author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harley Jasper LAWS, Defendant-Appellant.
    No. 37095.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 4, 1977.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.

      Lester R. Duggan, Jr., St. Charles, for defendant-appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Jess L. Mueller, Pros. Atty., Troy, for plaintiff-respondent.
   DOWD, Judge.

Appellant was convicted by a jury of driving a motor vehicle while in an intoxicated condition and fined $500.00. This appeal followed. We affirm.

Prom the evidence the jury reasonably could have found that on December 24, 1973, about 4:30 p. m., as Trooper Larry Joseph Goetz of the State Highway Patrol was traveling north on Highway 79, he observed a pickup truck being driven southbound by appellant on the wrong side of the road. Trooper Goetz was forced to drive his patrol car off the highway onto the shoulder to avoid the truck. He turned and pursued the truck, keeping it under constant surveillance for approximately one quarter mile until he stopped the vehicle. Before he was stopped appellant swerved over the center line several times and onto the shoulder of the road. Appellant was initially placed under arrest by Trooper Goetz for driving on the wrong side of the road, but after he observed that appellant’s speech was slurred, his face flushed, his eyes bloodshot and that he smelled of an alcoholic beverage, appellant was placed under arrest for driving while intoxicated.

Appellant was taken to the sheriff’s office in nearby Troy, Missouri, where he consented to take a Breathalyzer test. Trooper Goetz administered the test in accordance with the rules and regulations of the Division of Health and obtained a reading of .19 blood alcohol. At trial Trooper Goetz expressed his opinion that appellant was at that time intoxicated.

Appellant raises three points of error. His first contention is that the trial court erred in instructing the jury that it could infer that appellant was intoxicated “[i]f you find and believe from the evidence that there was ten hundredths or more of one percent by weight of alcohol in the blood of defendant ...” because there was no evidence before the jury specifically stating the results of the Breathalyzer test in terms of percent by weight of alcohol in the blood. The failure of the state to present testimony explaining the Breathalyzer results to the jury in this manner does not render the instruction erroneous.

The question whether the Breathalyzer test given a defendant measures the percentage of alcohol in the blood by weight pertains to the question whether a proper foundation underlies the introduction into evidence of the results of the Breathalyzer test. To be admissible, the Breathalyzer test must be given according to methods approved by the State Division of Health, § 564.441, subd. 2 RSMo 1969, and must comply with the statutory standards set forth in Section 564.442 RSMo 1969. State v. Corsiglia, 435 S.W.2d 430 (Mo.App.1968). Both Section 564.442 and the “Rules and Regulations Promulgated for the Determination of the Alcoholic Content of Blood from a Sample of Expired (Alveolar) Air” require that the Breathalyzer test measure the alcoholic content of the blood as a percent by weight of alcohol based upon grams of alcohol per one hundred milliliters of blood.

Thus, whether the Breathalyzer test given appellant measured his blood alcohol percentage by weight is a preliminary fact question, necessary as a foundation for the introduction of the results of appellant’s Breathalyzer test. State v. Sinclair, 474 S.W.2d 865, 868[2] (Mo.App.1971). It is a function of the trial court, not the trier of fact, to determine whether evidence is admissible or to determine all matters of fact upon which the admissibility of evidence depends. Nielsen v. Dierking, 418 S.W.2d 146, 150[2, 3] (Mo.1967); State ex rel. State Highway Commission v. City of Sullivan, 520 S.W.2d 186, 190[4] (Mo.App.1975). The trial court’s ruling on such matters will not be disturbed on appeal absent an apparent abuse of discretion. Nielson v. Dierking, supra at 151[6]; State ex rel. State Highway Commission v. City of Sullivan, supra at 190[5]. We have found no such abuse of discretion by the trial judge in admitting evidence of the appellant’s Breathalyzer test. The court had before it evidence that appellant had been tested with a Breathalyzer, Series 900 device and that this device is one of the breath analyzer devices approved by the State Division of Health.

Since the results of appellant’s Breathalyzer test were properly admitted into evidence, the instruction based upon the results of the test cannot be said to impermis-sibly hypothesize facts not in evidence.

Appellant also challenges the sufficiency of the evidence on the element of intoxication. The Breathalyzer results showed .19 blood alcohol. The arresting officer testified that appellant’s speech was slurred, his face flushed, his eyes bloodshot and that he smelled of an alcoholic beverage. In addition, appellant was observed swerving over the center line and onto the shoulder of the road several times.

These facts are sufficient to support a jury verdict. Under § 564.440 RSMo 1969 “any intoxication that in any manner impairs the ability of a person to operate [a motor vehicle] is sufficient.” State v. Chester, 445 S.W.2d 393, 397[5] (Mo.App.1969).

Appellant’s final contention concerns the verdict forms submitted to the jury. .We need not pass on this allegation as appellant failed to include the challenged verdict forms in the transcript. This issue, therefore, is not before the court. Davis v. Long, 521 S.W.2d 7, 8-9[2-4] (Mo.App.1975).

WEIER, P. J., and CLEMENS, J., concur.

      . The rules and regulations of the State Division of Health were introduced as evidence at trial.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond Charles MILENTZ, Defendant-Appellant.
    No. 37188.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 11, 1977.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.
    Application to Transfer Denied April 11, 1977.

      Bell, Harris, Kirksey, & Harris, James A. Bell, St. Louis, for defendant-appellant.
    William F. Arnet, Preston Dean, Asst. Attys. Gen., Jefferson City; Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

A jury returned verdicts convicting the defendant of two counts of murder in the second degree and one count of escaping custody after conviction. Pursuant to the Second Offender Act, the trial court sentenced defendant consecutively to 30 years imprisonment on the first murder count, 25 years imprisonment for the second murder count, and 5 years imprisonment for the escape count. Defendant has appealed raising a multitude of points for our consideration, none of which serves as a basis for reversal.

While serving a five year prison sentence, defendant participated in a drug education program known as Operation Depart. The program was directed by the penitentiary’s special activities coordinator, Barnard Forck, and Forck was authorized to remove inmates from the penitentiary so that they might participate in the program on the outside.

On November 21, 1974, Forck took the defendant and inmates Rulo and Blake to St. Louis where they were to attend and participate in a series of meetings. While waiting for a meeting to commence in the St. Louis City Hall, defendant, who was on the honor system, asked Forck for permission to respond to a call of nature. Permission was granted — an unfortunate contretemps for Forck — and the defendant was told to meet Forck on the third floor of the City Hall for a meeting. Inmate Blake also received permission to leave for a similar purpose and was likewise instructed to return to the third floor. Defendant thereupon departed and failed to return for further participation in Operation Depart. Forck’s discomfiture was complete when Blake followed the defendant’s example. A search for the defendant and Blake was unavailing, and a report of the escape was made to police.

Defendant spent the night of his escape and the next day, November 22, with friends, and on the evening of November 22 made use of a 1968 Pontiac owned by a friend, Jackie Porter, to visit his sister-in-law who lived on Risch Avenue in south St. Louis County. St. Louis County police had been alerted to the possibility that the defendant might visit his sister-in-law and at approximately 1:25 a.m. on November 23, two county police officers in an unmarked police car observed the defendant in the Pontiac driving slowly on Risch Avenue. The police car followed defendant for a short distance to an intersection stop light. The defendant stopped briefly with the police car behind him, and when the police activated their grille lights, the defendant hastily moved away. A high speed chase ensued with the police car’s red grille lights flashing and siren wailing. During the chase, in which the police maintained one-half block distance from the defendant, both vehicles reached speeds of 95 m.p.h. The speeding defendant violated a stop sign at a street intersection in St. Louis and hurtled into the intersection, plunging into an automobile occupied by John and Janet Prag. Both Prags were killed by the collision, and the defendant was assisted by the police from his auto before it burst into flames.

Defendant was charged in six counts. Counts I and II charged defendant with the murders of Janet and John Prag, by feloni-ously driving a motor vehicle into them, and doing so “in order to further his escape from the lawful custody of the Missouri Department of Corrections, and its officers, and to elude arrest and capture by duly authorized peace officers of the State of Missouri who were then and there engaged in their lawful duty of seeking to arrest and recapture him for said escape . . . ” resulting in the deaths of Janet and John Prag. Counts II and. IV, on the other hand, charged defendant with causing the deaths of Janet and John Prag by feloniously driving a motor vehicle into them while “operating a 1968 Pontiac motor vehicle owned by Jackie Porter without the permission of said Jackie Porter; and that in causing the deaths of [the Prags] and operating said motor vehicle he sought to avoid arrest, and elude capture by duly authorized peace officers of the State of Missouri for operating a motor vehicle without the consent of the owner. . . Count Y charged defendant with the offense of escaping custody after conviction; Count VI charged the offense of operating Porter’s Pontiac without his permission. It is clear that the State was proceeding with alternative felony-murder theories—one theory being that the homicides occurred during the perpetration of the felony of escaping after conviction, and the second theory being that the homicides occurred during the perpetration of the felony of operating a motor vehicle without the owner’s consent.

As his first assignment of error, defendant argues that the trial court erred by failing to compel the' State to elect which of the four murder counts it would proceed upon at trial. Defendant filed a pre-trial motion to compel such an election, and arguments on the motion were presented at a pre-trial conference. The State contended that all counts were properly joined pursuant to Rule 24.04 and that MAI-CR 2.70 allowed alternative counts to be submitted to the jury. The motion to compel election was overruled. Defendant now argues that the State “indicted the defendant for the felonious murder of two persons twice,” and that “the trial court committed reversible error in the instant case when it punished defendant on multiple charges of murder for the same two deaths.” Such argument is too fenestrated to hold much merit.

The State charged the same two offenses in Counts I and III as were charged in Counts II and IV, the alternative counts merely setting forth the commission of the two offenses in different manner. When Jackie Porter was called as a witness for the State he unexpectedly elected to exercise his Fifth Amendment privilege and refused to testify. Consequently, the State was unable to prove one of its alternative theories of felony-murder—homicide emanating from the operation of a vehicle without the owner’s consent. Counts II and IV, along with Count VI, were therefore dismissed at the close of all the evidence and were never submitted to the jury. It has long been the rule in Missouri that the State may charge a defendant with an offense in alternative counts for the purpose of meeting the evidence that may be adduced at trial. This was done in this case, and no error resulted from overruling the motion to compel election before trial.

Defendant’s second and third points formulate his contention that the State failed to establish a submissible case of murder in the second degree and that the court erred in instructing on felony-murder in the second degree. Essentially, he argues that the instruction was error, as he had no intention of harming John or Janet Prag; that the underlying felony of escape was completed on November 21 (the date he left City Hall) and could not be utilized as the basis of a felony-murder submission. ■ We reject both of these points and hold that the court properly instructed the jury on murder in the second degree under the felony-murder rule.

If a homicide is committed in the course of perpetrating a felony which is not enumerated in § 559.007, RSMo Supp. 1975 (formerly § 559.010, RSMo 1969), that homicide may become murder in the second degree under § 559.020, RSMo 1969, pursuant to the felony-murder rule. State v. Mudgett, 531 S.W.2d 275, 278-279 (Mo. banc 1975); State v. Jasper, 486 S.W.2d 268, 271 (Mo. banc 1972); State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420, 425 (1933); State v. Robinett, 279 S.W. 696, 700 (Mo.1926). In the instant case the jury returned a verdict finding defendant guilty of the felony of escaping custody after conviction, which was the underlying felony supporting the felony-murder submission. The finding of guilt for that felony served to supply the felonious intent necessary to the murder conviction. State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975). The applicable rationale “is that in cases of felony-murder in the second degree, the defendant has formed a criminal intent to commit the underlying felony; and if he proceeds with its perpetration, he should answer to the consequences of his intentions, including accountability for homicides that occur incidental to the underlying felony.” Id., at 838.

Thus, it is the law that “when the homi- • cide is within the res gestae of the initial crime and is an emanation therefrom, it is committed in the perpetration of that crime . . . .” State v. Mullen, 582 S.W.2d 794, 797 (Mo.App.1975) [citing State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637 (1936), and State v. Messino, 325 Mo. 743, 30 S.W.2d 750 (1930)]. It has been held that the felony-murder doctrine applies where the initial crime and the homicide are parts of one continuous transaction and are closely connected in point of time, place and causal relation, as where the killing is done in flight from the scene of the crime to prevent detection or to promote escape. State v. Adams, supra; (citing cases); State v. Beal, 470 S.W .2d 509 (Mo. banc 1971). The facts and circumstances of the instant case warrant the inference that even if defendant believed that his original escape had been consummated, he renewed his purpose to perfect escape from lawful custody by fleeing from the police as he did. State v. Hershon, 329 Mo. 469, 45 S.W.2d 60 (1931). We believe that it was a jury matter whether the defendant’s actions in fleeing the police was a part of his effort to perfect his escape from City Hall. The jury could have found that the lapse of time and the travel patterns of the defendant subsequent to his escape from custody at City Hall did not terminate the criminal activity in perpetration of the escape in light of his renewal of purpose to perfect escape. State v. Engberg, 376 S.W.2d 150 (Mo.1964). Once the requisite causal connection between the underlying felony of escape after conviction and the two homicides was established, it was proper for the court to instruct on second degree murder under the felony-murder doctrine, and the jurors were justified in returning the verdicts they did.

The holdings of State v. Chambers, supra; State v. Jasper, supra; and State v. Beal, supra, are particularly felicitous to this case. In State v. Chambers, supra, the defendant and a companion stole a pickup truck and while escaping from the owner and during the asportation of the vehicle collided with an automobile, killing four occupants. The defendant’s convictions of four counts of second degree murder were affirmed. The court found that the theft of the pickup truck — a felony — supplied the requisite felonious intent to support the convictions for second degree murder under the felony-murder rule.

In State v. Jasper, supra, the defendant, while fleeing police in a high speed auto chase after a robbery, collided with another auto, killing three occupants. The defendant was convicted of second degree murder. The court found that defendant’s flight from the robbery could constitute a continuation of the robbery and serve as a basis for a first degree felony-murder charge. Additionally, it was found that the defendant’s flight from the police could serve as basis for a jury submission of second degree murder on a jury finding that the homicide occurred in connection with a resisting arrest offense. While Jasper was reversed and remanded for instructing the jury only on the basis of a conventional second degree murder and not under the common law felony-murder rule for resisting arrest, the court emphasized that the evidence would have justified the felony-murder submission.

In State v. Beal, supra, the companion case to Jasper (Beal was Jasper’s co-perpetrator of the robbery), the court held the felony-murder doctrine would apply where occupants of an auto were killed in a collision with an auto driven by fleeing robbers in the course of a robbery.

Inasmuch as the jury was properly instructed on second degree murder with escape as the underlying felony, State v. Chambers, supra; and State v. Jasper, supra, clearly support the defendant’s second degree murder conviction here.

Defendant next contends that the court erred in hot instructing the jury on excusable homicide even though he requested no such instruction. Defendant testified that Forck told him he could leave City Hall the afternoon of November 21 if he would return for an 8:00 p. m. meeting at a methadone clinic. Defendant stated that he then left City Hall with Forck’s permission but did not meet him at the clinic. Defendant admitted being involved in the chase during the early morning of November 23, but his explanation for the hegiria was his belief that the car following him bore strangers who were “after” him and causing him the dithers. He testified that he saw someone on the passenger side of the car pull a pistol into the air; he heard shots; he then “took off” and “didn’t slow down no more, to see if they was going to come up behind me.” He denied hearing sirens and did not recognize his pursuers as police officers. He could not recall the accident. On cross-examination, defendant did admit that he knew he was to return to the penitentiary and that it was Forck’s responsibility to return him there at the end of the day’s activities. He also acknowledged his prior conviction.

Defendant’s testimony, which was the entire evidence produced on his behalf, fails to bring his actions within the ambit of excusable homicide, as his testimony does not contradict the State’s evidence that he was racing through metropolitan streets at 95 m. p. h. to the time of the collision. Section 559.050(1) RSMo 1969 provides that homicide shall be deemed excusable when committed by accident or misfortune in doing any lawful act by lawful means, “with usual and ordinary caution, and without unlawful intent.” (emphasis supplied) We hold that as a matter of law, the defendant was not exercising usual and ordinary caution at the time of the catastrophic collision. The court did not err by failing to instruct the jury on the defense of excusable homicide.

Further, it could be found that defendant’s driving at the grossly excessive speed of 95 m. p. h. in a metropolitan area was in itself an unlawful act. § 304.010, RSMo Supp.1975. Inasmuch as a homicide was perpetrated in the commission of an unlawful act, it would be proper to deny defendant an excusable homicide instruction. State v. Williams, 545 S.W.2d 342 (Mo.App.St.L.Dist.1976); State v. Merritt, 540 S.W.2d 183 (Mo.App.1976); State v. Smith, 539 S.W.2d 571 (Mo.App.1976).

Defendant’s next contention is that the .trial court erred in failing to declare a mistrial when the prosecutor mentioned defendant’s participation in a drug program. During his opening statement the prosecutor stated that the defendant and others “went to the City Hall to visit with the mayor concerning a contribution the mayor had made to this project that they had up there called Operation Depart, which is an organization to help rehabilitate people who have had either prior conviction problems or drug problems — that sort of thing — in the penitentiary.” Forck, during the direct examination, also made reference to the fact that the defendant was participating in a “drug program.” Defendant’s counsel objected to the drug program reference on the basis that the comments were designed to infer that the defendant was an addict. In overruling the objections, the trial court advised defendant’s counsel that he would be allowed broad latitude in cross-examination to efface any harmful effect of such inference. Defendant’s counsel took full advantage of the opportunity and elicited favorable testimony from Porck that the defendant was “a model prisoner”; that defendant was not an addict; and that the program was a valuable tool in drug use prevention.

In his motion for new trial, defendant assigned as error that permitting the reference to the drug program to stand left the inference that defendant was a drug addict. On appeal, defendant assigned as error: “the court erred in not declaring a mistrial when: evidence was admitted that the defendant was participating in a drug program.” This point is not preserved for our review: first, it is a palpable violation of Rule 84.04(d); second, defendant’s argument portion of his brief stresses that reference to the drug program was a reference to guilt of other crimes — a variance from the alleged assignment of error in the motion for new trial. See Kinder v. Pursley, 488 S.W.2d 937 (Mo.App.1972). We decline to review this contention under the plain error doctrine of Rule 27.20(c), as the reference did not amount to suggestion of other crimes. Further, there was no manifest injustice or miscarriage of justice by the admission of the comments even if it did constitute error, for clearly, Forck’s testimony completely erased any possible inference that the defendant was a drug addict.

Defendant also argues that the trial court erred in admitting testimony regarding the escape of his companion, Blake. During his direct examination, Forck related that Blake had escaped with the defendant using a similar nature call ruse. Both acts of escape were closely connected including the means of search for both men after the escape. The acts and conduct of Blake were admissible as part of the res gestae of defendant’s escape. State v. Talbert, 454 S.W.2d 1 (Mo.1970).

Defendant has failed to preserve his next contention that the trial court erred in not declaring a mistrial “when the circuit attorney stated in closing argument that the defendant’s lawyer had been furnished police reports and other documents and well knew what the evidence would show. The allowance of such a comment by the prosecutor constituted prejudicial error.” This assignment fails to state briefly and concisely where and how the action or ruling of the court is claimed to be erroneous and is not preserved for review. Rule 84.04(d). We also observe that the prosecutor was merely replying to defendant’s counsel's argument that the State had failed to produce certain witnesses and was a proper retaliatory comment. State v. Ellifrits, 459 S.W.2d 293 (Mo. banc 1970).

Defendant’s final point relates to a jury inquiry sent to the trial judge. After the jury had been instructed and had retired for its deliberations, the following inquiry was sent to the court by the jury foreman:

“Interpretation or Clarification Needed:
1. Can a verdict of guilty of Escaping After Conviction make it only possible to have a verdict of guilty, Murder Second Degree, or
2. Is it possible, also, to have a guilty verdict on Manslaughter and not guilty on Murder Second Degree?”

The court summoned counsel and informed them of the inquiry, whereupon defendant’s counsel requested the court to refer the jury to Instruction 10, which instructed the jury to consider each count separately and render separate verdicts as to each count. The court declined this suggestion and returned the jury’s inquiry with a notation that “the jury will be bound in its deliberations by the instructions previously given to it by the Court.” Defendant now contends that “since the jury asked for clarification as to the culpability of the defendant for lesser offenses, the court committed reversible error in refusing to instruct the jury under an equally plausible theory of guilt or innocence.”

We have difficulty in grasping the intent of defendant’s nubilous complaint; the argument in the brief is also recondite. But we believe it is sufficient to state that the trial court’s response in this instance in referring the jury to the instructions given, without more, was proper. See State v. Taylor, 408 S.W.2d 8 (Mo.1966); State v. Lawson, 501 S.W.2d 176 (Mo.App.1973).

The judgment is affirmed.

KELLY, P. J., and SIMEONE, J., concur.

      . Section 556.280 RSMo 1969.

      . See also MAI-CR 2.71.

      . State v. Gray, 37 Mo. 463 (1866); State v. Houx, 109 Mo. 654, 19 S.W. 35 (1892); State v. Hargraves, 188 Mo. 337, 87 S.W. 491 (1905); State v. Carragin, 210 Mo. 351, 109 S.W. 553 (1908); State v. Link, 315 Mo. 192, 286 S.W. 12 (1926); State v. Brown, 317 Mo. 361, 296 S.W. 125 (1927); State v. Gant, 33 S.W.2d 970 (Mo.1930); State v. Shelby, 333 Mo. 1036, 64 S.W.2d 269 (banc 1933); State v. Koelzer, 348 Mo. 468, 154 S.W.2d 84 (1941); State v. King, 303 S.W.2d 930 (Mo.1957) [“It is a rule of practice, well established in both civil and criminal cases, that, where the same transaction is stated in different counts, no election can be required before the introduction of the evidence.” Id., at 936(9)]; State v. Green, 511 S.W.2d 867, 874(13) (Mo. 1974); State v. Mullen, 532 S.W.2d 794, 797(4) (Mo.App.1975); MAI-CR 2.70, 2.71.

      . Section 557.351, RSMo Supp.1975.

      . Many causation cases we have found are felony-murder first degree cases, relying somewhat on § 559.010’s “perpetration” language; yet the causation rationale applies equally to felony-murder in the second degree.

      . Beal was a first degree murder conviction, and the jury was properly instructed on a first degree felony-murder occurring during the perpetration of a robbery, whereas Jasper involved a second degree murder conviction which could have been based on resisting arrest.


author: HOGAN, Judge.

text:
    STUYVESANT INSURANCE GROUP, INC., Plaintiff-Appellant, v. Don M. ANDERSON, Defendant-Respondent.
    No. 9799.
    Missouri Court of Appeals, Springfield District.
    Jan. 28, 1977.
    Motion for Rehearing or Transfer Denied Feb. 18, 1977.
    Application to Transfer Denied April 11, 1977.
    Charles M. Wesley, Waynesville, for plaintiff-appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
    Wm. C. Morgan, Arthur B. Cohn, Waynesville, for defendant-respondent.
   HOGAN, Judge.

Plaintiff Stuyvesant Insurance Group attempted to sell a previously registered house trailer to defendant Don M. Anderson. Payment was made conditional upon plaintiff’s tendering a “clear title” to the trailer. Because no certificate of title was seasonably presented, defendant repudiated the sale. Plaintiff thereupon brought this action in three counts. Count I, though it is described as an action on a “countermanded check”, was submitted as an action for the purchase price of the trailer. Defendant filed a counterclaim directed to this count. The jury to which the claim and counterclaim were submitted found for the defendant upon the claim and for the plaintiff on the counterclaim. Counts II and III were dismissed by the trial court. Plaintiff now appeals.

The plaintiff has briefed and argued seven points of trial error in this court. The trial errors are immaterial if plaintiff failed to make a submissible case. Hoock v. S.S. Kresge Co., 230 S.W.2d 758, 761 (Mo. banc 1950); Osborn v. McBride, 400 S.W.2d 185, 188 (Mo.1966); Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50, 52 (Mo.App.1974).

Plaintiff insured a house trailer described as a 1970 Century Mobile Home. At sometime before December 17, 1970, the trailer was repossessed by the owner’s mortgagee and stored on a lot near Waynesville. On December 17, 1970, the trailer was stolen. It was later found “alongside the highway”, abandoned and damaged. Plaintiff was presented with a claim for the damage to the trailer. The claim was assigned to an adjuster in Waynesville with instructions to adjust the claim with the mortgagee and dispose of the salvage. Defendant bid on the salvage and his bid was accepted. On May 14, 1971, defendant issued his check in the amount of his bid, made payable to plaintiff. On the same day defendant’s adjuster delivered the damaged trailer to the defendant. Plaintiff admittedly had no title on May 14, 1971, and admittedly tendered no properly assigned certificate of title until October 2, 1972, perhaps later. Both the original and repossession titles were issued by the Missouri Department of Revenue.

Section 301.210 (4), RSMo 1969, V.A.M.S., provides:

“It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.” (emphasis ours)

The facts of this case bring the transaction squarely within the interdiction of the statute. We need not, and do not consider the necessity of registering and licensing house trailers as new vehicles. The fact in this case is that the trailer had been registered and licensed by the original owner, and consequently the attempted sale was void and unenforceable. Greer v. Zurich Insurance Co., 441 S.W.2d 15, 25-26 (Mo.1969); Bank of Jasper v. Langford, 459 S.W.2d 97, 100 (Mo.App.1970); McIntosh v. White, 447 S.W.2d 75, 80 (Mo.App.1969). Therefore, plaintiff made no submissible case on Count I of its petition, and this is true whether Count I is regarded as an action for the purchase price or an action upon the check. McIntosh v. White, supra, 447 S.W.2d at 80.

In Count II plaintiff sought to set aside a judgment of the Magistrate Court of Pulaski County ordering the trailer sold on special execution and further ordering the Sheriff of Pulaski County to transfer title to the trailer to the highest bidder. The substance of this count is that defendant obtained a so-called “sheriff’s title” in fraud of plaintiff’s rights. In Count III, plaintiff sought to replevy the trailer. Counts II and III were dismissed by the trial court.

Count II set forth several grounds for vacating or setting aside the judgment of the Magistrate Court of Pulaski County, but the gist of plaintiff’s complaint was that it was not notified of defendant’s intention to seek the judgment and obtain a so-called “sheriff’s title”. Plaintiff alleged that such failure constituted a fraud because defendant had already agreed to buy the trailer from the plaintiff.

Again without going into detail, we are of the opinion that upon, this particular record, plaintiff demonstrated no right or interest of any nature in the trailer, and therefore could not have been adversely affected by the judgment of the magistrate court. Certainly no rights accrued to plaintiff by virtue of its void and unenforceable contract with defendant. The record does indicate that plaintiff paid the mortgagee the sum of $5,400, and that it paid that amount because that sum was the “policy limit at that time”. However, there is no showing that the certificate of title was ever assigned to the plaintiff itself, and while we feel reasonably sure the plaintiff may have acquired some rights under its insurance policy, the policy was not, for whatever reason, introduced in evidence. We conclude the trial court did not err in dismissing Count II.

As to Count III, a count in replevin, we might note the inconsistency of an action for the purchase price and an action in replevin, but a discussion of possible election of remedies is unnecessary. Conceding that plaintiff could have maintained replev-in if it could show some special property or interest in the trailer which gave it the right to possession thereof, Pearl v. Interstate Securities Co., 357 Mo. 160, 164, 206 S.W.2d 975, 978 (banc 1947), no such special interest was demonstrated here, and the trial court did not err in dismissing Count III.

We conclude that plaintiff made no sub-missible case upon any of the three counts of its petition; the trial errors complained of are therefore immaterial and the judgment is affirmed.

All concur.


author: SIMEONE, Chief Judge.

text:
    Horace M. CLEVENGER et al., Plaintiffs-Respondents, v. Frank Joseph MUELLER et al., Defendants-Appellants.
    No. 37434.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 1, 1977.

      A. E. Nick, Ferguson, for defendants-appellants.
    Dubinsky, Duggan & Horwitz, Sidney W. Horwitz, St. Louis, for plaintiffs-respondents.
   SIMEONE, Chief Judge.

This is an appeal by the defendants-appellants from a judgment of the circuit court in St. Louis County ordering that the fee simple title to a thirty-foot strip of land be vested in the plaintiffs-respondents, Horace M. Clevenger and Roberta W. Cleven-ger, his wife, and decreeing that the defendants-appellants have no “title, right, claim or interest” in the strip of land.

The facts are somewhat complicated and the legal issues difficult to resolve from the record before us. The action began as a suit to quiet title to a certain strip of land approximately 30 feet wide and 380 feet long located in Vogel’s Subdivision, of Lots A, B and C of Jane Chambers Subdivision at Ferguson, St. Louis County. The petition to quiet title alleged that the plaintiffs — the Clevengers — were the owners of the strip of land “used as a roadway” and gave a legal description of the land. The petition prayed that the court enter its order quieting title to the “roadway premises” against all claims and demands of defendants and those claiming under them or in their behalf. The petition was later amended to pray in the alternative for a “perpetual easement to said roadway” in the event the court found that the plaintiffs did not have title in fee simple.

In 1908, Sebastian and Elizabeth Mueller, the parents of Frank, Viola and George Mueller, acquired 19.20 acres of land known as Vogel’s Subdivision, Lots A, B and C of Jane Chambers Subdivision. All of this property fronted on Hudson Road in St. Louis County. Sebastian and Elizabeth’s home was located toward the rear of the property, approximately 380 feet north of Hudson Road.

In 1939, Sebastian and Elizabeth deeded to each of their three children, Frank, Viola and George, a certain parcel of ground, not involved in this proceeding, which was approximately one acre each, and each fronting on Hudson Road. After these gifts of one acre each, Sebastian and Elizabeth continued to reside in the house on their land. Although there was some evidence that the original owners, Sebastian and Elizabeth, “used to circle around years ago through” another part of the property, there was evidence that the thirty-foot strip in dispute was used by them and later by their son, George, for “quite a few years.” After the deeds were made giving these three one-acre parcels of land to each of the three children in 1939, there remained approximately 15.75 acres owned by Mr. and Mrs. Sebastain Mueller. Two houses rested on the land not deeded. Frank Mueller and his wife lived in one and Viola and her husband lived in the other. Mr. Sebastian Mueller died sometime prior to 1951, and his wife, Elizabeth, then owned the 15.75 acres. Elizabeth Mueller died on February 5, 1951. She left a will dated June 3, 1942, which was probated in the probate court of St. Louis County. By her will she “devised” and “bequeathed” to (1) Viola “the house [in which she was living] and the land upon which it is situated, with all the appurtenances thereto, . . .” (2) Frank Joseph Mueller “the house [in which he was living] and the land upon which it is situated, with all the appurtenances thereto, .” and (3) George William Mueller “the house now occupied by me and the land upon which it is situated, with all the appurtenances thereto, and which house is constructed upon the 15.75 acres hereinafter described and devised.” By her will, Item V(d), she also devised to each of the three children an undivided one-third interest in the 15.75 acres of the Jane Chambers Subdivision and “of all the lands I may die seized or possessed at my death.” After the probate of the will in 1951, in June, 1952, the three children — Frank, Viola and George — voluntarily partitioned most, but not all, of the 15.75 acres among themselves. By the partitioning, Viola and her husband acquired 1.6 acres fronting on Hudson Road, Frank acquired approximately 1.50 acres, also fronting on Hudson Road, and George acquired 3.632 acres located about 300 feet from Hudson Road and upon which the home of Sebastian and Elizabeth Mueller was located.

After his mother’s death, George Mueller lived in his mother’s house for some seven years, or until the late fifties, and used, as did his parents before him, the thirty-foot strip.

Sometime in 1965, George William Mueller and his wife, Marie, sold the 3.632 acres which he acquired by partition and the house which he acquired by will from his mother and the one-acre lot which he acquired from his parents by gift in 1939 to one Eula D. Beck. George died on February 21, 1968. According to a stipulation filed by counsel, Eula D. Beck in 1969 sold the “two lots" which she acquired from George to the North County Church of God. Then, in 1971, the North County Church of God sold the two pieces of real estate to Mark Twain State Bank. The bank had the house in which George had lived on the 3.632 acres torn down and removed. The bank did not remove the debris by taking it out over the thirty-foot strip or “roadway” but took it out over Viola’s property at the western edge. Mark Twain in turn on March 21,1972, sold the two pieces of property — the one-acre tract deeded to George in 1939 and the 3.632 acres partitioned to him — to the plaintiffs, Mr. and Mrs. Cleven-ger. Mr. Clevenger testified that he “used” the thirty-foot strip now in dispute and “went back there with my car and trailer” until about November, 1972. He had no occasion to “go back until June of the next year” and when he did he found a chain across the strip which eventually precipitated this controversy between the Cle-vengers and the Muellers.

Trial of this quiet title proceeding was held in February, 1975, before the court without a jury. The above facts were brought out during the hearing. The plaintiffs’ evidence consisted of the testimony of Horace Clevenger and Mr. Curtis Lentz, a real estate agent, and the defendants’ evidence consisted of the testimony of Frank J. Mueller and his sister, Viola.

In his testimony, Mr. Clevenger testified that he purchased the two lots formerly owned by George — the one fronting on Hudson Road (Lot C) and the 3.632 acres (Lot C-l). He testified that before he purchased the property he “discussed the use” of the thirty-foot strip with Frank J. Mueller, who owned the property just east of the strip (Lot A-l) “[w]hen I was looking the property over before sale.” According to Mr. Clevenger, although denied by Frank Mueller, he [Frank] “pointed out the drive and said ‘This drive goes with it.’ ” After the chain was erected, he had a conversátion with Frank Mueller who stated he “wanted to stop trespassers on his property, and said he had to stop everybody to keep them from coming back.” Mr. Clevenger identified certain real property tax receipts for 1972,1973 and 1974, which were paid by him on property which had an address at 1101 Hudson Road, which address appears “opposite the 30-foot roadway.” He testified his only access to his 3.632 acres from another lot was by “foot path” because it is a rough area containing a “ravine” 15-20 feet deep, and “because of the terrain and trees.”

Mr. Clevenger admitted that the thirty-foot strip of land in dispute was never contained in the deed he received, but indicated that he had “used it.” The earnest money contract with the Clevengers signed with Statler Realty included a “30 foot Easement from Hudson road North for a distance of approximately 384 feet, between two tracts owned by Frank J. Mueller and wife.” But no deed to the thirty-foot strip was introduced and the evidence is clear and respondents’ — Clevengers’—case indicated that the title to the thirty-foot strip was never formally vested in the plaintiffs-Clevengers.

Frank Mueller testified that he and his wife lived in the house willed to him by his mother since 1936 and had lived on the original 19.20 acres most of his life. He testified that the thirty-foot strip lay between his two properties (A and A-l on appendix) and that he acquired his tract of land which surrounded his house at the time of the partitioning in 1952. At the time of the partitioning of the three tracts of land (to Frank, Viola and George) they did not partition the thirty-foot strip nor the “six and some odd” acres to the rear of George’s 3.632 acres. Frank Mueller denied meeting Mr. Clevenger and discussing the thirty-foot tract; in fact, he stated “I didn’t know Clevenger until after he bought the property. Never had met him.” He testified that in March, 1972, Mr. Statler came to him and indicated he wanted a fifteen foot easement on the west side of his property “alongside of my house.” The “Easement Deed” attempting to grant a 15 foot easement on Frank’s property was typed for the signatures of Frank and Florence Mueller but was never in fact executed. He testified that his sister, Viola, and his brother (George) had an “interest” in the strip. During Frank’s testimony a paid real estate tax bill was introduced showing that taxes were paid on 7.26 acres with “no front,” to which he contributed a third of the bill. He “guessed” that he had possession of the strip. He did admit that the three children did not partition the strip here in dispute because they “neglected to do that.” On cross-examination, he indicated that the strip or “roadway” was used for quite a few years by both his parents and by George when he lived in his mother’s house. He never did see Eula Beck, the purchaser from George, use it, and he and his brother and sister never did partition the strip. He contended that the three children still own it. He admitted putting a chain across the “roadway,” to keep the “motorcycles and horseback riders and people going back there, going over that strip, cutting my property up, my grass in the back.”

Viola Mueller Byrnes also testified in the defendants’ case. The gist of her testimony was that when the three children partitioned the various lots, it was their intention that the “30 foot [sic] was intended to go with Frank Mueller’s property” and that it was still part of the estate.

The properties on which Viola and Frank live front Hudson Road and each has a driveway.

Mr. Curtis Lentz, a real estate agent, testified on behalf of the plaintiffs. He testified that in 1967 or 1968, Armbruster Real Estate had the “property” (presumably the two pieces purchased by the Cleven-gers) and he went and talked to Mueller (presumably Frank) and Viola and a “sister [in law] on Warson Road in Overland, and got the listing on the property, four and some tenths acres.” He indicated he discussed the thirty-foot strip with Frank Mueller and “he [Frank] walked me back the road and showed me the old house and the two-car concrete block garage.” He testified that Frank told him the thirty-foot strip “went with the property. He showed me where it went.”

Upon questioning of counsel by the court at the close of the evidence, it was developed and agreed to by counsel that (1) following the partitioning, George lived in the house' located on the 3.632 acres, (2) while he lived there he used the thirty-foot strip of land as a means of ingress and egress, and (3) the deeds of partition by metes and bounds excluded the “roadway” and all the conveyances were “simply silent” as to the thirty-foot strip.

On July 1,1975, the trial court entered its order vesting fee simple title to the thirty-foot strip of land in the plaintiffs, the Cle-vengers, and decreed that the Muellers and their successors have no interest in that parcel of land.

The defendants duly appealed.

On this appeal, the defendants-appellants contend that the trial court erred in vesting a fee simple title to the thirty-foot strip in the Clevengers because (1) “the record clearly shows that the record title to the property in dispute and the possession thereof were at all times in the defendants” and shows that the Clevengers had neither legal nor equitable title or possession to or of the thirty-foot strip of land, (2) the Cle-vengers failed in their burden to prove that the strip was inadvertently overlooked in the partitioning of the land to George Mueller, and (3) the plaintiffs failed to prove that the title was vested in the plaintiffs— the Clevengers.

The thrust of the appellants’ argument is that the facts “simply” do not provide a reasonable basis for such a finding by the trial court giving the Clevengers fee simple title to the thirty-foot strip of land because the evidence adduced is clearly to the contrary.

The Clevengers — the respondents — really do not refute the contentions that they never in fact received a title or deed to the thirty-foot strip but rather contend that the trial court did not err in vesting fee simple title in them because “[a] devise of a house in which the testatrix [Elizabeth Mueller] resided, including the ground on which it is situated and [the] appurtenances thereto, carried with it such land as may be necessary for the enjoyment of the devisee [George] in the same manner that was used by the testatrix.”

They rely on numerous authorities which hold that a devise of a house carries with it the ground on which it stands and everything accessory thereto necessary for the beneficial enjoyment thereof, including land — the thirty-foot strip — used in connection with the house devised.

The resolution of the issue before us hinges upon whether Elizabeth Mueller, by her will devising to her son, George, the “house now occupied by me and the land upon which it is situated, with all the appurtenances thereto, . . ." also devised the thirty-foot strip of land so that, through George, the Clevengers received the fee simple title to that strip. In the resolution of this issue we are guided by the general principles relating to court-tried cases.

While we give due regard to the opportunity of the trial court to judge the credibility of the witnesses, and while we must reach our own independent conclusions, we are not to set aside the judgment unless (1) there is no substantial evidence to support it, (2) it is against the weight of the evidence, (3) it erroneously declares the law, or (4) it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). And since there were no findings of fact or conclusions of law made by the court, the judgment is to be affirmed if it can be sustained on any reasonable theory. Lossing v. Shull, 351 Mo. 342, 173 S.W.2d 1, 5 (1943).

We are guided by the principles relating to actions to quiet title. A suit to quiet title is a special statutory proceeding to adjudge the respective estates, titles and interests of the claimants to the disputed land. In such a proceeding the court must ascertain and determine the rights of the parties under the pleadings and the evidence and grant such relief as may be proper and determine the better title as between the parties to the proceeding, though the title superior to the rights of either party may be held by a stranger. The plaintiffs are required to show a title superior to the defendants although they are not required to show a title good against the whole world. The question is which of the contending parties has a better title. The claimants must prevail on the strength of their own title and not upon the weakness in the title of the other claimant. Moise v. Robinson, 533 S.W.2d 234, 240 (Mo.App.1975) and cases cited therein.

The Clevengers, if they are to succeed, must sustain the burden of proving that the thirty-foot strip of land was actually devised to George as an incident to and necessary to the enjoyment of the “house and the land upon which it is situated, with all the appurtenances thereto, . . . We agree with the Cleven-gers’ contention that it is the intention of the testatrix at the time of execution which controls the construction of the will. Whitelaw v. Rodney, 212 Mo. 540, 111 S.W. 560, 561 (1908).

In devising real property no particular words are necessary to constitute a devise of real estate. “. . . Any words, however untechnical and informal, which clearly indicate an intention on the part of the testator to pass his interest in the real property possessed- by him will be given that effect.” 96 C.J.S. Wills § 761, p. 168 (1957).

Since the early days of the common law, innumerable authorities in the United States and England have held that a devise of a “house” or “dwelling house” carries with it not only the land on which it stands but also a certain amount of land necessary for the proper, convenient and beneficial enjoyment of the use of the “house” or property actually devised. Or, as sometimes said, such land used in connection therewith. The principle is summarized as follows:

“A number of cases have held that in the absence of evidence indicating a contrary intention, a devise of a ‘building,’ ‘house,’ or ‘dwelling house,’ passed, without further descriptive words, the land upon which the buildings stood, and, in addition, the land within the common inclosure belonging to the house and enjoyed with it.” Annot., What Passes Under, And Is Included In, Devise of “Building,” “House,” or “Dwelling House,” 29 A.L.R.3d 574, 576 (1970).

In Mund v. Friedman, supra, after analyzing many of the decisions, the court stated that:

• “The cited authorities hold that when a testator devises a house, home or mill, the donee acquires the land upon which the house, home or mill stands, together with any land used in connection therewith. . . . ” Mund v. Friedman, supra, 232 N.E.2d at 767.

This principle is applicable whether or not the word “appurtenance” is used in the will.

The precise issue in this proceeding is whether, by her will devising to her son, George, the “house [not home] now occupied by me and the land upon which it is situated with all appurtenances thereto, . .” Elizabeth also devised the fee simple title to the thirty-foot strip of land in dispute to George. The resolution of that issue depends upon the intention of the testatrix garnered from all the surrounding circumstances when she devised the house with all appurtenances. Under all the circumstances we are of the opinion that the facts do not permit a construction that, in devising her house with all appurtenances to George, Elizabeth also intended to devise the disputed strip so as to vest in him fee simple title.

There is no doubt that the plaintiffs did not possess or acquire a deed by metes and bounds to the strip. The legal title to the strip has always been in and remained with the defendants and their parents. It is clear from the will that Elizabeth Mueller intended to convey and did in fact devise “to each of my children an undivided one-third interest” in the entire 15.75 acres and which is “the same land upon which the houses °. . . are erected, . . . .” By identical provisions Elizabeth also devised to each of the three children “the house [in which each was living] and the land upon which it is situated, with all the appurtenances thereto, . . . and which house is constructed upon the 15.75 acres. . . . ” The will is not to be construed in a vacuum, and when viewed in light of the provision by which Elizabeth conveyed the entire 15.75 acres to Frank, Viola and George in one-third undivided interests, it becomes clear that Elizabeth did not intend to devise the thirty-foot strip as an incident to the “house” specifically devised to George Mueller.

To hold as respondents contend, that the fee simple title to the thirty-foot strip passed to George, may well mean that the contiguous land used for farming would also have passed to George because it was also used in connection with the house and was a necessary part of the farming operation and necessary for the enjoyment of the house. The exact same language was used by Elizabeth in the provisions of her will by which she devised to Frank and Viola the “houses” in which they were living. Consistency with respondents’ contention that title to the thirty-foot strip of land passed with the devise of the “house” to George would require that we also find that Frank and Viola received title to all of the land that they used in connection with the operation and enjoyment of their “houses.” Such conclusions would not be in harmony with the intention of the testatrix.

The fact that the thirty-foot strip was a necessary means of vehicular access to the house specifically devised to George does not compel a finding that the fee simple title to the strip was intended to pass with the house. Exclusive possession of the thirty-foot strip by George alone was not necessary to the enjoyment of the devise. Use of the strip as a means of access was secured by George’s receipt of a one-third undivided interest in all of the 15.75 acres.' George’s continued use of the thirty-foot strip here in dispute for approximately seven years after the partitioning is not inconsistent with the theory that George owned a one-third undivided interest in the strip.

The three Mueller children were devised an “undivided one-third interest” in the 15.-75 acres of land. This included the parcels partitioned, the seven acres not partitioned and the thirty-foot strip here in dispute. Although the strip of land was “used” by Sebastian and Elizabeth and later by George, the plaintiffs did not carry their burden of proof to show that the “title” to the strip vested in them, superior to that of the Muellers. In their evidence there is no showing whatsoever that they have title to the strip by any deed. The testimony of Mr. Clevenger only shows that he purchased the two pieces of property and discussed the use of the strip with Frank and that he paid taxes on the property located at 1101 Hudson Road. It is of significance that at or near the time the Clevengers purchased George’s 3.632 acres the real estate dealer sought a 15-foot easement on Frank’s property adjacent to the disputed strip. But it is of no significance that taxes may have been paid. The mere payment of taxes does not create title. Moise v. Robinson, supra, 533 S.W.2d at 242. There is no showing by plaintiffs that legal title vests in them. Their whole case rises or falls on the interpretation of Elizabeth’s will devising her house and appurtenances, and we believe that under the circumstances Elizabeth did not devise anything other than the house and the land on which it was built to George. There was no evidence to show that Elizabeth intended anything other than to give all of the remaining land including the strip in dispute to the three children and to hold an undivided one-third interest therein. Under her will each of the children had the right to use the strip. None had exclusive rights to this parcel of land.

We hold, therefore, that under this record in devising her house and the appurtenances to George, Elizabeth Mueller did not at the same time devise to George the strip of land in dispute.

The plaintiffs, in our opinion, under the principles relating to quiet title actions, have failed to show a “title” superior to the defendants. We therefore reverse the judgment of the trial court granting the fee simple title to the plaintiffs because the judgment is not supported by substantial evidence and is against the weight of the evidence.

However, in the posture of this case, we remand the cause for a new trial. The theory of the plaintiffs’ case on this appeal was that they were entitled to fee simple ownership of the thirty-foot strip.. Their amended petition prayed in the alternative that an easement be declared. The evidence adduced on this record does not establish that in no event could the plaintiffs make a case against the appellants. Hence, under well settled rules of appellate practice, the cause should be remanded for further proceedings. North Cty. Sch. Dist. v. Fidelity & Deposit Co., 539 S.W.2d 469, 478 (Mo.App.1976). On remand the plaintiffs may well be able to show another theory or a way of necessity — an easement which the law implies for access. McDougall v. Castelli, 501 S.W.2d 855, 858-859 (Mo.App.1973); Hill v. Kennoy, 522 S.W.2d 775, 777 (Mo. banc 1975). The evidence of the plaintiffs indicated that there exists a ravine, 10-20 feet deep, on property fronting on Hudson Road (Lot C) which is contiguous with the 3.632 acres in the rear and which they also own.

Under all the circumstances of this case we are compelled to conclude that the plaintiffs, the Clevengers, are not entitled to a fee simple title to this disputed thirty-foot strip of land and that the fee simple title to this strip rests in the defendants, the Muel-lers, but we reverse and remand the cause to provide the plaintiffs an opportunity to prove, under a proper legal theory, that they are entitled to access from their property.

We have read the transcript, examined all the exhibits, read the briefs of the parties and all the authorities relied upon therein and conclude that the cause should be reversed and remanded for further proceedings.

The judgment is reversed and the cause remanded.

KELLY and GUNN, JJ., concur.

Appendix to follow.

APPENDIX

      . Frank Joseph Mueller, Mrs. Viola Mueller Byrnes, Mrs. Marie V. Mueller, wife of George William Mueller, deceased, and Mrs. Kenneth M. Brandon. Frank, Viola and George are the children of Sebastian and Elizabeth Mueller, the original owners of the land. The identity of Mrs. Brandon is unclear since she was not mentioned in the record other than as a named defendant in the petition.

      . The petition upon which the order of the trial court was based described the strip as follows:
      “Beginning at a point in the center line of Hudson Avenue or Road at the Northeast [Southwest?] corner of property conveyed to Frank J. Mueller and Florence Mueller, his wife, by deed recorded in Book 1665 Page 80 of the St. Louis County Records, thence North 3 degrees 38 minutes East 384.35 feet to an iron pipe; thence North 86 degrees 12 minutes East 30.25 feet to the Southwest [Northwest?] comer of property conveyed to Frank J. Mueller by deed recorded in Book 2904 Page 453; thence South 3 degrees 38 minutes West 394.10 [374.10?] feet more or less to the center line of Hudson Avenue or Road; thence along said center line North 75 degrees 42 minutes West 30 feet more or less to the point of beginning.”

      . A diagram, Joint Exhibit #1, is attached hereto as an exhibit which more graphically shows the various lots and the strip of land denominated as the roadway. Lots A, B and C in the diagram were deeded in 1939. Lot A (1095 Hudson) was deeded to Frank J. Mueller and Florence Mueller, his wife, but later sold by him; Lot B (1065 Hudson) was deeded to Viola Mueller and her husband, James A. Byrnes; and Lot C (1001 Hudson) was deeded to George William Mueller, then a single-person.

      . The land and house is denominated as C-l on the diagram on the appendix.

      . Some six plus or seven acres of the subdivision were not partitioned and form no part of this controversy.

      . This property is denominated B-l on the attached appendix.

      . Shown as lot A-l on the appendix.

      . Shown as lot C-l on the appendix.

       The transaction was handled by Statler Realty for Vorhof-Duenke who was the agent for Mark Twain. The earnest money receipt for the 3.632 acres included a thirty-foot easement from Hudson Road north for a distance of about 384 feet between the two tracts owned by Frank J. Mueller and his wife.

      . The receipts showed that the acreage was 3.62 acres valued at $2,240.

      . Mr. Clevenger testified that the deed to the lots he purchased did not contain the description of the thirty-foot tract, but “that does not stop the use of the land.”

      . This was at or near the time the Clevengers bought the 3.632 acres — the sale was completed March 21, 1972.

      . 7.26 acres is more than the 6 plus acres that was not part of the partitioning by the three children. The contention is that hence the Muellers paid the taxes on the thirty-foot disputed strip. He contended that the tax bill showed that taxes were paid on seven acres which would consist of the six plus acres not partitioned and the thirty feet. He later testified that his sister paid the taxes on the thirty-foot strip.

      .It is wholly unclear as to which property Mr. Lentz is speaking of at the time he got the “listing” in 1967 or 1968; the property belonging to George had already been sold in 1965 to Eula Beck. Apparently he had a listing to sell the property that Mrs. Beck owned. But, if so, then there was no need to speak to Frank, Viola and George’s wife about the listing. He attempted to explain this by saying “I don’t know whether they redeemed it.”

      . They contend that in construing such a devise, the trial court should endeavor to construe the will under the conditions and physical circumstances as they existed at the time the will was executed, and, since the evidence and physical facts clearly showed that Elizabeth intended that the thirty-foot roadway be appurtenant to the house she devised to her son, George, the trial court did not err.

      . See also the numerous authorities for the general principle collected in 57 Am.Jur., Wills, § 1356, pp. 899-900 (1948); Annot., What included in devise of “house,” “dwelling house,” or the like, 12 A.L.R. 1179 (1921); Annot., What passes under, and is included in, devise of “home” or “home place,” 38 A.L.R.2d 840 (1954); Annot., 38 A.L.R.3d 1419 [Deeds] (1971); 96 C.J.S. Wills supra, § 761 at 170. In the United States it has been held that the word “house” is synonymous with “messuage” and conveys all within the curtilage, Rogers v. Smith, 4 Pa. 93 (1846), cited in Annot., supra, 12 A.L.R. at 1181; Lombe v. Stoughton, 17 Sim. 84, 60 Eng.Rep. 1059 (1849)—gardens, lawns, pleasure grounds and proper approaches; see Gilbert v. McCreary, 87 W.Va. 56, 104 S.E. 273, 12 A.L.R. 1172 (1920); Mund v. Friedman, 89 Ill.App.2d 338, 232 N.E.2d 757, 29 A.L.R.3d 560 (1968), [land on which building rests].

      . An “appurtenance” has usually been confined to incorporeal things such as easements or profits, hence, a conveyance “with appurtenances” does not ordinarily pass land other than that described. “ ‘Land cannot be appurtenant to land.’ ” Tiffany, Real Property, abridged edition, § 676, p. 695 (1940). “An ‘appurtenance’ may be defined as a thing belonging to another thing as principal and which passes as an incident to the principal thing.” 23 Am.Jur.2d, Deeds, § 256, p. 293 (1965).

      . In Eliot v. Carter, 12 Pick. 436 (Mass.Sup.1832), a testator devised to each of his daughters a “dwelling house” which faced an open courtyard lying between them and testator’s mansion house. Two of the houses had no access except across the courtyard. The issue was whether in devising to each of his daughters a house he also intended to devise the fee to the courtyard. The court held that the daughters did not take a fee, but that the fee remained with the testator. The basis for the decision was that it was the “intention of the testator to devise an easement and not a fee.” The issue in Eliot was whether the testator in devising the dwelling house to his daughters also devised the courtyard in fee not whether the testator in devising the mansion house also devised the courtyard in fee. The issue here is whether Elizabeth in devising her house to George also devised the thirty-foot strip. Eliot emphasized the intention of the testator based on the facts. We do likewise.

      . The will used the same language “appurtenances” as to all three children.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Verlie Lee CAMPBELL, Defendant-Appellant.
    No. 37805.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 1, 1977.
    Robert C. Babione, Public Defender, Mary Louise Moran, James W. Whitney, Jr., Asst. Public Defenders, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals from a conviction of Stealing Property Over the Value of $50. § 560.156.2, RSMo 1969; § 560.161.1(2), RSMo 1969. The State proved one prior felony and the sentence imposed by the trial judge was six years imprisonment pursuant to the Second Offender Act. § 556.-280, RSMo 1969.

The sufficiency of the evidence supporting the conviction is not challenged. Ron Griffin, a Security Guard for Stix, Baer, and Fuller testified that he saw defendant enter the store, proceed to the Men’s Department on the fourth floor, approach a rack displaying leather coats, put on a leather coat over his blue windbreaker, put the sales tab in the coat pocket, and return to the elevator. Griffin, following the defendant, stopped him as he was attempting to leave the store.

Defendant raises one contention on appeal. Appellant claims that the trial court erred in failing to give defendant’s Instruction B, and Instruction on Stealing Under $50.00, because there was substantial doubt as to the value of the coat in question. Appellant argues that the value of the coat was not established as clearly being over $50.00. The argument is made that because the coat now appears in a damaged condition, depreciation of the coat should be considered in determining the value of the coat. We do not agree.

It was clearly established by the testimony of Mr. Black, an assistant buyer of men’s casual wear at Stix,- Baer & Fuller, that the coat was of the type and brand handled by the store. Mr. Black testified that the cost of the coat to Stix at the time of purchase in July 1975 was $79.20 and that, although the retail price of coats may be marked down after Christmas when the coats become carry-over stock, the invoice price is not depreciated. Thus the value of the coat on October 8, 1975 is the same as the value of the coat when purchased in July 1975. Mr. Black stated that while the coat looked rather worn now, it was a result of the coat being crushed in the evidence bag.

The only evidence received by the court is that the coat exceeded the value of $50.00. When a request is made for an instruction on stealing under $50.00 and all of the evidence given indicates that the property is over the value of $50.00, there is no error in refusing to so instruct. State v. Matzker, 500 S.W.2d 54, 57 (Mo.App.1973); State v. Manley, 513 S.W.2d 703, 705[6, 7] (Mo.App.1974).

The appellant argues that because of the present worn condition of the coat, the jury should take into consideration the depreciation of the coat in determining the value of the property involved in the theft. Thus the contention is made that Instruction B, on Stealing Under $50.00 was improperly refused. Appellant relies on State v. Cox, 508 S.W.2d 716 (Mo.App.1974), in which it was held that a jury could consider depreciation on a stereo which had been bought three months prior to the theft. The case at bar can be distinguished. In State v. Cox, the property stolen was from a private home, the owner having bought the stereo three months prior to the theft. In this case the coat was stolen from the retail store; and at the time of the theft, evidence was submitted to establish the value of the coat to Stix, Baer, and Fuller at $79.20. Thus there was a sufficient basis in evidence to support the instruction on Stealing Over $50.00 and no basis to support an instruction on Stealing Under $50.00. The requested instruction was properly refused.

Finding no prejudicial error, the judgment is affirmed.

CLEMENS, P. J., and WEIER, J., concur.


author: WEIER, Judge.

text:
    William J. WHITE, Plaintiff-Respondent, v. MIRIAM REALTY COMPANY, Defendant-Appellant.
    No. 37545.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 1, 1977.

      Warren W. Davis, Davis & Davis, Clayton, for defendant-appellant.
    David G. Dempsey, Shifrin, Treiman, Bamburg & Dempsey, Clayton, for plaintiff-respondent.
   WEIER, Judge.

Plaintiff William J. White brought suit against defendant Miriam Realty Company based on a written agreement with Miriam to pay White $3,300 as a finder’s fee in a real estate transaction. The case was tried before a circuit court judge sitting without a jury. The court overruled defendant’s motion to dismiss at the close of plaintiff’s case and rendered judgment for plaintiff in the amount agreed upon by the parties. Miriam Realty appeals, contending the trial court erred in overruling its motion to dismiss because under the evidence White, who was never licensed as a real estate broker or salesman, was barred from recovering on this contract by § 339.160, RSMo. 1969, which reads as follows:

No person, copartnership, corporation or association engaged within this state in the business or acting in the capacity of a real estate broker or real estate salesman shall bring or maintain an action in any court in this state for the recovery of compensation for services rendered in the buying, selling, exchanging, leasing, renting or negotiating a loan upon any real estate without alleging and proving that such person, copartnership, corporation, or association was a licensed real estate broker or salesman at the time when the alleged cause of action arose.

We affirm.

Over the past thirty years Mr. White had bought, sold and managed various rental properties on his own behalf. During this period White owned a total of perhaps a dozen rental properties. He disposed of his last property in 1965 or 1966. Upon the sale of some properties, he took deeds of trust rather than cash. At the time of trial Mr. White’s income came from payments on these deeds of trust and other investments. Other than the transaction with Miriam Realty Company White never attempted to put a real estate deal together without being a purchaser or seller. White was never licensed as a real estate broker or salesman.

In June or July of 1970 White saw a piece of property on South Jefferson Avenue in the City of St. Louis with a Miriam Realty Company “for sale” sign on it. White contacted the company and was referred to Ralph Sapot. White wanted to purchase the lot owned by Miriam Realty Company and two adjacent lots, with the intention of reselling them at a profit. Three contracts were prepared by White and submitted to Mr. Sapot but they were never executed by the owners.

Kenneth Baldridge, a licensed real estate broker, had previously told White he was interested in purchasing some property near Jefferson and Arsenal Streets. Baldridge acquired sites in the St. Louis area for several companies, including Burger Chef. White called Baldridge to inform him of the property on Jefferson Street. Baldridge was under the impression that White owned or had contracts on the property. When Baldridge found out White did not own the property he told White he had to deal directly with the owners because that was the policy on all Burger Chef deals. White brought Baldridge to Sapot’s office and from this point on all negotiations were between Baldridge and the owners of the three lots. White did not participate in these negotiations. White also had nothing to do with satisfying contingencies in the contracts such as zoning requirements and building permits. Baldridge alone handled this.

In a conversation with Mr. Sapot, White informed Sapot that he was not a licensed broker or salesman. Baldridge was present during this conversation. White denied having held himself out to the public as a real estate broker or salesman and this was confirmed by Baldridge.

At some point Baldridge told Miriam Realty Company that he “couldn’t sign a contract with them until they took care of Mr. White because he made the introduction to me.” Miriam agreed to pay Whité $5,700 when the three lots were sold. On February 9, 1971, Miriam proposed to reduce White’s payment to $2,700. After several conversations White agreed to accept $3,300. This offer was accepted by Miriam and a written agreement executed by Miriam. The three lots were sold to Baldridge on February 19, 1971. Following the sale, Miriam refused to pay plaintiff the agreed sum claiming such a payment was prohibited by Chapter 339, RSMo.1969.

The issue to be resolved is whether under the facts in this case White is a person “engaged within this state in the business or acting in the capacity of a real estate broker or real estate salesman . . .” (§ 339.160, RSMo.1969). Section 339.010, RSMo.1969, defines a real estate broker as:

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.

Concerning the first part of this definition, the trial court determined that White “did not advertise, claim to be or hold himself out to the public (or to Defendant or Baldridge) as a real estate broker or salesman, as defined in Section 339.010.” This determination is supported by substantial evidence. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.banc 1976). Baldridge and Sapot both knew that White was not licensed and there is no evidence that White had negotiated with anyone else. White and Baldridge also both denied that White had ever held himself out as a broker.

Within the second part of the definition of a real estate broker in § 339.010, RSMo.1969, we look not at labels such as “finder’s fee” or “commission” but at the legal effect of White’s role in this transaction. Dolan v. Ramacciotti, 462 S.W.2d 812, 815 (Mo.banc 1970). The phrase “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 . ” (§ 339.010), contemplates an agency relationship where the broker acts for someone else. This conclusion is bolstered by the fact that brokers, in general, are considered agents (12 Am.Jur.2d Brokers § 1, p. 772; 12 C.J.S. Brokers § la, p. 5) and by § 339.040, RSMo.1969, which provides in part that “[a] license shall be granted only to persons . . . who are competent to transact the business of a real estate broker ... in such manner as to safeguard the interests of persons whom they represent . . . ” (emphasis added). See also, Timmerman v. Ankrom, 487 S.W.2d 567, 570[2] (Mo.1972) (discusses the agency relationship of a real estate broker). In the case at bar, the trial court correctly determined that White “did not represent either party.” He first worked for himself and later only brought the parties together. He was never employed by either party to find a buyer or seller and the agreement to pay him occurred only after the termination of White’s activities in this transaction. Dolan v. Ramacciotti, supra at 816[6], where plaintiff “represented himself to potential lessees as having the ability and authority to solicit the lease” on behalf of the owner and was barred from any compensation, is clearly distinguishable.

Furthermore, even though the real estate licensing statutes are an exercise of the police power “to protect the public from the evils of fraud and incompetency,” Gilbert v. Edwards, 276 S.W.2d 611, 616—17 [5, 6] (Mo.App.1955), quoted with approval in Miller Nationwide Real Estate Corporation v. Sikeston Motel Corporation, 418 S.W.2d 173, 176-77 (Mo.1967), and “our courts have construed Chapter 339 very strictly, and have trenchantly turned aside various attempts to avoid or erode the provisions of Section 339.150 and 339.160,” Ingalls v. Neufeld, 487 S.W.2d 52, 55 (Mo.App.1972), this purpose is not violated if White is allowed to recover on this contract after dealing only with licensed or experienced persons who were aware that he was not licensed. As the trial court noted, in such a situation “there is no danger of an unlicensed broker taking advantage of the public.”

It is also significant that White did not participate in any negotiations between Baldridge and the owners once the buyer and seller were brought together. Based on a statute similar to Missouri’s, California has long recognized an exception to the real estate licensing statutes where a person merely brings parties together so they may negotiate their own contract but does not himself participate in the negotiations. Such a person is not acting in the capacity of a real estate broker and need not be licensed. Tyrone v. Kelley, 9 Cal.3d 1, 106 Cal.Rptr. 761, 507 P.2d 65 (banc 1973) (good discussion and summary of the case law development of the finder’s exception). See also, Kaplan v. Swartz, 41 F.2d 177, 179[5] (1st Cir. 1930) (not a broker when contract was only to disclose names and furnish an introduction for a share of the profits); 12 Am.Jur.2d Brokers § 1, p. 772; 12 C.J.S. Brokers § la, p. 5 (brokers are usually engaged in negotiations). But see, 24 A.L.R.3d 1160, 1172-74 (collects cases from different jurisdictions, some of which recognize a finder’s exception and some of which do not). As pointed out in Tyrone at 72, the reasons for requiring persons to be licensed (the primary one of which is to ensure competency and integrity among real estate brokers) do not come into play “where the undertaking is merely to seek out, locate, find and introduce a buyer, seller, borrower or lender to his counterpart or where negotiations and completion of the transaction are left completely to the principals. By enforcing the promise to pay a finder’s fee we give effect to the policy of the enforcement of contracts in cases where the policy underlying the licensing statute does not directly apply.”

It has long been the law in Missouri that where one who finds and introduces one person to another to afford the first party an opportunity to negotiate a business contract or arrangement, such as a loan, sale or purchase of property, real or personal, where all the necessary elements of a contract exist and the business deal is consummated, the finder is entitled to compensation. Longmire v. Diagraph-Bradley Stencil Mach. Corporation, 176 S.W.2d 635, 644 [1—5] (Mo.App.1944). Plaintiff here did not hold himself out to the public as a licensed broker. He only brought two parties together without representing either one and did not participate in negotiations. The trial court correctly determined that White was not “engaged within this state in the business or acting in the capacity of a real estate broker or real estate salesman” within the meaning of §§ 339.160 and 339.-010, RSMo.1969, so that § 339.160 does not bar plaintiff from recovering on this contract.

The judgment of the trial court is affirmed.

CLEMENS, P. J. and DOWD, J., concur.


author: McMILLIAN, Presiding Judge.

text:
    Willie J. MOORE, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY et al., Defendants-Respondents.
    No. 36758.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 1, 1977.

      Howard & Singer, Raymond Howard, Jr., Kenneth Singer, St. Louis, for plaintiff-appellant.
    Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, George J. Bude, Clayton, for defendants-respondents.
   McMILLIAN, Presiding Judge.

The Board of Education of the Special School District of St. Louis County, after a hearing, terminated the indefinite contract of permanent teacher Willie J. Moore based on findings of incompetency, inefficiency, insubordination and wilful violation of district rules and regulations. The circuit court of St. Louis County affirmed the board’s decision, and this appeal followed.

Appellant raises two points on this appeal: First, the court erred in finding and holding that the school authorities complied with the “meet and confer” requirement of § 168.116(2), RSMo 1969. Second, the court erred in denying appellant’s constitutional right to procedural due process in his termination proceedings because the board misinterpreted its role in the hearing, acting as prosecutor and not as an impartial trier of fact. We affirm.

As appellant does not challenge the sufficiency of the evidence to support the board’s findings, we briefly outline the facts. The board’s action against appellant followed approximately one-and-one-half years of dissatisfaction with his teaching performance by the school authorities. Appellant was notified of this dissatisfaction by a formal evaluation report at the end of the 1972-73 school year — to which an informal and more candid evaluation was attached — and during conferences and discussions with appellant’s principal, Dr. Green; his assistant principal, Mr. Tucker; and Dr. Kidd, the assistant superintendent of the district. As a result, appellant received no salary increase for the ensuing 1973-74 school year. Subsequent failure to improve culminated in a written warning dated March 8, 1974. The letter warned that appellant should cease certain enumerated actions and improve areas of teaching deficiencies. More specifically, the letter stated that appellant had “failed to properly provide for student learning needs, . . . ” citing examples, “ . . . displayed com-píete inability to maintain discipline, . . ” citing incidents, “ . failed to follow administration directions by allowing students to leave class before the bell sounded, . left the cafeteria when . on duty . . . sent . . . children to gym even though an announcement was made that there would be no gym class, and [had] permitted children to leave classroom for recess even though it was not recess time.” In addition, the letter warned appellant that he had violated school rules and regulations regarding inflicting corporal punishment on students.

On April 18, 1974, formal charges were filed against appellant. Pursuant to § 168.-114, RSMo 1969, which states grounds for termination of an indefinite teaching contract, the board charged appellant with incompetency, inefficiency and insubordination, restating the examples and incidents cited in the March 8, 1974 letter with particularity. A subsequent letter dated April 30, 1974, informed appellant that formal charges were also filed regarding his use of corporal punishment.

Appellant was given a public hearing in accordance with his request. On June 28, 1974, the board adopted the following written decision terminating the indefinite contract of appellant:

“BE IT RESOLVED, that in consideration of the evidence adduced at' a hearing ■ before this Board of Education on June 12, 1974, it is the decision of the Board of Education of the Special School District of St. Louis County that the contract of Willie J. Moore be terminated and the same is hereby terminated effective immediately for the following reasons, to- • wit:
“A. He was incompetent, inefficient and insubordinate in the line of duty in that;
“1. he failed to properly provide for student learning needs even though on many occasions he was instructed to do so;
“2. he displayed complete inability to maintain discipline; and
“3. he failed to follow administration directions.
“B. He wilfully violated and failed to obey the written and published rules and regulations of the District by inflicting corporal punishment on students.”

Appellant thereupon filed a timely notice of appeal in accordance with § 168.120, RSMo 1969. On December 20, 1974, the circuit court dismissed the appeal. Two grounds for the decision were identified. The court found that the board’s findings resulting in appellant’s termination were supported by competent and substantial evidence and were not against the overwhelming weight of the evidence. The court further found that the notice and “meet and confer” requirements of the Teacher Tenure Act had been complied with. This appeal followed.

Appellant’s first point on appeal is that the conclusion that the school authorities complied with the “meet and confer” requirement of § 168.116(2)’ was not supported by competent and substantial evidence. Section 168.116(2), reads as follows:

“At least thirty days before service of notice of charges of incompetency, inefficiency, or insubordination in line of duty, the teacher shall be given by the school board or the superintendent of schools warning in writing, stating specifically the causes which, if not removed, may result in charges. Thereafter, both the superintendent, or his designated representative, and the teacher shall meet and confer in an effort to resolve the matter.”

The statute, therefore, requires two specifics before the filing of formal charges of incompetency, inefficiency or insubordination. “ . One, the teacher must be given a written warning, stating with particularity the defects in the teacher’s performance. Two, the superintendent or his designated representative must meet with the teacher and make a good faith effort to remedy the defects.” Merideth v. Board of Ed. of Rockwood R-6 Sch. Dist., 513 S.W.2d 740, 750 (Mo.App.1974) and Pollard v. Board of Ed. Reorg. Sch. Dist. No. III, Platte County, 533 S.W.2d 667, 670 (Mo.App.1976).

With regard to the second statutory requirement, that of a meeting to cure the defects, appellant argues that the superintendent and his designated agents did very little, if anything, to help appellant correct his teaching deficiencies after the March 8, 1974 warning letter.

Because resolution of this question involves the determination of what meetings and discussions were held and their content, we must look to the record, viewing the evidence in a light most favorable to the board. In reviewing an administrative decision on evidentiary grounds, the court considers all evidence before the board, but its inquiry is limited. The reviewing court may only determine whether the board could reasonably have made its findings and reached its result or whether the decision was clearly contrary to the overwhelming weight of evidence. Blunt v. Parker, 495 S.W.2d 708, 712 (Mo.App.1973). The court may not substitute its judgment on the evidence and may not set aside the board’s decision unless it is not supported by competent and substantial evidence on the whole record. In addition, the evidence must be considered in a light most favorable to the board’s decision, together with all reasonable inferences which support it. Harrod v. Board of Ed., City of St. Louis, 500 S.W.2d 1, 6 (Mo.App.1973). If the evidence before an administrative body would warrant either of two opposed findings the reviewing court is bound by the administrative determination and it is irrelevant that there is supportive evidence for the contrary finding. Hanebrink v. Parker, 506 S.W.2d 455, 458 (Mo.App.1974). Also the determination of the credibility of the witnesses is a function of the administrative tribunal. Hanebrink v. Parker, supra; Merideth v. Board of Ed. of Rockwood R-6 Sch. Dist., supra. Board of Education, Mt. Vernon Schools, Mt. Vernon v. Shank, 542 S.W.2d 779 (Mo. banc 1976).

When the testimony before the board is considered in light of these principles, we conclude that the circuit court did not err in holding that the school authorities had complied with the statute. Appellant’s superintendent, Dr. Spurgeon, testified that he designated appellant’s supervisor and department head to meet with appellant regarding the charges. The record shows a meeting was held, to which appellant filed a written reaction. Further, appellant’s principal, the assistant principal, and the assistant superintendent discussed appellant’s teaching deficiencies with him after the March 8, 1974 warning letter. Most of the complaints in the warning letter were not new to appellant; there had been several discussions and attempts by the principal to help appellant during the prior 1972-73 school year, even going so far as to arrange that appellant’s students for the 1973—74 school year were predetermined to present less serious discipline problems than the students of the foregoing year. Based on the record, we believe the school authorities did comply with the statutory “meet and confer” requirement.

Appellant’s second contention concerns his complaint that he was denied his constitutional right to procedural due process in the termination proceedings because the board misinterpreted its role at the hearing, acting as a prosecutor and not as an impartial trier of fact. Appellant relies on statements by the chairman of the board, Mr. Harrington, at the outset of the proceedings to the effect that Mr. Tzinberg, the attorney representing the superintendent filing the charges, was “our [respondent’s] attorney.”

Under our Teacher Tenure Act, the board of education alone has the dual role of presenting the charges and sitting in judgment of those charges. § 168.114-168.-116, R.S.Mo.1969. The mere fact that the same agency makes the initial charge and then makes the ultimate adjudication, does not alone result in a due process violation. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 186 (1975) and Rose v. State Bd. of Registration for the Healing Arts, 397 S.W.2d 570 (Mo.1965).

There is a strong presumption in favor of the validity of an administrative determination. We will not assume that such a body was improperly influenced absent clear and convincing evidence. Saunders v. Reorg. Sch. Dist. No. 2 of Osage County, 520 S.W.2d 29, 36 (Mo.1975); Mitchell v. City of Springfield, 410 S.W.2d 585 (Mo.App.1966).

We have read through the record carefully and find that the board acted fairly and well within its discretionary powers. Appellant has failed to present any clear evidence of any actual bias or prejudgment on the part of the board. The preliminary remarks made by Mr. Harrington did not result in a denial of appellant’s right to procedural due process.

Accordingly, judgment is affirmed.

STEWART, J., and ALBERT L. REND-LEN, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Marvin James PERTUISOT, Appellant.
    No. 38264.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 1, 1977.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Ralph A. Dobberstein, Asst. Circuit Atty., St. Louis, for respondent.
    Sestric, McGhee & Miller, Cynthia S. Holmes, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

In 1967 the trial court found defendant Marvin James Pertuisot not guilty of arson by reason of insanity. The court committed him to Fulton State Hospital pursuant to § 552.040, subd. 1, RSMo 1969. In 1975, contending he had recovered, defendant petitioned the circuit court for release under paragraph 4. of § 552.040. After an eviden-tiary hearing defendant has appealed from the judgment denying relief.

Defendant contends here that the trial court erred in denying his release because the evidence of his present condition warrants release and also erred because he is no longer receiving proper treatment.

Defendant produced the testimony of two hospital staff psychiatrists to support his petition for release. We have studied that'testimony in detail and adopt the trial court’s finding: “The court understands the testimony of Dr. Tellez to be that the patient has not recovered as provided in Section 552.040. The testimony of Dr. Lum is, to summarize, that he can be released conditionally, that he still has a psychotic condition with partial remission.” Paragraph 2 of § 552.040, with our emphasis added, provides “No person shall be released from such commitment until it is determined through the procedures provided in this section that he does not have and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or unable to conform his conduct to the requirements of law.” The statute was analyzed and construed by us in State v. Montague, 510 S.W.2d 776[4-6] (Mo.App.1974) wherein we held “the statutory language used and the policy behind the law, as enunciated by the courts of other jurisdictions, place the burden of establishing facts to support release upon the applicant for such release. . . .We need not

determine whether Montague has a mental disease or defect making him dangerous. We need only determine whether the evidence clearly establishes his freedom from such condition.” Defendant Pertuisot has failed to meet his burden of showing freedom from mental disease as required by the quoted statute and his primary point is denied.

In his petition defendant contended he should be released because he “has received maximum benefit from the Fulton State Hospital.” He expands on that plea on appeal by contending for release on the ground “he is not receiving proper treatment.” Assuming arguendo that defendant’s point relied on is reviewable, it must be denied. Factually because Dr. Tellez testified defendant had improved and was continuing to improve and Dr. Lum testified defendant’s condition was “schizophrenic in partial remission.” And legally because § 552.040 does not authorize release for “improper treatment” but is limited to those defendants who are found to be so free of mental disease that they are no longer dangerous to themselves and others.

Judgment affirmed.

DOWD and WEIER, JJ., concur.