author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerome Darnell BOLDEN, Defendant-Appellant.
    No. 35906.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 1, 1975.

      Charles D. Kitchin, Public Defender; John E. Bell, James C. Jones, and Marilyn Wallach, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen.; Preston Dean and Scott A. Raisher, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Jerome Darnell Bol-den, was found guilty by a jury of assault with intent to maim with malice and was sentenced by the court under the Second Offender Act to 35 years imprisonment. § 556.280, RSMo 1969, V.A.M.S. He appeals. For reasons hereinafter stated, we affirm the judgment of conviction.

Defendant does not question the sufficiency of the evidence; hence only those facts necessary for the disposition of this appeal will be stated.

The incident for which defendant was tried and sentenced occurred during the early morning hours of June 8, 1973. At about 1:00 a. m., Jerome and Debra, his wife of about a month, were at Jerome’s parents’ home in St. Louis. They quarreled over a particular letter. The two left the house and went to the house of defendant’s brother’s girlfriend, Gloria. According to Debra, behind that house, defendant hit her with his fist, “busted” her lip and “put a knot on the side of [her] head.” He also picked, up & “stick or an iron pipe” and hit her in the side. She fell. While lying there, defendant kicked her. The two then returned to Jerome’s parents’ home. Defendant told Debra to wash her face and “hurry up and get through” because defendant “was going to kill me.” They again left the house and walked down New-stead Avenue. In the vicinity of Newstead and St. Louis Avenues, defendant picked up a brick and threatened to “crack” Debra’s head. Then he picked up a whiskey bottle, broke it on a lamp post and “stabbed me in my side.” Debra said he then “stabbed me” in the eye. After this incident, the two started walking toward Homer G. Phillips Hospital, a few blocks away. At Lambdin and St. Louis Avenues, Police Officer Terran Williams saw them, stopped and took both Jerome and Debra to the hospital.

About an hour and a half after arriving at the hospital, and when the defendant was not present, Debra told Officer Williams what had happened. She also told a Miss Chew, a friend of defendant, referred to as defendant’s “godmother,” who happened to be in the emergency room, that defendant stabbed her and pleaded with Miss Chew not to tell defendant what Debra told her. Miss Chew, however, testified that Debra told her that “some men jumped her on the street and tried to rob her.” Debra was hospitalized 44 days; as a result of the incident, Debra’s damaged eye had to be removed and was eventually replaced with a plastic eye. During her stay at Homer Phillips, defendant visited Debra some five times.

The defendant denied that he assaulted his wife and explained that while he and his wife were walking he and his wife parted— she went to get something to eat and he went across the street to a gas station. When he came out of the gas station, he saw some men surround Debra trying to rob her, and he came over to her. She was injured.

The defendant’s mother, father and Miss Chew testified on his behalf. His mother and father testified that they did not hear or see Jerome threaten or injure Debra that evening at their home. Miss Chew testified that Debra told her at the hospital that some men “jumped” her.

During the trial, which began on Wednesday, November 28, 1973, the following occurred which gave rise to the defendant’s various points on appeal.

During voir dire examination, defendant’s counsel announced he was “not ready to try this case” and requested a continuance or at least that the case be “held over” until the next Monday, December 3rd. The trial court noted that defendant’s counsel had entered his appearance on September 24, and had over sixty days to prepare for trial. Four prior continuances had been granted at the request of defendant. The court denied the motion for continuance, but granted counsel leave to file an affidavit formally stating his request. The affidavits apparently were not filed until December 18, 1973, after the trial. Although the transcript indicates that the affidavit was “filed” on November 28,1973, counsel’s signature was notarized on December 13. An affidavit of the trial court states:

“There is in this file an affidavit in support of motion for continuance which is dated and stamped in the Office of the Circuit Clerk, December 13th, 1973. Obviously if any said motion was filed it was filed on that date. It further appears to this Court that someone requested the Clerk of the Court to scratch out December 13th and insert the date of November 28th, 1973. ...”

During trial and on Friday, November 30, 1973, defendant’s counsel made a second, separate request for continuance while discussing the jury instructions in chambers. He stated that Gloria [Drummond] and her mother, both of whom may have witnessed a portion of the assault, were out of town. He renewed his request for a continuance, at least until the followimg Monday “to give the defense the opportunity to locate and produce this witness [sic].” The court noted that counsel had “at no time” indicated the absence of the witness and had not followed the procedure for requesting a continuance, and “I specifically have reference to the filing of an affidavit and no affidavit was filed in this case.” The court denied the request. Affidavits were filed apparently on December 13, alleging grounds for a continuance.

At trial, Dr. H. Philip Venable, Director of the Ophthalmology Department at Homer G. Phillips Hospital, testified that he treated Debra. He testified that he attempted to stop the leakage in the eye and that eventually the damaged eye was removed because an injury to one eye could cause the loss of the “good” eye “and that is the reason this eye was removed.” Not only to get rid of this bad eye but to prevent this eye from involving the only eye she had left.” No objection to this statement was made. Dr. Venable testified that he had not seen her in at least two months, but the last time he saw her the right eye was normal. At that point defense counsel approached the bench and objected to any development as to “what might” happen to the right eye because this would call for speculation. The court stated after the objection that it would allow the doctor to testify if “based upon his experience, and with reasonable medical certainty.”

Dr. Venable testified that, based on his experience, if the “good” eye is to be affected by the damaged eye, it would occur “within 10 days to two weeks or certainly up to two months” in 80% of the cases. He further testified that he had three cases out of some 2000 in which the condition to the other eye occurred more than a year after the initial injury. This statement was objected to as “irrelevant, immaterial, not competent to prove any issue in this case and it is prejudicial.” The objection was overruled.

During the cross-examination of Dr. Venable by defense counsel in answer to a question relating to the procedures concerning visitations at the hospital at off-hours, Dr. Venable answered:

“[H]e [a visitor] has to identify himself and also for security reasons he must identify himself as to whether or not— what his relation is to the patient especially in the City Hospital because sometimes a person that comes in is the person that inflicted the injury in the first place —” (Emphasis added.)

Defendant asked that this “last volunteered portion” be stricken; however, the court “let it stand for what it is worth.”

During closing argument to the jury, the prosecutor stated:

“Ladies and gentlemen, why would Debra Bolden come in this courtroom after having been inflicted with a severe injury on her and go through weeks of hospitalization and several major operations and had her left eye removed and have the potential to lose her sight — ” (Emphasis added.)

Defendant’s objection (without stating grounds) was overruled.

Later in the second half of his closing argument, the prosecutor stated:

“Why did all of a sudden Jerome [defendant] appear in this courtroom out of the-clear blue sky? Nobody was looking for him because we were looking for a bunch of robbers and now Jerome sits here at this table — no, that doesn’t carry any weight. Does that prove he is not guilty? The burden of proof is on me.” (Emphasis added.)

Defendant objected on the ground that he “doesn’t have to prove that Mr. Bolden is not guilty.” The court overruled the objection and noted that it “has fully instructed the jury on the burden of proof.”

The amended information under which defendant was tried alleged that defendant had been convicted on April 23, 1971, for the offense of second degree burglary, sentenced to four years imprisonment and paroled on February 13, 1973.

At an evidentiary hearing out of the jury’s presence during trial, defendant acknowledged and stipulated to the fact that he was convicted of burglary in the second degree but indicated that the Amended Information incorrectly listed his place of confinement at Moberly. State’s Exhibit No. 2, a certified transcript of serial record, indicated that defendant had been convicted of second degree burglary, was sentenced for four years imprisonment on April 23,1971, and was paroled on February 13, 1973.

A deputy clerk of the circuit court read an entry dated February 20, 1970, from the court’s records that defendant had pleaded guilty to burglary second degree, was sentenced and placed on probation. The clerk also read an entry of April 23, 1971, which stated that the probation entered on February 20, 1970, was revoked. After the reading of the entries, the trial court stated that:

“[T]here is no question in the mind of the Court that this defendant was previously convicted and has been guilty of a felony under the laws of this State and was imprisoned in the Department of Corrections and this Court doesn’t know whether he was imprisoned in Jefferson City or Algoa or Moberly . . . .”

After the jury was instructed, the jury returned a verdict of guilty of assault with intent to maim with malice. Then on December 13, 1973, the court sentenced the defendant to 35 years in the Department of Corrections.

After the trial and after sentencing on December 13, 1973, and after notice of appeal was filed on December 14, 1973, the court held a hearing on January 22, 1974, under Rule 26.05, V.A.M.R. to supplement the record. At this post-trial hearing, the deputy clerk of the circuit court read from the files. The records show that on January 4, 1971, probation, which was given February 20, 1970, was revoked, and defendant was ordered to serve sentence. The records further show that on April 23, 1971, the order of February 20, 1970, was set aside and that defendant “withdraws his former plea of not guilty and now enters a plea of guilty to the crime of burglary second degree, said plea being accepted . and . . . it is therefore sentenced, ordered and adjudged that the said Jerome Bolden having pleaded guilty be committed to the Department of Corrections . . . for a period of four years . . . .”

On this appeal, the appellant makes several points urging that the case should be reversed. We find that there was no prejudicial error committed and affirm the judgment of conviction.

I

Defendant’s first point is that the trial court erred in denying his motion for continuance “made prior to the onset [sic] of the proceedings, and renewed at the conclusion of the state’s rebuttal evidence, on the ground that said ruling denied defendant a fair opportunity to prepare his defense and denied him the opportunity to procure material evidence . . .

Supreme Court Rule 25.08 provides that continuances may be granted for good cause shown, but it is well settled that applications for continuances are addressed to the sound discretion of the trial court and an appellate court will not interfere unless it is clearly shown that such discretion has been abused. State v. LeBeau, 306 S.W.2d 482, 486 (Mo.1957); State v. Lee, 492 S.W.2d 28, 30 (Mo.App.1973). In State v. Collie, 503 S.W.2d 445, 446 (Mo.App.1973), we said it requires a very strong showing to induce an appellate court to disturb the action of the trial court. We certainly cannot say that there has been an abuse of discretion by the trial court in this case.

Defendant argues that a continuance should have been given for a few days — -until the following Monday — because the “pressure of his [defense counsel’s] heavy caseload had prevented him from devoting any time to the preparation of the defense of this most serious charge.” Defendant also argues that counsel did not have an opportunity to interview Debra and other witnesses which Debra mentioned in her direct testimony. But counsel for defendant entered his appearance on September 24, 1973, and apparently was assigned the case earlier; four continuances were granted on defendant’s behalf; counsel could have interviewed Debra prior to trial. In view of all these circumstances, while we remain sympathetic to the pressures on public defenders, we cannot conclude that the court erred in not granting a continuance.

Nor did the trial court abuse its discretion in refusing defendant’s second separate request for continuance at the end of the case on the ground that two witnesses — Gloria Drummond and her mother — who may have seen “a portion of the assault,” were out of town. Defendant apparently sought their testimony in an attempt to question the credibility of Debra Bolden. Debra testified that Gloria and her mother witnessed one of defendant’s assaults upon her, but she did not tell the police this fact. For two reasons, we find no abuse of discretion in denying the motion on the ground of absent witnesses.

First, denial of a continuance for purposes of securing absent witnesses whose purported testimony would not bear directly on defendant’s guilt or innocence is not error. Nor will a conviction be set aside unless it is reasonably probable that a different result would have been reached had the absent witnesses testified. State v. Reece, 505 S.W.2d 50, 52 (Mo.1974), and authorities cited therein.

In the case at bar, these two absent witnesses could, at best, testify as to an event prior to the specific assault for which defendant was tried. They apparently saw the event — whether defendant hit Debra with his fist and a stick or iron pipe near Gloria’s mother’s house several minutes pri- or to the assault which resulted in Debra’s eye injury and at a location different from the intersection where the whiskey-bottle assault took place. Thus, the absent witnesses’ possible testimony would not bear directly on defendant’s guilt or innocence but would test only the collateral question of Debra’s credibility. Under these circumstances, we see no abuse of discretion in denying defendant’s motion for continuance.

Defendant also argues in his motion for new trial and in his brief that he should have been granted a continuance in order to secure the testimony of a second police officer, whom defendant’s witnesses said was with Patrolman Williams at the hospital. Officer Williams previously had said he was patrolling his assigned area alone but on rebuttal indicated that his partner left him about 3:00 a. m. The second policeman’s testimony would deal only with events after the assault — the condition of the victim, what the affected persons said — not with the alleged assault. Even if the second officer (if in fact there was one) might have given testimony which bore on defendant’s guilt, defense counsel was given opportunity by the trial court at the beginning of the case to search the police records pertaining to the identity of the second policeman. Furthermore, when the second request for continuance was made during discussion of the instructions, in chambers, the oral motion did not include as one of the grounds therefor, the possible testimony of the “absent” officer. Under such circumstances, we believe that the trial court did not err in denying the continuance on this ground.

Second, defendant has failed to comply with the requirements of Rule 25.08. Initially, defense counsel did not file an affidavit to support his motion for continu-anee. Failure to submit an affidavit or to obtain leave to file it subsequently is sufficient violation of Rule 25.08 in itself to warrant denying a motion for continuance. See State v. Cuckovieh, 485 S.W.2d 16, 21— 22 (Mo. banc 1972). Even his tardy affidavit — -filed at least as late as December 13, 1974, two weeks after the trial — fails to follow the requirement that an affidavit in support of a motion for continuance on account of an absent witness must include, inter alia, a statement of the facts the witness will prove, that he believes them to be true and what diligence has been used. Rule 25.08(b).

For all the foregoing reasons, we hold that the trial court did not err in denying the requests for a continuance.

II

Appellant’s second point is that the trial court erred in admitting the testimony of Dr. Venable “as to the possible transference of infection [damage?] to Debra’s right eye, because such testimony was irrelevant, immaterial, and conjectural and served only to mislead and prejudice the jury.”

Dr. Venable testified that, based on a reasonable degree of medical certainty, in 80% of cases transfer [of damage] would occur within ten days to two weeks or certainly up to two months, but that “I have had three eases in my experience in which this condition occurred after a year. I have had three cases of my own out of some 2000 cases.” After the prosecutor indicated he had no further questions, defense counsel at the beginning of his cross-examination objected because the statement of three cases “out of some one or two thousand” would be beyond medical certainty. The court stated that “I’ll let the jury determine that.”

Defendant’s motion for new trial alleged that this testimony “constituted speculation on the part of the witness rather than expert testimony based on reasonable medical certainty, was thus beyond the witness’ area of expertise, invited the jury to guess and speculate, and was highly prejudicial . . . On appeal, defendant now argues that this testimony is irrelevant, immaterial and conjectural and served only to mislead and prejudice the jury. These grounds were not raised in the motion for new trial and have not been properly preserved. State v. Bowens, 476 S.W.2d 495, 499 (Mo.1972); Rule 27.20(a).

But if properly preserved, we hold the court did not err in admitting this testimony. Dr. Venable’s testimony was based on his knowledge of some two thousand cases of eye damage treated over a period of over thirty years. He was director of the ophthalmology department at one hospital and was on the staff of seven other hospitals. The test of an expert’s qualification is whether his testimony is based on knowledge from education or experience, Billings v. State, 503 S.W.2d 57, 61 (Mo.App.1973), and whether the expert’s testimony has a factual basis and was not based on speculation and conjecture. It was within the trial court’s discretion to allow the expert to testify based on his extensive experience as to the percentage of cases in which damage in one eye is transferred to the other eye.

Nor do we consider the testimony irrelevant or immaterial. The test of relevancy depends upon whether the evidence tends to prove, disprove, support or establish a fact in issue or to corroborate evidence which bears upon the issue. State v. Walden, 490 S.W.2d 391, 393 (Mo.App.1973), and authorities cited therein; State v. Jenkins, 516 S.W.2d 522, 525 (Mo.App.1975). The possible transference of damage to the right eye tends to prove the damage done to the eye which was lost.

III

Appellant next urges that the trial court erred in refusing to strike Dr. Vena-ble’s volunteered statement in answer to defense counsel’s question relating to hospital procedures that a person seeking to see a patient at the hospital has to identify himself “because sometimes a person that comes in is the person that inflicted the injury in the first place—.” Defendant characterizes this statement as “not responsive to the question asked, . . . beyond the field of Dr. Venable’s expertise, and . . . highly prejudicial to the defendant’s right to a fair and impartial trial.”

We disagree. It is to be noted that the procedures at the hospital were brought out by the defense, not the prosecution. We do not believe the answer was wholly unresponsive. We believe that Dr. Venable’s statement had a factual basis and was not based on speculation and conjecture. He had been medical director for two years and chief of its medical staff for ten years. He stated that he had a “pretty good knowledge of how the hospital is run and the procedures of the hospital.” We cannot conclude that the trial court erred in this regard.

IV

Next, defendant complains of certain statements of the prosecutor in closing argument. During the state’s argument, defendant objected (without stating grounds therefor) to the reference of the possibility that Debra had “the potential to lose her sight—’.’ The objection was overruled. Counsel also objected to a second comment by the prosecutor in the second half of his argument. During defense counsel’s argument, he argued that it was unlikely that Debra had in fact told the police that defendant had injured her because the police did not immediately seek out defendant and he visited her in the hospital several times. The prosecutor then argued, “Does that prove he is not guilty? The burden of proof is on me.”

While an accused is entitled to a fair trial, and it is the prosecutor’s duty to see that he gets one, the prosecutor has wide latitude in argument. The trial court has wide discretion in determining the latitude in permitting argument of counsel, and we will not reverse unless there is an abuse of that discretion. As long as a prosecutor stays within the evidence and its reasonable inferences his argument is quite legitimate. State v. Taylor, 508 S.W.2d 506, 514 (Mo.App.1974); State v. Fox, 510 S.W.2d 882, 838 (Mo.App.1974).

We find no abuse of discretion here. The possibility of eye damage to the right eye was in the record; Debra testified that the vision in her right eye became blurred every now and then and “blacked out” on her at least once. The argument was within the legitimate inferences from the evidence.

As to the second comment, this did not place the burden of proof on the defendant. The court instructed the jury as to the burden of proof and the prosecutor in the next breath reminded the jury that the “burden is on me.”

We find no error in the statements complained of.

V

Lastly, appellant contends that the trial court erred in its findings regarding the Second Offender Act “at a time when it had lost jurisdiction to do so.”

The amended information alleged that defendant had been convicted of second degree burglary on April 23,1971, and that he was sentenced in the Department of Corrections for a term of four years “and was duly imprisoned in the Missouri Training Center for Men, Moberly, Missouri on May 7, 1971 . .

As we perceive the record, the defendant, after a plea of guilty to burglary, was sentenced on February 20, 1970, and placed on probation; that on April 23, 1971, the February 20, 1970 conviction was set aside and the defendant, having entered a plea of guilty, was then sentenced on the burglary charge to the Department of Corrections. He was received by the department on May 7, 1971, and finally paroled on February 17, 1973.

At trial, on the proof of the prior conviction, the defendant clearly admitted the conviction of burglary second degree.

“[Defense counsel]: . . . Mr. Bolden has indicated to me that he is willing to stipulate to the facts that on the 23d of April, 1971, he was convicted of the offense of Burglary Second Degree. He does indicate, however, that the Amended Information incorrectly alleges his place of confinement as being the Missouri Training Center for Men at Moberly.”

Through counsel, defendant also admitted that he was imprisoned and released on February 13, 1974. When the trial court asked defendant if his counsel’s statements were correct, he admitted he was convicted, but “got the conviction in—[1970].”

While the record is not entirely clear as to precise dates, there is undoubtedly sufficient evidence to support the court’s finding that the Second Offender Act was applicable.

Under § 556.280, the important considerations are that (1) defendant was convicted of a prior offense punishable in the penitentiary, (2) defendant was sentenced for the offense, and (3) he was imprisoned, or fined, or paroled or placed on probation for the offense. State v. Blackwell, 459 S.W.2d 268, 272 (Mo. banc 1970).

There is no doubt each of these elements is present. Defendant admitted each of the elements. Such admissions are sufficient to support a finding that § 556.280 is applicable. State v. Reagan, 328 S.W.2d 26, 30 (Mo.1959).

And the post-trial hearing held on January 22, 1974, is additional proof that the Second Offender Act was applicable. Its purpose was not to prove up the prior dbn-viction but to clarify and correct the record. Rule 26.05 allows the trial court to amend any proceedings “at any stage of the proceeding” including the appellate process before “final disposition of the case.” The trial court attempted to correct the possible confusion over the exact date of the prior conviction. In doing so, the court acted within the authority of Rule 26.05. The court filed its memorandum finding a prior conviction bevond a reasonable doubt.

Appellant relies on Rule 75.01 for the proposition that the trial court lost jurisdiction over the judgment prior to the date of the January 22, 1974 hearing. Rule 75.01 states that the trial court retains control over judgments during a period of thirty days. This rule does not affect the authorization of Rule 26.05 to amend proceedings. Likewise, Rule 27.22 does not limit the trial court’s authority to amend or correct the proceedings.

VI

We therefore hold that the trial court did not err in: (1) denying the requests for continuance, (2) admitting the evidence of Dr. Venable, (3) in permitting the argument of the prosecutor, and (4) finding that the Second Offender Act' was applicable.

We have read the entire transcript, the briefs of the parties and the authorities relied upon by the appellant, and we are convinced that there was no prejudicial error committed. Hence, the judgment of conviction should be affirmed.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . Defendant’s counsel apparently had been assigned the case as early as August 13, 1973, for the record shows a letter to the defendant from the Public Defender’s Office informing him of defense counsel’s appointment.

      . Continuances for the defendant were granted on August 6, September 24, October 22, and November 19.

      . Appellant contends that the denial of a continuance resulted in a denial or abridgement of his rights to due process of law, to the equal protection of the law, to effective assistance of counsel and to compulsory process for obtaining witnesses in his favor.

      . The trial court noted at the conclusion of the trial that the record shows that defense counsel “had a thorough and complete knowledge of the case . . .” This would seem to belie the claim that there was a denial of effective assistance of counsel.

      . Defendant’s reliance on State v. Sherrell, 198 S.W. 464 (Mo.App.1917), is misplaced. In Sherrell, a prosecution for selling a half pint of whiskey in violation of a local option law, defendant alleged that two absent witnesses would testify that the State’s chief witness (the person to whom defendant allegedly sold the whiskey) told them he did not purchase the whiskey from defendant. The appellate court held that where guilt of defendant was doubtful denial of a continuance was an abuse of discretion, because such testimony bore directly on defendant’s guilt or innocence.

      . The trial court aptly informed defense counsel of the affidavit requirement, but counsel did not seek leave to file an affidavit subsequently.

      . There was no mention of the word “infection.”

      .Defense counsel did not object to Dr. Venable’s earlier testimony that he considered removing Debra’s eye because otherwise an injury to the left eye could cause loss of the good eye.

      . Rule 26.05 is entitled “Amendment of Record During Trial or Upon Appeal.”


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    Bert Lee CLARK, a minor, Plaintiff-Appellant, v. Jerry MIZE, Defendant-Respondent.
    No. KCD 27378.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Bagby, Benjamin & Arnold by B. W. Jacob, Kansas City, for plaintiff-appellant.
    Charles R. Svoboda, Fred A. Murdock, Kansas City, for defendant-respondent.
    Before WASSERSTROM, P. J„ and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Plaintiff appeals from a defendant’s verdict in a jury case. The negligence action giving rise to the appeal was predicated upon a collision between a pickup truck and a mini bike operated by the 12-year-old plaintiff. The case was submitted to the jury on a theory of negligence in failing to keep a lookout. Defendant submitted on contributory negligence.

In view of the issue posed by the appeal, only a summary of the facts is required. Defendant Mize’s paper truck was traveling north on a city street in Kansas City which culminated in a cul-de-sac. Defendant observed two mini bikes also headed north. He overtook these vehicles and as he entered the turnaround at the end of the block, he observed in his rear view mirror the two mini bikes cross the street and enter a drive on the west side of the street. After negotiating the turnaround and proceeding south, defendant next saw plaintiff on his mini bike about twenty feet away in the driveway headed northeast. Defendant, traveling about 15 miles per hour, applied his brakes, but the mini bike struck the right front corner of the truck. Plaintiff’s right leg and a finger received injury.

As a further postulate to the review required, it should be noted that while the plaintiff’s mother was testifying she was questioned about knowledge of her 12-year-old son riding the mini bike. She responded that he was only allowed to ride it in the yard. Following up, counsel asked if she knew he had taken it up to a neighbor’s on various occasions. She denied such knowledge. She was then asked if she had forbidden his taking the mini bike to the neighbor’s. She said she had and when asked how many times responded, “I never had to forbid him over once. He knew that he shouldn’t take the bike out of the yard, and I didn’t know he had it out of the yard on this day.” This evidence came in without any objection.

• Plaintiff’s single point is that the trial court “abused its discretion” in permitting defendant to inject in closing argument the “false issue” of the mother’s opinion of the boy’s behavior.

The plaintiff’s allegation in the motion for a new trial alleges error in permitting in argument over plaintiff’s objection reference to the fact “that plaintiff had been told not to ride in the area where he was injured.”

The specific argument and the objection made is as follows:

“Now let’s go and take a look at the evidence with respect to where these children were. Now here was this 12 year old boy who knew that he wasn’t supposed to be out on a mini bike. His parents had told him.
MR. ARNOLD: That’s objected to as outside the issues.
THE COURT: Overruled. Proceed.” Defendant’s counsel then continued as follows:
“His parents had told him that he wasn’t supposed to be out there, and his mother knew it was a violation for him to even be on the street with it. .
And let’s stop and ask; that what do you get a mini bike for children for, if you don’t expect them to ride it: And you know—
MR. ARNOLD: This is objected to as outside the issues.
THE COURT: Sustained. I think we are getting pretty far afield.”

Thus, it appears that the only argument to which an objection was not sustained was argument relating to the mother’s direction to the child and not as to her opinion as to his behavior to which an objection was sustained. An objection was also sustained when defendant argued against “punishing” defendant and rewarding plaintiff for his disobedience of Ms mother’s instructions.

Plaintiff supports his claim of error by arguing that the argument taken as a whole was prejudicial and that the action of the trial court in merely sustaining the objections did not remove the prejudicial effect. Clearly, plaintiff did not seek any other relief at the time, and it is also doubtful that the contention is properly made in view of the simple allegation of the motion for new trial. Rule 84.13(a), V.A.M.R.

Nevertheless, the posture of the entire argument is such that the plaintiffs point is not well taken. As noted, there was a submission of contributory negligence in failing to keep a lookout. Negligence was defined as failure to use the highest degree of care. Under the issue of contributory negligence, plaintiff argued that the jury was “passing judgment on a 12-year-old boy . . . not upon an adult . what is negligence for an adult is not necessarily negligence for a 12-year-old boy.” Defendant objected to this and the objection was overruled. The propriety of that ruling is not here in issue, but the fact remains that the plaintiff squarely inserted in the argument the issue of the age and capability of the plaintiff. In these circumstances, the defendant certainly had a right to argue the specific direction the boy had received from his mother as it bore on his ability to comprehend the danger. The argument clearly was a rejoinder to the plaintiff’s argument relating to the age and capability of the plaintiff.

The plaintiff’s cited case of Butcher v. O’Connor, 401 S.W.2d 490, 494 (Mo.1966), does indeed hold as plaintiff asserts that an argument must be read in its entirety to determine its prejudicial effect. That does not mean that one of the parties’ arguments will be considered in a vacuum and the other arguments ignored. To make such an application of Butcher would do away with the principle of fair retort. When counsel has injected an issue in his part of the argument, he cannot then complain of the answering argument on that issue as raising or arguing improper issues. Penberthy v. Penberthy, 605 S.W.2d 122, 131 (Mo.App.1973); Riley v. St. Louis Public Service Co., 245 S.W.2d 666, 673 (Mo.App.1952).

Plaintiff’s other cited cases deal with situations where an objection was overruled as to patently erroneous injection of false issues not responsive to other argument in the case and have no application to these facts.

The judgment is affirmed.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Preston PLATT, Appellant.
    No. KCD 27131.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Gerald Kiser, Public Defender, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFPORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Preston Platt was convicted by a jury of felonious distribution to Deanna Sue Warren, a minor, of a quantity of lysergic acid diethylamid, a controlled substance. His punishment was assessed at five years’ imprisonment, and sentence and judgment were rendered accordingly. §§ 195.017, 195.020, 195.200, subd. 1(4), RSMo 1969, V.A.M.S.

Defendant went to trial November 13, 1973, following reversal of a previous conviction on the same charge for failure to grant a new trial when it was learned that Miss Warren perjured herself with respect to a certain letter in evidence. State v. Platt, 496 S.W.2d 878 (Mo.App.1973).

Appellant contends (I) that the court erred in failing to direct a verdict of acquittal at the close of the evidence “in that any verdict of guilty was not supported by substantial, sufficient or credible evidence.”

Appellant concedes “that this very same point was present and argued before this Court in the previous appeal of this cause and the Court found against defendant in its opinion therein.” Consequently, a brief statement will suffice to demonstrate a sub-missible case on this second trial and appeal.

In order to make its case, the State was required to prove: (1) distribution of LSD by defendant to Deanna Sue Warren; (2) that LSD is a controlled substance listed in Schedule I or II of the Narcotic Drug Act, Chapter 195, RSMo 1969; (3) that Miss Warren was under age 21 at the time of the distribution.

The evidence is uncontradicted that Deanna Sue Warren had in her possession on January 14,1972, four pills containing LSD, that LSD is a Schedule I drug, and that Miss Warren was at that time 16 years old. That left only one element in dispute, i. e., whether defendant gave the pills to Miss Warren.

Evidence on the issue is in conflict. Evidence favorable to the verdict includes the testimony of Miss Warren that defendant gave her the pills at a pizza restaurant in Liberty, Clay County, Missouri, on the evening of January 13, 1972, so that she might deliver them next day at school to one George Doyle. Presence of both parties at the pizza restaurant was corroborated, as was Miss Warren’s possession of the pills at school January 14, 1972, and an acquaintanceship of some standing between defendant and George Doyle. Miss Warren was explicit, consistent, and unwavering in her testimony on the issue of transfer of the pills from defendant to her. Any inconsistencies and failures of memory in her testimony went to collateral questions whether she was jealous or hostile as a result of estrangement from a prior romantic relationship with defendant, etc. Defendant denied that he gave the pills to Miss Warren, and undertook by cross-examination of her and by other witnesses to destroy her credibility.

The jury chose to believe Miss Warren; and, as on the previous appeal, “Suffice it to say * * * that although * * inconsistencies and contradictions bore heavily upon the question of Deanna’s credibility, nevertheless, * ⅜ * credibility is for jury determination, and if the jury was willing to accept Deanna’s testimony, even with the inconsistencies shown, her testimony so accepted was sufficient to sustain the verdict.” State v. Platt, supra, 496 S.W.2d l.c. 881[1, 2],

Appellant contends (II) that the court erred in refusing defendant’s Instruction B which would instruct, among other things, “The fact that defendant had been charged with an offense was no evidence against him,” viz:

“The defendant is presumed to be innocent.

“The fact that the defendant has been charged with an offense is not evidence against him. It creates no inference that any offense was committed or that the defendant is guilty.

“The State has the burden of proving the guilt of the defendant beyond a reasonable doubt.”

Appellant concedes that he can “cite no cases to the effect that this instruction has been held to be one in which it is reversible error to refuse to instruct when requested.” He recognizes also, by his citations, that despite a feeling that instruction on the element in question should have been given in a particular case, the court would “not, however, rule that the rejection of such an instruction would, of itself, be reversible error,” State v. Brown, 115 Mo. 409, 22 S.W. 367, 369 (1893); and that in State v. White, 339 Mo. 1019, 99 S.W.2d 72, 73[2] (1936), the court held “that an instruction of this kind is not one which the court must give on the law of the case * *

Appellant argues, however, that even though giving an instruction of the nature of his Instruction B was not mandatory, instruction on the element in question should have been given in this case because the charge is likely to arouse passion, prejudice, and indignant reaction of jurors.

The court did give Instruction No. 4 which, except for the second sentence of defendant’s Instruction B, instructed the jury on the same subjects, viz:

“The law presumes the defendant to be innocent, and that presumption continues until it has been overcome by evidence which establishes his guilt beyond a reasonable doubt; and the burden of proving his guilt rests with the State.

“If, however, this presumption has been overcome by the evidence and the guilt of the defendant established beyond a reasonable doubt, your duty is to convict.

“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of his innocence.”

The State did not attempt to draw attention or significance to the charge; and In-. structions Nos. 2,3, and 4 confined deliberations of the jury in resolution of the various issues to the evidence at trial.

In these circumstances and at the time this case was tried, it was within the court’s discretion to give Instruction B. Consequently, failure to give it, even upon request, was not reversible error. State v. Brown, supra; State v. White, supra.

Appellant contends (III) that the court erred in refusing defendant’s Instruction C on use of prior inconsistent statements of witness Warren for impeachment, “when the credibility of witness Warren and her impeachment by prior inconsistent statements was of prime importance to the defense and the subject was not covered in other instructions.”

Appellant’s requested Instruction C on credibility reads:

“Evidence that on some former occasion a witness made a statement consistent or inconsistent with her testimony in this case, may be considered by you in deciding the credibility of the witness and the weight to be given her testimony. However, any pri- or statement of the witness must not be considered by you as evidence of the matters referred to in that statement, except as to such matters as you may find were admitted to be true by that witness in her testimony in this case.”

The court instructed on the issue of credibility by Instruction No. 5, which is in the usual form and is virtually identical to Instruction A offered by defendant on the issue of credibility. It covers the issue, and additional instructions need not be given if the matter contained in offered instructions is adequately covered by the instructions given. State v. Huffer, 424 S.W.2d 776, 782 (Mo.App.1968).

In this case there were no prior inconsistent statements by Miss Warren on the single disputed issue, i. e., whether defendant gave LSD pills to Deanna Sue Warren. Her inconsistencies were developed on collateral issues. Consequently, there was no reason to emphasize prior inconsistent statements as an element of credibility beyond the coverage given the question by Instruction No. 5. State v. Nimrod, 484 S.W.2d 475, 479 (Mo.1972).

Appellant contends (IV) that the court erred in sustaining the State’s objection to defendant’s questions of witness Warren pertaining to the number of boy friends and dating experience and questions pertaining to her jealous attitude, “as said evidence was proper cross examination and was relevant and material to the defense.”

The record shows exhaustive cross-examination on Miss Warren’s relationship to defendant. Of some thirteen objections made by the State in this area, four were sustained. One of the four related to whether Miss Warren had ever been in jail; another to repetitious testimony. The two remaining questions to which appellant complains objections were erroneously sustained were: “How many boys have you gone out with?” and “Do you consider yourself the jealous type, Deanna?”

Given the wide range of cross-examination of Miss Warren permitted defendant, and the broad nature of the two questions in issue, the complaint falls within the rule that the trial court has considerable discretion in control of the scope and extent of cross-examination into the bias of a witness. While the court may not prevent cross-examination, which it did not, it may properly limit the scope and extent of such cross-examination. Thornton v. Vonallmon, 456 S.W.2d 795,798 (Mo.App.1970).

Appellant contends (V) that defendant was denied a fair and impartial trial “by the extremely inflammatory and prejudicial comments and arguments * * * that defendant was attempting to get drugs to the subcultural black market in Liberty High School by using money, by personalizing the case to the jury and by stating as facts incidents which were not in evidence.”

Appellant refers to four incidents in the transcript with respect to this contention. In each instance, counsel objected and the court sustained the objection. On none of the occasions did counsel ask for further relief by way of asking for a reprimand, that the argument be disregarded or stricken, or that a mistrial be declared. Accordingly, the court granted all the relief requested, and there is nothing left for review. State v. Cheatham, 340 S.W.2d 16 (Mo.1960). See also State v. Holmes, 419 S.W.2d 15 (Mo.1967); State v. Porter, 458 S.W.2d 256 (Mo.1970).

Judgment affirmed.

All concur.

      . This question should not again arise because the element in question is now a part of MAI-CR 2.20, Burden of Proof and Related Matters, and must be given irrespective of request.

      . This question is also the subject of new treatment under MAI-CR. See MAI-CR 3.00, Series Instructions Required If Requested; MAI-CR 3.52, Impeachment or Rehabilitation by Prior Statements of Witnesses Other Than Defendant, and accompanying Notes on Use.


author: DIXON, Chief Judge.

text:
    Una O. SINGLETON, Plaintiff-Appellant, v. Donald L. SINGLETON, Defendant-Respondent.
    No. KCD 26511.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Motion for Rehearing and/or Transfer Denied July 7, 1975.
    Application to Transfer Denied Sept. 8, 1975.
    Raymond C. Lewis, Jr., Dale C. Doerhoff, Columbia, for plaintiff-appellant.
    Terence C. Porter, William D. Powell, Columbia, for defendant-respondent.
    Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ.
   DIXON, Chief Judge.

This is an appeal from a judgment in a suit for a divorce and an action for partition and other equitable relief relating to real and personal property. The judgment was for plaintiff, and plaintiff appeals, contending only that the trial court erred in the determination of plaintiff’s rights in certain property. The defendant has not filed a cross appeal, and the issue of the granting of the divorce is no longer in the case.

The appeal is of extraordinary complexity. To illustrate this complexity, the transcript contains 1,416 pages, and 131 exhibits were offered, most of which were composites of the financial transactions of the parties over a period of five years. The amended petition upon which the ease was tried consists of VI counts on twenty transcript pages, and the decree that is challenged covers fifteen transcript pages. What has been stated demonstrates that no opinion in ordinary format can frame and resolve the issues presented. It has become necessary to adopt a format that will make more intelligible the necessarily long opinion.

A brief explanation of the marital history and resume of the various properties involved will serve to explain the various divisions into which the subsequent opinion is divided.

The plaintiff and defendant were married November 1, 1965. The plaintiff, Una 0. Singleton, was 53 years of age and was a widow. She had inherited substantial properties from her first husband who had died some five years prior to the 1965 marriage to the defendant. She had three children by her first husband, two daughters and a son. One of the daughters and the son had attained majority at the time of the 1965 marriage, and the remaining daughter was in her late teens. The defendant, Donald L. Singleton, was 32 years of age in 1965 at the time of the marriage. He was then a part owner of an Oldsmobile sales agency.

For five years after this marriage ensued the most bizarre financial transactions imaginable. Among these are adventures in the stock market, repetitive trading of motor vehicles, sale of the substantial interest of plaintiff in the savings and loan association her husband had left her for cash and a work contract, purchase of two boats, sale of securities, pledge of the childrens’ savings accounts, investments in a nebulous enterprise “to purchase life insurance stocks,” purchase of real estate development stock, purchase of the Mizzou Motel, and, finally, the building of an ornate residence in Columbia, Missouri.

It is clear that each owned separate property at the time of the marriage. It is, likewise, clear that at the time of separation some of the property was jointly held and some of the properties had remained the sole property of the wife and that the husband had acquired property in his own name which he did not own at the time of the marriage.

All of this tangled web of marital finance related above is unaided by any semblance of professional accounting and further confusion is engendered by the inevitable battle for the records following the separation of the parties.

This web of financial woe is overlaid with the usual story of marital discord. From a too early intimacy, the relationship of plaintiff and defendant progressed from an “ideal relationship” to utter matrimonial disaster in five years. Chief among the complaints of the defendant as to the cause of marital discord was the plaintiff’s claimed indifference to sex. Plaintiff counters with the assertion defendant drank to excess, and his claim of physical abuse by her is by her account justified by his drunkenness. Ultimately, the evidence discloses that whatever the plaintiff’s later indifferent attitude towards sex may have been, the defendant did not suffer any deprivation. Long prior to any such complaint on his part, the evidence disclosed a variety of sexual dalliance by him. On his own admission, reluctantly made on cross examination, he admitted to sexual improprieties with five separate females, many of which occurred prior to any other claim by him of marital discord occasioned by plaintiff’s actions. So also, plaintiff, by undisputed evidence, showed innumerable instances of his having girls delivered by a handyman to him at the Mizzou Motel. They would be esconced in “Room 15” and thence would be dispatched a “bottle” by the handyman. The inference from this conduct, coupled with the admissions of the defendant, makes these occasions highly suspect as occasions of infidelity.

Condensing plaintiff’s claims stated under seven points in the brief to their essential thrust, they may be paraphrased as follows.

Plaintiff claims that she did not receive adequate overall equitable relief because the overwhelming weight of the evidence was for plaintiff, and defendant’s credibility was destroyed. She further asserts that the existence of a fiduciary relationship made the granting of further equitable relief mandatory.

Specifically, plaintiff claims the decree denies her the following relief:

1) A constructive trust or equitable lien on property she contributed to the marriage, either directly or which was purchased from funds she contributed. Without waiving claims to other assets, plaintiff claims equitable ownership of all of the “Mizzou Motel” and the jointly owned dwelling house constructed by the parties.

2) Attorney fees and alimony.

Defendant counters by asserting that no resulting or constructive trust can arise since the properties in question were jointly owned and purchased from funds flowing through a joint bank account; further, that the evidence does not establish or prove any fraud or overall scheme, and the plaintiff has not factually supported her claim to alimony and attorney fees.

The primal issue, therefore, is the determination of the plaintiff’s right to broad equitable relief. It must be concluded upon the entire record that such relief, should have been afforded to the plaintiff.

The fundamental basis for the finding that the plaintiff is entitled to broad equitable relief is the determination by this court that this record demonstrates a fixed design and scheme by the defendant to accomplish the transfer of what was the plaintiff’s separate estate to either jointly owned properties or his own individual name.

As plaintiff has asserted, this case is heard de novo on the whole record, and it is this court’s obligation to determine the weight of the evidence and render its own judgment on that review of the facts. Bates v. Morris, 467 S.W.2d 286 (Mo.App.1971); Rutherford v. Rutherford, 444 S.W.2d 439 (Mo.1969); Franke v. Franke, 447 S.W.2d 308 (Mo.1969). The defendant does not challenge that obligation of this court. From the voluminous transcript and numerous exhibits, the following facts can be found.

Essential to an understanding of these factual findings is the status of the positions of the parties at the two critical periods at or near the time of marriage and at the time of separation. The plaintiff testified in detail as to the assets in her name prior to the marriage, including her estimate of value. The defendant produced an exhibit which likewise purported to list and value the assets of the plaintiff. That latter exhibit, according to defendant’s testimony, was based on the values of some of the assets in the Federal Estate Tax return of the plaintiff’s husband “giving her the benefit” as the husband put it, of any sales price information later acquired. Typical of most of the exhibits prepared and offered by the husband on the financial affairs of the parties, the exhibit is extremely self-serving, almost to the point of deception. Although defendant contends that the exhibit gives plaintiff the benefit of the sales price, in fact, the value shown is as to cost which in every instance was the value shown on Federal Estate Tax Return of plaintiff’s first husband and, consequently, a value some years previous to the date of the marriage of plaintiff and defendant. It omits almost $20,000 in savings accounts owned by plaintiff at the time of marriage. This fact has been verified from the deposit books which were offered in evidence by defendant. In any event, exercising the power of de novo review on the whole record, and exercising a fact finding function on the whole record, the property owned by the respective parties and its fair market value is determined to be as follows:

The defendant’s assets and liabilities are taken as they are shown by him on his exhibit except that the liability has been increased to reflect the admissions he made on cross examination and the assets he conceded he had disposed of prior to marriage are not carried into the totals. The valuation of the Don Singleton Oldsmobile stock has been taken at 40% of shareholders’ equity as shown by a defendant’s exhibit which represented a September, 1965 audit of the books. This seems more than fair to the defendant since the audit some months previous discloses an overstatement of used car inventory of almost $6,000 which would have further reduced shareholders’ equity and in view of the fact that, within a year, the stock was sold for $1.00.

The listing of the assets of the parties at the time of separation is considerably easier than placing a value on them and determining the manner in which they' are held. From all the evidence, the following is found to be a fair value and reasonably accurate list of the assets of the parties at the time of separation.

It should also be noted that the value of articles of personal adornment and personal use have not been included.

The course of events leading from the status of the plaintiff’s estate at the time of marriage to the diminished estate and holdings represented by the balance sheet showing the status of the parties at the separation is almost unbelievably convoluted and complex. The manner and form of the transactions which took place in the intervening period lend substance and form to the findings of the court with respect to the intent of the defendant.

Description of Asset Value of Property with Title Joint Value of Property with Title in Una O. Singleton Value of Property with Title in Don Singleton

Automobiles, 3 Cadillac & 1 Oldsmobile | unknown -69

Boat 12,000

4,000 Annuities

Insurance (cash values) 3,568 *

86,000 General Savings work contract

8,000 General Motors 8,000

3,600 Lake Point West 1,500

1,875 Commerce Trust stock

50,160 Southgate Levin Townsend bond 9,460 500

2,500 GMBC (Great Future Life)

WCV, Inc. 30,000

120,000 916 Hulen Dr. & furnishings

Furnishings, Mizzou Motel 24,000

Mizzou Motel Scottsdale, 132,000

6,000 Arizona 6,000

2,000 Lake Hasavu $180,035 $134,000 $197,028

Not necessarily in chronological order, but indicative of the scheme or design which appears in this record are the following facts. Even prior to the marriage the defendant obtained from the plaintiff funds with which to pay his obligation by way of property settlement on his former wife. Those funds, some prior to and some after the marriage, constituted in toto $18,000. The defendant asserts that this was a gift. The plaintiff asserts it was a loan. Within fourteen months after the marriage, the defendant sold his interest in a business which he asserted was worth $46,000 for $1.00. That terminated his only regular employment during the history of the marriage and any regular contribution by him to the assets of the parties. He claims that the diminution in value of the business occurred as a result of a strike, but he offered no documentary proof of the value of that corporation at the time of the sale offering only a balance sheet at or near the time of the marriage to demonstrate the supposed value of the corporation. It is apparent from the defendant’s offered proof that the General Motors Corporation owned the major portion of the stock in the dealership the plaintiff claimed as his asset, and it is inconceivable that there were not continuing and regular reportings of the operations of that company which would have shed some light on the defendant’s claim with respect to the causes of the loss of value. It is significant that the sale of this asset which constituted almost the entire estate of the defendant occurred almost simultaneously with the disposition by the plaintiff of her interest in the General Savings and Loan Association for $145,000 in cash and a “work contract” which yielded $1,000 per month for ten years. The defendant thereupon embarked upon a series of speculations in the stock market which, over a period of months, with some gains but more frequent losses, resulted in a net loss to the parties, of $4,659.09, the funds for the stockmarket speculation coming almost entirely from the assets of the plaintiff converted to cash and deposited in joint accounts. After this debacle, plaintiff and the defendant moved to Columbia, Missouri, and then ensued the other manipulations of the plaintiff’s property which have resulted in the present state of affairs.

The most revealing of these transactions is the manner in which the defendant handled the transaction which is referred to as the purchase of the “Mizzou Motel.” This property had been owned by the defendant, his former wife, and his mother and father prior to his second marriage. This first acquisition was in 1961 from an individual named Hackethorn for a purchase price of $57,500. Ten thousand dollars of the purchase price was in cash and Forty-Seven thousand five hundred dollars was secured by a note and a first deed of trust to Hackethorn. In October, 1963, the motel was deeded to defendant’s father by the defendant, his then-wife, and his father and mother. This conveyance was subject to the balance due on the Hackethorn note in the amount of $41,284.57. The defendant claims he made the conveyance to avoid the exposure of his interest in the motel to the risk of loss inherent in the automobile dealership he was embarking upon. Defendant obviously considered that he had a right to repurchase but the terms of any such agreement between defendant and his mother and father does not appear despite defendant’s claim the agreement was in writing. In any event, the defendant and plaintiff discussed the repurchase of the motel in late 1966. Defendant claims that in discussions with an accountant, it was disclosed that the title to the motel would be placed in his name and that this matter was “rediscussed” with the accountant in early spring of 1967 after transfer of title had been made to the defendant alone. Plaintiff, on the other hand, vehemently insists that the title to the motel was to be joint and that she did not discover that it was not until immediately prior to the parties’ separation. Upon confronting defendant with that discovery, she claims the defendant first asserted it was a mistake and that he would have it fixed. Later, he said he was not going to change the title and left the home, not again returning except to pick up his clothes.

Despite his protestation and claim that it was intended that the plaintiff have no interest in the motel because of the defendant’s claim that this constituted some sort of a tax advantage to the parties, the handling of the Mizzou Motel account further substantiates the inference of an intent ánd scheme on the part of the defendant to obtain control of the plaintiff’s property. He obtained the plaintiff’s signature on the note and second mortgage payable to his parents and thereafter channeled into the bank account of the Mizzou Motel loan proceeds from loans secured by assets of the plaintiff, some of the payments on the so-called “work contract” and proceeds from the joint accounts used to purchase furniture and fixtures for the motel, as well as to pay operating expenses of the motel. Although the defendant claimed that the second mortgage to his parents on the motel was in default from inception, the record demonstrates that over $11,000 was paid to his parents which would have almost exactly equaled 58 months of payments at $200 per month. Although the defendant’s testimony is quite confusing on this point, his claimed explanation for these payments to his father were with respect to an undisclosed loan of $5,000 which was owing at the time of the marriage, although there is a strong indication in the record that if such a debt existed it had long since been forgiven.

The records of the motel account produced by the defendant show that checks written to Rolla and Etta Singleton or either of them, as well as to Hackethorn, the holder of the first mortgage, were not spread to interest and principal accounts, except annually. The 1967 records produced by defendant show payments to Etta Singleton and Rolla Singleton, but no designation of the nature of the payment. The records produced by plaintiff in defendant’s handwriting have all such checks to the Singletons marked as “2nd” or “2nd mort.” In 1968 even the records produced by defendant show payments to Etta Singleton and a computation of “interest portion” for the year.

Under ordinary circumstances, an accounting of all of these complex and conflicting transfers and claimed expenditures should properly receive the attention of a commissioner on an accounting. An examination of this record convinces this court that to require an accounting at this stage of these parties’ relationship would only serve to further deny to the plaintiff the relief to which she is entitled under the facts. In all likelihood because of the loose methods of accounting, such an accounting would prove to be a futile act.

Other dealings of the defendant demonstrate the scheme and intent with which he dealt with the plaintiff’s property. He claims the ownership of 100 shares of General Motors stock. With respect to that 100 shares and with respect to the Levin Townsend bond which he also claims, he obviously was attempting to conceal from his wife the source of payment and ownership of both. As to the bond, he directed that it be sent to his parents’ address, and she never knew of it until discovery at trial. As to the General Motors stock obtained very early in the marriage, he directed that the certificate be mailed to his former wife’s address, although the stock was purchased through a trading account in the joint name. At the time of the purchase, within a month of the marriage, the purchase price of approximately $10,000 could only have come from the funds of the plaintiff arising from the sale of her separate estate and flowing into the joint stock account from joint accounts established with those funds. To further show the intent of the defendant even prior to the marriage was his repeated assertion to her that he “owned” General Motors stock. In the discussion of the source of the funds for his divorce settlement prior to the marriage, plaintiff suggested he sell “his” General Motors stock, and the defendant indicated that his ownership of that stock was somehow necessary in connection with the “dealership.” Understandably, at trial time, plaintiff on cross examination said that in the light of her then knowledge, she assumed the hasty purchase of the General Motors stock in his name was to prevent her discovery of the falseness of his claim to prior ownership. On December 10, a few days over a month after marriage, he received a dividend check on that stock which he assured plaintiff was the dividend on “his” stock, lending support to his claim of prior ■ ownership. Ironically, the 100 shares of General Motors owned by plaintiff was pledged to secure a loan which apparently still has an outstanding balance of $7,500. The defendant presented an exhibit purporting to show that the proceeds went for furniture in the house and a trip, but the amount is far less than the loan and the loan application indicates the proceeds were to be used to remodel the Mizzou Motel.

The significance of this matter again relates to the inference that arises as to the defendant’s intent. The plaintiff offered a fragment of the early records of the “Miz-zou Motel” which were in the defendant’s handwriting. These records show the loan proceeds as being deposited in the motel account. Likewise, and on the same date, checks were written for over $4,200 for improvements to the motel as well as over $1,000 in repairs and maintenance. The balance of the loan was, as indicated by defendant, used for items connected with the home. Thus, the pattern again emerges of the sole property of the plaintiff being sold or encumbered and the proceeds utilized to enhance the value of defendant’s solely owned property or converted to jointly owned property.

He represented to the plaintiff that it was necessary for her to transfer to him stock in the Southgate Bank in order to help his credit rating and then pledged dividend shares on the Southgate stock without even obtaining the plaintiff’s signature on the pledge instrument or to a stock certificate.

He represented to the plaintiff in connection with the purchase of an investment known as GMBC that some of the stock should be placed in his name so that he might be on the Board.

He obtained the plaintiff’s agreement to buy some stock in Lakepoint West upon the representation that he would sign a share loan agreement on her daughter’s savings account at the General Savings and Loan Association to secure the payment of the daughter’s funds which had been used in the investment. He never signed such a share loan. He purchased two boats and titled them in his own name and, subsequent to the separation, immediately liquidated what remaining value there was in the remaining boat to his own benefit. Likewise, he represented that there would be cross ownership on the life insurance purchased, but, in fact, sometime after the separation, he withdrew the entire cash value of the policies of insurance on the plaintiff’s life and his own policies. Indicative of the over-all situation is the fact that plaintiff's exhibits demonstrated that there was a total of $373,712 deposited to the three joint bank accounts of which the plaintiff was the source of $266,308, the defendant $10,129, and from the sale of assets acquired from the joint account and liabilities incurred after the marriage $89,-171, and from other sources $8,102. The sole contribution so far as this record discloses in terms of earnings by the defendant during the five years prior to the parties’ separation consisted of $900 a month salary from the marriage in November of 1965 to February of 1967, a period of sixteen months, and a single real estate commission. He claimed to have also engaged in the purchase and sale of automobiles in the Mizzou Motel account, but that is entirely specious in the light of the records which show that $37,869 was expended for automobiles, and $14,400 was received from the sale of automobiles. Another transaction which demonstrates the intent of the defendant is the Columbia National Bank stock transaction. This stock was purchased for about $1,200 arid the shares were issued in the joint name of the plaintiff and defendant. Subsequently, by reason, apparently, of a merger, these were converted to Commerce Bank shares, and the defendant claimed at first that they were sold to his mother for $1,875. The plaintiff denied any such intent to sell, and the defendant did not report any capital gain on that purported sale. Defendant’s subsequent testimony discloses that this was, in reality, some sort of a loan, but the stock certificate signed in blank was kept in his mother’s safety deposit box. The defendant’s shifting posture, both on the' acts relating to marital infidelity and the complex financial transaction demonstrates again the underlying intent to deprive the plaintiff of the substantial part of her inheritance. Even at trial, the defendant, until confronted with the facts, made a claim by way of an exhibit that over $12,000 had been expended on the children of the plaintiff. The facts as developed showed that $3,200 of this represented a car purchased by the plaintiff for one of her children representing his share of the proceeds of real estate inherited through his father and uncles and there had been deposits from the children of $7,863, leaving a net expenditure on the children of $534 during the years of the marriage.

Upon the basis of these facts, it would be a travesty to hold otherwise than in favor of the plaintiff on the issue of the defendant’s intent and scheme to secure the ownership of her separate property.

Once having determined as a finding of fact ■ that the defendant intended by this scheme to defraud the plaintiff of her inheritance, the application of controlling law is not difficult.

Plaintiff cites and relies upon Steines v. Steines, 338 Mo. 335, 89 S.W.2d 520 (1936); Stumpf v. Stumpf, 7 Md.App. 272 (1879); Turner v. Turner, 44 Mo. 535 (1869). Without detailing the facts in these cases, they undoubtedly stand for the proposition which plaintiff asserts, that when intraspousal transfers are based upon a scheme or device to obtain the separate property of the other spouse and such intent and scheme is found to factually exist, then the transfers will be voided. Fraudulent intent is unlikely to ever be directly proven, but circumstances will suffice to prove fraud as any other fact. Basman v. Frank, 250 S.W.2d 989 (Mo.1952). What has been said is enough to answer defendant’s only attack upon the authority of the cases cited by plaintiff that no fraud was proven. The cases cited under this portion of the defendant’s argument are all factually distinguishable. As noted in the reply brief of the plaintiff, the defendant argues the best possible view of the facts to assert that no scheme existed and ignores the evidence and inferences detailed at length in the preceding factual statement which this court believes make a finding of such a fraudulent scheme unavoidable.

This factual argument of the defendant rests entirely upon an acceptance of the defendant’s protestations of innocent intent in dealing with plaintiff’s property. Despite whatever protestations occur in the cases with respect to the fault of the parties vis-a-vis the distribution of their worldly goods, the fact of fault looms large in the balance when issues of credibility are involved. When the evidence of fault is clear and convincing and the denial, at first vehement, becomes desultory and, finally, a sullen admission, something is felt as to veracity and disclosure. That feeling of innate distrust of testimony entirely directed to self-vindication cannot help but affect judgments on testimony in which pecuniary interest is involved. So here protestations of economic purity cannot be equated with ultimate admissions of personal immorality without suffering the penalty of disbelief.

The sordid revelations of the immorality of the defendant weigh heavier in the scales by reason of the manner in which they emerge in the trial. First, deposition testimony which, when not equivocal, denies any wrongdoing. Then, when faced with specific testimony of independent witnesses, comes the sullen admission that, with not one but five (that could be identified by defendant) separate individuals, the defendant had engaged in illicit sexual relationships. These admissions embrace the period of time when plaintiff had no reason to suspect defendant of infidelity, either personally or in the area of the management of the family finances.

Nor was the defendant helpful to his cause in the preparation of the exhibits he offered the court in support of his proof. Mentioned earlier is the exhibit offered to demonstrate the claim by defendant that plaintiff made contributions to her children from joint funds. At this point, it is sufficient to say that even in the heat of trial the validity of that exhibit was demolished by specific and detailed testimony demonstrating the overreaching of the defendant on that issue. A prime example is the attempt to include in that exhibit as an expenditure on behalf of the plaintiff’s children amounts which were clearly offset by deposits from the children’s savings and checking accounts. So also his reluctant admission of the use of her children’s separately owned savings accounts as collateral for loans he did not sign although he promised to do so, the proceeds of which were used to purchase assets in which he now claims an interest.

There is no specific area of the trial court’s findings which can be reasonably said to relate to the issue of credibility of the defendant, and deference is not really involved. In any event, deference does not require blindness.

Reducing then the ultimate issue of this appeal to the singular one of intent, there can be no question on the whole record that the intent of the defendant was to impoverish the plaintiff and to implement a plan for the ultimate succession of defendant to her property, either by survival or by transfer to his sole name.

Two other contentions of defendant should be briefly noted. First, the defendant in his brief for the first time asserts that the Kansas statutes and case law govern because of the early residence of the parties in Kansas and the fact that some of the early accounts were in Kansas banks. The defendant did not comply with Rule 55.23, V.A.M.R., requiring that the pleadings assert the reliance upon the law of another state. When such reliance is not shown, the courts of Missouri will apply the case law and statutes of Missouri. Citizens Fidelity Bank & Trust Co. v. Kilpatrick, 231 S.W.2d 301 (Mo.App.1950). Nor is there any allegation of fact in the amended petition or answer and counterclaim which would serve to alert the trial court to apply the law of any state but Missouri. The defendant in his brief concedes that the issue of the applicability of the Kansas law was never raised in the trial court.

Second, defendant asserts that because of the fact that the asserts were all purchased with funds which flowed through joint accounts, they are immune from any attack. A great many cases are cited by defendant for the proposition that the creation of a joint tenancy or joint account presumptively establishes a gift. As noted in one of the defendant’s cited cases, Davis v. Broughton, 369 S.W.2d 857, 862 (Mo.App.1963), such a presumption is rebuttable. The evidence here clearly demonstrates that the fraudulent scheme and intent of the defendant would vitiate any such presumptive intent by the plaintiff if her plain and unequivocal denial of such an intent did not. All of the cases cited by the defendant have been examined, and they are factually distinguishable. The plaintiff’s reply brief has, in detail, distinguished the authority cited, and upon examination of the eases, this court concludes that the distinctions are appropriate.

Turning now to the ultimate disposition of this lengthy and acrimonious dispute, the resolution of which has been too long delayed, it is clear that this court should direct the entry of a final order disposing of all disputes between these parties pursuant to the power to enter, in a court-tried case, the decree the trial court should have entered.

Before recitation of the directions necessary to the entry of a decree, one further point should be made. The effect of the court’s holding on the single issue of a fraudulent scheme and intent on the part of the defendant will require the entry of a decree divesting defendant of all interest in the jointly owned property and the property owned in his separate name. Such a result might, in the ordinary case, seem harsh, but there are factors in this case which support the entry of such a decree over and above the effect of the legal and equitable consequences flowing from the basic finding of a general scheme and intent to obtain the plaintiff’s separate estate. As previously noted, an accounting from defendant would ordinarily be required. Such an accounting seems hopeless in the tangled state of this record. Nonetheless, even a cursory examination of the Mizzou Motel account shows each year thousands of dollars in personal withdrawals by the defendant, most of them in the form of checks to cash. Likewise, at this late date, the proceeds of the motel furniture, the life insurance, and the boats have been likewise dissipated, and any judgment against the defendant for these proceeds would appear to be a futile gesture. Also to be noted is the fact that many of the assets still in existence are subject to outstanding indebtedness, and the plaintiff will perforce be required to liquidate some holdings in order to accomplish the redemption of these assets. So also it appears that plaintiff’s obligation on the outstanding indebtedness on the “Mizzou Motel” property is far from clear and the plaintiff may be required to litigate the validity and amount of the indebtedness. The same may be true as to some of the other personal property.

So also, the plaintiff’s argument she should receive an award for alimony and attorney fees would, in different circumstances, require consideration. Again, the futility of a money judgment against the defendant in favor of the now 63-year-old plaintiff seems apparent.

Based then upon broad equitable principles tempered only by the practicalities of decreeing effective relief, the trial court shall enter a decree in accordance with the following directions.

First, the plaintiff shall be granted an absolute divorce.

Second, the title to all property standing in the name of plaintiff alone shall be confirmed in her, subject to any existing valid encumbrance to third parties, and any claim of the defendant thereto shall be extinguished and any purported assignment to him declared void.

Third, the decree shall direct and require that the defendant make, execute and deliver to the plaintiff any and all instruments, assignments or conveyances necessary to vest title in the plaintiff in the following items of personal property and real estate:

a) One Oldsmobile automobile presently used by the plaintiff as her personal vehicle, provided, however, that in the event the plaintiff does not elect to assume the indebtedness thereon, the title thereto shall not be transferred. Such indebtedness shall be assumed as of the date of transfer.
b) One hundred shares of stock in the General Motors Corporation subject to any valid indebtedness due third parties. Such conveyance shall include, if any, stock dividends accruing since the date of purchase either in kind or at current market value if sold by defendant.
c) One thousand five hundred shares of Lakepoint West Development Company standing in the name of defendant. The defendant shall also be required to convey all his interest in the 3,500 shares of this company standing in the joint name at the time of the separation. If any dividends in stock have been declared, the dividend stock shall also be so conveyed; if disposed of, the defendant shall account for the proceeds of the sale.
d) As to any shares of stock in the Commerce Bank, the defendant shall convey his interest therein to the plaintiff.
e) Defendant shall convey his one-half interest in the 456 shares of Southgate Bank stock standing in joint name to plaintiff as her sole property. As to the 86 shares of Southgate Bank stock standing in the name of defendant, the same shall be conveyed to plaintiff as well as any subsequent dividends in kind on all such stock.
f) The Levin Townsend bond standing in the name of the defendant shall be transferred to the sole ownership of the plaintiff.
g) Any interest of defendant in 2,500 shares of GMBC corporation jointly titled in plaintiff and defendant shall be conveyed to plaintiff. Defendant shall convey the 7,500 shares of GMBC in his own name to plaintiff. This stock may now be represented by a certificate in defendant’s name alone for 1,647 shares of Great Future Life Investment Corporation, and it is intended that the trial court shall enter such order as may be necessary to divest defendant of the GMBC stock or its proceeds in any other corporation formed therefrom, as well as any and all stock dividends or distributions in kind on dissolution, if any.
h) Defendant shall convey to plaintiff all his right, title and interest in and to the household goods and furnishings located in the home at 916 Hulen Drive, Columbia, Missouri.

Fourth, the decree shall order and direct the defendant to convey all his right, title and interest in and to the four tracts of real estate described in the evidence as:

a) 916 Hulen Drive, Columbia, Missouri;
b) The Scottsdale, Arizona property;
e) The Lake Hasavu property;
d) The Mizzou Motel, Columbia, Missouri.

Such conveyances shall be subject only to valid and existing liens to third parties, and neither the decree nor conveyance shall foreclose the plaintiff’s assertion of the amount or validity of any claimed liens thereon.

Fifth, any assets at the time of separation as to which a specific direction is not made but which are still subject to a claim of right by the defendant shall be conveyed by him to the extent of his interest therein. This provision shall not apply to jewelry nor to articles of clothing or personal use.

Sixth, upon finality of any decree entered and the failure of defendant to convey as herein directed, the trial court shall, by appropriate order, direct such conveyances as are necessary to effectuate the decree.

Seventh, no other or further relief shall be given the plaintiff and the prayer of her petition as to all other matters, including but not limited to an accounting, money judgments, or alimony and attorney fees shall be denied.

In view of the complicated nature of the decree to be entered and because of the lapse of time, some evidence may be required to enter a final decree. The trial court is authorized, but not directed, to require the parties to present such evidence as is necessary to enter a final decree.

Judgment reversed and cause remanded with directions.

All concur.

       Sold or cashed in by defendant after separation.

       This property acquired as the proceeds of condemnation litigation pending at the time of the death of plaintiffs first husband.

      The defendant’s exhibit at the time of trial showed that these four automobiles were encumbered to the extent of $16,700, although his market value was only $15,000. The present state of the indebtedness is unknown.

      . See also McHenry v. Brown, 388 S.W.2d 797 (Mo.1965).


author: McMILLIAN, Judge.

text:
    Charles COATES et al., Plaintiffs-Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Respondent and Third-Party Plaintiff, v. Louis P. JANTZEN et al., Third-Party Defendants.
    No. 35770.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 10, 1975.
    Madigan & Maloney, Thomas B. Maloney, Duane Sherman Cox, St. Louis, for plaintiff s-appellants.
    Doris Banta, George E. Lee, St. Louis, for defendant-respondent & third-party plaintiff.
    Edward D. Weakley, Andrew S. Meyer, St. Louis, for third-party defendants.
   McMILLIAN, Judge.

Plaintiffs, former employees of Barkley Contracting Company, a subcontractor, appeal from a judgment entered by the Circuit Court of St. Louis City in their favor for $3074.51 against defendant United States Fidelity and Guaranty Company (hereinafter referred to as USFG). In their amended petition plaintiffs had also sought attorney’s fees and a penal amount for vexatious delay. But counsel for plaintiffs, who was not trial counsel, candidly admits that both these issues should be withdrawn because they were not properly proved below.

The question for decision is whether USFG, a surety on a payment and performance bond for a general contractor under a building contract, is liable on the bond to plaintiffs, employees of a subcontractor on that job, for the penalty set out in § 290.-110, RSMo 1969, V.A.M.S., for the subcontractor’s failure to pay plaintiffs’ wages for two weeks of work in October 1969. For reasons hereinafter given, we think not and affirm the judgment of the trial court.

On December 10, 1968, George L. Cousins Contracting Company (hereinafter referred to as Cousins) was the general contractor to construct a building known as West Side Community Gardens (hereinafter referred to as West Side) at 5600 Cabanne Avenue, St. Louis, Missouri.

At the time of entering into the construction contract with the owners of West Side, Cousins entered into a payment bond agreement and performance bond agreement with USFG. Thereafter, Cousins entered into a contract with Larry Barkley and the Barkley Real Estate Company (hereinafter referred to as Barkley) jointly and severally for the performance of certain work at West Side.

All of the eight plaintiffs were former employees of Barkley. Each one except one Brown, made a claim for work performed for Barkley for the pay weeks ending October 22 and October 29, 1969. Each was issued checks by Barkley for those weeks, except plaintiff Brown who left on Jiis own at the end of the October 22nd pay period. All of the checks were dishonored by Barkley’s bank and returned unpaid to the plaintiffs. Plaintiffs claim that they were discharged by Barkley on 3 November 1969 and none of the checks was ever made good by Barkley.

With the exception of Brown, the other seven plaintiffs were employed by Cousins on 3 November 1969, with the understanding that Cousins would pay them for any time worked on October 30 and 31 of 1969. No contention is made that Cousins failed to honor his agreement. After October 31, 1969, plaintiffs except Brown continued in the employment of Cousins. After plaintiffs obtained a default judgment against Barkley in the Circuit Court of St. Louis City in the amount of $26,767.30, they made a demand for the judgment amount against USFG and Cousins. In the action against Barkley, plaintiffs claimed the amount of wages owed, as represented by the dishonored cheeks, and for penalties due for unpaid wages under § 290.110. Neither Cousins nor USFG received any notice of plaintiffs’ lawsuit against Barkley.

Plaintiffs’ theory in the instant case is that USFG is obligated to pay the Barkley judgment under the terms of both the payment and performance bonds, including the penalty wages provided by § 290.110.

First, we dispose of plaintiffs’ contention that the trial court erred in refusing to rule that all matters in their “Requests for Admissions” were admitted because USFG’s answers were untimely. Rule 59.-01, V.A.M.R. (1969). The trial court heard plaintiffs’ request that “Requests for Admissions” be taken as admitted and denied the request, but permitted plaintiffs to read the requests into evidence. The court had before it not only plaintiffs’ “Requests for Admissions,” but also defendants’ answer to them filed two years before trial. Plaintiffs neither suggest any lack of good faith in USFG’s denial of their “Requests,” nor indicate any prejudice to them by the claimed untimely filing of USFG’s answers thereto. We hold that it was within the trial court’s discretion to allow the late filing of answers to a “Requests for Admissions” and absent a showing of either bad faith or prejudice that discretion reposed in the trial court is not abused. See Webb v. Rencb, 476 S.W.2d 570 (Mo.App.1972) and Bickel v. American Trust Life Ins. Co., 468 S.W.2d 873 (Tex.Civ.App.1971).

Turning to plaintiffs’ second claim, we note that the payment bond is executed for the protection of the owner (West Side) from claims made by claimants who supplied materials and labor reasonably required for use in the performance of the contract. On the other hand, since the building project was an F.H.A. project, in addition to the payment bond, F.H.A. rules required a performance bond for the protection of the owner and the United States. Sun Ins. Co. of New York v. Diversified Engineers, Inc., 240 F.Supp. 606 (Mont.D. Ct., 1965).

We further note that neither the performance bond nor the contract which it secured made any mention of wages. Nor is there any evidence that West Side (owner-obligee named in the performance bond) has incurred any costs or damage owed to plaintiffs. Neither is there any evidence that plaintiffs ever made any claim for wages or penalties against West Side. Moreover, a plain reading of the performance bond gives no right of action to anyone other than West Side. It expressly speaks in terms of a right of action of West Side and Travelers Ins. Co. (lender) and says that the aggregate liability of USFG to obligees or their assigns is limited to the penal sum of the bond, $1,340,503. Nowhere does it purport to give anyone else a right of action. Therefore, if plaintiffs are entitled to a recovery it must be found under the policy terms of the payment bond, not the performance bond.

USFG concedes that plaintiffs are “claimants” within the definitional terms of the payment bond and agrees that plaintiffs may sue thereunder for such sums as may be justly due them. In addition, USFG does not dispute that the $3074.51 awarded them by the court was the sum justly due.

From the terms of the payment bond, we glean that USFG obligated themselves to pay, if sued by and judgment obtained by plaintiffs, any claims for work and labor performed or materials furnished by them such sums as justly due. From this plaintiffs would have us conclude that the penal sanctions of § 290.110 was applicable because of USFG’s unlawful withholding of wages in violation of the statute. Section 290.110 provides:

“. . . whenever any corporation doing business in this state shall discharge, with or without cause, or refuse to further employ any . . . employee thereof, the unpaid wages of any such employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of such discharge or refusal to longer employ; and such . employee may request in writing of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station or office where a regular agent is kept; and if the money aforesaid, or a valid check therefor, does not reach such station or office within seven days from the date it is so requested, then as a penalty for such nonpayment the wages of such . employee shall continue from the date of discharge or refusal to further employ, at the same rate until paid; provided, such wages shall not continue more than sixty days. ...”

As we understand § 290.110 it deals with the employer-employee relationship and its purpose is to cause prompt payment of discharged, unpaid workmen. Furthermore, our Supreme Court, in Monterosso v. St. Louis Globe Democrat Publishing Co., Mo., 368 S.W.2d 481 (1963), citing Durant v. Industrial Products Mfg. Co., 241 Mo.App. 266, 235 S.W.2d 574 (1951) and Quinn v. T. M. Sayman Products Co., 296 S.W. 198 (Mo.App.1927) declared § 290.110 to be penal in character and to be strictly construed. Continuing on, the court held, “Unpaid vacation pay under the collective bargaining contract did not constitute ‘unpaid wages * * * then earned at the contract rate,’ within the meaning of § 290.110 . . . ” Here we have somewhat an analogous situation — plaintiffs claiming unpaid wages for work performed (unpaid vacation pay) as wages under the payment bond (wages earned at the contract rate); therefore, these wages are subject to the penalty provisions of § 290.110.

The analogy fails not only because of what was said in Monterosso, but also because there is no employer-employee relationship between USFG and the plaintiffs. This relationship existed, if at all, between Barkley and the plaintiffs. Furthermore, the payment bond never undertook to pay wages, but rather to pay any final judgment obtained by claimants for work or labor performed or materials furnished as is determined to be justly due. We do not decide that “justly due” in this context could either be the claimed amount or be a lesser amount for the work done or materials furnished, because both parties agree that the sum of $3074.51 is the actual amount of earned wages. Thus the question then becomes the applicability of the penalty authorized by § 290.110 to this amount of combined wages.

We hold that § 290.110 has no applicability to a surety’s payment bond executed for the protection of the owner against material, men’s claims for work and labor performed or materials supplied in performance of the construction contract. Section 290.110 is highly penal and is to be given a strict construction and applies to an employer-employee relationship, which existed between plaintiffs and Barkley, not USFG, the surety. And finding nothing in either the payment bond or construction contract to the contrary, plaintiffs’ contention is disallowed.

We find each case that plaintiffs have referred us to, to be inapposite. In National Union Fire Ins. Co. of Pittsburgh, Pa. v. D & L Const. Co., 8 Cir., 353 F.2d 169, cert, denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 539, the case dealt with bonds issued under a contract for building 700 residential units. The main dispute involved the question of whether attorney’s fees were recoverable under the bond. The court held that the contract between the builder and the owner expressly called for the payment of attorney’s fees if there was a failure to perform under the construction contract. Since that contract called for attorney’s fees, the bond covered them too, said the court, because thé surety’s rights and liabilities were measured by those of the principal. In the instant case, nothing is said in the construction contract about Cousins paying the wages of Barkley’s employees.

The case of J. R. Watkins Co. v. Lankford, 363 Mo. 1046, 256 S.W.2d 788 (1953) is no authority for plaintiffs’ contention that USFG is responsible for a penalty for Barkley’s failure to pay wages. The case holds that a surety is liable on a bond though it was induced by fraud to become a surety, if the claimant knows nothing of the fraud. Obviously, in our case, there was no fraud by Cousins on the payment bond inducing USFG to become the surety.

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . All statutory references are to RSMo 1969.

      . See Cyclopedia of Federal Procedure (3rd Edition 1970), § 25.613, at p. 518, 519, where it is said: “The court may relieve a party against the effect of failure to respond to a notice to admit within the time specified in Rule 36 [Federal Rule 36 the model for our Rule 59.01] where there is no indication of lack of good faith on the part of the responding party and no prejudice to the requesting party.” See also 93 A.L.R.2d 757, p. 759.

      . “NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the following conditions:
      “1. A claimant is defined as one having a direct contract with the Principal or with a subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the contract, labor and material being construed to include that part of the water, gas power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract.
      “2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit.”