author: FINCH, Presiding Judge.

text:
    Sandra Y. SHIRRELL et al., Plaintiffs-Appellants, v. MISSOURI EDISON COMPANY, Defendant-Respondent.
    No. 59260.
    Supreme Court of Missouri, En Banc.
    April 14, 1976.
    Robert R. Schwarz, Fordyce & Mayne, Clayton, William B. Quinn and Cynthia S. Holmes, St. Louis, for plaintiffs-appellants.

      Robert V. Niedner, Niedner, Moerschel, Nack & Ahlheim, St. Charles, Gerre S. Langton, Evans & Dixon, St. Louis, for defendant-respondent.
   FINCH, Presiding Judge.

The trial court, on motion of defendant, dismissed with prejudice a wrongful death action brought by the widow and minor children of a man allegedly killed as a result of defendant’s negligence. The action was dismissed for failure to prosecute. Plaintiffs appealed to the Missouri Court of Appeals, St. Louis District, which reversed and remanded for trial, with one judge dissenting. On application of defendant, we ordered the case transferred in accordance with Art. V, § 10, Mo.Const., and pursuant therewith we now consider the case as though here on direct appeal. We affirm.

This suit was filed on October 3, 1969. The petition alleged that Donald E. Shirrell, an employee of a road construction firm, was electrocuted when machinery he was operating came in contact with overhanging power lines of defendant which allegedly were negligently maintained. Answer was filed and the parties thereafter engaged in discovery by means of both interrogatories and depositions, the last of which was filed on December 30, 1970. The record discloses no further activity in the case until it was placed by the court on the inactive calendar on September 30,1971. The next entry was a request by plaintiffs on May 31, 1972, to have the case removed from the dismissal docket where it evidently had been placed, alleging as an explanation for delay to date the fact that the case had required extensive discovery by plaintiffs, that illness of plaintiffs’ attorney had caused some delay and that difficulty had been experienced in obtaining an expert witness. The motion stated that an expert witness had now been obtained and that plaintiffs were ready for trial. It was requested that the case be placed on the trial docket.

Notwithstanding plaintiffs’ allegations about being ready and their request that the case be placed on the trial docket, the case was not tried. Approximately one year later, on June 6, 1973, defendant filed a motion to dismiss for failure to prosecute. That motion was presented and argued and on June 29, 1973, was overruled.

The next activity disclosed by record entries was on September 25, 1973, when the court again ordered the case placed on the inactive docket. Finally, on April 12, 1974, defendant filed another motion to dismiss for failure to prosecute. That motion was presented and argued on April 19, 1974, after which the trial court ordered the case dismissed with prejudice at the cost of plaintiffs.

On April 26, 1974, plaintiffs filed a motion to set aside the order of dismissal. A hearing thereon was held at which William B. Quinn, the attorney who had filed and handled this suit on behalf of plaintiffs, testified in support of the motion. In addition to summarizing preparation consisting of interviewing witnesses and submitting interrogatories and taking depositions, he testified as to efforts to obtain photographs of the motor crane which came into contact with the power lines and the concrete finishing machine with which Sherrill was working at the time he was killed and which finishing machine was connected at that time by hooks, cables, pulleys, etc. to the boom of the motor crane. He located the crane within a few days after he commenced his investigation but the concrete finishing machine had been moved elsewhere and thereafter was moved from job to job. It was November or December 1972, he testified, when he was finally able to obtain photographs thereof. In addition, Mr. Quinn testified that he had some trouble locating an expert to testify. Ultimately, he succeeded but then in the spring of 1972, he was informed by his expert that he had terminated his association with St. Louis University as a consulting electrical engineer and had entered the employment of Union Electric, the parent firm of defendant herein. This necessitated locating another expert.

Quinn testified that in December 1973 he suffered a coronary occlusion, together with a left lung embolus, causing him to be in the hospital for a week and thereafter at home under medication and under the doctor’s care. He testified that he did not actively return to practice until April 4, 1974. He also testified that he had had a personal problem in that his wife had notified him in December 1973 that she was obtaining a divorce. On cross-examination Mr. Quinn testified that during all of 1972 and 1973 he was actively engaged in the practice of law, handling during that time some “very, very rough and tumble litigation”.

Additional evidence on the motion consisted of an affidavit of Dr. Melvin L. Goldman, Mr. Quinn’s doctor, which was received without objection as representing what Dr. Goldman would testify to, if present. It recited that Mr. Quinn suffered his coronary insufficiency and left lung em-bolus on December 16, 1973, that he was hospitalized for one week, that Mr. Quinn thereafter remained under his regular care and observation and that the illness was of such nature and severity as to disable him from performing the duties of his profession from December 16, 1973, through March 25,1974. Thereafter he was partially restricted in his work activity, but was scheduled to return to full activity on or about May 15, 1974.

On May 10,1974, the trial court overruled plaintiffs’ motion to set aside the judgment of dismissal and this appeal followed.

Rule 67.02 authorizes a defendant to move for dismissal of a civil action against him on account of failure on the part of the plaintiff to prosecute said action. In addition, it is well settled that courts have inherent authority, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence. The rule is stated in Euge v. Lemay Bank & Trust Co., 386 S.W.2d 398, 399 (Mo.1965), as follows:

“The general rule is that courts have inherent power, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence, and that the action thereon will not be disturbed on appeal unless such discretion was abused. City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W.2d 65, 68[2]; Salle for Use and Benefit of Man-del v. Holland Furnace Co., Mo., 337 S.W.2d 87, 90[5]. * * * ”

That rule was reaffirmed in Esslinger v. Roach, 463 S.W.2d 861 (Mo.1971). See also City of Jefferson v. Capital City Oil Co., 286 S.W.2d 65 (Mo.App.1956); Guhman v. Grothe, 346 Mo. 427, 142 S.W.2d 1 (1940); 24 Am.Jur.2d, Dismissal, Discontinuance and Nonsuit, § 59 (1966); 27 C.J.S. Dismissal and Nonsuit § 65(1) (1959).

As noted in the quotation from Euge, the dismissal for failure to prosecute will not be disturbed on appeal unless the discretion of the trial court has been abused. Thus, the only question presented on this appeal is whether the trial court abused its discretion in dismissing for failure to prosecute. In resolving that question, the standard of review was succinctly stated in James v. Turilli, 473 S.W.2d 757, 763 (Mo.App.1971), as follows:

“Judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Anderson v. Robertson, Mo.App., 402 S.W.2d 589[3-4].”

In Anderson v. Robertson, the case cited and relied upon in the foregoing quotation from James v. Turilli, the court stated the rule thus, 402 S.W.2d at 593:

“Reverting now to the Harriman and Mullins cases, supra, we say that judicial discretion is abused then a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. It is, however, a principle deep within our law that on appeal from a trial court’s discretionary ruling it is presumed that the ruling is correct, and that the burden of showing abuse of that discretion is on the appellant. Stewart v. Small, 5 Mo. 525, l. c. 528; Funkhouser v. How, 18 Mo. 47, l. c. 49; and cases listed in 3 Mo.Dig., Appeal and Error, [key] 901. When appellate courts are called upon to apply this test, it is well to heed the words: ‘If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.’ Delno v. Market St. Ry. Co., C.C.A.Cal., 124 F.2d 965, 967. Bowers, The Judicial Discretion of Trial Courts, §§ 12 and 17, pp. 20 and 33.”

Applying the foregoing standard, did the trial court abuse its discretion in dismissing the case for failure to prosecute? We conclude that it did not. This case was filed on October 3,1969, and an answer was filed promptly. Plaintiffs were allowed ample time for discovery by interrogatory and deposition. These were completed by the end of December. Even so, plaintiffs did not try their case and on September 30, 1971 (2 years after the case was filed), the court placed the case on the inactive calendar. Evidently, it thereafter was transferred to a dismissal docket, because on May 31, 1972, plaintiffs sought removal from that docket and asked the court to put the case on the trial docket. The petition to remove from the dismissal docket recited that an expert witness had been obtained and that they were ready for trial. In his testimony in April 1974 on the motion to set aside the dismissal, Mr. Quinn testified that during the spring of 1972, his first expert went to work for Union Electric and became unavailable, but at the end of May 1972, he was telling the trial court that plaintiffs had an expert witness and were ready for trial. They made no complaint at that time about not having a photograph of the concrete finishing machine, although in April 1974, Mr. Quinn advanced as an excuse for delay the fact that a photograph of the concrete finishing machine was not obtained until November or December 1972. In any event there was no showing of any need for time to do anything further after December 1972 except to try the case.

The court took the case off the dismissal docket in 1972, but, despite the protestations of plaintiffs that they were ready for trial and wanted the case placed on the trial docket, plaintiffs still did not try their case. Finally, one year later (June 6, 1973), defendant filed a motion to dismiss for failure to prosecute. The record does not disclose what arguments were advanced by plaintiffs in response to that motion, but in any event, the trial court gave plaintiffs another reprieve and overruled the motion on June 29, 1973; thus giving plaintiffs another chance to try their case.

Still the ease was not tried by plaintiffs and on September 25, 1973, the court again ordered the case placed on the inactive docket. This was four years after the case had been filed.

Finally, on April 12, 1974, defendant, for the second time, filed a motion to dismiss. This was presented to the court on April 19, 1974. Mr. Quinn did not appear but sent someone from his office to represent him. No evidence was offered by plaintiffs to explain or justify their delay and the court ordered the case dismissed for failure to prosecute.

This record shows that the trial court was considerate of and lenient with plaintiffs and their counsel. When the case was placed on a dismissal docket 2½ years after the case had been filed, relief was granted after the court was informed by written memorandum filed by plaintiffs that discovery had been completed, that an expert witness had been obtained and that plaintiffs were “now ready for trial in the case”. A year passed without trial, but when defendant filed a motion to dismiss for failure to prosecute, the court, although the case was more than 3-½ years old, again granted relief by overruling that motion.

During all of this time, Mr. Quinn was actively trying cases. He continued to do so until his heart attack on December 16, 1973. Even so, in spite of the fact that the case was ready for trial and had been for some time, and in spite of the consideration and leniency shown, including rescue on two occasions from threatened dismissal for failure to prosecute, the case still was not tried. Under such circumstances, the trial court did not abuse its discretion when it dismissed for failure to prosecute in April 1974, 4½ years after it had been filed. Esslinger v. Roach, supra; Euge v. Lemay Bank & Trust Co., supra. Its ruling was not “clearly against the logic of the circumstances before the court” nor was it “so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration”. At the very least, it must be said that “reasonable men could differ as to the propriety of the action taken by the trial court”.

Courts must be able to control and move their dockets. It is well known that the volume of cases filed has become such that if courts do not dispose of cases with reasonable dispatch, the backlog will be such that many persons will not be able to have their cases heard within a reasonable time because of unnecessary and sometimes unreasonable and excessive delay in other cases. There are exceptional cases when delay is justified and when a court properly permits it, but there is nothing in this record which cried out for the court to have been more lenient than it was. No abuse of discretion has been shown.

Plaintiffs also complain that the dismissal was with prejudice instead of without prejudice. They say that defendant’s motion to dismiss did not request the court to dismiss the case with prejudice and that the court order should not have stated the dismissal was with prejudice. There is no merit in this contention. Under Rule 67.03, this dismissal would have been with prejudice even if the court’s order had not specifically so stated. This would have been true unless the order had stated specifically that it was without prejudice. Hence, the court gave defendant nothing more in the way of relief than it would have received by an order merely sustaining the motion as filed.

Judgment affirmed.

SEILER, C. J., and MORGAN, HOLMAN, HENLEY, and DONNELLY, JJ., concur.

BARDGETT, J., dissents.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tom E. BEAL, Petitioner-Appellant, v. INDUSTRIAL COMMISSION and Division of Employment Security, Respondents. ROY WILLEY, INC., Petitioner-Respondent, v. INDUSTRIAL COMMISSION and Division of Employment Security, Appellants.
    Nos. KCD 27006, KCD 27548.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Motion for Rehearing and/or Transfer to Supreme Court # KCD 27548 Denied Jan. 12, 1976.
    Application to Transfer Denied March 8, 1976.

      George T. O’Laughlin, Thomas M. Moore, and Miller & O’Laughlin, P. C., Kansas City, for appellant Tom E. Beal in No. 27006.
    Lloyd G. Hanley, Jefferson City, for respondent Industrial Commission in No. 27006.
    Terry C. Allen, Jefferson City, for respondent Div. of Employment Security in Nos. 27006 and 27548.
    Charles B. Fain, Jefferson City, for appellant Industrial Commission in No. 27548.
    Thomas J. Downey, Jefferson City, William W. Beckett, Columbia, for respondent Roy Willey, Inc., in No. 27548 and for ami-cus curiae Missouri Real Estate Assn, in No. 27006.
    Before WASSERSTROM, P. J., and DIXON and SHANGLER, JJ.
   PER CURIAM.

Appeal No. 27006 by Tom E. Beal from order affirming decision of the Industrial Commission of Missouri that he became, effective January 1, 1966, an employer subject to the Missouri Employment Security Law, combined (for decision and opinion) with appeal No. 27548 by the Industrial Commission of Missouri and the Division of Employment Security from order reversing and remanding, for proceedings not inconsistent with declarations of law made by the court, decision of the Commission that Roy Willey, Inc., had certain licensed real estate salesmen in “employment” subject to the Missouri Employment Security Law. See Chapter 288, RSMo 1969, Employment Security (the Act).

On February 2, 1968, the Division of Employment Security notified Tom E. Beal, a real estate broker operating under the name Florida Realty Company, that he was an employer subject to the provisions of the Missouri Employment Security Law for the years 1964, 1965, and 1966, and that his commission salesmen and solicitors were employees within the meaning of the Act. He sought redetermination by the Division and, after two hearings, the Division decided that he was an employer subject to the Act as of January 1, 1966. The decision was affirmed by the trial court. Appeal No. 27006 followed.

On May 5, 1972, the Division of Employment Security determined that commission salesmen for Roy Willey, Inc., a real estate brokerage corporation, were performing services in employment under the Act. The determination was appealed and an appeals referee, after hearing, affirmed the determination. The Industrial Commission of Missouri denied application for further review, thereby adopting the decision of the referee, which decision is the decision of the Industrial Commission for judicial review. Handley v. State, Division of Emp. Security, 387 S.W.2d 247, 248 (Mo.App.1965); § 288.200, RSMo. Upon review, the court found that Willey’s salesmen were not in employment within the meaning of the Act, and reversed and remanded the Commission’s decision. Appeal 27548 followed.

Section 288.210, RSMo 1969, governing judicial review of decisions of the Industrial Commission, provides:

“ * * * In any judicia] proceeding under this section, the findings of the commission as to the facts, if supported by competent and substantial evidence * * * shall be conclusive, and the jurisdiction of said [circuit] court shall be confined to questions of law.”

And, “It is the function of this court * * to determine whether the findings and decision of the Commission are authorized by law and are supported by competent and substantial evidence on the whole record, whether that tribunal could have reasonably made its findings and reached its result upon consideration of all the evidence before it, and whether the circuit court on review properly ruled the issue.” Handley v. State, Division of Emp. Security, supra, 387 S.W.2d l.c. 251[1], The court is not bound by the Commission’s findings on questions of law; and, in the interpretation of applicable statutes, the court’s duty is to determine legislative intent from the words used by applying their plain, natural meaning to promote the object of the Act. Bussman Mfg. Co. v. Industrial Commission, 335 S.W.2d 456, 459 — 460[1—3] (Mo.App.1960); Crawford v. Industrial Commission, 482 S.W.2d 739, 741[3, 4] (Mo.App.1972).

In 1966, Tom E. Beal maintained offices at 3706 Broadway, Kansas City, Missouri, and 111 South Meramec, Clayton, Missouri. He engaged clerical office workers, commission telephone solicitors, and commission real estate salesmen in his business. His solicitors worked in his offices and in their homes. They were paid at a rate of $3.00 for each appointment made and $5.00 for each sale resulting from an appointment. They were guaranteed $1.65 per hour. He did not have four or more individuals (excluding salesmen and brokers) in this employment for the required portion of a day in each of twenty different calendar weeks in 1964 and 1965 but, including office workers, solicitors and salesmen, four or more individuals performed services for him for some portion of a day in twenty or more calendar weeks in 1966 and thereafter. Thomas E. Beal had a determination from the United States Department of the Treasury that he was not required to withhold federal payroll tax or to withhold under the Federal Insurance Contributions Act with respect to his salesmen and solicitors. Thomas E. Beal and his salesmen all considered salesmen to be independent contractors. He did not provide office space for his salesmen; however, telephones were available for their use.

Roy Willey, Inc., had eleven licensed salesmen, eight of whom were actively engaged in selling real estate. Such salesmen were associated with Willey, Inc., by contract, the nature of which was to treat the salesmen as independent contractors. Wil-ley, Inc., maintained an office in Columbia, Missouri, in the conduct of its business, and made available desks and telephones for the convenience of its salesmen in addition to other desks and telephones for use of its nonsales persons and officers. Willey, Inc., also withheld no federal or state income and social security taxes and maintained no workmen’s compensation insurance.

The remainder of the pertinent facts are common to both Thomas E. Beal and Roy Willey, Inc.: Real estate salesmen were not required to spend any time in the office or to attend meetings; services were generally performed outside the office, sales were usually closed in homes and the contracts brought to the broker or broker’s office where the transactions were completed and salesmen received their commissions; salesmen were not reimbursed for expenses, nor were they furnished automobiles, drawing accounts, or expense accounts; salesmen were not required to make any certain number of calls, nor were sales quotas established; compensation was solely by commission on completed sales; salesmen had no specific hours and could engage in other occupations.

Pertinent sections of the Missouri Employment Security Law are:

288.032. “Employer” means:
“(1) Any employing unit which for some portion of a day, in each of twenty different calendar weeks, within a calendar year, had in employment, but not necessarily simultaneously, four or more individuals * *
288.034. “Employment” means:
“(1) Service, including service in interstate commerce, performed for wages or under any contract of hire, * * *.
“(2) The term ‘employment’ shall include an individual’s entire service, performed within or both within and without this state if
“(a) The service is localized in this state; * * *
⅝ ⅜ !⅜ * * *
“(5) Service performed by an individual for wages shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that
“(a) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
“(b) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all places of business of the enterprise for which such service is performed; and “(c) Such individual is customarily engaged in an independently established trade, occupation, profession or business.”
“288.036. ‘Wages’ means all remuneration payable or paid, for personal services including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash.”

Effective October 13, 1965, Subsection (5), Section 288.034 was amended to read:

“Irrespective of the usual tests for determining the existence of the independent contractor relationship as at common law, service performed by an individual for wages shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that [See (a), (b), (c) above].”

Also pertinent are certain sections from Chapter 339, RSMo. 1969, “Real Estate Agents and Brokers”:

339.010. “1. A ‘real estate broker’ is any person, copartnership, association or corporation, foreign or domestic, who advertises, claims to be or holds himself out to the public as a real estate broker or dealer and who for a compensation or valuable consideration, as whole or partial vocation, sells or offers for sale, buys or offers to buy, exchanges or offers to exchange the real estate of others; or who leases or offers to lease, rents or offers for rent the real estate of others; or who loans money for others or offers to negotiate a loan secured or to be secured by a deed of trust or mortgage on real property.
“2. A ‘real estate salesman,’ within the meaning of this chapter, is any person, who for a compensation, or valuable consideration becomes associated, either directly or indirectly with a real estate broker to do any of the things above mentioned, as a whole or partial vocation.”
339.020. “It shall be unlawful for any person, copartnership, association or corporation, foreign or domestic, to act as a real estate broker or real estate salesman, or to advertise or assume to act as such without a license first procured from the Missouri real estate commission.”
339.150. “No real estate broker shall pay any part of a fee, commission or other compensation received by the broker to any person for any service rendered by such person to the broker in buying, selling, exchanging, leasing, renting or negotiating a loan upon any real estate, unless such a person is a licensed real estate salesman regularly associated with such broker, or a licensed real estate broker, or a person regularly engaged in the real estate brokerage business outside of the state of Missouri.”

Appellant Beal (No. 27006) charges the court erred in affirming the decision of the Industrial Commission, asserting and arguing: (A) that under the controlling case law, A. J. Meyer & Co. v. Unemployment Comp. Commission, 348 Mo. 147, 152 S.W.2d 184 (1941), the evidence shows that his real estate salesmen and solicitors were not in employment subject to the Missouri Employment Security Law because of a lack of a necessary employer-employee relationship, due to a lack of control exercised by him over his salesmen; (B) that the 1965 amendment to Section 288.034(5), supra, “strictly construed,” does not change the applicability of prior decisions, notably A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, Handley v. State, Division of Emp. Security, supra and National School of Aero. v. Division of Employment Sec., 226 S.W.2d 93 (Mo.App.1950), to the effect that persons similar to his real estate salesmen and solicitors are not within the meaning of the Act; and (C) that the findings of the Commission are contrary to the evidence in that the Commission used a test of “economic dependency” to determine that his salesmen did not satisfy the requirement for exclusion from the Act in Section 288.-034(5)(c), and in that “there is absolutely no substantial and competent evidence [of control] to support finding the solicitors * * within the coverage of the Act.”

Respondents Industrial Commission and Division of Employment Security (No. 27006) take the position (I and II) that the court did not err in affirming the decision of the Commission because it was supported by the substantial and competent evidence on the whole record; (III) that the Missouri Real Estate Law, Chapter 339 RSMo.1969, is properly for consideration in resolution of the issues; and (IV) that the Act, by its provisions and under case law, Section 288.-020.2, RSMo., Donnelly Garment Co. v. Keitel, 354 Mo. 1138, 193 S.W.2d 577, 579 (1946), must be liberally construed to accomplish its purpose of promoting employment security and, by such construction, ascertain the intent of the legislature from the plain and rational meaning of the language used.

In reply, appellant Beal again charges the court erred (I) in affirming the decision of the Industrial Commission now asserting and arguing (A) that the evidence “requires the conclusion” that the relationship between his salesmen and him was that of joint venturers, as in H. J. Bernard Realty Co. v. Director of Employment Security, 104 R.I. 651, 248 A.2d 245 (1968), and therefore was not subject to the Act; (B) that the 1965 amendment to Section 288.034(5), quoted above, did not create a new “economic dependence” test for determining whether an individual is covered by the Act; (C) that Chapter 339 RSMo. had no application to questions of coverage by the Missouri Employment Security Law. Appellant Beal contends also in reply (II) that specific exclusion of commission insurance salesmen from coverage under the Act does not require inclusion of commission real estate salesmen “by way of negative implication.”

Appellant Beal is joined by amicus curiae Missouri Real Estate Association (now Missouri Association of Realtors). Counsel for amicus curiae is also counsel for respondent Roy Willey, Inc., and the position taken is the same in substance in both instances.

Appellants Industrial Commission and Division of Employment Security (No. 27548) take a position, the substance of which is the same as their position as respondents in No. 27006. They contend (I) that the court erred in reversing the decision of the Industrial Commission because the Commission’s findings of fact and conclusions of law were supported by substantial and competent evidence on the whole record and were, therefore, conclusive; and, accordingly, the decision, that Willey, Inc., had certain licensed real estate salesmen “in employment,” and that all compensation paid to them by Wil-ley, Inc., constituted “wages” under the law, was reasonable and proper. They charge also (II) that certain of the court’s conclusions of law were erroneous because: (1) the intent of the legislature in its 1965 amendment to Section 288.034(5) was to vitiate A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, and Handley v. State, Division of Emp. Security, supra, which predate the amendment; (2) real estate commission salesmen, such as those associated with Willey, Inc., do not meet the exclusionary test of Section 288.-034(5)(c), in that they are not customarily engaged in an independently established trade, occupation, profession or business, and are, therefore, in covered employment performing services for Willey, Inc., for wages; (3) by the maxim “expressio unius est exclusio alterius” such salesmen come under the Act; (4) economic dependence of a commission real estate salesman on the broker with whom he is associated is properly considered in determining the relationship between salesman and broker and whether the salesman is customarily engaged in an independently established trade, occupation, profession or business under Section 288.034(5)(3); (5) appellants’ present construction of Section 288.034(5), that commission real estate salesmen of Willey, Inc., are “in employment” and subject to the Act, is not unlawful because the 1965 amendment to Section 288.034(5) mandated such construction as opposed to the construction accorded by the courts and the Division prior to the amendment; (6) commission real estate salesmen such as those associated with Willey, .Inc., perform services for wages for Willey, Inc.; (7) it is not contrary to public policy and the purpose and intent of Chapter 288 to tax Willey, Inc., on wages paid to its commission real estate salesmen in that such persons may qualify for benefits; (8) even though taxing provisions must be strictly construed, the court must give proper consideration to the legislative intent reflected in the 1965 amendment to Section 288.034(5).

Respondent Roy Willey, Inc., (No. 27548) takes the position (I) that the circuit court’s reversal of the Commission’s decision is consistent with the case law of A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, and Handley v. State, Division of Emp. Security, supra, that independent contractors, including commission real estate salesmen, are not “in employment” under Chapter 288, RSMo.1969; that the circuit court was correct: (II) in determining that the Real Estate Law, Chapter 339, RSMo. has as its primary purpose, protection of the general public in real estate transactions and does not require real estate brokers and their salesmen to be in an employer-employee relationship, (III) in determining that the Commission’s decision unlawfully found Willey’s real estate salesmen outside the test of Section 288.034(5)(c), on the ground that real estate salesmen are economically dependent on the broker with whom they are associated, (IV) in finding that the Commission’s decision was contrary to the existing case law of A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, (V) in finding that the Commission’s decision was unlawful in determining that real estate salesmen are “in employment” under the Act through application of the maxim expressio unius est exclusio alterius, (VI) in finding that the Commission’s decision was contrary to public policy and the intent of Chapter 288, RSMo., because real estate salesmen cannot qualify for unemployment benefits, (VII) in finding the Commission’s decision was unlawful in its conclusion that Section 288.034(5)(c), for purposes of exclusion of a real estate salesman, requires him to have an independently established trade, occupation, profession, or business with no affiliation or relationship to others, (VIII) in finding the Commission’s decision unreasonable and unlawful because a finding that Willey’s real estate salesmen are not excluded from the Act under Section 288.-034(5), is not supported by competent and substantial evidence, (IX) in refusing to defer to the Commission with respect to Chapter 339 because questions thereunder raised “a judicial issue,” and (X) in that the Act is a taxing statute and, when strictly construed against the taxing authority, it does not appear that respondent Willey, Inc., is subject to it.

The relative positions, contentions, and assertions of the parties have been stated in detail to demonstrate that the questions for resolution are common to both appeals.

There is no question that appellant Beal and respondent Willey, Inc., are each an “employer” within the definition of Section 288.032, supra, if their commission real estate salesmen are “in employment” under Section 288.034, supra, because the evidence shows at least four such individuals were associated with each of them for the requisite time.

Nor is there any question of inclusion of such salesmen into “employment” under the Act by way of Section 288.034(5)(a) and (b), because the Commission takes the position that their inclusion is solely by way of Section 288.034(5)(c), in that there is nothing to show that such individuals, in the performance of services for appellant Beal and respondent Willey, Inc., were customarily engaged in an independently established trade, occupation, profession, or business.

The principal question is whether commission real estate salesmen associated with appellant Beal and respondent Willey, Inc., are “in employment” within the intent and purpose of the Missouri Employment Security Law, Chapter 288, RSMo.

There is no question that prior to its amendment, effective October 13,1965, Section 288.034(5) had been construed to mean that commission real estate salesmen were not “in employment” of real estate brokers with whom they were associated; that “employee” and “employer” were used in the Act in their ordinary and usual sense; and the test of Section 288.034(5)(a)(b)(c), commonly called the ABC test, was the usual and proper test for determining the existence of an independent contractor relationship; that the definition of “employment” was no broader than the common-law concept of master and servant; that in drafting the Act, the legislature intended the common-law test of employment relationship to be also the test of whether an individual is “in employment” as defined by the statute or has the status of an independent contractor. A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, 152 S.W.2d l. c. 192; Handley v. State, Division of Emp. Security, supra, 387 S.W.2d l. c. 252.

Appellant Beal and respondent Willey, Inc., argue that the language added by the 1965 amendment did not change the applicability to or impair the control of the above cases on the questions now presented. The Commission argues that legislative intent of the 1965 amendment was to vitiate the prior decisions and to broaden unemployment compensation coverage under the Act to the extent that in these two situations commission real estate salesmen would be covered by the Act.

Since these cases arose after the 1965 amendment, it is necessary to determine the intent and purpose of the legislature in amending Section 288.034(5), and to be guided accordingly in the resolution of the stated question.

Among the established and recognized rules for ascertaining legislative intent are: Courts must consider the object sought to be obtained and the evil sought to be remedied, must assume that the legislative purpose is a reasonable one and that laws are presumed to have been enacted for the benefit of the community, that the intention was to enact an effective law and to make some change in the existing law. In re Tompkins’ Estate, 341 S.W.2d 866, 872[8] (Mo.1960). It is also recognized that a change in a statute is ordinarily intended to have some effect, and that the legislature will not be charged with having done a meaningless act. State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207, 212[2] (Mo.1973). It is also appropriate to consider the history of the statute, the presumption of the legislature’s knowledge of the law to be amended, the surrounding circumstances, and the ends to be accomplished. Protection Mutual Ins. Co. v. Kansas City, 504 S.W.2d 127, 130[3] (Mo.1974).

Accordingly, Section 288.034(5), as amended in 1965, is to be construed with the idea that the legislature intended to accomplish something by its additional language and was aware of the construction accorded the section as it read prior to its amendment. Wigand v. State Dept. of Public Health and Welfare, 454 S.W.2d 951, 956[11] (Mo.App.1970). Thus, “Since the legislature is presumed to know the prior construction of the original act an amendment substituting [or adding] a new phrase for one previously construed generally indicates that a different interpretation be given the new phrase as the old phrase as interpreted no longer expresses the legislative will.” Salitan v. Carter, Ealey and Dinwiddie, 332 S.W.2d 11, 14 (Mo.App.1960), citing and quoting 1 Sutherland, Statutory Construction No. 1930 (3rd ed.) 1943.

A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, 152 S.W.2d l. c. 191, recognized, as suggested by both appellant Beal and respondent Willey, Inc., that the Act includes taxing provisions and such provisions are to be strictly construed against the taxing authority. However, it has later been recognized that the general purpose of the Employment Security Law is to provide for the compulsory setting aside of unemployment reserves for the benefit of persons unemployed through no fault of their own, and that the Act is to be liberally construed. O’Dell v. Division of Employment Security, 376 S.W.2d 137, 141-142[2, 3] (Mo.1964). Thus, it appears that the taxing provisions of the Act are incidental to its paramount and remedial purpose of relief, and a liberal construction of “employer” and “employment” is warranted to secure that purpose.

Under the above principles of statutory construction, and in view of the construction of the prior statute in A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, the Commission argues that the 1965 amendment of Section 288.034(5) shows that the legislature intended to include in its definition of “employment” the service of certain individuals who were independent contractors at common law, and to exclude only those individuals whose services conformed to the literal wording of Section 288.034(5)(a)(b)(c), thus vitiating, to that extent, A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, and Handley v. State, Division of Emp. Security, supra.

Appellant Beal and respondent Willey, Inc., contend that the 1965 amendment did not change the requirement that the individual’s service must come within the common-law master and servant relationship, and that until the legislature defines “employee” in the Act, the common-law test prevails. They assert also that it is unnecessary to show “to the satisfaction of the Division” that the three tests of Section 288.034(5)(a)(b)(c) are fulfilled unless the Commission first determines that a real estate salesman is performing services for wages for a real estate broker.

The argument of the Commission prevails, and the theory of appellant Beal and respondent Willey, Inc., fails upon consideration of the plain meaning of the words of the provision after amendment. Section 288.034(5) states that services performed by an individual for wages shall be deemed “employment” unless it is shown to the satisfaction of the Commission that each of the tests, Section 288.034(5)(a)(b)(c), are met, irrespective of the usual tests for determining the existence of the independent contractor relationship at common law. Such plain language demonstrates that the legislature no longer favored the common-law test recognized in A. J. Meyer & Co. v. Unemployment Comp. Commission, supra. To say otherwise would be to charge the legislature with a meaningless act.

Support for this construction of Section 288.034(5), as amended 1965, arises also from the history of the Act subsequent to its amendment. Judicial notice may be taken that the legislature has attempted to enact new legislation and failed, or has enacted new legislation. Osterloh’s Estate v. Carpenter, 337 S.W.2d 942, 946[6] (Mo.1960). In this respect, legislation was proposed in 1973 (and failed to pass) which would specifically include real estate brokers and salesmen in the exclusionary provisions of Section 288.034; and in 1975 the legislature repealed Section 288.034 and enacted in its place a new Section 288.034 including Section 288.034.12, which provides:

“The term ‘employment’ shall not include: * * * (12) Service performed by an individual for a person as an insurance agent or as an insurance solicitor, or as a real estate salesman, or as a real estate broker, if all such service performed by such individual for such person is performed for remuneration solely by way of commissions.”

Failure of the 1973 bill to pass indicates the legislature did not then intend to change Section 288.034 as amended 1965 to exclude real estate salesmen from the Act; and unless real estate salesmen were included under the Act by the 1965 amendment, there would have been no purpose in enacting the exclusionary provision, Section 288.-034.12(12), in 1975.

With respect to questions involving the maxim expressio imius est exclusio alterius (the express mention of one thing causes the exclusion of the other), the Commission, in its suggested application of the maxim, refers to Section 288.034(6), which provided at the time this controversy arose:

“The term ‘employment’ shall not include: * * * (7) Service performed by an individual for a person as an insurance agent or as an insurance solicitor, if all such service performed by such individual for such person is performed for remuneration solely by way of commissions* * *.”

The Commission argues that such express exclusion of commission insurance agents and solicitors from “employment” demonstrates the continued inclusion of commission real estate salesmen.

Appellant Beal and respondent Willey, Inc., assert that the maxim does not so apply. They contend that the legislative intent is shown by a 1972 amendment to Section 288.034, which provided:

“(6) The term ‘employment’ shall include service performed for wages as an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or drycleaning services, for his principal; or as a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations, provided * * *.”

Their argument is that this amendment reflects the intention that independent contractors should not be deemed “in employment” unless placed there by specific legislative action.

The maxim is simply a product of logic and common sense and an aid to construction. It expresses the learning of common experience that generally when people say one thing they do not mean another. 2A Sands, Statutes and Statutory Construction, § 47.74 (4th ed. 1973, revising 3rd ed. of Sutherland, Statutory Construction). Consideration of the two foregoing sections together shows that commission real estate salesmen parallel commission insurance agents and solicitors as mentioned in Section 288.034(6)(7), as originally enacted, rather than those relationships mentioned in the 1972 amendment to Section 288.-034(6). Consequently, the logic of the maxim is best applied in this case to Section 288.034(6)(7), in effect at the time this controversy arose, to state that the express exemption of commission insurance agents and solicitors from its definition of “employment” shows that the legislature did not intend to exempt commission real estate salesmen. The relationships included in “employment” in the 1972 amendment to the section are not similar to commission insurance agents and solicitors or to commission real estate salesmen. “The maxim * * * is applicable only where in the natural association of ideas the contrast between a specific subject matter which is expressed and one which is not mentioned leads to an inference that the latter was not intended to be included within the statute.” 82 C.J.S. Statutes § 333, p. 670. See also, Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713[1] (Mo.1965); Poletti v. Estate of Poletti, 510 S.W.2d 850, 852 (Mo.App.1974).

This conclusion is also supported by noting that an express exclusion of commission real estate salesmen from the definition of “employment” could have been accomplished simply by adding “or as a real estate salesman, or as a real estate broker” following the exclusion of “Service performed by an individual for a person as an insurance agent or as an insurance solicitor” in Section 288.034(6)(7) as it existed during this controversy, which is exactly what the legislature did by the 1975 enactment of Section 288.034.12(12).

Equally as important as the principal question and necessary to its resolution is whether commission real estate salesmen associated with real estate brokers Beal and Willey, Inc., were “customarily engaged in an independently established trade, occupation, profession or business” so as to exempt them under Section 288.034(5)(c) from the definition of “employment” of Section 288.-034. The Commission determined that such commission real estate salesmen were performing services for “wages” because they were economically dependent upon a broker and could not by law operate independently of a broker, and thus failed to satisfy the test of Section 288.034(5)(c) for exemption. Appellant Beal and respondent Willey, Inc., contend that such findings are unlawful, arguing that economic dependence is not a standard for determination of the employer-employee relationship, and that the Missouri Real Estate Law, Chapter 339, RSMo., has nothing to do with the determination.

As previously indicated, the Commission does not contend that the commission real estate salesmen associated with real estate brokers Beal and Willey, Inc., do not meet conditions (a) and (b) of the so-called ABC test of Section 288.034(5)(a)(b)(c), but does contend that such salesmen are not shown to be engaged in an independently established trade, occupation, or business so as to exempt them from the Act.

Tests similar to that of Section 288.-034(5)(c) have produced differing interpretations in other jurisdictions. For example, in Rhode Island the relationship between real estate salesman and broker has been characterized as a joint venture with neither side obligated to the other, and the remuneration is paid by a third party. In such case, real estate salesmen were held not to be in employment performing services for wages. H. J. Bernard Realty Co. v. Director of Employment Security, supra. In Tennessee, real estate salesmen were held not to be performing services for wages where their commissions were paid by parties to the sale and not by the broker. Guaranty Mortgage Co. v. Bryant, 179 Tenn. 579, 168 S.W.2d 182 (1943). However, in Oregon and Wyoming, real estate salesmen have been held to have performed services for a broker for remuneration so as to subject the broker to the unemployment compensation law. Rahoutis v. Unemployment Comp. Commission, 171 Or. 93, 136 P.2d 426 (1943). See Ben Realty Co. v. Employment Security Commission, 416 P.2d 220 (Wyo.1966).

The leading cases in Missouri, principally A. J. Meyer & Go. v. Unemployment Comp. Commission, supra, in their characterization of the relationship which a real estate salesman bore to his broker, that of independent contractor, did not, as previously demonstrated, deal with the issue now presented under Section 288.034(5)(c) as amended in 1965.

In Illinois, “[0]ne who is engaged in an independent enterprise is an individual who has a proprietary interest in such business to the extent that he can operate same without hindrance from any individual whatsoever and whose business also is free from control.” Murphy v. Daumit, 387 Ill. 406, 56 N.E.2d 800, 805[2] (1944). In Maine, satisfaction of the test requires “a proprietary interest in an occupation or business to the extent that he could operate without hindrance from any source * * *.” Hasco Mfg. Co. v. Maine Emp. Security Commission, 158 Me. 413, 185 A.2d 442, 445[6] (1962).

The Commission argues that commission real estate salesmen are, by virtue of Sections 339.010 and 339.150, supra, economically dependent upon their brokers and thus are not customarily engaged in an independently established trade, occupation, profession, or business.

Appellant Beal and respondent Willey, Inc., argue that the sole purpose of Chapter 339, RSMo., is the protection of the general public in real estate transactions. See Gilbert v. Edwards, 276 S.W.2d 611, 616 (Mo. App.1955); In re Wilson Sullivan Co., 289 N.Y. 110, 44 N.E.2d 387 (1942). And, citing Louis A. Demute, Inc. v. Michigan Employment Sec. Commission, 339 Mich. 713, 64 N.W.2d 545 (1954), and California Employment Stabilization Comm. v. Morris, 29 Cal.2d 419, 172 P.2d 497 (Cal. banc 1946), they contend that the real estate law should not be read into the employment security law to find an employer-employee relationship between real estate brokers and salesmen.

It is not necessary to read the Missouri Real Estate Law, Chapter 339, RSMo., into the Missouri Employment Security Law, Chapter 288, RSMo., in order to ascertain the relationship between a commission real estate salesman and the broker with whom he may be associated. Nor is the court required to disregard Chapter 339, RSMo., as it has been construed, in a determination of that relationship. Louis A. Demute, Inc. v. Michigan Employment Sec. Commission, supra. In this respect, “The Legislature obviously intended that real estate salesmen must be associated, either directly or indirectly, with a broker and cannot receive a commission or other valuable consideration from any person other than a licensed broker. * * * the Legislature intended that brokers be prohibited from paying any part of their commission to any person not a licensed real estate broker or salesman and to a salesman who is not directly or indirectly associated with a broker.” Gilbert v. Edwards, supra, 276 S.W.2d l. c. 618—619[10]. Thus, a commission real estate salesman may be economically or financially and otherwise independent of a real estate broker by absence of “controls,” A. J. Meyer & Co. v. Industrial Comp. Commission, supra, and by virtue of his successful conduct of some other independently established trade, occupation, profession, or business, e. g., carpentry, farming, teaching, or banking; yet, should he wish also to perform services and enjoy remuneration for them as a commission real estate salesman, he is not independent because he can do so only through association with a real estate broker or brokers.

Consequently, commission real estate salesmen associated with appellant Beal and respondent Willey, Inc., were “in employment” within the intent and purpose of the Missouri Employment Security Law, as found by the Commission, until they were exempted from the Act by the 1975 amendment, Section 288.034.12(12).

This determination is not changed by United States Treasury Department rulings that such salesmen were not employees under the Federal Social Security Act because such rulings are not binding on the court in a determination whether a salesman is an employee within the meaning of the Missouri Employment Security Law. A. J. Meyer & Co. v. Unemployment Comp. Commission, supra; National School of Aero. v. Division of Employment Sec., supra, 226 S.W.2d l. c. 97[6].

There is no evidence to support arguments advanced by appellant Beal and respondent Willey, Inc., that inclusion of their real estate salesmen in the coverage of the Act is against public policy on the ground they cannot qualify for the benefits of the Act. Accordingly, such arguments are dismissed as speculation.

Appellant Beal also charges that his telephone solicitors were not “in employment” under the Act.

Two types of telephone solicitors were shown to have performed services for Mr. Beal. One type worked in his office at an hourly rate of pay. Solicitors of this type have previously been determined to be employees under the Act. Handley v. State, Division of Emp. Security, supra. The other type worked in their homes and were paid by appointments secured. These, together with the office solicitors, are included under the Act by virtue of the discussion, supra, of expressio unius est exclu-sio alterius. Under Section 288.034.12(12) their counterparts, insurance solicitors, are specifically excluded from coverage by the Act, and, by omission of real estate solicitors from the exclusionary provision, the logic of the maxim is sufficient to support the determination that real estate solicitors are included.

In accordance with the foregoing, the judgment in Beal v. Industrial Commission (No. 27006) is affirmed; the judgment in Willey, Inc. v. Industrial Commission (No. 27548) is reversed with directions that the circuit court affirm the decision of the Industrial Commission.

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Glen HARKINS, Defendant-Appellant.
    No. 35934.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 20, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    James W. Whitney, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Richard Glen Harkins was convicted of murder in the second degree and sentenced to life imprisonment. His sole point on appeal is that “[t]he trial court erred in failing to instruct the jury on the issue of self-defense because there was substantial evidence in support thereof.”

On a public street in the City of St. Louis at about 2:45 a. m. on June 16,1972 Michael Short was shot and killed by a shotgun blast. Returning home after a work shift Michael parked on the north side of the street, across from his house, and walked to the south curb. There he was confronted by appellant, who had a shotgun in his hand. Appellant had borrowed the shotgun from a friend the day before and had driven to Michael’s house where, for several hours, he visited with Michael’s wife Dorothy. Appellant wanted Dorothy to leave Michael and live with him. She refused unless she had a divorce. On previous occasions Dorothy had told appellant that she would not leave Michael until he was eliminated or done away with. Knowing that Michael would return from work shortly, appellant retrieved the shotgun from his car, returned to the house and in Dorothy’s presence put together and loaded the weapon.

Appellant testified as follows: He wanted to scare Michael with the gun. He did not intend to kill him. For from 5 to 15 minutes appellant sat on the front porch, lying in wait with the loaded shotgun. Michael arrived in his car and parked it. Before Michael crossed the street appellant pulled the hammer back on the shotgun. Michael had no weapon “or anything” in his possession. Appellant held the shotgun with his hand off the trigger and around the stock and the forearm of the barrel. Appellant told Michael he wanted to talk to him about Dorothy; that she wanted a divorce and wanted to leave with appellant. Michael stood there for a second, muttered something unintelligible, then suddenly lunged forward, swung, kicked, hit appellant on the chin, knocked him down, and knocked the shotgun out of his hand. The shotgun fell onto the ground. Michael had appellant down on the ground and was on top of appellant, hitting him in the head and chest. During this fight appellant was striking Michael. All of a sudden Michael noticed the shotgun, which was lying in the grass, whereupon Michael got up off appellant, grabbed the shotgun by the barrel and started to turn it around on appellant to get the shotgun in position to fire. Appellant, by that time up off the ground and standing in front of Michael, kicked Michael in the chest. Michael fell down. As Michael went down he let go of the shotgun, or threw it, and when the butt hit the ground or pavement it went off and shot Michael. At no time, either in court or during the making of two videotaped statements, did appellant ever state or claim that he intentionally shot Michael.

The State’s theory was that appellant lay in wait for Michael, and when Michael approached him appellant pointed the shotgun at Michael, pulled the trigger and killed Michael in cold blood, without any struggle. The State introduced medical evidence that the shot entered the forehead of Michael “straight on” — his head perpendicular to the muzzle of the weapon — deflecting neither upward or downward — a direct shot into the forehead. Appellant is 5 feet 9 inches in height. Michael was 5 feet 8 inches tall. There were no powder burns on Michael’s face or body. To get powder burns the person struck must be within 15-18 inches of the end of the shotgun barrel; at two feet there would be no powder burns if a shot were fired. A detective of the police firearms identification section testified that the shotgun had a built-in facility to prevent accidental discharge; that the hammer will not travel far enough to engage the firing pin unless the trigger is pulled, and that it takes 7 pounds pressure on the trigger to fire the weapon.

There were no third-party witnesses to the events leading up to this homicide.

Appellant’s evidence shows that the shooting resulted from an accidental discharge of the shotgun as it fell from Michael’s hand to the pavement. Appellant did not testify that the shotgun was discharged by reason of his intentional act. At no time at or before trial did appellant claim he shot Michael intentionally. The only defense finding support in the evidence (that of excusable homicide by accident) was instructed upon. No self-defense instruction was given. Under the evidence the court did not err in failing to give a self-defense instruction.

“The defenses of self-defense and accident are inconsistent, and the ‘defendant alone may not provide the basis for submitting such inconsistent defenses to the jury.’ State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973). If the [shot was] fired in self-defense, the firing resulted from the voluntary act of appellant; if the [shot was] accidental the act was involuntary. State v. Peal, 463 S.W.2d 840 (Mo.1971). Under certain limited circumstances a defendant may be entitled to both submissions. ‘For example, if a defendant by his own testimony provides the basis for an accident instruction, it must be given; but if to the contrary, testimony of others shows defendant acted in self-defense, he also is entitled to a self-defense instruction.’ State v. Peal, supra.State v. Walker, 525 S.W.2d 826, 828[1] (Mo.App.1975). Other cases holding that instructions on both self-defense and accident must be given when evidence supporting the inconsistent defenses is offered by the State or by third party witnesses for the defendant include State v. Brown, 502 S.W.2d 295, 298 (Mo.1973), cert. den. 416 U.S. 973, 94 S.Ct. 1999, 40 L.Ed.2d 562 (1974); State v. Randolph, supra; State v. Baker, 277 S.W.2d 627, 630 (Mo.1955), and State v. Wright, 352 Mo. 66, 175 S.W.2d 866, 871 (1943). There was no evidence from any source supporting the inconsistent defenses of accident and self-defense. The State did not offer evidence that appellant fired the shotgun in self-defense; the State’s theory was that of cold-blooded murder without provocation. Appellant did not testify that he shot Michael in self-defense. No other person testified to facts showing that appellant fired the shotgun in self-defense. Accordingly, appellant was not entitled to a self-defense instruction.

Judgment affirmed.

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


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James William GOFORTH, Defendant-Appellant.
    No. 35738.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 24, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.

      Brunson Hollingsworth, Hollingsworth & Williams, Robert M. Sears, Hillsboro, for defendant-appellant.

      John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Hugh Roberts, Pros. Atty., Farmington, Charles A. Weber, Pros. Atty., Ste. Genevieve, for plaintiff-respondent.
   STEWART, Judge.

James William Goforth, defendant, was found guilty of murder in the second degree. The jury was unable to agree on punishment. The court sentenced defendant to thirty years imprisonment. We affirm.

Defendant complains of the trial court’s failure to sustain defendant’s motion for judgment of acquittal at the close of the State’s case and also its failure to sustain the motion for acquittal at the close of defendant’s case. Defendant argues that the State did not establish the corpus delicti and the criminal agency. The other issues urged by defendant are concerned with sentencing procedure.

Any claim of error with respect to the motion for judgment of acquittal at the close of the State’s case was waived when defendant chose not to stand on his motion and offered evidence in his own behalf after the motion was denied. State v. Turnbough, 497 S.W.2d 856, 858[1] (Mo.App.1973).

Defendant has preserved for our review the question of whether there was sufficient substantial evidence to warrant the submission of the case to a jury. In making this determination the facts in evidence and the favorable inferences reasonably drawn therefrom must be considered in the light most favorable to the State and all evidence and inferences to the contrary must be disregarded. We do not consider defendant’s evidence except where it is favorable to the finding of the jury. State v. Johnson, 447 S.W.2d 285, 287[2] (Mo.1969).

Having these principles in mind the jury could have found that Ron Hulvey, Dale Bader and defendant were riding around Festus, Missouri, in Hulvey’s black 1963 Cadillac on the afternoon of October 27, 1972. Since defendant had said that he had to see someone in Farmington, Missouri, the three drove to that city. After arriving in Farmington they stopped at a fast food stand where defendant sought information concerning three individuals. He received directions to the home of one of the persons about whom he had inquired, John Hunt. At that time defendant was carrying a pistol in his hip pocket. After leaving the food stand, the three stopped near the Canary Bar and defendant went inside alone. At that time defendant was carrying the gun in his belt on the left side. He went up to the bar and ordered a beer. Frank Som-ogyi, the bartender, asked to see defendant’s identification. While Somogyi was examining defendant’s cards Homer McClaskey, who was described as “always happy-go-lucky”, approached Somogyi and told him that he should “check him good, I’m with the F.B.I.”. He was not with the F.B.I. Somogyi told McClaskey to go sit down and he returned to his seat. There was no trouble between McClaskey and defendant inside the bar.

Defendant was served a beer and began drinking it. A few minutes after returning to his seat, McClaskey got up and left the bar. Defendant, who had not finished his beer, left a few seconds after McClaskey. McClaskey’s car was parked across the street, at about a 45° angle from the tavern. He had gone about forty feet into the street in the direction of his car when he suddenly turned and came back to defendant who was standing just outside the door of the bar. The jury could have inferred that McClaskey’s return was in response to a request on the part of the defendant. They stood 1½ to 2 feet apart. After “just talking” for a little more than a minute, during which time neither man touched the other, defendant shot McClaskey. No one had heard the conversation. McClaskey died a short time later as a result of the gun shot wound.

After the shooting defendant ran to Hul-vey’s car, pointed a gun at Hulvey, who was driving, and told him to get out of there. He also told Hulvey and Bader that if they testified against him he would “get” them. Before the car was stopped by the police, defendant threw the pistol out the window of the moving vehicle.

Murder in the second degree is the willful, premeditated killing of a human being with malice aforethought but without deliberation. § 559.020. The requisite malice may be presumed from an intentional killing. “And, an assault with a deadly weapon used in such a way as will naturally, probably or reasonably produce death or jeopardize life, gives rise to the presumption of intent to kill.” State v. Sherrill, 496 S.W.2d 321, 324 (Mo.App.1973). Evidence of acts, conduct, and declarations of the accused, including flight and attempts to conceal the crime, while not sufficient in themselves, are considerations tending to show a consciousness of guilt, and may be considered by the triers of the facts. State v. Simmons, 494 S.W.2d 302 (Mo.1973).

This case does not present a situation where the evidence “tells only one story” indicating the innocence of the accused. State v. Rash, 359 Mo. 215, 221 S.W.2d 124, 126 (1949). There was conflicting testimony as to whether McClaskey gave Goforth cause to fear injury or death. Defendant did testify that he was being choked by the deceased. Some of the witnesses called on behalf of the State testified that the two were “kind a fighting” outside the bar, others said they were not. The State vouches for the credibility of , its witnesses and is bound by uncontradicted evidence it introduces even if adverse. However, it is not precluded from producing evidence in contradiction of adverse evidence which comes into its case. State v. Key, 411 S.W.2d 100 (Mo.1967). We do not undertake to decide which of the two versions of the encounter between the defendant and the deceased is of greater probative force. That determination is within the province of the jury. We hold that in these circumstances viewing the evidence in the light most favorable to the State there was substantial evidence to warrant the jury in finding the defendant guilty of second degree murder.

Defendant’s next three contentions involve the sentencing procedure. He argues that he was not provided with the statutory safeguards of § 556.280; that he had a right to a presentence investigation; and that he was sentenced on the basis of undisclosed information. The factual setting for these contentions follows.

At the commencement of the trial the prosecuting attorney offered an amended information charging defendant as a second offender. Defendant’s objection to the amended information was sustained and thus no hearing was held with respect to any prior felony as required by § 556.280.

The jury returned a verdict of guilty of second degree murder but were unable to agree upon the punishment, as a result the trial court assessed punishment.

Considering that he might be called upon to sentence defendant the judge spoke with George Shaw, District Supervisor of the Missouri Probation and Parole Service and Tom Eck, a probation officer. Mr. Eck had worked on another case involving defendant and was familiar with his background. When Mr. Eck entertained some uncertainty during the discussion, he called his office in order to obtain accurate information from his files. The court received a recommendation from Mr. Eck and also a recommendation from Mr. Shaw. Before the jury returned the court had tentatively arrived at a sentence. After the jury returned the verdict of guilty and announced that they were unable to assess the punishment the jury was discharged. The court then had a brief discussion with the foreman of the jury in which he has asked the range of punishment which had been discussed and was informed that it was from ten years to fifty years. Neither the State nor defendant were represented at these discussions. The judge, based upon these discussions, his own independent judgment of the facts in the case, and his knowledge of the background of the defendant, independently determined upon the sentence of thirty years.

On the date that the jury returned the verdict the court purported to enter judgment and sentence. He also granted defendant 30 days additional time in which to file a motion for new trial. The purported judgment was a nullity. Its effect was merely an announcement of the punishment which the court intended to pass. State v. Grant, 380 S.W.2d 799 (Mo.1964). The trial court thereafter properly set aside the purported sentence and judgment, heard and overruled the motion for new trial, granted defendant allocution and sentenced him in accordance with his previously announced intention.

Defendant argues that the trial court should not have assessed the punishment because it was aware of the amended information charging defendant as an habitual criminal. As defendant put it, the “sequence of events affected Defendant as though he had been prosecuted as an habitual offender. The State began Defendant’s day in Court by emphasizing to the Court that the State believed Defendant was an habitual offender. But the fact that he was an habitual criminal was never proved and no evidence of his habitual criminality was tendered.”

Defendant’s argument overlooks the fact that there was proof of defendant’s prior criminal activity. In fact it was put into the case by defendant. In defendant’s opening statement the court and the jury were advised that defendant “was on parole for having been convicted of a marijuana offense.” Defendant took the stand and testified in his own behalf and advised the court that he was on parole. On cross-examination he testified that he had been convicted of possession and of growing marijuana and of attempting to steal under $50.00. Defendant’s previous “troubles with the law” were mentioned in his closing argument on four separate occasions. Under the circumstances we can see no prejudice in the proffered amended information charging defendant as a second offender. The court sustained defendant’s objection to that pleading and defendant had the opportunity to have the jury assess his punishment. When the jury was unable to agree upon the punishment that duty devolved upon the court. Rule 27.03. In such circumstances the court should take into consideration not only the nature and circumstances of the offense but also the character and propensities of the offender as well as his past. State v. Cline, 452 S.W.2d 190 (Mo.1970). Among the matters in one’s past which the court should consider is the existence of a prior criminal record. State v. Armstrong, 433 S.W.2d 270, 272[5] (Mo.1968). We find no merit in defendant’s contention.

Defendant next contends that he has a right to a presentence investigation. After the verdict was rendered by the jury the defendant requested a presentence report which the trial court denied. This same contention has previously been ruled by our courts and requires no further discussion. The presentence report under Rule 27.07 is not a matter of right but is discretionary with the court. Griffith v. State, 504 S.W.2d 324 (Mo.App.1974); State v. Tettamble, 517 S.W.2d 732 (Mo.App.1974). It has been held that the failure to consider a presentence report does not violate a defendant’s right to the due process of law. Cassidy v. United States, 304 F.Supp. 864, 868 (E.D.Mo.1969). Affirmed 428 F.2d 585 (8th Cir. 1970).

Defendant’s brief contains the following point: “The Court violated defendant’s right to the due process of law by sentencing him on the basis of undisclosed information.”

To preserve constitutional issues for review they must be raised at the first opportunity consistent with orderly procedure; the trial court should be advised as to the specific article and section of that constitution claimed to have been violated, and, if possible, the point must be presented in the motion for new trial, if any. The point must also be adequately covered in the briefs which means that the constitution sought to be invoked and the specific article and section must be designated and the facts constituting the violation must be set out. State v. Griffin, 339 S.W.2d 803 (Mo.1960).

In this case a hearing on the motion for new trial was had on September 13, 1973. At that time the court advised the parties that he had spoken to the foreman of the jury after the jury had been discharged. The substance of that conversation was set out in a letter which the court had sent to counsel on June 1, 1973. The court then told the parties of his conversation with the probation officers mentioned earlier in this opinion. Defendant made no objection, did not ask leave to amend the motion for new trial and did not make a request for any information which the court may have taken into consideration in the sentencing process. It was not until September 15, that the court formally sentenced defendant. The court on that day asked defendant’s counsel if he had anything to add to his argument on the motion for new trial. Counsel advised that he had nothing to add and did not attempt to raise the issue which he seeks to bring to us on appeal.

Upon being granted allocution defendant’s counsel stated that he objected to sentencing because the court was without jurisdiction to sentence defendant. No specific reason was given. Granting allocution affords the defendant an opportunity to raise any infirmities in the sentencing procedure.

Defendant was given the opportunity to raise the issue which he now attempts to raise but did not do so at the first opportune moment. The matter is not before us for review.

Defendant also questions the constitutionality of § 549.245 and Rule 27.07 for the first time on appeal. This appeal was originally filed in the Supreme Court. That court returned the notice of appeal because of lack of jurisdiction. These issues were not raised in the trial court and are not preserved for our review. State v. Harms, 507 S.W.2d 29, 31 (Mo.App.1974).

Our review, under Rule 28.02 V.A.M.R. reveals that the information is sufficient; the verdict is responsive to the charge; the punishment is within statutory limits; allo-cution was accorded, and the judgment is in proper form.

Judgment affirmed.

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

      . All Statutory references are to RSMo 1969 unless otherwise indicated.

      . For an interesting discussion of the problem see “The Use of Presentence Reports: Constitutional Consideration,” Malcolm J. Harkins, The Symposium, St. Louis University Law School, Vol. 3 No. 2 (1975), p. 7.