author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Robert C. MOUNTJOY, Appellant.
    No. 29532.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, Herbert William McIntosh, Bellmann, Speck & Handley, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and ROBERT R. WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from conviction on jury trial of second degree burglary and stealing in connection therewith and two counts of felonious assault without malice.

In this court the issues involve the sufficiency of the evidence to support the convictions and whether or not appellant is entitled to benefit of the holding in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), although no objection was made at trial to the composition of the jury panel.

Mrs. Mary Middaugh left her home, located at 8619 Drury in Kansas City, Missouri, at 6:00 A.M. on May 13, 1976, after checking the doors and windows to see that all was secure before she left for work. The back door which the family had not been using since its access was blocked by some remodeling work was locked. She left through the front door leaving it unlocked for her son to lock when he left for school later. When she returned home at 3:00 P.M. she found the front door locked. Upon entering the house, she discovered that a gun cabinet had been broken into and nine rifles and shotguns removed. The back door was open and an obstructing board had been moved aside. No marks of forcible entry were found around the door.

In the afternoon of the same day, Darrell Phillips, who lived near the Middaugh home, saw a car back into a nearby alley and park. After Phillips and a friend, Hal Buell, went to the car and asked the driver what he was doing, the car left. As they were standing there, Phillips and Buell saw three men walking through an adjoining field carrying several rifles. Several minutes later, after Phillips and Buell had returned to Phillips’ house, the same car driven by a different individual pulled up and stopped in front of that house. Again, Phillips and Buell questioned the driver and the car left. Buell recorded the car’s license number, which was Missouri license Z1N-836. Shortly after the car left for the second time, Phillips’ dog began to bark at a point down the street from his house. As Phillips and Buell went to retrieve the dog, they saw two men standing nearby, and then saw them kneel into the bushes. When Phillips and Buell reached the area where the dog was, one of the hiding men, subsequently identified as appellant’s brother, Charles Mountjoy, pointed a gun at Phillips and Buell and said “I’m going to blow your god damn head off and your dog’s too” and “you’ve seen too much. Where do you want it, the head or the chest?” Phillips explained that he was merely there to get his dog. The other man, identified as appellant Robert Mountjoy, said to his brother, “Let’s get the hell out of here” and both men fled. Phillips and Buell summoned the police and then returned to the place where they had seen appellant and his brother, and there found five rifles, subsequently identified as weapons taken from the Mid-daugh residence. Tracking the men’s trail through the wet grass, Phillips traced their path back to the Middaugh home.

After taking the statements of Phillips, Buell and Mrs. Middaugh and determining that the described license plate was registered to Charles Mountjoy, police put out a “pickup order” for that individual. Appellant and his brother were apprehended fifteen days later as they were in the process of pushing Charles Mountjoy’s car (license number Z1N-836) out of a ditch. Appellant was identified by Phillips and Buell at the trial.

Appellant’s fingerprints were found on the gun cabinet and the appellant had not been given permission to enter the home or take the guns.

Appellant offered his own testimony and that of another witness in support of his alibi defense that he and his brother had been painting a woman’s house all during the day in question.

Appellant was found guilty as charged on Count I of second degree burglary and stealing, and guilty on Counts II and III of the lesser included offense of assault with intent to do great bodily harm without malice aforethought. Appellant was sentenced by the court under the Habitual Criminal Act five years for burglary and five years for stealing, to run consecutively, and five years each on Counts II and III, such sentences to run concurrently with the burglary and stealing sentences. Appellant brings this appeal from his conviction and sentence.

Appellant contends that the evidence was insufficient to support the verdict because there was no evidence of a breaking into the Middaugh household.

In reviewing a sufficiency of the evidence contention, all evidence tending to support the guilty verdict must be considered true, contrary evidence disregarded and every reasonable inference supporting the verdict must be indulged. State v. Hatten, 561 S.W.2d 706, 711[2] (Mo.App.1978). Appellant argues the evidence of breaking in this case was entirely circumstantial and therefore “ * * * the facts and circumstances relied on by the state to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence.” (citations omitted.) State v. Lee, 556 S.W.2d 25, 32[13, 14] (Mo. banc 1977).

Appellant does not challenge the proof of entry or intent to steal but contests a lack of evidence showing a breaking. To find the appellant guilty of second degree burglary the jury must have found that the appellant broke and entered the home with the intent to commit a felony or a theft therein. State v. Cox, 527 S.W.2d 448, 452[4, 5] (Mo.App.1975). The evidence of breaking viewed in its most favorable light toward upholding the guilty verdict is as follows: before she left for work at 6:00 A.M. on the day of the burglary, Mrs. Mid-daugh “secured the house,” checking among other things to make sure that the back door was closed and locked; however, she left the front door unlocked for her twelve-year-old son, who was to leave after her, to close and lock when he went to school. Mrs. Middaugh testified that as a result of some unfinished remodeling work, inside access to the back door was partly blocked by a board leaning against it and that, consequently, “we locked it and never went in and out [of] it.” When she returned home at three o’clock that afternoon, she found the front door locked but the back door partly open, the obstructing board pushed aside. Appellant’s fingerprints were later found on a gun cabinet in the Middaugh home, from which nine weapons had been taken. Appellant did not have the Mid-daugh’s permission to enter their house and take the guns.

This evidence is sufficient to uphold a finding that the appellant broke into the Middaugh home. The back door was kept locked and not used by the family. All that was necessary to establish a breaking was to show that the appellant pushed open an unlocked door and that had previously been shut. State v. Sanderson, 528 S.W.2d 527, 530 — 531[3—6] (Mo.App.1975). The facts and circumstances relied on are consistent with each other and the appellant’s guilt. The appellant’s contention calls for the assumption that one of Mrs. Middaugh’s children first closed and locked the front door and then moved the board out of the way, unlocked the back door, left it standing open when he left and entry was through the opened door. Clearly that theory is inconsistent with the evidence and fundamentally unreasonable. “[T]he circumstances need not be absolutely conclusive of (guilt), and they need not demonstrate impossibility of innocence,” and “the mere existence of other possible hypothesis is not enough to remove the case from the jury.” State v. Thomas, 452 S.W.2d 160,162[1-3] (Mo.1970).

Appellant next contends that the conviction for the assaults is unsupported by the evidence because there was no evidence that appellant participated actively in his brother's assaults upon Phillips and Buell.

The assaults charged were separately upon Phillips and Buell and the submission was that appellant either acting alone or together with his brother committed an assault upon each of the victims by pointing a gun at him and threatening to kill him.

Both Phillips and Buell testified that the verbal threats against them were made by appellant’s brother. Phillips testified that, at the time of the encounter, appellant pointed a pistol at them. (On a hearing on a motion to suppress identification Phillips had stated that appellant had not actually pointed a gun at him. That testimony was not before the jury.) Buell testified that appellant “pointed a shotgun up, * * * horizontal, you to me * * * in a general direction. I was more concerned with the guy pointing the pistol at me.”

The state’s evidence was sufficient to show appellant’s affirmative participation in the assaults. State v. Simmons, 494 S.W.2d 302, 305[4]-[6] (Mo.1973); State v. Fowler, 558 S.W.2d 366, 368[3-5], [6] (Mo.App.1977); State v. Dodson, 556 S.W.2d 938, 950[27-29] (Mo.App,1977). The state’s evidence would support the finding that appellant reinforced his brother’s threats by pointing a weapon at the victims of the assault, and therefore that he was not a mere observer of the incident. This claim of error is without merit.

Appellant’s final point is:

“The trial court erred in failing to strike the jury panel sua sponte as Missouri’s jury selection system at the time of trial was offensive to the United States Constitution in that it systematically excluded women from jury service and denied appellant his right to be tried by a jury representative of a cross-section of society.”

This case was tried in February of 1977, before the ruling of the United States Supreme Court in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), but after the decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

Appellant relies upon the plain error rule (Rule 27.20(c)) and he makes no claim of having raised this issue before the trial court by a timely motion to quash the panel.

Generally, “[a] challenge to the array or a motion to quash the venire must be timely filed. It should be made at the first opportunity, or as soon as the facts which warrant it are known, * * 50 C.J.S. Juries § 263, p. 1024 (1947). Among cases applying this rule are State v. Sockel, 485 S.W.2d 393, 396-397[5] (Mo.1972); State v. Robinson, 484 S.W.2d 186, 188[1-5] (Mo. 1972); State v. Kelly, 506 S.W.2d 61, 63[1, 2] (Mo.App.1974). See Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

The trial court was not obliged to act sua sponte to strike the jury panel and failure to raise the question then precludes the relief now sought. The same conclusion applies to the claim of appellant based upon Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954).

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: CLARK, Judge.

license: Public Domain

text:
    Marcus BRAUN, Respondent, v. David M. LORENZ, Patricia M. Lorenz and B. Sterling Ambrose, Appellants.
    No. KCD 30010.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      Billy S. Sparks, David R. Odegard, Kansas City, for appellants.
    Don M. Jackson, Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   CLARK, Judge.

This action emanates from an agreement, now contested, but which purported at the time made to resolve prior disputes between appellants and respondent. Asserting claims as to his investment in a corporation known as International Oil Development Company, and a debt owed him by appellant Ambrose, respondent had filed suit against appellants in the United States District Court. On the eve of trial of that case, the subject agreement was made, was reduced to writing and was signed. Interpretation of the settlement agreement again divided the parties and generated this suit.

In the corporate transactions during relevant time periods, various names appear by reason of merger and change of corporate name. Except where otherwise required, the name “Oil Co.” will be used to designate the corporation originally named International Oil Development Company, as well as successive combined and surviving companies.

In this suit for alleged breach of the settlement agreement, no issue was joined as to the execution of the agreement or its validity as a document binding the parties to obligations and conferring enforceable rights. Indeed, partial performance has eliminated from contest some subjects of the agreement. By the terms of settlement respondent was obligated to dismiss the federal court suit with prejudice and he did so. Respondent was required to vote his Oil Co. stock and support a corporate merger and that merger was concluded and stock .was exchanged. The Ambrose debt was liquidated, as agreed, by a transfer to respondent of Oil Co. stock which had been pledged as collateral security.

Remaining at issue are the rights and obligations created by paragraph 3 of the December 1967 agreement, none of which it has been claimed were performed. The significance of the terms employed requires that the disputed paragraph be quoted in full:

“3. Party of the First Part hereby agrees to exchange Twenty-Four Thousand Eight Hundred (24,800) shares of International Oil Development Company, Inc. stock for Forty-Nine Thousand Six Hundred (49,600) shares of Southern Motel Investors, Inc. stock, said transfer of stock shares to be completed as soon as possible after the date hereof, and further agrees that said shares of stock shall be placed on the market at a price of no less than Two Dollars and 70/100 ($2.70) per share net to Party of the First Part; however in the event Party of the First Part does not realize and/or recover the sum of Seventy-Seven Thousand Three Hundred Dollars ($77,300.00), with interest thereon at Six (6%) percent per an-num from date of each respective purchase by him of International Oil Development Company, Inc. stock, from the sale of Southern Motel Investors, Inc. stock within a period of Two (2) years from the date hereof, then Parties of the Second Part hereby agree and do guarantee to Party of the First Part, payment to Party of the First Part any and all monies representing the difference, if any, remaining between the sale of Southern Motel Investors, Inc. stock and $77,300.00, including interest thereon, and upon the receipt of said payment from Parties of the Second Part to Party of the First Part, Party of the First Part hereby agrees to surrender, deliver and/or release any and all shares of the remaining Forty-Nine Thousand Six Hundred (49,-600) shares of Southern Motel Investors, Inc. stock to Parties of the Second Part.”

Material facts are essentially undisputed, the evidentiary contest on trial having centered on expressions of opinion and interpretation. From the trial transcript of 579 pages, the following essential facts and circumstances emerge.

As of the date of the agreement, shares of stock in Oil Co. and its predecessors were not registered for public offering and trading as required for third party transactions. The parties were aware that the stock was unregistered. Commencing in March 1968, respondent contacted securities dealers to enlist their aid in marketing the Oil Co. stock, but he was informed by the brokers that they were prohibited from offering any stock publicly which was not registered with the Securities and Exchange Commission or the Missouri Commissioner of Securities. Attempts by respondent himself to procure a sale of any of the stock were unsuccessful and at the conclusion of the two-year period specified in paragraph 3 of the agreement, respondent held the same Oil Co. shares as at the outset, subject only to the merger, transfers and name change described above.

Appellants made no payment to respondent on or subsequent to December 20,1969 although respondent had informed them prior to expiration of the two-year period that little or no prospect for any open market sale of Oil Co. stock existed. As of January 1970, respondent was aware that controversy over performance of the agreement impended. At that time, however, respondent learned of a proposal for another corporate merger in which Oil Co. stock would be exchanged for that of Clark Manufacturing Company, a concern not previously related to any financial transactions among the parties. Upon inquiry, respondent learned that appellants intended to support the merger and vote their stock accordingly. Respondent concluded on available information that the Clark Company was not financially sound but he resolved any doubts in favor of the merger as an opportunity for him to realize the minimum per share price of $2.70 provided in the agreement.

Respondent also was aware of rights available to him under Section 351.405, RSMo 1969 as a shareholder dissenting from the merger plan and that payment of the fair value of his Oil Co. shares could be demanded. Respondent elected to vote his shares in favor of the merger and received two shares of Clark Company stock for each share of Oil Co. stock. Although the Clark Company stock was unregistered as of the merger early in 1970, restrictions on sale of the Clark Company stock were removed in October 1971 by an opinion letter from counsel. Respondent retained ownership of the Clark Company stock until 1974 when that company was adjudicated bankrupt. The subject action was thereafter filed and this appeal follows a jury verdict which awarded respondent $77,300.00 and interest.

Appellants assert error in the giving of Instruction No. 5, the damage instruction, and Instruction No. 6 in which appellants were charged with the burden of proof on the issue of mitigation of damages. Error is also claimed in failure of the trial court to enter judgment for appellants notwithstanding the verdict for the reason that respondent failed to offer any evidence of damage. We conclude that the jury was erroneously instructed and reverse and remand for a new trial.

Respondent’s theory of the case as briefed and argued on appeal is that paragraph 3 of the December 1967 agreement obligated appellants to pay respondent $77,-300.00 in settlement of the federal court suit with payment deferred for two years and conditionally to be reduced by amounts realized, if any, through sale by respondent of Oil Co. stock during the interval. Upon receipt by respondent of payment of the settlement, appellants would be entitled, under respondent’s theory, to receive Oil Co. stock, not as a purchase transaction but as an incident to settlement of the monetary obligation incurred to conclude respondent’s claims earlier advanced. Appellants’ interpretation, however, viewed the agreement as one in which appellants contracted to purchase Oil Co. stock from respondent after two years if, by such date, respondent had not earlier sold the stock on equal or more advantageous terms.

A fundamental issue in this case was, therefore, the construction and intent of the agreement either as a promise for payment in settlement of respondent’s claims, or a contract to purchase respondent’s stock. The applicable language of the document in paragraph 3 is, at best, equivocal and cannot independently be assessed as clearly supporting either view. Whatever may be the conclusion on this account, the trial record demonstrates the manifest dispute generated on the issue and the divergent positions of the parties.

In an apparent attempt to submit the case to the jury on the contract payment obligation theory, respondent presented and the court gave a verdict directing instruction patterned after MAI No. 26.02 modified as follows:

“Instruction No. 2.
“Your verdict must be for plaintiff if you believe:
“First, plaintiff substantially performed his contract obligations by placing the stock referred to in the contract on the market for a period of two years, and
“Second, defendants failed to pay any money to the plaintiff at the end of two years from the date of the contract, and
“Third, because of such failure, defendants’ contract obligations were not substantially performed, and
“Fourth, plaintiff was thereby damaged.
“MAI 26.02 Modified, Requested by Plaintiff.”

Instructions on damages and mitigation of damages were also given as follows:

“Instruction No. 4.
“If your verdict is for plaintiff, then in assessing damages you must take into consideration the amount, if any, which plaintiff could have realized by the exercise of due diligence in selling the Oil and Properties, Inc. or Clark Manufacturing Company stock after the two year contract period.
“MAI 6.0. [6.01] Modified, Submitted by Defendants.”
“Instruction No. 5.
“If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained as a direct result of the contract mentioned in the evidence together with interest thereon at the rate of 6% per annum from December 20, 1969.
“After you have determined such sums, if you believe that the plaintiff failed to mitigate damages as submitted in Instruction No. 4, then you must determine the amount such damages should have been mitigated and deduct that amount from the plaintiffs damages.
“Not in MAI. MAI 5.01 & 6.01 modified. First paragraph requested by plaintiff. Second paragraph requested by defendants.”

Appellants’ points of error do not directly assign any error in respondent’s verdict directing instruction, but rather address the issues by allegations of error in the damage instructions. The instructions on damages and mitigation of damages are intelligible, however, only in the context of the primary question of what agreement was found by the jury to have been made by the parties and, hence, what measure of damages was applicable. Consideration of what appear to be fundamental deficiencies in the verdict directing instruction is therefore unavoidable.

As observed previously, the parties were sharply in disagreement as to the nature of appellants’ obligations with respect to payment of the specified sum and transfer of the Oil Co. stock. Respondent, of course, was entitled to submit his claim on any theory consistent with the cause of action pleaded and supported by the evidence. Despite the disputed interpretation of the agreement, respondent was not obliged to accede to appellants’ construction of the paragraph 3 language and was entitled to submit the case on that theory which afforded a superior prospect for recovery. In any submission selected, however, the instruction must necessarily have hypothesized and have required the jury to find that interpretation of the agreement advanced by respondent.

Respondent’s verdict director in paragraph two assumed that construction of the agreement supporting respondent’s version of a contract for payment of money and required only a finding by the jury on nonpayment, a fact not contested. The essential disputed issue of what appellants had agreed, to pay a settlement or buy stock, was not posed and the jury was not permitted to decide the important question on which the balance of the case turned.

MAI No. 26.02 which is captioned “Verdict Directing — Breach of Bilateral Contract — Breach Sole Issue” was not designed nor intended for use in this type of case where the parties have joined an issue of what agreement was in fact made. MAI No. 26.02 is to be used only where the terms of the contract are not in question and the jury is to decide only the issues of breach and resultant damage. Varn Co. v. Hamiltonian Federal Savings & Loan Assn., 488 S.W.2d 649 (Mo.1973); Laclede Inv. Corp. v. Kaiser, 541 S.W.2d 330 (Mo.App.1976); North County School Dist. v. Fidelity & Deposit Co., 539 S.W.2d 469 (Mo.App.1976).

Where a dispute exists as to pne or more of the terms of the agreement relied on by the claimant to support recovery, that issue must be hypothesized in the verdict directing instruction. The contest as to appellants’ agreement to pay respondent a particular sum in contrast to the alternative contention of an agreement to purchase stock required an instruction to the jury that a verdict be returned for respondent if the jury found an agreement by appellants to pay on the date and in the amount claimed and a failure to do so.

MAI No. 26.06 was adopted by the Supreme Court December 19, 1972 effective July 1, 1973 as appropriate for submission of the two-element dispute of contract terms and breach. The pattern instruction follows the form approved in Gottlieb v. Hyken, 448 S.W.2d 617 (Mo.1970). On respondent’s theory of recovery, MAI No. 26.-06 was the appropriate form of instruction rather than MAI No. 26.02.

Turning now to the damage instructions of which appellants complain, the critical significance of failure to submit and resolve the primary dispute as to interpretation of appellants’ contract obligation becomes apparent. If, as contended by respondent, the agreement was a present promise by appellants to pay in the future a stipulated sum less proceeds from stock sold by respondent, if any, there was no jury issue of damages. A verdict for respondent simply entitled him to recover the amount specified with interest. Williston, Contracts (Rev.Ed.) § 1410; Restatement Contracts § 337(a); Sturgess v. Crum, 29 Mo. App. 644 (1888).

If, however, the agreement was one for a future sale and delivery of stock, then damages were in issue and an appropriate instruction was required. Such instruction would inform the jury that the measure of damage is the difference between the price realized on resale of the article and the contract price or, if not resold, the difference between the market price and the contract price. Sections 400.2-703(d), (e); 400.-2-706; 400.2-708, RSMo 1969, Uniform Commercial Code. The burden is on the claimant to prove his damages in a breach of contract to purchase case and an instruction in the form of MAI No. 4.01 is required. Gottlieb v. Hyken, supra, l.c. 621.

In several particulars, Instruction No. 5, to the extent proferred by respondent, was confusing and a misdirection of the law. The invitation to the jury to award respondent damages in such sum as they believed would compensate him authorized speculation regarding what damages were recoverable and was inharmonious with respondent’s theory that appellants were obligated for payment of a specific sum. Compensation to respondent in damages, as such, was not an issue for the jury in the posture of the case presented because recovery was predicated on a claim for payment of an agreed, liquidated amount and no other evidence of damage was before the jury. The instruction was additionally erroneous as it failed to predicate an award on appellants’ breach of the agreement as postulated in the verdict directing instruction but rather informed the jury that damages were com-pensable if sustained “as a direct result of the contract”. The jury was thereby given a roving commission to return a verdict for whatever damage they considered to have been sustained by respondent through the misadventures of the agreement and its antecedents.

Instruction No. 4 on mitigation of damages and the addition of a qualifying second paragraph to respondent’s damage instruction No. 5 which incorporated the mitigation theory added further confusion and misdirection to the case. Mitigation of damages as a generally recognized principle of law is also known as the rule of avoidable consequences. The rule requires that one damaged through alleged breach by another of some legal duty or obligation make reasonable efforts to minimize the resulting damage. Wolf v. Missouri State Training School For Boys, 517 S.W.2d 138 (Mo. banc 1974); 22 Am.Jur.2d Damages § 33. The burden of proof of mitigation of damages is on the defendant who must show the opportunity the injured party had to mitigate and the reasonable prospective consequences. Curlee v. Donaldson, 233 S.W.2d 746, 757 (Mo.App.1950).

In this case, the concept of mitigation of damages was inapplicable regardless of which theory of the agreement were adopted. If the agreement were found, as respondent contended, to be a promise for future payment of a settlement in disposition of the pending lawsuit, performance contemplated delivery to appellants of the remaining stock at the time payment was made and, upon appellants’ failure to pay, respondent was entitled to sue on the agreement and hold the stock for delivery as provided in the contract. Sale by respondent of the stock after maturity of appellants’ debt would, in fact, have been in contravention of the agreement provisions on which respondent relied and would have been inconsistent with respondent's theory that the agreement was one for a litigation settlement payment.

If, in the alternative, the agreement be construed, as claimed by appellants, one for the future sale of stock, respondent’s damage is calculated on market value as of the date of breach, and assessment of market value by actual sale or by comparative data automatically balances values to afford appellants the benefit of that value otherwise cognizable in mitigation. In fact, the nature of proof of damages required of one claiming as seller under a defaulted agreement to purchase excludes any issue of mitigation of damages.

Instruction No. 4 as given actually was an inverted submission of a plaintiff’s measure of damage instruction in a breach of sale contract case and informed the jury that respondent was entitled to recover as damages the difference between market value and the contract price for the stock. That instruction and the companion reference in the second paragraph of Instruction No. 5 were erroneous because inconsistent with respondent’s theory of recovery and, even if applicable to the alternative theory of an agreement for a sale, incorrectly charged appellants with the burden of proving respondent’s damage under the mistaken guise of mitigation.

Respondent argues that infirmities in the instructions claimed by appellants to have constituted error as above delineated do not require reversal because, when considered together and in conjunction with the jury verdict, the result demonstrates that no prejudice occurred. Respondent also contends that appellants may not complain of Instruction No. 5 because the second paragraph was included at their request, and they offered no explanatory or modifying instruction.

Cases cited by respondent, while supporting the general propositions advanced, are not applicable to the instruction errors here at issue. The verdict returned did correspond to the sum named in the December 1967 agreement but the language of Instruction No. 5 which authorized an award for damages “as a direct result of the contract” and a failure to submit any dispute as to contract obligations under Instruction No. 2 left little other option if any verdict for respondent were to be rendered.

Instructions are prejudicially erroneous where inconsistent theories of recovery are intermingled. Ervin v. Coleman, 454 S.W.2d 289, 292 (Mo.App.1970). Instructions which furnish wholly inadequate, confusing and misleading guidelines are prejudicially erroneous. Tile-Craft Products Co. v. Colonial Properties, Inc., 449 S.W.2d 653, 656 (Mo.1970). The language of an instruction should be so plain that no doubt can arise as to its meaning. Black v. Kansas City Southern Railway Co., 436 S.W.2d 19, 27 (Mo. banc 1968).

The record in this case admits of no doubt that Instructions No. 4 and No. 5 were confusing and misleading in that they improperly informed the jury as to damages recoverable by respondent and falsely injected an issue of mitigation of damages. The comingling of and failure to distinguish between the conflicting interpretations of appellants’ obligations assumed under the agreement was inherently prejudicial and require that the judgment be reversed and the case be remanded for retrial.

Failure of respondent’s verdict directing instruction to correctly inform the jury as to the elements necessary to return a verdict for respondent was an issue which has been addressed, not because ultimately determinative of this appeal but important on retrial. So too is the problem presented when an instruction, here Instruction No. 5, is a composite of paragraphs offered by opposing parties. The defect in such an instruction is demonstrated by respondent’s argument that appellants are in no position to complain of error in the first paragraph of the instruction because they contributed the second paragraph. By its order of May 20, 1964, the Supreme Court of Missouri provided the initial mandate for use of MAI instructions. The portions of that order, and particularly paragraph (d) of Rule 70.-02, contemplate that instructions shall be attributed to the party tendering the instruction or, to the court if prepared at the court’s direction. No other alternatives are available. For purposes of this case, Instruction No. 5 is regarded as having been prepared at the court’s direction and respondent’s contention that appellants waived objection by contributing the second paragraph is rejected. The practice of marking an instruction as submitted in part by plaintiff and in part by defendant should not be followed.

In retrial of this case, proper instructions as to respondent’s damages and any affirmative defenses which may be offered by appellants can only be framed in the context of respondent’s choice of alternative submissions. By reason of such contingencies, this opinion should not be regarded as requiring any particular instruction nor limiting the scope of instructions which the evidence and issues may require.

The judgment is reversed and the cause is remanded for retrial on all issues.

All concur.


text:
    John GIERINGER, Appellant, v. CENTER SCHOOL DISTRICT NO. 58, Respondent.
    No. 30093.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      George E. Kapke, Piedimonte & Cochran, Independence, Irving Achtenberg, Achten-berg & Achtenberg, Kansas City, for appellant.
    Hollis H. Hanover, Popham, Conway, Sweeny, Fremont & Bundschu, P. C., Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, and SWOFFORD, C. J., and WEL-BORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Proceeding for review of order of board of education terminating a tenured school teacher. Circuit Court affirmed order. Teacher appeals.

Appellant, John Gieringer, was a tenured teacher in the Center School District during the 1976-1977 school year.

Section 168.114, RSMo 1969, provides, in part:

“1. An indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for one or more of the following causes:
******
“(4) Willful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him; * *

The Center School District had a published “Administrative Guide for Personnel” which included the following:

“VII. Regulations Affecting Pupils
“5. All cases of corporal punishment will be administered in accordance with the State law and subject to the following school district regulations:
“a. In no case shall a punishment be inflicted by striking or slapping on or about the head.
“b. Corporal punishment shall not in any case be administered in the presence of another pupil.
“c. Any corporal punishment shall be administered in the presence of at least one other witness who shall be a member of the school staff, or by a teacher, with the consent and in the presence of the principal.
“d. The principal shall have recorded in writing any incident of corporal punishment specifying the cause, method used, and person witnessing and shall submit a copy of this record within one day to the office of the Superintendent.
“e. No teacher will keep an instrument of discipline in the classroom. Paddles of any description must be kept in the office.”

On October 22, 1976, the superintendent of the Center District filed with its board “Formal Charges Against John Gieringer,” charging the appellant with willful or persistent violation of the foregoing regulation, and requesting that Gieringer’s contract with the district be terminated.

A hearing on the charges was held before the board. On November 29, 1976, the board rendered a decision which included the following findings:

“3. That on or about October 9, 1974, John Gieringer, as punishment for Chris Michelson’s standing when instructed to sit, placed his hand on Chris Michelson’s head and forced Chris Michelson to the floor. John Gieringer then pulled Chris Michelson’s head forward and ‘slammed’ it backward into the stage wall. That the punishment described in this paragraph was administered in the presence of other pupils, without the consent of and outside the presence of the principal, and without the attendance as a witness of another member of the school staff. That upon being released from class Chris Michelson went to the school nurse with a headache and dizziness and was released from school early by reason of his headaches and dizziness. Following the above described incident a conference was held among John Gieringer, Barbara Tierney (Chris Michelson’s mother) and the building principal, Ron Hoffman. Mrs. Tierney complained of Mr. Gieringer’s actions and after the meeting, Mr. Hoffman instructed Mr. Gieringer not to engage in similar activity in the future.

“4. That on or about December 4, 1974, John Gieringer, as punishment for Matthew McCain’s moving after being instructed to remain still, grasped Matthew McCain by the chest and shoulder with sufficient force to inflict a bruise on Matthew McCain’s chest and threw Matthew McCain against a wall with sufficient force to cause Matthew McCain to strike his head on the wall, causing a bump to appear on the back of Matthew McCain’s head. That the punishment described in this paragraph was administered in the presence of other pupils, without the consent of and outside the presence of the principal, and without the attendance as a witness of another member of the school staff. That following the incident described in this paragraph, Sue Johnson (Matthew McCain’s mother) called Mr. Hoffman to complain of Mr. Gieringer’s actions. That Mr. Hoffman thereafter again instructed Mr. Gieringer not to engage in similar activity in the future.

“5. That on or about January 31, 1975, John Gieringer, as punishment for Mike Ja-coby’s failure to utilize proper technique in throwing a basketball against the wall, grasped Mike Jacoby by the shoulders and shook him with sufficient violence to cause Mike Jacoby to lose his balance and fall to the floor. That the punishment described in this paragraph was administered in the presence of other pupils, without the consent of and outside the presence of the principal, and without the attendance as a witness of another member of the school staff. That following the above described incident Mr. Hoffman conferred with Mr. Gieringer and again instructed him not to engage in similar activity in the future. Mr. Hoffman also directed a written memo dated February 3, 1975, to Mr. Gieringer (Superintendent’s Exhibit No. 9) concluding with the statement ‘I will expect you not to shake the students again in the future.’

“6. That on or about October 20, 1976, John Gieringer, as punishment for Mike Bo-rylo’s picking up a bean bag after having been instructed not to do so, grasped Mike Borylo with sufficient force and shook Mike Borylo with sufficient violence to break an honor society pin and chain Mike Borylo was wearing and to tear Mike Borylo’s shirt. That the punishment described in this paragraph was administered in the presence of other pupils and without the consent of and outside the presence of the principal. A portion of the punishment was witnessed by another member of the school staff but said witness was not in attendance for the purpose of witnessing the punishment as required by the regulation but was rather a witness through inadvertence and without the knowledge of Mr. Gieringer. That following the incident described in this paragraph, Mary Borylo (Mike Borylo’s mother) came to school to complain to Mr. Hoffman of Mr. Gieringer’s actions.”

The board found that Gieringer’s conduct in each of these instances was a willful violation of the regulation and terminated his contract with the Center District.

Appellant filed a petition for review in the circuit court. The order of the board was affirmed and this appeal followed.

A brief was filed on behalf of appellant in this court. Two points were stated in the brief. The first relied upon a decision of the Eight Circuit Court of Appeals, ordering appellant’s reinstatement as a teacher following his discharge by the board in 1970. Gieringer v. Center School District No. 58, 477 F.2d 1164 (8th Cir. 1973). The second point was:

“The Court erred in affirming the judgment of the Board of Education in that the Board policy appellant is accused of violating is vague and indefinite and did not sufficiently advise the appellant of the conduct expected of him.”

After respondent’s brief had been filed, appellant employed other counsel who filed a reply brief on behalf of appellant, stating the following points:

“I. TEACHER DID NOT INTENTIONALLY ADMINISTER CORPORAL PUNISHMENT.
“II. THERE WAS NO SUBSTANTIAL EVIDENCE THAT TEACHER WILLFULLY VIOLATED ANY BOARD REGULATION.
“III. THE INCIDENTS WERE NOT VIEWED BY THE ADMINISTRATION AS CORPORAL PUNISHMENT IN VIOLATION OF THE BOARD REGULATION.”

Respondent has moved to strike appellant’s reply brief on the grounds that it attempts to present assignments of error for the first time and to enlarge upon original submissions of error. A reply brief may not be used for such purpose. Morris v. Reed, 510 S.W.2d 234, 238[4] (Mo.App.1974); Christ v. Tice, 578 S.W.2d 319, 322[7] (Mo.App.1979). Appellant supports his reply brief on the grounds that it is designed to show that “the defense of ‘vagueness’ is proper and valid as applied to the facts of this case.” So limited the brief will be considered and the motion to strike will be overruled. The basic question for determination is that stated in appellant’s brief, i. e., whether the regulation in question is too vague and indefinite to advise appellant of the conduct expected of him. No new or additional points will be considered as having been raised in appellant’s reply brief.

The test to be applied in determining the validity of the regulation as applied to appellant is stated in Giessow v. Litz, 558 S.W.2d 742, 748[5 — 8] (Mo.App.1977): “ * * * [A] standard is not vague if the code is set out in terms which an ordinary person exercising common sense can sufficiently understand and comply with without sacrifice to the public interest.”

Would an ordinary person exercising common sense sufficiently understand that a teacher’s forcing a pupil to the floor by placing a hand on his head and then “slamming” his head into a wall is corporal punishment? Would he understand that grasping a pupil by the chest and shoulder with sufficient force to inflict a bruise and then throwing him against a wall with sufficient force to cause a bump to appear on his head is corporal punishment? Would he understand that grasping a pupil by the shoulder and shaking him with sufficient violence to cause him to lose his balance and fall to the floor is corporal punishment? Would he understand that grasping a pupil and shaking him with sufficient violence to break a chain the pupil was wearing and tear buttons from his shirt is corporal punishment?

When, as in this case, such actions are undertaken by a teacher to correct the pupil’s failure to comply with the teacher’s direction, the teacher must be aware that he has resorted to force applied to the pupil’s body as a reprisal for the pupil’s disobedience. That is the essence of corporal punishment. In view of the board’s findings as to appellant’s acts, there is no need to consider whether or not “grabbing and shaking” a pupil, which, according to appellant, is all that he did in each of the cases, is corporal punishment. The acts found by the board were in excess of such means and were of punitory nature, rather than merely an effort to obtain the pupil’s attention. Argument based upon other teachers’ understanding of “grabbing and shaking” as not being corporal punishment is likewise irrelevant in the light of the board’s findings.

Appellant argues that, in his conferences with school officials concerning the incidents which were the basis for the board’s action, no reference was ever made to the corporal punishment regulations. He also points to the fact that in no case did the principal record in writing the incident and submit a copy of such record, as required by subparagraph d of the regulation. Appellant argues that, if the school authorities failed in this respect, it evidences that they did not consider the incidents to have involved corporal punishment within the meaning of the regulation and thus supports the contention that the regulation is too vague to support the board’s action.

The testimony regarding appellant’s conferences with school officials shows that the discussions primarily centered upon differences regarding appellant’s ideas regarding “grabbing and shaking” as a disciplinary procedure. As above noted, the occurrences which resulted in appellant’s dismissal, as found by the board, went beyond “grabbing and shaking.” Therefore, evidence pertaining to the officials’ view of that procedure would not demonstrate ambiguity or lack of clarity in the rule as applied by the board.

As for the failure of the principal to report the incidents to the superintendent, the principal’s explanation that he considered the rule to require a report only of corporal punishment applied pursuant to the rule is reasonable. The failure to report the incidents involving appellant does not evidence that such failure was the result of questionable application of the rule to appellant’s actions.

Authorities relied upon by appellant are not particularly helpful in this case. Board of Education v. Shank, 542 S.W.2d 779 (Mo.1976), recognizes that striking pupils about the face, head, shoulders and buttocks is corporal punishment. There is no indication in that ease that the methods there involved were the only ones which might amount to corporal punishment. The same is true of Glaser v. Marietta, 351 F.Supp. 555 (D.C.1972), where paddling was recognized as corporal punishment. Harris v. Secretary of Education, 29 Pa.Cmwlth. 625, 372 A.2d 953 (1976), distinguishes between mere restraint and corporal punishment. Again, the action of appellant here went beyond mere restraint.

Appellant calls attention to the quotation from Blackstone, found in Ingraham v. Wright, 430 U.S. 651, 661, 97 S.Ct. 1401, 1407, 51 L.Ed.2d 711 (1977), as follows:

“Blackstone catalogued among the ‘absolute rights of individuals’ the right ‘to security from the corporal insults of menaces, assaults, beating, and wounding,’ 1 W. Blackstone, Commentaries *134, but he did not regard it a ‘corporal insult’ for a teacher to inflict ‘moderate correction’ on a child in his care.”

“Moderate correction” would appear to denote the limit of acceptable corporal punishment, rather than to authorize such procedure as a corrective measure apart from corporal punishment.

Appellant asserts that the decision in Gieringer v. Center School District No. 58, 477 F.2d 1164 (8th Cir. 1973), precluded the board’s exercise of jurisdiction in this case. In that case, the court overturned a board order discharging appellant on grounds wholly unrelated to those of the present case. Appellant offers no authority for the argument that such holding precluded the action here taken by the board in a different and unrelated proceeding. The previous case decided only the matter then before the court and did not preclude the board’s action in this matter.

In his brief, appellant also states that the board prevented him at the hearing from presenting evidence or cross-examining witnesses to show that the true motive of the board in this case was to infringe upon appellant’s constitutionally protected right of freedom of speech. Appellant cites no page references in the transcript in which such action was taken. It is not the duty of this court to search the record for such matters and this point will not be pursued.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. William J. SCHNEIDER, Appellant.
    No. 30115.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    Application to Transfer Denied Sept. 11, 1979.
    Joe F. Willerth, Piedimonte & Cochran, Independence, for appellant.

      John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

On an information charging burglary in the second degree and stealing in connection therewith, a jury in the Jackson County Circuit Court found William J. Schneider guilty of the burglary charge. The jury could not agree on punishment and the court fixed the punishment at five years’ imprisonment. The defendant waived the filing of a motion for new trial and judgment of conviction was entered on October 14, 1976.

On June 20, 1977, Schneider filed a motion under Rule 27.26 to set aside the judgment of conviction. By an amended motion the grounds for relief included the allegation that the waiver of filing of motion for new trial and appeal resulted from improper advice of his trial counsel. The motion also claimed inadequate assistance of counsel at trial.

A hearing was held on the motion. The trial court found that the waiver of filing of motion for new trial and appeal was induced by erroneous advice of trial counsel and set aside the judgment in order to permit the filing of a motion for new trial. See State v. Jones, 446 S.W.2d 796 (Mo. 1969).

A motion for new trial was filed and overruled. Appellant was again sentenced to five years’ imprisonment.

On December 26, 1974, at around 7:20 A.M., Charles Conyers, principal of the Benton School in Independence, went to the school building in response to a call from the building custodian. When he got to the building, Conyers found policemen and firemen there. The firemen were putting out a fire in the basement of the building. Co-nyers discovered that a glass window had been broken on an outside door and that glass in a door between the kitchen and cafeteria inside the building had been broken and the cafeteria ransacked. Items of food were missing from the kitchen and vending machines in the building had been broken into. The principal’s office had been ransacked. Conyers noticed that a tray which ordinarily was on his secretary’s desk was on the floor in the office.

Police laboratory personnel were called to the scene and they examined the area for fingerprints. Fingerprints were found on the tray on the floor near the secretary’s desk and on a sanitary napkin dispenser and nurses’ storage cabinet.

At the trial, the police fingerprint technician compared the fingerprints so found with those of appellant and concluded that the prints were those of appellant.

Appellant offered alibi testimony of his former wife, two sisters and his mother to the effect that appellant was at his mother’s house throughout the night of December 25. His former wife testified that he was with her during Christmas Day.

In this court, appellant first contends that the trial court should have sustained his motion for acquittal because there was not sufficient evidence that appellant acted with the requisite intent to be guilty of the crime of burglary. Appellant relies upon the fact that the jury did not find him guilty of stealing and argues that, since entry with intent to steal was the basis of the burglary charge, there has been no showing that his entry was with intent to commit a felony. This contention is answered in State v. Pauley, 515 S.W.2d 824, 825-826[4-7] (Mo.App.1974). In that case the court noted that actual stealing is not essential to a burglary conviction and an acquittal on that charge is not inconsistent with a finding of guilt on a burglary charge, based upon entry with intent to steal. See also State v. Massey, 542 S.W.2d 88, 90[1 — 4] (Mo.App.1976).

Here the presence of appellant’s fingerprints inside the school, coupled with evidence that he had no permission to be there, was sufficient to permit the jury to find that he broke and entered the building. State v. Schleicher, 442 S.W.2d 19 (Mo. 1969). The evidence would further warrant a finding by the jury that the breaking and entering was with the intent to steal.

State v. Shepard, 442 S.W.2d 58 (Mo. banc 1969), relied upon by appellant, is of no assistance here. That conviction was reversed on the basis of an instruction which predicated a conviction upon a finding of breaking and entering with intent to steal or commit any other felony. The problem there was the lack of evidentiary support for submission of the other felony intent. Such is not the problem in this case.

Appellant next contends that the trial court erred in admitting into evidence State’s Exhibit No. 6, the alleged fingerprint record of appellant. Appellant contends that the record was not properly identified as a business record and that in the absence of evidence that it was appellant’s fingerprint record, its admission into evidence was error. Appellant relies upon the plain error rule (Rule 27.20) inasmuch as this objection was not voiced at the trial.

Ms. Virginia Strohm, the fingerprint technician for the Independence Police Department, testified that she compared the latent prints found in the school building with those on State’s Exhibit No. 6 bearing the signature of William Schneider. According to Ms. Strohm, she received the inked fingerprint card from “detention.” “They fingerprint people as they come in.” The items, notations and fingerprints on the card are there when she picks up the card from the detention area. Detention people work under her supervision in preparing the fingerprint cards. The card is a record of the police department, kept under her custody and control. On the basis of Ms. Strohm’s testimony, the exhibit was admitted into evidence without objection.

Appellant now contends that the exhibit was not qualified as a business record under Section 490.680, RSMo 1969, because there was no evidence of the mode of preparation of the exhibit and no evidence that the entries thereon were made near the time of the act, condition or event.

On this record it may not be said that the trial court abused its discretion in admitting Exhibit No. 6 in evidence. The witness who identified it was the custodian of the record; she testified to its mode of preparation and to the time of the making. Her testimony did hot show the exact time at which this exhibit was prepared but it did show the routine followed and that the preparation was under the supervision of the witness-custodian. This testimony was sufficient to show that “the sources of information, method and time of preparation were such as to justify its admission.” § 490.680. See State v. Boyington, 544 S.W.2d 300, 305-306[7, 8] — [12, 13] (Mo.App.1976); State v. Jones, 518 S.W.2d 322, 324-325[1, 2] (Mo.App.1975).

Appellant’s next assignment of error is based upon a remark of the prosecutor in his closing argument. In the course of his argument, the prosecutor stated:

“If there had been any doubt that those fingerprints were anyone’s other than the defendant’s, you would have heard from a defense expert in this case. You would have heard from somebody hired * * At this point defense counsel objected and asked that the jury be instructed to disregard the prosecutor’s comment. The court sustained the objection and instructed the jury to “disregard the last statement of counsel.” No further relief was requested. In this court, appellant contends that the trial court should have declared a mistrial and that it was plain error under Rule 27.20 for the court to fail to do so although no request was made for a mistrial.

Appellant’s contention is premised upon the prosecutor’s knowledge of appellant’s indigency and he contends that the prosecutor sought, despite his knowledge that appellant was not in a financial position to obtain expert testimony, to gain an unfair advantage by pointing out to the jury the defendant’s failure to come forward with expert testimony.

Inasmuch as the trial court sustained objection to the argument and instructed the jury to disregard it, the impropriety of the argument is not open to question. The only question is whether or not the argument was such as should have required the trial court of its own motion to declare a mistrial and now calls for relief under the plain error rule.

The argument was not such as to require the reversal of the judgment of conviction. The objectionable argument was limited to two sentences in the prosecutor’s remarks. The trial court, upon objection, immediately sustained the objection and instructed the jury to disregard the remark. This line of argument was not pursued by the prosecutor. Those factors distinguish this case from cases where relief has been afforded under the plain error rule for prejudicial argument by the prosecutor. Thus in State v. Heinrich, 492 S.W.2d 109, 113-116[5, 6]-[9] (Mo.App.1973), the argument of the prosecutor repeatedly exceeded proper bounds and objections which should have been sustained were overruled by the trial court. In State v. Ellinger, 549 S.W.2d 136, 139-140[3][4] (Mo.App.1977), there was argument which might have been construed as a direct reference to the failure of the defendant to testify, coupled with further argument amounting to a personalization of the jury. The prejudicial effect of the argument was held to require relief under the plain error rule in view of the fact that the jury’s verdict of guilt followed giving of a “hammer” instruction.

Appellant cites no cases which would support an argument that had a mistrial been requested in this case, the trial court would have erred in failing to grant such relief. See State v. Raspberry, 452 S.W.2d 169, 173[7 — 11] (Mo.1970). Clearly the case does not call for relief under the plain error rule. State v. Brown, 528 S.W.2d 503, 505[1, 2] (Mo.App.1975); State v. Mayfield, 562 S.W.2d 404, 412[12] (Mo.App.1978).

Appellant next complains that the trial court erred in permitting, over objection that the matters were beyond the scope of the cross-examination, Conyers to testify on redirect examination that Benton School was in Jackson County and that appellant had no permission to be inside the school building. “The scope and extent to which redirect examination of a witness shall be permitted to go is a matter to be left largely to the sound discretion of the trial court, reviewable only for abuse. State v. Walden, 490 S.W.2d 391, 393[5] (Mo.App.1973).” State v. Remspecher, 542 S.W.2d 24, 25[3, 4] (Mo.App.1976). No abuse of discretion has been demonstrated here.

Appellant finally complains that his motion for new trial should have been sustained because he was denied effective assistance of counsel “guaranteed under the Sixth Amendment of the United States Constitution.”

Appellant’s 27.26 motion sought to set aside his conviction and a new trial on the grounds of inadequate assistance of counsel. Alternatively it sought to set aside the judgment in order to permit the filing of a motion for new trial, based upon misleading advice by counsel concerning the effect of an appeal. At the 27.26 hearing, the court was of the opinion that the issue before the court should be confined to the alternative relief and declined to permit testimony on the adequacy of counsel’s assistance other than as it related to the waiver of right to appeal. Appellant’s counsel did make offer of proof going to the issue throughout the case but this was done by counsel and not by way of testimony of witnesses as authorized by Rule 73.01, subd. 1(a). In its judgment, the trial court stated that it did not consider the issue or evidence concerning the alleged incompetency or improper handling of the pre-trial preparation or trial in the original trial.

The motion for new trial which appellant was permitted to file renewed the allegations of inadequate assistance of counsel but no evidence was offered in support of the allegations.

On this record, appellant asserts that this is a case not within the general rule which precludes consideration of the issue of adequacy of assistance of counsel on a direct appeal. See State v. Nolan, 499 S.W.2d 240, 252[13] (Mo.App.1973); State v. Smith, 454 S.W.2d 539 (Mo.1970).

In view of the trial court’s limitation upon the evidence heard on the issue of adequacy of assistance of counsel and the fact that only offers of proof by counsel would provide the basis for review here, the record in this court does not provide an adequate basis for review of this issue on this appeal. Therefore, it will not be considered.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    GREATER KANSAS CITY BAPTIST AND COMMUNITY HOSPITAL ASSOCIATION, INC., d/b/a Dr. Martin Luther King Jr. Memorial Hospital, Plaintiff-Appellant, v. BUSINESSMEN’S ASSURANCE COMPANY, Defendant-Respondent.
    No. 30393.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    Application to Transfer Denied Sept. 11, 1979.
    Charles C. Shafer, Jr., George S. Murray, III, Kansas City, for plaintiff-appellant.
    John C. Thurlo and Niles S. Corson, Kansas City, for defendant-respondent.
    Before HIGGINS, Special Judge Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from adverse judgment in action by hospital against insurance company for $898.24 for services rendered its insured. The question is whether there was an assignment to the hospital by the insured of health insurance benefits under a policy issued by the insurance company. The court found there was no assignment; and absent an assignment, the hospital was not the real party in interest to maintain this action. Reversed and remanded.

Will Tate was issued health policy LC4524019 by Business Men’s Assurance Company, May 26, 1977. He was admitted to Martin Luther King Hospital June 14, 1977, for treatment of injuries. MLK telephoned BMA June 17, 1977, for verification of benefits. BMA advised that it issued subject policy May 26, 1977; that it provided certain hospital and medical expense benefits to Will Tate, and that the policy was then in effect.

BMA received three documents from MLK July 5, 1977. One was an American Hospital Association form signed by Will Tate which recited “I HEREBY AUTHORIZE PAYMENT directly to the below named hospital of the group hospital insurance benefits specified and otherwise payable to me but not to exceed the balance due of the hospital’s regular charges for this period of hospitalization. I understand I am financially responsible to the hospital for charges not covered by the authorization”. Another was a lien letter dated June 30, 1977. The third was a claim for hospitalization expenses.

BMA directed a letter to Will Tate August 31, 1977, to terminate the policy as of its date of issuance for alleged “stacking” of coverages, and enclosed a refund of premium which Mr. Tate cashed.

Appellant contends there was a valid assignment by Will Tate to MLK of BMA policy benefits and that MLK was the real party in interest to bring this suit. Its argument is that the quoted language constituted a valid assignment in the circumstances of this case.

Respondent, citing Texas authorities, takes the position that the quoted language, lacking use of “assign” or “assignment”, is nothing more than an authorization to pay.

Missouri has the view of 6 A.C.J.S., Assignments, ¶49, p. 664, that “any language, however informal or poorly expressed, if it shows the intention of the owner of the property or chose in action to transfer it, clearly and unconditionally, and sufficiently identifies the subject matter will be sufficient to vest the property therein in the assignee”. See Halvorson v. Commerce Trust Co., 222 S.W. 897, 898(1) (Mo.App.1920).

In Halvorson v. Commerce Trust Co., supra, the purported assignment “If the sale is finally concluded, you have our consent to pay over to F. B. Gillette $3,750 out of said sum [$10,000], as his commission” was attacked on the ground it was “a mere consent or direction to pay part of the funds in its possession at a future time”. The court on authority of the citation from Corpus Juris held the written “consent” or “direction” was a valid assignment.

The similarity in import of the language in Halvorson v. Commerce Trust Co., supra, and the present case is inescapable. MLK is not to be denied a valid assignment from Will Tate for absence of “assign” or “transfer” from the documents employed in the context of this case. The intention of all concerned is clear. MLK rendered hospital services to BMA’s insured, Will Tate, secured his signature to his authority to pay the charges by his policy, and all such items were transmitted to BMA following their assurance that coverage for the services was in force under the policy.

Apropos these circumstances, it has been said, General American Life Insurance Co. v. Isabell, 523 S.W.2d 616, 618 (Mo.App. 1975): “Denial of the assignment of the hospital and medical benefits to a hospital would frustrate the entire design for which the insurance coverage was intended”.

Reversed and remanded.

All concur.

      . It does not appear how this letter is germane to the question of assignment. If it is to present a question of rescission, no such issue has been yet decided.

      . East Texas Life and Accident Insurance Co. v. Carver, 407 S.W.2d 251 (Tex.App.1966). Presbyterian Hospital of Dallas v. National Life and Accident Insurance Co., 480 S.W.2d 497 (Tex.App.1972).


author: CRIST, Judge.

text:
    Eugene R. COREY, Plaintiff-Respondent, v. David Kevin FOLEY, Administrator of the Estate of David C. Foley, Jr., Defendant-Appellant.
    No. 39347.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 12, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Application to Transfer Denied Sept. 11, 1979.
    Barnard & Baer, Richard O. Funsch, St. Louis, for defendant-appellant.
    Leo M. Newman, St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Civil case. Plaintiff obtained judgment against defendant’s estate in the sum of $35,000.00.

David C. Foley, Jr., deceased, herein referred to as “Foley” owned and maintained a duplex with a two car garage underneath the living quarters of his tenants. During the night of October 24, 1973, or early the next morning, Foley went into the closed garage and started his car. Foley was found dead with his engine running. Carbon monoxide gas permeated the living quarters of plaintiff to such an extent that plaintiff, who was asleep therein, awakened with a headache, passed out and did not regain consciousness for about four days.

Defendant insists the court erred in not directing a verdict in his favor because plaintiff did not prove Foley knew or should have known of the danger to plaintiff of carbon monoxide poisoning because plaintiff was a trespasser and had not proven Foley knew of his presence. We disagree.

Plaintiff’s lease of the duplex was to commence in November, 1973. However, when plaintiff arranged to lease the duplex on September 26, 1973, plaintiff informed Foley he would attempt to move into the duplex as soon as the prior tenants, who were friends of plaintiffs, moved out of the duplex. Foley agreed to the proposal should plaintiff be able to arrange the matter with the prior tenants. Thus, Foley did or should have known someone would continuously occupy the quarters above the garage. Additionally, when plaintiff moved in on October 23, 1973, the moving van blocked the driveway from about nine in the morning until the middle of the same afternoon. There were a lot of boxes and furniture to move into plaintiff’s quarters. A son who lived with Foley had seen plaintiff moving objects on October 23, 1973 and had assumed the plaintiff and his wife had moved and were staying in the duplex by October 24th. Further, plaintiff and Foley had, upon the arrangement of the lease, agreed the plaintiff’s automobiles would be parked at the end of the driveway rather than in the basement garage and at least one of the vehicles was so parked on October 24, 1973 when Foley returned home. Foley would have passed cars parked at the end of the driveway in order to park his car in the garage when he arrived home on October 24th.

We believe this evidence was sufficient for the jury to find that Foley either knew or should have known of the presence of someone in the upstairs quarters at the time he caused the emission of carbon monoxide. See, Bollman v. Kark Rendering Plant, 418 S.W.2d 39 (Mo.1967).

Plaintiff contends that appellant’s brief should be dismissed for failure to comply with Rule 84.04(d) setting forth the requirements for appellant’s points relied on. We agree that appellant’s Points Relied On II and III are deficient.

Appellant’s Points Relied On II and III, both pertaining to Instruction Number 3, are as follows:

II
THE TRIAL COURT ERRED IN GIVING PLAINTIFF’S REQUESTED INSTRUCTION NO. 3 BECAUSE M.A.I. 22.02 WAS NOT THE APPROPRIATE INSTRUCTION FOR SUBMITTING PLAINTIFF’S THEORY OF RECOVERY AGAINST DEFENDANT.
III
THE TRIAL COURT ERRED IN GIVING PLAINTIFF’S REQUESTED INSTRUCTION NO. 3 BECAUSE SAID INSTRUCTION MADE IMPERMISSIBLE MODIFICATIONS AND THAT SAID INSTRUCTION WAS NOT PROPERLY LIMITED TO THE ULTIMATE FACTS OF THE CONDITION OF THE PREMISES AND AS A RESULT CONSTITUTED A ROVING COMMISSION.

Neither of such points relied on tells us wherein and why Instruction Number 3 was erroneous, and neither the argument portion of the brief nor appellant’s reply brief remedy the deficiency. Point Relied On II does not specify wherein and why MAI 22.02 was not an appropriate instruction for submitting plaintiff’s theory of recovery. Similarly, Point Relied On III does not specify wherein, if Instruction Number 3 constituted an impermissible modification of the appropriate MAI instruction, Instruction Number 3 was not limited to the ultimate facts or why Instruction Number 3 constituted a roving commission to the jury. Points relied on asserting jury instructions are erroneous must state, with greater clarity than those in the instant case, wherein and why the instruction given was erroneous. Associated Underwriters, Inc. v. Mercantile Trust Co. Nat’l Ass’n, 576 S.W.2d 343, 346 (Mo.App.1978). Compliance with Rule 84.04(d) is mandatory. Thummel v. King, 570 S.W.2d 679 (Mo.banc 1978).

We find nothing intrinsically wrong with Instruction Number 3. No one has shown any error. Accordingly, we find against the appellant on these two points relied on.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: GUNN, Judge.

text:
    STATE of Missouri ex rel. RIVER CEMENT COMPANY and Travelers Insurance Company, Relators, v. The Honorable Donald J. PEPPLE, Administrative Law Judge, Respondent.
    No. 40155.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 12, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Application to Transfer Denied Sept. 11,1979.

      Edward M. Vokoun, Evans & Dixon, St. Louis, for relators.
    Vincent M. Igoe, St. Louis, Ray E. White, Jr., Clayton, Terry C. Allen, Jefferson City, for respondent.
   GUNN, Judge.

Relators River Cement Company and Travelers Insurance Company sought a writ of prohibition in Jefferson County Circuit Court directed to Administrative Law Judge Donald J. Pepple in a workmen’s compensation claim proceeding. The circuit court entered its preliminary rule in prohibition and after considering suggestions in support and opposition of the writ and arguments of counsel issued its order quashing the writ. Relators have appealed from the order quashing the preliminary writ. Inasmuch as prohibition had been granted preliminarily by the circuit court, appeal to this court is the proper procedure for presenting the matter for review. State ex rel. Karmi v. VonRomer, 562 S.W.2d 112 (Mo.App.1978); State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App.1970).

The original writ proceeding was instituted by relators to prevent enforcement of an order pursuant to a workmen’s compensation claim which permitted an attorney, photographer and technical expert to enter the River Cement Company plant and inspect and photograph the site where an employee of the plant was injured. Rela-tors submit that the statutory section governing discovery in a workman’s compensation case, § 287.560, RSMo 1969, only delineates depositions and subpoenas as permissible methods of discovery, and, thus, the order for inspection was beyond the jurisdiction of the administrative law judge. We affirm the order quashing the preliminary writ.

On September 20, 1975, the claimant, Marvin Otte, an employee of relator River Cement Company, was seriously burned as the result of a work-related accident. Subsequently, he was awarded and still receives medical treatment and compensation benefits in accordance with the Missouri Workmen’s Compensation Act, § 287.010 et seq., RSMo. Claimant Otte filed an amended claim for compensation and alleged that his accident was caused by his employer’s failure to comply with certain safety statutes, thereby entitling him to a 15% increase in award. § 287.120(4), RSMo Supp.1978. Depositions of fellow employees and managerial personnel were taken in support of claimant’s claim. River Cement Company allowed the claimant’s attorney to photograph the machinery which caused the injuries while it was energized. When the claimant was refused entrance to the premises for the purpose of inspecting, testing and photographing the machinery again, he filed a motion with the Division of Workmen’s Compensation for permission to inspect and photograph. On November 1, 1977, the respondent Pepple issued an order which commanded that River Cement Co. allow the claimant’s attorney, a technical expert and a photographer to enter the premises for the purposes sought in the motion. Relators filed a petition for a writ of prohibition to prevent enforcement of the order and suggested that the respondent was without jurisdiction to make such a demand; the writ was preliminarily granted. At the hearing, counsel for rela-tors argued: (1) that inspection of the premises was not an authorized method of discovery in the Workmen’s Compensation Act; (2) that the inspection would require de-energization of the equipment at considerable expense and inconvenience to rela-tors for which no compensation had been provided in the order of the respondent, thereby depriving them of due process of law. The claimant countered: (1) that the power to inspect was inherent in the act if the penalty section had meaning; (2) that access was necessary to defend against any allegations that claimant failed to use certain safety equipment, thereby subjecting himself to a possible 15% penalty as provided in § 287.120(5), RSMo Supp.1978; and (3) that the realities of review in the administrative law process require the procedure in order to make a substantial record before the earliest trier — the administrative law judge. Counsel for claimant stated that he had not requested the equipment in question be shut down or de-energized for the purpose of inspection. Additionally, the claimant asserted that he was willing to make a cash bond to reimburse relators for any expense caused them by allowing the inspection. At the conclusion of the hearing, the circuit court judge quashed the preliminary rule in prohibition finding that whenever a substantive right of a workmen’s compensation claimant is involved, the administrative law judge should be given latitude to protect that right through the establishment of an adequate record.

We do not endorse a broad application of the circuit court’s rationale. The degree of undelegated power which can be invoked for the sake of protecting substantive rights is not boundless. There is ample authority for the proposition that quasi-judicial bodies such as the Division of Workmen’s Compensation are confined to the powers specifically granted them by statute. See, e. g.: Ringeisen v. Insulation Services, Inc., 539 S.W.2d 621 (Mo.App. 1976). Section 287.560, RSMo 1969, which fuels the fire of controversy here either giving the respondent authority for his discovery order, or as relators contend, is destitute of such authority, provides:

The division, any referee thereof or the commission, shall have power to issue process, subpoena witnesses, administer oaths, examine books and papers, and require the production thereof, and to cause the deposition of any witness to be taken and the costs thereof paid as other costs under this chapter. Any party shall be entitled in process to compel the attendance of witnesses and the production of books and papers, and at his own cost to take and use depositions in like manner as in civil cases in the circuit court. Subpoena shall extend to all parts of the state, and may be served as in civil actions in the circuit court, but the costs of the service shall be as in other civil actions. Each witness shall receive the fees and mileage prescribed by law in civil cases, but the same shall not be allowed as costs to the party in whose behalf the witness was summoned unless the persons before whom the hearing is had shall certify that the testimony of the witness was necessary. All costs under this section shall be approved by the division and paid out of the state treasury from the fund for the support of the Missouri division of workmen’s compensation; provided, however, that if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. The division or the commission may permit a claimant to prosecute a claim as a poor person as provided by law in civil cases.

Clearly, the power to inspect is not denominated. Further, the Missouri Rules of civil procedure generally do not apply to Workmen’s Compensation cases. Tillman v. Wedge Mobile Service Station, 565 S.W.2d 653 (Mo.App.1978); Groce v. Pyle, 315 S.W.2d 482 (Mo.App.1958). Therefore, Rule 58.01, which provides for discovery by inspection in civil actions, cannot be invoked for claimant’s benefit. Nevertheless, the facts of the present situation compel us to affirm the circuit court’s order.

The claimant seeks to increase his award via the penalty provision of § 287.-120(4), RSMo Supp.1978:

Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent.

In order to succeed under this statute, the claimant must demonstrate the existence of the given statute or order, its violation, and a causal connection between that violation and the compensated injury. See, Martin v. Star Cooler Corp., 484 S.W.2d 32 (Mo.App. 1972). Without the power to inspect, claimant’s ability to prove his case is greatly diminished. The courts have long recognized the value of expert medical testimony for establishing by competent and substantial evidence a recognizable connection between the worker’s compensation claimant’s injury and occupation. As stated in Welker v. MFA Central Co-Operative, 380 S.W.2d 481, 487 (Mo.App.1964):

We think the question of causation was one for medical testimony, without which a finding for claimant would be based on mere conjecture and speculation and not on substantial evidence.

Accord: Estes v. Noranda Aluminum, Inc., 574 S.W.2d 34 (Mo.App.1978). It follows, then, that the claimant would have need to produce a technician’s expertise in determining whether the machine which injured him was in violation of any safety standards and whether that violation caused the injury. We concur in the relator’s position that the claimant is limited to those methods of discovery specifically authorized by legislative enactment. See, e. g., Cox v. McNeal, 577 S.W.2d 881 (Mo.App.1979); National Advertising Co. v. State Highway Commission, 549 S.W.2d 536 (Mo.App.1977). But we believe that this right to inspect is inherent in the powers authorized by § 287.-560, RSMo 1969. For example, the section provides that the taking of depositions in workmen’s compensation cases is to be governed by the rules of civil procedure. Tillman v. Wedge Mobile Service Station, supra. Rule 57.09 controls the issuance of subpoenas as they relate to depositions. Rule 57.09(b) states that a subpoena may request the person to whom it is directed to produce books, papers, documents or tangible items. We believe it chimerical to hold that the claimant can compel the relator to produce the machine in question at a deposition hearing but cannot inspect the machine with considerably less effort at relator’s plant. We are obliged to construe the Workmen’s Compensation Act so as to give effect to every section of the statute. Hudson v. State Security Ins. Co., 555 S.W.2d 859 (Mo.App.1977). Relators warn us that “. . . the courts are not at liberty to write into [the Workmen’s Compensation Act] under the guise of construction, provisions which the legislature did not see fit to insert.” Schmitz v. Carr-Trombley Mfg. Co., 139 S.W.2d 1064, 1066 (Mo.App.1940). Yet our interpretation of the scope of discovery does not enlarge the power of the respondent beyond that intended by the legislature but merely promotes the substantive rights of the claimant granted in the penalty section — § 287.120(4), RSMo Supp.1978.

Relators’ argument that the contested order violated due process and the constitutional prohibitions against unreasonable searches and seizure is without merit, particularly since the order did not require that the machinery be de-energized or that production be halted. Relators argue that a single inspection should have sufficed if claimant sought merely to survey the machinery in its energized state. The claimant’s motivations are not before us on appeal, however, and the protested order does not requiré a shut down. As counsel for claimant noted at the writ of prohibition hearing, such a request would have to be the subject of a separate motion. In any event, claimant has offered to post a bond so as to compensate the relators for possible damage.

The judgment quashing the preliminary rule in prohibition is affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . Of course, had the preliminary writ been denied by the circuit court, no appeal would lie from that action. State ex rel. Brandon v. Hickey, supra.

      . There was some indication from the testimony of the opposing counsel that the relator-employer had initially agreed to allow the second inspection but then revoked that permission on the advice of its attorney.


author: HOGAN, Judge.

text:
    In re the Marriage of L. J. SPICER, Petitioner-Respondent, v. Pauline G. SPICER, Respondent-Appellant.
    No. 10398.
    Missouri Court of Appeals, Southern District, Division Two.
    June 15, 1979.
    Motion for Rehearing or Transfer Denied July 2, 1979.
    Application to Transfer Denied Sept. 11, 1979.
    William C. Myers, Jr., Julian J. Ossman, Myers, Perry, Ossman & Copeland, Webb City, for respondent-appellant.
    C. E. Ruyle, Ruyle & Sims, Neosho, for petitioner-respondent.
   HOGAN, Judge.

In this dissolution of marriage case, appeal is taken from that part of the decree apportioning marital property.

The petitioner and respondent, to whom we shall refer as the husband and the wife, were married in 1948 and were separated finally in 1975. The husband adopted the wife’s daughter by a former marriage, and during their marriage of nearly 27 years, the parties became the parents of three sons. The children are adults; the youngest son was 22 years of age when this action was commenced.

By petition and answer filed, both parties alleged irretrievable breakdown of their marriage, for different reasons. The trial court’s findings faithfully recite the gradual deterioration of the parties’ domestic relation, their efforts to accommodate or resolve their differences, and the ultimate failure of those efforts. We cordially agree with the trial court’s finding that the marriage is irretrievably broken.

As noted, the focus of the appeal is upon the apportionment of marital property. It was agreed in the trial court and stipulated here on oral argument that all the parties’ assets are marital property within the meaning of § 452.330(2), RSMo (Supp.1975). The parties differ as to the value of the marital estate, but inasmuch as we have concluded we cannot resolve this appeal on its merits, we need not discuss those differences. The valuation relied on by the trial court appears here as the husband’s exhibit 8. Exhibit 8 is a schedule of the parties’ assets and liabilities prepared by a tax attorney, who is also a certified public accountant, on the basis of the husband’s testimony and, apparently, information furnished by the husband before trial. Exhibit 8 shows that at trial time, the marital estate consisted of 11 parcels of real property valued at $1,295,000, subject to encumbrances totalling $637,172. The estate also includes tangible and intangible personal property, excluding household effects, valued at $609,561, subject to encumbrances amounting to $101,416. If one includes some joint liabilities immediately due and payable at trial time, household furnishings and one item amounting to $1,750 which admittedly belongs to one of the children, the total net value of the marital estate is $1,164,096.

For our purposes, it is important to notice two or three other factual aspects of the case. The parties’ most valuable assets, with a few exceptions, consist of business assets, most of which are encumbered and which will require careful management by some person with business experience. One item included as a substantial part of the marital estate is a tract of land and a building thereon which is occupied by Spi-cer Chevrolet-Olds, Inc., an automobile agency which has been the parties’ principal source of income. The agency property is valued at $200,000, subject to an encumbrance in the amount of $72,025. The husband’s interest in the agency is valued at $390,000, subject to an encumbrance in the amount of $101,416. The husband has been selling new and used automobiles for many years; the wife has had little or no connection with the operation of the agency.

Another item, in which the wife expressed interest and stated she would like to have awarded to her, is referred to as the “Consumers Building.” The wife seems to regard the “Consumers Building” as an uncomplicated and secure source of revenue but that is simply not the case. The building itself is a 31,000 square foot structure which is leased to a local retail grocery chain. Examination of the lease reveals that it is primarily a credit instrument, designed to provide the assurance of a high-credit tenant as an inducement to make a real estate loan and as an assurance of a cash flow sufficient to service the mortgage debt. The lease provides for an “override” (ground rent) probably sufficient to discharge the husband’s (lessor’s) obligation to maintain, insure and pay taxes on the building and adjacent realty. The lease further includes a percentage rental provision intended as a hedge against inflation, but the mortgage debt will not be fully amortized until 1994 at which time the parties will be nearly 70 years of age. If there is no change in patterns of merchandising nor any shift in the area of retail activity, the investment in the “Consumers property” may become a source of secure fixed return, but in any event careful supervision and management of the property will be required.

Other tracts of real property are included in the marital estate; some have been developed, others are subject to potential development. All the real property, however, will require maintenance and further investment if its value is to be preserved. There are, to be sure, liquid assets in the estate, in particular a savings account in the Bank of Neosho in the amount of $42,-513 and a time deposit at the First National Bank in the amount of $38,599, but we shall address those liquid assets presently.

The husband had evidence from a tax attorney that capital gains tax upon the entire marital estate, were it liquidated and sold, would reduce the net value of the marital estate from $1,164,000 to $900,000. Transferring the “Consumers property” to the wife would alone result in an additional federal and state tax liability of $77,507. Computations pertaining to other listed items were presented; the substance of the tax attorney’s testimony was that any substantial distribution of the marital estate in kind would diminish the estate considerably because of increased tax liability.

One other factual aspect of the cause should be noted. At trial time, the husband was 51 years.of age. We find no specific testimony concerning his health, but he appears to be extraversive, acquisitive and singlemindedly devoted to his business interests. He has attended to the parties’ business affairs at all times during their marriage. The wife is 52 years of age; she is well educated, but has spent 27 years as a full-time wife and mother. She has little business experience, and her health is, to some degree, impaired by a persistent back ailment. The wife has some ability to work and earn, but the maximum salary she could expect to receive is about $400 per month. The wife has been obliged to look after her parents, who are old and very ill, and she believes she could not accept full-time employment without neglecting her duty to her parents. As for the “conduct of the parties during the marriage” — one of the factors bearing upon an equitable distribution of marital property, § 452.330(1), (4), RSMo (Supp.1975) — we have set aside any consideration of “fault” in this case. The wife complained that the husband has been inattentive, insensitive and given to coarse speech; the husband had evidence that the wife has been a most indifferent housekeeper, that she has on occasion been rude or ungracious on important social occasions, and has persistently made officious suggestions concerning matters of which she has no real knowledge. Such may be the case, but there is no convincing proof of cruelty, neglect or open adultery on the part of either party, and in any marriage of 27 years, there is fault enough — of the order proved here — to go around.

The trial court’s order and decree may be briefly summarized. In essence, the trial court balanced the equities by awarding the wife the home, household furnishings and $1,725 per month as maintenance; all other marital property was awarded to the husband. The husband was ordered to assume all encumbrances on the marital estate. The trial court’s intent is manifest, but an award of maintenance cannot be substituted for a spouse’s share of the marital estate. For that reason, the submission must be set aside and the cause must be remanded.

A preliminary matter, which we address to avoid misunderstanding upon remand, is whether § 452.330, RSMo (Supp. 1975), authorizes the trial court to apportion marital property by making an award of cash in the nature of an annuity. Because § 452.330, RSMo (Supp.1975), is taken from § 307 of the 1970 draft of the Uniform Marriage and Divorce Act, we must look to the intent of the commissioners who drafted the act to determine the intent of our statute. State v. Anderson, 515 S.W.2d 534, 539[5] (Mo.banc 1974). In Claunch v. Claunch, 525 S.W.2d 788, 791 (Mo.App.1975), it was held that a court might order payment of cash in lieu of a division of marital property in kind, but that decision does not quite reach the question we have here. Nevertheless, the trial court must be allowed considerable latitude in dividing marital property, and a reasonable research into the decisions of other states which have adopted substantial equivalents of § 307 of the Uniform Marriage and Divorce Act, 9 U.L.A. at 490-491 (Master ed. 1973), which is the prototype for our § 452.330, RSMo (Supp.1975), convinces us that when the marital estate is a business estate, and its division in kind or forced liquidation would materially depreciate its value and could destroy the basis of the husband’s earning capacity, a wife may be allowed the value of her share of the marital property in cash, payable either as a gross amount or in installments. See, e. g., In re Marriage of Harding, 533 P.2d 947 (Colo.App.1975); In re Marriage of Johnsrud, 572 P.2d 902 (Mont.1978). In this case, it could reasonably be found that a division of marital property in kind might consume a considerable part of the marital estate in capital gains tax; a significant investment, the “Consumers property”, might disappear entirely and it is likely that the husband’s capacity to earn would be substantially impaired. And, while it is not necessary to our holding, we may say that we have no fault to find with valuing a series of periodic payments as an annuity would be valued, as the husband suggests. We will say, for whatever guidance it may offer a respected colleague of many years, that we believe some award of the parties’ liquid assets— exhibit 8 shows a passbook savings account in the amount of $42,513 and a time deposit in the amount of $38,599 — should be made to the wife so she may to some extent insulate herself against the declining value of money. Moreover, the purported award takes no account of the possibility that the husband may predecease the wife; the husband’s maintenance of a life insurance policy payable to the wife would provide for such a contingency.

Such suggestions are only suggestions, however, for we cannot decide this appeal on its merits. With deference, it appears that the trial court has erroneously assumed that an award of maintenance may offset or stand in lieu of an equitable apportionment of marital property. That is not the intent of the statute. Our § 452.-330, RSMo (Supp.1975), which requires apportionment of marital property, is taken from § 307 of the original Uniform Marriage and Divorce Act. Section 452.335, RSMo (Supp.1975), is taken from § 308 (maintenance) of the same uniform act. The commissioner’s comment upon § 308, 9 U.L.A. at 494, reads:

. [T]he dual intention of this section and Section 307 is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance. Only if the available property is insufficient for the purpose and if the spouse who seeks maintenance is unable to secure employment appropriate to his skills . or is occupied with child care may an award of maintenance be ordered.” (our emphasis).

Clearly it is the duty of the trial court to make an equitable distribution of the marital property before the matter of maintenance is considered. If, after the marital estate is apportioned, a spouse’s future needs cannot be met by his or her property distribution, then a petitioning spouse is entitled to maintenance if he or she fulfills the requirement of § 452.335(1). Such is the plain requirement of §§ 452.330 and 452.335, RSMo (Supp.1975), when the two are read together. In re Marriage of Johnsrud, supra, 572 P.2d at 905[1].

In the case before us, no consideration appears to have been given to an award of maintenance. Indeed, upon the evidence presented, no award of maintenance could have been made. Absent evidence of the wife’s needs, there was no basis upon which to fix an amount. The wife testified that the husband paid all the household bills, part of her clothing bills, and she received a “spending money allowance” of $620. There is other testimony concerning the wife’s expenditures, but we find no evidence concerning her actual needs.

Since our Dissolution of Marriage law was enacted, our courts have insisted that a proceeding for dissolution be fully adjudicated before it will be reviewed on appeal. See, e. g., L.F.H. v. R.L.H., 543 S.W.2d 520, 521[1] (Mo.App.1976). The operative principle is that we may not exercise our jurisdiction until there has been a final adjudication of all the parties’ rights in the trial court. Pendleton v. Pendleton, 532 S.W.2d 905, 906[3] (Mo.App.1976); Green v. Green, 240 S.W.2d 741, 742-743[3, 4], [5-7] (Mo.App.1951). Accordingly, the submission is set aside and the cause is remanded to the trial court with directions to hear evidence concerning the wife’s need for maintenance and such other evidence as it may, in its discretion, consider necessary to render a final judgment.

BILLINGS, C. J., concurs.

YEAMAN, CONLEY and RAGLAND, Special Judges, concur.

MAUS, J., not participating because not a member of the court when case was submitted.

      . We use the noun “annuity” here in its “popular” rather than its technical sense, i. e., to mean a sum of money receivable at stated periods. See: Wiegand v. Woerner, 155 Mo. App. 227, 254-255, 134 S.W. 596, 605 (1911); In re Brown’s Estate, 25 Misc.2d 656; 205 N.Y. S.2d 532, 534[1] (1960).