author: CLAYTON, Justice.

text:
    Lillie Mae HALL, Administratrix of Estate of Bryant Wilson Stinson, Deceased, et al., Appellants, v. James E. ENGLAND et al., Appellees.
    Supreme Court of Kentucky.
    March 5, 1976.
    Robert C. Carter, Edwin F. Kagin, Jr., Louisville, for appellants.
    James S. Shaw, Mellor & Shaw, Charles D. Goble, Delahanty, Goble & Terry, William 0. Guethlein, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.
   CLAYTON, Justice.

This appeal was taken from summary judgments entered in favor of appellees England, The University of Louisville and Nunnelley Funeral Home. The complaint filed in this action alleged in part that the appellees had “ . . . unlawfully, intentionally or negligently . . . caused the mutilation and desecration of the dead body of Bryant Wilson Stinson (and) [t]he acts or omissions of defendants were . . . (in) disregard of rights.”

On February 17, 1969, Bryant Stinson died at the England Boarding Home in Louisville, Kentucky. His body was taken by police ambulance to Louisville General Hospital where he was pronounced dead. A coroner was called and at his behest an autopsy was performed. The body was then transported to Nunnelley Funeral Home and held there for three days. The body being unclaimed it was transferred, pursuant to the provisions of KRS 311.330, to the University of Louisville Medical School where it was held until relatives claimed the body on or about March 5,1969.

Appellants argue that the failure of James England and Nunnelley Funeral Home to notify “known” relatives of the deceased constituted an actionable wrong under KRS 311.330 — England by his failure to notify a relative allegedly known to him and Nunnelley Funeral Home by its lack of effort to find relatives. We do not agree. The statute involved was complied with. The funeral home attempted to locate relatives but was unsuccessful.

While the body of the deceased was being held by the University of Louisville Medical School, Dr. James B. Longley, in response to a telephone inquiry by appellants, allegedly informed appellants that dissection of the body had already begun. In later answers to interrogatories Dr. Longley stated that he had been mistaken and that the body of Bryant Stinson had not been committed to the dissection program. There was ample medical evidence in the record to establish that the body of the deceased had not been dissected but had merely undergone a normal autopsy.

While a valid cause of action for mutilation or desecration of a dead body does exist in Kentucky, the facts of this case are insufficient to sustain the appellants’ contentions on this appeal. As stated in Adkins v. Greyhound Corp., Ky., 357 S.W.2d 860, 862 (1962), the granting of “[a] summary judgment is proper when it is manifest that the party against whom the judgment is sought could not strengthen his case at a trial and the moving party would be entitled ultimately and inevitably to a directed verdict.”

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: STERNBERG, Justice.

license: Public Domain

text:
    James FIELDS, Appellant, v. TWIN CITY DRIVE-IN et al., Appellees.
    Supreme Court of Kentucky.
    March 5, 1976.

      Buel L. Cox, Louisville, for appellant.
    Robert B. Hensley, Munfordville, for ap-pellee Twin City Drive-In.
   STERNBERG, Justice.

This is a workmen’s compensation case. The only issue presented is whether an independent contractor is an employee within the terms of KRS 342.640. The Workmen’s Compensation Board found in the negative. On appeal to the Hart Circuit Court, the finding of the Board was sustained. Inasmuch as the issue involves interpretation of a relatively new statute which replaced one that had been repealed, it is necessary that we consider them both.

The Workmen’s Compensation Act (former KRS 342.005) applied “ * * * to all employers having three (3) or more employees regularly engaged in the same occupation or business * * *.” This statute was consistently, and not infrequently, construed to exclude an independent contractor from being an employee. Ratliff v. Redmon, Ky., 396 S.W.2d 320; Chambers v. Wooten’s IGA Foodliner, Ky., 436 S.W.2d 265; and Carter v. Martin Petroleum Co., Ky., 460 S.W.2d 810. Also see 81 Am. Jur.2d, Workmen’s Compensation, Sec. 167.

The regular 1972 session of the General Assembly enacted Chapter 78. Section 36 thereof repealed KRS 342.005 and Section 4 thereof has been codified as KRS 342.640. The repeal of 342.005 and the enactment of 342.640 became effective January 1, 1973. So much of KRS 342.640 as is applicable to the issue provides as follows:

“Coverage of employes. — The following shall constitute employes subject to the provisions of this chapter, except as exempted under KRS 342.650:
(1) Every person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of employes whether paid by the employer or employe, if employed with the knowledge, actual or constructive, of the employer.”

Appellant contends that the legislature broadened the coverage and that now any person in the service of an employer under any contract of hire is an employee and is subject to the provisions of the Workmen’s Compensation Act. It is true that the Act contemplates an employer and employee relationship which has been brought about by an express or implied contract. It does not necessarily follow, however, that all persons working under a contract are employees as contemplated by the Workmen’s Compensation Act. When we paraphrase the current statutory provisions relating to coverage under the Act, we find that any person * * * that has in this state one or more employees (KRS 342.-630) in the service of an employer under any contract of hire (KRS 342.640) shall be liable for compensation for injury (KRS 342.610) * * * based on average weekly wages (KRS 342.730, 342.740, 342.750). The phrase “contract of hire” does not add some magic quality to the basic concept of the Act. A sow’s ear is a sow’s ear, regardless of what it is called. Nevertheless, under the current statutes, even as they were before January 1, 1973, it is the employer and employee relationship that must exist before a person comes within the provisions of the Act.

When we take into consideration the purpose of the Act and the nature and extent of the changes made at the regular 1972 session of the General Assembly, the court is of the opinion that there is- no intention manifested by the legislature to encompass an independent contractor within the definition of “employee” as used in the Workmen’s Compensation Act.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Britton P. FRANKLIN, Respondent.
    Supreme Court of Kentucky.
    March 5, 1976.
    Leslie G. Whitmer, Director, Kentucky Bar Association, Frankfort, for complainant.
    Robert E. Delahanty, Louisville, for respondent.
   PER CURIAM.

This matter comes before us on two disciplinary charges against the respondent, as follows:

1(a) That in the divorce case of Brown v. Brown, Civil Action No. 125849, Jefferson Circuit Court, he had received from Mary Jo Brown (the plaintiff) $185 in full payment of his fee and court costs and had thereafter failed and refused to satisfy a balance of $79.00 due and owing on the court costs.

(b) That after receipt of notice that the Inquiry Tribunal of the bar association would institute proceedings against him if the costs were not paid within 10 days he reported to the bar association by letter that he had remitted the sum of $34.50 as the balance owing on the court costs, but in fact had not paid it.

The foregoing charge was filed on May 2, 1973.

2. That in June of 1971 he had accepted a $50 retainer fee to represent Paul Hunziker in the divorce case of Hunziker v. Hun-ziker, Civil Action No. 150574, Jefferson Circuit Court, but after appearing at one hearing on a preliminary matter took no further action and suffered a judgment to be taken against his client awarding alimony, maintenance and fees.

This charge was filed on December 10, 1973, and was later consolidated with the charge filed on May 2, 1973.

After an evidentiary hearing at which the respondent appeared in person and by counsel the trial committee in effect found him guilty on both charges and recommended his suspension from practice for 60 days. The Board of Governors concurred, and so recommends to this court, which has considered the evidence de novo.

We shall discuss the charges in the order in which they are listed above.

Mrs. Brown had brought suit for a divorce in March of 1969, after which, apparently, there were one or more delays by reason of tentative reconciliations. Eventually the untimely death of her attorney, the late E. P. Sawyer, necessitated securing other counsel, and she retained the respondent. She paid him $100 on March 31,1971, $100 on October 15, 1971, $100 on February 3, 1972, and $185 on March 23, 1972. The receipt for the last payment shows that it was “for payment in full & court cost,” etc.

The respondent prepared and filed an amended complaint for Mrs. Brown and on November 16, 1971, appeared in her behalf at a hearing on temporary support. In April of 1972 she and her husband signed a property-settlement agreement, but for some reason the husband’s attorney, Roy Blandford, failed to sign it before it was filed, and shortly thereafter he (Blandford) moved to Texas. According to Mrs. Brown, on May 26, 1972, the respondent told her that the divorce would be final on the following Monday, but she later checked into the records herself and learned that the divorce had not been granted. She made several unsuccessful efforts to get in touch with the respondent and finally, in August of 1972, employed Martin Sullivan, another attorney.

Sullivan checked the records in the clerk’s office and found that everything was in order for the divorce to go through except for three things: (1) the respondent had not signed the amended complaint; (2) Bland-ford had not signed the settlement agreement; and (3) the cost bill had not been satisfied. He called and left a message at the respondent’s home, but on the next day, August 24, 1972, chanced to see him at the court house, at which time they discussed the matter.

Sullivan testified that on this occasion the respondent told him the costs had been paid. The respondent says, however, that what he told Sullivan was that there was “some mix-up,” by which he meant Bland-ford’s failure to sign the agreement, and that he would straighten it out as soon as he could. In any event, after making another inquiry at the clerk’s office Sullivan on the same day (August 24, 1972) sent a letter asking the respondent for a receipted cost bill. Receiving no answer, he wrote again on September 13, 1972. Again there was no response, and on September 19, 1972, Sullivan advised the respondent by letter that he had filed an order substituting counsel, that the costs still had not been paid, and that if they were not satisfied within 10 days he was asking that the matter be referred to the bar association.

On October 1 and 2, 1972, the respondent wrote Sullivan two letters in which, among other things, he stated that the correct amount of the cost balance was $98.75 and that on August 24, 1972, a friend of his had gone to the clerk’s office to tender payment of that amount but had not done so because he was told that this was not the correct figure. In both letters the respondent took Sullivan to task for having alleged that he (the respondent) had been paid and was holding the sum of $185 for court costs.

Meanwhile, Sullivan reported the difficulty to the bar association and proceeded to have Mrs. Brown’s divorce granted on October 26,1972, entailing additional court costs of $34.50. Actually the correct amount of costs before Sullivan’s intervention had been $75.75, a bill for that amount had been sent by the clerk on June 15, 1972, and it had been received by the respondent.

On November 17, 1972, the respondent wrote a letter to the bar association explaining that the proof in Mrs. Brown’s case had been filed by the reporter on June 15, 1972, at which point all that remained to be done was to refer the file to the commissioner, pay the costs, and submit the case on a motion for judgment, but that he had been unable to take these steps because (a) the new “no-fault” divorce law had become effective “and the exact procedure was not then clear,” (b) the husband’s attorney, Mr. Blandford, had given up law practice and it had not been until the middle of July, 1972, that the respondent “was able to resolve several necessary matters with Mr. Michael Runner, who replaced Mr. Blandford,” and (c) on June 30, 1972, “the Jefferson Circuit Court began its summer recess and did not reconvene for normal business until September 25, 1972.”

In this letter of November 17, 1972, the respondent further explained that he had experienced extreme difficulty in obtaining the correct costs figure from the clerk, but “The correct amount which was recently determined as $75.75, has been remitted to the Clerk.”

In his answer filed in this proceeding on May 26,1973, the respondent stated that he had made this payment of $75.75 on October 3,1972. According to the clerk’s record it was received on December 7, 1972, but for some unaccountable reason was not posted until January 4, 1973. (Meanwhile, of course, the additional charges of $34.50 heretofore mentioned had been incurred.)

On January 28, 1973, in response to a letter of January 18, 1973, from the bar association requesting him to furnish evidence that the costs had been paid, the respondent reported that he had remitted the balance of $34.50 to the clerk and would forward a certification as soon as he received it. A deputy clerk testified that in March of 1973 he found loose in the Brown file a letter from the respondent dated January 28,1973, stating that he was tendering therewith “under protest, the sum of $34.50, which is said to be the balance of the costs herein. If this amount is in dispute, I request that the costs be refigured and a correct bill certified to me as soon as possible.” There was, however, no record to indicate that any such amount actually had been received by the clerk. The letter did not bear the customary stamp to show when it was received, nor did it have holes punched in it for securing into the file. The clerk’s records show that $34.50 was received on May 14,1973, after this disciplinary proceeding had commenced.

According to the respondent’s testimony, the $34.50 alleged to have been tendered by his letter of January 28, 1973, was in the form of a check and had been returned to him. He denied having planted the letter in the clerk’s file.

In his testimony the respondent explained, and it seems to have been conceded, that if the record in the Brown case had been submitted to the commissioner without Blandford’s signature on the settlement agreement it would have been rejected. Hence it was necessary for a successor to be substituted for Blandford. Eventually he was succeeded by attorney Michael Runner, who, said the respondent, was at military camp and on vacation during part of the summer of 1972 and could not be “pinned down” about signing the agreement in lieu of Blandford. And, according to the respondent, the circuit court was in limbo until September anyway. Yet he produced a letter from Runner dated July 25,1972, to the effect that “several weeks ago . you assured me . that we would take this case up for final decree. I would appreciate hearing from you at your earliest convenience so that we may finish this file. The agreement has been filed [Runner evidently did not realize at the time that Blandford had not signed it], interrogatories taken, the only steps to take are to pay the court costs and file another affidavit reaffirming Mrs. Brown’s interrogatories. Please advise me when we may file the final decree.”

As the foregoing recitation indicates, on May 2, 1973, when the disciplinary charge arising from the Brown case was filed, the balance actually owed on the court costs was $34.50. That the bar association itself apparently had been unable to ascertain the correct amount and state it in the charge lends some credence to the respondent’s explanation that he never had been able to get a correct statement from the clerk.

The impact of this charge is further blunted by the bungling manner in which the records of the Jefferson Circuit Court Clerk seem to have been handled. There is, for example, the notation that the $75.75 payment posted on January 4, 1973, actually had been received on December 7, 1972, and reposed on someone’s desk during the interim. This circumstance injects an equivocal note into what might otherwise be conclusive evidence against the respondent, and it is compounded by the failure of any of the participants in the proceeding to ascertain the date on which treasurer’s check No. 2056342, by which the $75.75 was paid, was issued by the Louisville Trust Company.

It will be recalled that in his letter to the bar association dated November 17, 1972, the respondent stated, “The correct amount which was recently determined as $75.75, has been remitted to the clerk.” The explanation given in his testimony was, “I probably had reference to when I tendered, or we tendered the seventy-five, seventy-five, and the clerk computed the costs to be ninety-eight dollars and something The point was that there were several tenders of the costs, and it was not until December 7th, that the tender was accepted at seventy-five, seventy-five, being correct . on several occasions, the tender was refused because the amount tendered was considered, by the clerk, not correct. And it was only until December that the amount was tendered and accepted by the Clerk, only it was then that the Clerk considered this amount to be the correct and. full costs. I have no explanation why they received it on December 7th, yet did not give it a credit until January the 4th.”

Despite the equivocal circumstances in the case, it is uncontroverted that on June 15, 1972, a correct cost bill for $75.75 was sent to the respondent, that he received it, and that Mrs. Brown had advanced him the money to pay it. Regardless of what defects stood in the way of submitting the case for judgment, he should have paid it then. His attempts to explain why he did not do so smack more of artifice and evasion than the truth. There were just too many occasions on which he reported the costs to have been paid, when in fact they had not been paid, for his account of the matter to be worthy of credence. It seems all too clear that only when the bar association came snapping at his heels did he have any inclination to move, and that otherwise he probably would never have moved at all. We cannot avoid the conclusion. that on each of the occasions, in November of 1972 and January of 1973, when he reported to the bar association that the costs in the respective sums of $75.75 and $34.50 had been paid or “remitted” he had in fact neither paid nor tendered them.

Although the figures stated in charge 1(a) were not correct, the charge was sufficient to provide notice of the substance of the complaint, which was that the respondent had collected in full from his client and had failed to pay the costs without any reasonable excuse for such failure. Charge 1(b) is but another facet of the same basic complaint. We find him guilty of the charge.

On the Hunziker matter we are not convinced that the evidence warrants a finding of guilt. Having been sued by his wife, Hunziker paid the respondent $50 towards a

$75 retainer fee. Hunziker says he retained the respondent to represent him throughout the divorce proceeding. The respondent says he was retained only for a preliminary hearing which had been set. Some time after the preliminary hearing the respondent telephoned. Hunziker’s home several times and left word for Hunziker to get in touch with him. According to the respondent, these calls were not made because he was continuing to represent Hunziker, but because the wife’s attorney had told him he was about to have Hunziker held in contempt for failing to comply with a temporary support order and the respondent was merely trying to get the word to him. At any rate, Hunziker admitted in his testimony that he had received these telephone messages and that he tried to reach the respondent but never was able to find him. Giving the respondent the benefit of the doubt, we find the case on this count a little too fuzzy to provide a reliable basis for disciplinary action.

We are not impressed with the respondent’s arguments that our disciplinary procedure denies him due process and equal protection. The action of the board of governors of the bar association is essentially a screening process. A final decision of guilt can be made only by this court, and it is done on the basis of a de novo consideration of the pleadings and the trial record. Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900, 904 (1972). Nor is it necessary that the charge be proved beyond a reasonable doubt, though it is probable that each judge of this court, in deciding so serious a matter, actually applies that criterion anyway.

The respondent is fortunate that the bar association did not see fit to charge him with converting his client’s funds to his own use. He might very well have fared considerably worse. As it is, we conclude that by reason of his slipshod practice in the matter of costs in the Brown case he should be suspended from the practice of law in this Commonwealth for a period of six (6) months.

It is so ordered.

All concur.


author: WEIER, Presiding Judge.

text:
    James Edward CARTER, Movant, Defendant-Appellant, v. . STATE of Missouri, Plaintiff-Respondent.
    No. 36249.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 9, 1975.
    Motion for Rehearing or Transfer Denied Feb. 26, 1976.
    Application to Transfer Denied April 14, 1976.
    Charles D. Kitchin, Public Defender, James C. Jones, Jeffrey J. Shank, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Daniel P. Card II, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

From a denial of the motion of James Edward Carter to vacate his sentence filed pursuant to Rule 27.26, he has appealed.

Movant was found guilty of robbery first degree by means of a deadly and dangerous weapon following a jury trial, and was sentenced by the court to 20 years imprisonment. He appealed his conviction to the Supreme Court of Missouri and the judgment was affirmed in State v. Carter, 478 S.W.2d 358 (Mo.1972). In this post-conviction remedy proceeding, movant contends that the court below erred in not providing an evidentiary hearing on the allegation that movant was denied counsel at his preliminary hearing, and further, that the judgment of the court that movant was not entitled to or denied counsel at his preliminary hearing was clearly erroneous.

Prior to conducting the evidentiary hearing, the court informed counsel for movant that the allegation in the motion that mov-ant was denied counsel at his preliminary hearing did not state anything as a matter of law, and indicated that he would not hear evidence on this. Thereafter, the mov-ant did not object to the court’s ruling and did not attempt to introduce any evidence on this matter.

It is true that on June 22, 1970, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) announced that the preliminary hearing was a critical stage of prosecution which required the appointment of counsel as a constitutional right to protect the accused, but the rule of Cole man v. Alabama does not apply retroactively to preliminary hearings conducted prior to June 22, 1970. Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); State v. Terry, 485 S.W.2d 3, 4 (Mo.1972). The court record which was examined by the judge and referred to in his findings of fact indicated that the preliminary hearing was held June 18, 1970, some four days prior to the United States Supreme Court decision in Coleman v. Alabama, supra. Obviously, since the preliminary hearing was held prior to the pronouncement in Coleman, and its holding is not to be applied retroactively, the court was correct when it concluded that the allegation of denial of counsel at the preliminary hearing did not here state any grounds for relief as a matter of law.

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald Warren KNAPP, Defendant-Appellant.
    No. 36504.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 23, 1975.
    Motion for Rehearing or Transfer Denied Feb. 26, 1976.
    Application to Transfer Denied April 14, 1976.

      Rosecan, Popkin & Chervitz, Alan G. Kimbrell, St. Louis, for defendant-appellant.
    Philip M. Koppe, Asst. Atty. Gen., John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. West-fall, Roger S. Murphy, Asst. Pros. Attys., Clayton, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals from his conviction of murder in the first degree for which he received a sentence of life imprisonment. Defendant alleges reversal of his conviction on three grounds: 1) that the trial court abused its discretion-in refusing to grant a delay in the trial to allow the defendant to present a material witness; 2) that the trial court erred in refusing to allow inquiry of the jury panel during voir dire examination whether they would follow the court’s anticipated instruction concerning the material elements of the offense charged; and 3) that the trial court erred in overruling an objection to argument of the prosecutor alleged to be highly inflammatory. For the reasons which follow, we affirm the judgment.

The sufficiency of the evidence is not challenged. Defendant was working the night shift at a small machine factory in Crestwood, Missouri. At approximately 6:00 p. m. he was apparently reproached by his foreman, Bill Pappas, about his work at his particular machine. Defendant became mordant and stalked off his job. Mr. Pap-pas notified the plant supervisor of the incident, and near 9:00 p.' m. defendant’s time card was removed, an apparent indication of disciplinary action against defendant. Defendant was discovered about 10:00 p. m. by a fellow employee at a nearby tavern and advised of the time card removal. At approximately 11:00 p. m., defendant returned to the plant with a revolver, sought out Bill Pappas and proceeded to shoot him three times, inflicting mortal wounds. The incident was witnessed by several persons who testified at trial that they observed the defendant shoot Mr. Pappas and then unhurriedly leave the plant. Defendant was arrested early the next morning in Troy, Illinois. When approached by Troy police, defendant readily acknowledged killing Mr. Pappas; the revolver used to kill Mr. Pap-pas was in defendant’s possession.

On November 9, 1973, defendant entered pleas of not guilty and not guilty by reason of mental disease or defect. Thereafter he was examined by two psychiatrists and given an electroencephalograph examination by another physician, resulting in defendant’s ultimate withdrawal of his plea of not guilty by reason of mental disease or defect, leaving only his plea of not guilty in effect.

After five continuances, three at defendant’s request, trial was set for April 1,1974. On April 1, defendant withdrew his plea of not guilty by reason of mental disease or defect. The case was then continued by the court to Wednesday, April 3, 1974 at which time the trial commenced. The State rested its case at approximately noon on Thursday, April 4. At the close of the State’s case defendant’s counsel made an oral motion for a recess to make possible the appearance of a psychologist for the defense. In his oral motion, defendant’s counsel stated that the psychologist, Dr. Allen Barclay, who had examined defendant on Tuesday, April 2, was in Florida and would not return to St. .Louis until 4:00 p. m. on Friday, April 5; that Dr. Barclay, based on some hypothetical information given him by defendant’s counsel, had indicated by telephone communication that the defendant may have been incapable of considering his actions coolly and fully. The trial court was advised that Dr. Barclay would not be available until at least 4:00 p. m. on Friday, April 5, or “possibly thereafter.” The trial court, after discussion with defendant’s counsel and hearing an offer of proof as to Dr. Barclay’s testimony, denied the request for recess. The defense produced no witnesses.

Defendant’s first point of error is that the trial court erred in overruling his motion for recess. The law concerning this issue is plentiful, positive and precise; the trial court is vested with broad discretion in ruling on motions for continuance and absent a palpable abuse of that discretion, refusal to grant a continuance — or, in this case, a somewhat indefinite recess — does not form a basis for reversal by an appellate court. State v. Reece, 505 S.W.2d 50 (Mo.1974); State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975); State v. Winters, 525 S.W.2d 417 (Mo.App.1975); State v. McDowell, 525 S.W.2d 444 (Mo.App.1975); State v. Bolden, 525 S.W.2d 625 (Mo.App. 1975). The defendant had ample opportunity to seek the advice of experts on defendant’s mental condition. And, indeed, defendant’s counsel did conduct a valiant and diligent search for and did obtain expert advice as to defendant’s mental condition, but, apparently none, but perhaps Dr. Barclay’s, was salutary for defendant’s purposes. Further, there was no assurance that Dr. Barclay would bear the desired report for the defendant. In any event, defendant had ample opportunity prior to trial during the period of continuances from November 9, 1973 to have obtained or preserved Dr. Barclay’s testimony. Denial of defendant’s request for a recess at the late date sought cannot be said to be an abuse of discretion. We acknowledge the persevering efforts of defendant’s counsel to obtain a satisfactory report for his client. The defendant had examinations by two psychiatrists, an electroencephalograph examination by a physician and an examination by a psychologist, in addition to Dr. Barclay — all apparently barren of fruit for defendant’s defense. The refusal of the trial court to grant one more thrust of the defensive foil was not unwarranted.

Defendant directs his second point of appeal to his attempt to make the following comment during the voir dire examination of the jury panel:

“What I say right now is not in any way to be considered by you to be binding or what the law is. I anticipate that the Court will instruct not only must you find that the defendant shot and killed the person involved or was responsible for this, but in Murder First Degree that he considered it coolly and fully before doing so.”

The State’s objection to the statement, or line of inquiry, which purports to specify the particular elements of murder first degree was sustained. The basis for the objection and the ruling was that the defendant was improperly anticipating the court’s instructions on the law. The court did advise defendant’s counsel that it would be proper inquiry to ask if the jury would follow the court’s instructions and require the State to prove every element of the crime of first degree murder. And defendant’s counsel did proceed to make such inquiry without naming the specific elements. We find no error in the trial court’s ruling. Although counsel are allowed reasonable latitude in examining prospective jurors, Barnes v. Marshall, 467 S.W.2d 70 (Mo.1971); Hill v. Boling, 523 S.W.2d 867 (Mo.App.1975), there are certain interdictions on the scope of permissible examination. Counsel may not tell the veniremen what the court’s instructions will be, State v. Bolle, 201 S.W.2d 158 (Mo.1947); State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956 (1942); Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34 (Mo.App.1967), nor may counsel inform the jury as to the law applicable to the case, State v. Smith, 422 S.W.2d 50 (Mo. banc 1967), cert, denied, 393 U.S. 895, 89 S.Ct. 150, 21 L.Ed.2d 176 (1968). It appears on the face of the inquiry that defendant’s counsel was anticipating an instruction and was also informing the jury as to the law. Further, the trial court has broad discretion in controlling the conduct of the voir dire examination, and we will interfere with the trial court’s ruling only in the event of a clear abuse of that discretion. State v. Pickens, 527 S.W.2d 29 (Mo.App.1975). No abuse of discretion is apparent here.

Defendant’s final point on appeal concerns a remark during the prosecution’s closing argument — specifically: “I submit to you that what Mr. Knapp truly deserves is the same thing he did to Bill Pappas.” Objection was made and overruled. The defendant claims that the argument was improper as the prosecutor was arguing punishment when the jury had no choice as to punishment. Additionally, the defendant claims the statement was highly inflammatory and appealed to passion and prejudice.

We recognize that in prosecuting a criminal trial, the prosecutor has the duty to vouchsafe the defendant a fair and impartial trial, one based upon facts and not passion, State v. Perryman, 520 S.W.2d 126 (Mo.App.1975). However, in our review of an allegedly improper argument we are reminded that “[tjhere exist many unpredictables in the trial of a lawsuit, but perhaps the most unpredictable is the flight to which words may soar in the heat and fatigue of the closing argument. It is thus recognized by our courts that as to the impropriety of argument and its effect, each case must be considered in light of the facts of that particular case.” State v. Wintjen, 500 S.W.2d 39, 42 (Mo.App.1973). The brunt of the defendant’s final argument was aimed at a plea to the jury for sympathy in arriving at punishment. In response, the prosecutor in his closing argument attempted to demonstrate that the State legislature, in assigning life imprisonment to murder in the first degree, was tempering justice with mercy:

“When you talk about tempering, sympathy, or mercy, I suppose you should temper justice with mercy. At least, that is what we are taught. But I have to ' think that the Legislature takes that into consideration when they pass laws and that is why for certain crimes they give you certain punishment and for other crimes they give you perhaps not one but a range: for murder in the first degree there is presently only oné punishment. I submit to you that what Mr. Knapp truly deserves is the same thing he did to Bill Pappas.” (emphasis added)

After defendant’s objection to the last sentence was overruled, the prosecutor clarified his point: “Life imprisonment is tempering justice with mercy. To sentence him to life imprisonment is merciful considering what he did to Bill Pappas.” It would appear that the challenged statement, although possibly inelegantly phrased, was an attempt on the part of the State to counteract the effects of the defendant’s final argument. Since a prosecutor “can go further by way of retaliation, in answering arguments of the defendant’s counsel, than he would be authorized to do in the first instance,” State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (banc 1950); State v. Knighton, 518 S.W.2d 674, 681 (Mo.App. 1975), it would appear that his argument was not improper. Also the “trial court has considerable discretion in permitting the use of retaliatory arguments.” State v. Knighton, supra at 681; See State v. Kirksey, 528 S.W.2d 536 (Mo.App.1975). We find that the trial court did not abuse its discretion in overruling the defendant’s objection to the challenged statement.

Even if we were to find the statement improper, we feel this would not be sufficient to constitute grounds for reversing the defendant’s conviction. This is the only statement by the prosecutor which was questioned on appeal. Every instance of a prosecutor exceeding the limits of proper argument is not automatic grounds for the granting of a mistrial or a reversal on appeal. State v. Raspberry, 452 S.W.2d 169 (Mo.1970). Recognizing that the trial court possesses wide discretion in the control of oral arguments, we find no abuse of that discretion in the trial court’s action with regard to the prosecutor’s argument, State v. Kirksey, supra; State v. Haynes, 528 S.W.2d 11 (Mo.App.1975); State v. Berry, 526 S.W.2d 92 (Mo.App.1975).

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.


author: SWOFFORD, Presiding Judge.

text:
    MARCO FINANCE COMPANY, Appellant, v. SOLBERT INDUSTRIES, INC., Respondent.
    No. KCD 27008.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Motion for Rehearing and/or Transfer Denied Feb. 9, 1976.
    Application to Transfer Denied April 14, 1976.

      Harold T. Van Dyke, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for appellant.
    Phillip A. Kusnetzky, Koenigsdorf, Ka-plan, Kraft, Fox & Kusnetzky, Kansas City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and SOMERVILLE, J.
   SWOFFORD, Presiding Judge.

This is the second appeal of this action in replevin. On the first appeal, the Supreme Court reversed a judgment for Solbert Industries, Inc. (Solbert) entered on its motion for directed verdict at the close of plaintiff’s [Marco Finance Company (Marco)] case and remanded the action for a new trial. 490 S.W.2d 13 (Mo.1973).

The second trial, the source of this appeal, was before a jury and resulted in a verdict and judgment for Marco and against Solbert in the amount of $9,414.00. The court below, upon after trial motion, set this judgment aside and entered judgment for Solbert. It is from this latter judgment that Marco appeals.

This court has ordered up the Circuit Court file and the transcript in the first appeal. They have been carefully reviewed and the transcript in the first trial compared with the transcript in this appeal. From this, it appears that the evidence offered by Marco in the first trial was substantially the same as that offered in the trial below, with no differences pertinent to the issue here involved. The opinion of the Supreme Court sets out in detail Marco’s evidence in the first trial. For the purpose of this second appeal, relevant facts may be thus summarized:

W. B. Baker was a commission salesman for, stockholder in, and vice president of, the corporation, Malt Village Franchisers, Inc. (Malt Village). In 1967, he also became a franchisee of Malt Village under the terms of which franchise Malt Village equipped a type of ice cream parlor at 11810 Blue Ridge Extension, in Kansas City, and placed Baker in possession thereof. The basic dispute involved here is the ownership and right to possession of, and security interest in, the equipment in this shop.

To purchase the equipment, Baker paid approximately $2,200.00 in cash and executed a promissory note to Malt Village, dated July 14, 1967, in the face amount of $16,960.00, and a Security Agreement pledging such equipment as collateral to secure such loan.

Prior to this, and before the equipment had been installed in the premises, Baker also executed a “Financing Statement” on July 6, 1967, covering this equipment and showing him as debtor, Malt Village as secured party, and Marco as assignee. This Financing Statement was filed in the office of the Recorder of Deeds in Jackson County, Missouri on the same day it was executed, July 6, 1967, and in the office of the Secretary of State of Missouri on July 12, 1967. Baker later defaulted in the payments on the promissory note and Marco, asserting its rights as assignee thereof, sought to replevin the equipment involved in this suit. However, the equipment had theretofore been seized under an attachment by Solbert, which company, acting through its secretary and attorney Chester Kaplan, subsequently secured a default judgment in the Magistrate Court against Malt Village for unpaid rent on the building. During the pendency of this replevin action and at a time when Kaplan knew of its pendency and that Marco was represented by counsel, and after the Circuit Court had issued a delivery order for the personal property, Solbert, through Kaplan, requested the Magistrate Court to sell the equipment. This was accomplished and the equipment sold for about $1,350.00.

Solbert’s connection with this matter arose by reason of the fact that it had agreed with Malt Village, acting through Baker, to construct the malt shop on Blue Ridge Extension and lease it to Malt Village. This was done. The lessee, Malt Village, was in default in the rental payments in January, 1968, which fact ultimately resulted in the Magistrate Court attachment suit and seizure and sale of the personal property located on such premises, which, in fact, was owned by Baker and encumbered to Malt Village, which encumbrance had been assigned to Marco.

In the second trial of the case, Solbert offered the evidence of two witnesses, whose testimony largely reiterated the facts above summarized, but with these exceptions and additions:

Sol Silberg, president of Solbert, stated that all of his dealings with. Malt Village had been with Baker; that Baker did not advise him that he was a franchisee and would operate the business as such on Blue Ridge Extension; that he never received any rent directly from Baker under the lease; that he was never advised that there was a “mortgage” on the equipment; that he at all times thought the personal property was owned by Malt Village; and, that he had turned the matter over to Solbert’s attorney, Kaplan, to do what was necessary to collect the unpaid rent and secure possession of the premises, and that he had no personal connection with the proceedings thereafter.

Chester Kaplan testified as to his connection with Solbert; that sometime between March 10th and 15th, 1968, with Malt Village in default, he found the shop premises vacated and locked; that he checked both the records in the Recorder’s office and those of the Secretary of State, under the name of “Malt Village Franchising, Inc.” and found no record of any lien on the equipment; that he then instituted the Magistrate Court suit and caused the property to be attached, stored and sold under execution in May, 1968; and that no one ever advised him that there was any “mortgage” on the equipment.

Kaplan testified that the Constable in the Magistrate Court attached the property on March 25,1968 and it was thereupon placed in storage. The instant replevin suit was filed April 4, 1968, and Kaplan, as registered service agent for Solbert, was served with petition and summons. He thereupon contacted Austin Van Buskirk, then attorney for Marco, on April 7th or April 8th, 1968, and advised Van Buskirk that Solbert did not have possession of the property; that it was under the control and in the possession of the Magistrate Court, and invited Van Buskirk to “enter Marco’s appearance” in the magistrate suit. Kaplan further stated that when he was served with summons in this suit, he saw the Security Agreement attached to Marco’s petition. He stated that he thereafter requested the Magistrate Court to order sale of the property even though he then knew Marco was claiming right to possession and ownership thereof under this replevin action.

In this appeal, the law of the case, as declared in the opinion of the Supreme Court in the first appeal, 490 S.W.2d 13, is binding upon this court so far as applicable to the sufficiency of the plaintiff’s evidence to make a submissible case for the jury.

No amendment to the pleadings occurred preliminary to this trial and the plaintiff’s evidence was substantially the same in all essential details. The law of the case rule applies where the pleadings (issues) are the same, and there is no substantial difference in the evidence. State ex rel. Curtis v. Broaddus, 238 Mo. 189, 142 S.W. 340, 342 (banc 1911); Williams v. Ford Motor Company, 454 S.W.2d 611, 614[3 — 5] (Mo.App.1970), and cases cited therein.

The holdings of the court in the first appeal, as to the sufficiency of the plaintiff’s evidence, was that it permitted a jury to reasonably find certain facts. Those holdings are: (1) that Marco produced evidence that it owned or was reasonably entitled to possession of the equipment (490 S.W.2d 13, 18 — 19[1]); (2) that Marco’s status as assignee of Malt Village is not detrimental to its right to recover in replevin (490 S.W.2d 13, 19[2]); (3) that Marco produced evidence that Solbert wrongfully seized the property and wrongfully detained it (490 S.W.2d 13, 19-20[2]); and (4) that such property had not been seized under any lawful process, execution or attachment against the property of Marco at the time the replevin suit was instituted, as required by Section 533.010(4) RSMo 1969 (490 S.W.2d 13, 20[2]).

How then, did the testimony of Silberg and Kaplan, as above summarized, affect the force of this doctrine and its binding significance upon this court?

The thrust of defendant’s evidence and the fact attempted to be established thereby is that Solbert did not have either actual or constructive knowledge of the fact that the property which it attached and sold under magistrate execution was encumbered by any prior liens or rights to Marco. That it had actual notice of Marco’s claims at the time of the execution sale cannot be doubted from the testimony of Kaplan acknowledging that through the service of papers upon him and his contact with Van Buskirk, Marco’s attorney, in the first days of April, 1968, he was then, at least aware of Marco’s claim. The Circuit Court file herein shows that the “Order of Delivery in Replevin”, above referred to, and supported by a statutory replevin bond was entered by the Circuit Court on April 4, 1968, and the petition and summons were served on Sol-bert corporation, via Kaplan, on April 6, 1968. Attached to the petition in replevin served on Kaplan as registered service agent for Solbert was a copy of the Security Agreement and promissory note of Baker showing the assignment thereof to Marco, thus establishing actual knowledge of Marco’s lien claim. The Magistrate Court file (an exhibit in the trial below) shows that the default judgment in Solbert’s rent and possession suit was-entered April 22, 1968 and that the sale under execution was held on May 15, 1968, in the face of such Circuit Court order of delivery.

The ultimate decision in this case must rest upon the terms and provisions of the Uniform Commercial Code, Title XXVI, Chapter 400, RSMo 1969 (Laws 1963), and any pertinent decisions thereunder. As to the statutory effect of Kaplan’s knowledge of Marco’s claim, the provisions of Section 400.9-301(l)(b) apply. This section provides, inter alia:

“(1) Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of
(b) a person who becomes a lien creditor without knowledge of the security interest and before it is perfected;
(2) If a secured [party] files with respect to a purchase money security interest before or within ten days after the collateral comes into possession of the debtor, he takes priority over the rights of a transferee in bulk or of a lien creditor which arise between the time the security interest attaches and the time of filing-
(3) A ‘lien creditor’ means a creditor who has acquired a lien on the property involved by attachment, levy or the like * * * (Emphasis supplied)

Under the provisions of this section, Sol-bert’s claim as a lien creditor could arise only when a valid attachment, levy or execution arising from its judgment for rent was accomplished. Certainly, at the time of the execution and sale, it acted with full knowledge of Marco’s claim to the equipment. Further, Solbert enjoyed no priority over the security interest of Marco, if such interest was perfected at the time of the attachment, execution or sale of Baker’s property.

The question remains as to whether or not Marco’s assigned security interest was in fact perfected. The trial court, as grounds for setting aside the judgment for Marco, stated as its reason:

. “ * * * The Court is of the opinion that plaintiff (Marco) failed to show it had complied with the provisions of (Section) 400.9-302(2) Revised Statutes of Missouri as would provide plaintiff (Marco) with a possessory right superior to defendant’s special right, as respects creditors of Malt Village Franchising, Inc. * * * ”

Section 400.9-302(2) RSMo 1969, referred to by the court, provides for the filing of a financing statement in order to protect a security interest in property. This subsection provides:

“(2) If a secured party assigns a perfected security interest, no filing under this article is required in order to continue the perfected status of the security interest against creditors of and transferees from the original debtor.” (Emphasis added) Section 7 of the UCC Comment, following

Section 400.9-302, states:

“7. The following example will explain the operation of subsection (2): Buyer (Baker) buys goods from seller (Malt Village) who retains a security interest in them which he perfects. Seller (Malt Village) assigns the perfected security interest to X (Marco). The security interest, in X’s (Marco’s) hands and without further steps on his part, continues perfected against Buyer’s (Baker’s) transferees and creditors. If, however, the assignment from Seller (Malt Village) to X (Marco) was itself intended for security (or was a sale of accounts, contract rights or chattel paper), X (Marco) must take whatever steps may be required for perfection in order to be protected against Seller’s (Malt Village’s) transferees and creditors.” (Names and first emphasis added)

The perfection of a security interest, as applicable in this case, is made by filing a financing statement with the Recorder of Deeds of Jackson County, Missouri, Section 400.9-401 RSMo 1969, in the form prescribed by Section 400.9-402 RSMo 1969, and with the Secretary of State of Missouri, Section 400.9-401 RSMo 1969. It is further provided that upon filing and payment of the required fee, the filing officer shall mark such financing statement with a consecutive file number and the date and hour of filing, and shall hold the document for public inspection and shall “index the statements according to the name of the debt- or”. Section 400.9-403(4), RSMo 1969.

There is no dispute in the case now before this court that such a financing statement, in proper statutory form, was filed July 6,1967, showing Baker as Debtor, Malt Village as Secured Party, Marco as Assign-ee, and covering the equipment involved. But Solbert asserts and the court below held that some further “steps” were required on the part of Marco to perfect its security interest. While research and the briefs of the parties have failed to disclose any reported cases in Missouri, or elsewhere, supportive of this position, none has been found to the contrary. The force of this position is destroyed, however, by the very terms of another section of the UCC and comments thereunder. Section 400.9-405(1) RSMo 1969, provides in part:

“(1) A financing statement may disclose an assignment of a security interest * * * by indication in the statement of the name and address of the assignee * * *. On presentation to the filing officer * * * the filing officer shall mark the same as provided in section 400.9-403(4).
(2) (Provides for the filing of a separate statement of assignment.)
(3) After the disclosure or filing of an assignment under this section, the assign-ee is the secured party of record.”

The Missouri Code Comment following' this section states:

“This section is new, but is in keeping with common commercial practices. Subsection (1) covers the situation in which security interest has been assigned at the time the original financing statement is filed. Subsection (2) provides for assignment subsequent to the original filing.” (Emphasis supplied)

Here, there was only one filing, on July 6,1967, which disclosed the assignment to Marco on the face of the financing statement and otherwise fully complied with Section 400.9-405(1). Nothing further was required of Marco to fix its status as “the secured party of record”. The provision requiring a separate or subsequent filing could only logically be applied to a full or partial assignment of the security interest at a time subsequent to the original filing, as clearly provided by Section 400.9 — 405(2) RSMo 1969. While it may be true that the indexing of the financing statement under the name of the debtor (in this case, Baker) undoubtedly poses difficulties for those searching the records under the name of the original secured party only (in this case, Malt Village), such is a matter for legislative and not judicial attention and correction.

The judgment below is reversed and the cause remanded with directions that the original judgment in favor of Marco Finance Company against Solbert Industries, Inc. be reinstated as of the date of its entry.

All concur.


author: DIXON, Judge.

text:
    PHOENIX INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Plaintiff-Appellant, v. CHRYSLER CORPORATION and William Eddie Reed d/b/a Reed Heating and Air Conditioning, Defendants-Respondents.
    No. KCD 27071.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Motion for Rehearing and/or Transfer Denied Feb. 9, 1976.
    Application to Transfer Denied April 14, 1976.

      J. Robert Tull, Mallory V. Mayse, Columbia, for plaintiff-appellant.
    J. Turner Jones, George D. Nichols, Columbia, for Reed.
    Howard F. Major, David A. Oliver, Roland P. Walker, Columbia, for Chrysler Corp.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

This suit arises out of a fire occurring in a restaurant owned by Arch and Mae E. Pollock. Phoenix paid a portion of the fire loss and upon subrogation brought this action against Chrysler (the manufacturer) and the Reeds (the installers) of a furnace allegedly the causative agency of the fire. The evidence was heard by the court without a jury and, upon a finding for all defendants, Phoenix appeals.

Phoenix contends under three points that the trial court judgment is in error: first, that the trial court erred in its determination that the cause of the fire could not be fixed without resorting to conjecture and speculation; second, that the trial court’s finding that there was a failure of proof as to the condition of the maintenance of the furnace was erroneous; and third, that the trial court’s finding of a failure of proof as to the installation of the electrical and plumbing connections was error. These points stated above are amplified by Phoenix by reference to certain statements of the trial court in colloquy with counsel upon the motion for new trial raising other questions concerning what Phoenix asserts was the trial court’s action in assuming facts not in evidence.

A statement of the principles of review applicable to this appeal will serve to remove from this appeal a variety of the diffused and confusing factual arguments advanced by the parties.

Review here is de novo and if upon the whole record the judgment of the trial court is correct upon any theory, the judgment will be affirmed despite the assignment of possibly erroneous reasons for the judgment advanced by the trial court. Commercial Union Ins. Co. v. Farmers Mut. Fire Ins. Co., 457 S.W.2d 224 (Mo.App.1970); Dill v. Poindexter Tile Company, 451 S.W.2d 365 (Mo.App.1970). The judgment of the trial court will not be disturbed unless palpably insufficient. R. L. S. v. J. E. S., 522 S.W.2d 5, 6 (Mo.App.1975). So, too, in this review, the inferences favorable to the prevailing party will be drawn. City of St. Louis v. Boos, 503 S.W.2d 133 (Mo.App.1973).

When considered in the light of these principles, the record supports the following factual statement.

The fire causing the damage occurred in April of 1967. It was discovered by a policeman at about 4:00 in the morning. The location of the fire was limited to an unfinished room in a section of the building where the construction of four additional rooms was underway. The furnace in question was located in that room. The furnace was a downflow type furnace in which the heat flowed under the floor in duct work to the appropriate outlets in the other rooms and the cold air returns were likewise under the floor approaching the furnace from one side and going up at the side of the furnace and in at the top, the blower functioning to pull the air past the heat exchanger and into the hot air runs. The furnace was located close to the east wall of the room and facing north. As noted, the area was in the process of construction, and there is substantial evidence that there was debris on the floor of the room immediately prior to the fire and after the fire and there was evidence that at intervals after the furnace had been lighted the defendant Reed had seen debris in the area and on at least one occasion removed cardboard and other flammable materials from a position in close proximity to the furnace. There is some slight dispute with respect to the time when the furnace was first lighted. Reed testified it was started at the least in early December of the preceding year. The owner’s testimony, based upon a hearsay conversation with the manager, indicated it had been “turned on” only the night before the fire. The firemen testified that when they arrived the burners on the furnace were still ignited and burning and that it was necessary to shut off the gas outside the building in order to stop the furnace from further burning.

The physical conditions in the building after the fire were as follows. Immediately west of the furnace there was a hole in the floor of the addition approximately 4 feet by 4 feet. The fire had burned this hole completely through the planking and a 2 x 10 floor joist. The studding on the east wall, the closest wall to the furnace, was charred and burned from a point level with the fan chamber of the furnace up to the rafters and down to within three or four feet of the floor. The roof rafters were charred over an area approximately 5 feet by 7 feet in the immediate area above the furnace. The furnace was not available at the time of trial, having been disposed of some two years after the fire by the contractor who removed it. Pictures were in evidence showing the general condition of the furnace and the area in which it was located. The wiring to the furnace was charred and in one instance burned completely in two, and the furnace itself exhibited heat damage both externally and internally. All the evidence indicated that the furnace was designed with at least three safety controls; one of these is not important in the context of the present litigation, and that is the pilot light which apparently continued to function without difficulty and which was intended only to make sure that no gas escaped into the furnace without being ignited. It is entirely mechanical in operation and does not depend upon the electricity supply.

The other two controls with which the furnace was equipped were electrical controls which operated to control the gas valve permitting gas to reach the burners of the furnace. They can be designated for the purposes of this statement as the upper control and the lower control. The lower control, reacting to heat in the area of the control, activates a mechanism which interrupts the electrical connection if the heat is in excess of 180 degrees. The upper control, operating in a similar fashion, cuts off the electricity when the temperature reaches 145 degrees. Both of these controls operate on the principle that excessive heat exceeding the limit of the switch will interrupt the electrical current connected to the valve and a mechanically activated spring will close the gas valve. It is thus apparent and conceded under the evidence that if the electrical connections were broken, the normal operation of the gas valve would be to close and thus if the electrical connections were interrupted by an external fire, the valve would mechanically close itself by means of its internal spring loaded mechanism. There was no evidence of any malfunction or improper installation of either of these controls or of the valve itself, and the evidence clearly indicated that the valve was operating properly at the time of the installation, for the serviceman who installed it made tests to determine that the thermostat and the limit controls operated to shut off the gas flow in the presence of excess heat. There was evidence that the furnace cover or door contained a decal or label affixed by glue; and, despite the evidence of great heat in the area of the furnace from either internal or external sources, the decal was not damaged in any way, leading to an inference that that cover may not have been in place at the time of the fire. The evidence is confusing on this issue, but it is possible to infer either that it was not in place or that the firemen removed it subsequent to the fire.

What has been stated thus far is the only evidence not based upon opinions and conclusions of the witnesses. As might be expected, contrary conclusions with respect to the cause of the fire were drawn by the various witnesses in the suit, the witnesses for Phoenix attributing the cause of the fire to overheating in the furnace and relying upon the evidence of discoloration of the internal furnace parts and evidence of fire in portions of the furnace where such fire would not ordinarily occur. Reed, in his testimony, concluded otherwise, and the fire department personnel who testified stated that in their opinion the cause of the fire was an overheated furnace, but admitted the possibility that the fire could have commenced or been started by the untidy housekeeping and debris in the area of the furnace, a possibility supported by the large hole in the floor adjacent to the furnace.

The expert testimony in the case boiled down to the conclusion by both the Phoenix and the Chrysler experts that the only way the furnace could have continued to burn as the firemen testified, coupled with the undisputed fact that the wiring was burned and charred, was that the valve did not properly close and from this the deduction that some physical intervention occurred to prevent the valve from properly closing.

Neither the Phoenix expert nor any of the other witnesses testified to any pattern of occurrence of such mechanical failure of a valve and, in fact, the furnace installation experts had never seen the occurrence of such a mechanical failure of a valve in the presence of foreign material. Curiously enough, the evidence does not exclude by specific mention the possibility of the valve in question being operated manually to permit the flow of gas without the intervention of the electrical controls, and the assumption underlies all of the testimony that the furnace was, in fact, operating under the restraint of the automatic controls prior to the fire. There is no evidence of any dismantling of the gas valve nor of an examination of it by anyone to establish upon visual inspection whether or not the valve had, in fact, failed to close by reason of the introduction of a foreign substance which was the only factor the experts agreed could have caused the valve to remain open when the electrical current was interrupted. Other necessary references to the testimony will be made in the treatment of the points raised.

The points raised by Phoenix on this appeal can be resolved if there is any basis upon which the trial court judgment can be sustained.

With that principle in mind, a closer review of the evidence with respect to the cause of the fire will demonstrate that the trial court’s judgment is not in error. As previously noted, there is no direct evidence concerning the cause of the fire. The direct evidence in the case clearly gives rise to at least two inferences and possibly three as to the cause of the fire. The first inference and the one which Phoenix asserts is the more “reasonable probable cause” is that, first, the gas valve failed to close by reason of some mechanical obstruction. Then the gas furnace continued to run despite the presence of enough heat to normally cause it to cease running, thereby overheating the furnace and ultimately igniting the building. Diametrically opposed is the inference, based upon direct evidence of the presence of debris around the fürnace, that highly flammable material came in contact with the normal heat of the furnace, became ignited, started a floor fire which thereupon spread to the roof and adjacent walls. A third possible cause is the inference which arises from the physical facts which indicate the furnace may have been tampered with by some of the workmen, this because, despite the intense heat in the area of the decal on the furnace, it had not been damaged, giving rise to an inference that it was not in place when the fire started. This inference is, in fact, assisted by the testimony of Phoenix’s expert who stoutly insisted that something had burned in the fan chamber of the furnace where no combustible materials ordinarily would be and which he insisted could not have occurred by the burning of the electrical wires and filter materials normally present' in that fan chamber. His testimony indicated that temperatures in the range of 1,000 degrees to 3,000 degrees existed in the fan chamber blistering only the top portion of it, but the photographic evidence and the testimony of those who observed the furnace showed no course of radiated heat from the combustion chamber of the furnace to the fan chamber of the furnace. Thus, Phoenix’s expert’s testimony concerning the existence of extremely high heat in the fan chamber of the furnace is at war with and inconsistent with his premise that that heat originated from the continuous burning of the flame from the gas burner located at the bottom of the furnace and radiating upward through the metal portion of the furnace to the top and thereby igniting the walls or ceiling. Thus, the trial court was confronted with contrary inferences from the evidence, and the opinion testimony of the Phoenix expert does not afford a clear and convincing theory of causation inconsistent with other possible causes of the fire. The Phoenix expert clearly and unequivocally testified to the presence of intense heat in the fan chamber of the furnace so intense that he characterized it as close to the heat of flame or at the heat of flame, and his testimony likewise clearly establishes his opinion that the gas valve was in some fashion permitted to remain open and the burners of the furnace operated without controls. His testimony, however, does not in any fashion, opinion or otherwise, demonstrate how the continued burning of the burners of the furnace could have created the intense heat he declared was existent in the fan chamber. On cross examination, the Phoenix expert was questioned extensively as to the source of the extremely high heat he testified occurred in the fan chamber. A portion of his testimony will demonstrate the failure of proof as to the cause of the intense heat in the fan portion of the furnace:

“A. I wasn’t there. There was evidence that there was heat from the inside of the furnace from the paint patterns, especially in the fan chamber where the charred material was found. There is a definite pattern that follows the shape of the chamber, so I concluded from that that the heat or whatever did this, did it from the inside out. I couldn’t conceive of a way, for instance, on the right-hand side of the furnace, how the heat could have come up there and concentrated itself into a rectangular pattern with no smoke evidence.
Q. But the wiring and combustibles in the top of the furnace alone would not create that much heat; is that correct?
A. Maybe not, maybe there was some gas up there burning, too. I think the firemen said it was blazing merrily away. I don’t know what was blazing but something was.
Q. Assume the firemen said there was a medium flame in the bottom of the furnace, said there was no fire coming out the front.
A. I am saying what could be up there; what was up there, I don’t know.
Q. Assume that fact.
A. Other than material in the filter, the wire or gas coming up there and burning, I don’t know.
Q. You’re saying there would have to be fire up in the top to create that heat; right?
A. Yes, yes.”

He was then asked to assume that the furnace was operating normally with a medium flame and to give any reason, if there was one, why there would be more intense heat in the top of the furnace. His response was that he knew of no reason for such a condition. Following this testimony, the court then, obviously concerned about the cause of the intense heat testified to by the expert as occurring in the upper portion of the fan chamber, questioned the expert himself concerning the possibility of the heat buildup in the burner portion of the furnace as follows:

“THE COURT: Assume for a moment there was nothing in that fan blower chamber except what was supposed to be there, the fan and the — whatever—filters are supposed to be in that area. Could the heat build up in the burner chamber sufficiently and rise into that chamber to cause the type of heat you found?
A. Not by direct path because we have the heat exchanger in between. The only openings, semi-openings were in the front section. These were — there are no combustible material there except this wire which was on the left-hand side.
THE COURT: In your opinion would that wire be sufficient to cause the heat you found?
A. No, it was only strong enough to burn a charred pattern on the outside, on the left-hand side. What happened upstairs was something else again other than just burning insulation.”

Clearly, this testimony by Phoenix’s own expert left open for inferential determination the question as to the cause of the intense heat in the fan portion of the furnace.

The trial court, confronted with this evidence, necessarily had to select the inference to be drawn. Clearly, Phoenix had the burden to persuade the trial court of the validity of its theory of the evidence and the inferences therefrom. This Phoenix failed to accomplish. The trial court had a right to accept or reject all or any part of the expert’s opinion based upon the totality of his evidence. The unsatisfactory responses of the expert as to the source of the intense heat in the fan chamber may have led the trial judge to conclude that other portions of his testimony were not persuasive or compelling and that Phoenix’s proof failed to provide a basis for the essential inference that the overheating was caused by a defective furnace.

Moreover, the fact that the trial court referred to the necessity for resorting to speculation and conjecture supports the finding of the trial court, everything else aside. If the proof offered must depend upon speculation and conjecture, then a verdict based upon such proof cannot stand. In Bowers v. Columbia Terminals Co., 213 S.W.2d 663 (Mo.App.1948), this fundamental principle was recognized and explicated. In that case, in considering a jury finding for plaintiff, the court found that the evidence was insufficient to avoid speculation and conjecture as to the causal connection between the negligence of defendant and the injury to plaintiff.

The rule and supporting authority appear in the following quotation (213 S.W.2d at 670):

“While it is not the rule in this state that for a conclusion to be supported by circumstantial evidence, the proof must rise to a degree of certainty which will actually exclude every other reasonable conclusion but the one desired, it is nevertheless held that the proof should have such a tendency, since the force and effect of circumstantial evidence depend upon its incapability of explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove. Fritz v. St. Louis, I. M. & S. R. Co., 243 Mo. 62, 148 S.W. 74; Bates v. Brown Shoe Co., supra [342 Mo. 411,116 S.W.2d 31]; Wise v. Standard Oil Co., Mo.App., 198 S.W.2d 1014. But even though it is not enough to defeat recovery that the circumstances may support inconsistent conclusions of variable probability, if the facts proved by the party having the burden of proof give no more than an equal basis for two or more inconsistent conclusions as to the existence of an essential fact, such party has in that event failed to remove the case beyond the realm of speculation and conjecture, and the facts essential to his recovery are not established by legitimate proof. Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626; Lappin v. Prebe, supra [345 Mo. 68, 131 S.W.2d 511]; Muesenfechter v. St. Louis Car Co., Mo.App., 139 S.W.2d 1102; Pape v. Aetna Casualty & Surety Co., Mo.App., 150 S.W .2d 569.” '

On the facts of the instant case, to infer that the fire was caused by an overheated condition of the furnace, however that overheating was caused, would require ignoring the inference and the evidence supporting it, that flammable material and debris were in close enough proximity to the furnace to have been ignited by the furnace’s normal operation. Viewing the trial court’s judgment and the evidence in the light of these principles, the judgment cannot be held erroneous.

Affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. William Edward NAFZIGER, Defendant-Appellant.
    No. KCD 27112.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Motion for Rehearing and/or Transfer Denied Feb. 9, 1976.
    Application to Transfer Denied April 14, 1976.

      James R. Wyrsch, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty; Gen., Jefferson City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Defendant appeals from a judgment of conviction and jury-imposed sentence of seven years imprisonment for selling cocaine. A single pivotal issue requires reversal. That issue is the failure of the trial court to require disclosure of an informant.

A summary statement of the facts will suffice to pose the issue. A police officer, Dawson, was contacted by an informant who advised Dawson that one Dennis Koe-nak would be selling cocaine at a house on East 77th Terrace in Kansas City, Missouri. Dawson and his partner, Kastner, went to the location of the house, and Dawson and the informant went into the house. There were six to eleven persons besides Dawson and the informant in the house. Two persons in the house had been previously arrested by Dawson. Dawson was introduced to a person identified only as “Bill.” Dawson or the informant said they were waiting for Dennis, and Bill told them Dennis would be back in about twenty minutes. Dawson, being apprehensive about the possibility of recognition by those persons he had previously arrested, left the house with the informant on the pretext of purchasing some wine. They discussed the matter with Kastner outside the house, purchased the wine and returned to the house. Shortly after their return, Bill came to Dawson and told him he did not think Dennis would come. Bill asked Dawson what he wanted, and Dawson said coke, meaning cocaine. Bill, Dawson, and the informant then met in the kitchen of the premises, and Bill sold Dawson tinfoil packages which were later identified as containing cocaine. As Dawson and the informant left the house, Bill came out and told Dawson he had given them too much “coke” for the price. A package was returned, and Dawson and the informant left. Upon further investigation, the police determined that Bill was an alias for one Percy Cresto. Ultimately, as a result of Dawson’s examination of a photograph and a visit to the tavern where the defendant worked, he connected the names Bill, Percy Cresto, and William Nafziger to the defendant.

Prior to trial, counsel for the defendant deposed Dawson and Kastner and attempted to learn the identity of the informant who was with Dawson at the time of the sale. Following instructions from the State’s attorney, both Dawson and Kastner refused to identify the informant. A pretrial motion requesting disclosure of the identity of the informant was overruled “on the basis of the suggestions filed in support and in opposition and on the depositions of the police officers.” The case was transferred to another circuit judge who restricted the scope of questioning at the trial in accordance with the pre-trial ruling on the motion to disclose the identity of the informant.

The deposition testimony discloses that the officers refused to disclose on the basis that the “privilege” was being asserted and the informant was characterized as “confidential.” In the State’s suggestions in opposition to the motion for discovery, it is stated that the informant’s life would be endangered if his name were disclosed, but no facts are alleged or proven to support this conclusionary statement.

The deposition testimony of Dawson discloses that he knew the informant’s name, but not his present whereabouts; that he had had no recent contact; and that the informant had been paid, but was not presently being paid or used by the State.

The defendant testified at trial and the substantial issue threaded through the entire transcript is the question of the possible mistaken identity by Dawson of the defendant. That the informant’s testimony would have been relevant and material on the issue of identification is apparent. The jury, in fact, by written question to the court, requested information as to the presence of the informant at the tavern where Dawson ultimately observed the defendant and established his true name.

As noted, the defendant postulates error with respect to the pre-trial motion for discovery on the ground that the trial court should have ordered disclosure of the name of the informant. The State counters by asserting that the trial court did not abuse his discretion in overruling the motion for discovery. The State is, of course, correct in its contention that the ruling of the motion for discovery with respect to an informant constitutes a discretionary act by the trial court.

The State, however, contends that the basis supporting the trial court in its ruling on the motion for discovery is that there is no showing in this case that the informant participated in the transaction. Relying upon State v. Yates, 442 S.W.2d 21 (Mo.1969) and State v. Taylor, 508 S.W.2d 506 (Mo.App.1974), the State’s argument is that the case law requires that the informant be a participant in the transaction and, absent a showing that he participated, the trial court cannot be convicted of error in refusing to disclose his identity. The State’s insistence upon the requirement of participation has some support in the literal language of the cases, but an examination of the facts of the cases indicates that participation as it is used in the language of the cases is, in reality, a reference to the presence of the informant at some critical stage of the proceedings so that he is qualified to testify concerning essential facts in the case. In an entrapment situation, this may, of course, involve participation in the usual sense of that word. In a case involving an identity question, mere presence of the informant and the opportunity to observe the alleged violator and, therefore, be in a position to either support the State’s identification testimony or weaken it, becomes critical. State v. Hubble, 494 S.W.2d 358 (Mo.App.1973), is likewise a case where the defendant did not raise the issue of mistaken identity.

The leading federal case on the subject of disclosure of an informant’s identity is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The court posited three possible defenses for which the informant’s testimony could be vital: entrapment, mistaken identity of the person or package, and lack of knowledge of the contents of the package (353 U.S. 53 at 64, 77 S.Ct. 623). Failure to identify the informant constituted reversible error.

The court in Roviaro articulated the standards for determining whether disclosure of an informant’s identity is required in a given case. The basic requirement is one of fundamental fairness. “Where the disclosure of an informant’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” (353 U.S. 53 at 60-61, 77 S.Ct. at 628). There are no fixed rules. “The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (supra at 62, 77 S.Ct. at 628).

In United States v. Martinez, 487 F.2d 973 (10 Cir., 1973) and Hawkins v. Robinson, 367 F.Supp. 1025 (D.Conn., 1973), convictions were reversed on facts similar to the facts of the instant case. In Martinez, an agent testified that he went with an informant to the home of Melvin Sedillo. The informant introduced the agent to Sedillo. Sedillo introduced the agent to his wife and to Martinez. The agent testified that a narcotics sale took place in the kitchen with all five persons present. That testimony was what the government relied on to convict Martinez. The other government witnesses were parked in a nearby automobile (487 F.2d 973 at 974). Sedillo claimed that neither his wife nor Martinez were in the kitchen when the sale was made. Martinez had left the house for a brief interval and returned, all while the agent was there (supra at 975). The court reversed, relying on Roviaro. The balance between protecting the flow of information to police and the individual’s right to prepare his defense in this case required disclosure. The court thought.it particularly important for Martinez to have available the informant’s testimony since there was a conflict in the testimony of the agent and that of Martinez and Sedillo in regard to Martinez’s presence at the sale (supra at 975, 976).

In Hawkins v. Robinson, supra, an alleged narcotics sale took place in the immediate presence of a policeman, an informant and the defendant. Defendant claimed he was not in the city on the date of the alleged sale (367 F.Supp. 1025 at 1027). The court held that the critical issue at the trial was identity of the person who sold the narcotics to the agent. The informant’s testimony thus would have been “highly relevant.” Fundamental fairness required disclosure of the “eyewitness-informant’s identity” (supra at 1036).

In Missouri, the approach of Roviaro was declared the law in State v. Edwards, 317 S.W.2d 441 (Mo. banc 1958). Subsequent cases show that the state courts have adhered to the standards of Roviaro and Edwards and when disclosure is not made when required by the application of the standards to the facts, a conviction will be reversed. State v. Davis, 450 S.W.2d 168 (Mo.1970).

In the case at bar, refusal to disclose the informant’s identity constituted reversible error. The informant is a critical witness whose testimony as to “Bill’s” identity is highly probative, given the contradictory testimony of Officer Dawson and defendant Nafziger. Testimony of a police agent is no substitute for that of an informant (State v. Davis, supra at 172-173); and where there is conflict in testimony, the informant’s account takes on additional importance (United States v. Martinez, supra, at 975). Unlike the situations in Yates, supra, and Taylor, supra, there is no witness other than the informant who could be called on behalf of the defendant. This case falls within the dicta of Roviaro (that disclosure is required when the informant’s testimony is critical to the issue of mistaken identity) and is within the facts of both Martinez, supra, and Hawkins v. Robinson, supra,- where an informant’s testimony would have been highly relevant to the issue of identity of the respective defendants.

The case for disclosure is enhanced when the balancing test is applied. It is clear that defendant’s defense at trial was mistaken identity. For defendant to pursue this defense, availability of the only other witness to the transaction — the informant — was very important. But beyond its mere allegation that disclosure would endanger the life of the informant, the state says nothing. Indeed, the evidence is that the informant is no longer being used by the police, and no effort was made by the state to present any facts to weigh the scales toward nondisclosure.

Other points are raised, but the parties are advised by the briefing here, and those procedural points need not arise in another trial.

Judgment reversed and remanded for a new trial.

All concur.

      . The State has questioned the use of the depositions of the two police officers, pointing out that a motion to supplement the transcript was overruled. A review of this court’s file indicates the ruling was not intended to exclude the depositions from the record here, but to permit their filing as exhibits in this court which has been done.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Wayne BILLINGSLEY, Appellant.
    No. KCD 28060.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Motion for Rehearing and/or Transfer Denied Feb. 9, 1976.
    Application to Transfer Denied April 14, 1976.
    • Ralph E. Smith, Butler, for appellant.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

The information charged defendant with forcible rape. The jury found him guilty and assessed punishment at 13 years imprisonment. On this appeal, defendant raises the single point that the instructions were submitted in incorrect order.

The instructions aggregated ten in number. The first two, copying MAI-CR 2.01 and 2.02, were general instructions given to the jury prior to reception of any evidence. After the close of the evidence and before argument of counsel, the court gave the remaining eight instructions in the following sequence:

No. 3—copied from MAI-CR 2.20—bur-den of proof and presumption of innocence.
No. 4—patterned on MAI-CR 2.02 and 6.40—the verdict director.
No. 5—patterned on MAI-CR 3.04—a converse instruction.
No. 6—patterned on MAI-CR 3.58—lim-iting the relevancy of defendant’s prior convictions.
No. 7—patterned on MAI-CR 2.03— “facts not assumed.”
No. 8—copied from MAI-CR 2.80—jury procedure and use of verdict forms.
No. 9—patterned on MAI-CR 4.50—if the jury finds defendant guilty but is unable to agree on punishment, the court will do so.
No. 10—patterned on MAI-CR 2.68—con-cerning closing argument of counsel.

Defendant complains that the foregoing sequence violated the Notes on Use applicable to MAI-CR. Under the Note to MAI-CR 2.03, that instruction should be the first given at the close of the evidence;, so that Instruction No. 7 in this case should have been given as Instruction No. 3. Similarly, the Note under MAI-CR 2.80 provides that it should be given immediately before the last instruction; so that Instruction No. 8 in this case should have been given in the position of Instruction No. 9. Rule 20.02(e) provides that the violation of any applicable Note on Use shall constitute error. As defendant correctly points out, the case law establishes that any such error must be deemed prejudicial unless the contrary clearly appears. Defendant argues that the burden of proof to show non-prejudice was on the State and that the State failed to carry that burden.

It cannot be overemphasized that the present Missouri Approved Instructions, both civil and criminal, contemplate religious observance both as to the forms themselves and the instructions contained in their Notes on Use. Wisdom dictates against any variation from these mandatory instructions, since any change unnecessarily places at hazard the results of an entire trial, attained at the expense of much time, energy and cost.

Nevertheless, not every deviation will have a fatal result. Rule 20.02(e) relating to criminal instructions, just like Rule 70.01(c) which covers civil instructions, provides that in the event of a deviation the prejudicial effect is to be judicially determined. In the application of Rule 70.01(c), a number of cases have found a minor variation to be non-prejudicial: State Farm Mutual Automobile In s. Co. v. Jes see, 523 S.W.2d 832, 836 (Mo.App.1975), and cases cited therein; Ernst v. Emerick, 525 S.W.2d 573, 574 (Mo.App.1975). Cases under Rule 20.02(e) have similarly determined certain minor variations to be non-prejudicial: State v. Vernor, 522 S.W.2d 312, 316-317 (Mo.App.1975); State v. Fox, 521 S.W.2d 507, 510-511 (Mo.App.1975).

Seeking to have the general rule applied here, rather than the above exception dealing with minor non-prejudicial deviations, defendant relies upon Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317 (Mo. banc 1975). That case is readily distinguishable. In Crystal Tire, the plaintiff sued for fire and explosion damage to property, asking recovery from two defendants on the theory of res ipsa loquitur. Those two defendants cross claimed against each other, each cross claim being in two counts. One count in each cross claim prayed indemnification for any judgment rendered in favor of the plaintiff, on the theory that the respective cross claim defendant was the party guilty of active rather than passive negligence; and the second count of each cross claim sought recovery for fire damage to property on the theory of specific negligence on the part of the cross claim defendant. Twenty-three different instructions were required in order to present to the jury all of the diverse issues. As one of its points on appeal, defendant Home Oil complained of the order in which Instruction No. 2 was given, on the ground that the instruction in question was based on MAI 2.02 which was required in the Notes on Use to be given immediately before the verdict directing instruction. In holding that the failure to give this instruction in the required order was error, the opinion states:

“The number and nature of the several factual issues in this case illustrate the need for the giving of this instruction at the point required by its Notes on Use.”

In contrast, the present case involves just one defendant and only a single offense. The factual problem for the jury was relatively simple, with the trial completed in one day. The prosecutrix testified that the defendant came to her home, demanded money, then lifted her bodily and carried her to a bedroom, threw her on a bed and committed forcible rape. The defendant testified that his sole purpose for coming to the prosecutrix’s home was to solicit a job of house painting, that he only briefly and slightly entered the house, and he totally denied any physical assault upon the prose-cutrix. Thus the case presented the jury with a single, narrow, sharply defined issue. Essentially it had to choose between two contradictory witnesses. A more striking contrast between this relatively simple case and the very complex Crystal Tire case would be hard to imagine.

The change of order in the jury instructions created no likelihood of confusion or misleading of the jury under the particular circumstances here. The error in this respect was therefore nonprejudicial.

Affirmed.

All concur.