text:
    The NORTH RIVER INSURANCE COMPANY, a corporation, Respondent, v. Kenneth POOS, Jean Poos, Wild Canid Survival & Research Center, Inc., Daniel Joseph Mahlandt, a minor, Donald J. Mahlandt and Dorcas Mahlandt, Appellant.
    Nos. 38314, 38315 and 38336.
    Missouri Court of Appeals, St. Louis District.
    June 21, 1977.
    Merle L. Silverstein, Rosenblum & Gol-denhersh, Clayton, for appellants Poos.
    Evans & Dixon, Eugene K. Buckley, Richard L. Meives, St. Louis, for appellant Wild Canid Survival, etc.

      Jack H. Ross, Coleman, Ross, Carey, Goetz & Schaaf, Inc., Clayton, for North River.
    P. Terrence Crebs, Gallop, Johnson, Godi-ner, Morganstern & Crebs, St. Louis, for Mahlandts.
   CLEMENS, Presiding Judge.

Defendants appeal a declaratory judgment in favor of plaintiff-respondent,' North River Insurance Company. North River sued for a declaration of non-liability under its homeowners’ liability insurance policy issued to defendants Kenneth and Jean Poos. This concerned a wolf-bite injury allegedly sustained at their residence by Daniel Mahlandt. The trial court declared coverage was excluded by the policy, and defendants appeal.

Plaintiff-insurer’s petition alleged an underlying lawsuit by Daniel Mahlandt and his parents for personal injuries inflicted by a wolf named “Sophie.” Sophie was owned by defendant Wild Canid Survival and Research Center, Inc., (hereafter WCS), and was kept by WCS’s employee Kenneth Poos at his residence. Plaintiff acknowledged that the Poos’ homeowners’ policy providing personal liability coverage was in effect when the child was injured. Insurer further alleged it had undertaken to provide a defense for defendant Poos with a reservation of its rights, this relying on the following exclusionary clause of its policy: “This policy does not apply: 1. Under coverage E — personal liability . . . d. To bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits.”

North River contended the injury was not covered by its policy because Kenneth Poos was an employee of WCS, Sophie’s owner; keeping and maintaining her at his residence was a business obligation of his employment; the minor’s injury arose out of Poos business pursuits and such activities were not ordinarily incident to non-business pursuits.

The evidence showed WCS is a not-for-profit corporation devoted to preserving wild canids and Sophie was used as an exhibit in educational programs. Kenneth Poos was obliged to care for Sophie, that is to feed, water and keep her clean and he was paid a yearly salary plus expenses incurred in keeping her. Defendant Poos had left Sophie chained to a fence post inside his enclosed yard and was not home when the child was injured.

The trial court declared coverage for this injury was excluded by the terms of the policy and defendants have appealed.

Our threshold concern is whether the bodily injury claim is excluded from coverage by the “business pursuits” exclusion. This depends on whether Poos’ keeping and caring for Sophie at his residence was incidental to his employment.

Defendants’ out-of-state cases would require Poos to have had a profit motive in keeping Sophie at his residence, holding this to be a necessary element of the term “business pursuits.” Salerno v. Western Casualty & Surety Company, 336 F.2d 14 [6] (8th Cir. 1964); Allied Mutual Casualty Company v. Askerud, 254 Minn. 156, 94 N.W.2d 534 [5] (1959); Lane v. Hartford Fire Insurance Company, 343 P.Supp. 79 [11] (Mo., E.D. 1972); Home Insurance Company v. Aurigemma, 45 Misc.2d 875, 257 N.Y.S.2d 980 [7] (1965).

Blatt v. Metropolitan Life Ins. Co., 413 S.W.2d 533 [1] (Mo.App.1967), decided the issue of when an accidental injury “arises out of” employment. In that case an insurance salesman, while driving his automobile to solicit and collect funds had a mechanical failure and was injured while making repairs. The court concluded that an accidental injury “arises out of” employment when there is a causal connection between the employment and injury. An insured meets this requirement when the injury is “the rational consequence of an act incidental to his employment.” The court concluded the insured’s car repairing was an act “incidental to his employment” and therefore “arose out of” his employment.

Maintaining Sophie was an act incidental to Poos’ employment. WCS paid him a salary of $12,000 a year plus expenses for performing his duties. He was obliged to care for Sophie, and doing so was necessarily a part of his primary function of presenting educational programs. The manner was left to his discretion. Keeping Sophie at his residence was for his personal convenience in caring for Sophie to fulfill obligations incidental to his employment and we hold the injury arose out of a “business pursuit.” The causal connection between the injury and Poos’ employment satisfies the criteria of Blatt.

The activities described in Salerno, Allied Mutual Casualty Company and Home Insurance Company cited by defendants are of a sparetime or extracurricular nature and are distinguishable since the insureds’ activities there were for purely personal purposes. Not so here.

Under the policy’s exception clause the issue is whether keeping a wolf at one’s residence incidental to a business pursuit is an activity “ordinarily incident to non-business pursuits” and therefore not excepted from exclusionary coverage.

Defendants cite Crane v. State Farm & Casualty Company, 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129, and Gulf Insurance Company v. Tilley, 280 F.Supp. 60 (N.D.Ind. 1967), aff’d, 393 F.2d 119 (7th Cir.1968), each concerning baby-sitting incidents. Each case upheld an exception from the policy exclusion on the ground the injury occurred while insured was caring for her own children and was engaged in a non-business pursuit. Analyzing these eases in Martinelli v. Security Ins. Co. of New Haven, 490 S.W.2d 427 [4, 5] (Mo.App.1973), we concluded the homeowners’ policy excluded coverage for an activity which occurred while the insured was engaged in a business pursuit only if the activity was ordinarily incident to a non-business pursuit. We held that “the activity to be an exception to the exclusionary clause, must be one which is not associated with or related in any way to the insured’s business pursuits.”

Here, the activity of defendant Poos in keeping Sophie for use in his work cannot be said to be an activity ordinarily incident to a non-business pursuit because in keeping Sophie defendant Poos was engaged in an activity constituting a part of his business pursuit. So, the policy exception did not alter the policy’s business pursuit exclusion.

In sum, we hold the bodily injury arose out of the insured’s business pursuit and keeping Sophie at his residence was not an activity ordinarily incident to a non-business pursuit. The trial court correctly declared the exclusionary policy language prevented coverage.

Judgment affirmed.

DOWD and SMITH, JJ., concur.

      . We note the policy excludes injuries arising out of the insured’s “business pursuits,” but excepts from that exclusionary phrase activities “ordinarily incident to non-business pursuits.” Thus, if the injury arose out of the insured’s business pursuits there is no coverage, unless it can be said keeping a wolf was an ordinary incident to insured’s non-business activity, in which event there is coverage.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James A. TRIVITT, Appellant.
    No. 10473.
    Missouri Court of Appeals, Springfield District.
    June 24, 1977.

      John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Charles Buchanan, Public Defender, Joplin, for appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Tried under the habitual criminal statute (§ 556.280, V.A.M.S.), a jury found defendant guilty of the unlawful possession of phenmetrazine hydrochloride, a controlled substance listed in Schedule II of § 195.017, V.A.M.S. The court assessed punishment at ten years’ imprisonment and defendant appealed.

On the date in question, the night patrolman for Sarcoxie first encountered defendant at a closed Texaco service station, next saw him purchasing gasoline at an opened station and finally accosted defendant to admonish him against driving his station wagon in the nighttime through the city’s alleys with the car’s headlights extinguished. When defendant drove away from the place of the last encounter, the patrolman followed surreptitiously and saw defendant return to the closed Texaco station. The patrolman testified that upon reaching the station, defendant alighted carrying a “little brown pouch” which he placed in some weeds beneath a service station window. Upon returning to his vehicle, defendant “flickered” its headlights two or three times before driving away. The patrolman retrieved the pouch which contained a quantity of pills. A testing of the pills revealed their ingredients to be phenmetrazine hydrochloride.

Following the state’s opening statement during trial, the court called a noon recess until 1 p. m. Court and counsel understood that defendant’s appointed lawyer, the public defender, would utilize the recess to visit the area where the pouch was allegedly found by the patrolman and secure a photograph of the site. When the jury returned from the recess, defendant and his lawyer were then absent from the courtroom. In an effort to explain the situation, the court addressed the jury: “I might explain to you that the reason for the delay is that [defendant’s lawyer] stated he desired to before he made this opening statement to go to the scene of this alleged drop and take a picture which he could bring back and possibly introduce in evidence and he wanted to see the picture before he made his opening statement because he and his client are bound by what is said in his opening statement, so we arranged for him to go to Sarcoxie and take a picture during this break, and we understand by the Sheriff that it will probably be ten or fifteen minutes before he is back, so that is the reason for the delay.” (Emphasis supplied).

Defendant says the court erred by telling the jury that his lawyer had gone “to the scene of this alleged drop” because it constituted a comment on the evidence “and specifically a comment suggesting to the jury that the activities at the scene of the crime were part of a ‘drug drop’ or similar sale or exchange of drugs.” Defendant also contends the court erred in remarking that he and his lawyer “are bound by what is said in his opening statement” because “said instruction and comment” (a) is not an MAI-CR instruction, (b) is a misstatement of the law and (c) misled the jury and overemphasized the binding effect of statements by counsel for defendant.

Even though voiced erroneously, statements made by the court during trial are not cause for reversal unless the pronouncements constitute apparent prejudicial error. Each case must be considered in toto to determine if improper comments were prejudicially erroneous. United States v. Schrenzel, 462 F.2d 765, 774[14] (8th Cir. 1972), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972). “Whether or not error by reason of the court’s comments is so prejudicial as to require a new trial is not resolved by a standard of facile application. . . . [Ejrror is not harmless if there is a ‘reasonable possibility’ that the matter complained of might have contributed to the conviction. . . . ‘Errors of the trial court which may be prejudicial in a close criminal case, in the sense of being capable in such a situation of possibly affecting the result, can well be without any such rational possibility in a strong case, and thus not entitle the defendant to a reversal of his conviction. The reviewing court must, of course, be able to say with fair assurance that the errors complained of could not, with natural operation in the total setting and proceedings had, be regarded as having possessed any influencing effect.’ ” United States v. Porter, 441 F.2d 1204, 1215[20] (8th Cir. 1971).

Employing these tests, we conclude that there was not sufficient prejudice to require reversal. We see the record as presenting a “strong” case against the defendant and cast our judicial doubt that the complained-of comments, although improperly made, in any manner influenced the outcome. The trial ran for a day and a half and included a trip by the jury from Joplin to Sarcoxie to view the scene where defendant had allegedly stashed the pouch of pills. The instance of the judge’s erroneous comment consumed no more than a fleeting half-minute of the trial’s duration and the remark was not given in the nature of a charge or direction to the jury but obviously as an impromptu endeavor to explain the reason for the delay. In his opening statement, defendant’s counsel uttered nothing which could be construed to have been adverse to the defendant albeit the jury may have considered defendant bound thereby. Also, the extemporaneous explanation came close on the heels of instructions numbered 1 and 2 (MAI-CR 2.01 and 2.02) whereby the jury had been formally charged, inter alia, that “no statement, ruling or remark that the Court may make during the trial is intended to indicate its opinion of what the facts are” and “[tjhe opening statements of attorneys are not evidence.” Moreover, in his closing argument the prosecutor, in referring to the second element of the charged crime (i. e., that defendant intentionally and knowingly had the controlled substance in his possession and under his control), stated that placing the pouch of pills in the weeds “was not an innocent, incidental maneuver, that is dropping the pouch into the weeds, but a very planned maneuver, I think the flickering . . When defendant’s lawyer objected at this juncture, the objection was sustained and the court directed the jury to “disregard the last remark made by the Prosecutor.”

There was error only if the statement of the trial judge so prejudiced the jury as to deprive the defendant of a fair and impartial trial. State v. Tash, 528 S.W.2d 775, 782[19] (Mo.App.1975). Based upon our reading of the entire record, and in view of the fact that there is but little, if any, doubt as to the defendant’s guilt [State v. Montgomery, 223 S.W.2d 463, 469[19] (Mo. 1949)], we must conclude that the complained-of statement did not deprive defendant of a fair and impartial trial and that the jury was not influenced by the comment of the court in such a way as to alter its verdict.

Judgment affirmed.

All concur.

      . When used in this fashion, Webster’s New Collegiate Dictionary defines the noun “drop”, p. 349, as “a place used for the deposit and distribution of stolen or illegal goods.”


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gerald Wayne MARTIN, Defendant-Appellant.
    No. 10384.
    Missouri Court of Appeals, Springfield District.
    June 27, 1977.
    Wayne K. Rieschel, Prosecuting Atty., Buffalo, for plaintiff-respondent.
    Charles F. Johnson, Buffalo, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Gerald Wayne Martin appealed his conviction by a Dallas County jury of operating a motor vehicle while intoxicated [§ 564.440, RSMo 1969], claiming there was not sufficient evidence of the corpus delicti, and that his extrajudicial statement to an officer that he had been driving the vehicle was erroneously admitted by the court. We affirm.

Defendant refers us to Kansas City v. Verstraete, 481 S.W.2d 615 (Mo.App.1972), in support of his appellate contention. We recognize that case is authority for the rule that when the corpus delicti has not been sufficiently proven, an uncorroborated extrajudicial confession of guilt cannot be regarded as evidence tending to show guilt, but conclude it is not applicable in this case.

The defendant's extrajudicial statement came into the case, over objection, in the state’s presentation of its evidence in chief. And, under Verstraete, supra, and cases cited therein, absent other evidence, the corpus delicti would not have been established. However, the defendant supplied the necessary element in his own testimony when he undertook to explain why the vehicle overturned and said: “Well, there was a dog run across the road in front of me and I swerved to miss it and when I did I went off the side of the road and I got in loose gravel, and then when I pulled it back up on the road and when I did, I pulled up too hard and it turned over sideways on the highway.”

There was ample evidence of defendant’s intoxication and by his judicial admission, he was driving the vehicle. Submissibility must be determined upon the entire evidence and all the evidence established the corpus delicti. State v. Chester, 445 S.W.2d 393 (Mo.App.1969).

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    ARMCO STEEL CORPORATION, Plaintiff-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, DIVISION OF EMPLOYMENT SECURITY of Missouri, and John D. Canaday, Defendants-Respondents.
    No. KCD 28046.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    William H. Bates, Harlan D. Burkhead, Kansas City, for plaintiff-appellant.
    Terry C. Allen, Rick V. Morris, Jefferson City, for Div. of Employment Sec.
    Charles B. Fain, Jefferson City, for Labor & Indus. Rel. Comm.

      Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of Circuit Court, affirming decision of Labor and Industrial Relations that John D. Canaday was not disqualified for benefits under the Missouri Employment Security Law.

John D. Canaday was employed by Armco Steel Corporation in Kansas City for almost 19 years. In 1973, he was a production foreman in the joist department, earning between $16,000 and $17,000 per year. In April, 1973, Canaday’s superior discussed with him deficiencies in his work and told him he might be returned to the electrical department. By November, 1973, the decision had been reached that, because of deficiencies in his performance, Canaday would be returned to the electrical department at the end of December. At Canaday’s request, the date was extended until the last of January to permit Canaday to seek employment elsewhere.

According to Canaday, the electrical department at Armco would have paid some $8,000 per year, with loss of fringe benefits and he felt that he was being “forced out” of his job. On the basis of other evidence, the Commission concluded that the job offered would have paid $9,582 per year, a reduction of some 44%.

Canaday had interviews with prospective employers and when, on January 31, he resigned his job at Armco he thought he had suitable employment elsewhere. However, the new job fell through and he filed a claim for benefits under the Employment Security Law. Armco objected to the claim on the grounds that Canaday had been given an opportunity to remain with them but he quit rather than accepting that job.

A deputy of the Division of Employment Security held that Canaday was disqualified for benefits because he had left his work voluntarily without good cause attributable to his work or employer. Upon the claimant’s appeal, an Appeals Referee concluded that Canaday left his work voluntarily because he otherwise would have been demoted from his supervisory position and his earnings substantially reduced. The referee concluded that claimant had left his work voluntarily on January 31, 1974, with good cause attributable to his employer.

The employer appealed to the Labor and Industrial Relations Commission. On the record of the hearing before the Referee, the Commission reached the same conclusion as the Referee. The employer appealed to the Jackson County Circuit Court which affirmed the Commission’s decision. This appeal followed.

By Section 288.050 1.(1), RSMol969, a claimant for benefits under the Employment Security Law is disqualified for benefits until after he earns wages equal to ten times his weekly benefit amount if the deputy finds “That he has left his work voluntarily without good cause attributable to his work or to his employer; * *

Appellant states the question before the court as follows: “ * * * [D]oes an employee who resigns from his employment because of a proposed demotion and decrease in earnings leave such employment ‘voluntarily’ and ‘with good cause attributable to his work or to his employer’ * *?”

The parties agree that this question has not been decided in Missouri previously. Appellant relies upon cases from other jurisdictions in which has been held, according to appellant, that “a mere decrease in pay does not give rise to good cause for leaving an employment.” Among the cases relied upon are Goebelbecker v. State of New Jersey, 53 N.J.Super. 53, 146 A.2d 488 (1958), Dentici v. Industrial Commission, 264 Wis. 181, 58 N.W.2d 717, (1953), Fegely v. Unemployment Compensation Board of Review, 192 Pa.Super. 141, 159 A.2d 574 (1960), Martin v. Unemployment Compensation Board of Review, 196 Pa.Super. 293, 175 A.2d 116 (1961), Harne v. Unemployment Compensation Board of Review, 188 Pa.Super. 525,149 A.2d 139 (1959), and Longobardi v. Unemployment Insurance Appeal Board, 287 A.2d 690 (Super.Ct.Del.1971).

As respondents point out, none of those cases involved a situation in which the job offered involved a pay reduction of the scale here involved — 44%. In Harne and Dentici there was no proof of wage reduction. The maximum reduction was 21% in Fegely and Martin. In Longobardi, a reduction of from $3.02 per hour to $2.79 per hour was involved. In Goebelbecker, a reduction of 16% was involved and referred to by the court as a “slightly lower wage.” 146 A.2d 491. Worthy of note is that in each of the cases relied upon by appellant, the final administrative authority had found that the decrease in pay involved did not give rise to good cause for leaving the job.

Respondents offer what appears to be the accepted rule in cases such as this: “A substantial reduction in wages is regarded as ‘good cause’ * * * so as to entitle a claimant to unemployment compensation benefits.” 76 Am.Jur.(2d) Unemployment Compensation, § 62, p. 961 (1975). This proposition finds support in the following cases: Robertson v. Brown, 139 So.2d 226 (La.Ct.App.1962), 40% reduction; Johns-Manville Prod. Corp. v. Board of Review, 122 N.J.Super. 366, 300 A.2d 572 (1973), 25% reduction; Bunny’s Waffle Shop v. California Employment Commission, 24 Cal.2d 735, 151 P.2d 224 (1944), 25% reduction; Scott v. The Photo Center, Inc., 235 N.W.2d 616 (Minn.1975), 25% reduction.

In the Johns-Manville case, the court distinguished the Goebelbecker case, relied upon by appellant, stating (300 A.2d 574):

“However, Goebelbecker and similar cases are clearly distinguishable. In those cases the factual situation was that described in the first sentence of the Board’s ‘Opinion,’ cases in ‘which the downgrading [was] not severe and the loss of pay not heavy.’ ”

Authorities from other jurisdictions obviously support the position of the respondents here. Appellant’s authorities are not convincing in the circumstances of this case.

Appellant argues that the courts of this state have interpreted the “good cause” requirement to mean “unemployment * * caused by external pressures so compelling that a reasonably prudent person would be justified in giving up employment” and involves “the element of good faith.” Citizens Bank of Shelbyville v. Industrial Commission, 428 S.W.2d 895, 899 (Mo.App.1968). Appellant argues that Bureau of Labor Statistics (BLS 1830) figures showed that state-wide average annual earnings for metal fabrication workers in January, 1974, were $9,122.36 and that records of the Division of Employment Security showed that, for the year 1973, the average annual wages for employees engaged in manufacturing in Kansas City were $9,852.96. Based on these figures, appellant argues that a claimant who refuses to accept a $9,582 per year job does not meet the “good cause” test laid down in Shelbyville.

This argument is not convincing. The test is whether or not the claimant would have been required to accept a substantial reduction in pay, not whether he was offered work which would have equalled the average pay for the job which he was offered.

Accepting the proposition that “good cause” is a question of law in a case such as this (Belle State Bank v. Industrial Commission of Missouri, 547 S.W.2d 841, 844[2] (Mo.App.1977)), the Labor and Industrial Relation Commission and the Circuit Court correctly found that the claimant’s leaving his employment in this case was for “good cause.”

Appellant has attempted to expand the scope of this appeal beyond the issue presented in the Circuit Court. The petition for review (§ 288.210, RSMol969), as stated in appellant’s memorandum for the Circuit Court, was premised upon the proposition “ * * * that the sole issue to be determined by the Court in this proceeding is whether John D. Canaday * * * voluntarily severed his employment relationship with Plaintiff-Appellant, on January 31, 1974, for good cause attributable to his employer.”

Review here is on the issues raised by the petition for review and presented to the Circuit Court. Additional issues not so raised will not be considered here. Bridges v. State Board of Registration for the Healing Arts, 419 S.W.2d 278, 280[1] (Mo.App.1967).

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    RESEARCH HOSPITAL AND MEDICAL CENTER, a corporation, Respondent, v. Kenneth CARTER and Lucille B. Carter and Edward L. Simmons, Appellants.
    No. KCD 28139.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Edward L. Simmons, Independence, for appellants.
    Thomas A. Schwindt, Kansas City (Ber-man, DeLeve, Kuchan & Chapman, Kansas City, of counsel), for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PER CURIAM.

This is an appeal from a summary judgment in favor of respondent for hospital and medical services rendered the Carters in the amount of $3,625.55, and from an order overruling a motion for summary judgment of appellant Edward L. Simmons.

Appellant’s points relied on are these: “I. The court erred in sustaining respondent’s motion for summary judgment” and “II. The court erred in overruling appellant’s motion for summary judgment.” These points utterly fail to comply with Rule 84.-04(d) that “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous * * (Italics added.) Furthermore, the statement of facts fails to inform this court of what transpired in the court below. Rule 84.04(c). The argument portion of the brief adds nothing which would be of aid in disposing of this case.

Admonitions have continually been given to the members of the bar concerning the mandatory requirements of briefing under Rule 84. See the numerous cases annotated following Rule 84.04, pocket part, V.A.M.R. Violations continue to occur, resulting in many cases being dismissed for failure to comply with the rules.

Respondent’s motion to dismiss does not reach the deficiencies in appellant’s brief. It is therefore overruled, but the appeal herein is dismissed on the court’s own motion.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Homer Eugene SULLIVAN, Appellant.
    No. KCD 28194.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      James D. Worthington, Lexington, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

The appellant (defendant) was charged by information with the felonies of carrying a concealed weapon and conspiracy to commit robbery. These charges were tried before a jury and the defendant was found guilty on both, and the jury assessed his punishment at four years on the first charge and four years, six months, on the second. Thereafter his motion for a new trial was overruled, and he was sentenced to the terms assessed by the jury, to run consecutively. This appeal followed in due course.

The sufficiency of the evidence is not challenged but the defendant raises two points on which he seeks reversal of the judgment. First, he asserts that the trial court abused its discretion in refusing to allow him to produce his rebuttal witnesses. Second, he states that the court erred in allowing the state to cross-examine the defendant upon the specifics of his prior criminal record when the defendant admitted the prior convictions and pleas. Resolution of these assignments of error requires a somewhat detailed review of the evidence.

On March 22, 1975, in response to information, from a reliable source, that a robbery was planned of the Dover Produce Company, Dover, Missouri, by the defendant, Sheriff Gene Darnell of Lafayette County, Missouri apprehended and arrested the defendant and one Gregory Harry Berger in the town of Dover in the early morning. The defendant was driving a station wagon slowly passing the produce company, and Berger was riding as a passenger. The Sheriff placed the men under arrest and discovered a nine shot pistol under the front seat.

The Dover Produce Company was owned and operated by Alvin and Clarence Hain, brothers. Both of them were acquainted with the defendant, who had been a customer of the store from time to time. The defendant had last been in the store on or about March 14, 1975, with a lady companion. Clarence Hain assisted Sheriff Darnell in the apprehension and arrest of the defendant and Berger on March 22, 1975.

In addition to the testimony of the Hains and Sheriff Darnell, the state offered the official transcript of the testimony of Gregory Harry Berger taken at the preliminary hearing.

Berger testified that he was 20 years old in October of 1974, and a friend of defendant’s son. He further stated that he had, on several occasions, discussed and planned with the defendant a project to rob the Dover Produce Company. On some of these sessions, Mrs. Zelda House was present. In accordance with their previous plans around 6:00 a. m. on March 22, 1975, Berger drove a station wagon which the defendant had borrowed and the defendant drove his own ear to Lexington, Missouri, a short distance from Dover. The defendant left his car parked in Lexington and driving the wagon with Berger riding as a passenger, they proceeded to Dover. A pistol was in the front seat between the men. The plan was for the defendant to point out the produce company to Berger; Berger was then later to rob the store by means of the gun; and, then rendezvous with the defendant where the defendant’s car was parked in Lexington and give him the money.

Berger testified that the defendant had brought the handgun from his house on the morning of March 22,1975 and put it in the car. Berger had seen the gun on March 20, 1975. The defendant told Berger that he had stolen the gun and would be in trouble “if he got caught with it”. When they were passing the Dover Produce Company on the morning of March 22, 1975, the defendant saw the Sheriff, he told Berger to put the gun under the front seat and Berger did so, where it was found by Sheriff Darnell following the arrests.

The defendant testified in his own behalf. He stated that he had formerly lived in Lafayette County and had upon occasion made purchases of dog food and other items at the Dover Produce Company, both then and after he moved to Kansas City. He categorically denied any plan to rob the Dover Produce Company or having discussed such a venture with Berger' or Zelda House. He stated that he had only seen the handgun found by Sheriff Darnell on two occasions, once at the home of Zelda House and once in his own home. On the latter occasion, Zelda House brought the gun to his house late at night. She was having trouble with her husband and was afraid. She placed the gun on a window sill where it remained for some time. He denied carrying the gun from his home to the station wagon on the morning of his arrest; denied that it was in the front seat between him and Berger; stated he did not tell Berger to put it under the seat just before the arrest; denied any knowledge that it was under the seat; and, stated Berger denied to the defendant any knowledge of the gun.

The defendant testified that at the time of his arrest in Dover, he was driving the station wagon which he had borrowed from the owner, Ina Gleason, and was en route through Dover to the town of Corder, Missouri, a short distance from Dover, to pick up a washing machine he had arranged to purchase and to check on a horse owned by his daughter. He stated that Berger was with him to help move the washer.

Other testimony of the defendant on direct and cross-examination pertinent to the second point on this appeal will be hereafter noted.

Defendant offered additional evidence. Ina Gleason stated that she had loaned the station wagon to the defendant and later picked it up at Lexington after his arrest. Margie Garrett testified that when she left Corder, Missouri for Iowa, she had sold “all of my furniture” to the defendant. Donald Borchers was offered as a character witness, as was Elizabeth White, the defendant’s former mother-in-law. Thereupon, the defense rested.

The state offered in rebuttal the testimony of Zelda House. She testified as to the conversations and plans with defendant and Berger to rob the Dover Produce Company. She stated that on one occasion about a week before the defendant’s arrest, she accompanied him to the Dover Produce Company and both of them made purchases. On that same occasion, the defendant also asked the man in charge for a roll of nickels and when he opened the vault, she observed rolls of coins. Additional discussions of the proposed robbery ensued. She stated that the idea of the robbery originated with defendant and that he also planned the story about the washing machine, if he and Berger were caught. The witness had observed the gun at defendant’s house but she did not bring it to his house and she never had the gun in her possession. The defendant later told her it was a “warm” or “hot” gun. This was the gun which was to be used in the robbery.

While the defendant was in jail at Lexington, he asked the witness to see Ina Gleason, the owner of the station wagon, and tell her to say the gun had been in her car for a month before March 22, 1975. Zelda House also testified that the defendant had never told her while he was in jail that he was innocent but had always said he would deny the charge and “stick to the story of going after the washing machine”. She stated that after the defendant’s arrest, she obtained some of his personal property from his home, consisting of glasses, his clothing, papers, dishes and silverware. She was holding his clothing and glasses (at defendant’s request) but she sold the dishes and silverware and applied the proceeds of about thirty to thirty-five dollars against a debt he owed her.

It should be here noted that no objection was made by the defense as to the rebuttal testimony of Zelda House and no point is raised on this appeal with reference to its propriety or admissibility.

After the state had again rested its case, the following colloquy appears:

“MR. WORTHINGTON (Defense Counsel): If it please the Court, I would like to make an offer of proof and some rebuttal to the rebuttal evidence that was offered by the State of Missouri.
The State of Missouri offered as rebuttal evidence, Zelda House, and as part of her testimony she stated, and I don’t know whether it was on direct examination or cross-examination, that she had not spoken with Mr. Sullivan in the jail when — or she had spoken with him in the jail but that he had never spoken about his innocence or asked her why she was making these claims against him.
I would offer then as rebuttal a Mr. Baeir, B-a-e-i-r, from the Lafayette County Jail, who claims that he was present on one or more occasions when Mr. Sullivan spoke with Mrs. House, each time denying his complicity in the crime and each time asking her why she was making those charges and statements against him.
My second offer of proof would be Steven Sullivan, the son of the defendant, Eugene Sullivan.
Mr. Steven Sullivan would testify that he was present in Zelda House’s home in Independence and has seen Mr. Sullivan’s furniture and property, belongings, there on at least one occasion; and since he (sic) has told her (sic) on at least two occasions of her sale of the property and of her keeping the proceeds, or benefits.
These I would offer to show that Mrs. House is not an unbiased witness, not an impartial witness.
That is all I have.
THE COURT: The offer of proof will be denied.”

It is apparent that this offer of proof falls short of the procedural requirements imposed upon a party making such an offer. It has long been the rule in this state that the proper procedure to present and preserve such an offer is to have the witnesses present; put them on the stand; propound the questions; and thus enable the trial court to intelligently rule upon, and an appellate court to review, the propriety and admissibility of the evidence sought to be elicited, Northwestern Stove Repair Co. v. Cornwall, 148 Mo.App. 605, 128 S.W. 535, 537[6] (1910); Bowe v. Kehr, 345 S.W .2d 224, 227[3] (Mo.1961). Further, such offer “must show all of the facts necessary to establish the admissibility of the testimony sought to be introduced” and it must be “specific and definite” and “not a mere statement of the conclusions of counsel.” Kinzel v. West Park Investment Corporation, 330 S.W.2d 792, 795-796[l, 4] (Mo.1959). Close scrutiny of this offer of proof made in this case, as above set forth, discloses that it is completely lacking in the specificity required.

It is apparent that the testimony offered was for the sole purpose of attacking the credibility of Zelda House’s testimony on purely collateral matters, in order to show she was “biased” or “hostile” toward defendant. The only new matters in Zelda House’s rebuttal testimony (brought out in cross-examination by defense counsel) were that the defendant had admitted his guilt and never declared his innocence to her while he was in jail, and the fact that she obtained possession of and disposed of some of defendant’s personal belongings after his arrest and retained the proceeds. Mrs. House admitted that she took possession of some of his personal property and sold some of it, and applied the proceeds to a debt owed her by defendant. So far as this latter conduct might bear upon her credibility it was already in evidence by her admissions under cross-examination. Therefore the offer as to the testimony of Steven Sullivan did not rebut new matters.

The offer of surrebuttal testimony of Mr. Baeir “from the Lafayette County Jail” (not further identified and completely lacking in specificity) would not in any way rebut Zelda House’s testimony that at some time after his arrest the defendant told her he was going to stick to his “washing machine” story. If the state’s evidence was believable (and this jury believed it) it would be a futile and useless act for the defendant to admit his guilt or declare his innocence to Zelda House, since she was, according to her own admission, a party to the conspiracy from the beginning.

Furthermore, both such subjects were completely collateral to the issues on trial and, even if such offers of proof in surrebuttal were taken as procedurally sufficient and definite and specific (which they were not), the admission or exclusion thereof rested in the sound discretion of the trial court. State v. Huff, 454 S.W.2d 920, 923[7] (Mo.1970); State v. Rand, 496 S.W.2d 30, 32-33[3] (Mo.App.1973); Moe v. Blue Springs Truck Lines, Inc., 426 S.W.2d 1, E[4] (Mo.1968). No abuse of such discretion appears from this record and the appellant’s first point is ruled against him.

The three authorities relied upon by appellant in support of this point have been carefully examined and are factually inap-posite and are not persuasive here. Indeed, they support the basic concept of the established law as to the broad discretionary powers of the trial court concerning the admission or exclusion of rebuttal (and sur-rebuttal) evidence, espoused and followed here.

The appellant, as his second contention for reversal, complains that the trial court erred in allowing the “State to cross-examine the defendant upon the specifics of his prior criminal record when the defendant admitted the prior convictions and pleas.” In order to appreciate the worth of this allegation of error, the facts as reflected in the transcript must be reviewed. On direct examination of the defendant, his counsel asked him:

“Q. And have you ever plead (sic) guilty or been convicted of a criminal offense?”

In response to this inquiry, the defendant answered:

“A. I have plead (sic) guilty.”

No further or other questioning concerning convictions or prior criminal offenses committed by the defendant were offered on direct examination.

On cross-examination, the defendant was asked and responded as follows:

“Q. (By Mr. Lauderdale) (Prosecutor): Mr. Worthington asked you and you answered that you had, as I understand, entered a plea of guilty or had been convicted of a State charge, was that in Missouri or was that in some other state?
MR. WORTHINGTON (Defense Counsel): Objection, it is irrelevant and immaterial and he has already answered the question without being gone into by the prosecution and it is highly prejudicial and I ask the court to both strike the question and the proposed answer.
THE COURT: Well, the objection will be overruled.
“Q. (By Mr. Lauderdale) I think you answered his question that you had been convicted or plead (sic) guilty to a criminal charge and my question was: Was that in this State or some other State?
A. That was in Arkansas.
Q. Do you recall when it was?
A. ’69, I think.
Q. And you received a punishment by confinement, was that in what, the State Penitentiary of Arkansas?
A. Yes, sir.
Q. For how long?
A. I pleaded guilty to escape and I got three years.
Q. Three years for escape?
A. Yes, sir.
Q. Then my memory tells me, Mr. Sullivan, that perhaps I filed a charge or two against you here in this County. Do you recall whether or not you were convicted or plead (sic) guilty to any charges here in this County?
A. Plead (sic) guilty.
Q. And was that more than one charge?
A. I think that I had two insufficient fund checks;- two different times I had insufficient fund checks that came back; I have been in your office, yes, sir.
Q. Is it possible that you could have had three checks, one in ’74 and two in ’75?
A. Possibly, yes, sir. Two different times I went to Court. I’m sorry. Q. But on three different offenses? A. On three different offenses, yes, sir. MR. LAUDERDALE: I believe that is all.
MR. WORTHINGTON: No further questions.’’
Section 491.050 RSMo 1969, provides: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.” (Emphases supplied)

This statute has been held to confer an absolute right to show prior convictions and the nature and kind thereof for the purpose of impeachment, or as affecting credibility. State v. Busby, 486 S.W.2d 501, 503[1] (Mo.1972).

See also: State v. Morris, 460 S.W.2d 624, 629[3] (Mo.1970); State v. McBride, 231 S.W. 592, 593-594[3] (Mo.1921); State v. Hacker, 214 S.W.2d 413, 416[7] (Mo.1948); State v. Hood, 313 S.W.2d 661, 663-664[4] (Mo.1958).

This absolute right upon cross-examination is limited only by the restriction that in so doing, the cross-examiner should not be permitted to go into the “details” of the crimes leading to the prior convictions. It is permissible, however, to elicit the nature, dates and places of the occurrences and the sentences resulting therefrom. State v. Boxley, 497 S.W.2d 129, 130[1] (Mo.1973), and cases cited therein.

It is clear from the record above quoted that the trial court did not permit, nor indeed, did the State attempt, to breach the permissible limits in its cross-examination of the defendant. The defendant’s second point is ruled against him.

The two cases relied upon by defendant in support of his second point are clearly distinguishable and are not controlling in this case.

The judgment is affirmed.

All concur.

      . State v. Williams, 442 S.W.2d 61 (Mo.1968); State v. Kirk, 510 S.W.2d 196 (Mo.App.1974); State v. Holland, 530 S.W.2d 730 (Mo.App.1975).

      . State v. Spinks, 344 Mo. 105, 125 S.W.2d 60 (1939); State v. Thurman, 521 S.W.2d 773 (Mo.App.1975).


text:
    RAY-CARROLL COUNTY GRAIN GROWERS, INC., Plaintiff-Appellant, v. Dean NICKELL, Defendant-Respondent.
    No. KCD 28250.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Jack Lukehart, Brunswick, for plaintiff-appellant.
    Walter E. Allen, Brookfield, for defendant-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for breach of contract for sale and delivery of soybeans. Jury verdict was for plaintiff, fixing damages at $2,000. Trial court sustained defendant’s motion for new trial. Plaintiff appeals from that order.

By its petition filed May 25, 1973, Ray-Carroll County Grain Growers, Inc., alleged that Dean Nickell had agreed to sell and deliver to plaintiff 2,000 bushels of soybeans at a price of $4.20 per bushel; that defendant failed to deliver the beans as agreed, forcing plaintiff to purchase the beans elsewhere at a higher price.

In June, 1974, plaintiff in response to requests for admissions acknowledged that there was no written agreement pertaining to the alleged purchase of soybeans by plaintiff from defendant.

The case came on for trial May 20, 1975. On that date counsel for defendant asked leave to amend his answer to “set up the jurisdictional defense, actually the Statute of Fraud * * The court denied the request, pointing out that if the amendment was allowed, postponement of the trial would be required. The court also noted that in the light of the pleadings and discovery, defendant should have been aware of the possible defense “several months ago.”

The case proceeded to trial, resulting in a jury verdict for plaintiff which fixed plaintiff’s damages at $2,000. The defendant filed a motion for new trial, alleging as one ground therefor, the court’s refusal to permit him to amend his answer to assert the defense of the Statute of Frauds. The trial court sustained the motion on that ground. Plaintiff appealed from the order granting a new trial.

On this appeal, appellant contends that the trial court abused its discretion in sustaining defendant’s motion for new trial on this ground. Essentially, appellant contends that the trial court correctly denied the requested amendment, in view of the timing of the defendant’s request. As appellant puts it: “The trial court could not have been correct the day of the trial in refusing to allow the amendment and also be correct when after the trial of the cause it grants a new trial for refusing to allow the amendment.”

Appellant’s argument accepts the discretionary nature of the trial court’s grant of a new trial. Appellant’s cases all recognize that whether or not amendment of pleadings should be allowed under Rule 55.33(a) is a matter addressed to the trial court’s discretion. In the case of DeArmon v. City of St. Louis, 525 S.W.2d 795, 802-803[18-23] (Mo.App.1975), S_ v. W_, 514 S.W.2d 848, 854[7 — 9] (Mo.App.1974), and Semo Grain Co. v. Oliver Farms, Inc., 530 S.W.2d 256, 259[3-4] (Mo.App.1975), cited by appellant, the appellate court, in each instance, refused to interfere with the trial court’s action in permitting or refusing amendment of pleadings. These cases recognize that relief on appellate review may be granted only for a palpable and obvious abuse of discretion.

The fact that the trial court originally exercised its discretion to refuse to allow an amendment does not preclude its later contrary action when its prior action is questioned on motion for new trial. Simpson v. Kansas City Connecting Railroad Company, 312 S.W.2d 113, 120[3-5] (Mo.banc 1958).

Appellant has not demonstrated that the trial court’s grant of a new trial on the grounds stated was a palpable or obvious abuse of discretion. Such is appellant’s burden in this case. Penn v. Hartman, 525 S.W.2d 773, 775[1] (Mo.App.1975). The trial court was well aware that defendant had been dilatory in seeking to advance the Statute of Frauds defense and originally denied the requested amendment. Having heard the evidence the trial court believed that the amendment should have been permitted. This exercise of discretion has not been shown to have been erroneous.

Order affirmed and cause remanded for new trial.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Harve FERGUSON and Mary K. Ferguson, Defendants-Appellants.
    No. 28298.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      Strop, Watkins, Hoskins & King, Dan Hale, St. Joseph, for defendants-appellants.
    Bruce A. Ring, Chief Counsel, Highway Commission, Jefferson City, Earl H. Schrader, Jr., Darold W. Jenkins, Asst. Counsel, Highway Commission, Kansas City, for plaintiff-respondent.
    Before SHANGLER, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment which required landowners to repay $20,000 of a $130,000 commissioners’ award in condemnation. The question is whether a prior conveyance of right of way from landowners to the State, particularly its access reservation provision, was relevant to the issue of damages as to render its exclusion from the jury reversible error. Affirmed.

Harve and Mary Ferguson are the owners of a 748-acre farm which lies immediately west of Platte River, suburban to and east of the city limits of St. Joseph, Missouri. Prior to December 15, 1961, there was no road through their farm. On that date Mr. and Mrs. Ferguson conveyed to the State of Missouri, by and through the State Highway Commission, 49.8 acres in a strip east and west across the farm for relocation of U.S. Highway 36. Construction of the highway left 188 acres north and 560 acres south of the highway. The deed conveyed: “Also, all abutters’ rights of direct access between the highway, now known as State Highway U.S. Route 36, Buchanan County, and grantors’ abutting land * * * EXCEPT THAT there is reserved and excepted to grantors, their heirs and assigns, the usual right of direct access (1) to any adjacent outer-roadway if and while it may be maintained by proper authority in front of said land, and (2) along it to and from the nearest lane of the thruway or public highway, and (3) at all times when no outer-roadway is being so maintained, there is reserved and excepted the right of direct access to said Route 36 over three 20-foot entrances (1) centered at the northerly right-of-way line opposite Station 321 + 25; (2) centered at the southerly right-of-way line opposite Station 321 + 25 and (3) [not in issue].”

On December 14, 1972, the Commission approved plans and specifications for an improvement of relocated Route 36 from Route 1-29 east to Platte River which affected the right of way across the Ferguson farm. On January 5, 1973, in furtherance of the project, the Commission filed its petition to condemn and acquire from Mr. and Mrs. Ferguson: “ * * * all abutters’ rights of direct access between the highway now known as State Highway U.S. Route 36 and its right-of-way and defendants’ abutting land * * * lying west of the Platte River * * *.”

The plans and specifications do not call for construction of outer roadways on the original right of way acquired by the 1961 deed, and plans and specifications for the original construction, approved prior to December 15, 1961, did not call for construction of outer roadways in front of either of the Fergusons’ remaining tracts. The original construction included the two 20-foot entrances at Station 321 + 25; and, prior to the present taking May 24, 1973, they provided access for Mr. and Mrs. Ferguson to, from, and across Route 36 and the right of way on which it was constructed.

Prior to approval December 14, 1972, of the plans and specifications for the present improvement project, the chief engineer and staff for District One of the Commission studied and considered outer roadway possibilities for Route 36 from the Riverside overpass at the west end to the west boundary of the Ferguson farm on the east end. Such discussions did not involve continuations on east to the Platte River; and the plans and specifications approved December 14, 1972, did not call for outer roadways in either location.

The landowners moved to exhibit the December 15, 1961, deed to the jury, which motion the court denied. The landowners also made an offer of proof of the deed which the court also denied. The court’s ruling was “that you cannot show the deed * * * into evidence; that it cannot be put into evidence, and that the jury is to be told somehow that they are taking all of their rights of access to Highway 36 that they now have, which are these two points; and that the landowners cannot argue about them taking away the right to the use of an outer-roadway, or the right to build or no longer build an outer-roadway; and that the Highway Commission shall not argue to the jury they still have the right to use an outer-roadway if one is ever built.

“This case will be tried on the proposition, as far as this jury is concerned, that the landowners have the right of access at two points, and when this action is over they won’t have those any more, and they can assume that they never will have them * * *

Appellants argue the court erred in its ruling in that it caused the landowners to try their case on the theory they “were only losing access of two 20-foot entrances when in fact they were losing all of their rights of access as prescribed in the deed which gave them temporary access by way of two 20-foot entrances and permanent access by way of an outer road.” They argue also that “if it was not clear that the deed reserved a dual right of access [temporary access by the two entrances and permanent access by an outer road], then at least it was ambiguous”; and the judge’s ruling with respect to the effect of the deed “was not in keeping with the decided cases on the same language in the deed.” Appellants assert also that “both parties understood that at the time of the execution, delivery and acceptance of the deed [of December 15, 1961] that if the Highway Commission chose to make Highway 36 non-access, the only permanent access that [they] could have to Highway 36 would have to be by way of outer roads. * * * The Court should have admitted the deed in evidence and correctly instructed the jury on the meaning of the reservation in the deed and allowed proof of loss of diminution in value because of loss of the outer roads and allowed counsel to argue those damages.” Appellants’ position is further stated, “Counsel could not argue about [their] loss because of the Highway Commission’s decision not to build an outer road."

The difficulty in appellants’ position is that there was no taking of outer roadways or access to outer roadways. This is necessarily so because the landowners have never had access to outer roadways to be taken. The unambiguous exception and reservation in the December 15, 1961, deed provided landowners with access to any outer roadway adjacent to their remainders “if and while it may be maintained”; and direct access to Route 36 over three 20-foot entrances “at all times when no outer-roadway is being so maintained.” No outer roadway had ever been maintained as of the taking of May 24, 1973. There is nothing to show that the Commission was obligated to build outer roadways; and this is not an action on breach of any suggested promise to build outer roadways. Consequently, the taking May 24, 1973, of “all abutters’ rights of direct access between * * * Route 36 and its right-of-way and defendant’s abutting land” could affect and take only the two direct access entrances to Route 36. Landowners’ right of access to any outer roadway which may be maintained adjacent to their remainders is unaffected by this condemnation.

The issue in the case, correctly delineated by the court, was the damages to be awarded for loss of the two direct entrances; and this was properly submitted by Instruction No. 3, in form M.A.I. 9.02. The deed, particularly the exception and reservation provision, was irrelevant and extraneous to and confusing of the issue. Accordingly, it was not error for the court to exclude it.

Appellants’ difficulty is further demonstrated by the distinction of their citations, State v. Johnson, 392 S.W.2d 251 (Mo.1965), and State v. DeMarco, 422 S.W.2d 644 (Mo.1968), and this case. In both those cases the plans and specifications called for construction of outer roadways; and the question was not whether there would be outer roadways but whether the abutting landowners were entitled to damages for loss of their prior existing direct access to the traffic lanes of the highway when their new access was to and by way of the outer roadways to be and which were constructed in front of the abutting remainders.

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Kenneth Richard WALKER, Appellant, v. Jeanne C. WALKER, Respondent.
    No. 28306.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Leona Pouncey Thurman, Shirley Jean Wright, Kansas City, for appellant.
    Carl E. Laurent, Independence, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

The marriage of Kenneth Richard Walker and Jeanne C. Walker was dissolved in 1974. At that time the court stated in its judgment no ruling was being made as to a division of the marital property.

About a year later, Jeanne returned to court and requested a division be made of the marital property. No pleading is shown in the transcript by which Jeanne sought to accomplish this, however, the parties appeared and the court accorded them a hearing. Jeanne presented a list of household furnishings and personal items which she stated she was requesting be given to her. In addition, this list indicated she was requesting one-half of the 1973 income tax return.

The court entered an order that none of the property requested by Jeanne was being given to her, but if Kenneth did not pay Jeanne $1,500 within ten days the property requested by Jeanne would be set aside to her to become her sole property.

Kenneth appeals. He claims error in awarding Jeanne property which was a gift from his mother and awarding her property which belonged to his mother. Appeal dismissed.

In her testimony Jeanne stated she was asking for the property listed on a sheet of paper which was marked “Exhibit 1”. She stated on both direct and cross examination this was not a complete list of the marital property belonging to the parties. The evidence never did reveal the nature and extent of all the marital property, only that all of it was not contained in Jeanne’s list.

It is clear the court was never informed of the full nature and extent of marital property belonging to these parties. It is beyond doubt the court has not exhausted its jurisdiction until it has made a just division of all the marital property. Pendleton v. Pendleton, 532 S.W.2d 905 (Mo.App.1976); L.F.H. v. R.L.H., 543 S.W.2d 520 (Mo.App.1976) and Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977). Because it is clear the court did not make a just division of all the marital property of the parties, the court has not exhausted its jurisdiction in this case and an appeal will not lie.

The appeal is dismissed.

All concur.


author: WASSERSTROM, Judge.

text:
    William J. McBANE, Respondent, v. Elinor L. McBANE, Appellant.
    No. KCD 28372.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      Ronald S. Reed, Jr., Stephen J. Briggs, St. Joseph, for appellant.
    Richard E. Martin, St. Joseph, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

On September 29, 1975, the trial court entered judgment dissolving the marriage between the parties, awarding custody of a minor child to the wife, making allowances for child support, dividing the marital property, but denying any award for maintenance. The wife appeals, claiming that an award of at least nominal maintenance should have been given.

The parties were married in 1952. At that time the wife was and has since remained a registered nurse. However, she developed back trouble and from 1962 to 1967 was “completely down.” During a ten year period she underwent two surgical operations to her back, with hospitalizations in Boston, Massachusetts, and at Mayo’s in Rochester, Minnesota. The surgeries included a laminectomy and fusion of the fourth and fifth lumbar vertebrae.

The wife is presently working as a GN-3 at a State Hospital, earning $700 a month before taxes. However, she suffers a limitation of motion from the back fusion, arthritis, degenerative lipping of the cervical spine, premature aging, and certain conditions which although not yet fully tested are generally symptomatic of collagen degeneration disease.

These physical conditions have some effect presently on her ability to work. She testified that “I have days that I can do something and days that I can’t do something * * * If I don’t have to lift anything I get along fairly well. If I don’t have to climb too many stairs I get along fairly well.” However, her work as an RN supervisor does not preclude her having to fill in on duties in the hospital ward where at times she is required to do bed care and emergency care on patients. Dr. Peterson, under whose care she was at the time of trial, testified that these general floor nurse duties are considered potentially dangerous for the type of problems encountered by this patient. He also testified that the spine fusions had produced a permanent limitation of motion and that such a fusion is apt to produce a herniation of the spinal disk above. Dr. Peterson also found arthritic changes in the lumbar spine, the dorsal spine and the cervical spine. He further testified that the degenerative lip-ping of the cervical spine could go on to a total stiffening of the cervical spine with an increase of pain and consequent decrease in range of motion, and that if she continues to work in jobs that require much physical effort, more arthritis can certainly be expected.

In Dr. Peterson’s opinion, it is possible that this woman can work out her normal working life, but “her probabilities are not equal to those of a normal person” and her chances are not as great as those of a person merely suffering from the usual type of arthritis. If a secondary condition does develop in the portion of the back immediately above the fused vertebrae, that will develop relatively suddenly and Mrs. McBane will be incapacitated as she was with the first herniated disk.

The wife contends that her physical condition is such as to show a real potential need for financial assistance in the future and that nominal maintenance should have been awarded so as to retain jurisdiction. The husband resists any allowance even nominal in amount, and presumably the trial court refused to make any allowance, on the ground that the wife fails to meet the statutory requirements of Section 452.335 RSMo Supp. 1973 which are prerequisite to such an allowance.

The statutory section referred to provides that maintenance may be ordered only if the court finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and “is unable to support himself through appropriate employment * * As to the property available to Mrs. McBane, the record shows that the family home had a net value after encumbrances of $17,500, in which the court determined that the wife had a one-half interest and was entitled to lien of $5,000 against the husband’s one-half interest. The decree also allotted to the wife a one-half interest of $5,350 in the husband’s accumulated retirement fund. In addition to that, the wife owns a lot and house trailer worth $2,200, a 1972 Toyota automobile and a one-half interest with the husband in a boat and motor. None of this property is income producing. There is no claim that the listed property is sufficient in itself “to provide for [her] reasonable needs” and it is clear that property would not be sufficient for her needs looking forward to the indefinite future.

The greatest stress in the argument however centers upon the fact that the wife can and does work and is presently self-supporting. The question for determination is whether her physical condition, which may at any time interrupt her ability to work, warrants some provision in the dissolution decree protecting against that possibility.

Although this issue has not been decided under the new Missouri Dissolution of Marriage statute, an affirmative answer has been given to the question under the Colorado statute which is identical to the Missouri statutes in the provisions now in question. In Davis v. Davis, 35 Colo.App. 447, 534 P.2d 809, 812 (1975), the wife was employed at the time of the marriage dissolution but there was considerable testimony relative to an ankle disability which caused her some discomfort in her existing employment; and based on conflicting testimony, the trial court found that the wife’s existing and future employment status was therefore unstable. Pursuant to that finding, the court awarded the wife maintenance in the nominal amount of $1.00 per year. The husband contended that such allowance was contrary to the Colorado Dissolution of Marriage statute (just as the husband argues here under the parallel Missouri statute) because she was presently employed at a wage which was sufficient to support her. The Colorado Appeals Court held the award for nominal maintenance to be proper:

“We hold that where, as here, the court determines that a spouse may not be able to support herself on a permanent basis due to the effects of an existing injury, reservation of the issue of maintenance for subsequent determination or award of nominal maintenance subject to subsequent review is permissible pursuant to § 14-10-114, C.R.S.1973.”

Similarly, although not under an identical statute, the same result was reached in Evans v. Evans, 337 So.2d 998, 1000 (Fla. App.1976), where the court held:

“The only other matter in this case we feel constrained to discuss is the trial court’s failure to reserve jurisdiction. The wife appears to be able to support herself and the minor child at the present time by teaching school and with the help of child support payments. In a few years, however, the minor child will be emancipated, and the wife will be in her middle or late fifties, a time when health can be a problem, and her ability to compete in the job market will not be the best. For this reason, the trial court should have reserved jurisdiction to consider future alimony for the wife.”

The same result was reached under comparable facts in Pettibone v. Pettibone, 22 Ariz.App. 570, 529 P.2d 724, 726 (1974). In that case the wife testified that she had medical problems which might affect her future ability to support herself, and based thereon the trial court awarded her alimony of $1.00 per year. The appellate court affirmed, holding:

“It is true that-if ‘alimony is not necessary for a wife’s support and maintenance, then the husband should not be required to pay it.’ Nace v. Nace, 107 Ariz. 411, 489 P.2d 48 (1971). This proposition of law does not impose time constraints upon when a wife’s need for support may arise.”

A somewhat similar problem arose and a solution akin to that reached in the above cases was decided by this court in Carrell v. Carrell, 503 S.W.2d 48 (Mo.App.1973). In that case, circumstances subsequent to the rendition of the divorce decree required a reduction in the alimony award, and the trial court entered a modification order vacating and completely eliminating the provision for alimony. On appeal, this court pointed out that the modification order might be interpreted in such a way as to prevent a future reinstatement of any alimony. Out of concern for the future needs of the wife under possibly changing circumstances, this court ordered a further modification to provide for reservation by the trial court of jurisdiction to reinstate or otherwise modify the provision for alimony at such future time or times as circumstances might require.

Where as here, and in the above cases, the evidence shows a physical condition existing at the time of the marriage dissolution which has a substantial potentiality for disabling the wife from remaining self-supporting, fairness to the wife requires that her existing physical condition be taken into account. It would be impractical to undertake to try to reduce the future possibilities to a present dollar allowance. It is, however, completely feasible for the trial court to retain jurisdiction and to let the matter abide for future developments. If it develops that no change occurs in the wife’s condition, then no allowance of substantial maintenance to her will ever be necessary; on the other hand, if her situation takes a turn for the worse, then the extent of her disability and the husband’s then ability to contribute to her support can be evaluated at that time.

The declination of the trial court in this case to grant nominal maintenance as requested was probably based upon an interpretation of Section 452.335 as barring such ruling. If so, for the reasons already stated, that constituted an error of law. If, in the less likely event that the trial court viewed the evidence as insufficient to show a physical condition on the part of the wife giving rise to a substantial potential need for maintenance, then that conclusion would be against the weight of the evidence. In either event, this court has the power and the duty to modify the decree. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

The judgment is modified by striking out “respondent’s request for maintenance is denied” and adding the following: “In order that this court retain jurisdiction to award such maintenance to respondent at such future time or times as circumstances may require, nominal maintenance is hereby awarded to respondent in the sum of one dollar per year.”

The judgment as so modified will stand in effect.

All concur.


author: SHANGLER, Presiding Judge.

text:
    William M. SOWDER, Appellant, v. BOARD OF POLICE COMMISSIONERS and John D. McNamara, Respondents.
    No. KCD 28408.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.

      J. Martin Kerr, Tittle & Kerr, Independence, for appellant.
    Manfred Maier, Kansas City, Kansas City Police Dept., for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

Appellant police officer Sowder was suspended without pay for sixty days by the Board of Police Commissioners for Kansas City, Missouri, for use of unnecessary force against citizen Rose Mary Neal and for his false oath that Wilbur Neal had refused the breathalyzer after request and warning of consequences, when — in fact — none was made or given.

The charges against Sowder resulted from conduct during a routine surveillance when Sowder, in the company of a fellow officer, undertook to question the occupants of an automobile, including Wilbur Neal. An argument developed during the interrogation and Sowder struck Neal to the ground. Mrs. Neal came to the defense of her husband and was herself struck by Sow-der. Thereafter, appellant Sowder prepared and executed documents that Neal was in control of an automobile while intoxicated and refused to submit to the breathalyzer.

Three separate actions followed from these events: The Chief of Police imposed a sixty day suspension discipline on Sowder under § 84.500; the Board brought charges and specifications under § 84.600; and the Neals brought citizens complaints to the Board under § 84.430.

In due course Sowder appealed the Police Chief suspension order to the Board under § 84.610 and so, as convened, the Board had for determination this review procedure, its own citation against Sowder and the complaint brought by the Neals. At the conclusion of the evidence, the Board found that Sowder had used unnecessary force by striking Rose Mary Neal in the face with his fist and that he had sworn a false affidavit that Wilbur Neal had refused a breathalyzer after warning and request. The Board concluded that his conduct violated specified Rules of Conduct as well as the Code of Ethics of the Kansas City Police Department. The decision of the Board to suspend Sowder for sixty days without pay in effect coincided with the discipline imposed upon the officer by the Chief of Police in the first instance.

The appellant brought his petition for review to the circuit court under § 536.100. That court rejected the contentions made— that Sowder had been denied due process before the Chief of Police and the Board and that the decision of the Board was without support of substantial evidence— and affirmed the decision of the Board. The appellant asserts these same grounds on this appeal.

Our review of a decision by a city board of police commissioners is limited by § 536.140 to a determination of whether that action is unsupported by substantial evidence, violates provision of constitution or law, is otherwise arbitrary or an abuse of discretion. Johnson v. Priest, 398 S.W.2d 33, 35[1, 2] (Mo.App.1965).

This principle of administrative review quickly dispenses the contention that the findings that Sowder used unreasonable force upon Mrs. Neal and swore falsely that Mr. Neal had refused the breathalyzer were without support in substantial evidence or otherwise an unreasonable determination.

As to the first of these findings: Mrs. Neal testified she saw two males [Officers Sowder and Mathis dressed in mufti] in conversation with her husband as he sat in a parked car, and that when she asked what was happening, Sowder ordered her to shut up and get away. She began to argue with Sowder — and he first grappled her husband and threw him against the car, then gripped her around the neck and beat upon her face, so that she cried and screamed. Mrs. Neal held fast to Sowder to keep from falling, and the officer struck her at her back with his pistol. This description of the events was fully corroborated by six witnesses at the scene. The testimony of Officer Sow-der, confirmed by his partner Mathis, was that he acted in self-defense against Mrs. Neal and struck her only once with less than a full impact of his fist. On this countervailing evidence the Board could have reasonably made the finding actually concluded and a court of review is bound by that determination of fact. Schrewe v. Sanders, 498 S.W.2d 775, 780[7, 8] (Mo.1973).

As to the second of these findings: There was evidence that Mr. Neal was taken to a hospital for treatment of the injuries he suffered from the encounter, while Officer Sowder proceeded to Police Headquarters to complete his reports. From there he telephoned Officer Ludwig on duty at the hospital to learn if Ludwig had offered Neal the breathalyzer test. Ludwig replied that Neal had refused the test, and on the basis of that information, Sowder completed and signed the Breathalyzer Refusal Form. [That document recites — in conformance with § 564.444 — that the officer whose signature subscribes the report swears on his oath that he asked the person arrested to take a breathalyzer test and warned of the consequences of refusal and that he refused.]

The appellant Sowder does not dispute that he completed the form without prior personal inquiry of Neal, contrary to the attestation of his signature, but argues rather that the form was not an affidavit, and so the finding of the Board was invalid. It may be conceded, for argument, that the sworn report of the officer for submission to the Director of Revenue which preconditions revocation does not require a jurat, and so does not rise to an essential affidavit. 3 Am.Jur.2d Affidavits, §§ 12 and 16. Sowder does not dispute that the gist of the charge laid against him was that he swore to a false statement. That the Board cast its finding in terms of the colloquial affidavit rather than the literal statute does not impair the force of the undisputed proof that Sowder swore falsely and so breached his duty under the law.

The appellant Sowder next iterates the contention that the findings of fact were not inferable from the evidence, but this time claims the error as an abuse of discretion which requires the decision of the Board to be set aside under § 536.140.2(7). What we have already said on that issue, now presented in a different guise, suffices as answer. Sowder contends yet another abuse of discretion: the conclusion of law entered by the Board that, notwithstanding departmental order for an advisory board, the law [§ 84.500] places on the Chief of Police sole responsibility for discipline, so his failure to consult before the decision to punish Sowder was not unlawful. The conclusions of law reached by an administrative agency do not rest on discretion but on the application of valid juridical precepts to the facts of the proceeding. There is no discretion which binds a court to conclusions of the tribunal which misconceive the law. Gilmore v. Thompson, 413 S.W.2d 20, 22[1] (Mo.App.1967). The conclusion reached by the Board that the Chief of Police is solely responsible for the discipline of police officers, however, comports with the clear meaning of § 84.500.

We defer response to one aspect of this general contention — that the Board abused a discretion by the order which consolidated the three procedures against Sowder — since that point recurs in another context.

The other broad complaint asserts that Sowder was denied due process of law in the disciplinary action taken against him. He cites three particulars. He objects to procedures followed by the Chief of Police on the citizens complaints, the consolidation of his appeal with the Neal complaints, and the participation of Manfred Maier as an attorney for the Board.

The arguments on these points assume that the procedures which culminated in the discipline enjoyed the protection of constitutional due process. The scheme of the statute does not support that conclusion nor do general principles of law. The commission of a police officer — revocable for cause at any time [§ 84.600] — does not create a property interest in that status but does give rise to emoluments which are entitled to the protection of the statutes. Heidebur v. Parker, 505 S.W.2d 440, 444[3-5] (Mo.App.1974). Thus, our proper inquiry goes not to adherence to constitutional due process, but whether the procedure which disciplined Sowder conformed to statutory requirements for a fair hearing. McCallister v. Priest, 422 S.W.2d 650, 656[3] (Mo.banc 1968); Milani v. Miller, 515 S.W.2d 412, 420 (Mo.1974).

The procedures for discipline of a police officer require that: The police board hear all complaints or charges filed against any member of the police department. § 84.430. An officer who completes the six-month period of probation may be removed only for cause. § 84.600. The officer is entitled to notice within forty-eight hours of a charge or complaint against him and has the right to a public hearing, to be confronted by witnesses and to defense by counsel. § 84.600. The police chief may suspend an officer [as done here] provided report of such action is made to the Board. § 84.500. An officer so affected has the right of review by the Board at a public hearing. § 84.610. All these courses were faithfully followed. The deficiencies which the appellant sees relate to other procedures.

The first claim is that the Chief of Police neglected to investigate the citizens complaints in the essential manner prescribed by departmental order. The procedures followed at the departmental level are not directly for judicial review. The very purpose of the hearing before the Board [in effect de novo] was to review the departmental discipline. The jurisdiction of a court under § 536.100 goes to determine the validity and fairness of the proceedings of the administrative tribunal [the Board] which conducted the hearing, received the evidence, found the facts, and made the decision. The complaint on this point is not for review. Even taken on its own terms the contention fails because Sowder offered no evidence at the Board hearing as to the investigatory improprieties by the Chief of Police.

The second contention of procedural irregularity attacks the decision by Chairman Ilus Davis to consolidate the three proceedings before the Board because of identity of subject matter and proof. The intention of the Board to consolidate was suggested to the parties at the outset of the litigations and the objection made by Sowder then was not to any irregularity of procedure but that the citizens complaints had not been properly investigated by the Chief of Police. He claimed no procedural prejudice. He now argues that the hearing of the citizens complaints — which sought his dismissal — chilled his right to a fair hearing on his appeal from the discipline of the Chief of Police and prevented the effective impeachment of complainants Neal who became parties, and so could not be excluded from the hearings as witnesses. We note, first of all, that Sowder for some reason does not complain of the joinder of the original disciplinary citation of the Board with the Neal citizens actions, but only that his appeal was so joined, although the sanctions are not different. The procedure adopted by the Board was neither inherently prejudicial nor otherwise unfair. In the absence of objection at the hearing or a show of prejudice on review, the consolidation did not deprive Sowder of the fair hearing intended by § 84.610 and § 536.140.-2(5).

The final claim of procedural impropriety contends that Manfred Maier, attorney for the Kansas City Police Department — who appeared at the hearing for the Board — had earlier advised Sowder on those events and so represented conflicting interests. This suggestion of unethical conduct is barren of any substance, was without even a tender of proof, and we dismiss it.

What appears from the record is merely a comment by counsel for Sowder, late in the proceedings, that Mr. Maier as attorney for the Police Department had earlier advised Sowder at a deposition as a witness for the city. The cause was not identified, but presumably related to the events which brought on the disciplinary citations. What may be surmised from the disjointed colloquy which follows is, rather, that when Sowder presented himself for the deposition, a Mr. Renfro [a city attorney?] and Mr. Maier were in attendance. On two occasions Mr. Maier objected to questions put to witness Sowder until he was challenged for his participation, and thereafter Mr. Renfro took up the task.

An attorney is by that office disqualified from representation of interests which are hostile, adverse and in conflict with each other. 7 C.J.S. Attorney and Client § 47. The practice demeans the administration of justice and so results in disqualification regardless of the good faith or honest motive intended by the attorney. State v. Burns, 322 S.W.2d 736, 742 (Mo.1959). A parity of principle disqualifies a city attorney from acting against an accused from whom — by reason of professional relation — he has acquired a knowledge of facts on which the prosecution rests. State v. Howard, 118 Mo. 127, 24 S.W. 41, 43 (1893); Annotation: Prosecutor — Disqualification, 31 A.L.R.3d 953, 957 et seq. An adjudication which rests on an error so grievous affects the public interest and may be nullified on the notice of the court alone. State v. Burns, supra, l.c. 741.

A distinction is to be made, however, between a nominal employment and a lawyer who fully enters into and obtains the confidence and secrets of his client, and then uses that information to detrimental effect. State v. Howard, supra, l.c. 43; 7 Am.Jur.2d Attorneys at Law, § 158. In these terms the record speaks of a relationship so nominal that at the deposition Sowder was represented by another attorney and Mr. Maier was not even authorized to object to the interrogation. There was no employment of counsel shown, either as a private matter or as a benefit which accrued to Sowder under the law. Nor is there evidence, the absence of an attorney-client relationship notwithstanding, that Mr. Maier by virtue of his public office obtained private information from Sowder and then used it to his prejudice before the Board.

The procedure before the Board was with all the process the statutes required and so was lawful. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 2080[9, 10], 48 L.Ed.2d 684 (1976).

The judgment is affirmed.

All concur.

      . The appellant Sowder filed with the circuit court on review of the adverse decision of the Board a number of self-serving declarations in the form of an affidavit which asserted the passing of confidences between Sowder to Mai-er and the rendition of advice in return — that is to say — the establishment of an attorney-client relationship between them as to the pending municipal actions against the Neals on the citations issued by Sowder. No such evidence was offered to the Board. The circuit court properly rejected the tender as do we. The courts on review of administrative decisions do not find the facts de novo. § 536.130; Article 5, § 22 Constitution of Missouri 1945.