text:
    Manny COLLINS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28126.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      Gerald Kiser, Public Defender, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Manny Collins appeals the denial of his motion filed under Rule 27.26 to vacate a judgment, entered subsequent to a jury trial, of thirty-five years confinement for assault with malice aforethought. A direct appeal to this court following his conviction resulted in the judgment being affirmed. State v. Collins, 519 S.W.2d 362 (Mo.App.1975).

On this appeal Collins argues the denial of his motion should be reversed because (1) a statement given by Collins following his arrest was not voluntarily and intelligently made; (2) he was denied effective assistance of counsel because of the failure of his trial counsel to object to an argument made by the assistant prosecutor; and (3) he was denied effective assistance of counsel because of failure of his trial counsel to object to a comment by the assistant prosecutor on the failure of defendant’s wife to testify. Affirmed.

At the hearing on Collins’ motion, the transcript of the original trial was introduced and received in evidence. From that transcript the following facts appear.

Collins, his wife Laura, Sally Roberson and Thurlo Johnson were friends from their days of residing in West Plains, Missouri. These four were in a tavern drinking, and apparently Johnson at least had been drinking most of the day. At a point in the otherwise convivial atmosphere, Laura called Johnson a “big old dummy”. This erupted into an argument between Johnson and Laura. Shortly after this developed, Collins and his wife left the tavern. They returned about forty-five minutes later with two other men.

After his return, Collins had some conversation with Johnson concerning the argument and after some reluctance, and at the suggestion of Johnson, Collins agreed to forget the incident. Collins thereupon suggested that the entire group go out into the country for a party. Johnson gave a hearty endorsement to this idea and the entire group went to Collins’ pickup truck. The truck had a camper on the back and Johnson and one of the other men got into the camper. Johnson located a mattress and lay down, with the other man seated on the mattress. In the cab, one of the other men was driving with Sally next to him, then Laura was seated near the edge of the seat in order to make room for everyone, with Collins seated on the right side. As soon as the truck left the tavern parking lot, Collins produced a pistol and started laughing and saying he was going to kill Johnson. He also put the gun to the head of Sally and told her he was going to kill her, all the while continuing his laughter. He talked with the driver about the fun they were going to have in killing Johnson and throwing his body into the river, and the driver remarked it was going to be great fun with a lot of blood.

After a drive of about twenty minutes, with Collins and the driver engaging in laughter and talk about killing, the truck came to a stop on a road next to the Missouri River under the Chouteau Bridge. Collins and the driver got out and went to the camper. As soon as the door was opened, the man seated on the mattress jumped out of the camper. Johnson half raised up and as he did so Collins told him he was going to kill him and immediately fired. The bullet passed through Johnson’s chest just to the right of the breastbone. Despite his wound, Johnson was able to jump out of the camper and run down the road. As he jumped out, Collins attempted to fire again but the gun failed to function properly. Collins and the other men looked for Johnson but were unable to find him. Johnson was able to make his way up a bank to a filling station at the north end of the Chouteau Bridge.

Collins was represented at trial by his own privately retained counsel, but different counsel has appeared on both appeals. After the State rested, the defense rested without putting on any evidence.

In final argument, the assistant prosecuting attorney made statements which Collins’ counsel concede were objectionable.

No objection to any of the argument was made, nor was any complaint voiced in the motion for a new trial. This argument was not considered on the direct appeal since it was not preserved, and no request was made for the court to consider this complaint under plain error.

On the hearing on Collins’ 27.26 motion, the only evidence concerning the effective representation of Collins by his counsel came from his trial counsel’s testimony. When he was questioned about the argument and his failure to object, counsel stated he did not object as a matter of trial strategy. He stated he thought the argument was objectionable, but he feared any objection would only tend to emphasize the argument to the jury with the result that he would only compound the effect of the argument. Counsel further stated he did not feel this argument had deprived Collins of a fair trial.

In overruling Collins’ motion the trial court found the assistant prosecutor’s arguments “were not so inflammatory or prejudicial as to deprive Collins of a fair trial” and the failure of counsel to object to such arguments was a part of his trial strategy and did not constitute ineffective assistance and did not deny Collins a fair trial.

Turning to the points raised on this appeal, the complaint that a statement made by Collins was not voluntarily and intelligently made and should not have been received in evidence, and the argument of the assistant prosecutor on the failure of Collins’ wife to testify were both raised and ruled on in the direct appeal. 519 S.W.2d 363[1, 2], [3]. In that situation they may not be reviewed again as such on a 27.26 motion. Shepherd v. State, 529 S.W.2d 943 (Mo.App.1975).

Collins’ counsel on this appeal strongly urges the argument made by the assistant prosecutor was “so inflammatory and prejudicial” that it denied Collins a fair trial and the failure of his trial counsel to object constituted ineffective assistance of counsel. It should be noted that errors in admission of evidence and alleged improper arguments cannot be made the basis for relief on a 27.26 motion. Booth v. State, 491 S.W.2d 286, 288[3] (Mo.1973). Thus, although Collins in his brief confines his argument to the prejudicial nature of the prosecutor’s argument, the question to be resolved on this appeal is whether or not the failure of trial counsel to object to such argument denied Collins the effective assistance of counsel which deprived him of a fair trial. On that question it has been stated, “[a] defendant who has been convicted and who asserts that his attorney has not rendered adequate and effective legal assistance commensurate with constitutional standards has a heavy burden to sustain.” State v. Nolan, 499 S.W.2d 240, 252[14-16] (Mo.App.1973). It was further held in that case a new trial will not be- granted if it is concluded the defendant had a fair trial “even though the evidence may have shown that counsel might have prepared or handled the case differently or done otherwise ...” 499 S.W.2d 252[14-16].

In Myrick v. State, 507 S.W.2d 42 (Mo.App.1974) this court stated: “This burden (to show ineffective assistance of counsel) is not met unless it is clearly demonstrated that the acts of counsel went beyond errors of judgment of trial strategy and were of such character as to result in a substantial deprivation of movant’s right to a fair trial.” 507 S.W.2d 44[2-3].

The only evidence Collins has to attempt to show that he was deprived of a fair trial by being denied effective assistance of counsel is his testimony that he requested counsel to object to portions of the argument, and the testimony of his trial counsel. Trial counsel stated he considered the argument to be improper, but decided it was the better part of trial strategy not to object. This court has carefully reviewed the transcript of the original trial including the entire argument of the assistant prosecutor. The testimony of Collins and trial counsel has also been carefully reviewed.

In this case Collins’ trial counsel candidly admitted the argument was objectionable but he thought Collins’ interest would be better served by a failure to object on the theory the matter would only be further emphasized if an objection were made. Since only a trial counsel can formulate and attempt to execute his strategy for a trial, this strategy, even though unsuccessful, will not form the basis for a finding that counsel was ineffective.

It may well be that by use of the well known “twenty-twenty” hindsight, or the equally well known “Monday morning quarterback” approach, trial counsel’s failure to object can be labeled a mistake. It might also be difficult to reconcile a failure to object with a trial strategy. However, trial counsel vigorously defended Collins in the face of overwhelming evidence of guilt and under the handicap of a lack of a viable defense.

In view of the handicap under which trial counsel was working, and in view of the overall manner in which he conducted the defense, this court cannot say as a matter of law that the failure to object was not based on trial strategy. This should not be construed as creating a shield to cover every shortcoming on the part of counsel in the conduct of a trial. This court is only holding that in the circumstances of this case when the only evidence explaining the failure to object is based on trial strategy, the trial court was justified in finding strategy was the reason no objection was made.

At the same time it should be noted this court does not in any way condone the assistant prosecutor’s argument. This argument, which was but a small part of the total argument, could be construed as tending to “personalize” the defendant to the jury. However, in this case the propriety of this argument is not the issue.

The finding of the trial court that trial counsel’s failure to object was a matter of trial strategy and that such failure to object did not deprive Collins of a fair trial cannot be set aside unless it can be termed to be clearly erroneous. Dill v. State, 525 S.W.2d 437 (Mo.App.1975); Rule 27.26(j).

A thorough review of the entire record fails to show the findings of the trial court to be clearly erroneous. The able trial judge who denied relief under Rule 27.26 also presided at Collins’ trial. He was present when the jury argument was made and observed the conduct of Collins’ trial counsel throughout the trial. From all of the evidence it cannot be held that Collins has clearly demonstrated the failure to object by his trial counsel went beyond trial strategy. Nor can it be said his complaint of counsel’s inaction was of such a character as to result in a substantial deprivation of Collins’ right to a fair trial.

The judgment, not being clearly erroneous, is affirmed.

All concur.


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eugene Joseph BARNES, Jr., Defendant-Appellant.
    No. 37145.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 4, 1976.
    James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis, Missouri, on a jury verdict finding him guilty of rape. The court sentenced defendant to twenty-five (25) years imprisonment.

Defendant contends that the court erred (1) in failing to sustain his motion for judgment at the close of the case because the evidence was contradictory and insufficient to prove a cause of action; and (2) in failing to declare a mistrial because of prosecutorial misconduct in making repeated statements about “mugshots.” We disagree with both contentions and affirm the judgment of conviction.

From the evidence a jury could have reasonably found beyond a reasonable doubt the following facts: In the early morning of December 2, 1973, the victim, who lives on Page Avenue, went to a liquor store to buy some potato chips and a bottle of soda. As she returned from the store, she walked past the defendant, whom she described as fat, brown-skinned, kind of short, with a moustache and natural hair style. After defendant passed her, he grabbed her from the rear, held a knife to her throat, and threatened to kill her if she screamed. According to the victim, defendant took her between some houses, and began to tear off her clothing. Then, the victim testified, defendant took her into the alley between some garages and tore off her pants, her panties, and her panty hose. Defendant forced her to lie down and had intercourse with her for fifteen to twenty minutes. The victim further testified that she had a good look at defendant when he was tearing off her clothing and when he was on top of her.

As soon as she reached home, she reported the incident to her cousin. Her cousin testified that the victim’s clothing was torn and that the victim was crying and screaming. Although the cousin offered to call the police, she did not because the victim kept saying, “No, he threatened to kill me.”

For some unexplained reason, on December 4, 1973, several police came to the victim’s home and showed her eight to ten photographs. The victim picked out the defendant’s photograph as being her attacker and later that day picked the defendant out of a fourteen man lineup. Subsequently, she identified defendant in court as her attacker and testified that he was the same man whose photograph she had picked out earlier.

While defendant couches his first contention in terms of a challenge to the sufficiency of the evidence, a closer examination reveals that his contention is actually an argument pertaining to the weight and credibility of the victim’s identification testimony. Granted, there were discrepancies in the victim’s testimony concerning (1) whether she told the police her attacker had a limp, (2) the difference in height between her description of her attacker and the defendant’s actual height, and (3) the place of the rape and the amount of light there. All of these matters go solely to the weight and credibility to be given by the jury to the victim’s identification testimony. State v. Davis, 516 S.W.2d 784, 785 (Mo.App.1974). None of these conflicts in evidence contradicts one of the elements necessary to the state’s case: (1) her private parts were penetrated by defendant’s penis; (2) she was threatened; and (3) she was forced into the act against her will. State v. Ruhr, 533 S.W.2d 656 (Mo.App., Kansas City, 1976). The absence of semen on the victim’s clothing or in her vagina is not fatal to the state’s case because the state is not required to prove an ejaculation in order to prove rape. Moreover, much of the victim’s testimony was uncontradicted, and her testimony was corroborated by her cousin who testified as to her contemporaneous account of the incident, her physical state, and the fact that her pants and panties were torn. Consequently, we rule this point against defendant.

Central to defendant’s second claim is the reference by the prosecutor to photographs of defendant as “mugshots.” The term “mugshot” was used on three occasions; however, the second and third usage were so close in time as to be considered one. On each occasion, the court sustained the defendant’s objection, found the usage to have been inadvertent, and offered to instruct the jury to disregard the remarks of the prosecutor in this regard. Defense counsel, however, requested a mistrial and declined the offer of the court to instruct the jury to disregard the remarks of the prosecutor.

In our view, because of our opinions in State v. Harris, 534 S.W.2d 516 (Mo.App., St. Louis, 1976), citing with approval State v. Carson, 501 S.W.2d 503 (Mo.App.1973) and State v. Rutledge, 524 S.W.2d 449, 457-58 (Mo.App.1975), further discussion of this “mugshot” issue would have little, if any, precedential value. Consequently, since there was no direct reference to either prior arrests or convictions and since the declaration of a mistrial is a drastic remedy, we find, under the circumstances of this case, no abuse of discretion in denying defendant’s request for a mistrial.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.


author: KELLY, Judge.

text:
    STATE ex rel. PEOPLES BANK OF BLOOMINGTON et al., Relators, v. Hon. Harry J. STUSSIE, Respondent.
    No. 36492.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 4, 1976.
    James M. Daly, St. Louis, for relators.
    David R. Hess, Clayton, for respondent.
   KELLY, Judge.

Relator, Peoples Bank of Bloomington, an Illinois corporation, and Jack Snyder, a resident of the state of Illinois, have applied for this Writ of Prohibition attacking the jurisdiction of respondent judge to proceed with a cause of action commenced against them in the Circuit Court of St. Louis County under § 506.500.1[1] RSMo 1969, the Missouri Long Arm Statute. We issued our preliminary writ, respondent filed his return and relators their Reply after which the cause was argued and taken as submitted.

This application for Writ of Prohibition has its genesis in a two count petition filed in the Circuit Court of St. Louis County by the Hess Construction Co., a Missouri corporation, with its principal place of business in St. Louis County, against Peoples Bank of Bloomington, a banking institution organized under the laws of Illinois and with its principal place of business in Bloomington, Illinois, and Jack Snyder, also an Illinois resident. Jurisdiction over the defendants was alleged to be pursuant to the provisions of § 506.500.1[1] RSMo 1969 in that both defendants and their agent, Robert Cush-man, engaged in the transaction of business within the state of Missouri. Service was obtained on the defendants in Illinois and they thereafter filed their joint Motion to Quash Summons and Return of Service and to Dismiss on the grounds that they were not subject to the jurisdiction of the court because they did not transact business in the state of Missouri within the meaning of § 506.500.1[1] RSMo 1969. After an eviden-tiary hearing on this motion the respondent indicated to counsel for the parties that he intended to deny or overrule Relators’ Motions and they thereupon made application for this Writ.

The sole issue in this case is whether the defendants transacted business in this state so as to submit themselves to the jurisdiction of the St. Louis County Circuit Court. We conclude that we cannot in this proceeding conclude that the trial court has no jurisdiction or will exceed its jurisdiction by proceeding with the cause and thereupon quash the preliminary writ heretofore issued.

Count I of Plaintiffs Petition alleges as its cause of action that the defendants acting through their agent, Robert Cushman, met with plaintiff’s officers and representatives in St. Louis County on numerous occasions and discussed the merits of a proposed shopping center development in Blooming-ton, Illinois; that their discussions culminated in an agreement entered into between plaintiff and the Bank, as the defendant, Peoples Bank of Bloomington, shall hereinafter be identified, entitled “Option” wherein plaintiff was granted an option for six months to enter into a lease agreement with defendant Bank as the trustee of certain real estate under McLean County Land Trust No. D-161 for the purpose of constructing a shopping center. That at the time of the execution of the option’s agreement with the Bank plaintiff paid to the Bank a consideration of $10,-000.00, which sum was to be refunded to the plaintiff if the Bank did not secure a rezoning of the tract of land by the proper authorities of Normal, Illinois, for the construction of a shopping center, including certain businesses, including among others, a cinema, a drive-in bank, gasoline station, fast food drive-in restaurant, motel, etc., within whose boundaries and jurisdiction the land to be developed into a shopping center is situate. That the requisite planned development was never approved by the Town authorities, and although plaintiff’s officers have met with the defendants in an effort to satisfy the conditions and requirements of the Town for approval of the planned development, approval has not been granted. That plaintiff has requested the refund of its $10,000.00 but the defendants have refused to return it to plaintiff. Plaintiff prays judgment against defendants for $10,000.00 plus interests and its cost.

Count II of plaintiff’s petition realleges and incorporates by reference those portions of Count I relative to the parties, their relationships, the Option agreement and payment of consideration of $10,000.00 to the Bank. It is further alleged that at the time the option agreement was entered into defendant Snyder made certain misrepresentations of material facts and omitted to inform plaintiff of certain material facts existing at the time of the execution of the option agreement. That in soliciting plaintiff to deliver the consideration for the option agreement to the Bank, for his use and benefit, Snyder, and the Bank, through him, made certain untrue statements and misrepresentations concerning Snyder’s political influence whereby he had arranged for the construction of a drainage ditch, and that plaintiff would bear no cost for the widening of a roadway adjacent to the area to be developed. That Snyder omitted telling plaintiff that the Town had requested an ore company to eliminate two curb cuts at one of its filling station locations in the vicinity and that the Town required a drainage tube extension for 700 feet to an adjacent parcel of property. That believing and relying on the misrepresentations made to it, the corporation paid the consideration for the option agreement, whereas, had it known the true state of facts it would not have paid over the money. Plaintiff seeks recovery of the $10,000.00 consideration for the option agreement, $6,000.00 paid to its leasing agent as salary, and $5,000.00 architectural fee, a total of $21,000.00 actual damages and $100,000.00 punitive damages against the named defendants.

The evidence at the hearing on the Motion presented by the defendants consisted in affidavits of Mr. Snyder, one of the defendants, Owen J. Mair, a trust officer of the Bank and of Robert Cushman, the alleged agent of the defendants. Mr. Snyder and Mr. Cushman testified in person at the hearing and Mr. Jerry D. Gummere, vice-president of the Bank, also testified for the defendants. Plaintiffs evidence consisted of the testimony of Raymond Tenholder, a real estate appraiser in the employment of the Mercantile Bank in St. Louis. Documentary evidence consisting of (1) a carbon copy of a letter from Mr. Tenholder to Mr. Snyder dated November 9, 1972, (2) a carbon copy of a letter from Mr. Tenholder to Mr. Snyder dated December 11, 1972, (3) a copy of a contract between Mr. Cushman and Mr. Snyder dated October 27, 1972, (4) a lease plan prepared by Mr. Cushman dated November, 1972, (5) the option agreement between plaintiff and the Bank, and (6) a letter from Mr. Cushman to Mr. Ten-holder dated December 13, 1972, also was introduced into the record.

The question for decision here is whether the evidence in this record is sufficient to prove, as a matter of law that the defendants had sufficient contacts with the state of Missouri to subject them to the long arm statute in this cause of action pleaded by plaintiff. The trial court decided there was.

Because of the result we have reached in this matter we deem it unnecessary to review in depth defendants’ evidence other than to state that both defendants deny any contacts with the state of Missouri other than by a couple of telephone conversations and a letter or two and both deny that Mr. Cushman was their agent. However, the evidence viewed most favorably from respondent’s viewpoint is that the Bank was Trustee of a tract of land situated in Normal, Illinois, in a trust identified as “McLean County Land Trust D-161,” of which defendant Jack Snyder was the beneficiary. This tract of land, consisting of approximately 40 acres, is located at the northwest corner of the intersection of Main Street (U.S. 51) and Raab Road. Desirous of developing 200,000 square feet of this tract into a mall-type shopping center. Mr. Snyder contracted with Mr. Cushman on October 27,1972, to “develop” this property into a shopping center to be known as “Normal Mall.” By the terms of this agreement Mr. Cushman was appointed the “exclusive leasing agent and/or sales agent, for the shopping center” and was given “jurisdiction over all leasing and sales including leasing or sales of lease-offer or sell-offer” subject to approval and acceptance by Mr. Snyder. The contract term was for six (6) months, and was renewable for another six month term.

Raymond Tenholder, sometime in 1972, was in Bloomington, Illinois, conducting some business with the defendant Bank, and during the course of that business he met with Mr. Gummere, vice-president of the Bank. In a conversation between these men, some mention was made relative to the need for a shopping center in Blooming-ton and Mr. Tenholder indicated to Mr. Gummere that he might know some people who would be interested in entering into some type of a development. At some later date — when the record does not reveal — but sometime prior to November 9, 1972, Mr. Gummere furnished the name of Mr. Snyder as the party in “control” of a site which might be developed for such purpose. On November 9, 1972, Mr. Tenholder wrote to Mr. Snyder informing him of this and asking him if he was “interested in selling the property or possibly participating with a St. Louis developer in such a venture” to forward the information on the site. Mr. Snyder responded to this letter by telephone call and advised Mr. Tenholder that he would have to talk with Mr. Cushman who was his representative in this matter. Mr. Snyder gave Mr. Tenholder the address and telephone number of Mr. Cushman in Champaign, Illinois. Shortly after their telephone conversation, Mr. Cushman called Mr. Tenholder and Mr. Cushman agreed to send Mr. Tenholder some information concerning the tract and the type of development Mr. Snyder was considering. On November 28, 1972, Mr. Tenholder, not having heard further from Mr. Cushman, wrote another letter to Mr. Cushman, requesting the information he had been promised. Then, still having received no information from Mr. Cushman, Mr. Tenholder wrote again to Mr. Snyder on December 11, 1972, advising him of this situation. By letter of December 13, 1972, Mr. Cushman wrote to Mr. Tenholder enclosing a data sheet and “lease plan # 1” for the proposed shopping center and suggesting that after Mr. Ten-holder had a chance to review the information with his clients in St. Louis a meeting be arranged in Bloomington with Mr. Snyder to determine if there was any mutual interest.

On January 29,1973, Mr. Gummere wrote to Mr. Tenholder on bank stationery that after he had talked with Mr. Tenholder by telephone on January 26th, he had had an opportunity to talk with Mr. Snyder about this tract of land. He pointed out that Mr. Snyder had the contract with Cushman but advised Mr. Tenholder that he felt Mr. Snyder would entertain a long-term subordinated land lease with Mr. Tenholder’s clients or joining together with them using the land and obtain an interest in the shopping center. A third alternative — outright sale— was also mentioned, although Mr. Gummere was not optimistic as to this alternative. He further advised Mr. Tenholder that he thought it would be worth Mr. Tenholder’s while to again contact Snyder at his earliest opportunity because Mr. Snyder might be leaving for Florida. This letter was signed:

“Peoples Bank of Bloomington
/s/ Jerry D. Gummere_
JERRY D. GUMMERE
Vice-President.”

After receipt of this letter of December 11, 1972, Mr. Tenholder and Mr. Cushman had two or three telephone conversations in an attempt to set up a meeting between Mr. Snyder and Mr. Tenholder’s “contacts in St. Louis.” (At this point in the dealings Mr. Tenholder had not as yet revealed to Mr. Cushman or Mr. Snyder who his contacts in St. Louis were). On March 11, 1973, Mr. Tenholder and John Hess, one of plaintiff’s officers, met with Mr. Snyder at the site in Normal, Illinois, and at that time indicated they were interested in acquiring the site. Mr. Snyder advised them that he could not deal directly with them because of his contract with Mr. Cushman. After this meeting Mr. Snyder had his auditor contact John Hess and David Hess, both officers of plaintiff, for the purpose of inquiring into their financial status and to run a check to determine what kind of people they were dealing with.

On March 28, 1973, Mr. Cushman met with Mr. Tenholder, David Hess, John Hess and Marvin Ginsberg, an architect, at a restaurant in St. Louis County. Although Mr. Cushman denied that the purpose for this meeting was so that he could obtain a leasing agent contract with plaintiff in the event plaintiff purchased or leased the tract, and that he was not then acting as Mr. Snyder’s agent, there is other evidence that Mr. Cushman did present himself as a representative of Mr. Snyder at this meeting, that there was a discussion of dollars— although perhaps no specific amounts— about leases and purchase price, and the possibility of plaintiff buying or leasing the land from Snyder.

On April 16, 1973, Mr. Cushman came to the home of David Hess, Sr., in Clayton, St. Louis County, Missouri, and there met with David Hess, Jr., and John Hess. They went from the Hess’ home to a department store in St. Louis County where they met with several of the principals of the department store business to discuss whether they had any interest in locating a store in the shopping center.

On May 1, 1973, plaintiff and the Bank executed the “Option” agreement in Bloom-ington, Illinois. Mr. Snyder was not a signatory to this contract by means of which plaintiff delivered to the Bank the $10,-000.00 it seeks to recover in this action.

On the same day the Option contract was signed, but after its execution, Mr. Cush-man and plaintiff also entered into an agreement whereby Mr. Cushman was employed as plaintiff’s leasing agent for the proposed shopping center.

In reaching a decision in this case we must decide whether the facts are sufficient to support a finding by the trial court that the defendants had sufficient contacts with the forum state — here Missouri — to satisfy due process requirements. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); American Hoechst Corp. v. Bandy Laboratories, Inc., 332 F.Supp. 241 (W.D.Mo.1970). In resolving this question the following factors may be considered: 1) the nature and quality of the contacts with the forum state, 2) the quantity of contacts with the forum state, 3) the relation of the cause of action to the contacts, 4) the interest of the forum state in providing a forum for its residents, and 5) the convenience of the parties. American Hoechst Corp. v. Bandy Laboratories, supra, l.c. 244, J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd., 331 F.Supp. 1215, 1218[1] (W.D.Mo.1971).

In American Hoechst Corp., supra, the only direct contact with the state of Missouri was a business conference at the inception of the business dealings between the parties followed by telephone calls and letters firming up the details, forwarding to plaintiff of some samples of the vaccine which it tested and then a series of orders and deliveries of same to the plaintiff, and long arm jurisdiction under the transaction of business clause of the statute was upheld. See also the J. F. Pritchard Co. case, supra.

Defendant Bank argues however, that the sole and only involvement of the Bank is that as a Trustee under an Illinois land trust, it holds legal title to the land which was the subject of the option agreement, and, except for the letter of Mr. Gummere of January 29,1973, to Mr. Tenholder in St. Louis, it had no contacts with the forum state. It argues, citing Desert Palace, Inc. v. Salisbury, et al, 401 F.3d 320, 323[1] (7th Cir., 1968) as authority for said argument: “The sending of a letter does not necessarily constitute the transaction of business.” (Emphasis supplied). We have no argument with this general statement, but we conclude that it is inappropriate under the facts of this case.

The instrument by which the Illinois land trust was created is not in evidence. However, the Bank is admittedly the Trustee under an “Illinois Land Trust” and as such has both the legal and equitable title to the tract of land which is the subject of the option agreement and the basis for plaintiff’s cause of action. It is a signatory to the contract and the recipient of the consideration for the option agreement which plaintiff seeks to recover in this lawsuit. Mr. Snyder, admittedly the beneficiary of the trust, has a personal property interest therein, with the power to direct or control the trustee in dealing with the title, and he also has the exclusive control of the management, operation, renting and selling of the trust res, together with the exclusive right to the earnings, avails and proceeds of said property. S.H.A. Ch. 298, § 8.31, Levine v. Pascal, 94 Ill.App.2d 43, 50[1], 236 N.E.2d 425 (1968).

With these principles in mind, we are also cognizant that a hearing on a motion to quash service of this kind is limited to an evaluation of relators’ contacts with the forum state and a prima facie showing that acts contemplated by the statute involved took place. A trial on the merits is not required. The question of whether plaintiff could establish the required minimum contacts required to subject foreigners to the jurisdiction of the court under this statute is, in the first instance, to be determined by the trial court. State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889, 893[1-4] (Mo. banc 1970).

We have concluded that there were sufficient minimum contacts with this state by Mr. Snyder through his agent, Cushman, to support the trial court’s finding of a prima facie showing of a transaction or transactions culminating in a contract of which Mr. Snyder was a beneficiary and which was brought to fruition through the efforts of his agent and himself.

We also hold that there is a sufficient prima facie showing through the relationships of the Bank and Mr. Snyder by way of the Illinois Land Trust and their respective rights and interests thereunder, that each served to benefit by the transaction which brought about the option agreement and by accepting these benefits which were the direct result of the contacts of Mr. Cushman with the state of Missouri, the Bank became subject to the service under the provisions of § 506.500 RSMo 1969.

The preliminary writ heretofore issued is hereby ordered quashed.

CLEMENS, P. J., and STEWART, J., concur.


author: CLEMENS, Presiding Judge.

text:
    Annie SABBATH, Appellant, v. MARCELLA CAB COMPANY, Respondent.
    No. 36815.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 4, 1976.

      Raymond Howard, St. Louis, for appellant.
    Ira M. Young, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff taxi passenger sued the cab company on the theory of res ipsa loquitur for injuries allegedly received when the cab made “a sudden and unusual stop and jerk.” The jury found for defendant and plaintiff appeals, asserting numerous trial errors.

According to plaintiff the cab stopped for a red light, started up and then lurched and suddenly stopped, throwing plaintiff to the floor. Defendant’s driver and another passenger testified that when the traffic light turned green the driver tried to move forward, but at that moment the cab’s drive shaft broke and fell to the pavement; there was no movement, and of course neither a sudden stop nor jerk.

Defendant’s first witness, obviously called out of turn, was an expert in automotive mechanics. Defense counsel asked him a hypothetical question assuming two facts not then in evidence. When plaintiff objected on that ground defense counsel assured the court the two facts would be supplied by defendant’s driver. The trial court overruled plaintiff’s objection, the question was answered and the driver later testified to the assumed facts. Plaintiff correctly argues that a hypothetical question must be based on facts then in evidence, citing Hamilton v. Slover, 440 S.W.2d 947[9-10] (Mo.1969). However, in view of counsel’s assurance the assumed facts would come into evidence, and that they did, there was no prejudicial error. Martin v. Springfield City Water Co., 128 S.W.2d 674[1, 2] (Mo.App.1939).

Plaintiff’s second evidentiary point arises from the cab driver’s testimony about defendant’s policy of performing maintenance on their cabs every two weeks. She contends the testimony was “hearsay, and self-serving and irrelevant.” The evidence was not irrelevant since it tended to prove a matter in issue — the defendant’s due care. Haymart v. Freiberger, 498 S.W.2d 590 (Mo.App.1973).

To violate the hearsay rule the declaration must assert another statement for the truth of the matter stated. State ex rel. State Hwy. Commission v. Kimmell, 435 S.W.2d 354[1-5] (Mo.1968). Plaintiff argues that because the cab driver did not formulate company policy he must have been told of the policy by another; therefore his testimony was based on another’s statements, citing Royle Mining Co. v. Fidelity & Casualty Co., 161 Mo.App. 185, 142 S.W. 438 (1912). We disagree. Defendant’s maintenance policy was personally known to its driver. He was required to bring his cab in for maintenance every two weeks; he knew the oil was changed and parts were lubricated. Statements based on the witness’ personal knowledge are not hearsay. Greene County v. Hermel, Inc., 511 S.W.2d 762[3] (Mo.1974). And, the fact the regular maintenance policy existed is not an excludable self-serving statement. Gibson v. Smith, 422 S.W.2d 321[9-11] (Mo.1968), defines such a statement as “one made by a party in his own interest at some place and time out of court.”

Plaintiff’s last evidentiary complaint stems from defendant’s use of its examining doctor’s deposition. The trial court gave three reasons for admitting the deposition. The doctor had his office in St. Louis County and resided there; at trial time the doctor was practicing medicine; and defendant had told plaintiff and the court at a pre-trial conference he intended to introduce the deposition, with no objection then being voiced.

Plaintiff relies on Rule 57.07(a)(3) and McFadden v. McFadden, 509 S.W.2d 795 (Mo.App.1974). Rule 57.07(a) declares when a deposition may be used at trial. “The deposition of any witness who is not present in court may be used by any party for any purpose if the court finds: . (e) that the witness is a . . . physician and engaged in the discharge of his . professional duty at the time of trial; or . (e) that the witness resides in a county other than the one in which the trial is held; . . . .” Rule 57.07(a)(3).

As to (c), McFadden applies because here, as there, “the record does not indicate that the doctor was engaged in the discharge of his duties on . the day that his deposition was offered to the court.”

As to (e), the record indicates — and plaintiff does not dispute — that the doctor’s residence at the time of deposition was in St. Louis County. The trial court did not abuse its discretion by presuming the doctor still resided outside the City of St. Louis at trial time. See Boyle v. Crimm, 363 Mo. 731, 253 S.W.2d 149[2, 3] (Mo.1952). And, where the existence of a state of things of a continuous nature is established, a rebut-table presumption arises that they continue to exist. Duckworth v. U. S. Fidelity and Guaranty Co., 452 S.W.2d 280[8, 9] (Mo.App.1970). We hold residence is a condition or status of such a continuing nature as to justify this presumption. So, the trial court did not err in admitting the deposition.

Plaintiff claims trial error in three rulings made during closing argument.

First, plaintiff objected to a defense statement concerning her examining doctor: “I suggest that in the interim she [plaintiff] has changed lawyers, and her lawyer has advised her — we need some medical testimony down here, and you better have yourself examined so he can testify as to your physical condition.”

“The field of argument to the jury is broad. Although counsel are not permitted to go beyond the issues or urge theories which the evidence does not justify, they are allowed a wide latitude in discussing the facts and arguing inferences from the evidence, even though inferences drawn may appear to be illogical or erroneous.” Arroyo v. Keller, 433 S.W.2d 584[3-6] (Mo.App.1968). The challenged argument was inferential rather than factual. Overruling plaintiffs objection was within the trial court’s “wide latitude in final argument in discussing facts and arguing inferences . .” Allen v. Bi-State Development Agency, 452 S.W.2d 288[7] (Mo.App.1970).

Plaintiff also claims error in rulings during her closing argument. Her counsel argued that the sudden stop of the cab had caused the drive shaft to fall from the cab, but there was no evidence of causation. The court told counsel, however, it was not restricting argument that the sudden lurch had caused plaintiff’s injuries. Plaintiff has not explained how this limitation prejudiced her case; that was her burden. Redick v. M. B. Thomas Auto Sales, 364 Mo. 1174, 273 S.W.2d 228[13] (1954). We find no abuse of discretion in this ruling.

Also, during plaintiff’s closing argument her counsel said: “Look at Mr. Bryson (the other passenger). Mr. Bryson’s sole purpose for testifying was to help Mr. Halsey (defendant’s driver) — to use his exact words, he wanted to save Mr. Halsey’s job, ... If the company has that type of character that it wants to fire a man because you, the jury, decide that it should pay for the injuries of Mrs. Sabbath . .” When defense counsel objected that Mr. Halsey’s statement was not binding on defendant, the court cautioned plaintiff’s counsel to “stay within reasonable bounds.” Plaintiff’s counsel continued to argue about defendant firing its driver.

It is questionable whether the court made a ruling against plaintiff during this colloquy. And, counsel did touch on the same matter he would have argued had no objection been made. Where a ruling — even assuming it to be in error — is not shown to affect the result of a case, there is no prejudicial error. Dee v. Nachbar, 207 Mo. 680, 106 S.W. 35[9] (Mo.1907), and Long v. Hooker, 443 S.W.2d 178[2-4] (Mo.1969).

Plaintiff finally contends the trial court erred in giving defendant’s converse instruction because it was confusing.

Plaintiff submitted her res ipsa loquitur theory by a modified MAI 31.02(2), hypothesizing that: “Second, the taxicab made a sudden and unusual stop and jerk, and Third, such movement of the taxicab was the direct result of defendant’s negligence . .” Thus, to find for plaintiff the jury had to believe two things: that the cab jerked and the jerk was caused by defendant’s negligence. Defendant wanted to converse each of those elements disjunctively, i. e., for the jury to find for defendant if the cab did not jerk or, even if it did jerk, the defendant was not negligent. To this end, the court gave defendant’s modified MAI 33.02 reading, with our emphasis added: “Your verdict must be for defendant if you do not believe: First, the taxicab made a sudden and unusual stop and jerk, or, Second, if there was a sudden and unusual stop and jerk, such movement of the taxicab was the direct result of defendant’s negligence . . . .”

As held in Young v. Grotsky, 459 S.W.2d 306[1, 2] (Mo.1970), “If the jury believed that either did not occur plaintiff was not entitled to recover.” Applying that principle to our case, if the jury did not believe the cab moved erratically they should find for the defendant or, even if the jury did believe the cab did move erratically, but did not believe defendant was thereby negligent, they should find for the defendant.

Both parties rely on the res ipsa loquitur case of Wims v. Bi-State Development Agency, 484 S.W.2d 323 (Mo.1972). There the defendant’s converse instruction submitted disbelief of two elements, the sudden jerk and that the jerk was the result of defendant’s negligence. Criticizing that conjunctive submission the court said at page 325: “It must be conceded that while the two items in question were consistent in plaintiff’s affirmative submission, when they were conjunctively placed in defendant’s negative converse they became somewhat inconsistent. This for the reason that the first required a disbelief of the fact that there was a sudden stop, and the second submitted a disbelief in defendant’s negligence in causing such a stop.”

Here, defense counsel sought to avoid such criticism. Unlike Wims he did so by substituting the disjunctive word “or” between the two elements and by prefacing the disjunctive element of negligence with the words “if there was a sudden and unusual stop and jerk.” That disjunctive submission distinguishes our case from the conjunctive submission in Wims.

Conceding arguendo that the converse instruction here might be grammatically improved, Wims gives two reasons it was neither erroneous nor prejudicial to plaintiff. First, not erroneous because as Wims declared, courts “should not be hypertechnical in requiring grammatical perfection.” Second, not prejudicial to plaintiff because, as Wims held, if a defendant’s converse instruction is confusing “the jury would have more difficulty in arriving at a verdict for defendant.”

Judgment for defendant affirmed.

DOWD and STEWART, JJ., concur.

      . If so, plaintiff made a res ipsa case. Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459[1] (1948).

      . The grammatical problem could be solved by a simple declaratory sentence that the jury must find for the defendant if it believed the taxicab had not made a sudden and unusual stop and jerk as the direct result of defendant’s negligence. Such an instruction would converse both the challanged elements of plaintiff’s verdict director.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie Lee TUNSTALL, Defendant-Appellant.
    No. 36041.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 4, 1976.
    Huck, Hasten & LaBeaume, James W. Huck, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert H. House, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

■ Defendant appeals the trial court’s dismissal of his Motion for Postconviction Relief without a hearing. Rule 27.26.

We dismiss the appeal because the notice of appeal was not timely filed and thus we have no jurisdiction. Marler v. Hart, 506 S.W.2d 97 (Mo.App.1974). Rule 27.26(a) directs that appeals from the trial court shall be governed by the Rules of Civil Procedure. Rule 27.26(j) provides that an order overruling a motion under this rule is a final judgment for purposes of appeal.

The trial court entered its judgment on September 4, 1973. Under Rules 81.05(a) and 81.04 movant had forty days from September 4, 1973, within which to file his notice of appeal. However, movant’s notice of appeal was not filed until February 26, 1974, nearly four and one-half months late.

Nor did the defendant seek relief under Rule 81.07(a) which permits an appellant under certain conditions to file a notice of appeal within six months from the final judgment if permitted to do so by a special order of the appropriate appellate court.

Faced with this failure to file a timely notice of appeal, we have no jurisdiction to consider this appeal. Accordingly, the appeal is dismissed.

CLEMENS, P. J., and STEWART, J., concur.


text:
    J. M. L., Plaintiff-Appellant, v. C. L., Defendant-Respondent.
    No. 37328.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 4, 1976.

      Charles P. Todt, Susan Hammer, Clayton, for plaintiff-appellant.
    Ellsworth Cundiff, Jr., St. Charles, for defendant-respondent.
   DOWD, Judge.

J. A. L. was born on January 23, 1973. His mother, appellant here, was then and has been at all times since married to the same man. The name of her husband does not appear in the record, but he is the legal and is presumed to be the natural father of the child. The strongest presumption known to the law is that a child born in wedlock is the child of the marriage. Simpson v. Blackburn, 414 S.W.2d 795, 797[3] (Mo.App.1967); Bernheimer v. First Nat’l Bank of Kansas City, 359 Mo. 1119, 1133, 225 S.W.2d 745, 751[10] (banc 1949). The presumption may be rebutted. In re K_W_H_, 477 S.W.2d 433, 436[1] (Mo.App.1972).

No exact date appears in the record, but some time before June 18, 1975, C. L., respondent, brought an action against J. M. L. in the form of a petition to establish his paternity of J. A. L. Appellant’s answer of June 18, 1975, denied that C. L. was the natural father of J. A. L.

Approximately three weeks later a stipulation was signed by appellant and respondent that J. A. L. was the natural son of C. L. On that day, July 7, 1975, the court entered an order establishing C. L. as the natural father. There was no testimony adduced before or after the entry of this order. The order further stipulated that C. L. was to have temporary custody of the child on alternate weekends and was to pay $20.00 per week to J. M. L. for child support.

On August 4, 1975, appellant filed a motion to set aside the order of July 7, 1975 and requested that the case be heard on the merits. The basis for that motion was that appellant signed the stipulation under great emotional stress, that the order was entered without a hearing, that both appellant’s husband as presumptive father of J. A. L. and J. A. L. himself, should have been made parties to the action, and that since the date of the order appellant, her husband and child have undergone blood tests showing that her husband could be the father of J. A. L. The parties are in dispute as to how this motion was disposed of, and the court record is unclear. It is apparent, however, from the subsequent legal actions of appellant that the motion was not granted.

Appellant filed on August 29, 1975, a motion to stay execution of the judgment of paternity and temporary custody, until appeal could be heard. This motion stated that appellant, her child, and her husband were all under stress because of respondent’s exercise of his visitation and custody rights. On September 12,1975, there was a hearing on this motion, and appellant then filed a memorandum advising the court of the error of non-joinder of parties and that the presumption of legitimacy must be rebutted. At the hearing the court granted respondent’s motion to dismiss appellant’s motion to stay, on the ground of lack of jurisdiction.

Six days later appellant filed for a writ of prohibition against the circuit judge that he refrain from dismissing appellant’s motion to stay. The petition for said writ was denied on September 29, 1975.

In her appeal to this court, appellant cites four points of error: 1) that necessary parties were not joined; 2) no notice was given to the presumptive father; 3) the legal presumption of legitimacy was not rebutted; and 4) no guardian ad litem was appointed to protect the child’s interest. We agree with the appellant’s contentions and accordingly reverse the trial court’s judgment.

Both the child and his presumptive father should have been joined as parties. A recent Missouri case discussed whether a child is “bound by a judgment that he is the biological son of a putative father, rather than the biological son of his presumptive father, in any type of action to which he is not a party.” That issue, being sui generis in Missouri, was decided by'examining cases from other jurisdictions. The court held that the child was a necessary party. O_F_L_ v. M_R_R_, 518 S.W.2d 113, 125[11] (Mo.App.1974).

That court also found the child’s mother to be a necessary party. O_F_L_v. M_R_R_, supra, at 127[12], It reached this result by examining Rule 52.04, “Joinder of Persons Needed for Just Adjudication.” Using the same reasoning, we hold the presumptive father to be a necessary party to this action. Without him, “complete relief” cannot be accorded to all the parties, Rule 52.04(a)(1). Also, as presumptive father he “claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest.” Rule 52.04(a)(2). It can hardly be disputed that a presumptive father has an “interest relating to the subject of the action” when the action concerns a young child who was born to his wife during their marriage, and who, according to the uncon-tradicted statements at oral argument, carries his name and has been supported by him.

The “interest” he has in this child would also require that he be given notice of the paternity action or any action attempting to affect any of his rights as presumptive and legal father of J. A. L. This notice is required by the due process clause of the state and federal constitutions. In re Barger, 365 S.W.2d 89, 96[6] (Mo.App.1963); Daugherty v. Nelson, 241 Mo.App. 121, 135, 234 S.W.2d 353, 361-62[14] (1950).

Although the very question here is whether the legal father is in fact the natural father, this does not mean he is to be accorded no rights, such as right to notice, until he proves himself to be the natural father. The burden of proving illegitimacy is on the party asserting it. S_ v. S_, 520 S.W.2d 652, 654[1] (Mo.App.1975); F_ v. F_, 333 S.W.2d 320, 327[10] (Mo.App.1960). The burden is an onerous one, for proof must be “clear and convincing.” F_ v. F_, supra at 327, and “leaving no room for reasonable doubt.” Jackson v. Phalen, 237 Mo. 142, 152, 140 S.W. 879, 882[6] (1911). Otherwise the strong presumption of legitimacy remains unrebutted. The trial court erred in finding for respondent when no evidence was adduced to rebut the presumption of legitimacy.

Likewise under the facts of this case, we believe that a guardian ad litem should have been appointed to protect the interests of the child. Courts have held that failure to appoint a guardian ad litem for minors in personal injury litigation would be grounds to have an unfavorable judgment set aside. McDaniel v. Lovelace, 439 S.W.2d 906, 911[9] (Mo.1969)., And here the child has much more to lose than money. At stake is his status as a legitimate child, as well as his right to be supported by and inherit from his presumptive father. And since we hold that the child was a necessary party, a guardian ad litem should have been appointed to represent him, pursuant to §§ 475.010(2) and 475.090, RSMo 1969. A guardian ad litem is necessary since the litigation purports to make a “binding effect on the child’s status,” i. e., his legitimacy. O_F_L_ v. M_R_R_, supra, at 122. The trial judge should have been put on notice that the child’s interests were not being protected by the mother, as evidenced by her actions. She first denied respondent’s paternity in her answer to his petition, then she admitted his paternity in a signed stipulation, and now she again denies his allegation of paternity and then requests that the issue of paternity be litigated on the merits. Thus a guardian ad litem, and in this case not the child’s mother, should have been appointed by the court.

For the reasons stated herein, the judgment is reversed.

CLEMENS, P. J., and STEWART, J., concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Charles WILLIAMS, Appellant.
    No. 10125.
    Missouri Court of Appeals, Springfield District.
    May 5, 1976.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Lawrence H. Rost, New Madrid, for appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Charles Williams was convicted by a Butler County jury of the first degree robbery of Mrs. Sandra Midkiff and the felonious assault of Norris Pullen, and the trial court ordered consecutive sentences. Illegal search and seizure, a tainted in-court identification, and evidence of a separate crime are assigned as errors. We affirm.

On December 4, 1973, at about 2 o’clock in the afternoon, Mrs, Midkiff was alone in the package liquor store she and her husband operated in Stoddard County. The defendant, a Negro dressed in a yellow shirt and red plaid pants, entered the store and made inquiries about lunch meats. Some conversation ensued between the proprietress and the defendant, and then two other Negro men, identified as the Rosses, entered the store. One of the Rosses was brandishing a pistol. Mrs. Midkiff was beaten, bound with rope, and her eyes and mouth taped. The cash register was rifled, as was Mrs. Midkiff’s purse, and liquor and cigarettes were taken. Mrs. Midkiff heard a gunshot. Before the trio left, a bottle was forcibly inserted into her vagina.

About 2:20 p. m. Norris Pullen arrived at the liquor store. He saw a Buick automobile parked outside the store and noticed the right front fender was missing. As Pullen neared the front door and reached down to pick up a coin from the ground, he was struck on the head and rendered unconscious. Pullen was also shot, bound, and covered with a mattress in the rear part of the store.

About 3 o’clock Herman Maxwell saw the defendant and two other men climb from the Buick near the intersection of Route P and Interstate Highway 55 in New Madrid County. The three men “got the stuff out of the car, cigarettes, and run across the highway and got into a car with another fellow and left.”

Authorities had the Buick towed to New Madrid where an officer of the Missouri State Highway Patrol examined the car about 5 o’clock. He found several bottles of whiskey on the floorboard and underneath a seat and found a check stub with Mr. Midkiff’s name on it on the rear floorboard. The officer also removed a portion of the floor mat from the vehicle.

Deputy Sheriff Dees went to the home of defendant’s mother in New Madrid that night and, after being granted permission to look for clothing worn by the defendant during the day, found and took into possession a yellow shirt and red plaid pants.

It is clear from the transcript that the defendant and his companions abandoned the Buick automobile, and the subsequent search and seizure of the whiskey bottles and check stub was not rendered unconstitutional by lack of a search warrant. State v. Achter, 512 S.W.2d 894 (Mo.App.1974). Furthermore, defendant did not present any evidence to demonstrate his standing to assert the illegality of the search and seizure. There was no evidence defendant was the owner or had any posses-sory interest in the automobile. State v. Damico, 513 S.W.2d 351 (Mo.1974); State v. Hornbeck, 492 S.W.2d 802 (Mo.1973). Defendant’s point is without merit.

We do not agree Mrs. Midkiff’s in-court identification of the defendant was tainted by an earlier impermissible line-up identification. The record demonstrates that Mrs. Midkiff had ample opportunity to closely observe the defendant during the period prior to and during the initial stages of the robbery. Her in-court identification of the defendant as one of the robbers had a source independent of the pretrial lineup, assuming that procedure was impermissibly suggestive. We find no error. State v. Ross, 502 S.W.2d 241 (Mo.1973).

The defendant’s complaint regarding the admissibility of his shirt and trousers must fall. Without contradiction Officer Dees stated the defendant’s mother gave him permission to look around her house for the articles of clothing. The officer, without objection, testified as to the mother’s consent to search her dwelling. On the record before us we find defendant’s mother had authority to consent to the search, and the trial court did not err in admitting the articles of clothing. State v. Pruitt, 479 S.W.2d 785 (Mo. banc 1972).

During the course of the robbery, the bottle was forcibly inserted into Mrs. Midkiff’s body. The defendant contends this act constituted a separate and distinct crime of sexual assault and the testimony of the victim concerning the event was reversible error. We disagree. Here, the circumstances are such that the deplorable act mentioned formed a part of the res gestae of the robbery and was inseparable from that crime. “When a defendant in the course of the perpetration of one crime commits another, the state is not required to nicely sift and separate the evidence and exclude the testimony, tending to prove the crime for which he is not on trial, when it forms a part of the res gestae of the crime charged.” State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 880 (1931). See also State v. White, 301 S.W.2d 827 (Mo.1957); State v. Cox, 508 S.W.2d 716 (Mo.App.1974).

The judgment is affirmed.

All concur.

      . We also observe that defendant did not move to suppress the whiskey bottles, check stub, floor mat or shirt and pants as products of unlawful searches and seizures. State v. Caffey, 457 S.W.2d 657 (Mo.1970); State v. Fields, 442 S.W.2d 30 (Mo.1969).


text:
    STATE of Missouri, Respondent, v. Robert E. DOEPKE, Appellant.
    No. 10052.
    Missouri Court of Appeals, Springfield District.
    May 10, 1976.
    Motion for Rehearing to Transfer to Supreme Court Denied May 21, 1976.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    O. J. Gibson, Jr., Downs, Johnson & Gibson, Cape Girardeau, for appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Robert E. Doepke was convicted by a Bollinger County jury of burglary and stealing and duly sentenced.

We have read the transcript, the briefs of the parties, and the authorities cited.

The evidence is sufficient to support the verdicts. Accomplices of defendant were witnesses for the state and their testimony clearly implicated the defendant in a drug theft from a Lutesville drug store.

We have carefully reviewed defendant’s six points of alleged error and find no error of law.

The circumstances of the alleged improper confrontation and identification of defendant after his arrest was first elicited by defendant on cross-examination. State v. Miller, 501 S.W.2d 547 (Mo.App.1973).

Defendant was not entitled to reports of psychiatric examinations of his accomplices. U. S. v. Evans, 454 F.2d 813 (8th Cir. 1972).

We find no abuse of discretion in denying defendant’s motion to quash the jury panel because the prosecuting attorney was known to nearly all panel members.

We find no prejudice to defendant in the inability of the judge to locate a letter written to him by one of the accomplices. Defendant was aware of the contents of the letter and cross-examined the accomplice about its contents. State v. Green, 476 S.W.2d 567 (Mo.1972).

The giving of MAI-CR 1.10, the “hammer” instruction, after the jury had been deliberating two hours and twenty minutes was discretionary with the trial court and we find no abuse of discretion. State v. Crawley, 478 S.W.2d 344 (Mo.1972).

No objection was made to an accomplice’s testimony of his prior inconsistent statement at defendant’s “revocation hearing” and thus this point is not preserved for our review. State v. Simmons, 500 S.W.2d 325 (Mo.App.1973).

A detailed opinion would have no prece-dential value.

Judgment affirmed pursuant to Rule 84.-16(b).

All concur.


author: PER CURIAM.

text:
    Raymond W. MURPHY, Appellant, v. Dorothy Foster MURPHY, Respondent.
    No. KCD 27767.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      John C. Russell, Law Offices of Raytown, Dale Beal, Kansas City, for appellant.
    Robert B. Wurdack, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   PER CURIAM.

The appellant husband brought an action for the dissolution of marriage alleged to be irretrievably broken. The petition conceded the fitness of the wife for the custody of the three minor children born to the parties. The answer of the respondent wife denied that the marriage was irretrievably broken but sought no affirmative relief. In the course of the proceeding the respondent moved for temporary orders of maintenance, support money, attorney fee and other relief in the form sanctioned by § 452.-315.

It is apparent from the record brought up on appeal that the court did not rule the motion for temporary orders. The final judgment entered denied dissolution, but granted custody of the three minor children to the respondent and ordered the appellant father to pay $100 per month per child, maintenance to the respondent of $150 per month and an attorney fee of $750.

On this appeal, the husband contends error in that (1) the affirmative relief granted the wife was not requested, and thus beyond the jurisdiction of the court to grant (2) that the denial of the dissolution was an abuse of discretion, and (3) the grant of the allowances was excessive and thus an abuse of discretion.

The requirements of pleading under the Divorce Reform Act [§§ 452.300 to 452.-415] enumerated in § 452.310 include a statement of the relief sought. The petition for dissolution made no request for the awards actually entered, but there can be no doubt that the issues of child support and maintenance were not only tried with the express consent of the appellant husband but at his initiative. The husband answered the direct examination of his counsel:

Q. Okay. All right. And you are asking the Court for a dissolution of the marriage?
A. Yes, sir, I am.
Q. And the custody of the children to your wife, and that the Court determine the child support that you are to pay?
A. Yes, sir.
Q. All right. And you are not wanting to pay any alimony or maintenance to her, is that correct?
A. Right, sir.

The wife made riposte to these requests for judgment by testimony that her needs were for allowances of $450 per month for the support of the children and $200 as maintenance. She testified that she had borrowed $750 to pay her attorney and that she was asking the court for an award in that sum to repay the debt. The husband made no objection to these counter-requests. Our civil procedure recognizes that when issues not raised by the pleadings are tried by consent of the parties, they are treated as if they had been pleaded, and the failure to amend to conform to the proof, if not formally requested and made, is presumed and will not affect the trial of the issues. Rule 55.33; Rogers v. Rogers, 430 S.W.2d 305, 308 (Mo.App.1968).

The second point, that the court abused a discretion in the denial of the dissolution, is equally without merit. The evidence of the parties on this issue was countervailing. Each accused the other as the cause of the domestic infelicity. The wife insisted, withal, that despite his immediate shortcomings, the marriage was not broken beyond repair, and the court agreed. We defer to the opportunity of the court to adjudge the credibility of the witnesses. Rule 73.01(3)(b).

The third point on appeal is that the allowances were excessive. The evidence on this issue was not disputed and the question is merely whether the court abused its discretion in the assessment of the awards. Larison v. Larison, 524 S.W.2d 159, 161[4-10] (Mo.App.1975). The husband testified to earnings of $800 per month and expenses of about $350 per month. The wife was unemployed and was fit only as a waitress which, when so employed, paid wages of about $60 per week. According to her testimony, her needs and those of the three children amounted to $650 per month. The entry of judgment for monthly support money of $100 for each child and $150 maintenance for the wife was reasonable, both as to the needs and the ability to fulfill them, and comports with the provisions of the Act.

The judgment of the trial court is supported by the evidence; an extended opinion would have no precedential value. Accordingly, the judgment is affirmed under Rule 84.16(b).

      . The question whether a grant of custody, money for support, maintenance and attorney fee may be allowed as incidents of a petition for dissolution of marriage where the dissolution has been denied was not raised and is not before us.


author: McDONALD, Chief Justice.

text:
    Norman PRIEST, Appellant, v. Glenna PRIEST (Calahan), Appellee.
    No. 5492.
    Court of Civil Appeals of Texas, Waco.
    May 20, 1976.
    John R. MacLean, C. C. (Kit) Cooke, Cle-burne, for appellant.
    Hugh B. Higgins, Cleburne, for appellee.
   OPINION

McDONALD, Chief Justice.

This case involves the custody of three minor children, Becky Priest age 16, Gwendolyn Priest age 15, and Norman Priest age 12.

Norman Priest and Glenna Priest Cala-han, parents of the children were divorced in Johnson County in 1968. The judgment in such case awarded the children to Norman Priest subject to visitation rights by the mother Glenna Priest.

Thereafter, Norman Priest remarried and removed with the children to the state of Kansas. Glenna Priest likewise remarried. In 1973 Glenna Priest Calahan filed a proceeding in Kansas against Norman Priest, seeking to change custody of the children to herself. The Kansas Court after hearing, rendered judgment continuing custody of the children in Norman Priest, subject to visitation rights with the mother. The children visited with their mother in Texas in the fall of 1974, and did not return to their father in Kansas, after completion of this visitation.

On September 12, 1974 Norman Priest filed petition for a Writ of Habeas Corpus against Glenna Priest Calahan seeking possession of his children by virtue of his prior court judgment. This case is number 732-74. The trial court heard testimony from the 3 children in his chambers, but heard no other witnesses. The court rendered judgment on September 17, 1974, denying relief sought by Norman Priest; “provided however, if appropriate proceedings have not been instituted by Glenna Calahan within 30 days from date of entry of this judgment the relief sought by Petitioner shall be granted.”

On September 19, 1973 Glenna Calahan filed petition against Norman Priest, alleging a change of conditions, and seeking to be appointed managing conservator of the 3 children. This case is number 8068-B.

Trial was to a jury which found that there had been a material change of circumstances since the date of the prior custody decree, and that it would now be in the best interest of the 3 children that their custody be changed from their father to their mother.

The trial court on April 18,1975 rendered judgment on such verdict granting Glenna Calahan custody of the 3 children, and appointing her managing conservator of the children. Norman Priest was granted visitation privileges, and required to pay child support, until each child attained the age of 18.

Norman Priest filed appeal bond on May 16, 1975 purporting to appeal from the “temporary or interlocutory order” in cause 732-74, rendered on September 17, 1974, and from the judgment in cause 8068-B rendered April 18, 1975.

Norman Priest has caused transcript of cause 732-74 and 8068-B to be filed in this court, as well as the Statement of Facts of testimony in cause 732-74 before the trial judge, and Statement of Facts in cause 8068-B.

Norman Priest appeals on 3 points:

1) The trial court erred in not granting Appellant’s Writ of Habeas Corpus on September 13, 1974, in that he was entitled to custody of the children under a valid judgment.
2) The trial court erred in not granting the Writ of Habeas Corpus on September 13,1974 because there was no evidence to show there was a serious immediate question concerning the welfare of the children.
3) The trial court erred in appointing an attorney ad litem to represent the minor children, and allowing the attorney ad litem to make peremptory strikes, question the witnesses, and argue to the jury.

We think the September 17, 1974 judgment in cause 732-74 denying Petitioner Norman Priest custody of his three children, which he was entitled to under the judgment of the District Court of Johnson County,'and the judgment of the Kansas Court, was error. Lugo v. Wade, CCA (Tex.Civ.App., Waco) NWH, 534 S.W.2d 726. We think that such was a final judgment which was appealable. But since Norman Priest did not appeal, and the time for appeal has past, the judgment has become final.

There is no attack on the judgment in cause 8068-B rendered on April 18, 1975.

The trial court did not err in appointing an attorney ad litem to represent the children. Section 11.10 Texas Family Code. No harm or violation of any Statute has been shown in allowing the attorney ad litem to make peremptory strikes, question the witnesses and argue to the jury.

All appellant’s points are overruled.

Appeal in cause 732-74 is dismissed.

Judgment in cause 8068-B is affirmed.


author: DIES, Chief Justice.

text:
    UNION OIL COMPANY OF CALIFORNIA, Appellant, v. E. J. RICHARD, Appellee.
    No. 7749
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 26, 1975.
    Rehearing Granted Dec. 31, 1975.
    Rehearing Denied Jan. 22, 1976.

      Robert M. Julian, Houston, for appellant.
    Harold J. Eisenman, Beaumont, for ap-pellee.
   DIES, Chief Justice.

Plaintiff below, E. J. Richard, brought suit against defendant, Union Oil Company of California — under the Jones Act, 46 U.S. C.A. § 688 at 21 (1975) — alleging injury as a seaman aboard the tanker SS DAVID D. IRWIN. Trial was to a jury which found for plaintiff and from which defendant— appellant — appeals. The parties will be referred to as they were below.

Defendant’s first point complains of the trial court’s refusal to give certain instructions in his charge. These were: defendant is not obligated to provide an accident-proof ship the mere occurrence of an accident does not raise any inference or presumption of negligence or unseaworthiness; defendant’s obligation was only to furnish a vessel and equipment reasonably fit for its intended use; an undiscoverable amount of oil on a grating would not automatically create an unseaworthy condition if such was normal and necessary; that it is a fact of common knowledge that in almost every occupation aboard ship there is some inherent and unavoidable risk; that a corporation is entitled to a fair trial on the same basis as a private individual; and that plaintiff must prove the causal relationship between the incidents of February 4 and February 7, 1971, and his present complaints, concerning which the evidence must be more than speculation or conjecture.

The federal act referred to above prescribes the substantive rights of the parties in cases under the Act, but when such cases are filed in state courts, they are generally to be tried in accordance with state’s own rule of civil procedure. Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868 (Tex.1973).

While some of these requested instructions are expressions of substantive law we have been cited no Federal or Texas case requiring their instruction to the jury.

Tex.R.Civ.P. 277 states:

“In submitting the case, the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict.”

This rule gives the trial court considerable discretion in deciding what instructions are necessary and proper in submitting issue to the jury. Mobil Chemical Company v. Bell, 517 S.W.2d 245 (Tex.1974); Hailes v. Gentry, 520 S.W.2d 555 (Tex.Civ.App.-El Paso 1975, no writ). See also Braswell, Recent Developments under Rule 277,10 Tex Trial Law.F. 9 (October-December 1975).

See First State Bank & Trust Co. of Edinburg v. George, 519 S.W.2d 198 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.). A collecting bank as holder of checks on which payment was stopped, brought suit against the drawers. Bank requested the following instruction:

“You are instructed as a matter of law that the bank was not required to charge back any of the checks at any particular time, or at all, and that any failure to charge back a check, or to charge the cheek in a particular manner, does not affect the bank’s right of action against the defendants.” (519 S.W.2d 206)

The appellate court said, “[S]uch instruction is not necessary to aid the jury in their factual determinations.” (519 S.W.2d 207). The only function of an explanatory instruction in the charge is to aid and assist the jury in answering issues submitted. G. Hodges, Special Issue Submission in Texas § 10 at 29-30 (1959); R. McDonald, 3 Texas Civil Practice § 12.14.2 (1970); Deviney v. McLendon, 496 S.W.2d 161 (Tex.Civ.App.-Beaumont 1973, writ ref’d n. r. e.); Levermann v. Cartall, 393 S.W.2d 931 (Tex.Civ.App.-San Antonio 1965, writ ref’d n. r. e.). The only requirement to be observed is that the trial court must give definitions of legal and other technical terms. “Anything else, however interesting, or, indeed, however relevant to the case in general—which does not aid the jury in answering the issues must be excluded.” G. Hodges, Special Issue Submission in Texas § 8 at 25 (1959). (Emphasis supplied.)

Here the Court inquired if plaintiff sustained injuries as alleged, whether defendant failed to provide plaintiff with a reasonably safe place to work (with definition of this term), whether this failure was a producing cause of the alleged injuries, whether the deck where plaintiff slipped was reasonably fit for its intended use; followed by issues of contributory negligence. So, there was no need for the Court to submit these requested instructions, since none of them could aid the jury in answering the issues. This point is overruled.

Defendant’s next point is “[t]he District Court Erred in Not Granting Judgment N.O.V. or a New Trial for Plaintiff’s Failure to Prove Liability or Causal Connection Between the Incidents of February 3 and February 7, 1971, and his Present Medical Complaints.”

Plaintiff, a fifty-three year old Third Officer, had been in the Merchant Marines since World War II. He had no previous injuries. He testified that on February 4, 1971, he slipped on an iced deck that should have been sanded, causing leg numbness. Three days later he slipped again on an oily or greasy grating. This accident was witnessed. It was the responsibility of the chief mate and boatswain to hose down this area and keep it clean. Plaintiff experienced pain and numbness after these accidents. In June 1973 his back was operated on for the first time. In March 1974 it was reoperated on. Thereafter, he tried a ten-. day trip, but he had to leave the ship because, “It about eat me up.” That was his only work between the second operation and the trial in 1975.

Just prior to the trial, a procedure was performed on his back (rhizolysis) to deaden some nerves and relieve the pain. A neurosurgeon expressed the opinion plaintiff could not perform the functions of a seaman, and that nerve root adhesions will become worse in the future, and he attributed his symptoms and complaints to the trauma of his accident.

We believe this summarized evidence factually supports the jury’s finding of causation, and we overrule this point of error.

Defendant’s next point complains of testimony as to the cost of purchasing an annuity. The witness Kelly, a life insurance underwriter, gave testimony of the cost of an annuity of $20,000 per year, assuming the purchaser to be fifty-one years old with a life expectancy of 28.7 years. This testimony presents no error. Texas & New Orleans Railroad Company v. Jacks, 306 S.W.2d 790, 796 (Tex.Civ.App.-Beaumont 1957, writ ref’d n. r. e.). See also Louisiana & Arkansas Railway Company v. Mullins, 326 S.W.2d 263 (Tex.Civ.App.-Texarkana 1959, writ ref’d n. r. e.) [cert. denied, 361 U.S. 966, 80 S.Ct. 596, 4 L.Ed.2d 546 (1960)].

Defendant has a point that complains of the jury’s finding of $20,000 for future medical expenses as being supported by no evidence or insufficient evidence.

One of the physicians who operated on plaintiff testified his cost of medical treatment for the last few months would reflect his future requirements. Plaintiff’s medical bills from February 1974 until the time of the physician’s testimony was over $1,000. This amount projected through his life span expectancy would be double what the jury awarded. Another physician opined plaintiff may need further surgery; plaintiff should be seen every three months at $25 per visit; plaintiff should have periodic x-rays at $22 and physical therapy at $18 each. We believe the jury’s finding is factually supported and overrule this point.

Defendant has other contentions which we find without merit. All points not discussed herein are overruled.

The judgment of the trial court is AFFIRMED.

On The Motion for Rehearing

Appellant urges the evidence does not support the $20,000 award for future medical. We find this contention is good. Dr. Gol’s testimony does not support this amount. Dr. Baron stated he would need to see plaintiff four times per year at $25 per visit and would require x-rays twice a year at $22 each, for a total of $144 per year. With plaintiff’s life expectancy being 28.7 years, these expenses amount to $4,133. In addition to this treatment, the physician also testified that plaintiff would need up to 24 treatments of therapy at $18 per treatment, totaling $432, making the sum of plaintiff’s future medical $4,565.

If appellee, E. J. Richard, shall file a remittitur of $15,435 within ten (10) days from date this cause will be affirmed; otherwise, it is reversed and remanded.

       See the following: Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732 (1916); Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972); Noack v. American Steamship Company, 491 F.2d 937 (6th Cir. 1974); Walker v. Lykes Bros. S.S. Co., 193 F.2d 772 (2d Cir. 1952); Dixon v. United States, 219 F.2d 10 (2d Cir. 1955).


author: DENTON, Justice.

text:
    HOHENBERG BROTHERS COMPANY, Petitioner, v. GEORGE E. GIBBONS AND COMPANY et al., Respondents.
    No. B-5563.
    Supreme Court of Texas.
    May 12, 1976.
    McDonald, Spann & Smith, Bob J. Spann, Corpus Christi, for petitioner.
    Harris, Cook, Browning & Barker, F. Edward Barker, Corpus Christi, for respondents.
   DENTON, Justice.

Hohenberg Brothers Company brought suit for damages against George E. Gibbons and Company for breach of contract for failure to deliver cotton. The trial court, sitting without a jury, rendered a take nothing judgment against the plaintiffs. The court of civil appeals affirmed, holding that the contract called for certain conditions precedent to defendant’s liability and that the occurrence of such conditions had not been proven. 526 S.W.2d 570. We reverse the judgments of the courts below and remand the cause to the trial court.

George E. Gibbons & Company was a brokerage firm that purchased future cotton production directly from the farmer and resold it to cotton merchants such as Ho-henberg Brothers. It was the custom of Mr. Gibbons, or one of his staff, to telephone cotton farmers and negotiate an oral understanding whereby Gibbons agreed to purchase that farmer’s cotton production for a certain number of “points” over the government loan price. Gibbons followed up these oral agreements by delivering to the farmer, for his signature and approval, a written contract that merged the oral agreement into binding and final form.

In April of 1973, Gibbons and T. A. Set-liffe reached an oral agreement whereby Gibbons was to purchase 295 acres of future cotton production from Setliffe at a price of 1600 points over the 1973 government loan price. Mr. Gibbons immediately forwarded to Mr. Setliffe a written contract which contained these terms. Following this oral agreement, and before he had received a written confirmation from Setliffe, Gibbons negotiated a resale of the 295 acres of cotton to our petitioner, Hohenberg Brothers Company, at a price of 1650 points over the 1973 government loan price. This agreement between Gibbons and Hohenberg Brothers Company was the subject of a written contract signed and approved by both parties. This contract, which contains provisions as to the number of acres of cotton, price, name of farmer, shipment, etc., is the subject of the instant suit.

In June of 1973, Mr. George Gibbons died of a heart attack. Up until the time of his death Gibbons unsuccessfully tried to get Setliffe to sign the written contract confirming the terms of their oral agreement. Subsequent to Mr. Gibbons death, the executor of his estate, the Corpus Christi State National Bank, also unsuccessfully attempted to get a written confirmation from Set-liffe. Setliffe steadfastly refused to deliver the cotton or sign an agreement under the terms being offered in the Gibbons’ contract.

In September of 1973, the Corpus Christi State National Bank informed Hohenberg Brothers that Setliffe did not intend to deliver the cotton that Gibbons had contracted to sell to Hohenberg Brothers. In November of 1973, Hohenberg Brothers brought this suit against Gibbons and the Estate of George E. Gibbons alleging a breach of contract because of Gibbons’ failure to deliver the 295 acres of Setliffe cotton. No attempt was made by either party to bring Setliffe into this lawsuit.

In its findings of fact and conclusions of law, the trial court held that the terms of the Gibbons-Hohenberg contract contemplated the occurrence of certain conditions precedent before liability arose for non-delivery of the cotton to Hohenberg. Finding that these conditions precedent had not occurred the trial court rendered a take nothing judgment against the plaintiff Hohen-berg. The court of civil appeals affirmed, holding that Gibbons had no duty to perform, i. e. deliver the cotton to Hohenberg, until the conditions precedent had occurred. The court of civil appeals, however, did not reach appellant/petitioner’s points dealing with trial court error on the issue of damages.

The contract terms as to “Shipment” are as follows:

“AS SOON AS COMPRESS WAREHOUSE RECEIPTS, SAMPLES AND SMITH-DOXEY CLASSIFICATION CARDS ARE DELIVERED TO GEO. E. GIBBONS & CO., THEY WILL BE INVOICED TO YOU.”

It is this provision that the Gibbons’ estate contends is a condition precedent to his liability. Gibbons argues that there is no liability unless and until the “Shipment” clause instruments have been delivered to him. The court of civil appeals held that Gibbons’ receipt of the compress warehouse receipts, samples and Smith-Doxey classification cards from Setliffe were conditions precedent to liability and that since such were never delivered to Gibbons that he had no duty to deliver the cotton to Hohen-berg Brothers.

A condition precedent may be either a condition to the formation of a contract or to an obligation to perform an existing agreement. Conditions may, therefore, relate either to the formation of contracts or to liability under them. Perry v. Little, 377 S.W.2d 765 (Tex.Civ.App., Tyler 1964, writ ref’d n. r. e.); Reinert v. Lawson, 113 S.W.2d 293 (Tex.Civ.App., Waco 1938, no writ). Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty. Burns v. American Nat. Ins. Co., 280 S.W. 762 (Tex.Comm’n App.1926, jdgmt. adopted); Perry v. Little, supra; Cozby v. Edwards, 203 S.W.2d 569 (Tex.Civ.App., Fort Worth 1974, writ ref’d n. r. e.); Toland v. Kaliff, 435 S.W.2d 260 (Tex.Civ.App., San Antonio 1968, no writ); Restatement of Contracts § 250 (1932). While no particular words are necessary for the existence of a condition, such terms as “if”, “provided that”, “on condition that”, or some other phrase that conditions performance, usually connote an intent for a condition rather than a promise. In the absence of such a limiting clause, whether a certain contractual provision is a condition, rather than a promise, must be gathered from the contract as a whole and from the intent of the parties. Citizens National Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941).

However, where the intent of the parties is doubtful or where a condition would impose an absurd or impossible result then the agreement will be interpreted as creating a covenant rather than a condition. Citizens National Bank in Abilene v. Texas P. Ry. Co., supra; Phillips v. Western Union Tel. Co., 95 Tex. 638, 69 S.W. 63 (1902). This Court has on numerous occasions discussed the nature of conditions and covenants and as a general rule has noted that, “Because of their harshness in operation, conditions are not favorites of the law.” Sirtex Oil Industries, Inc. v. Erigan, 403 S.W.2d 784 (Tex.1966). The rule, as announced in Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566 (1949), is that:

“Since forfeitures are not favored, courts are inclined to construe the provisions in a contract as covenants rather than as conditions. If the terms of a contract are fairly susceptible of an interpretation which will prevent a forfeiture, they will be so construed.”

The Sales Confirmation Contract, as to the 295 acres of Setliffe cotton, between Gibbons and Hohenberg Brothers Company was prepared by George E. Gibbons & Company. In order to determine whether these parties intended that the “Shipment” clause be a condition precedent to Gibbons’ liability it is necessary to construe the contract as a whole. The provisions of said contract are as follows:

"SALES CONFIRMATION Geo. E. Gibbons & Company COTTON
"Hohenberg Bros. Co.
Memphis, Tenn.
"We confirm the following sale through Mr. Duggan 0024
"Date 4/30/73 (Conf. by phone 4/23/73)
"Quantity THE ENTIRE PRODUCTION ON 295 ACRES OF LINT COTTON PRODUCED, GATHERED, AND GINNED BY SEPTEMBER 30, 1973, THAT IS ELIGIBLE FOR THE 1973 GOVERNMENT LOAN, SMITH-DOXEY CLASSIFICATION, ON THE BELOW LISTED FARMS.
"Quality ALL GRADES & STAPLES ELIGIBLE FOR THE 1973 GOVERNMENT LOAN. MICRONAIRE 3.3 AND BALES WITH MICRONAIRE BELOW 3.3 WILL BE DISCOUNTED ACCORDING TO THE 1973 GOVERNMENT DISCOUNTS FOR MICRONAIRE. BALES WITH CLASSIFICATION SHOWING BARK OR GRASS ON SMITH-DOXEY CARD TO BE DISCOUNTED ACCORDING TO THE 1973 GOVT. DISCOUNTS FOR BARK OR GRASS.
"Price 1650 POINTS OVER THE 1973 GOVERNMENT LOAN PRICE ON ALL ELIGIBLE GRADES & STAPLES. SMITH-DOXEY CLASSIFICATION.
"Terms FOB COMPRESSES, CORPUS CHRISTI, TEXAS COMPRESS WAREHOUSE RECEIPT NET WEIGHTS. TCA AND CC COTTON EXCHANGE RULES.
"Destination
"Shipment AS SOON AS COMPRESS WAREHOUSE RECEIPTS, SAMPLES AND SMITH-DOXEY CLASSIFICATION CARDS ARE DELIVERED TO GEO. E. GIBBONS & CO., THEY WILL BE INVOICED TO YOU.
"Reimbursement BY OUR AT SIGHT DRAFT THRU A BANK WHICH IS TO BE NAMED BY YOU AS SOON AS POSSIBLE. BANK:_
"Producer T. A. Setliff 295 acres"

When these provisions are read together it is clear that the parties did not intend for the delivery of the warehouse receipts, samples and Smith-Doxey cards to be conditions precedent to Gibbons’ liability. The “Shipment” clause is merely descriptive of the delivery of those instruments to Ho-henberg and does not condition Gibbons’ duty to deliver the cotton.

The “Quantity” clause of the contract clearly states that Hohenberg is agreeing to purchase all of the cotton production on the Setliffe farm that is “eligible for the 1973 government loan, Smith-Doxey classification.” The “Price” clause shows that the price to be paid for the cotton was 1650 points over the government loan price. The “Quality” clause indicates that the Smith-Doxey classification cards are necessary to determine whether the price paid was to be discounted because of the existence of bark and grass in the bales. Therefore, the instruments listed in the “Shipment” clause were related directly to the price that Ho-henberg was to pay Gibbons for the Setliffe cotton. The receipt of these instruments by Gibbons was not a condition precedent to Gibbons’ liability, but delivery of said instruments to Hohenberg was a condition precedent to Hohenberg’s duty to make payment.

It is clear that a contract was made whereby Gibbons agreed to furnish Hohen-berg with the 295 acres of Setliffe cotton. Gibbons’ ability to reach a binding agreement with Setliffe, and thereby obtain the instruments and samples, was not a condition to Gibbons’ promise to deliver the cotton. At no time has Gibbons argued that it was impossible for him to buy the Setliffe cotton and thereby honor his contract with Hohenberg Brothers. Gibbons contends that he merely could not obtain the cotton at the price which he originally anticipated and therefore is not liable regardless of the fact that the cotton was available to him at a higher price. Gibbons’ argument is that he is not liable unless he has received the “Shipment” instruments and samples, and since he has not received these he has no duty to deliver the cotton to Hohenberg Brothers. Gibbons’ failure to obtain and deliver the cotton and appropriate instruments to Hohenberg cannot be said to be a defense to the contract.

The judgments of the courts below are reversed and the cause is remanded to the trial court for a new trial.