author: DOWD, Chief Judge.

text:
    J. R. MEADE CO., a Missouri Corporation, Plaintiff-Respondent, v. FORWARD CONSTRUCTION COMPANY, a Missouri Corporation, et al., Defendants, Avondel L. Gillian and Mary L. Gillian, his wife, et al., Defendants-Appellants. WENTZVILLE DRYWALL CO., INC., a Missouri Corporation, Plaintiff-Respondent, v. FORWARD CONSTRUCTION CO., a Missouri Corporation, et al., Defendants, Gideon H. Schiller et al., Defendants-Appellants. C. L. MARTIN CONTRACTORS, INC., a corporation, Plaintiff, v. FORWARD CONSTRUCTION CO., a corporation, et al., Defendants, Marion F. Heath and Nancy L. Heath et al., Defendants-Appellants.
    Nos. 35505-35512, 35517, 35518, 35458.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 20, 1975.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied June 26, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      Robert C. Jones, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for appellants.
    Bernard A. Barken, St. Louis, Lowell C. McGowen, Frederick W. Shultz, Francis L. Ruppert, Wion, Burke & Boll, Charles M. Schmidt, Stefan J. Glynias, Clayton, Nied-ner, Moerschel, Nack & Ahlheim, St. Charles, Charles E. Roth, St. Louis, for plaintiffs-respondents.
   DOWD, Chief Judge.

Mechanic’s lien suits. This is a consolidation of eleven separate appeals arising out of a consolidated trial held in the Circuit Court of St. Louis County. The suits were consolidated because common questions of law and fact were presented, as well as the identity of many of the parties.

The suits all have the following common factors: (1) each suit was instituted as a mechanic’s lien suit by one of the respondent contractors; (2) all respondents are contractors who contributed work and labor on buildings on separate lots in subdivisions in St. Louis County; (3) each suit resulted in judgments and liens declared for some of the contractors seeking liens; (4) each appeal is brought by defendants who have an interest in the land and are thus contesting the imposition of the liens; (5) defendant Forward Construction Company hereinafter Forward) was the original owner of record of each lot and entered into construction contracts with each respondent.

The respondent contractors involved in these appeals are as follows: J. R. Meade Co. (hereinafter Meade); Wentzville Drywall Company (hereinafter Wentzville); Karsten Plumbing Company (hereinafter Karsten); Beach Electric Company (hereinafter Beach); Archway Wholesale Supply Company (hereinafter Archway); Watts Construction Company (hereinafter Watts); Martin Korn (hereinafter Korn); Chromalloy American Company (hereinafter Chromalloy); and, N. B. West Contracting Company (hereinafter West).

The differences between the suits are: (1) each suit varies as to the amount of the judgment recovered by each respondent contractor; (2) each suit involves a different piece of property; (3) each suit involves different combinations of respondents; and, (4) in some suits, different theories are presented for contesting the liens.

Our task on each of the appeals is to determine if the liens in question were properly declared by the trial court. We will first discuss certain of the issues of law common to eight of the appeals. Thereafter, we will examine the unique arguments of each case separately.

Eight of the appeals present virtually the same four issues in appellants’ first Point Relied On. Generally, those issues are: (1) Was notice of the intention to file a mechanic’s lien required to be served on the trustee and the cestui que trust of the deed of trust encumbering each property? (2) Was notice of the intention to file a lien required to be served on subsequent owners of the properties? (3) Were the trustees, cestui que trusts or subsequent owners required to be named on the mechanic’s liens? (4) Were the lien statements required to be itemized, and if so, were the liens as filed in compliance with the statute? We take each point in order.

Appellants’ first point is that the trustees and cestui que trusts were entitled to notice before a lien could be filed on the respective properties. They base this argument on § 429.100 RSMo 1969, V.A.M.S. That section is from the chapter on “Liens Against Real Estate” and reads as follows:

“Every person except the original contractor, who may wish to avail himself of the benefit of the provisions of sections 429.010 to 429.340, shall give ten days’ notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due. Such notice may be served by any officer authorized by law to serve process in civil actions, or by any person who would be a competent witness. When served by an officer, his official return endorsed thereon shall be proof thereof, and when served by any other person, the fact of such service shall be verified by affidavit of the person so serving.”

A careful examination of the statute shows that the section does not apply to original contractors and also requires notice to be given only to “owners.” Thus, in order to prevail, appellants must prove: first, that respondents were not original contractors, and second, that appellants fall within the class of “owners” entitled to notice. Examination of the cases in this state, as well as other states, convinces us that appellants fail in both requirements.

An “original contractor” is “one who makes a contract to perform labor or furnish materials with the then owner of the property.” Vasquez v. Village Center, Inc., 362 S.W.2d 588, 593 (Mo.1962). It is uncontroverted that defendant Forward was the owner of record of the property as of the dates each contract was executed. Each contract was executed between Forward and each respondent. Thus, each respondent is an original contractor.

We realize, of course, that the factual situation here is unusual; most of the respondents usually work as subcontractors, under one original or general contractor. The difference here is that Forward is also the owner of the property. We are mindful also that this result produces all original and no subcontractors. This in no way offends the purpose of the statute and the fact that this result is unusual does not require a change in the underlying definition of an “original contractor.”

We note that our mechanic’s lien law is remedial in nature and should be liberally construed. Bremer v. Mohr, 478 S.W.2d 14, 17 (Mo.App.1972). It has also been said that its purpose is to give security to mechanics and materialmen for labor and materials furnished in improving the owners’ property and that the law should be construed as favorably to those persons as its terms will permit. Kinnear Manufacturing Company v. Myers, 452 S.W.2d 599, 602 (Mo.App.1970). We also recognize that a lien claimant must substantially comply with the statute in order to secure its benefits. Bremer v. Mohr, supra, 17.

Appellants make no argument that respondents are not original contractors within the meaning of the statute. They argue that this court’s decision in Nelle Plumbing Company v. Stefanic, 453 S.W.2d 636 (Mo.App.1970), so broadened the concept of ownership as to include the trustee and cestui que trust under a deed of trust. This, appellants argue, entitled them to notice of any lien to be filed on property encumbered by their deed of trust. Appellants argue that this notice would allow appellants to take remedial steps to avoid imposition of the lien.

While this argument may have once been valid, we now have a definitive Supreme Court decision on this precise issue. R L. Sweet Lumber Company v. E. L. Lane, Inc., 513 S.W.2d 365 (Mo. banc 1974). In fairness to appellants, it must be pointed out that the Sweet case was handed down subsequent to the filing of all but one of the briefs in this case. Sweet held that subcontractors were not required to serve notice of intention to file a lien on the trustee or cestui que trust under a deed of trust.

“Appellant’s ownership of the deed of trust on the property did not constitute him the owner of the title to the property” and hence, not entitled to the 10 days notice. Sweet, at 368. The Supreme Court in Sweet also held that “to the extent that the H. B. Deal, Nelle Plumbing and Boyer cases conflict with our holding herein they should no longer be followed.” (p. 371).

Thus it is clear that no notice of intention to file a lien is required to be given to a trustee or a cestui que trust under a deed of trust. Likewise, since a trustee or a cestui que trust is not an “owner” for purposes of deciding who is entitled to notice, the trustee or cestui que trust is not required to be named as an “owner” on the lien statement. The fact that some of the respondent contractors gave notice and named the trustee and cestui que trust as owners does not mean that the statute required them to do so.

The second issue presented by appellants is whether notice should have been given to the owners of record on the day the liens were filed. Appellants’ argument is stronger on this point, since these subsequent owners did not know of the debts owed by Forward. The rationale behind the statute requiring notice is as follows: an owner of property who contracts with an original contractor knows whether the original contractor has been paid; thus, the owner does not need notice of the filing of a lien by the original contractor. On the other hand, the property owner is not under contract with a subcontractor and does not know if the subcontractor has been paid; thus, the owner is entitled to ten days notice from the subcontractor before the subcontractor can file a lien. Appellants’ argument is that in this case, since they are subsequent owners of the property, they have the same relationship with respondent contractors as an owner has with subcontractors, and should be given ten days notice just as if respondents were subcontractors.

As said earlier, respondents have the status of original contractors. As such, they are not required to give notice of their intention to file a lien. § 429.100. The question before us is what effect, if any, the subsequent sale of the property has on the rights and obligations of original contractors. We have not been presented with a case squarely in point by appellants. We do not believe that respondents’ status as original contractors should be affected by a subsequent sale of the property. That determination is made on the date the contract is entered. Since the contracts were with the owner, respondents are original contractors. Their status as original contractors is preserved throughout their employment. We hold that the statute does not require notice to be served on subsequent owners of record. Our duty is to construe the statute liberally in favor of the lien claimants.

Appellants’ third contention on this issue is that certain of the liens are void for failing to include on the lien statement the names of the subsequent owners of record of the property. This requirement stems from § 429.080, regarding the contents of the lien statement. The contractor must file a just and true account of the demand due him “with the name of the owner or contractor, or both, if known to the person filing the lien.” (Emphasis added). Appellants’ position is that since they were the owners of record on the date of the lien, they should be named on the lien. This argument would be more persuasive if the statute simply said “owner.” In that case an argument could be made requiring respondents to check the title of the property between the day they executed the contracts and the day the lien was filed. Such a construction would not, however, give ef-feet to the qualification “if known to the person filing the lien.” This language is a clear legislative mandate that contractors need only name such owners as they have knowledge of and do not have to run a title search. Appellants do not argue that respondents actually had notice of the subsequent change of ownership. Thus, since there has been no showing of actual knowledge by respondents of these subsequent owners, we do not find the lien statement defective for failing to name these unknown owners.

Appellants’ fourth contention is that certain of the liens were not properly itemized. The requirement for itemization arises from § 429.080. That section requires any contractor who desires to impose a lien on real property to “file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given.” The statute does not define “just and true account”, but we are aided in our pursuit of a definition by the cases construing this section. “The legislative purpose of requiring the filing of the ‘just and true account’ is so that the landowners and others interested may learn from the lien statement what the lien claimant asserts he has furnished, thus permitting an investigation to be made to determine whether the materials actually went into the building; whether they were lienable items, and whether the amount charged is proper.” Wadsworth Homes, Inc. v. Woodridge Corporation, 358 S.W.2d 288, 291 (Mo.App.1962). This legislative purpose is fulfilled in this case, since appellants’ brief acknowledges that there is no dispute that the work was done and that the charges were reasonable. The Wads-worth case, as noted earlier, also stands for the proposition that we test respondents’ status as original contractors at the time the contracts were entered. On this precise issue the court noted that subsequent owners of the property, or those with rights therein, “could plainly see that a new house had been constructed or was in the process of construction on the premises. This was at least general notice that a workmen’s lien might be asserted.” 358 S.W.2d at 293. The court went on to hold that the original contractor under a lump sum contract with the landowner did not have to itemize his lien account, and could simply state a lump sum.

We have also examined the lien accounts, filed as exhibits with this court and find them to all be fair statements of the materials charged to each job. In light of our holding above that these respondents are all original contractors and considering the remedial nature of the statute, we find no error by the trial court in holding these liens to be valid and in compliance with the statute.

We proceed at this point to a discussion of the remaining issues of each appeal.

I NO. 35505

The remaining issue on this appeal concerns respondent Wentzville Drywall. Appellants contend the trial court erred in declaring a lien in favor of Wentzville for the additional reason that Wentzville’s lien was filed on November 1, 1971, more than six months after the indebtedness accrued, and is therefore void under § 429.080. That section states that:

“It shall be the duty of every original contractor within six months, and every journeyman and day laborer within sixty days, and every other person seeking to obtain the benefit of the provisions of sections 429.010 to 429.340 within four months, after the indebtedness shall have accrued, to file with the clerk of the circuit court of the proper county a just and true account of the demand due him.”

Again, we must look to the case law for a definition of what is meant by “after the indebtedness shall have accrued.” We find that phrase to mean when the materials supplied are finally furnished or are finally installed upon the building. E. R. Darlington Lumber Co. v. James T. Smith Bldg. Co., 134 Mo.App. 316, 114 S.W. 77, 78 (Mo.App.1908); Harry Cooper Supply Co. v. Gillioz, 107 S.W.2d 798, 802 (Mo.App. 1937).

Here, the testimony by Wentzville was that Wentzville billed the full cost of its services on April 26, 1971, but that often additional work was done after billing. Wentzville also testified that its records indicated that the job was not fully completed until May 27, 1971.

On cases involving mechanics’ liens tried by the court, we review the case both upon the law and the evidence but due regard is given to the opportunity of the trial court to weigh the credibility of the witnesses and we defer to the court’s findings upon controverted matters of fact. Boyer Lumber, Inc. v. Blair, 510 S.W.2d 738, 743 (Mo.App.1974). We do not find the trial court’s finding that the job was not complete until May 27, 1971 erroneous. The lien was timely filed.

The judgment is affirmed.

II NO. 35506

The remaining issue on this appeal also challenges the lien of Wentzville on the grounds of timeliness. Here, the lien was filed on November 1, 1971. The invoice date for billing purposes was April 9, 1971. There was testimony by Wentzville that the garage of the house was not completed until May 7, 1971, as indicated by the foreman’s notation on the job records. Again, based on this testimony, we cannot say that the trial court erred in finding the lien to be timely filed, since November 1, 1971, is less than six months after the date respondent set for the completion of the job.

The judgment is affirmed.

III NO. 35507

The additional contention of this appeal is that there was no showing by either Meade or Archway that there was any agreement between themselves and the owners of the property to do the work being sued for. Defendants James W. Hofer and Kathleen A. Hofer became owners of the property on May 4,1971, after construction had begun.

Section 429.010 provides that: “Every mechanic or other person, who shall do or perform any work or labor upon, . any building, . . . under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, . . . shall have for his work or labor done, ... a lien upon such building.” It is appellants’ position that this language requires a contractor to enter into an additional agreement with subsequent purchasers of the property, at least up to the date the job was completed. We believe that our earlier discussion relative to the position of subsequent owners is applicable to this issue also. The rights of mechanics and materialmen are not affected by subsequent transfers of the property. Wadsworth Homes, Inc. v. Woodridge Corporation, supra.

We do not think that a construction requiring another contract each time the property is sold would be compatible with either the cases discussed previously or the purpose of the statute. As said, appellants were on notice that a building was being completed on the premises. We interpret the statute to require only one contract at the beginning of construction. The liens were not fatal for lack of a contract with subsequent owners. It necessarily follows that the October filing dates of the liens were also within the six month period, since the work was completed in June. The liens were properly declared.

The judgment is affirmed.

IV NO. 35508

The unresolved issue on this appeal concerns the timeliness of the lien filed by respondent Korn on December 27, 1971. Appellants’ position is that Korn finished his work on June 25,1971, which makes the December 27th filing two days late. Respondent Korn, on the other hand, introduced testimony that the last work was the cleaning of the bricks, and that work was not completed until the week prior to July 20, 1971, which date would make the filing timely. We hold, based on this evidence, that the “indebtedness accrued” in July, 1971, and trial court’s finding that the lien was timely filed was not erroneous.

The judgment is affirmed.

V NO. 35509

There are no unresolved issues remaining. The judgment is affirmed.

VI NO. 35510

In issue on this appeal is the timeliness of Korn’s lien. We have again examined the record and find testimony supporting June 20, 1971, as the last day upon which work was done on the premises in question. We cannot say trial court was in error in choosing that date, and accordingly, the lien was timely filed.

The judgment is affirmed.

VII NO. 35511

Appellants contend that the trial court erred in declaring a lien in favor of respondent Korn for the reason that the work was performed under two contracts, only the second of which was timely filed. Appellants argue that the work was completed on June 25, 1971. However, Korn produced testimony that the brick cleaning was not finished until July 20, 1971, which date would make the filing timely. Again, we must defer to trial court’s ability to judge the credibility of the witnesses. The court’s conclusion that the finish of the brick cleaning was the day the “indebtedness accrued” cannot be said to be erroneous.

The judgment is affirmed.

VIII NO. 35512

The only issue presented by this appeal is whether the lien filed by Wentz-ville was timely. The last day upon which Wentzville could positively establish that they were still working on the house was May 12, 1971, the date of the invoice. The Secretary-Treasurer of Wentzville testified that he returned to the job to finish some sanding and touch up “sometime between two to three weeks later.” Three weeks after May 12, 1971, would be June 2, 1971. Wentzville had no record of the exact date, nor could they suggest one. There is nothing else in the record which would allow a finding of a later date. The lien was filed on December 3, 1971. That date is beyond the six month period allowed for the filing of a lien. Accordingly, trial court erred in declaring a lien in favor of respondent Wentzville.

The judgment of the trial court declaring a lien in its favor is reversed.

IX NO. 35517

No remaining issues are presented. The judgment is affirmed.

X NO. 35518

This appeal differs from the others in that defendant Forward was not the owner of record at the time the contracts were executed. At issue before the trial court was the identity of the owner and the general contractor for the purposes of the mechanic’s lien statutes. The trial court found that:

“4. The defendant R. K. D. Nomen was the record owner of the aforesaid tract of ground and improvements thereon at the time the various mechanic’s lien claimants furnished their respective items of labor and/or materials and equipment, but that the defendant R. W. Franklin was the real party in interest with respect to the ownership and development of the Lavinia Gardens Apartment Project.
“5. That the defendants Forward Construction Company, R. W. Franklin and R. K. D. Nomen Company acted interchangeably and as the alter ego of each other in contracting with and ordering the various items of labor, material and equipment from the various claimants of mechanic’s lien used in the construction of the Lavinia Gardens Apartment Project.”

Appellants argue that these findings are erroneous for the reason that the findings conflict with admissions made by certain of the respondents prior to trial. The trial court was, appellants argue, bound by the admissions made by respondents that R. K. D. Nomen was the owner of the property and Forward was the general contractor.

We do not believe in this case that the trial court is bound by the admissions by respondents. As said, the issue before the court was the identity of the owner or owners for the purposes of the mechanic’s lien statutes. That is a question of law or at the least a conclusion, neither of which is the proper subject for a request for admissions. Rule 59.01, V.A.M.R. Furthermore, the admission as to ownership can be read as an admission as to who was the owner of record, a fact not controverted, and in fact confirmed by the trial court’s findings. The trial court simply found that there were other “owners” for purposes of declaring a mechanic’s lien.

Appellants contend that trial court made no finding as to the identity of the general contractor. On the contrary, the trial court found that Meade, Chromalloy, Beach, Wentzville and Watts were all general contractors, presumably based on its finding that . . the defendants Forward Construction Company, R. W. Franklin and R. K. D. Nomen Company acted interchangeably and as the alter ego of each other in contracting with and ordering the various items of labor, material and equipment from the various claimants of mechanic’s lien used in the construction . ” We do not believe this finding to be erroneous. As to these claimants, then, they were allowed six months to file their liens and were entitled to use a lump sum in their lien accounts.

As to respondent Wentzville’s lien, appellants contend it is fatal because the lien account erroneously included the figure $7,819, instead of $6,839. It has been held that mere inadvertence or mistake, if not accompanied by an intention to defraud, will not invalidate a lien. Putnam v. Heathman, 367 S.W.2d 823, 829 (Mo.App.1963); Woodling v. Westport Hotel Operating Co., 227 Mo.App. 1231, 63 S.W.2d 207 (1933). See also Hydraulic-Press Brick Co., v. Green, 177 Mo.App. 308, 164 S.W. 250 (1914) where the lien was allowed in similar circumstances for the amount actually furnished. The lien here in favor of Wentz-ville was corrected and properly allowed.

As to respondent Beach’s lien, appellants contend that the lien is invalid for failure to name the admitted owner and general contractor. This contention fails for the reason the trial court found that R. W. Franklin, the owner indicated on the Beach lien, to be one of the owners as defined in the mechanic’s lien statutes. We agree with the court’s finding.

As to the Korn lien appellants contend, in addition to other contentions unnecessary to discuss because of our holding that Korn was an original contractor, that the Korn lien is invalid because of late filing and because Korn did not use the amount of material (specifically bricks) included in the lien. As to the contention of late filing, testimony was adduced that the brick cleaning was not finished before June 21 or 22,1971. These dates make the October 29, 1971 filing timely. As to the contention that Korn did not use the amount of bricks included in the lien, there is testimony in the record to the contrary. As said, the credibility was for the trial judge. The trial judge did not err in awarding a lien in favor of Korn.

The next lien objected to is the lien of respondent West. Appellants contend that West abandoned its work from April 16, 1971 to August 17, 1971 and thus destroyed any right of West to a running account. Appellants further argue that the time for filing a lien began to run on April 16, 1971. Not so. The record does not support an abandonment by West. While respondent West did not favor this court with a brief, we have examined the record and are satisfied that West was operating under a contract which required West only to perform its services as the building reached various stages of completion. At different times, West would be told what to deliver and where to work. This testimony is sufficient to establish a “running account.” A mere lapse of time on a running account does not cause the period of limitations to begin running. Trout’s Investments, Inc. v. Davis, 482 S.W.2d 510, 514 (Mo.App.1972). There was testimony that work was still being done as late as September 2, 1971, which would make the lien timely. Trial court found for West and its finding is not erroneous.

The remaining dispute regarding the lien of Archway concerns the inclusion of a cost for cabinets in the lien account which were installed by a subsequent purchaser of the property. We fail to see the relevance of this fact. Archway testified that it was under contract with Forward to deliver materials to the five buildings in question to Building # 5 and that Roger Conrad, as agent for Forward, had agreed to the price of material to be supplied to the apartments. Archway did not install any of the materials it delivered; who subsequently installed the material should not affect Archway’s right to a lien against the property, and it was properly declared.

Lastly, appellants attack the Chromalloy lien. Their first contention in this regard is that the lien was not timely. They base this assertion upon the testimony of Chro-malloy’s witness that the work was finished on April 20, 1971. Chromalloy also introduced testimony that Chromalloy was under contract with Forward to furnish various materials to this jobsite, that they made such deliveries up to and including August 19,1971, that at the time of the lien account it was Chromalloy’s belief that all of the materials had been installed in the buildings and that the lien account has been corrected by $2,140.32 for materials not actually used in the building.

Part of the dispute goes to whether the testimony of Chromalloy’s witness is credible; we repeat that we defer to the trial court’s ability to judge the credibility of witnesses. Appellants further contend that certain repairs and extras were part of a new and separate account and cannot be used to date the completion of the work. Appellants cite no case in support of their position that two contracts were in fact created. Chromalloy, on the other hand, argues that it had a “running account” as defined by the case of Badger Lumber Co., v. W. F. Lyons Ice and Power Co., 174 Mo.App. 414, 160 S.W. 49 (1913). A running account is a mutual account between buyer and seller, to which charges and credits are made as materials are sold or paid for. Unless there is evidence to show a separate and distinct contract as to the last items, the account will be considered a running account and relates back to the original contract. Trout’s Investments, Inc. v. Davis, 482 S.W.2d 510, 514 (Mo.App.1972). Once a running account is established, the mere lapse of time between the items “is not sufficient to commence the running of the mechanic’s lien periods of limitation. Nor is it significant that the last item or labor may be a small item.” Trout’s Investments, Inc. v. Davis, supra. Chromalloy demonstrated to the trial court’s satisfaction, and to ours, that it was operating under a running account. As such, the additional services rendered in August, 1971, were part of the original contract and accordingly, the lien was timely filed.

Next is appellants’ charge that Chromalloy wrongfully included materials in the lien that were sold to. a subsequent owner. A credit has been made of this item to the lien account. Chromalloy successfully showed that this was a good faith mistake, based on facts which it assumed to be true at the time the lien was filed. Upon later learning the true facts, Chromalloy made the appropriate adjustments. Under the holdings of the cases discussed on this issue earlier, the lien will not fail due to a good faith inclusion of a charge which later is proved to have been excessive.

Appellants’ remaining attack upon this lien is that it includes wall-to-wall carpeting, a non-lienable item. Appellants’ position is that wall-to-wall carpeting is not affixed to the property in the traditional sense. Neither party has been able to furnish us with any cases directly concerning wall-to-wall carpets but our independent research has produced cases supporting both views. The Oklahoma courts have held wall-to-wall carpeting lienable because it is glued or nailed to the subfloor and it in fact becomes the finished floor. Florida courts have denied liens on such carpeting, looking to their statute which requires a lienable item to be an “improvement” to the land. We believe our statute provides a less strict view of what constitutes a lienable item.

Our statute is § 429.010 and it provides that “every mechanic or other person, who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, . shall have ... a lien upon such building, erection or improvements.” This language, to our mind, would include wall-to-wall carpeting in a new building, since we assume the carpeting was affixed directly to the subfloor and served as a finished floor. The removal of such carpeting involves much work and renders the flooring unsuitable for use thereafter. Accordingly, the lien was properly declared.

The judgment is affirmed.

XI NO. 35458

The only issue presented by this appeal is whether Respondent Beach was required to enter into a second agreement with subsequent owners of the property. For the reasons stated in case III., No. 35,507, respondent is not required to establish agreements with every subsequent owner of record. The lien was properly declared.

The judgment is affirmed.

CONCLUSION:

Judgment affirmed as to all respondents except Wentzville Dry wall in appeal # 35,-512, which is reversed as to that lien.

WEIER, CLEMENS and RENDLEN, JJ., concur.

      .The transcript consists of 1500 pages and over 50 briefs were filed. We commend Judge Ninian M. Edwards for the competent manner in which he resolved numerous issues involved in this voluminous record.

      . The appellants are owners of the lots, trustees or cestui que trusts under deeds of trust, all recorded after construction began.

      . With the exception of No. 35518, as explained later.

      . J. R. Meade v. Forward Construction Co., et al., Numbers 35505, 35506, 35507, 35508, 35509, 35510, 35511, 35517.

      . All statutory references will be to RSMo 1969.

      . In fact, another contention by appellants is that certain of the respondents filed their liens beyond the six month time period. The six month period is only allowed to original contractors, seemingly an admission on that issue that respondents are original.

      . Respondents cite us to Tull v. Fletcher, 196 Mo.App. 573, 196 S.W. 436 (Mo.App.1917) and Reese v. Cibulka, 68 S.W.2d 902 (Mo.App.1934), which are both in accord with this position. See also Wadsworth Homes, Inc. v. Woodridge Corp., 358 S.W.2d 288 (Mo.App.1962).

      . This position also finds support in Tull v. Fletcher, 196 Mo.App. 573 196 S.W. 436 (Mo.App.1917) and Reese v. Cibulka, 68 S.W.2d 902 (Mo.App.1934).

      . Respondent Wentzville did not file a brief.

      . The admissions were made by Meade in response to a request for admissions by respondent N. B. West Contracting Company. The remainder of the admissions resulted from a failure to answer requests for admissions. In addition, certain denials were filed by leave of court by some respondents after the time for responding had expired.

      . Wentzville testified that through inadvertence the figure entered for the 14 unit building was the same as the figure used for the 16 unit building. Trial court reduced the figure to $6,839.

      . This is also true for many of the lien claimants and a repetition of the discussion as to those issues would serve no useful purpose.

      . Southwest Title & Trust Co. v. Norman Lumber Co., Old., 441 P.2d 430 (1968); United Benefít Life Insurance Co. v. Norman Lumber Co., Okl., 484 P.2d 527 (1971).

      . Fell v. Messeroff, Fla.App., 145 So.2d 238 (1962).


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    Gloria V. JOHNSON, Petitioner, Appellant, v. Andrew JOHNSON, Jr., Respondent.
    No. 36167.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 27, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.

      Morris B. Kessler, Louis Gilden, St. Louis, for petitioner, appellant.
    Ira M. Young, St. Louis, for respondent.
   DOWD, Judge.

Action for dissolution of marriage and for custody of two minor children. Gloria Johnson, the appellant herein, appeals from that portion of the trial court’s order which awards respondent the care and custody of the minor children of the marriage. Appellant contends that the trial court erred in (1) failing to consider the statutory guidelines in determining child custody; (2) failing to call as a witness the investigator who prepared the child custody report or to use the evidence produced by that report; and (3) the court abused its discretion in awarding custody to respondent. No challenge is made to the court’s order dissolving the marriage.

Appellant’s first point is that the court erred in failing to consider all the relevant statutory guidelines in determining the custody of the two minor children herein. The relevant statutory guidelines are found in § 452.375 RSMo 1973 Supp., V.A.M.S.:

“Factors to be used in determining custody of child
The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(1) The wishes of the child’s parents as to his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school, and community; and
(5) The mental and physical health of all individuals involved.”

Appellant asserts that there is no evidence in the record that the court considered these factors in making its decision. To the contrary, we believe the record demonstrates substantial consideration by the court of the above factors. The first factor is the wishes of the parents as to the custody of the children. There was testimony by each of the parents relative to this factor. Their wishes as to custody were obvious. Secondly, while the court failed to consider the wishes of the children here, we do not find this failure to be error. Appellant contends it was error for the court not to interview the children as to their wishes. The children were six and four years old at the time of trial. No error can be predicated upon the trial court’s failure to interview children of such tender years. See Hild v. Hild, 221 Md. 349, 157 A.2d 442 (1960), where it was held a child of seven years was too young to have a rational preference. This principle is especially applicable in this case because by appellant’s own testimony, the children were confused and unsure about what was going on between the parents. It would serve no good purpose to interview these children under these circumstances.

The third criteria is the interaction of the child with those persons who may significantly affect the child’s best interests. Appellant argues the court did not have before it any evidence on this point. Again to the contrary, testimony was given by respondent’s mother who supervises the children when respondent is at work. Testimony was also given regarding the woman who watches the children on those few occasions when respondent’s mother is unable to do so. Respondent testified to his good relationship with the children, and this was confirmed by respondent’s mother. We cannot say, based on this testimony, that the trial court did not consider the third guideline set out above.

The fourth criteria is the child’s adjustment to his home, school and community. Testimony was given regarding the satisfactory relationship between the children and their teachers. There was also testimony that respondent has had custody of the children during these proceedings and that the children were doing well in their current environment. This testimony was sufficient to show that the court considered the fourth criteria above. As to the fifth factor, that of the health of all the individuals involved, we are convinced that there was sufficient evidence in the record as to the health of all the parties, as well as the health of the children.

Appellant’s next point relied on is that the court abused its discretion in not calling the investigator who prepared the child custody report or the witnesses the investigator interviewed in making the report. The pertinent statute is § 452.390 RSMo 1973 Supp., V.A.M.S., which provides in part that the court “may order an investigation and report concerning custodial arrangements for the child.” Also, the statute provides that any “party to the proceeding may call as witnesses the investigator and any person whom the investigator has consulted.”

Appellant does not explain why she did not call the investigator or anyone involved in the investigator’s report. Instead, appellant argues that the report must have contained material pertinent to the issue of child custody, material which the trial court must consider. Appellant does not indicate what additional information the investigator would have furnished had she been called. Appellant merely presents this court with the bare allegation that “the court, by the terms of the statute describing what such a report would contain, had knowledge that the report would be replete with material pertinent [to the award or custody].”

We find appellant’s interpretation of the statute to be incorrect. Appellant’s argument can be distilled to one sentence: once an investigation is ordered, it is an abuse of discretion for the court not to call the investigator and make use of the report. This construction clearly distorts the introductory sentence “The court may order an investigation and report.” (Emphasis added). We do not interpret the statute to require the trial judge to make use of the report and call additional witnesses merely because he has elected to order such a report. This construction would ignore instances in which a report is merely duplica-tive of the evidence given at the hearing. Surely no one would argue that the statute requires the court to call the investigator when that testimony would be repetitious of the evidence already before the court. We simply hold that, absent more than just appellant’s bare allegation that the investigator’s report contained helpful information, the trial court does not abuse its discretion in failing to use a report once one is ordered.

Furthermore, appellant was at liberty to call the investigator and make full use of the report. As said in Lutker v. Lutker, 230 S.W.2d 177, 180 (Mo.App.1950), “The evidence upon this feature of the case [the issue of child custody] was unquestionably meager . . . The parties were at liberty to make whatever showing they desired, and the whole situation would seem to have been explored to the satisfaction of the court, which had the responsibility of deciding what the terms of its order should be.”

Appellant next contends that the court erred in awarding custody to respondent, since the issues were not sufficiently developed for a judgment to be entered. Nine witnesses were called in this case. Testimony was given as to the health of the children, their education, the environment of the two possible homes for the children, the health and earning capacity of each parent, and the morals, character and temperament of each parent. We cannot say, on the record before us, that the issues involved in determining custody were so insufficiently developed as to require us to remand the case for a new trial. Appellant’s authorities can be distinguished on their facts.

Appellant’s last point is that the court erred in awarding custody of the children to respondent for the reason that the evidence does not demonstrate that custody with the respondent is in the best interests of the children. The trial court’s findings on the matter of custody are not to be lightly cast aside and we will defer to those findings unless we are firmly convinced that the welfare of these children requires some other disposition. C- v. B-, 358 S.W.2d 454, 461 (Mo.App.1962).

Much of the testimony given by each party to this case was hotly dispüted by the other side. It would serve no useful purpose to spread upon this record the attacks made by each party as to the character and fitness of the other. “We can and should indulge the presumption that the trial court considered all the evidence and decreed the custody of the children by what it believed to be in their best interests and, in so doing, we must bear in mind that it was in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” E- (S-) v. E-, 507 S.W.2d 681, 684 (Mo.App.1974). (Emphasis theirs).

Appellant argues that the court erred in not indulging the presumption that a mother is better fit to have custody of a child of tender years. We agree that such a presumption exists, but we do not find it to be conclusive. Each case must be decided on its own facts. In Brand v. Brand, 441 S.W.2d 750 (Mo.App.1969), there was no evidence that either parent was unfit. The court awarded custody of the children to the father despite the presumption in favor of the mother’s care. The court held that where the evidence did not preponderate in favor of either party the trial court is vested with broad discretion in awarding custody under such circumstances.

Here, the trial court awarded custody of the children (both boys) to the father, reserving alternate weekends, some holidays and part of the summer in the custody of their mother. This was in keeping with the rule of M- L- v. MR-, 407 S.W.2d 600, 604-605 (Mo.App.1966), which held that children should have the benefit of two parents, but that frequent shifts of custody would be detrimental to the children’s stability. Furthermore, this award was similar to the temporary award under which the children were doing well. We are not convinced by the record that a different disposition as to the custody of these children would be in their best interests.

Judgment affirmed.

WEIER, P. J., and RENBLEN, J., concur.

      . The youngest child is in pre-school.

      . On oral argument, appellant seemed to be arguing that the court was required to make specific findings on these factors. We do not interpret the statute to so require. Had that been the legislature’s intention, it would have not have used the words “The court shall consider all' relevant factors” as set out in § 452.375. It would have required a mandatory finding as to these factors.

      . In Brand, supra, as in our case, neither parent was able to give total, undivided care to the children because both parents worked.

      . See also, Lutker v. Lutker, supra, at 180: “But infinitely more important than this is the spiritual value which this child — a little boy — may be expected to derive from such intimate personal contact with the father as the circumstances of the case may properly permit. In the formation of a boy’s character, and in the development of the manly traits which distinguish the best of his sex, there is no substitute for the example which a worthy father may set for him.”


author: SHANGLER, Judge.

text:
    STATE of Missouri, Respondent, v. Steven D. OSBORN, Appellant.
    No. KCD 27462.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Motion for Rehearing and/or Transfer Denied July 7, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      William E. Erdrich, Asst. Public Defender, 5th Judicial Circuit, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The appellant was charged with uttering a forged check and, convicted as a second offender, was sentenced by the court to imprisonment for a term of six years.

We sustain the contention of the appellant that the information did not charge a lawful offense, and reverse and remand the conviction.

The information pretends to charge under the provisions of § 561.011, subd. 1, RSMo 1969, V.A.M.S., paragraphs (1) and (3):

It shall be unlawful:
(3) For any person with intent to defraud to use as true, or to utter as true . any writing or other thing which said person knows has been made or altered in the manner described in either of subdivisions (1) or (2).
(1) For any person with the intent to defraud to make or alter any writing of any kind having legal efficacy or commonly relied upon in business or commercial transactions, so that it purports to have been made by another.

This information, shorn of the second-offender recital, charges:

That on or about the 18th day of July, 1972, at said county Steven D. Osborn, did willfully, knowingly and feloniously, with the intent to defraud Susan B. Caurter, d/b/a Richards Market, 801 North 6th Street, St. Joseph, Missouri, use and utter as true a certain writing purporting to have legal efficacy and commonly relied upon in business and commercial transactions and purporting to have been made by another, knowing the same to have been so made and altered [followed by a recitation of the instrument in terms].

Rule 24.01, V.A.M.R. requires that an information be a plain, concise and definite written statement of the essential facts constituting the offense charged. Nothing of substance may be left to intendment or implication. State v. Cantrell, 403 S.W.2d 647, 651[12-14] (Mo.1966). It is a general rule that an information framed in the language of the statute is valid if the essential facts of the offense are charged with sufficient definiteness to enable the defendant to meet the charge and to bar further prosecution for the same offense. State v. Tandy, 401 S.W.2d 409, 412[2-4] (Mo.1966); Hodges v. State, 462 S.W.2d 786, 789[1] (Mo.1971).

In simplest terms, the information accuses the appellant of uttering as true a check which purports to have been made by another, and known by appellant as so made. This language merely describes the passing of a two-party check, a transaction devoid of any criminality, and does not charge an offense under § 561.011. The information attempts, but fails, to charge that the check was forged and that appellant knew it was forged, both constitutive elements of the crime under the statute. In context, the natural antecedent of the phrase “knowing the same to have been so made” is the recitation that the cheek was made by another; the accusation that appellant uttered the instrument knowing it to be forged is altogether wanting.

The trial court acquired no jurisdiction to proceed by an information which was fatally defective; and accordingly, the conviction of the appellant was a nullity. State v. Brooks, 507 S.W.2d 375, 376[1] (Mo.1974); State v. Newhart, 503 S.W.2d 62, 67[6] (Mo.App.1973).

The judgment is reversed and the cause remanded.

All concur.


author: STEWART, Judge.

text:
    Joan Caroline ALBERT, Plaintiff-Respondent, v. Harry DECLUE and Georgia Declue, Defendants-Appellants.
    No. 35548.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 17, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.
    Samuel Richeson, Nicholas G. Gasaway, Dearing, Richeson, Roberts <& Wegmann, Hillsboro, for defendants-appellants.
    Joseph Hewlett, Shaw & Hewlett, Clayton, for plaintiff-respondent.
   STEWART, Judge.

Defendants appeal from the judgment in this court tried case in which the court quieted title to a triangular piece of land in plaintiff and further found that defendants had not carried the burden of proving that they had obtained title to that land by adverse possession.

Plaintiff is the record owner of a 40 acre tract of land in Washington County which adjoins a 40 acre tract owned by defendants. Defendants’ property lies to the south of that of plaintiff. Defendants sought to establish title to a triangular tract to the north of the common record boundary line of the parties. The portion of plaintiff’s property claimed by defendants was fenced with barbed wire primarily set in trees. While fencing is one of the strongest indications of adverse possession the primary issue here was whether the defendants had held adversely for the necessary prescriptive time. The evidence on this point was conflicting, we must therefore give great deference to the finding of the trial court who was in better position to judge the credibility of the witnesses and the weight of the evidence. Marshall v. Marshall, 484 S.W.2d 208 (Mo.1972). We have reviewed the record and conclude that the findings and conclusions of the trial court are not clearly erroneous; no errors of law appear. A full opinion would have no precedential value we thus affirm in accord with Rule 84.16(b), Y.A.M.R.

CLEMENS, P. J. and KELLY, J., concur.

      . It would serve no useful purpose to recite the lengthy legal description in this opinion.


author: CLEMENS, Presiding Judge. KELLY, Judge

text:
    STATE of Missouri, Respondent, v. Bill BAILEY, Appellant.
    No. 36218.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 24, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Patrick J. Hit-pas, Asst. Circuit Atty., Charles B. Black-mar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Charles D. Kitchin, Public Defender, David M. Adams, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant Bill Bailey was convicted of manslaughter (§ 559.070, RSMo 1969, V.A. M.S.) in the stabbing death of Joe Lewis Davis, Jr., and in accordance with the jury verdict was sentenced to five years’ imprisonment.

Defendant does not question the sufficiency of the evidence but bases his appeal on two instances of prosecutorial argument. He contends the trial court erred in overruling his objection to improper rebuttal argument, and also erred in permitting the State’s attorney to speculate as to matter outside the record — what the deceased might have testified to.

The evidence was that defendant and Davis scuffled in defendant’s apartment, and defendant stabbed Davis with a knife, inflicting mortal wounds. After the stabbing Davis staggered from the apartment and police found his body on the sidewalk at the end of a trail of blood leading from the apartment.

Defendant told police Davis came to his apartment about 1:45 A.M. in an intoxicated condition and entered with a key in his possession. A scuffle ensued, during which Davis hit defendant in the face, knocked him down and then brandished a pocket knife for which the two men struggled. Defendant stated his thumb was cut and he then took his own knife from his pocket and stabbed Davis repeatedly.

Although police searched a wide area for the pocket knife defendant claimed Davis used, they found only a penknife on Davis’ key ring. Police seized defendant’s own knife as evidence.

Defendant’s first point is that during the State’s rebuttal argument, the prosecutor referred to testimony given by Davis’ mother, whose testimony had not been mentioned during previous argument. Defendant objected to the State’s arguing that Davis’ mother had testified she never knew her son to have a weapon or to carry a knife. The trial court overruled defendant’s objection.

Whether Davis had a knife other than the penknife found on his key ring was hotly contested. Both State’s and defense counsel had argued this point before the State’s rebuttal. The mere fact the State had not previously mentioned this particular testimony in support of its position that the deceased’s only weapon was the penknife did not preclude the State from referring to it during rebuttal. No new issue was introduced which had not previously been covered by both parties. The trial court did not err in overruling defendant’s objection that this argument was improper rebuttal.

Defendant’s next point is that the State’s reference to testimony Davis would have given if he had lived went beyond the evidence. He contends the trial court erred in overruling his objection to that reference, which permitted the State to inform the jury of matters unsupported by the evidence and not reasonably deducible therefrom.

Defendant’s complaint goes to the following prosecutorial remark: “I submit to you, beyond a reasonable doubt, the State has met that burden, that the stabbing of Joe Lewis Davis was not in self-defense. Joe Lewis Davis, ladies and gentlemen, is dead. He’s not here to tell us what happened. I submit to you, if Joe Lewis Davis was able to take that stand . . . MR. ADAMS: I’ll object to what Joe Lewis Davis might say. It’s outside the scope of the evidence in this case. THE COURT: Overruled. MR. HITPAS: (continuing) . . . Joe Lewis Davis would say, it wasn’t self-defense. MR. ADAMS: I’ll object to what he would have said, on the part of the State’s counsel. THE COURT: Overruled. It’s argument. Proceed.”

The State argues these comments were within the bounds of legitimate argument and did not prejudice defendant. In support of its position, the State contends reasonable latitude should be allowed for the prosecutor’s imagination, and the State’s opinion as to what Davis’ testimony would have been if he had lived was in fact based upon the evidence.

We consider the challenged argument in the context of both the trial court’s instructions and the State’s argument as a whole. This, in accord with the principle that although defendant is entitled to a fair trial, the trial need not be a perfect one. See Donnelly v. De Christoforo, 416 U.S. 637, 94 S.Ct. 1868[2], 40 L.Ed.2d 431 (1974). Although we do not condone the State’s use of the challenged argument, we do not find it constituted prejudicial error requiring reversal under the circumstances of this case.

By instruction # 1 (MAI-CR 2.01) the court instructed the jury on its duty to determine the facts from the evidence and from reasonable inferences therefrom. By Instruction # 5 (MAI-CR 2.40) the court told the jury the State had the burden to negate defendant’s self-defense plea, and if they had a reasonable doubt the defendant had not acted except in self defense, they were to acquit him. The court told the jury by Instruction # 9 (MAI-CR 2.68) that counsels’ arguments were not to be considered as evidence. In closing argument the State echoed this and reminded the jury: “The only evidence you are to consider as jurors is the evidence you heard from the stand.”

Those instructions and the context of the prosecutor’s remarks are critical to our decision that their impact did not prejudice defendant. We noté that the defense left unchallenged a series of remarks preceding the allegedly prejudicial comment. The State commented that medical testimony showed Davis’ body had .42 per cent blood alcohol (against the .10 per cent “legal drunkenness limit”), and therefore Davis was too drunk to have put up a fight. The State then noted defendant had testified he stabbed Davis as the two fought on a bed, although the evidence showed the bed was not “messed up” or bloodied. The State noted police had diligently searched for but could not find the knife with which defendant claimed Davis was armed. Following these unchallenged remarks, the State then argued Davis was dead and could not testify, but if he could, he would say, “It wasn’t self-defense.”

A basic principle governing jury argument is that counsel should refrain from arguing matters not in evidence. State v. Cuckovich, 485 S.W.2d 16[21] (Mo.1972); State v. White, 440 S.W.2d 457[5] (Mo.1967). But this broad prohibition was put in proper perspective in United States v. LeFevre, 483 F.2d 477[6] (3d Cir. 1973): “We do not believe that prosecutorial statements which refer to facts not in evidence constitute reversible error per se. Rather, the court is under an obligation in such instances to consider the entire record to determine whether the errors were sufficiently prejudicial to have tipped the scales and thereby denied defendant a fair trial .” To the same effect see Hartley v. Steiman, 408 S.W.2d 81[1] (Mo.1966); Arroyo v. Keller, 433 S.W.2d 589[3-6] (Mo.App.1968). It is well established that in closing argument counsel may draw non-ev-identiary conclusions which are fairly justified as a matter of inference from the evidence. State v. Evans, 334 Mo. 914, 68 S.W.2d 705[4, 5] (1934); Mooney v. Terminal R. Ass’n of St. Louis, 353 Mo. 1080, 186 S.W.2d 450[4-9] (1945). It is also settled that counsel is allowed wide latitude in arguing inferences, and that the trial court’s ruling should be sustained absent a clear abuse of discretion. Norfolk & Western Ry. Co. v. Greening, 458 S.W.2d 268[7-9] (Mo.1970). See also Mahn v. American Life & Accident Insurance Co., 390 S.W.2d 573[9] (Mo.App.1965).

There was abundant evidence in this case to support the State’s argument that in killing Davis, defendant did not act in self defense. Our examination of the State’s argument in the context it occurred convinces us the remark was merely speculative argument and did not prejudice defendant. It was clear to the jury the prosecutor was not contending Davis had in fact made such a statement. Although we do not condone the argument we find it was non-prejudicial: “A closing argument need not have the polish and exactness of a scholarly address.” State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975). The State’s argument here was an inferential argument within the wide latitude allowed trial counsel and in view of its context and the evidence as a whole, the trial court did not abuse its discretion in ruling it was merely “argument.”

Judgment is affirmed.

STEWART, J., concurs.

KELLY, J., dissents in separate opinion.

KELLY, Judge

(dissenting).

I respectfully dissent and would reverse and remand this case for a new trial because of the prejudicial argument of the Assistant Circuit Attorney wherein he argued to the jury that if the victim were able to be there and take the stand he would have said that the stabbing was not done in self-defense. The majority opinion recognizes the impropriety of this argument, makes it clear that it does not condone it but concludes that the defendant was not thereby prejudiced.

The single issue in the trial of this case was that of self-defense. The only witness of the scuffle which resulted in the stabbing of the victim able to give testimony at trial was the defendant. The state introduced into evidence defendant’s self-serving statements made to the police officers and he also took the stand and testified in his own defense. We are not favored in this court with the transcript of defendant’s testimony because an abbreviated record was filed herein. However, from defense counsel’s argument it can be deduced that defendant’s testimony at trial was self-serving for the purpose of establishing his theory of the case, viz self-defense. Viewed in this light, it is apparent that the purpose of the Assistant Circuit Attorney’s argument was to overcome the absence of the victim and testify in his stead by way of argument. There is not an iota of evidence in the case to support the challenged argument since there is no evidence that the victim at any time made any dying declaration or any other statement to anyone which would support a conclusion that he would so testify were he present.

Neither the defendant nor the state has cited any authority directly in point, nor has independent research brought forth any Missouri case ruling on this argument. However, the Supreme Court of Pennsylvania when confronted with a similar line of argument recognized its insidious nature and on that grounds, and others, reversed and remanded a murder conviction in Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205. In Lipscomb the assistant district attorney argued:

“You know my best witness isn’t here today. But if he could come back, if Mr. Sweeney could come back and sit in this chair and face you, the jurors, I believe he would say, T didn’t want to die.

In ruling the Point, the Supreme Court of Pennsylvania said, l.c. 207:

“Moreover, in testifying as if his ‘best witness’ Mr. Sweeney, was in the courtroom, that which followed amounted to the giving of testimony by an unsworn witness.”

While, as the majority holds, the defendant may not be entitled to a “perfect trial,” I conclude that he is entitled to a trial without argument of this ilk which constitutes a violation of The American Bar Association Standards for Criminal Justice, Prosecution and Defense Function, § 5.9, which brands as unprofessional conduct intentional argument on the basis of facts outside the record at trial. We have here argument by the Assistant Circuit Attorney putting before the jury not only unsworn testimony but also evidence which the victim, if alive and on the stand, could not have mouthed over proper objection for the reason that such testimony constitutes an invasion of the province of the jury and is a conclusion striking at the only legal and factual issue in the case, that of self-defense.

The evidence in this case, unlike that in United States v. LeFevre, 483 F.2d 477 (3rd Cir. 1973), is not overwhelming and this argument when taken in context with the trial court’s ruling — “It’s argument”— amounting to approval of the improper argument constituted, in my opinion, prejudicial error which would require that the judgment be reversed and remanded to the trial court for a new trial.


author: HOGAN, Judge.

text:
    Dianne SURFACE, by and through Georgia Surface, next friend, Plaintiff-Appellant, v. RANGER INSURANCE COMPANY, a corporation, Defendant-Respondent.
    No. 9598.
    Missouri Court of Appeals, Springfield District.
    July 7, 1975.
    Rehearing Denied Aug. 4, 1975.

      Joe C. Welborn, James E. Spain, Briney, Welborn & Spain, Bloomfield, for plaintiff-appellant.
    J. Lee Purcell, Hyde, Purcell, Wilhoit & Rdmundson, Poplar Bluff, for defendant-respondent.
   HOGAN, Judge.

In this action, plaintiff seeks construction of the “uninsured motorist” provisions of an automobile liability policy issued by defendant Ranger Insurance Company. The appeal is here upon an agreed statement of facts in lieu of a transcript, as provided by Rule 81.13, Y.A.M.R., and therefore the only question before us is whether or not the trial court drew the proper legal conclusion from the facts stipulated. State ex rel. Ciba Pharmaceutical Products, Inc. v. State Tax Commission, 882 S.W.2d 645, 651[1] (Mo. banc 1964); Browning v. City of Poplar Bluff, 370 S.W.2d 179, 182[8] (Mo.App.1963).

Plaintiff is a minor; this action was brought by her mother as next friend pursuant to Rule 52.02. Plaintiff’s father purchased an automobile liability policy from the defendant. Plaintiff was not a named insured on the schedule of the policy. The policy contained a section entitled “Family Protection Against Uninsured Motorists.” The insuring agreements under this section, as material here, read:

“1. Coverage F — Damage for Bodily Injury Caused by Uninsured Automobiles: To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile .
******
“II. Definitions:
(a) Insured. The unqualified word ‘insured’ means:
(1) The named insured as stated in the policy and any person designated as named insured in the schedule and, if the named insured is an individual, his spouse if a resident of the same household; provided, if the named insured as stated in the policy is other than an individual or husband and wife who are residents of the same household, the named insured for the purposes of this endorsement shall be only a person so designated in the schedule;
(2) any person while using the automobile, .provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.
The insurance applies separately with respect to each named insured and residents of the same household, but neither this provision nor application of the insurance to more than one insured shall operate to increase the limits of the company’s liability.”

On March 26, 1972, and while this policy was in force plaintiff was riding as a passenger in a 1965 Ford operated by one Paul Adams. The Ford was involved in a one-car accident; it is admittedly not the vehicle insured under the policy sued on. The plaintiff was a resident of her father’s household at the time of the accident. The Ford was an uninsured vehicle at the time plaintiff sustained her injuries.

Plaintiff filed suit in the Circuit Court of Stoddard County, alleging that she was an insured under Coverage “F” of the defendant’s policy because she was a resident of the same household as William G. Surface, the named insured. Defendant denied coverage under the provisions of Coverage “F” on the ground that plaintiff was not designated as a named insured in the schedule of the policy and was not the spouse of William G. Surface.

Plaintiff had a verdict and judgment against the defendant in the amount of $10,000. Defendant filed an after-trial motion to set aside the verdict and judgment and enter judgment for the defendant on the sole ground that Coverage “F” insures only William G. Surface or his spouse if a resident of the same household. The trial court granted the motion. It is stipulated here that the only issue presented is whether or not plaintiff is an insured under Coverage “F” of defendant’s policy.

The appellant relies on the familiar principle that whenever the language of an insurance policy is reasonably susceptible of different interpretations, the construction favoring the insured must be adopted. White v. Smith, 440 S.W.2d 497, 511[20] (Mo.App.1969); Sterns v. M.F.A. Mut. Ins. Co., 401 S.W.2d 510, 514[2] (Mo.App.1966). Specifically, the appellant contends for a conflict in two clauses or provisions which she inferentially assumes and argues define the word “insured” for the purposes of uninsured motorist coverage.

Our attention is first called to that part of section 11(a)(1) of Coverage “F”, which reads:

“(a) Insured. The unqualified word ‘insured’ means:
(1) The named insured as stated in the policy and any person designated as named insured in the schedule and, if the named insured is an individual, his spouse if a resident of the same household;”

Appellant then directs us to the paragraph which is set apart from but immediately follows the “definitions”. It reads as follows (appellant’s emphasis):

“The insurance applies separately with respect to each named insured under this endorsement and residents of the same household, but neither this provision nor the application of the insurance to more than one insured shall operate to increase the limits of the company’s liability.”

Counsel for the appellant forthrightly admit they have been unable to find a reported case from any jurisdiction construing the particular language just quoted, but in their brief contend that the paragraph beginning “[t]he insurance applies separately” is part of the “definitions” section, and in effect expands part 11(a)(1) to extend coverage to all members of the named insured’s household. The fact that the clause beginning “[t]he insurance applies separately” immediately follows the “definitions” lends superficial plausibility to the appellant’s argument, but we do not agree with her construction of the contract.

The rule that insurance contracts will be construed most strongly against the insurer rests in considerable part upon the notion that such contracts are “contracts of adhesion”, i. e., standardized contracts imposed upon the insured without his having the benefit of any significant negotiation and bargaining. In our opinion, it follows as a corollary premise that each part of an insurance contract should serve a particular purpose; at least our courts have held that every clause in an insurance policy must be given some meaning if it is reasonably possible to do so, and that conflicting provisions in insurance policies should be reconciled if it is possible to do so consistently with the intention of the parties as ascertained from the terms used. Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 435, 438, 222 S.W.2d 76, 78[1], 80[6] (banc 1949); Soukop v. Employers’ Liability Assur. Corp., 341 Mo. 614, 627-628,108 S.W.2d 86,92[8-12], 112 A.L.R. 149, 156 (banc 1937); Brugioni v. Maryland Cas. Co., 382 S.W.2d 707, 712[5, 6] (Mo.1964).

The provisions set out as “definitions” obviously constitute an “omnibus clause”. The purpose of such an insuring agreement is to define the classes of persons who are eligible to receive the protection of the policy, and to limit the availability of the insurance to such classes of persons. 1 Long, Law of Liability Insurance, § 3.01 (1975). When sections 11(a)(1) and (2) are read together as they appear in the background statement, it becomes apparent that Coverage “F” is meant to insure (a) the named insured and his spouse, if a resident of the same household; (b) any person designated as a named insured in the schedule, and (c) any permittee of the named insured or his spouse.

The paragraph which follows, beginning <![t]he insurance applies separately”, is what is commonly called a “severability” clause, technically a condition, and is inserted to express the insurer’s intent that no matter how many persons may be insured under the omnibus clause (or in the declarations), the limits of liability stated in the declarations shall not be greater than the amount for which the insurer would have been liable if only one person were insured. 1 Long, Law of Liability Insurance, § 2.10. It is thus obvious, contrary to appellant’s position, that the purpose of the clause beginning “[t]he insurance applies separately” is not to state or define who is insured, but to limit the carrier’s liability. The two clauses have different purposes. The question then becomes: do the general words “each named insured . . . and residents of the same household” enlarge and in effect nullify the more specific provisions of the omnibus clause? We think not.

Generally, in the construction of contracts, it is held that if the apparent inconsistency is between a clause that is general and broadly inclusive in character and one that is more limited and specific in its coverage, the latter should be held to operate as a modification and pro tanto nullification of the former. 3 Corbin, Contracts § 547, p. 176 (1960). This rule has been extended to contracts of insurance, e. g., Mutual Life Ins. Co. of N. Y. v. Hill, 193 U.S. 551, 557-558, 24 S.Ct. 538, 48 L.Ed. 788, 793 (1904); Miller Bros. Const. Co. v. Maryland Casualty Co., 113 Conn. 504, 155 A. 709, 712-713[7][9] (1931). In our opinion, that principle applies here, and the words “residents of the same household” appearing in the severability clause must be held to be limited and restricted by the specific provisions of the omnibus clause.

That such a construction is reasonable and effective to accomplish the purpose of the parties becomes apparent when the general scheme of the policy is considered. It is the obvious intention of the parties to the contract to comply with the statutory requirement that the policy provide uninsured motorist coverage “. . . in not less than the limits for bodily injury or death set forth in section 303.030, RSMo, for the protection of persons insured [under the liability policy] . . . .” § 379.203, para. 1, RSMo Supp.1973, V.A.M.S. The liability policy itself provides coverage in the amounts specified in § 303.030, para. 5, RSMo 1969, V.A.M.S., and the omnibus clause applicable to the bodily injury and property damage coverage defines the word “insured” so as to include the named insured, his spouse if a resident of the same household, and their permittees. Coverage “F”, considered as a whole, extends uninsured motorist protection to those insured under the liability policy in the manner contemplated by § 379.203, para. 1. We cannot make or rewrite insurance policies, even though it may appear that in some respects they operate harshly or inequitably as to one of the parties. Packard Mfg. Co. v. Indiana Lumbermens Mut. Ins. Co., 356 Mo. 687, 692, 203 S.W.2d 415, 416 (banc 1947). Given the limited object and intent of parties as disclosed by the whole contract, it cannot reasonably be said that Coverage “F” was meant to afford the protection for which the plaintiff contends.

Upon the facts stipulated, the trial court drew the proper legal conclusion, and the judgment is therefore affirmed.

BILLINGS, C. J„ and STONE and TITUS, JJ., concur.

FLANIGAN, J., not participating.

On Motion for Rehearing

In her motion for rehearing, which is in substance a motion to modify our mandate, the plaintiff urges the court to remand the cause, representing that she can make a submissible case against the defendant upon another and different theory. In support of her motion plaintiff has cited us to Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 628[7] (Mo.1958); Skaggs v. City of Cape Girardeau, 472 S.W.2d 870, 875[4] (Mo.App.1971), and other cases in which an appellate court has applied the rule that a cause should not be reversed for failure of proof without remand unless the record indicates that available essential evidence has been fully presented and no recovery could be had in any event, or unless the failure of proof appears to be the result of deliberate legal strategy. See, generally, Grissom v. Handley, 410 S.W.2d 681, 690-691[14][15, 16][17][18] (Mo.App.1966). Defendant responds by quoting Rule 83.16, and by citing us to Ackerman v. Globe-Democrat Publishing Co., 368 S.W.2d 469, 480[12] (Mo.1963), which states the familiar principle that new propositions and complaints may not be presented for the first time on motion for rehearing.

The appeal was presented in this court upon stipulated facts in lieu of a transcript, and the record is so sparse that we cannot ascertain the merit of plaintiff’s contention that she could recover on another theory, but in any event we cannot grant the relief sought. When the judgment of the trial court cannot be affirmed because of prejudicial error committed against the appellant by the trial court and must be reversed, the appellate court has discretion to remand when the record indicates that a remand will serve the ends of justice. If, on the other hand, the respondent has obtained a judgment without error, we have no power to reverse and remand in order to allow the appellant to pursue a different theory, whether it be a theory of recovery or of defense. Owings v. White, 391 S.W.2d 195, 197[1-3] (Mo. banc 1965). The motion to modify the mandate, taken as a motion for rehearing, is therefore denied.

All concur.

      . See Steven v. Fidelity & Cas. Co. of New York, 58 Cal.2d 862, 27 Cal.Rptr. 172, 377 P.2d 284, 296-297 and nn. 10, 11 (banc 1963); Patterson, The Interpretation and Construction of Contracts, 64 Colum.L.Rev. 833, 855-859 (1964).


author: ANDREW J. HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. James Eugene LEWIS, Appellant.
    No. KCD 27018.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.

      Kenneth K. Simon, Simon & Simon, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   ANDREW J. HIGGINS, Special Judge.

James Eugene Lewis, charged by information alleging that he did “wilfully, felo-niously and knowingly have in his possession a quantity of Cocaine Hydrochloride, a drug designated by the Division of Health to be a Schedule II controlled substance,” was convicted by a jury which returned a verdict, “We, the jury, find the defendant guilty of possession of a controlled substance but are unable to agree upon his punishment.” The court fixed defendant’s punishment at ten years’ imprisonment and sentence and judgment were rendered accordingly. §§ 195.017, subd. 4(l)(d), 195.-020, 195.200, subd. 1(1), RSMo 1969, V.A. M.S.; Rule 27.03, V.A.M.R.

Appellant’s points I and II go to the sufficiency of evidence to sustain the charge and warrant its submission to the jury.

On Sunday, May 28, 1972, Brad C. Lutz was an employee of Continental Airlines at its cargo sales and service facility at Kansas City Municipal Airport in North Kansas City, Clay County, Missouri. At approximately 7:00 a. m. he received a parcel, shipped by Gloria Lewis to George Black, State’s Exhibit 2, and its attached waybill, State’s Exhibit 1, via Continental’s flight from Los Angeles which had arrived between 6:00 and 6:30 a. m. The parcel, a blue tackle box, was unusual in that it was very light and had been sealed and locked with a bicycle cable and padlock. The minimum freight charge for a parcel up to one pound in weight was about $12 plus tax; a fifty-pound parcel would cost the same. He commented at the time that “it must be something pretty valuable,” and was surprised to see that no value had been declared on the waybill.

At about 11:00 a. m. defendant, a black man, dressed in blue jeans and cut-off jacket decorated with insignia patches and wearing colored glasses, arrived on a motorcycle, “pretty well-equipped, pretty fancy, a lot of chrome,” bearing California license plates. He was accompanied by a person described by Mr. Lutz as a white woman. In conversation between defendant and Mr. Lutz, defendant stated he had ridden the motorcycle from California to Kansas City. After they had “chit-chatted” about his motorcycle, defendant said, “Hey, man, have you got a blue tackle box” for Mr. George Black. He was anxious to get it and go. Mr. Lutz, becoming suspicious due to the foregoing, delayed the delivery by faking a telephone call to Los Angeles, telling defendant the parcel had not arrived and that it would be on the next flight to arrive at 12:30 or 1:00 p. m. Defendant left, Mr. Lutz called the Kansas City Police Department for assistance and was advised that they could do nothing and that he should call his local airport security. Mr. Lutz, acting on his belief that he had authority of the Civil Aeronautics Board to do so, opened the parcel and found State’s Exhibit 3, a bottle labeled Cocaine Hydrochloride. Mr. Lutz again called the Narcotics Division in the Kansas City Police Department and was advised to reseal the parcel and wait for defendant to claim it. Defendant previously had signed the name “George Black” to the waybill. Defendant returned at 3:20 p. m., after Mr. Lutz had left for the day, again called for the parcel and, upon receipt of it, again signed the name “George Black” to the waybill.

John Dawson, an officer in the Narcotics Unit of the Kansas City Police Department, went to the airport around 12:00 noon where he was shown the opened parcel and the bottle of cocaine hydrochloride. He directed the package to be resealed and waited for it to be claimed. Defendant returned, claimed the package, indicated no question as to its weight, and took it to an automobile in which one Wanda Murray was seated. As he placed the package on the back seat, Officer Dawson arrested him and he identified himself as James Lewis. As defendant walked to the car, Officer Dawson observed him to be smiling. Upon arrest, defendant’s facial expression changed to “astonishment, to start with, then kind of a depressed look * * Defendant denied ownership of the box and also denied shipping the box.

Alfred Lomax, also an officer in the Vice Unit of the Kansas City Police Department, arrived at the airport with Officer Dawson. After viewing the parcel and bottle and seeing the parcel resealed, he, too, engaged in surveillance of the parcel and observed defendant when he obtained the parcel and proceeded to an automobile where he was arrested by Officer Dawson. Officer Lo-max stated he had observed a motorcycle disabled on the Broadway Bridge, which was claimed to be defendant’s as the parties proceeded to the police station.

Edward Covey, a police chemist, tested the contents of the bottle labeled Cocaine Hydrochloride and confirmed the contents to be 18.2 grams (18,200 milligrams) of cocaine hydrochloride. There are 20 milligrams in the ordinary “hit” or street sale of cocaine; and, according to Officer Dawson, a street hit sells for $10.

The foregoing concluded the State’s case; and, after an unavailing motion for directed verdict of acquittal, defendant proceeded with his case, which is quoted from his brief:

“The defendant opened his case with the testimony of Doris Howell, a registered nurse, who testified that on May 28, 1972, she had contact with defendant and Wanda Murray, when the defendant was having difficulty with his motorcycle. Claude Wright testified that the defendant contacted him with respect to his motorbike for assistance in its repair. LeRoy Reed, being called by the defendant, testified that he was employed by David Beatty Stereo and accompanied defendant and others to the races at Indianapolis in May of 1972, including George Black. The defendant left Indianapolis May 27 with Wanda Murray. Wanda Murray testified that defendant’s motorcycle had previously been shipped into Kansas City on TWA and produced a waybill. She further testified that she was the person who accompanied Mr. Lewis to the airport on the morning of May 28. George Black, being called, by the defendant, testified that he was a resident of Los Angeles, California, formerly residing in Indianapolis, that he was an honorably discharged Veteran, working as an assistant librarian in Los Angeles, who stated that State’s Exhibit No. 2, the tackle box, looked like his and he had made arrangements to have it sent to Kansas City with equipment, through a party named Gloria Lewis living in Los Angeles, from his then residence in Indianapolis. He further testified that he had had some difficulties in his relationship with Gloria Lewis prior to his request that she ship the box and tools to him in Kansas City as he had planned to be in Kansas City for their arrival. When it became apparent that he would be unable to arrive in time to receive the shipment, he asked the defendant to pick them up for him. Black stated that he knew nothing of State Exhibit No. 3, the cocaine, but that he had requested air freight shipment in order that the tools arrive in Kansas City quickly.”

Upon cross-examination, Mr. Black stated the box was to have contained tools consisting of “12 sockets, or 10 sockets and a ratchet and alien wrenches” weighing ten or twelve pounds.

Upon resting his case, defendant again moved, unsuccessfully, for a directed verdict of acquittal.

Appellant contends (I) that the court erred in failing to sustain his motion for a directed verdict of acquittal at the close of the State’s case. Error, if any, in this respect was waived when defendant introduced evidence in his own behalf. State v. Green, 476 S.W.2d 567, 569[2] (Mo.1972); State v. Thomas, 452 S.W.2d 160, 162[4] (Mo.1970); State v. Johnson, 447 S.W.2d 285, 286[1] (Mo.1969); 9A Mo.Dig., Criminal Law, <¾=»901.

Appellant contends (II) that the court erred in failing to sustain his motion for directed verdict of acquittal at the close of all the evidence “as there was insufficient evidence as a matter of law to warrant submission to the jury.” He argues that the testimony of George Black, “together with evidence from the police officers at the scene as to the defendant’s manner and behavior militate against submission as the standard of knowing possession could not be met * * Appellant’s argument is thus limited to the issue of defendant’s knowing possession of the cocaine hydrochloride and it fails to note the significance of all the evidence on that issue.

The totality of evidence shows that defendant did not use his own name when signing the waybill for the tackle box; that he was in a hurry and exhibited anxious, nervous mannerisms when he first came to obtain the box; that upon receipt of the box he showed no concern about its lightness; that lightness of the box was the source of Mr. Lutz’s suspicion; that when defendant left with the box he was smiling and, upon being caught by the police, his look changed to astonishment and depression; that defendant’s lack of concern about the lightness of the box was emphasized and amplified by his own evidence that the box was to have contained tools weighing ten to twelve pounds. Such proof is remarkably similar to that held sufficient to make a submissible case of knowing possession in State v. Burns, 457 S.W.2d 721, 725[3, 4] (Mo.1970). Appellant’s citation of State v. Berry, 488 S.W.2d 667 (Mo.App. 1972), is readily distinguished in that “there was no evidence that appellant had either actual or constructive possession or control of any of the marijuana at any time. She was never seen physically to touch or possess the luggage containing the marijuana. * * * Her conduct was not such that an inference of knowledge could be fairly drawn.” 488 S.W.2d 1. c. 669.

Appellant contends (III) that the court erred in denying defendant’s challenge for cause upon voir dire examination of jury panelist George Ellett. His argument is that since Mr. Ellett had been in the reserve unit of the Excelsior Springs Police Department for several years, he was “so imbued with a philosophy of law enforcement that it is impossible for him to be impartial.”

Mr. Ellett, a retired reserve police officer of 26 years’ experience, when asked if he could try the case fairly and impartially in light of his police experience, answered unequivocally that he could. In such circumstances, defendant quite properly “readily admits that in similar cases, the Courts of this state have held that no prejudice results from a mere affiliation with a law enforcement agency, State v. Hamilton, 102 S.W.2d 642 at 647 [Mo.1937].”

In addition to appellant’s concession of the law adverse to his argument, there is nothing in this record to show other than that Mr. Ellett was free from prejudice and able to accord the accused a fair and impartial trial. State v. Wilson, 436 S.W.2d 633 (Mo.1969). Accordingly, there is no abuse of discretion upon which to disturb the trial court’s ruling on the challenge for cause. State v. Allen, 485 S.W.2d 28 (Mo.1972); State v. Harris, 425 S.W.2d 148 (Mo.1968).

Appellant charges the court erred (IV) in admitting over defendant’s objection evidence of the street price of cocaine. His argument is that a possession case may be made on any measurable amount of contraband, no matter how small, State v. Young, 427 S.W.2d 510 (Mo.1968); and that admission of evidence of price is thus immaterial and irrelevant in a possession case and permits an inference of the more serious crime of sale under Section 195.200, subd. 1(4), RSMo 1969, V.A.M.S.

This was first mentioned in the prosecuting attorney’s opening statement when he stated the evidence would show that defendant possessed 18.2 grams of cocaine which would make between 900 and 1800 street “hits” or doses. A defense objection was sustained, after which the prosecuting attorney stated that such evidence would be to show quantity, and that “there will be no evidence whatsoever of any attempts by this defendant to sell it.” He stated also that street purchases go “for about $10 a dose.” Defendant again objected and was overruled. The second mention of value came in the testimony of Officer Dawson when he stated over objection that it was incompetent, immaterial and irrelevant, that “about the smallest amount you can buy on the street would be what is called a dime hit or a ten dollar hit.” The third mention came in the testimony of Mr. Covey who stated over objection of improper foundation that an ordinary street hit contained 20 milligrams of cocaine.

The foregoing references refute any suggestion that the jury would infer that the State was presenting a ease of sale of drugs; and the case law supports the admission of evidence of value of the narcotics in question in possession cases.

The test of relevancy of the evidence of the crime of criminal possession of drugs is whether the evidence tends to establish the inference for which it is offered. State v. Ruona, 159 Mont. 507, 499 P.2d 797, 801[5] (1972). Proof of an extremely high value of the substance is relevant in discrediting defendant’s claimed lack of knowledge, United States v. Glaziou, 402 F.2d 8 (2nd Cir.1968). See also Gaylor v. United States, 426 F.2d 233, 235[2] (9th Cir. 1970); and see United States v. Hernandez-Valenzuela, 431 F.2d 707[2] (9th Cir. 1970), for a flat holding that proof of value of narcotics is admissible in possession cases.

Appellant contends (V) that the court erred in failing to take evidence on defendant’s motion to suppress and failing to sustain or grant a hearing on such motion. He argues that “no such hearing was afforded and no evidence heard, making preservation of a record on the question of the propriety of the search and the subsequent seizure impossible * *

It appears from appellant’s brief that “this matter had previously been tried * * * before the Honorable James Rooney. During that prior trial, a motion was heard, evidence taken and the motion overruled”; and when he presented his motion at the second trial, defendant gave a summary of the evidence on the issue and stated, “the evidence was totally submitted on that issue” when previously heard, and concluded this was the same motion and issue previously overruled by Judge Rooney. Appellant does not contest the merits of the prior pretrial ruling. In such circumstances there was no error in failing to accord a second evidentiary hearing. The situation is the same as with a ruling on such a motion by an assignment or presiding judge being followed by another judge at trial. Any claim of error can be charged against the ruling on the motion on the record made at that time, irrespective of which judge made it. See the procedure described in State v. Bryson, 506 S.W.2d 358, 361 (Mo.1974); and see also State v. Gailes, 428 S.W.2d 555, 557, 559[5] (Mo.1968).

Appellant charges the court erred (VI) in excluding the statement made by defendant, upon questioning, to Officer Lo-max denying ownership of the tackle box or knowledge of its contents, and rejecting the offer of proof covering such testimony. Appellant asserts the offer “indicates that Lomax’s answers would have, if permitted, proved * * * defendant was merely picking up state’s exhibit two for George Black * * and that such proof bore on the issue of defendant’s knowledge. He argues that such answers were part of the res gestae under the rule in State v. Hook, 432 S.W.2d 349, 352[1, 2] (Mo.1968): * res gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.’ ”

The statements in question do not fall within the rule. Spontaneity is the key to admission of such hearsay; and in this case defendant’s reaction was not to the event itself but was due to the influence and questions of the police who intervened between the event and the utterance and had warned him of his rights. State v. Hook, supra, 1. c. 353[5]. In addition, the answer sought by defendant’s offer was cumulative to testimony adduced upon cross-examination of Officer Dawson when he testified that defendant told Officer Lomax that the parcel “was not his tackle box”; and that he also denied any ownership in the box and denied shipping it.

Appellant charges the court erred (VII) in giving Instruction No. Ill as a verdict-directing instruction “as it failed to fully instruct on the law permitting the jury to return a finding as to ‘possession of a contraband substance’ when in fact the defendant was charged with possession of cocaine hydrochloride, a schedule II controlled substance.”

Appellant’s argument sets out the instruction and directs the court’s attention to Section 195.017, subd. 4(l)(d), RSMo 1969, V.A.M.S., but does not suggest in any way what is wrong with the instruction. Suffice to say that Instruction No. Ill is the same in substance as the verdict-directing instruction approved in submitting marijuana possession in State v. Sledge, 471 S.W.2d 256, 260 (Mo.1971); and it is also of the same substance as MAI-CR 14.10 now prescribed by Rule 20, V.A.M.R., for submission of narcotics possession cases.

Finally, appellant contends (VIII) that the verdict “is fatally defective and not responsive to the charge contained in the information and fails on its face to support the judgment of conviction being a special verdict not containing all elements of the offense charged.”

The test of a verdict is that it must be sufficiently definite and certain that, on entry of a judgment thereon, it will bar further prosecution for the same offense. State v. Saussele, 265 S.W.2d 290, 294[9] (Mo. banc 1954); State v. Jordan, 285 Mo. 62, 225 S.W. 905, 907 (1920).

Defendant was charged with felonious possession of a named schedule II controlled substance in violation of Missouri’s Narcotic Drug Act; there was no question that the named substance, cocaine hydrochloride, is a schedule II controlled substance; the verdict-directing instruction, No. Ill, dealt only with “possession of a controlled substance, to-wit: cocaine hydrochloride”; the form of verdict, Instruction No. IX, referred to “possession of a controlled substance as defined in Instruction No. 3,” and the verdict found the defendant guilty of the charge under the mentioned instructions. Under such circumstances, the verdict is responsive to the charge and is sufficiently definite and certain as to the offense intended that a judgment thereon will bar further prosecution of defendant for this possession of cocaine hydrochloride, a schedule II controlled substance. State v. Olinger, 396 S.W.2d 617, 622[8] (Mo.1965).

Judgment affirmed.

All concur.