12 of Count I of plaintiff’s petition be and hereby are stricken, with leave to file an amended petition within thirty (80) days of the date of this order, properly setting forth, according to law, plaintiff’s claim with respect to the proximate cause of its damages.”

In Count I, paragraphs (a) and (b) of the prayer of relator’s petition, the subject of the dual and inconsistent order which granted DMI judgment as to such claims and struck the paragraphs, relator sought an order setting aside the trustee’s foreclosure sale and a mandatory injunction directing DMI to convey the land to plaintiff. Additional sub-paragraphs of the prayer, which remain, encompassed claims for mandatory injunction to compel DMI to perform on its loan agreement and for damages, interest and other relief. The paragraphs ordered stricken from the body of the petition were those which alleged breach by DMI of the project financing agreement and the statement of relator’s actual damages and lost profits. Count II of the petition, on which respondent’s order granted DMI summary judgment, included by reference Count I allegations supplemented by the contention that DMFs acts were willful, deliberate and malicious. The prayer was for actual and exemplary damages.

The consequence of respondent’s order was, therefore, summarily to adjudicate adversely to relator its action to reclaim the foreclosed real estate, to deny relator actual and punitive damages on the claim of DMI’s willful breach of the contract and to strip from the remaining Count I the essential pleaded elements of liability and damages subject, however, to the opportunity to file an amended petition.

Respondent’s orders of partial summary judgment contained no findings of fact and, being a partial disposition of the cause, were thereby violative of Rule 74.04(d). While this deficiency in the record presents a substantial impediment to a consideration of relator’s contention that respondent exceeded his jurisdiction by entering the orders above, relator here challenges respondent’s jurisdiction in the following respects: (a) respondent’s orders striking portions of the petition deny relator the benefit of Rules 55.04 and 55.05 establishing minimum standards for pleading; (b) respondent’s entry of partial summary judgment was in contravention of factual disputes remaining unresolved; and (c) respondent’s order releasing the notice of lis pendens was not supported by a valid final judgment.

As to that portion of respondent’s order striking portions of relator’s pleading allegations, the merits of any question applying Rule 55 are not ripe for appellate review. Whatever may be the factual and legal questions and their resolution which persuaded respondent that relator’s petition was deficient, relator yet has the option, as provided in respondent’s order, to amend its petition. Relator may accept the opportunity to plead again or may elect to stand on the original allegations. In either event, the merits of the final disposition of all or a severed portion of the cause are reviewable by appeal and not by prohibition. State ex rel. McCurley v. Hanna, 535 S.W.2d 107 (Mo. banc 1976); Crackerneck Country Club, Inc. v. Sprinkle, 485 S.W.2d 652 (Mo.App.1972).

The consequence, however, of respondent’s order striking the paragraphs of Count I of relator’s petition was, in part, that colorable substance was thereby created to support respondent’s entry of partial summary judgment. Excess of jurisdiction obviously is in issue if, after sustaining a motion to strike and granting leave to amend, the court proceeds to render judgment on the pleadings before the responding party is permitted an opportunity to remedy the deficiency which the court’s order created. From the record here, it appears that respondent’s orders entered simultaneously accomplished such a result. To the extent the orders to strike bear on the issues of summary judgment, jurisdiction is in issue and will be considered within the well defined limits of relief available in prohibition. State ex rel. Vogel v. Campbell, 505 S.W.2d 54 (Mo. banc 1974).

Pending before respondent on motions by DMI were the claim that relator’s petition failed to state a cause of action by reason of the absence of any allegation that without default by DMI relator would have completed the project, a request that the notices of lis pendens be released and the motion for summary judgment on the issue of relator’s claim to recover the real estate in issue. As briefed, the summary judgment question was limited to the issue of an election of remedies and consequent estop-pel resulting from a statutory notice to redeem from the trustee’s foreclosure sale filed by relator prior to the sale in which DMI acquired title. (Section 443.410, RSMo 1969).

In like manner to the issue of pleading sufficiency in relator’s Count I paragraphs, the question of estoppel created by relator’s abortive attempt to redeem from the foreclosure sale is a substantive issue on the merits of the case reviewable on appeal. Being possessed of the cause, respondent was within his jurisdiction in ruling the questions of whether relator’s petition allegations stated a cause of action and the legal effect of the redemption notice given by relator at the time of the trustee’s sale. The difficulty with respondent’s orders, however, apart from the enigmatic dearth of recited factual support, is that they are reciprocally incompatible.

Viewed as a whole, relator’s petition asked sequential relief in recovery of title to the real estate under development, performance by DMI of the contract obligation for financial support and damages, the latter being not in place of but in addition to the former. Relator’s prime objective at all times has been restoration of its title to the land. The notice of lis pendens ordered expunged by respondent is the sole barrier to prospective conveyance of the property to an innocent purchaser for value and ex-tinguishment of relator’s equitable claim. Only, therefore, on final judgment adverse to relator’s claim can there be any justification for release of the lis pendens notice. 51 Am.Jur.2d Lis Pendens Section 32. Respondent’s orders, however, do not fully adjudicate the controversy between relator and DMI and the order expunging the lis pendens is premature.

In the present state of the cause before respondent, a one-count petition pends with allegations of DMI’s contract breach and relator’s damages yet to be supplied in amended form in accordance with respondent’s order of August 18, 1978. It may therefore be assumed that respondent anticipated the possibility that these essential elements of the cause of action could be alleged and that leave to file the amended petition was not facetiously granted. Relator’s contention has been and presumably will continue to be that its cause of action originated on May 21, 1974 with DMI’s contract breach. The possibility therefore remains that at least to the level of issues joined in the pleadings, a factual and legal question to be resolved will be the occurrence of that breach and its consequences.

Facially, respondent’s order granting partial summary judgment adverse to relator’s equitable claim to regain the land foreclosed was based on the effect of the notice to redeem which estopped relator from pursuit of any other equitable remedy. It is apparent, however, that if relator alleges and proves DMI’s breach of the project financing agreement from which the security interest arose, a breach alleged to have occurred some eleven months prior to the foreclosure, then consideration for the subsisting debt and default thereon by relator as a condition to foreclosure will have failed. Valid foreclosure depends on breach by the mortgagor of a condition authorizing foreclosure at the time the foreclosure proceeding was commenced. Spires v. Lawless, 493 S.W.2d 65, 70 (Mo.App.1973). Relator expressly alleges that prior breach by DMI of the financing contract vitiated the right of DMI subsequently to invoke the payment default as a condition empowering foreclosure, and the existence of such unresolved issue is recognized by respondent’s order permitting relator to amend its petition with respect to such claim. The orders granting summary judgment and granting leave to file an amended petition are inconsistent and incompatible.

As additional indication of the dilemma posed by the partial summary judgment order which struck paragraphs (a) and (b) of the Count I prayer concurrently with rendering judgment thereon for DMI, that order permitted the succeeding paragraph (c) to remain, presumably to be supported by amendment to the petition allegations for which leave was granted as above noted. Paragraph (c), however, sought a mandatory injunction ordering DMI to perform on its loan agreements to furnish relator funds with which to develop the project on the subject land. The vitality of the loan agreement and any prospective benefit to relator obviously depended entirely on relator’s ownership of the real estate, a prospect terminated by the judgment which eliminated from the cause relator’s claim to recover the property. Relator therefore was confronted with an order which ostensibly permitted the cause for relief asked in paragraph (c) to stand but which had rendered the issues thereunder moot and which had, by striking the notice of lis pendens, abrogated relator’s statutory right to preserve title to the real estate, the primary object of controversy, in status quo.

While the action of the trial court here in ruling on motions by DMI for partial summary judgment was within the general jurisdiction of the court and within that classification of discretionary acts normally reviewable only by appeal, exceptions exist under particular circumstances where appeal is an inadequate remedy. State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141 (Mo.App.1974); State ex rel. Smith v. Greene, 494 S.W.2d 55 (Mo. banc 1973). In State ex rel. Sisters of St. Mary, the court made absolute the preliminary writ prohibiting the trial court from overruling a motion for summary judgment where the statute of limitations was a bar to plaintiff’s cause. In State ex rel. Smith, the writ was found to lie to prohibit the trial court from striking plaintiff’s claim for punitive damages where a cause of action for such damages was properly pleaded.

The common thread which joins cases of this nature is the recognition that the discretionary order of the trial court leaves the relator with no effective remedy by appeal and relegates further disposition of the case at the trial level to a foredoomed result. The critical event in the present case is the release from public notice of relator’s claim of equitable title. Conveyance of the real estate to an innocent purchaser pending trial of the cause would effectively nullify any opportunity for relator to obtain relief on equitable grounds. So too is the consequence of respondent’s order granting relator leave to plead further. Confronted with partial summary judgment which has effectively ruled the substantive issues in the case, further attempts by relator to plead would be patently futile. In so denying relator the opportunity to plead and litigate its cause of action to a final judgment reviewable by appeal and to preserve from alienation pending such final judgment the real estate as the subject of the controversy, respondent exceeded his jurisdiction.

The preliminary writ heretofore issued is therefore made permanent as to respondent’s “Order Granting Partial Summary Judgment and Releasing Notices of Lis Pendens” and is ordered quashed as to respondent’s “Order Striking Paragraphs 11 and 12 of Plaintiff’s Petition With Leave to Amend”.

All concur.

      . No order restraining foreclosure was issued by the court, apparently by reason of the failure of relator to supply an indemnification bond securing DMI for accrued interest and other expenses.

      . Expunction of the Us pendens notices filed January 15 and April 21, 1975 was superfluous as dismissal of the federal court suit from which the notices were generated rendered the notices functus officio. Tate v. Sanders, 245 Mo. 186, 149 S.W.2d 485, 490 (1912).

      . DIM’s motion for partial summary judgment was not directed specifically to either count of the petition nor did the motion state any ground therefor. Respondent’s basis for the award of summary judgment to DMI on Count II is not disclosed by the record.

      . An additional issue, the constitutional challenge to the Missouri lis pendens statute as providing for appropriation of a significant property interest without procedural safeguards, has been briefed but abandoned in light of Home Building Corp. v. Ventura Corp., 568 S.W.2d 769 (Mo.1978). The decision there approved the statutory notice of lis pendens as available without the requirement of a hearing on the ground that a significant property interest is not thereby acquired.


author: PER CURIAM.

text:
    Madeline Joyce JENKINS, Respondent, v. Earl G. JENKINS, Appellant.
    No. KCD 30187.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Rehearing Denied May 1, 1979.
    Stipp & Thomas, Christian F. Stipp, David Thomas, Carrollton, for appellant.
    Jack D. Lukehart, Brunswick, for respondent.

      Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PER CURIAM.

This is an appeal taken by the husband from a decree entered in a dissolution of marriage proceeding. It stems from the husband’s denial under oath that the marriage was irretrievably broken.

A single point is relied upon by the husband on appeal. He takes the position that the evidence was too deficient to permit the court, within the perimeter of Section 452.-320.2, RSMo Supp.1977, to find that the marriage was irretrievably broken. A unanimity of opinion exists between the parties that neither adultery, abandonment, nor any of the requisite statutory periods of separation, consensually or otherwise, are supported by the evidence. Thus, subpara-graph (b) of Section 452.320.2(1), supra, takes on major significance: “That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;”. One of several findings of fact reached by the trial court was that the husband had behaved in such a way that the wife could not reasonably be expected to live with him, and on that basis the trial court ultimately concluded and adjudged that the marriage was irretrievably broken. Uncontradieted evidence of the husband’s proclivity for strong drink over a protracted period of time culminating in the couple’s separation, throughout all of which the wife suffered in silence, amply justified the trial court in finding that the wife could not reasonably be expected to continue to live with the husband, and, concomitantly, that the marriage was irretrievably broken.

Any inclination on the part of this court to disturb the judgment on appeal is effectively allayed by the command of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976), which tightly circumscribes the scope of appellate review in court tried cases.

Judgment affirmed in compliance with Rule 84.16(b).

      . “452.320 . . .
      2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and after hearing the evidence shall
      (1) Make a finding whether or not the marriage is irretrievably broken, and in order for the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the court of one or more of the following facts:
      (a)That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
      (b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
      (c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;
      (d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;
      (e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition; . . ”


author: ROBERT LEE CAMPBELL, Special Judge.

text:
    STATE of Missouri, Respondent, v. James L. COPHER, Appellant.
    No. 10675.
    Missouri Court of Appeals, Southern District, Division One.
    April 9, 1979.
    Respondent’s Motion for Rehearing or/for Transfer to Supreme Court Denied April 30, 1979.

      John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, Brenda Farr Engel, Asst. Attys. Gen., Jefferson City, for respondent.
    David Robards, Public Defender, Joplin, for appellant.
   ROBERT LEE CAMPBELL, Special Judge.

Defendant was convicted by a jury of striking a police officer engaged in the performance of his duties in violation of § 557.215. The court sentenced defendant as a habitual offender to a term of five years in the custody of the Missouri Department of Corrections. Although the points advanced on appeal were not preserved in the trial court, we reverse and remand on the basis of plain error.

On June 12, 1976, Steven Gregory Ford, a uniformed Joplin police officer, operating a black and white police vehicle with red lights flashing, arrived at the location of a fight. Defendant refused the officer’s request to approach the police vehicle, began backing away, and engaged in an extensive altercation with Officer Ford, including hitting Officer Ford with his nightstick. Further necessary facts will be set forth in the body of the opinion.

Defendant was charged with striking a police officer engaged in the performance of his duties in violation of § 557.215, which provides:

“Any person who shall willfully strike, beat or wound any police officer, . . . while such officer is actively engaged in the performance of duties imposed on him by law, ... is guilty of a crime . . .”

The state’s verdict directing instruction required a finding that defendant “did wil-fully, unlawfully and feloniously strike, beat or wound one Steve Ford, . . .” The verdict directing instruction did not require that defendant know that Steve Ford was a police officer actively engaged in the performance of his duties.

Instruction No. 6, given by defendant, was as follows:

“If you find and believe by the greater weight of the evidence that the defendant, at the time and place referred to in Instruction No. 5 did not know Steve Ford was an officer of the Joplin Police Department, then you must find the defendant not guilty.”

Defendant first contends that the state’s verdict directing instruction is erroneous because it did not require a finding that defendant knew Officer Ford was a police officer actively engaged in the performance of his duties. Defendant contends that knowledge is a prerequisite for conviction under § 557.215. In this assertion, defendant is correct. The statute makes it a separate and distinct crime to assault a police officer engaged in the performance of his duties. What would ordinarily be a common assault, a misdemeanor under § 559.220, becomes a felony if the person willfully assaulted is a police officer engaged in his duties as such. “Willfully” means “intentionally” or “knowingly.” State v. Shuler, 486 S.W.2d 505 (Mo.1972). We hold that knowledge that the person assaulted is a police officer engaged in his duties is a necessary element for conviction under § 557.215.

In this case, the instructional error was compounded by the closing argument of the prosecuting attorney. The prosecutor argued:

“Let me tell you what the defendant has to prove. This is what the defendant has to prove. He has to prove by the greater weight of the evidence that at the time and place referred to, he did not know that Steve Ford was an officer of the Joplin Police Department. What I am trying to tell you is this: It’s not up to the State to prove that he did know; it’s up to the defendant to prove that he did not know.”

The evidence disclosed that prior to the arrival of Officer Ford, defendant had been struck on the head several times with a tire tool, had been unconscious, and had a depressed skull fracture with resulting brain concussion. Defendant’s entire defense was that he did not remember anything that transpired after being struck in the head with the tire tool, and that he did not knowingly assault a police officer. It is true that the state’s evidence was that defendant, prior to assaulting Officer Ford had stated that he would not go back to the “joint” alive and that he hated “pigs” was strong evidence that defendant knew that he was assaulting a police officer. Nevertheless, the closing argument of the prosecuting attorney, which shifted the burden of proof to the defendant on the issue of knowledge, was manifestly unfair and clearly prejudicial to defendant.

The Supreme Court in State v. Reeder, 395 S.W.2d 209 (Mo.1965) applied the “plain error” rule and reversed a conviction on facts substantially similar to this case. There, at p. 211, the court held:

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

In the case before us, we have the plain error of closing argument in addition to the instructional error. In this situation, we must hold that manifest injustice has resulted. Accordingly, the judgment is reversed and remanded for a new trial.

FLANIGAN, P. J., TITUS, J., and PYLE and KENNEDY, Special Judges, concur.

      . All statutory references are to RSMo 1969, V.A.M.S.


author: GREENE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Richard RUSSELL, Defendant-Appellant.
    No. 11010.
    Missouri Court of Appeals, Southern District, Division Three.
    April 27, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Daniel T. Moore, Poplar Bluff, for defendant-appellant.
   GREENE, Judge.

Defendant was charged, by information filed on March 7, 1977, in Butler County, Missouri, with one count of forcible rape and one count of sodomy. Subsequently, the information was amended to charge defendant with those offenses under the Second Offender Act, § 556.280 RSMo 1969, V.A.M.S. The court, after hearing, found the defendant to be a second offender, since he had a prior felony conviction. The case was tried before a jury in Butler County on February 21, 1978, and the jury returned a verdict of guilty on both counts. Defendant timely filed a motion for new trial, which was overruled by the trial court. The trial court then entered its judgment and sentenced defendant to 20 years for rape on Count I, and 15 years for sodomy on Count II, with the sentences to run concurrently.

Defendant then appealed. His sole point, preserved for review, is that the state’s evidence was not sufficient to sustain a conviction for the reason that the evidence presented by the prosecuting witness, Sally Ann Harris, was not convincing, was contradictory in nature, was unbelievable, was in conflict with the testimony of other witnesses, and was contrary to common experience, and that, therefore, her testimony, by reason of law, needed to be corroborated. Defendant further contends that since the testimony of prosecutrix was not corroborated, the evidence was insufficient to sustain his conviction on either count.

At the trial, defendant offered evidence in his own behalf, after the court had overruled his motions for judgment of acquittal on both counts, which he had filed at the close of the state’s case. He did not file motions for judgment of acquittal at the close of all of the evidence and, therefore, has waived the objection that he raises on appeal as to the insufficiency of the evidence. Myers v. United States, 337 F.2d 22, 23 (8th Cir. 1964); State v. Brown, 554 S.W.2d 574, 580 (Mo.App.1977). However, we exercise our right to review defendant’s contentions under the plain error doctrine, rule 27.20(c), V.A.M.R., as it would have been plain error to submit the case to the jury if the evidence was not sufficient to sustain the convictions. State v. White, 439 S.W.2d 752, 753 (Mo.1969). A review of the evidence is therefore necessary.

Sally Ann Harris, the prosecutrix, hereinafter referred to as Sally, testified that she was 18 years old at the time of the alleged crimes. She was a college student at Three Rivers Junior College, and was studying to be a dental assistant. On the evening of January 29, 1977, she and a girlfriend, Paula Allen, went to the Sunset House, a cocktail lounge in Poplar Bluff. They arrived a little after 9 p. m. Defendant was also at the Sunset House. Sally had not known him prior to that time. He asked both girls to dance, and both girls danced with him. Sally drank two or three beers while there, one of which was purchased by defendant. The girls left the Sunset House, and went to the Tijuana Lounge, where they saw the defendant again. Sally had not asked him to meet them at the Tijuana, but Paula may have done so. The Tijuana was closing when the girls walked in, the time being about 1 a. m., on January 30th. Defendant asked the girls if they wanted to go to the Eagles Club, and they said yes. Sally, Paula and defendant then proceeded to the Eagles Club.

The club is a two room structure. One room contains the bar and the other, referred to as the back room, contains a bandstand, tables and a dance floor. The two rooms are connected by a door. The girls and defendant went to a table in the back room. There were 20 to 25 people in the back room at that time who were drinking and listening to the band. Sally drank a bourbon and coke. The band played for a few minutes, and then quit for the evening. Sally, Paula, defendant and another man were sitting at a table. Defendant suggested sexual intercourse to Sally and she said no. Paula, the other man at the table and all of the other people, except for Sally and defendant, left the room. Sally then got up to leave. Defendant was still talking to her about sex. He then grabbed her by the arms, pushed her to the floor, got on top of her and said, “If you move I’ll kill you”. Her glasses fell off when she hit the floor.

Defendant dragged Sally by the hair and arms to the storeroom, a small room adjacent to the back room which they were in. Defendant had one hand on her throat. She was pushing, kicking and trying to get away. Defendant pushed her to her knees and forced her mouth over his penis. He then made her lie down on the floor and forced her to take her pantyhose and panties off. At this time, he was also choking her. She tried to yell but could not because of the choking. Defendant then raped her by penetrating her private parts with his penis by the use of force. At this time, she was in fear for her life, because of his threats to kill her if she did not submit. During the rape, he continued his threats to kill her, and struck her on the back of the head and in the back. She continued to kick him and to struggle, but to no avail. When defendant was finished, he told her to stay where she was or he would kill her. Defendant then left the room. When Sally was thrown on her back in the storeroom, she felt her back become wet and she smelled beer. She did not know whether or not the defendant ejaculated during the intercourse.

When defendant left the room, Sally put on her underthings, went to the front room and asked the bartender to let her out of the club, since the door was locked. She did not say anything else to the bartender. The next thing she remembered she was at the police station. She was taken to the hospital where she was given a pelvic examination by a doctor, and then taken back to the police station where she gave a tape recorded statement. On cross-examination, she testified that she had not been in Vic’s Lounge that evening, that she did not know how long she had been in the Eagles Club that evening before the assault, that she yelled and screamed when defendant was trying to drag her back to the storeroom and that defendant continued to threaten her and choke her during most of the time of the assault. She remembered telling the police that she had been raped when she got to the police station, but did not tell them about the sodomy until a later time. She had not had sexual intercourse with anyone for two days prior to the day in question. She was never beaten on the face but was hit on the head by defendant. Nothing that prosecutrix testified to on cross-examination contradicted, in any way, her direct testimony on any significant issue.

Other relevant evidence received, as part of the state’s case in chief, was as follows. George Prince testified that he was a Poplar Bluff police officer, and that he saw Sally Harris at about 3 a. m. on January 30, 1977, sitting on a bench at City Hall. Loyd DeCourley and a female companion were with her. Sally’s clothes were “mussed”, she was tearful, incoherent and hysterical. She kept saying, “Why me?” It took Officer Prince at least 15 minutes to calm Sally down before she was taken to the hospital. When the officer received her clothes from the hospital emergency room, the clothes were damp and had a strong odor of beer on them.

After they returned from the hospital, Officer Prince interviewed Sally. Because of her emotional state, he could not obtain a written statement. Her eyes were red and bloodshot, she was crying, she was very nervous and hysterical, and, at times, she was incoherent. She was unsteady on her feet. She identified a Jim Russell, which is the name of the defendant, as the person who had raped her. Her hair was mussed up, and he did not believe Sally to be intoxicated.

Thomas Pruett testified that he was a Poplar Bluff police officer. He saw Sally about 3 a. m. on January 30, 1977. She was in the hallway at the police station. She was hysterical, hard to understand, and her clothing was disarrayed. Her skirt was wrinkled and a button was undone on her blouse. She kept repeating, “Why, why” or “Why me?”. The back of her clothing was wet and her hair was “mussed up”. Sally had three red marks on the right side of her neck. In his opinion, Sally was not intoxicated.

Dr. Briner, the chief chemist at the Regional Crime Laboratory in Cape Girardeau, testified that, by means of laboratory examination, a high concentration of acid phosphatase and coline, two components of male seminal fluid, was found in the crotch area of Sally’s panties. The examination was made about 8 a. m. on January 31, 1977. Dr. Briner also testified that the chemical elements found indicated that intercourse had, or may have taken place, but that ejaculation certainly had taken place. He did not find any male sperm in his examination of Sally’s clothing, but said that the absence of sperm was not an unusual finding in such cases. The testimony referred to above constituted the relevant evidence in the state’s case in chief.

The substance of defendant’s evidence was as follows. Dr. Turner, a physician, saw Sally at the hospital at 3:21 a. m. on January 30, 1977. She stated to him that she had been raped. He examined her and found no evidence of bruises on her body or face. She did not tell him that she had been a victim of sodomy. He said it was possible to get red marks on your throat, if someone gripped it, without getting bruises as a result.

Dr. Richard Ramirez, a pathologist at the hospital, made a sperm test from a sample taken from the vagina of Sally, and did not find any sperm. He did not test for acid phosphatase.

Cletus Guard, Jr. was in the Eagles Club on the night in question. He left the club about 3 a. m. There were about ten people in the club when he left. He saw defendant on that night. Defendant came in with two ladies and went to the back room, where they sat down at a table. One of the young ladies left the club before defendant, and she was “kinda nervous about getting out”. Defendant then went to the restroom, came to the bar, got a drink, and left the building. Guard did not hear any screaming or commotion from the back room. People were still in the club when defendant left. Guard admitted that you could not hear someone “holler” in the back room if you were in the front, or bar room.

Harry Allen was the bartender at the club. He saw defendant with two girls on the night in question. They were sitting in the back room. The band quit playing about 1:30 to 2:00 a. m. When the band quit, 15 to 20 people were still in the club. He did not hear any fight or commotion from the back room. He saw both girls leave. The first girl left with several people. The second girl left by herself about 30 minutes later. Defendant was still at the club and left later. Allen did not go into the back room in the period of time between when the first girl left the premises and when the second girl left.

Ricky Guard was at the Eagles Club between 8 p. m. and 2:30 or 3 a. m. He did not hear any screaming or commotion from the back room that night. He let Sally out of the building. Sally was pulling her hair after she got out of the building. He had told the police that Sally was upset when she left, but changed his story at the time of trial. He said he did not believe in telling police officers the truth.

Loyd DeCourley was the last witness for the defendant. At the time of trial, he was a Butler County deputy sheriff. On the night in question, he was an employee of the Poplar Bluff Police Department. He first saw Sally at about 10:30 p. m. on the night in question. She was in the Tijuana. She was drinking what appeared to be beer. He saw her a few minutes later at Vic’s which is just south of the Tijuana. He saw her later that evening at a time he thought was about 2 a. m. He had just gone off duty and had gone to the police station to get his car to go home. He heard a shrieking, screaming sound, looked across Broadway, and saw a young lady fall. He went to her aid. It was Sally, and she was hysterical. He picked her up and carried her into the station. Her face was “tear stricken”. She was very spastic, was incoherent and was shrieking. She said something about the Eagles Club and about being raped. He did not know if Sally was drunk or not. Sally told DeCourley, and other officers at the station, who had raped her. His testimony concluded the relevant evidence for the defendant.

Defendant, in his argument, contends that since prosecutrix had consumed three bottles of beer and a mixed drink during the evening in question, was unsteady on her feet and had red, bloodshot eyes when questioned by the police after the alleged attack, that since she continued to struggle and scream after being told by defendant that he would kill her if she did not submit, and that since no spermatozoa were found on her clothing or in her vaginal canal, that her testimony regarding the rape and sodomy was contradictory and unconvincing and, therefore, needed corroboration. We disagree. There was no direct testimony in the case that prosecutrix was intoxicated, from which the jury might infer that her powers of recollection were faulty. In addition, several witnesses stated that, in their opinion, she was not intoxicated after the alleged attack. Her red, bloodshot eyes and unsteady gait were just as consistent with hysteria and prolonged crying as they were with drunkenness. As to the absence of sperm, Dr. Briner testified that the lack of sperm on the victim’s clothing was not unusual in cases of this type. Also, Dr. Turner testified that there are certain conditions under which a male, by ejaculation, would produce acid phosphatase in the seminal fluid, but would not produce sperm, as, for instance, in a case where the male had undergone a vasectomy procedure. Defendant finally asserts that, because Sally continued to struggle and scream after being told she would be killed if she did not submit, her testimony was therefore unbelievable. We deem it not contrary to common experience for a woman, in a struggle to protect the privacy of her body from the forced intrusion of a would-be rapist, to struggle and cry out, even though she had been threatened with bodily harm if she did not submit.

The crime of forcible rape, as alleged in Count I of the information, made it incumbent upon the state to prove the essential elements of carnal knowledge by force, and against the will of the prosecu-trix. State v. Garrett, 494 S.W.2d 336, 338 (Mo.1973). As to Count II, the state merely had to prove that the act of sodomy occurred, as lack of consent is not an issue. State v. Pfeiffer, 277 Mo. 202, 212, 209 S.W. 925, 928 (1918). In deciding whether or not the evidence is sufficient to sustain a conviction in rape and other sexually oriented cases such as sodomy, the rule is that corroboration of the testimony of the prosecu-trix is not required, unless her testimony is contradictory and in conflict with physical facts, surrounding circumstances, and common experience to such an extent that its validity is doubtful. State v. Wood, 355 Mo. 1008, 1012, 199 S.W.2d 396, 398 (1947); State v. Bursley, 548 S.W.2d 586, 588-589 (Mo.App.1976). It is clear, from the evidence in this case, that the testimony of the prosecutrix, standing alone, made a submis-sible case for the jury. Her testimony was not contradictory or in conflict, in any significant aspect, with other testimony, physical facts, or surrounding circumstances. It was not contrary to common experience, and therefore, was not required to be corroborated. State v. Tripp, 558 S.W.2d 809, 810 (Mo.App.1977).

In addition, the corroboration rule, which has been criticized in Missouri as an “exception to the general rules governing appellate review”, State v. Platt, 496 S.W .2d 878, 880 (Mo.App.1973), but which is still the law, as it has not been rejected by the supreme court of this state, State v. Neal, 484 S.W.2d 270, 272 (Mo.1972), has no place here as the testimony of the prosecutrix was amply corroborated by other witnesses. Without belaboring the point, there was substantial evidence from several witnesses that Sally, soon after she left the Eagles Club was incoherent, hysterical and crying. She had red marks on her throat, and her clothes were in disarray. Her clothes were damp and smelling of beer, which corroborated her testimony that she was thrown on her back in some spilled beer when she was raped. She told the police she had been raped as soon as she was asked what was the matter with her and told them later that she had also been sodomized. She kept repeating “Why?” and “Why me?”. Her panties contained substantial amounts of chemical substances found in male seminal fluid. It is difficult to conceive what stronger corroborating evidence could have been presented to the jury.

Since we find that the testimony of the prosecutrix was clear and convincing, not contradictory, and not in conflict with the physical facts, surrounding circumstances, and common experience, and, in addition, since we find that her testimony was amply corroborated, there is no need to set out and distinguish those cases cited by defendant in his brief, as all of them deal with situations where the testimony of the prosecu-trix was patently confusing and contradictory, and where there was no corroboration.

It was the function and duty of the jury to hear the evidence, and to give it such weight and value as they thought it deserved, to determine the credibility of the witnesses, and to render such verdicts as they thought proper, based on the evidence and the instructions of the court. The jury here has done so. In our view, this court should only determine if there was substantial evidence to support the verdicts of guilty that the jury returned. State v. Talbert, 454 S.W.2d 1, 4 (Mo.1970).

After a careful examination of the record, we conclude that there was substantial evidence to support the findings of the jury, and therefore, their verdicts of guilty on both counts of the information should not be disturbed.

The judgment of the trial court is affirmed.

FLANIGAN, C. J., and BILLINGS and MAUS, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Jimmy Earl HARDIN, Appellant.
    No. KCD 29134.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      C. Michael Fitzgerald, Warrensburg, for appellant.
    John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   CLARK, Judge.

Defendant appeals his jury conviction for manslaughter and the resultant sentence of six years. Affirmed.

The evidence established and defendant did not dispute that the victim met his death as an immediate result of gunshots fired at him by the defendant. The factual issue was self-defense.

On the evening of the occurrence, the defendant and the victim had argued over dance music being played at a tavern. No physical contact was made and defendant, being displeased with the treatment he had received, left to seek entertainment elsewhere. Later, however, defendant returned and exchanged further words with the victim whereupon defendant and his friends were escorted by a tavern employee outside to a parking lot.

The dispute and defendant’s re-entry to the tavern continued in a debate with the tavern employee and, while this conversation was in progress, the victim emerged from the tavern. Remarks which were directed toward the victim from the group where defendant was standing produced a further verbal exchange. As the victim walked toward defendant, the latter drew a .25 caliber handgun from his rear pocket and commenced firing. Four chest wounds were inflicted on the victim, two of which were fatal.

Defendant first asserts that his cross-examination of witness Bruce Reed, the tavern employee, was improperly limited by the trial court and that his right of confrontation was thereby abridged. The specific subject of inquiry was the attitude, movement and appearance of the victim as he approached the defendant in the parking lot.

Witness Reed, on direct examination, testified that immediately before the shooting the victim was moving toward the defendant at a slow walk and that he was not in a “stance” or “crouch”. On cross-examination, defendant’s counsel asked Reed if he would characterize the walk of the victim as a “controlled walk”. Objection to this question as calling for a conclusion by the witness was sustained.

Defendant contends that his inquiry as to “controlled walk” was relevant to the issue of self-defense and that refusal of the trial court to permit the question denied defendant the right to confront the state’s witness. This assignment of error fallaciously assumes (a) that relevancy was the ground on which the objection to the question was sustained, and (b) that the ruling of the trial court precluded any cross-examination of the witness as to the appearance and demeanor of the victim.

The trial court is afforded wide latitude in the exercise of its discretion to control cross-examination. Appellate courts will interfere only upon a clear showing of abuse of discretion. State v. Howard, 564 S.W.2d 71 (Mo.App.1978). The court did not refuse counsel the opportunity to restate the question or clarify the purpose and, hence, it may not be contended that sustaining of the objection precluded an attempt to portray the physical posture of the victim as an aggressor. Where defendant chose to stand on the single question to which the objection was sustained, it may not thereby be concluded that the trial court has abused its discretion. State v. Williams, 538 S.W.2d 947 (Mo.App.1976).

The record here indicates only the sustaining of the single objection, not on grounds of relevancy but because the term employed in the question, “controlled walk,” was uncertain and conclusionary. Defendant was thereafter entitled to rephrase the question or pose other questions related to the victim’s appearance and actions but, for reasons not appearing in the record, elected to abandon this line of inquiry. No abuse of discretion by the trial court is shown.

Defendant’s next point suggests error in a question asked of state’s witness Pirch and his response, to both of which defendant objected. The question asked the witness, who was a deputy sheriff, what defendant had told him regarding the shooting of the victim. The answer was, “[t]hat, well, he knew he shot the man, that he knew it was wrong; he said he knew that he was going to the penitentiary for life.” The grounds of alleged error are that the question was framed to permit a narrative response precluding defendant from making specific objections and that the answer was narrative and included irrelevant and prejudicial matter.

Even were it assumed that the question asked of witness Pirch did in some degree countenance a narrative response, no absolute rule prohibits such testimony. Rather, the restriction upon the form of examination and testimony of witnesses is left to the discretion of the trial court and will be reviewed only for abuse. State v. Wren, 498 S.W.2d 806 (Mo.App.1973). Neither the question nor its consequence viewed from the response obtained indicate any abuse of the trial court’s discretion.

The statement attributed to defendant in which he acknowledged his guilt and recognized the consequences was admissible as an admission and was therefore not irrelevant. A statement which manifests a consciousness of guilt is an admission against interest. State v. Hindman, 543 S.W.2d 278, 284 (Mo.App.1976). If the statement is admissible as an admission, defendant is not entitled to complain that it was prejudicial. State v. Patterson, 516 S.W.2d 571, 573 (Mo.App.1974). Indeed, the very purpose of offering the statement is that it tends to prove the guilt of the defendant and will always be prejudicial in that sense. State v. Gregg, 399 S.W.2d 7 (Mo.1966).

Finally, defendant contends that Rule 25.34 and the requirement that he disclose prior to trial the names and addresses of witnesses he intended to call violated “the work product doctrine and the attorney-client relationship”. This issue was extensively examined by this court in the opinion rendered January 29, 1979 in the case of State v. Roseman (KCD 29,657) (Mo.App.1979) . Suffice it to say that disclosure here of the names of witnesses to be called by the defense did not reveal any opinions, theories or conclusions of defendant’s attorney, did not disclose any communication between defendant and his attorney and therefore reliance bn work product and confidential communications doctrines is inapplicable.

The judgment is affirmed.

All concur.

       Editor’s Note. The opinion referred to was withdrawn by the court and a new opinion was filed June 11, 1979; it appears at 583 S.W.2d 232.