text:
    KAW VALLEY STATE BANK & TRUST, Plaintiff-Appellant, v. COMMERCIAL BANK OF LIBERTY, N.A., Defendant-Respondent.
    No. KCD 28859.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      John R. Caslavka, William B. Prugh, Shughart, Thomson & Kilroy, Kansas City, for plaintiff-appellant.
    William D. Adkins, Liberty, for defendant-respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and DIXON, JJ.
   DIXON, Judge.

Plaintiff appeals from an order granting summary judgment in favor of the defendant, Commercial Bank of Liberty. Plaintiff’s petition filed on December 3, 1975, alleges that on November 1, 1973, defendant issued a $10,000 certificate of deposit to John D. Cox; that on August 20,1974, John D. Cox delivered this certificate of deposit to plaintiff as security for a $10,163.64 promissory note executed that same day; that the promissory note was in default; and that plaintiff demanded the $10,000 represented by the certificate of deposit, but defendant failed and refused to pay such sum to plaintiff. Plaintiff prayed for judgment in the amount of $10,000 plus accrued interest from November 1, 1973. Defendant filed a motion to dismiss for failure to state a claim upon which relief can be granted. Affidavits and suggestions in support and opposition of defendant’s motion to dismiss were filed with the court. On May 4, 1976, the trial court sustained defendant’s motion to dismiss stating only that the motion would be considered as one for summary judgment pursuant to Rule 55.27(a).

The certificate of deposit which forms the basis of this action denotes John D. Cox as the registered depositor and provides that the deposit is “payable to the Registered Depositor hereof in current funds upon the surrender of this Certificate properly endorsed 48 months after date or at any subsequent maturity date as hereinafter provided.” The certificate further provides that “[t]he depositor may redeem this Certificate at any interest date upon 30 days’ prior notice under rules and regulations as promulgated by the Bank.”

May 1 and 12, 1974, John D. Cox was in default on two promissory notes executed in favor of defendant. These notes provided that “the holder hereof shall have all legal setoff rights on maker(s) properties and bank accounts which legally are in and come into the holder’s possession.” A “banking restraint” was placed on the deposit in question on May 20, 1974.

This certificate was delivered to plaintiff on August 20, 1974, as security for a note which subsequently fell into default. The same day, Cox executed an assignment of the deposit to plaintiff. Plaintiff advised defendant in a letter dated August 22,1974, that plaintiff had taken the certificate as collateral on a loan.

One point of error is urged on this appeal. Plaintiff contends that there was a material issue of fact as to whether defendant had exercised any right of setoff it might have had against Cox prior to the assignment of the certificate to plaintiff and that therefore summary judgment was inapplicable.

Under the procedural posture in which this case is presented, appellate review is equivalent to reviewing a court-tried or equity proceeding and if as a matter of law the judgment is sustainable upon any theory, the judgment of the trial court will be sustained. Swink v. Swink, 367 S.W.2d 575 (Mo.1963). Kerr v. Grand Foundries, Inc., 525 S.W.2d 783 (Mo.App.1975). It is not necessary to this review to consider summary judgment procedure in detail; it is sufficient to note that a summary judgment is a determination as a matter of law that there is no issue of fact to be tried. Rule 74.04(c); Elliott v. Harris, 423 S.W.2d 831 (Mo. banc 1968); Hurwitz v. Kohm, 516 S.W.2d 33 (Mo.App.1974); Adzick v. Chulick, 512 S.W.2d 194 (Mo.App.1974).

The certificate of deposit was not payable to order or to bearer, but payable only upon return of the instrument properly endorsed and is, therefore, not a negotiable instrument. Sections 400.3-104 and 400.8-110(2) RSMo 1969; Aufderheide v. Moeller, 221 Mo.App. 442, 281 S.W. 965 (1926). Legally, a certificate of deposit is a bank’s promissory note, payable only according to its terms. Western Casualty & Surety Co. v. First State Bank, 390 S.W.2d 913 (Mo.App.1965); W. J. Howey Co. v. Cole, 219 Mo.App. 34, 269 S.W. 955 (1925).

This certificate of deposit was pledged to plaintiff as collateral security for a promissory note. Hughes v. Community Bank of Dawn, 336 Mo. 305, 78 S.W.2d 98 (1934); Milliken-Helm Commission Co. v. C. H. Albers Commission Co., 244 Mo. 38, 147 S.W. 1065 (1912). A contract of pledge has been defined as “a legal obligation, effectuated by the pledgor depositing with the pledgee personal property as security for an indebtedness or other engagement, with an implied power of sale in the pledgee on default.” Tennent v. Union Cent. Life Ins. Co., 133 Mo.App. 345, 112 S.W. 754, 759 (1908).

The pledgee’s interest in the certificate of deposit is, to the extent of the pledgor’s indebtedness, identical with that of the pledgor. Civic Plaza Nat. Bk. v. University Nursing Home, Inc., 504 S.W.2d 193 (Mo.App.1973). Upon default, the pledgee has the right to enforce the pledge when it becomes due. Tennent v. Union Cent. Life Ins. Co., supra. But here, the two promissory notes executed by Cox in favor of defendant were in default on May 1 and 12, 1974, and those notes expressly provided that defendant had setoff rights on Cox’s properties and bank accounts which were in the defendant’s possession. Subject to exceptions inapplicable here, a bank may setoff deposits in its hands against the matured indebtedness of its depositor. This right grows out of the debtor and creditor relationship existing between the bank and its depositor and the bank has the right to apply a deposit to payment of the depositor’s matured debts or obligations held by the bank, in the same way that another debtor might assert setoff as a defense to an action on the debt. Adelstein v. Jefferson Bank and Trust Company, 377 S.W.2d 247 (Mo.1964).

Defendant’s right to setoff the deposit represented by the certificate in dispute arose more than three months before the certificate of deposit was assigned to plaintiff as collateral security. Notice of the assignment was not given to defendant until August of 1974. The assignee of a nonnegotiable instrument takes it subject to all defenses the maker may have against the instrument prior to notice of the assignment. Weinwick v. Bender, 33 Mo. 80 (1862); Sections 431.160 and 509.480 RSMo 1969. The purpose of these statutes is to make available to a defendant in a suit by an assignee of a nonnegotiable instrument:

“every defense existing in his favor at the time of his being notified of the assignment which would have been available to him in an action by the assignor, to the end that the assignee be not allowed to take judgment against defendant on the chose when the assignor himself would not have been entitled to judgment thereon.” Fricke v. W. E. Fuetterer Battery & Supplies Co., 220 Mo.App. 623, 288 S.W. 1000, 1003 (1926).

Defendant’s right to setoff existed prior to Cox’s assignment of the certificate of deposit to plaintiff. Contrary to plaintiff’s assertion, defendant is not required to exercise its right to setoff prior to notice of the assignment, but may assert it in an action on the certificate by the assignee. In Brown v. Maguire’s Real Estate Agency, 343 Mo. 336, 121 S.W.2d 754 (1938), a garnishment proceeding against First National Bank as garnishee, plaintiffs sought to have property and credits of the Agency applied to plaintiffs’ judgment. The garnishee in Brown, as defendant in the instant case, held a note which expressly provided the right to setoff. While the court reversed judgment and remanded with directions to enter a decree awarding $4,000 of the Agency’s deposit to interpleaders, it affirmed the garnishee’s right to apply the balance to the Agency’s note. In so ruling, the Court held that at the time of garnishment the garnishee had the right of setoff as to the balance in the Agency’s account and appropriation of the Agency’s deposit by book entries prior to garnishment was not necessary as the right to setoff could be pleaded and proved by way of cross-demand. The court concluded that there was no remaining debt of the Bank to the Agency subject to plaintiff’s garnishment.

United States Nat. Bk. of Galveston, Tex. v. Madison Nat. Bk., 355 F.Supp. 165 (D.D.C.1973), aff’d mem., 160 U.S.App.D.C. 149, 489 F.2d 1273 (1974), is remarkably similar to the instant case. There, the defendant bank had loaned a customer funds and the loan instruments created a lien upon deposits. The customer as a part of the loan transaction deposited funds and received a certificate of deposit which was nonnegotiable. The customer borrowed also from the plaintiff bank which took an assignment of the certificate of deposit. The customer defaulted on the loan to the defendant bank about 30 days prior to the assignment to the plaintiff bank. The notice of the assignment to plaintiff bank was sent to defendant bank after the default. There was an issue in the case as to the corporate identity of the customer, and the court first held that despite the separate corporations they were a single business enterprise. The issues were presented on motion for summary judgment. Citing abundant authority, the court said:

“It is well settled that an assignee of a non-negotiable chose in action acquires no rights superior to those held by his assignor and is generally subject to any setoff available to the obligor against the assignor.” 355 F.Supp. at 169.

Further, the court held that the fact that the right of setoff of defendant bank arose before the notice of assignment was given provided the defendant bank a superior claim to the deposit. The court stated that the issue was controlled by the Restatement of Contracts § 167(1) (1932) which states:

“An assignee’s right against the obligor is subject ... to all set-offs and counterclaims of the obligor which would have been available against the obligee had there been no assignment, provided that such defenses and set-offs are based on facts existing at the time of the assignment, or are based on facts arising thereafter prior to knowledge of the assignment by the obligor.”

The current tentative draft of Restatement Second is to the same effect. Restatement (Second) of Contracts § 168 (Tent.Draft 1973).

The court noted that it was “peculiar” that the plaintiff bank had not inquired of the status of the certificate of deposit before accepting the assignment. That same peculiarity attaches to the facts of the instant case.

The Madison National Bank case, supra, is persuasive and the authority cited is clear. The same result must be reached in the instant case.

The trial court properly treated defendant’s motion to dismiss as a motion for summary judgment. Matters outside the pleadings were presented to and not excluded by the trial court; therefore, under Rule 55.27(a), the motion to dismiss was properly treated as a motion for summary judgment and disposed of as provided in Rule 74.04. Kelley v. Schnebelen, 545 S.W.2d 332 (Mo.App.1976). Since the dispositive facts in this suit are not in dispute, there is no genuine issue as to a material fact, and the trial court’s decision to grant summary judgment in favor of defendant was entirely proper. The issues with respect to demand or notice of redemption or the time of the defendant’s exercise of its right of set-off are irrelevant. The dispositive issue in this case is that the defendant bank’s right of setoff pre-existed the rights of plaintiff arising upon the assignment; and, whatever the facts as to demand or exercise of setoff, plaintiff cannot recover.

Pursuant to Rule 67.03, such an involuntary dismissal is with prejudice.

For the reasons stated, the trial court’s order granting summary judgment in favor of defendant is affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Mark A. WILLIAMS, Defendant-Appellant.
    No. KCD 29183.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a judgment and conviction for tampering with a motor vehicle. The trial court sentenced him to two years upon the jury’s failure to agree upon punishment.

The defendant raises a narrow ground of insufficiency by asserting that the evidence was insufficient to show that the person in whose care and custody the vehicle was placed had not given permission to the defendant to tamper with the vehicle.

Because the attack on sufficiency of the evidence is so narrowly circumscribed, a short narrative statement of facts will suffice to place the issue in perspective. Annie Bonds was the owner of a 1969 Chevrolet that had been towed to the home of her ex-husband, where apparently her son also resided.

On the date in question, the car was in the possession and control of Annie Bonds’ son. Annie Bonds had never given the defendant any permission to tamper with the vehicle. A police officer observed the defendant kneeling down at the right front wheel of the vehicle, and the defendant fled when he saw the police officer. The defendant was arrested upon close pursuit. The right front wheel of the vehicle was jacked up and all of the lug nuts were removed from the front wheels.

The defendant concedes in his argument that the conviction in this case is premised on § 560.175(1) RSMo 1969, which is as follows: “No person shall drive, operate, use or tamper with a motor vehicle or trailer without the permission of the owner thereof.” For obvious reasons, in view of the evidence no attempt is made to deny that the defendant did, in fact, tamper with the vehicle. It is the defendant’s sole argument that, since the vehicle had been in the possession and control of the owner’s son for some period of time, it was incumbent upon the State to prove that the possessor of the vehicle or custodian had not consented to the tampering.

The defendant phrases the predicate for the argument as follows: “This appeal raises the issue of the exact meaning of ‘without the permission of the owner.’ Though the language is clear on its face, cases throw doubt upon its' legal import.”

Three cases are cited as creating doubt that the testimony of the owner alone is sufficient when another has the custody of the vehicle. These cases are State v. Morris, 460 S.W.2d 624 (Mo.1970); State v. Townsend, 327 S.W.2d 886 (Mo.1959); and State v. Kent, 515 S.W.2d 599 (Mo.App.1974).

Defendant correctly cites Townsend for its holding that the person in possession can testify to facts which permit the jury to infer that the owner has not consented to the use or tampering. It is necessary to add that in Townsend the court neither held nor implied that the testimony of the possessor was necessary to conviction. Defendant then quotes a portion of the opinion in Morris Which, taken out of context, might imply that Townsend held the testimony of the possessor was required. The Morris case language is taken from a portion of the opinion in which the court was refuting the argument of counsel that the Morris case was analogous to Townsend and simply finds that no analogy existed factually. The clear holding of Morris is that the testimony of a person having custody and possession at the time the vehicle is tampered with is in no way necessary to convict. The defendant then seizes upon an isolated sentence in Kent:

“The owner has not relinquished the custody of his vehicle to the borrower. ‘His actions are entirely consistent with his retention of custody and control of his automobile and not with the idea that he had parted with custody and control.’ State v. Morris, 460 S.W.2d 624, 627 (Mo.1972).” State v. Kent, 515 S.W.2d at 600.

Defendant asserts that the sentence, coupled with the fragment of Morris following it, creates an exception, and when the care and custody of the vehicle are in a nonowner that person must testify to the lack of permission. Kent does not so hold. The holdings of the three cases in no way support such a rule or exception as the defendant suggests.

Defendant asserts in his argument that a “policy” basis exists for requiring the testimony of the custodian. Cleverly shifting from the obvious case of tampering presented by the facts of this case to one of a third person’s innocent use of a vehicle with the permission of the custodian, the defendant argues that the use by a third person with the permission of the custodian is “literally” in violation of the statute. That is not this case, and it is unnecessary to discuss such an issue to dispose of this case.

“Tampering,” the charge here made and proven, has been defined in the case law. State v. Ridinger, 364 Mo. 684, 266 S.W.2d 626 (1954). The activity of defendant here is precisely the activity in question in Ri-dinger, the removal of a tire and wheel.

The evidence here was sufficient and convincing; the judgment and conviction are affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Frederick J. RUTH, Appellant.
    No. KCD 29198.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J„ and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

This is an appeal from a jury verdict whereby defendant was found guilty of sodomy per anum and sentenced to two years imprisonment.

Although defendant took the witness stand in his own behalf and freely admitted that he physically committed the heinous act in question, he sought to escape culpability on the ground that he was coerced into doing so. The trial court gave an instruction (offered by the state) submitting defendant’s claimed defense of coercion, the form and substance of which has gone unchallenged by defendant on appeal. Broadly speaking, the instruction placed upon the state the burden of proving that the detestable act of sodomy per anum was committed by defendant of his own free will and volition and that he was not coerced into doing so by a third party. On appeal defendant restricts his right to relief to one point — insufficiency of the evidence to support the burden impressed upon the state to prove that defendant committed the act of sodomy freely and of his own volition rather than under duress or coercion.

A farrago of bizarre and sordid facts were presented to the jury. The victim was violated while undergoing initiation rites into a club known as “Claws of the Tiger”. Donald Mays, a Vietnam veteran, was the founder and “grandmaster” of the club, and defendant, who bore the rank of “two star commander” was second in command. Defendant first became acquainted with Mays in April of 1975. In June of 1975, the two rented an apartment and started living together. The event in question occurred on August 17, 1975, in the apartment which they shared. Over, a period of time defendant paid $98.50 to Mays as “club dues”. Defendant’s duty, in the hierarchy of command, was “to keep the other ones in line”, “oversee all training”, and “appraise performances.” Defendant attributed his rise in “rank” to the fact that Mays liked him and the reason “he [Mays] liked me is because I never went against him, I went ahead and did what he asked.” Defendant subtly implied throughout the course of his testimony that Mays kept him and the other club members in line by fear of personal physical harm or some other form of violent retaliation. On August 17, 1975, in the bedroom of the apartment shared by Mays and defendant, the victim was subjected to numerous sexual atrocities at the hands of Mays as part of her initiation into the “Claws of the Tiger”. Defendant was then called into the bedroom and the ritual was apparently concluded by the insertion of defendant’s penis into the victim’s rectum. Defendant testified that he perpetrated the abominable act upon the victim because Mays threatened to kill him if he did not do so. However, there is nothing in the record to indicate that Mays was armed or otherwise physically equipped at the time to immediately carry out his alleged threat, or that he had in the past heaped violence upon defendant or any other disobedient club member. The threat testified to by defendant was apparently made out of the hearing of the victim. Defendant thereafter continued to be active in the club until January of the following year.

In determining the sufficiency of the evidence to sustain a verdict in a criminal case, certain well-hewed principles delineating the function and scope of appellate review come to the forefront. It is not the function of an appellate court on review to determine whether a charge has been proven beyond a reasonable doubt, State v. Achter, 514 S.W.2d 825, 826 (Mo.App.1974), or to weigh the evidence or determine the credibility of witnesses, State v. Talbert, 454 S.W.2d 1, 4 (Mo.1970) and State v. Wren, 498 S.W.2d 806, 808 (Mo.App.1973), as such are peculiarly within the exclusive province of the jury. As a matter of general principle, the scope of appellate review in face of a challenge to the sufficiency of the evidence extends only to a determination of whether substantial evidence exists which, if believed by the jury, would sustain a verdict of guilty. State v. Amerson, 518 S.W.2d 29, 31 (Mo.1975); and State v. Wren, supra. In making this determination an appellate court views the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the state, i. e., in the light most favorable to the verdict, and all contrary evidence is to be disregarded and all inferences unfavorable to the state are to be rejected. State v. Reed, 453 S.W.2d 946, 949 (Mo.1970); and State v. Chase, 444 S.W.2d 398, 401 (Mo. banc 1969).

Coercion was initially recognized in this state as a yiable defense in State v. St. Clair, 262 S.W.2d 25 (Mo.1953). In giving recognition to coercion as a defense, the court in St. Clair was obviously concerned that the defense might be abused and become little more than a mockery or farce unless tightly circumscribed. In order to obviate misuse or misapplication of the defense, the court in St. Clair, with great clarity of articulation, 262 S.W.2d at 27-28, held as follows: “From these cases and others cited below it is established by the great weight of authority that although coercion does not excuse taking the life of an innocent person, yet it does excuse in all lesser crimes. Nall v. Commonwealth, 208 Ky. 700, 271 S.W. 1059; 15 Am.Jur., Criminal Law, § 318, p. 16. But, to constitute a defense to a criminal charge, the coercion must be present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done. Threat of future injury is not enough. Nor can one who has a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily injury invoke the doctrine as an excuse. R. I. Recreation Center v. Aetna Casualty & Surety Co., 1 Cir., 177 F.2d 603, 12 A.L.R.2d 230, 233; People v. Merhige, 212 Mich. 601, 180 N.W. 418; State v. Clay, 220 Iowa 1191, 264 N.W. 77; 22 C.J.S., Criminal Law, § 44, page 99, and cases cited in footnotes.” (Emphasis added.)

The legal parameters contained in State v. St. Clair, supra, when superimposed on the evidence and reasonable inferences most favorable to the state in the instant case, compel the inevitable conclusion that substantial evidence existed from which the jury could, and obviously did, find beyond a reasonable doubt that defendant was not coerced into performing the admitted act of sodomy per anum upon the victim, but did so freely and of his own volition. Defendant’s intimate association with Mays, coupled with his pervasive and continuous involvement and leadership status in the affairs of the “Claws of the Tiger”, permitted the jury to reasonably infer that defendant lacked any desire to escape the “Rasputin-like” clutches attributed to Mays, thereby discounting any present contention that he lacked an opportunity to avoid inflicting the detestable act upon the victim without unduly exposing himself to death or serious bodily harm. Moreover, a total absence of hard evidence that Mays was armed or otherwise physically equipped at the time to cause defendant’s death or to heap serious violence upon him, anent the existing evidence in the case viewed in the light most favorable to the state, vitiates defendant’s claim that any threatened coercion purportedly exercised by Mays was “present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act [was] not done.”

Having concluded that substantial evidence existed from which the jury could find beyond a reasonable doubt that defendant debased the victim of his own free will and volition rather than being coerced into doing so by Mays, within the legal contemplation of State v. St. Clair, supra, the judgment below is affirmed.

Judgment affirmed.

All concur.

      . “MAI-CR 2.28 modified.


text:
    HAWKEYE-SECURITY INSURANCE COMPANY, Plaintiff-Appellant, v. IOWA NATIONAL MUTUAL INSURANCE COMPANY, Defendant-Respondent.
    No. KCD 29299.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Gordon N. Myerson, Steven G. Emerson, Kansas City, for plaintiff-appellant.
    Thomas A. Sweeny, Kansas City, for defendant-respondent; Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, of counsel.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Hawkeye-Security Insurance Company appeals a trial court order granting summary judgment for the defendant. The issue to be determined is whether Hawkeye has any claim based upon Iowa National Mutual Insurance Company’s failure to defend under a policy with its insured Jurgeson.

In 1967, plaintiffs Romine filed an action for damages against Jurgeson which they claimed arose out of the acts of Jurgeson in blocking the channel of a creek. The petition alleged generally that the acts were done in the fall and winter of 1966 and 1967. Iowa National’s policy was in effect from October 14, 1966 to March 12, 1967, and Hawkeye assumed the coverage on March 14, 1967. Hawkeye assumed the defense of the claims after the first trial of the Romine suit. The first trial of the Romine suit resulted in a judgment for plaintiff which was reversed on appeal. Jurgeson v. Romine, 442 S.W.2d 176 (Mo. App.1969).

Thereafter, Hawkeye appeared and defended in the subsequent trial of the Ro-mine case, effected settlements of two other claims, and satisfied the judgment resulting from the second trial of the Romine case. Iowa National had no notice of any claim under its policy until June of 1968, by which time it was clear that the damage claimed occurred during the period when Hawkeye was on the coverage.

It is Hawkeye’s position that the court erred in granting summary judgment in favor of Iowa National because Hawkeye claims that the uncontroverted evidence establishes that Iowa National did not defend and that Hawkeye is subrogated as a matter of law to the insured’s cause of action against Iowa National for the breach of its contract to defend contained in its policy.

Preliminarily, it is to be noted that Iowa National is not responsible on its coverage for any liability imposed on Jurgeson. This- for the reason that the issue of liability under a policy insuring against “loss” or “damage” occurring during the policy period is determined by the time when the loss or damage occurs and not by the time of the negligent act. Kirchner v. Hartford Accident & Indemnity Co., 440 S.W.2d 751 (Mo.App.1969); Kirchner cites with approval the rule set forth in, Annot., 57 A.L.R.2d 1389 (1958). Hawkeye, in its brief, impliedly assumes that' Iowa National had no coverage based on all the facts and makes no assertion of such coverage, but argues that a duty to defend arose because the petition asserted that the acts of negligence occurred during the Iowa National policy period.

Iowa National concedes that the general rule is that the duty to defend depends upon the facts known at the time the action is commenced. It disputes, andl properly so, the assertion that the duty depends upon the petition alone. The proper statement of the rule respecting the duty to defend is that the actual facts known tothe insurer or which should have been reasonably known to the insurer determine its liability to defend, not what the ultimate facts are found to be. Marshall’s U. S. Auto Supply v. Maryland Casualty Co., 354 Mo. 455, 189 S.W.2d 529 (1945).

Upon the basis of that statement of the rule, Iowa National might possibly have been held to the obligation to defend as to the first trial and its appeal if it in fact had been called upon to defend prior to the full development of the facts. No such demand was made upon Iowa National, and the costs of defense in the first trial and its appeal are not a part of the claim of Haw-keye in the instant case.

A necessary premise of the rule that the duty to defend depends upon the facts known or ascertainable by the insurer is that the insurer be apprised of the claim so that an investigation may be made of its liability under the coverage. Upon that basis, the inquiry here must be as to the facts apparent when demand was made upon Iowa National. It is conceded that the first demand upon Iowa National was made by Hawkeye June 22,1968. The first trial had been completed. The record, by way of interrogatories and evidence, demonstrated the loss was not within the coverage afforded by Iowa National.

It is the general rule when a suit is brought upon facts not within-the coverage, then no duty devolves upon the insurer to defend. Daniel v. State Farm Mut. Ins. Co., 233 Mo.App. 1081, 130 S.W.2d 244 (1939). In the light of the previously referred to principle, that the facts known or ascertainable control the obligation to defend, the general rule as to no coverage, no defense might seem overly broad. There is, however, no conflict under the principles enunciated. An insurer may be held to a duty to defend because the facts as to coverage are not known or ascertained when the demand for defense is made; yet, upon the ultimate determination of the facts, no coverage is in fact found for the ultimate liability. It is for the obvious purpose of avoiding the risk of denying a defense on the basis of undeveloped facts that the device of defending upon a reservation of rights was developed.

Applying these principles to the instant case, it is clear that Iowa National had no obligation to defend the second trial, nor to pay the judgments or settlements subsequent to the second trial. At the time the purported duty to defend arose, the facts demonstrate Iowa National had no coverage.

Hawkeye argues that Iowa National breached its duty to defend Jurgeson by failing to defend in the first trial. Haw-keye then reasons that, since it is subrogat-ed to Jurgeson’s action, it is entitled to recover all of the expenses of the second trial and the judgment and settlement payments since they are damages “reasonably flowing from the breach.” Any number of fallacies in this argument suggest themselves immediately. If it be assumed Iowa National owed a duty to defend Jurgeson, undoubtedly the claim of Jurgeson to a defense was waived by the failure to notify Iowa National of the claim and suit. If there was a claim in Jurgeson of any scrt as to the cost of defense in the first suit, it is not a part of Hawkeye’s subrogation since Hawkeye took no part in the first trial and its appeal. The Hawkeye policy provides for subrogation as follows:

“In the event of any payment under this policy the company shall be subrogat-ed to all the insured’s rights of recovery therefor.”

Under the facts, Jurgeson had no right to recover from Iowa National for the costs of defense of the first trial. Nor did the costs of defense in the second trial and the ultimate payments on account of liability have any connection with the failure of the insurer to appear in the first case. The argument is demonstrably unsound.

The trial court’s order sustaining defendant’s motion for summary judgment is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael McCARTHY, Defendant-Appellant.
    No. KCD 29306.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Donald L. Cain, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jeffrey W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant, originally charged with second degree murder, was convicted of manslaughter, and the jury imposed a ten-year sentence.

Defendant asserts three points of error. The first two points question the propriety of the State’s eliciting the information that Cornelius Smith, who was separately charged, had pleaded guilty. Since this issue requires reversal, the third point relating to the prosecutor’s argument need not be noticed.

The sufficiency of the evidence is not questioned. The defendant and at least two other inmates beat to death an inmate named Barnett in a cell in the Jackson County Jail. The State established its case by inmate witnesses to the beating. After the State rested, the defendant testified in his own behalf. His testimony on direct was that a group of inmates met in his cell, discussed beating the victim, and went as a group to the victim’s cell. On direct examination, he had stated that an inmate named Barr had been among those going to the victim’s cell and “fighting” the victim. When testifying on cross-examination as to the actual beating, he said he saw only Cornelius Smith and a Harvey Williams actually beating the - victim but that Barr “could have been there.” Based upon that supposed discrepancy, the prosecutor sought to show that Cornelius Smith had entered a plea to a charge in connection with the death of the victim. The prosecutor indicated to the court that he wanted to show that Smith had pleaded guilty to “impeach” the defendant or, as it was stated to the trial court:

. . it goes to his credibility, because he is just pushing the whole thing off on Harvey and Cornelius Smith. And he — if he knows that Cornelius has already pled guilty, that makes it easy for him to do.”

Defense counsel, when the question was put to the defendant in the presence of the jury, objected on the grounds of an inference of guilt by association and as prejudicing the defendant’s right to a separate trial. The objection was coupled with a request to strike and for a mistrial. The court denied this relief, but instructed the jury that the answer “is offered in connection with the credibility of this witness.”

The defendant’s testimony as to Barr was equivocal. On direct, he said Barr was among those who were “fighting” the victim; on cross-examination, he asserted he saw only Smith and an inmate named. Williams doing anything to the victim. In any event, whatever contradiction existed was before the jury. The inquiry as to the reason for the contradiction, if any, was not relevant to any issue in the case as the prosecutor conceded in the colloquy with the court.

It is well settled that the disposition of the case of another person charged with the same crime is not admissible in the trial of a codefendant. In State v. Johnson, 456 S.W.2d 1 (Mo.1970), the defendant was convicted of first degree murder and on appeal claimed error in the admission of evidence (a letter) which informed the jury that a confederate had received a life sentence when he was tried for the crime. The evidence was clear that the confederate was an associate of the defendant in the crime for which the defendant was being tried. The court held that this was prejudicial error, saying:

“As stated in State v. Aubuchon (Mo.Sup.) 381 S.W.2d 807, 815-816, ‘[w]e have held that it is error to show in evidence or to tell the jury that a jointly accused defendant has been convicted or has pleaded guilty * * *. So, also, have we held that evidence of the acquittal of one jointly accused is improper * * * Were this not the law, the value of a defendant’s right to a separate trial * * might be considerably dissipated. The theory of our statute abolishing the distinction between principals and accessories * * * is that every defendant who joins in the commission of a crime is liable, on his own, as a principal; but he is also entitled to be tried on his own without having his guilt prejudged by what has happened to his co-defendant * * * ’.” State v. Johnson, 456 S.W.2d at 4.

In State v. Aubuchon, supra, there was presented evidence (through interrogation of a State’s witness) that a co-indictee of defendant was in the penitentiary and the implication was that he had been sent there for his participation in the crime for which defendant was being tried. The introduction of this evidence in Aubuchon was held to be error. The evidence had been introduced during the examination of the co-in-dictee’s sister. The court also rejected an argument that it was permissible within the “framework” of the evidence, the State arguing that the defense had shown in evidence the conviction of another brother for an apparently unrelated robbery and that the witness had been living with a man to whom she was not married:

“The argument that this evidence was material because it tended to show that Anna Mae Gore could no longer be seeking leniency for her brother, is too thin to outweigh the prejudicial effect of the evidence.” State v. Aubuchon, 381 S.W.2d at 816.

Other cases supporting the conclusion that the presentation to the jury of information concerning a confederate’s conviction of the crime with which defendant is charged is prejudicial error are: State v. Castino, 264 S.W.2d 372 (Mo.1954), information of confederate’s conviction presented in court’s address to venireman; State v. Mull, 318 Mo. 647, 300 S.W. 511 (1927), information of confederate’s conviction presented through a prosecutor’s question; State v. Stetson, 222 S.W. 425 (Mo.1920), information of confederate’s conviction presented in volunteered statement by a witness; State v. Fenton, 499 S.W.2d 813 (Mo.App.1973), information of confederate’s conviction presented in State’s opening argument. The basic rationale underlying the holdings that this is prejudicial error is that it is irrelevant and incompetent because it infers that since the confederate was guilty the defendant must therefore be guilty (State v. Castino, supra) and violates the defendant’s right to be tried on his own. State v. Johnson, supra; State v. Aubuchon, supra.

These Missouri cases are in accord with the general rule prevailing throughout the country. See Annot., 48 A.L.R.2d 1017 (1956).

The State cites three cases to justify the inquiry in the present case as constituting proper impeachment. First, as to State v. Gordon, 499 S.W.2d 512 (Mo.1973), the court held it was not error to ask a defense witness if the conviction of a brother of the witness caused the witness to have a feeling for or against the complaining witness. This was held on the familiar rule that the interest or bias of a witness toward a party is admissible. There is no contention here, nor does it appear that the question permitted related to the interest or bias of the defendant as a party in the case. If a defendant can be compelled to answer a question as to the plea by another who is charged with participation in the same crime, the rule of Aubuchon and Johnson is meaningless. Also cited is State v. Turner, 272 S.W.2d 266 (Mo.1954), which turns on the failure to timely object and an instruction by the trial court to disregard, neither of which appear in the instant case. To the same effect is the third case cited, State v. Blevins, 427 S.W.2d 367 (Mo.1968).

The proof of the plea of guilty by Cornelius Smith could only serve to prejudice the defendant by permitting the jury an improper inference of the guilt of defendant and impinging upon his right to a separate trial. The prosecutor hammered this home in his closing argument by referring to the proof of the Smith plea and the inconsistency of the defendant’s testimony.

The cause is reversed and remanded for a new trial.

All concur.


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    Russell PARR, Plaintiff-Respondent, v. MISSOURI FARMERS ASSOCIATION, INC., Defendant-Appellant.
    No. KCD 29322.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Erwin L. Milne, Terry M. Evans (Stock-ard, Andereck, Hauck, Sharp & Evans), Trenton, for defendant-appellant.
    R. Max Humphreys (Miller, Humphreys & Seidel), Trenton, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and WASSERSTROM, JJ.
   DIXON, Judge.

The defendant, Missouri Farmers Association, appeals a jury verdict in favor of the plaintiff in the amount of $6,116.29. Plaintiff’s suit was bottomed on a claim that approximately one thousand bushels of soybeans owned by Parr, the plaintiff, were delivered and stored by the defendant and sold by the defendant on July 13, 1976, at a market price of $6.62 a bushel.

The essential dispute between the parties is the date of sale, MFA contending the sale took place on May 6 when the market was $4.52 per bushel.

MFA, on this appeal, raises an issue with respect to the introduction of a letter in evidence and attacks three instructions.

Russell Parr had grown the soybeans in question on a farm which he previously owned. Prior to the growing season, Parr had sold the farm but agreed to take the crop as part of the down payment. The new owner of the farm, one Fowler, was indebted to the MFA, and MFA was concerned that the account be paid by way of a setoff against the proceeds of the soybeans if they were Fowler’s property. Fowler did not claim ownership of the beans, but the costs for planting had been paid by Fowler and the sharecropper who delivered the beans to MFA storage was at that time in the employ of Fowler, although he had also been Parr’s tenant. The soybeans were delivered to the elevator for storage in the names of the tenant and Parr and the tenant’s share of the beans is not in dispute in this suit. Parr said that he heard that the beans were being held subject to Fowler’s debt and, on May 6, went to the MFA Exchange. He intended to sell his beans to avoid any difficulty with respect to Fowler’s debt. An employee of MFA testified that Parr informed him he wanted the beans sold and the employee entered the sale order on the MFA books. Parr denied ordering the sale.

The testimony with respect to the practices concerning the sale of beans was fairly explicit. The Spickard MFA Exchange maintained a daily price at which they would buy soybeans and, likewise, a daily price at which they would sell soybeans, the sales price being always slightly higher than the purchase price. Thus, the MFA had a continuing offer to buy at a daily price which fluctuated and, likewise, had a continuing offer to sell at a daily price, which similarly fluctuated. It was clear that a customer who asked to sell beans would get the price established by MFA for a purchase by MFA on the day the sale was requested, regardless of whether the beans were resold by MFA the same day or held for later sale. MFA by this means established a local market price for soybeans. It was the custom and practice to deliver a check or notify the customer in person of the price of the sale, if subject to setoff, and the balance as between MFA and the customer at the time of the transaction. Parr never received any type of notice of the transaction, and MFA did not pay him for the beans.

On May 7, Parr returned to the MFA and talked to the manager. The manager said that Parr asked for a check, but the manager refused it because he thought that MFA had a claim against the beans because of Fowler’s debt. Parr’s claim is that the only inquiry he made was whether Fowler’s bill would be held against his beans and that he received an affirmative reply from the exchange. At some time in June, Parr called MFA; and MFA flatly refused to pay for his beans without deduction for the Fowler debt. Parr’s lawyer wrote MFA in June demanding either the soybeans or the proceeds of sale. That letter was by registered mail, and the signature of the manager of MFA appeared on the receipt. A letter was introduced into evidence and was identified by a lawyer for Fowler as having been received by him from Stephen T. Far-ies, an attorney for MFA. It was admitted that Faries was acting for MFA in connection with the dispute. This letter recited, under date of July 7, 1976, “The Spickard MFA Exchange still has 942.63 bushels of beans in storage in the name of Russel [sic ] Parr” and then inquired as to whether Fowler claimed any interest in the beans. The letter then continues that if Fowler does not claim an interest the lawyer would advise MFA to pay Parr the value of the beans in storage. On July 13, Parr claims that MFA called and announced a willingness to pay on that day’s market and when he went to the exchange he refused to accept the check as offered in the amount of $4,137.50, the May 6 price for beans, because he understood he was to receive the July 13 price which, with proper storage charges deducted, would produce approximately $6,000.

The appellant’s first point is that the letter from the lawyer Faries was erroneously admitted because it was hearsay and not within an exception to the hearsay rule. At the time the objection was made that it was hearsay, Parr’s attorney suggested that the letter was an exception as it constituted an admission by an agent of the defendant. There was some discussion between the court and counsel as to whether the letter constituted an admission or a declaration against interest; but, if it was admissible as an admission, no further inquiry need be made. Admissions of an attorney relevant to the purpose for which he was employed and made while engaged in that employment are admissible in evidence against the employer and client. Gibson v. Metropolitan Life Ins. Co., 147 S.W.2d 193 (Mo.App.1941).

The employees of MFA who testified at trial admitted that Faries represented MFA with regard to the specific legal dispute, and the statements made by Mr. Faries were certainly relevant to the purpose of his employment. MFA also argues that the letter was not properly admitted because there was no testimony as to its authenticity. Contrary to Rule 84.04(d), this claim was not included in MFA’s point, the point being directed solely to the hearsay nature of the letter. In any event, that objection was not offered at trial and comes too late in the proceedings to be of any avail.

MFA’s second point is divided into three subpoints, each of which attack some aspect of the instructions given to the jury. They need be considered separately because of the nature of the claims made. The first attack is upon the plaintiff’s verdict-directing instruction. MFA contends that a disputed issue, the date of sale, was not included as a finding in the instruction. If there had been a dispute as to whether the beans had, in fact, been sold, MFA’s point would have more merit. It should be noted that MFA conceded that the beans were sold and, in fact, entered a formal tender of judgment under Rule 77.24 for the amount of the sale price assuming a sale date of May 6. The real issue as to the date of sale is one affecting damages and not liability. The verdict, of necessity, must have been for the plaintiff. The only real dispute was how much the plaintiff was entitled to receive. The date of sale and price were presented in other instructions to be later discussed, and no prejudice occurred to MFA by the omission of this element from the verdict director. Axiomatic is the reading of all instructions together; and, when that is done, all of the elements of the plaintiff’s right to recover and the amount thereof were presented for a jury determination. Kelso v. C. B. K. Agronomics, Inc., 510 S.W.2d 709 (Mo.App.1974).

MFA attacks the damage instruction given in the case which is a modification of MAI 4.04, although the modification is so great that any resemblance to MAI 4.04 is lost. Before undertaking to discuss the position of MFA with respect to this instruction, it will be well to advert to the claim of MFA that the element of the date of sale was not included in the verdict directing instruction. The damage instruction in the form in which it was given, which is far from a model, first required the jury to find the issues for the plaintiff. That was a conceded fact in the case and could not have been prejudicial regardless of the manner in which it was tendered to the jury. The instruction then required the jury to find the fair market value on the date the defendant agreed to sell the soybeans less the agreed storage charges and interest from the date of demand until August 9. It is puzzling as to why the instruction required a finding as to the defendant’s agreement as the critical fact. The critical fact was the date upon which the plaintiff ordered the sale. The instruction was either erroneous in using the word “sell” or the word “defendant.” But even if this was error, it was error in favor of MFA because it would have permitted the jury to find the issues for MFA on an erroneous theory not justified by the evidence.

The more difficult question is that the instruction as written conflicts with the verdict directing instruction. The verdict directing instruction referred to the MFA’s agreement to purchase; and the damage instruction, because of the misstatement, referred to the date the MFA agreed to sell. There can be no dispute that the two instructions conflict. Ordinarily, the issue to be decided where instructions conflict is whether the jury is misled by the conflict and reaches an erroneous verdict. In this case, only two verdicts were possible for the jury to reach under the evidence, one was a verdict in accordance with MFA’s tender assuming the jury believed the MFA’s testimony as to the date upon which the beans were sold. The other permissible verdict under the evidence was a verdict based on the evidence of Parr that he directed the sale of the beans on July 13. The conflict, if it had confused the jury, would have led to an entirely different verdict not supported by any evidence in the case. It is, therefore, apparent that the jury was not misled by the conflict between the instructions but understood from all the instructions the essential issue in the case.

The defendant in argument also asserts that the damage instruction is erroneous because MAI 4.01 is applicable in contract actions. No authority is cited for that, but it has been held that the use of MAI 4.01 in a contract action is proper. Gottlieb v. Hyken, 448 S.W.2d 617 (Mo.1970). It may be questioned whether 4.01 without modification is required to be given in a contract case, but that issue need not be reached or decided here. It is sufficient to say that in the circumstances of this case, MAI 4.01 required modification for the obvious reason that MAI 4.01 first requires the jury to make a finding for the plaintiff; and, in this case, the jury could not find otherwise. Aside from the conflict with the verdict directing instruction previously discussed, the instruction properly advised the jury on the manner of calculation of the damages to be awarded; and, as previously noted, they were not confused or misled by the instruction. MFA makes some argument with respect to the use of the term, fair market value, in the instruction, contending that the prices in evidence were “contract” prices. It is clear enough that this is a semantic difficulty only. It is true that the evidence concerned prices for a sale on a specific date, but it is a quibble to say that the quoted price of a fungible commodity regularly traded in the market place is not its fair market value. The instruction, as noted, is a far cry from an appropriate and proper instruction; but it does not appear that it created any prejudice to the rights of MFA and, considering all of the evidence and all of the instructions, the jury was not confused or misled.

The last claim with respect to error in instructions is that MFA argues that the forms of verdict were improper since they did not provide the jury with a form of verdict in favor of the defendant MFA. Under the admitted facts and all of the evidence, the plaintiff was entitled to recover some amount. It is not error to omit an instruction permitting a verdict for the defendant where, under the pleadings and the evidence, the plaintiff is entitled to a verdict. Hayden v. Grand River Mutual Telephone Corp., 440 S.W.2d 161 (Mo.App.1969). A verdict form not supported by the evidence should not be given. Hannibal Sales Co. v. Solter, 551 S.W.2d 936 (Mo.App.1977). Other instructions in the case clearly advise the jury that they could find the date of sale on May 6 and thus apply the MFA position to the form of verdict. The blank in the form of verdict made it clear that the jury was to compute the amount due the plaintiff based on the evidence presented; and, reading all the instructions together, the jury could not have been misled or prejudiced by the instruction. The verdict itself is an exact mathematical calculation of the July 13 price of soybeans multiplied by the agreed volume of the beans minus the agreed storage charge and interest computed to August 9.

Rule 84.13(b) provides that “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.” No such material error appears in this record and the judgment is affirmed.

All concur.


text:
    METROPOLITAN LUMBER COMPANY, Plaintiff-Respondent, v. Lawrence K. DODGE, Defendant-Appellant, and The Finance Corporation of North America, Defendant.
    No. KCD 29421.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Stoup & Bohm, Jack N. Bohm, Kansas City, for defendant-appellant.
    Robert Ernest Gould, Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

This appeal was spawned by a judgment debtor’s resistance to a summary judgment sustaining the registration of a foreign judgment under the Uniform Enforcement of Foreign Judgment Law, Sec. 511.760, RSMo 1969, and Rule 74.79. Metropolitan Lumber Company’s (Metropolitan) verified petition for registration, an attached copy of an Illinois judgment authenticated in the manner authorized by the laws of the United States, the respective responsive pleadings of Finance Corporation of North America (Finance) and Lawrence K. Dodge (Dodge), and a deposition given by Dodge, disclose the following.

On November 8, 1974, in the Circuit Court of DuPage County, Illinois, a judgment on a promissory note containing a cognovit clause was rendered in favor of Metropolitan, as payee. Notwithstanding the fact that Dodge was the only party signatory to the note as maker, that Finance’s name failed to appear anywhere on the note and that there was nothing on the face of the note to indicate that Dodge signed it in a representative capacity for or on behalf of Finance, Finance and Dodge were both named as defendants in the Illinois action brought to enforce payment of the cognovit note. Judgment was rendered in the amount of $45,731.58 in favor of Metropolitan and against both Finance and Dodge. The Illinois judgment record shows the name of the attorney who confessed judgment under the warrant of attorney, recites that he was attorney for both Finance and Dodge, and that he waived service of process and confessed that $45,-731.58 (principal, interest and attorney’s fee) was due Metropolitan from Finance and Dodge.

In response to Metropolitan’s verified petition for registration of the Illinois judgment, Finance pleaded that it had been adjudicated a debtor in bankruptcy proceedings in the United States District Court for the Western District of Missouri and that a “Stay Order enjoining the prosecution of any litigation against” it had been issued. Dodge, in response thereto, pleaded that he was “without information to admit or deny” rendition of the Illinois judgment and therefore denied the same; he further pleaded that the Illinois judgment was obtained without “service” or “notice” as to him, that he signed the note solely in his capacity as president of Finance although his secretary “forgot” to type in the corporation’s name, and that the Illinois judgment in favor of Metropolitan was “fraudulently” obtained “against a party not a signatory to the note and therefore, [was] void

Although Metropolitan voluntarily dismissed as to Finance, it filed and successfully pursued a motion for summary judgment against Dodge. Dodge, the judgment debt- or, has appealed from the summary judgment rendered and entered in favor of Metropolitan.

Dodge charges on appeal that the trial court erred in granting summary judgment in favor of Metropolitan (1) because “the record on its face shows that the Illinois judgment was fraudulently procured and a genuine issue of fact exists as to the capacity in which defendant Dodge signed the note”, and (2) because “the record shows that neither defendant received notice of the suit brought in Illinois and that both defendants could not have waived service of notice in the Illinois suit and, therefore, a genuine issue of fact existed as to which defendant, if either, waived service of notice of the foreign suit.”

By reason of the positive command of Art. IV, § 1, of the United States Constitution, full faith and credit must be given the judgment of a sister state in an action brought thereon in this state unless, with respect thereto, there was (1) a lack of jurisdiction over the subject matter, (2) failure to give due notice, or (3) fraud in the procurement or concoction of the judgment. In re Veach, 365 Mo. 776, 287 S.W.2d 753, 759 (banc 1956); Mekelburg v. Whitman, 545 S.W.2d 89, 90 (Mo.App.1976); Corning Truck & Radiator Serv. v. J. W. M., Inc., 542 S.W.2d 520, 524 (Mo.App.1976); and O’Neill v. Winchester, 505 S.W.2d 135, 136 (Mo.App.1974). In view of the tightly circumscribed grounds legally recognized as justification for refusing to give full faith and credit to the judgment of a sister state, it is forbidden in actions brought thereon in this state to inquire into the merits of the cause of action upon which the judgment is predicated, the logic or consistency of the decision underlying the judgment, and the validity of the legal principles upon which the judgment is based. Gibson v. Epps, 352 S.W.2d 45, 47 (Mo.App.1961). Generally speaking, a judgment by confession rendered in a sister state, if valid where rendered, stands on the same footing as other judgments so far as being entitled to full faith and credit when sought to be enforced in another state. See generally 50 C.J.S. Judgments § 889, p. 476 et seq. Under Illinois law a cognovit clause in a promissory note is valid, Ill.Ann.Stat. ch. 110, § 50(3) (Smith-Hurd) and Irmco Hotels Corp. v. Solomon, 27 Ill.App.3d 225, 326 N.E.2d 542 (1975), and judgments obtained by confession on promissory notes containing cogno-vit clauses are given full faith and credit by and enforceable in the courts of this state, State ex rel. Robb v. Shain, 347 Mo. 928, 149 S.W.2d 812 (1941) and Cook’s Estate v. Brown, 346 Mo. 281, 140 S.W.2d 42 (1940). It necessarily follows that Missouri cases, supra, which frugally set forth limited grounds for justifying refusal to extend full faith and credit to the judgment of a sister state, and the forbidden areas of inquiry with respect thereto, apply with equal vigor to judgments obtained by confession on promissory notes containing cognovit clauses.

The fact that no factual or legal basis is to be found in the record of the Illinois proceedings to justify rendition of the judgment against Finance has cast a pall of confusion over the issues in this case which Dodge, albeit in vain, has attempted to capitalize on to his advantage. Whether Finance could mount a successful effort to defeat registration of the Illinois judgment against it is not an issue in this case. The efficacy of the Illinois judgment as an enforceable obligation in this state against Dodge is the only justiciable issue before this court. Once this aura of confusion is properly recognized for what it actually is, a baseless distraction, and therefore excluded from consideration, the issues raised by Dodge on appeal slip into rather routine decisional niches and lend themselves to being disposed of with considerable celerity.

Ill.Ann.Stat. ch. 26, § 3-403(2)(a) (Smith-Hurd), which reads as follows, is apposite all issues raised by Dodge:

“(2) An authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;”

The “Illinois Code Comment” appended to the above reads as follows: “This paragraph is in accord with the Illinois case law holding that one signing as a maker without qualification cannot introduce parol evidence altering the capacity in which he signed in an action by the payee to enforce the instrument: Chandler v. Chandler, 326 Ill.App. 670, 63 N.E.2d 272 (2d Dist. 1945), petition for leave to appeal denied, 331 Ill. App. xiii; Gelman v. Wendrick, 321 Ill.App. 639, 53 N.E.2d 479 (1st Dist. 1944); Cusanelli v. Steele, 287 Ill.App. 490, 5 N.E.2d 296 (4th Dist. 1936), petition for leave to appeal denied, 287 Ill.App. xliii.”

Dodge does not contend that the Illinois court lacked jurisdiction over the subject matter. His somewhat dubious contentions, namely, lack of notice and fraud in the procurement or concoction of the judgment, are hazily interwoven with the classic contention that genuine issues of material fact exist as to Dodge’s capacity to sign the note and whether he or Finance “waived service of notice of the foreign suit”. The composite effect of the prosaic legal principles heretofore set forth regarding enforceability in this state of judgments rendered in sister states and ch. 26, § 3-403(2)(a), supra, totally refute all issues raised by Dodge on appeal. As Dodge has failed to demonstrate any legal viability or pertinency to his claims of lack of notice and fraud in the procurement or concoction of the Illinois judgment, and has likewise failed to demonstrate the existence of any genuine issues of material fact to warrant further inquiry into them, the trial court did not err in granting summary judgment in favor of Metropolitan and against Dodge. Rule 74.-04(c). Dodge’s effort to personally absolve himself from enforcement of the Illinois judgment in this state is of no avail.

Judgment affirmed.

A1J concur.

      . § 3-403(2)(a) of the Uniform Commercial Code.


text:
    Mary L. INLOES, Plaintiff-Respondent, v. Billie B. INLOES, Defendant-Appellant.
    No. KCD 29426.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      A. Mitchell Feingold, Mounts & Reza, Kansas City, for defendant-appellant.
    W. Edward Coen, Jr., Meise, Cope & Coen, Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals from a judgment by the trial court in favor of plaintiff for $7,600 and interest at the statutory rate in the amount of $1,444. Plaintiff dismissed other counts and went to trial on a count alleging breach of a property settlement agreement. Defendant’s answer was a general denial. The parties had waived a jury, and the case was set on a docket of jury-waived cases for trial on February 7.

On February 4, 1977, three days prior to the date set for trial, counsel for both parties filed a joint motion for continuance stating that neither attorney had made arrangements to have his respective client available for trial. This motion was denied, the triál court relying upon a local rule requiring such motions be filed five days before trial. The local rule is not in evidence. The case proceeded to trial on February 7, with the defendant failing to appear, although defendant’s counsel was aware the motion had been denied. Evidence was presented, and the trial court entered judgment for plaintiff.

Defendant filed timely motions for new trial and to set aside the judgment. Both motions were denied.

This appeal asserts two points of error: first, that the trial court abused its discretion in failing to grant the joint motion for continuance; and, second, that the trial court erred in its judgment because the evidence was insufficient, and that the trial court abused its discretion in examining plaintiff and in failing to set aside the verdict because of the absence of the defendant at trial.

Although not married, plaintiff and defendant lived together as husband and wife from 1958 until 1969. In 1960, defendant obtained certain real property located in Kansas City, Missouri. Title to this property was in defendant’s name. In 1969, the parties were legally married and lived on this property from the time of purchase until 1973 when plaintiff sought a divorce. The divorce action was filed and concluded by judgment prior to the effective date of the present Dissolution Act.

In connection with the contemplated divorce, plaintiff and defendant entered into an oral property settlement agreement which divided their property and settled matters of child custody and child support. Included in the agreement was defendant’s promise to pay plaintiff $8,000 to release her interest in the real property. Plaintiff testified that she made no claim for alimony from defendant, relying upon the agreement that she would receive $8,000.

The terms of this agreement were set down in writing by defendant’s then attorney and represented the only agreement between plaintiff and defendant concerning the disposition of their property. Before the divorce was granted, a meeting was arranged at the defendant’s attorney’s office in which the parties were to sign the agreement. Plaintiff, accompanied by her attorney, went to the office, read, and signed the agreement. Defendant failed to appear at the meeting, but defendant’s then attorney informed plaintiff that defendant would sign the agreement at a later time. Defendant never did sign the agreement.

Plaintiff requested several times that defendant pay her and each time the defendant replied that he would pay, but failed to do so. ' While defendant failed to pay plaintiff the full amount agreed upon, he did pay an account of plaintiff’s in the amount of $400.

Approximately a year and a half after the divorce, defendant notified plaintiff for the first time that he had not signed the settlement agreement and that he did not intend to pay. Upon this refusal, plaintiff brought suit.

The first claim is predicated upon the assertion that the unavoidable absence of defendant at the trial constituted grounds for the continuance and failure of the trial court to grant the continuance was an abuse of discretion which prejudiced defendant. The grant or denial of a continuance rests within the sound discretion of the trial court and every intendment is in favor of the court’s ruling. Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976). Whether in a given case there is sufficient reason to grant a continuance is to be determined by the trial court. A trial court has the right to control its docket, and the unavoidable absence of a party or his attorney due to an engagement elsewhere, illness, or weather conditions does not compel a continuance. Erhart v. Todd, 325 S.W.2d 750 (Mo.1959); Blessing, supra; Savings Finance Corporation v. Blair, 280 S.W.2d 675 (Mo.App.1955). Under the circumstances of this case, the trial court did not abuse its discretion in denying the continuance three days before the date set for trial.

Defendant’s second point that the trial court erred in denying his motions for a new trial and to set aside the judgment raises question concerning the sufficiency of the evidence, the trial court’s direct examination of plaintiff, and abuse of discretion in failing to grant a new trial.

Defendant complains that the evidence presented was insufficient to establish a valid written agreement between the parties. Here, defendant’s argument is twofold. First, defendant suggests that the process of formulating the contract did not go beyond the negotiation stage and therefore a final contract was never formed. Second, defendant seems to argue that even if there was a final agreement, the Statute of Frauds acts as a bar to its enforcement.

Appellate review of a court-tried case is governed by the dictates of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Where sufficiency of the evidence is challenged, an appellate court must sustain the trial court’s decree or judgment if there is substantial evidence to support it. Murphy v. Carron, supra; Rule 73.01. Applying this rule to the facts of this case, there was substantial evidence adduced to show that the parties did come to a final agreement regarding the terms of the property settlement. A formal contract was drawn by defendant’s own counsel, and the behavior of the parties over an extended period of time recognized the existence of the agreement. Restatement of Contracts § 26 (1932) and Restatement (Second) of Contracts § 26 (Tent. Draft 1973).

Defendant’s contention that the agreement is void as violative of the Statute of Frauds comes too late. Defendant did not set up the defense of the Statute of Frauds in his answer, but rather pleaded a general denial. The Statute of Frauds is an affirmative defense which must be pleaded by the party claiming its benefit. Rule 55.08; Kansas City Stock Yards Co. v. A. Reich & Sons, 365 Mo. 682, 250 S.W.2d 692 (1952); Mills v. Connett, 229 S.W., 1103 (Mo.App.1921). Having failed to so plead, defendant has waived any claim he may have had to assert such defense. Martin v. Ray County Coal Co., 288 Mo. 241, 232 S.W. 149 (1921).

Defendant also complains that the trial court erred by assuming the role of advocate in its direct examination of plaintiff. Defendant cites Bova v. Bova, 135 S.W.2d 384 (Mo.App.1940), in support of this contention. The Bova case stands for the proposition that a judge is not permitted to adopt a belligerent attitude toward the parties or the attorneys and that some limit does exist with respect to permissible examination of the parties or witnesses by the court. The record reveals that the line of questions propounded by the trial court were inquisitorial in nature, directed to the plaintiff, and sought to clarify the issues of the contract terms and payment. The trial judge is privileged to ask such questions, and here the judicial inquiry was within proper bounds. State v. Farmer, 536 S.W.2d 748 (Mo.App.1976); Vernon v. Rife, Mo.App., 294 S.W. 747 (1927).

Defendant’s final contention is that the trial court abused its discretion in failing to grant a new trial when the trial court knew that the defendant’s attorney had an out-of-town trial commitment and that defendant was also unavailable on the trial date. That argument is buttressed with the claims that the trial court, “knowing” that defendant had not signed the contract and intended to assert the defense of the Statute of Frauds, abused his discretion in proceeding with the trial. No basis for the. supposed “knowledge” of the trial court is presented. In any event, the defense was not available. Defendant claims he could have raised that defense since he denied signing. He cites authority predating present Rule 55.08. Under that rule and the present case law, the defense must be pleaded. All that appears here is that defendant and counsel failed to appear, although counsel knew the case was regularly set and the continuance had been denied. Krieber v. Krieber, 420 S.W.2d 376 (Mo. App.1967), involved a divorce proceeding where the defendant did answer, but failed to appear at trial. In affirming the trial court’s judgment, the Krieber court held that:

“The fact that a party’s counsel was engaged in the trial of another case is, standing alone, no reason for setting aside a judgment where the party failed to appear for the trial.” 420 S.W.2d at 379

Upon the particular facts and circumstances presented here, defendant has failed to establish that the trial court abused his discretion in failing to grant a new trial on the grounds that counsel failed to appear at trial.

The trial court’s judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    James Henry ROLLINS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29498.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    David M. Doak, Asst. Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM:

James Henry Rollins filed a motion under Rule 27.26 to vacate the judgment of conviction and sentence previously ordered for dispensing marijuana. His original conviction was affirmed in State v. Rollins, 449 S.W.2d 585 (Mo.1970).

The trial court held an evidentiary hearing and entered findings of fact and conclusions of law. A careful review of the record reveals the findings of fact are not clearly erroneous.

An extended opinion would have no prec-edential value. The judgment is affirmed.


author: WASSERSTROM, Judge. .

text:
    Dorothy BISHOP, Appellant, v. The LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, and Division of Employment Security and Montgomery Ward & Company, Respondents.
    No. KCD 29562.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Dale K. Irwin, Suzanne Gladney, Kansas City, for appellant.
    Sharon A. Willis, Kansas City, Rick V. Morris, Jefferson City, for respondent Division of Employment Security.
    Charles B. Fain, Jefferson City, for respondent Labor and Industrial Relations Commission.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge. .

From a determination that the applicant Dorothy Bishop was disqualified from Unemployment Compensation benefits, Bishop took successive administrative appeals which were held barred at each level on the ground of her undue delay. On petition for judicial review, the Circuit Court sustained the administrative action. We reverse and remand.

On December 5, 1975, Bishop requested a leave of absence for pregnancy, and her child was born on December 11. Between those dates, on December 8, she filed a claim for Unemployment Compensation benefits. Deputy Slusher determined on December 22 that Bishop was ineligible from December 7-20, 1975, because “the claimant was not able to work or looking for work.” At the time when Slusher made that determination he filled out in handwriting form MODES-2084-R11-2 containing that determination and handed it to Bishop. At the same time, he assisted Bishop in making out a Notice of Appeal to Appeals Tribunal which was signed by Bishop and left with Slusher. An appeal hearing was held on January 28, 1976, resulting in a Referee Decision which held Bishop to be ineligible for benefits for the two weeks, December 7-20, 1975.

Meanwhile, on December 29, 1975, Deputy Slusher made a determination that Bishop was disqualified from benefits “from 12-7-75” (the termination date of the disqualification period not being set forth) for the reason that “claimant left work with the above employer voluntarily without good cause attributable to his work or his employer on 12-5-75” and this typewritten determination was mailed to Bishop on that date. The determination of disqualification was set forth on MODES-2084-R11-2 which is precisely the same form used by the Division to reflect a determination of ineligibility, the difference being that different parts of the form are filled out for one determination as compared with the other. Bishop admits that she received the form dated December 29, but her testimony indicates that she did not realize that the December 29 determination related to the matter of disqualification as distinguished from the issue of eligibility which had been the subject of the December 22 determination.

About the end of January, 1976, Bishop’s doctor advised her that she was in condition to go back to work and she then called and talked to her old foreman on the telephone. After that, she went to a reception on February 13 for the foreman who was retiring and asked him about coming back to work. The foreman answered that he would check with the head man in Personnel who would let Bishop know. Four days later, on February 17, 1976, Bishop received a telephone call saying that she was laid off.

Bishop then returned to the Division of Employment Security to make reapplication for benefits. This reapplication was denied on March 1, 1976, on the ground that she had been determined to be disqualified on December 29, 1975, and that the period of disqualification would not expire until she earned ten times her weekly benefit amount after December 5, 1975. Bishop immediately appealed, and receipt of the appeal form was acknowledged by Deputy Slusher. This appeal form contained the following statement: “I appeal from this determination for the following reasons: ‘My appeal is not timely because at the time I received the determination, I didn’t think I was going to be laid off. I did not quit, I had to take the leave of absence.’ ” Bishop, in her testimony before the Appeals Tribunal, admitted having said, “I didn’t quit, I had to take the leave of absence.” However, she denied having given the balance of the quoted reason for late appeal.

The appeal dated March 1, 1976, was denied summarily without hearing on March 15,1976. However, on March 23,1976, that order was set aside and Bishop’s appeal was set for hearing as to the timeliness and the merits. The hearing was held before Appeals Referee Vanderwerf on April 5, 1976, after which Vanderwerf rendered a decision on April 15, 1976, that Bishop’s appeal was not timely filed from the determination of disqualification made on December 29,1975, and that the determination mentioned had become final.

Bishop then filed application for review of the Labor and Industrial Relations Commission, that application being postmarked April 26, 1976. On June 21, 1976, the Commission dismissed the application “because it was not filed within the time allowed by law.”

When this cause reached the Circuit Court, the Circuit Judge initially ruled on January 3, 1977, that the application for review had not been timely filed before the Commission in that more than ten days had elapsed after the date of notification to Bishop of the Appeals Tribunal’s decision. Bishop filed motion for new trial, pointing out that the tenth day following notification to her of the Appeals Tribunal decision was April 25, a Sunday, and that her time for appeal was therefore automatically extended an additional day to April 26, and that her motion was in fact mailed on April 26,1976. The trial judge verified this to be true, and accordingly set aside his first judgment. He then entered an amended judgment on February 7,1977, holding that the failure of the Commission to consider Bishop’s cause on the merits “would normally require a remand of the case to the Industrial Commission for further proceedings.” The court went on to say, however, that such a remand in this case “would be futile” because the notice of appeal to the Appeals Tribunal had been filed 50 days too late and the Appeals Tribunal had found that good cause had not been shown to extend the time for seeking review of the Deputy’s determination of disqualification. The trial court concluded that the Appeals Tribunal decision finding no merit in plaintiff’s claim for extension of the period for the filing of her appeal and dismissing such appeal “must be affirmed. * * * To remand the cause to the Industrial Commission would accomplish no result different from that here announced. For the reasons stated, the decision of the Appeals Tribunal dismissing plaintiff’s claim as not timely filed is affirmed.”

The fundamental difficulty with the disposition made by the Circuit Court stems from its effort to review and affirm the decision of the Appeals Tribunal. The court had no authority to do so, but rather its authority was confined to a review of the decision by the Commission. Chapter 288 establishes a three-tier system of appeals: first, Sec. 288.190 provides an appeal from the deputy to the Appeals Tribunal; second, Sec. 288.200 provides an appeal from th,e Appeals Tribunal to the Commission; and finally, Sec. 288.210 provides an appeal from the Commission to the Circuit Court. The statutory scheme makes no provision for court intervention before both administrative appeals have been exhausted.

True, the Commission in its discretion can deny an application for review of an Appeal Tribunal’s decision, and in that event “the decision of the appeals tribunal shall be deemed to be the decision of the Commission for the purposes of judicial review.” Sec. 288.200-1. However, that is not what happened here. The Commission did not deny Bishop’s application, but instead dismissed it for an alleged lack of jurisdiction based on an assumption of fact now conceded to have been erroneous. The Commission has not yet exercised its discretionary right to deny Bishop’s application, thereby adopting the Appeal Tribunal’s decision and making that ruling subject to judicial review.

The trial court acknowledged this limitation on its power of review but considered that it should not apply under the circumstances of this case because a remand to the Commission “would accomplish no result different from that here announced.” That statement by the trial court assumes that this record shows as a matter of law that Bishop had no good cause for not appealing in time from Deputy Slusher’s determination of December 29, 1975. That assumption overlooks two important factors.

First, the record in this case is not yet frozen and may still be supplemented by further evidence before the Commission, as authorized by Sec. 288.200-1. The record at this point is somewhat confused as to whether and to what extent Bishop understood the import of the form received by her notifying her of her disqualification from benefits or whether she mistook that for a more formal typewritten copy of the notice of ineligibility which had already been handed to her in handwritten form. Furthermore, the record contains no information as to the extent of Bishop’s education or general intellectual ability. These matters could be clarified by further evidence.

The second important matter overlooked by the trial court is that Appeals Referee Vanderwerf apparently misinterpreted or at least unduly limited the circumstances relied on by Bishop to show good cause for the late appeal. So in his opinion, Vander-werf states: “The evidence shows that the only reason for the claimant’s delay in filing an appeal was that she mistakenly may have thought that an earlier appeal could be made applicable to the determination.” We do not understand that to be the import of Bishop’s testimony; and in any event, the quoted statement does not reflect the full extent of the claim of “good cause” as set forth by Bishop’s brief and argument in this court.

Bishop also argues that the Appeals Referee placed too narrow a construction upon the term “good cause,” and that the restrictive definition of that term in 8 CSR 10-5.-020(2), as applied in this case, conflicts with See. 288.020. Dealing with that argument would be premature now. That issue will ripen for judicial determination only after the facts have been fully developed administratively and the Commission has had full opportunity to review the facts and make its own interpretation of the Regulation as applied to the facts of this case.

The determination of good cause is addressed in the first instance to the sound discretion of the administrative agency, it depends on the evaluation of many subtle factors, and that determination is subject to judicial review only for abuse of discretion. Langford v. Flemming, 276 F.2d 215 (5th Cir.1960); Gardner v. Moon, 360 F.2d 556 (8th Cir.1966). A determination as to good cause, has not yet been made by the Commission, and until that has occurred the administrative remedies have not been exhausted and Bishop has not been accorded her full statutory rights.

The judgment of the trial court is therefore reversed and the cause remanded with directions to remand to the Commission for further proceedings.

All concur.

      . Sec. 288.070, RSMo Supp.1974 provides:
      “4. Unless the claimant . . . within ten calendar days after being notified by the deputy of his determination, it shall be final .

      “8. The ten day period mentioned in . subsection 4 of this section may, for good cause, be extended.”
      All other statutory references in this opinion, unless otherwise noted, will be to RSMo 1969.

      . Sec. 288.200-1 provides: “Any of the parties . . . to any decision of the appeals tribunal, may file with the commission within ten days following the date of notification or mailing of such decision, an application to have such decision- reviewed by the commission..”

      . Regulation .8 CSR 10-5.020(2) provides:
      “ ‘Good cause’ shall be only those circumstances which are completely beyond the control of the person filing the protest or appeal and then only if the protest or appeal is filed as soon as practical under the circumstances.”


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Carl M. HINES, Appellant.
    No. KCD 29769.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Clifford A. Cohen, Public Defender, Kevin Locke, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Terry Lee Lister, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOPFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant appeals from his conviction by a jury of stealing over $50 and the subsequent sentence by the court of five years imprisonment under the second offender act. Defendant assigns two points on appeal: (1) insufficiency of the evidence; and (2) refusal to permit a certain question on voir dire of the jury panel. We affirm.

At 8:00 a. m. on July 12, 1976, Clarence Dunn, an employee of the Retail Store Employees’ Union, saw defendant carrying a large, new electric IBM typewriter, green in color, out of the building which housed the Union offices. Dunn asked defendant where he was going with the typewriter, to which defendant made no response. He proceeded to load the typewriter into a waiting car and then sped away. Dunn proceeded upstairs to the Union offices, where he checked and found a typewriter missing. No one had authority to remove a typewriter from that office.

Hess, another Union employee, identified the missing typewriter as one of those which had been purchased by Union from IBM on May 13,1976, at a cost of $813 each. Defendant was arrested on August 3, 1976, under another name and was identified by Dunn as the one he had seen on July 12. The typewriter, however, was . never recovered.

I.

Defendant challenges the sufficiency of the identification of the typewriter on both factual and legal grounds. Factually, he contends that Dunn’s description of a new green IBM typewriter intended to describe the typewriter which was missing from the Union office, not the typewriter which he saw in defendant’s possession. A fair reading of Dunn’s testimony does not yield that interpretation. The testimony in question follows:

“Q. Now, which window of the vehicle was that typewriter placed in?
A. Opposite the driver.
Q. That would be the passenger side?
A. Yes, sir.
Q. Was that window opened?
A. Yes, sir.
Q. And were you close to him at that time?
A. About three feet from him, yes, sir.
Q. Now, what did you write down that license number on?
A. On the back of my route book.
Q. On the back of your route book?
A. Yes, sir.
Q. Was that route book inside your brief case?
A. Yes, sir.
Q. Do you know the approximate value of that typewriter?
A. Eight hundred thirty dollars.
Q. Do you know what brand typewriter it was?
A. IBM.
Q. Do you, at this time, recall what color the typewriter was?
A. Green.”

It seems clear that the description given by Dunn related to “that typewriter” which he had seen defendant place inside the waiting car. If there could be any question on this score, that was a matter for jury consideration, and all inferences must now be resolved in favor of the jury verdict. State v. Thompson, 428 S.W.2d 742 (Mo.1968); State v. Poole, 563 S.W.2d 156 (Mo.App.1978); State v. Cain, 507 S.W.2d 437 (Mo.App.1974).

Defendant further challenges the legal sufficiency of Dunn’s identification under the Thompson and Poole decisions, supra. In Thompson, an identification of a stolen wallet and pair of gloves was held insufficient although the witness said that the items in evidence were “exactly like” those missing. In holding that circumstantial evidence insufficient, the court carefully pointed out that “there is no evidence that he [the defendant] was at the Burgess home or anywhere near it during the hours in which this burglary was committed, or at any other time, or that he was in Sikeston on that date.” So also in Poole, the defendant had not been seen near the scene of the theft. By way of contrast, defendant in the present case was seen by Dunn leaving the building where the theft occurred, carrying a typewriter meeting the description of the one which was stolen. This difference brings the present case within State v. Sloan, 548 S.W.2d 633, 639 (Mo.App.1977), which distinguishes Thompson on this very basis.

II.

Defendant’s second point relates to his effort to ask the jury panel with respect to their ability to distinguish between the burden of proof in a criminal case as compared to the standard applicable in a civil case. The portion of the examination in question was as follows:

“Has anyone here ever served on a civil jury before? If you have please raise your hand.
I see three hands. My question is directed to you three. Do you understand, having served on a civil jury before, that the burden of proof—
THE COURT: Well, I don’t think we need to get into law in civil cases.
MR. LENTZ: Your Honor, I propose to ask — I want to lay a foundation for my question by explaining what the burden is in a civil case, ask them if they have the ability to apply a different standard in this case.
THE COURT: Okay. Your offer is denied. Proceed.”

The refusal to permit the attempted interrogation was not error. The matter with respect to which defense counsel sought to inquire was a matter for instruction by the court, not questions by counsel on voir dire. State v. Ford, 346 Mo. 882, 143 S.W.2d 289, 291 (1940); State v. Henderson, 547 S.W.2d 141, 143 (Mo.App.1977).

In the Ford case, defense counsel attempted to ask on voir dire if the panel could distinguish between assault and robbery. The court held that attempted interrogation was properly refused: “Counsel may not implant in the jury’s minds the idea that they should independently draw legal distinctions. They must be guided by the court’s instructions on such questions.”

It should be noted that the trial court had already instructed the jury panel on presumption of innocence and the necessity of the State proving its case beyond a reasonable doubt, and at the conclusion of the evidence the court again instructed the jury on those matters. Indeed, just before the disputed attempt at interrogation herein above quoted, defense counsel himself had called attention to these legal points in the following manner:

“Now, one of the propositions involved in a criminal case is that a person accused of a crime is presumed innocent unless and until he is found guilty by a jury. So, Mr. Hines, as he sits here is innocent. Does anyone disagree with that proposition of law?
Another proposition in a criminal case is that the State has the burden of proving anyone accused of a crime guilty by evidence beyond a reasonable doubt. Does anyone disagree with that proposition of law? Does anyone think that the State has too heavy of a burden to overcome in proving someone guilty?
What this boils down to is that the State has to prove everything, and this man may sit here and doesn’t have to prove anything. That’s another proposition in a criminal case. Does anyone disagree with that?”

Under all of the circumstances, a refusal to allow the additional interrogation in question caused no prejudice to defendant. There was no more prejudice here than there was in State v. Jenkins, 494 S.W.2d 14, 18 (Mo.1973) where the Supreme Court held that it was non-prejudicial to refuse to allow the defense counsel to probe the understanding of the jury panel as to the difference between the duties of a civil jury as compared to a criminal jury. At the very least, the refusal to permit this interrogation was well within the wide discretionary limits of the trial court. State v. Mudgett, 531 S.W.2d 275, 279 (Mo. banc 1976).

Affirmed.

All concur.