author: FLANIGAN, Judge.

text:
    TRAVELERS INDEMNITY COMPANY, Plaintiff-Respondent, v. Robert DAVIS, Defendant-Appellant.
    No. 10036.
    Missouri Court of Appeals, Springfield District.
    May 6, 1976.
    Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for defendant-appellant.
    G. H. Terando, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for plaintiff-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Replevin. The trial court, sitting without a jury, found for plaintiff. Defendant, on this appeal, makes the single assertion that the evidence is insufficient to support the judgment. The appeal has no merit and the judgment, with a modification to be mentioned, is affirmed.

The petition alleged that plaintiff was the owner of three 1973 International trucks, “more specifically described as follows:

A. 1973 International Truck, vehicle number 25947CGA24083. Unit number 2002;
B. 1973 International Truck, vehicle number 25947CYB13643, Unit Number 2088;
C. 1973 International Truck, vehicle number 25947CGA24087, Unit number 2006.”

The petition further alleged: On April 20, 1974, “said vehicles were stolen by a party or parties unknown; the defendant has now in his custody, possession and control a vehicle that was built from parts taken from some or all of the vehicles stolen from plaintiff and heretofore identified.” The petition further alleged the entitlement of plaintiff to possession of the composite vehicle and its wrongful detention by defendant, together with other matters required to be alleged by Rule 99.01.

The prayer of the petition sought a judgment transferring possession of the composite vehicle to plaintiff.

Defendant’s answer was a general denial.

Defendant particularizes his attack upon the sufficiency of the evidence by making three claims. First, there was no substantial evidence that the vehicle in defendant’s possession is a composite of “two or more of the vehicles described” in plaintiff’s certificates of title. Apparently this is a reference to the fact that the composite vehicle does not bear a number matching the “motor or vehicle identification number” shown on any of the three certificates of title. Second, “all of the evidence on this point was circumstantial.” Third, the evidence, being circumstantial, is insufficient because it requires resort to guesswork or speculation and does not have a tendency “to exclude every other reasonable conclusion but the one desired.” In support of the third particular, defendant relies on language in Shepard v. Ford Motor Co., 457 S.W.2d 255, 259[4] (Mo.App.1970), a case having no factual similarity.

This court must review this non-jury case upon both the law and the evidence as in suits of an equitable nature and give due regard to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01. The judgment of the trial court will be sustained “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976, No. 59167). The power to set aside the judgment on the ground that it is against the weight of the evidence should be exercised “with caution and with a firm belief that the decree or judgment is wrong.” Murphy, at p. 32.

The evidence to be reviewed came only from plaintiff’s witnesses because defendant offered none.

At the time of the larceny, the trucks were owned by Hudgins Truck Rental, Inc., plaintiff’s assignor. Ron Skinner, assistant maintenance director for Hudgins, identified the three title certificates. Hud-gins gave the three trucks their respective unit numbers, including unit number 2006. Skinner had worked on each of the three trucks about five times and had inspected them about fifteen times. “It is my job to go out and physically go over the trucks.” After this litigation was instituted Skinner examined the vehicle in defendant’s possession, the examination taking an hour and a half.

The following testimony was elicited, without objection, from Skinner:

“Q. Can you identify the vehicle that is in the defendant’s possession?
A. Yes, sir.
Q. And what is your identification of that vehicle?
A. It is a composite of the three trucks that came from Houston.
Q. The three trucks, which three trucks do you mean?
A. 2006, 2002 and 2088.”

Skinner also testified that Hudgins made certain alterations on its trucks and that the composite truck bore unmistakable evidence that it has been so altered. This evidence included marks on the side of the cab where a bulb kit had been mounted, holes where a fire extinguisher had been mounted, the imprint of its bracket, holes in the grill where “winter fronts had been installed,” and holes in the dashboard where a stereo had been mounted by Skinner himself.

Skinner testified that the “Southland” number of unit 2006 was 426153 and that residue on the left door showed a number had previously been affixed there, the last digit of which was 3.

Behind the driver’s seat was found a “service sticker” which bore the date 3-28-73. Inserted in the space on the sticker calling for “equipment number” were the handwritten numerals 2006. According to Skinner, it was the practice of Hudgins to put such stickers behind the driver’s seat.

On cross-examination, Skinner testified that Hudgins was probably the only truck line that mounted bulb kits “in that place.” Also certain weld marks on the frame, found on Hudgins trucks and on the composite truck, were uncommon. “We are probably the only ones that do that.”

Richard Albrecht, an auto damage appraiser with twenty years “familiarity with trucks,” examined the composite vehicle twice. On his first examination “under the paint scheme that is presently on the truck, the reflection of number 2006 on the left rear cab corner” was visible. An identification number on the left frame rail was stamped over a small area “that had evidently been ground or filed down” and the numbers were “out of position and irregular.” “There should have been at least one more prefix to the number.” The number Albrecht saw did not match any of those shown on the title certificates.

Sgt. N. F. Mobley of the highway patrol examined the composite truck prior to the lawsuit and it was he who found the service sticker behind the driver’s seat.

Although the trial court was not requested to make findings of fact, and did not do so, this court agrees with counsel for plaintiff that the foregoing evidence justified the finding that the composite truck “was primarily unit 2006,” and that the record lends support, whether needed or not, to Skinner’s opinion that it “is a composite of the three trucks.”

“Replevin is a proceeding by which the owner or one who has a general or special property in the chattel taken or detained seeks to recover possession of that specific chattel. . . . ” 66 Am.Jur.2d Replevin § 2, p. 838 (Emphasis added). Rule 99.01 provides in part, “If the plaintiff claim in his petition the possession of specific personal property . . . .” (Emphasis added). “While certainty in the description of the property is required in replevin, this rule does not require greater certainty of description than the nature of the property reasonably admits.” 66 Am.Jur.2d Replevin § 80, p. 885.

In replevin actions seeking the recovery of stolen automobiles, evidence consisting of marks, scratches, or other peculiarities has been held sufficient to identify the vehicle in the possession of the defendant as being that to which plaintiff was entitled. Wald v. Auto Salv. & Exch. Co., 190 Iowa 11, 179 N.W. 856 (1920); General Exch. Ins. Corp. v. Edwards, 181 Okl. 288, 73 P.2d 1145 (1937); Farm Bureau Mut. Auto Ins. Co. v. Mosley, 47 Del. (8 Terry) 256, 90 A.2d 485 (1952).

In Wald, the identification numbers on the vehicle had been ground off. Plaintiff made his identification “by marks, scratches, and so on.” The court said that under the circumstances identification by such means was proper, the plaintiff had satisfied the jury that the car claimed was his, and the evidence was sufficient.

In General Exchange, identification was based on “scratches, dents, and burns and peculiar marks.” The trial court found that the automobile involved bore similar or identical marks but also found that it was possible that such marks “could have occurred or been placed on some other automobile” and felt that such identification was insufficient. Defendant here advances this same argument. However, the Supreme Court of Oklahoma, in holding the identification to be sufficient, said: “The probability of all these marks appearing on any other automobile at the same places and in the same manner is too remote to deserve any consideration. Under the ruling of the trial court in this case it would be utterly impossible to recover a stolen automobile where the thieves had so successfully eradicated all the identification numbers on the automobile and on the tires as they did in this instance.”

In Farm Bureau, identification was based primarily on a certain worn spot on the carpet. The court held that the testimony was sufficient to identify the vehicle as that to which plaintiff was entitled, the identification number having been ground off.

Whether plaintiff’s evidence be viewed as direct or, as defendant insists, circumstantial, or both, the trial court may not be convicted of having resorted to guesswork or speculation in finding that the composite vehicle was sufficiently identified. It may properly be said, in accordance with the language in Shepard v. Ford Motor Co., 457 S.W.2d 255, 259[4] (Mo.App.1970), that plaintiff’s evidence supports the trial court’s conclusion and has a tendency “to exclude every other reasonable conclusion but the one desired.”

Defendant offered no evidence in rebuttal. Defendant has made no claim that any portion of the composite truck has a source other than plaintiff’s trucks.

It was not incumbent upon plaintiff to establish its case beyond a reasonable doubt. “The plaintiff in an action of re-plevin, . . . has the burden of proving his case by the preponderance or greater weight of the evidence.” 66 Am.Jur.2d Re-plevin § 98, p. 894. The next page of the same text says: “Any evidence which proves the allegations of the ... petition by a preponderance or greater weight is sufficient to justify a verdict by a jury or a judgment by the court.”

The judgment must be affirmed, but with one modification. The judgment recites “that the plaintiff herein shall have and recover of and from the defendant possession of the property described in the plaintiff’s petition filed herein, to-wit.” The judgment then sets forth the description of the three trucks as quoted in the second paragraph of this opinion.

The eggs have been scrambled and their separate production is no longer possible since defendant, so far as this record discloses, possesses only the mixture. The petition sought only the composite truck, not the three from which it was cannibalized. The judgment must be modified to transfer to plaintiff possession of the composite vehicle, appropriately describing same.

As so modified, the judgment is affirmed.

All concur.

      . Plaintiffs evidence showed that the theft occurred in April, 1973. On oral argument defendant’s counsel stressed this inconsistency but even if it were material there was no objection to that evidence. Thus the matter was tried by the implied consent of the parties and the petition is treated as amended to conform to the evidence. Rule 55.33(b).

      . The three International trucks were originally owned by Hudgins Truck Rental, Inc. Prior to this action Hudgins assigned title to the three vehicles to plaintiff by endorsement and delivery of the title certificates. Defendant makes no contention that plaintiff, as assignee and present owner, has no standing to sue. See Pearl v. Inter. Sec. Co., 357 Mo. 160, 206 S.W.2d 975, 978 (1947).

      . For a definition of “circumstantial evidence” and a discussion of the gauging of its sufficiency for submissibility see Bridgeforth v. Proffitt, 490 S.W.2d 416, 422[6-9] (Mo.App.1973).


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Opal CRAGIN and Harold Cragin, Plaintiffs-Respondents, v. Ellen LOBBEY, Defendant-Appellant, and Alvin Hinkle, Defendant-Appellant.
    Nos. 9887, 9888.
    Missouri Court of Appeals, Springfield District.
    May 6, 1976.
    Rehearing Denied May 27, 1976.

      Ross T. Roberts, Roberts & Fleischaker, Joplin, for plaintiffs-respondents.
    John R. Martin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-appellant Ellen Lobbey.
    Ralph E. Baird, Joplin, for defendant-appellant Alvin Hinkle.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Plaintiffs, husband and wife, were passengers in an automobile operated by defendant Hinkle when it figured in a collision with a vehicle driven by defendant Lobbey. Plaintiff wife sued defendants for damages allegedly caused by injuries received in the accident; plaintiff husband joined in suing defendants on his averred action per quod consortium amisit. The jury returned verdicts in favor of both defendants. Plaintiffs filed separate motions for new trials. Although blessed with a verdict in his favor and apparently relying on Rule 72.01(b), defendant Hinkle separately moved “to have judgment entered in accordance with his motion for a directed verdict.” The court nisi overruled defendant Hinkle’s motion and sustained “Plaintiffs’ motion [sic] for a New Trial [because] there was an error in giving Instructions 7 and 9, and for the further reason that the verdict is against the weight of credible evidence.”

First, to winnow the chaff. Defendant Hinkle’s notice of appeal recites that he “appeals from the order overruling [his] separate motion ... to have judgment entered in accordance with his motion for a Directed Verdict and sustaining Plaintiff Opal Cragin’s Motion for New Trial.” We make no determination of the propriety vel non of defendant Hinkle’s after-trial motion under the circumstances existing when it was filed. It suffices to observe again that “The right of appeal shall be as provided by law” (Rule 81.01), and if an appeal is not authorized by statute we must, ex mero motu, notice this court’s lack of appellate jurisdiction in the cause. That part of Hinkle’s notice appealing from the order overruling his motion for judgment in conformity with his motion for directed verdict is a nullity because an appeal from such an order is not authorized by § 512.020. It does not constitute “any final judgment in the case or any special order after final judgment” within the meaning of the statute. Powell v. Watson, 516 S.W.2d 51, 52[1-3] (Mo.App.1974). This being so, the points relied on by defendant Hinkle in his brief on appeal which complain of the trial court’s ruling on his after-trial motion need not and shall not be considered.

What of the second part of Hinkle’s notice of appeal? A negligently inflicted injury to a wife gives rise to two distinct, separate and independent causes of action — one in favor of the wife for damages because of her injuries and another in favor of the husband for damages sustained on account of the loss of his wife’s companionship, society and services. The causes of action are separate and each is an entirety unto itself. Rea v. Feeback, 244 S.W.2d 1017, 1019 (Mo.1952). And while Rule 66.-01(c) requires the two causes of action to be filed jointly [Shepherd v. Consumers Cooperative Association, 384 S.W.2d 635, 641 (Mo. banc 1964)], the rights of action are not merged into one but remain separate and distinct. Robben v. Peters, 427 S.W.2d 753, 757[5] (Mo.App.1968); 1 C.J.S. Actions § 113a.(5), at p. 1376. Unlike the parties to these appeals, who stand mute on the subject, the wary reader will have observed that defendant Hinkle appealed only from the order granting plaintiff wife a new trial. He did not, and indeed now cannot, appeal from the order which granted plaintiff husband a new trial on his separate and distinct cause of action. Where only a part of a separable judgment or order is appealed from, the remainder is unaffected and is not brought into the appellate court. Anthony v. Morrow, 306 S.W.2d 581, 583[3] (Mo.App.1957); Grignon v. Wechselberger, 70 Wash.2d 99, 422 P.2d 25, 26[1] (1966); Territory of Hawaii by Choy v. Damon, 44 Haw. 557, 356 P.2d 386, 390[6] (1960), cert. denied, 368 U.S. 838, 82 S.Ct. 40, 7 L.Ed.2d 38; 4A C.J.S. Appeal and Error § 608, p. 399. Therefore, defendant Hinkle’s failure to appeal from the order granting plaintiff husband a new trial on his separate cause of action leaves that portion of the husband’s action in the trial court and out of our hands.

To complete the task of chaff riddance, one of defendant Hinkle’s points on appeal attacks the claimed error of the trial court in overruling his motion for directed verdict at the close of plaintiffs’ evidence. In so doing, defendant Hinkle overlooks the fact that he waived his right to complain of any such error by introducing evidence of his own after denial of the motion. Daniels v. Smith, 323 S.W.2d 705, 706[1] (Mo.1959); Pasley v. Newton, 455 S.W.2d 43, 46—47[2] (Mo.App.1970); Hoevelman v. Reorganized Sch. D. R2 of Crawford County, 452 S.W.2d 298, 300[2] (Mo.App.1970); Jacobs v. Frangos, 329 S.W.2d 262, 264[1] (Mo.App.1959).

Four verdict-directing instructions were given for plaintiffs. No. 2 for plaintiff wife and No. 6 for plaintiff husband called for verdicts for the respective plaintiffs against defendant Lobbey if the jury believed that “defendant , Lobbey either: failed to keep a careful lookout, or drove at an excessive speed.” Instructions No. 4 and No. 8 respectively directed verdicts for plaintiff wife and plaintiff husband “against defendant Hinkle if you believe: First, defendant Hinkle failed to keep a careful lookout.” Four converse instructions followed the verdict-directing charges. Each pair was identical, with the bracketed words indicating the only difference. Instructions numbered 3 and 7 for defendant Lobbey: “Your verdict must be for defendant Ellen Lobbey on plaintiff Opal Cragin’s [Harold Cragin’s] claim unless you believe that defendant Ellen Lobbey was negligent as submitted in Instruction No. 2[6] and that plaintiff Opal Cragin [Harold Cragin] sustained damage as a direct result thereof.” For defendant Hinkle, instructions numbered 5 and 9: “Your verdict must be for defendant Hinkle on plaintiff Opal Cra-gin’s [Harold Cragin’s] claim for damages unless you believe that defendant Hinkle was negligent [and that, Plaintiff Harold Cragin sustained damages as a direct result thereof].”

The foregoing discloses that instructions 3 and 7 given for defendant Lobbey and instructions 5 and 9 given for defendant Hinkle constituted the giving of two converse instructions on behalf of each defendant which conversed every element of plaintiffs’ theory of recovery. This was error, as correctly recognized by the trial court, for the only additional converse instructions properly allowable to the defendants should have been limited and directed to those items necessary to meet the plaintiff husband’s separate claims for derivative damages. Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366, 370-371[4, 5] (Mo.App.1974).

Defendants do not contest the ruling as to instruction error. Rather they claim, in effect, that any error which may have occurred in charging the jury was of no consequence because the trial court erred in overruling their motions for directed verdict at the close of all the evidence, as the plaintiffs made no submissible case. Bohler v. National Food Stores, Inc., 425 S.W.2d 956, 959 (Mo.1968). Where, as here, the trial court sets aside the verdicts and judgment for defendants and grants plaintiffs a new trial on the ground the verdicts were against the weight of the credible evidence, we need to examine the record to ascertain if there was substantial evidence to support verdicts for the plaintiffs. If not, we may hold the order of the trial court to be an abuse of discretion. Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 107[1] (Mo.1973).

The casualty occurred on commencement day at Missouri Southern State College in Joplin at the intersection of north-south four-laned Range Line Road (U.S. Highway 71) and east-west two-laned Newman Road. Traffic at the intersection was usually controlled by an overhead electrically operated signal which, at the time of the collision, flashed “red” or “stop” for Newman Road traffic and “yellow” or “caution” for vehicles traveling Range Line. § 304.301. Defendant Hinkle was driving west on Newman Road and crossing the intersection when the front of defendant Lobbey’s automobile, then being operated south in the west or outside lane for southbound traffic on Range Line, struck “the right rear fender” of the Hinkle car “right over the wheel.”

Plaintiffs had attended the afternoon commencement exercises in the company of defendant Hinkle et uxor and a visiting Floridian. At the conclusion of the college festivities, plaintiffs et alii repaired to the Hinkle car. Plaintiffs and Mrs. Hinkle were seated on the rear seat; defendant Hinkle (the driver) and the visitor occupied the front seat. The vehicle departed the college grounds as part of a steady stream of westbound traffic traveling Newman Road enroute to the intersection in question. Those in the back of the Hinkle car busied themselves looking at snapshots supplied by the front seat passenger. Because of her preoccupation with the photographs, plaintiff wife did not know the speed of either of the involved vehicles, where in the intersection the accident occurred, whether or not the Hinkle car stopped before entering the intersection, or what the other westbound traffic was doing when it reached the intersection. Plaintiff wife first said she had not seen the Lobbey automobile until “seconds before the impact,” but amended this on cross-examination to “just a fraction of a second before the impact;” she did not undertake to describe the location of the two vehicles at that time. She recounted having seen “a traffic officer in the center of the intersection.” However, she did not know where either vehicle was when she made this sighting. Neither did she know the location of the officer at the time of the accident. For reasons of no moment here, none of the other occupants of the Hinkle car testified at the trial.

For approximately one-fourth mile before reaching the intersection, defendant Lobbey was traveling south and downgrade. She could see a steady stream of traffic coming off Newman Road at the east side of the intersection. All such traffic, she recalled, was turning left or south into the inside southbound lane of Range Line. In portions of her pretrial deposition read to the jury by plaintiffs’ counsel, defendant Lob-bey agreed “that the first time [the Hinkle] car was called to your attention or you remembered seeing that car was that [when?] it started to pull across Rangeline [sic].” She also deposed that when she first saw the Hinkle car “It seemed it was right in front of me [and] as it started to pull across Rangeline [sic], instead of turning, it came straight across.” The impact, so said defendant Lobbey and Officer Love, occurred in the outside or west traffic lane on Range Line. Later testifying in person at the trial, defendant Lobbey stated she was “probably” going about 35 m. p. h. when she started down the hill a quarter of a mile north of the intersection, but that she took her foot off the accelerator which caused the speed of her car to slow gradually. What the speed of the Lobbey car was when it neared the intersection went unexplained. None of the cars entering onto Range Line from the east, according to defendant Lobbey, including the vehicle immediately preceding the Hinkle car, went across the intersection; all turned south into the inside southbound lane on Range Line. Defendant Lobbey said there were no cars ahead of her car that were stopped in the inside southbound lane on Range Line at the north edge of the intersection, and that two southbound automobiles immediately ahead of her in the outside lane proceeded southward through the intersection without stopping. She did not observe a policeman at the intersection until after the collision, and she was “right at the north edge of the intersection” when she first saw the Hinkle car. Upon seeing the Hinkle car, defendant Lobbey “put on my brakes immediately” and the impact occurred “immediately after that.” This witness was not asked concerning the speed of the Hinkle car.

Police Officer Love went to the intersection to direct the commencement day traffic. The vehicular exodus from the college had started before he arrived and parked his car on the east berm of Range Line south of Newman Road. Upon arrival, Love went to the “center of the intersection right under the traffic light” where, by use of hand and arm signals, he stopped traffic on Range Line and then “signaled for traffic coming off of Newman Road to come ahead.” Love stated “the cars [coming off Newman Road] that was turning left couldn’t seem to get around me” so he moved over “close” to the southeast corner of the intersection. According to the officer, the vehicles entering the intersection from the east “was turning, going south . . . and they were going north and they were going straight.” At one time Love said he had been at the intersection “about 10 minutes” before the accident occurred and indicated he had let some Range Line traffic proceed during this interim. However, he later recanted both statements as the subjects were pressed on cross-examination. When the accident occurred, so the officer acknowledged, he was near the southeast corner of the intersection “talking to a man that had a stalled car,” although, somewhat contradictorily, the officer asseverated hé had signaled the Hinkle car into the intersection when it “was stopped right here, he was the front car.” Love had his back to the site of the impact when he “heard the screeching of brakes” and looked around to see the Lobbey automobile “within 8 feet of the north edge of the intersection” and the collision occurred thereafter in “just a fraction of a second.” Over the objections of defendant Lobbey that the policeman had not observed the car for a sufficient time and distance to permit him to make an informed estimate of speed, the officer was permitted to testify that “I estimated the speed [of the Lobbey car] at 35 miles per hour.” On cross-examination when asked “Did you guess at the speed, Mr. Love?” the officer replied, “It would be a guess, yes, sir.” He was then asked “You didn’t have any distance that you saw them travel at which you could form any true estimate of speed, did you?” The officer’s answer was, “You are right. No, sir.” Defendant Lob-bey’s motion to strike the speed-testimony of Officer Love because it “was merely a guess [and] has no probative value” was refused. The officer “estimated” the speed of the Hinkle car at twenty miles per hour and described the impact as “very slight.”

Defendant Hinkle’s evidence consisted of the proof of §§ 35.13 and 35.14 of the Joplin City Code (ordinances), viz., “No person shall wilfully refuse to comply with any lawful sign, signal, order or direction of a police officer,” and “The law enforcement officers of the city are hereby empowered to control and direct manually the movements of vehicles and traffic at any and all times.”

We agree with defendant Lobbey that the trial court erred in permitting the speed-testimony of Officer Love to remain in the record for final consideration in determining the speed of defendant Lobbey’s automobile. There is considerable authority that before a witness should be permitted to testify as to the speed of a motor vehicle, he should first demonstrate that he had a reasonable opportunity to judge that speed. 8 Am.Jur.2d, Automobiles and Highway Traffic, § 985, pp. 537-539, and cases there cited. However, and seemingly to the contrary, there are Missouri cases which permit a witness to express an opinion or judgment (as opposed to a guess) as to speed where the opportunity to judge the speed was limited to “only for about ½6 or ½8 of a second,” to a “ ‘fleeting second before the impact,’ ” or to “ ‘. . . a split second or so.’ ” Vaeth v. Gegg, 486 S.W.2d 625, 627[3] (Mo.1972); Johnson v. Cox, 262 S.W.2d 13, 15[3, 4] (Mo.1953); Schneider v. Dannegger, 435 S.W.2d 413, 415 (Mo.App.1968); Lafferty v. Wattle, 349 S.W.2d 519, 527-528 (Mo.App.1961). These authorities opine that the brevity of the observation does not destroy the credibility of the testimony but only goes to its weight and value. On the other hand, a witness who observed a truck moving only six inches in a given direction, should not have been allowed to say that it was moving 10 m. p. h. because such an opinion was bound to have been based on guess, speculation and conjecture and, therefore, was not regarded as substantial evidence. Prince v. Bennett, 322 S.W.2d 886, 890-891 (Mo.1959). Divination is not our forte, and we do not undertake the impossibility of striking a line, either for time or distance, to delineate when an estimate, judgment or opinion as to speed is credible for jury consideration or deteriorates into a mere guess of no probative value. Nevertheless, until it became known that Officer Love’s estimate of defendant Lobbey’s speed was just a guess, and as long as it appeared the given estimate was an expression of his judgment or opinion, under Vaeth, Johnson, Schneider, and Lafferty, supra, we cannot say the trial court erred in permitting the testimony albeit the opportunity to judge the speed was limited to “just a fraction of a second.” But when Officer Love stated that his estimate “would be a guess, yes, sir,” the trial court erred in not striking that testimony as requested.

If, upon consideration of a witness’s entire testimony, it is apparent his use of the word “guess” is a colloquial effort to express an opinion or judgment (39 C.J.S. Guess, p. 415), then his employment of that word is not necessarily destructive of his testimony. Hinrichs v. Young, 408 S.W.2d 642, 646[5] (Mo.1966). However, if a witness cedes his prior testimony on a given issue was, in fact, predicated on a mere guess, i. e., upon speculation with no factual basis, or if he admits to facts, conditions or circumstances which make it evident the testimony was a mere guess on his part, then his testimony does not constitute substantial evidence and has no probative value. Zeigenbein v. Thornsberry, 401 S.W.2d 389, 391[3] (Mo.1966); Abernathy v. Coca-Cola Bottling Company of Jackson, 370 S.W.2d 175, 177 (Mo.App.1963); Denney v. Spot Martin, Inc., 328 S.W.2d 399, 405[8] (Mo.App.1959); Christner v. Chicago, R. I. & P. Ry. Co., 228 Mo.App. 220, 228[7], 64 S.W.2d 752, 756[7] (1933); O’Neil Implement Mfg. Co. v. Gordon, 269 S.W. 636, 640[6] (Mo.App.1925). What Officer Love said on direct examination regarding his estimate of the speed of defendant Lobbey’s car was admitted on cross-examination to have been a mere guess on his part because, as he agreed, he did not have sufficient opportunity to “form any true estimate of the speed.” Van Bibber v. Swift & Co., 286 Mo. 317, 337, 228 S.W. 69, 76[9] (banc 1921); Barnhart v. Ripka, 297 S.W.2d 787, 791[7] (Mo.App.1956). With the speed-testimony of Officer Love having thus been dispossessed of probative value, the court should have disposed of that issue as if the witness had not spoken. Oglesby v. Missouri Pac. Ry. Co., 177 Mo. 272, 296, 76 S.W. 623, 627-628 (banc 1903).

A submissible case is dependent upon proof of facts. Evidence that has no probative value does not meet that standard. Madison v. Dodson, 412 S.W.2d 552, 557[6] (Mo.App.1967). With Officer Love’s speed-testimony obliterated from the record, there is absolutely no evidence of the speed of defendant Lobbey’s car as it descended the hill or as it neared and entered the intersection. While defendant Lobbey said she “probably” was going 35 m. p. h. when her automobile was at the top of the hill one-fourth mile north of the intersection, she also testified she then removed her foot from the accelerator which cause the speed of the vehicle to slow gradually as it traveled the approximate quarter-mile toward the site of the collision. But how much the car slowed or at what speed it may have been traveling at any given point south of the hillcrest was never revealed. In addition, the evidence was devoid of information as to the length of skid marks, if any, the force of the impact (except that it was “very slight”), the grade of the hill, whether defendant Lobbey’s car was equipped with a manual or automatic transmission, or what the deceleration rate of the speed would have been under the conditions present. In fine, there was nothing that would permit determination of the speed of defendant Lobbey’s auto at anytime or at any place during its quarter-mile approach, short of speculation and conjecture. Since that speed, whatever it might have been at anytime or distance from the intersection and point of impact, would necessarily be predicated wholly on speculation, a fortiori any conclusion that defendant Lobbey drove at an excessive speed could be reached only through guesswork and conjecture. “Guess, speculation and conjecture as to speed, distance, position and time do not rise to the dignity of the requisite evidence to support an assignment of negligence.” Hines v. Sweet, 518 S.W.2d 710, 711[3] (Mo.App.1975). Moreover, excessive speed cannot be the proximate cause of an accident unless it be shown that the casualty would not have occurred except for the excessive speed proved by substantial evidence. Marshall v. Bobbitt, 482 S.W.2d 439, 442[1] (Mo.1972). Absent evidence as to the respective location of either involved vehicle (except at and a split second before impact), and sans any proof of probative value as to the speed of the Lobbey automobile at and immediately prior to the accident, there could be no way of saying, without resort to sheer guessing, that the unknown speed of defendant Lobbey’s car prevented her from avoiding the collision. Mere speculation or conjecture is not a sufficient basis for holding that alleged excessive speed was the proximate cause of the casualty. Osborn v. McBride, 400 S.W.2d 185, 188[3] (Mo.1966). Plaintiffs did not make a submissible case against defendant Lobbey on the charge of excessive speed.

To make a submissible case on negligent failure to keep a careful lookQut, it was not necessary for plaintiffs to produce direct evidence that defendant Hinkle and defendant Lobbey were not looking. Dorrell v. Moore, 504 S.W.2d 174, 178[4] (Mo.App.1973). However, before plaintiffs’ case on this score could be termed submissi-ble, it was required that they satisfy the burden of proving all facts and circumstances essential to submission of the negligence charged [Williams v. Boone, 413 S.W.2d 36, 40[2] (Mo.App.1967)] by adducing substantial evidence from which it could reasonably be found that defendants, in the exercise of the highest degree of care, could have seen the danger sooner than they did [Levin v. Caldwell, 285 S.W.2d 655, 659[3] (Mo.1956)] and in time thereafter to take effective precautionary action. Shelton v. Bruner, 449 S.W.2d 673, 679 (Mo.App.1969). The ability and means to avoid a danger means more than possessing mechanical means with which to slow, stop or swerve; it also includes the existence of sufficient time and distance to take effective action in avoidance. Stegall v. Wilson, 416 S.W.2d 658, 662[3] (Mo.App.1967). And to have a submissible case, more is necessary than a showing of a purely speculative possibility that a collision might have been avoided if a careful lookout had been maintained. Reed v. Burks, 393 S.W.2d 377, 380[4] (Mo.App.1965).

What has already been said demonstrates the paucity of facts furnished on the issue of lookout. It was not shown where the Lobbey car was or whether there was any vision-interfering traffic or other objects between it and the Hinkle car at the time defendant Hinkle neared, entered and proceeded across the intersection. From defendant Lobbey’s point of view, there was a dearth of evidence as to whether or when she could or should have seen the Hinkle ear sooner than she did. From the evidence presented, whether defendant Hinkle ever did or did not see the Lobbey automobile, and if so where it was at that time, is left wholly to speculation. The mere happening of the accident did not establish negligent failure to keep a careful lookout on the part of either driver. Harris v. Lane, 379 S.W.2d 635, 638-639[6] (Mo.App.1964). Of equal importance is the total absence of evidence showing that when the two defendants saw or first should have seen the other, there then existed sufficient time and distance for either or both of them to take effective action in avoidance. “There is simply a vacuum in the evidence as to when the defendants] could or should have seen and what [they] could thereafter have done to prevent the collision.” Page v. Baxter, 503 S.W.2d 32, 34 (Mo.App.1973). Thus, where the defendants’ vehicles were actually positioned when the presence or movement of either produced a situation of danger, can only be reckoned through speculation and conjecture. Powell v. Watson, 526 S.W.2d 318, 325 (Mo.App.1975); Harris v. Lane, supra, 379 S.W.2d at 639[9]. In our view, plaintiffs did not make a submissible case against defendants on their alleged failure to keep a careful lookout.

But for the anomalous situation presented by defendant Hinkle’s notice of appeal, we would reverse the order of the trial court outright. Because of the uniqueness of the situation presented, it is ordered:

In Case No. 9888 — The trial court’s order granting plaintiff Opal Cragin a new trial against defendant Hinkle is reversed and the trial court is directed to reinstate the judgment entered on the verdict in favor of defendant Hinkle and against plaintiff Opal Cragin. The trial court’s order granting plaintiff Harold Cragin a new trial against defendant Hinkle, having never been appealed, remains in force.

In Case No. 9887 — The trial court’s order granting plaintiffs a new trial against defendant Lobbey is reversed and the trial court is directed to reinstate the judgment on the verdicts finding the issues in favor of defendant Lobbey and against both plaintiffs.

All concur.

      . References to rules and statutes are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R., and to RSMo 1969, V.A.M.S.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Calvin Leroy ADAMS, Appellant.
    No. 10110.
    Missouri Court of Appeals, Springfield District.
    May 10, 1976.

      John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Gary L. Smith, Smith & Holden, Dexter, for appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Calvin Leroy Adams was found guilty by a Dunklin County jury of the crime of arson of a dwelling [§ 560.010, RSMo 1969] and sentenced under the habitual criminal act by the trial judge to a prison term of six years. We affirm.

In this appeal the defendant challenges the sufficiency of the evidence to support the jury’s verdict and has levelled three assignments of error at instructions given or refused.

Rule 84.04(e), V.A.M.R., requires that “If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief.” The defendant’s brief does not set forth the instructions as mandated by the rule, and his complaints concerning them are not for our review. State v. Lynch, 528 S.W.2d 454 (Mo.App.1975); State v. Mesmer, 501 S.W.2d 192 (Mo.App.1973).

On the sufficiency of the evidence issue we start with the proposition that as the reviewing court we must consider all of the evidence and all reasonable inferences therefrom in the light most favorable to sustain the conviction. Contrary evidence and inferences are cast aside and not for our consideration. State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975).

The jury could find that about a month before the fire which gave rise to the charge against the defendant he had been employed by Mr. Swinger and that as a part of his employment he could live rent-free in the dwelling. Defendant was discharged by Mr. Swinger at the end of the first week and asked to vacate the dwelling. After the defendant left and moved most of his belongings, Mr. Swinger had the gas and electricity to the house disconnected and locked the doors.

On the evening of November 23, 1974, Mr. Swinger was driving in the vicinity of the house and saw a car parked in front of the building. As Mr. Swinger’s automobile neared the house he saw the defendant and Truman Medley run from the house and get into the parked car. The defendant drove the vehicle from the scene at a high rate of speed. Mr. Swinger gave chase in his car and, after a brief stop at a nearby home, he again saw the defendant’s car at the house where the defendant had formerly lived. As Mr. Swinger drove toward the house the defendant’s car sped away. Mr. Swinger saw a “glow” inside the house and upon stopping at the house he found the front door had been broken open and a fire was burning beneath an overturned chair. The defendant and others were apprehended shortly thereafter by officers.

The defendant testified in his own defense and acknowledged he was the driver of the car seen by Mr. Swinger. He said that when he first stopped at the house one of his companions, Charles Sisson, set fire to a paper bag and ran toward the house after stating, “We should burn that house.” The defendant admitted he and Medley ran from the house to the defendant’s car when Mr. Swinger first approached the house and, after first fleeing the scene, they returned to pick up Sisson.

To support a submissible case of arson three elements must be proven by the state. First, a building was on fire. Second, the fire was of incendiary origin. Third, the defendant participated in the commission of the crime. State v. Bunton, 453 S.W.2d 949 (Mo.1970).

The dwelling was destroyed by the fire; thus, the first element was established. Natural or accidental causes were negated by Mr. Swinger’s testimony, and from the circumstances related herein the jury could find the fire was of incendiary origin. The defendant and his companions drove to the house from which the defendant had been required to move. The front door was broken, and the fire started beneath an overturned chair. The jury could reasonably infer the burning paper bag was placed beneath the chair in order to kindle the blaze. The second element was established.

Regarding the defendant’s participation in the burning of the house, the state was not required to prove that defendant personally committed all of the essential elements of the crime. State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975). “Presence, companionship and conduct before, during and after the commission of an offense are circumstances from which participation in the criminal act may be inferred.” State v. Jones, 524 S.W.2d 186, 187 (Mo.App.1975).

Defendant was the driver of the car. He drove himself and his companions to the house. The jury was not compelled to believe Sisson acted alone in starting the fire and could reasonably infer that defendant helped start the fire and was an active participant in burning his former employer’s dwelling. The flight of the defendant is relevant in determining his guilt. State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975).

Here, the defendant’s car was seen at the scene of the crime shortly before and after the fire was discovered. The same companions were with defendant both before and after the fire started. The defendant drove the car from the scene at a high rate of speed, and he and his companions were still together when arrested. We hold the evidence sufficient to demonstrate the defendant’s participation in the crime. See State v. Gamache, 519 S.W.2d 34 (Mo.App.1975).

The judgment is affirmed.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph J. CANANIA, Defendant, and Summit Insurance Company, Surety, Appellant.
    No. 36528.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 11, 1976.

      Theodore S. Schechter, Clayton, for appellant.
    John Danforth, Atty. Gen., Preston Dean and James S. Haines, Jr., Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an appeal from a judgment of forfeiture of a bail bond of Joseph J. Cana-nia of which the appellant, Summit Insurance Company, was surety. We affirm.

Joseph J. Canania was charged with stealing from the person, a felony, and his bail was fixed by the magistrate court in the amount of $2,500. A bond in that amount was posted by appellant, the terms of which included the provisions that Joseph J. Canania was to appear in the magistrate court for his preliminary examination on October 16,1972, and not to depart without leave, and to appear “from time to time thereafter as required by the court and throughout the pendency of this action, for trial and all other proceedings herein * * $ ))

The case was set for trial on October 25, 1972, but on that date the “cause was continued to December 6, 1972.” Thereafter several additional continuances were granted until the final setting on April 4, 1973. On that day the State requested that the bond be forfeited, and that a certified transcript be forwarded to the circuit court.

On May 10, 1973, at the request of the State the circuit court entered judgment against Joseph J. Canania, as principal, and appellant herein, as surety, in the amount of $2,500.

Appellant asserts that the judgment was erroneous because “by continuing the case without the surety’s knowledge or consent for a time more than twenty-one (21) days” the magistrate court acted “illegally and thereby absolved the appellant from liability upon the bond.” As far as we can determine from the record, this contention was not presented to the circuit court.

We should first point out that the record before us is absolutely void of any indication that the continuances were without appellant’s knowledge or consent. The record is silent in that respect, and from all that appears each continuance could have been at the express request of the surety to provide it with more time to locate and produce the defendant.

Appellant’s argument is to the effect that the magistrate court had “no power” to require the defendant to appear on April 4, 1973, because the magistrate court had previously granted at least five continuances in excess of twenty-one days, the maximum period authorized or permitted by § 544.320 RSMo 1969. (We note here that Rule 23.06 authorizes a continuance by a magistrate court of a preliminary examination “not to exceed ten days at one time.”) Appellant then argues that since a bail bond is a contract, the provisions of the statute became part of the contract, and because the State “was the first to violate the bond by the magistrate continuing the cause beyond twenty-one (21) days,” it cannot now claim the benefits of the bond.

Bail has only one legal purpose, and that is to insure the defendant’s presence at trial, or in this case, at the preliminary examination. State v. Thompkins, 515 S.W.2d 808 (Mo.App.1974). Upon admission to bail the custody of the defendant is transferred to his sureties. State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927 (1947). Those who become sureties do so voluntarily and they solemnly contract that the defendant shall appear and abide the orders of the court, and they know that in the event of the defendant’s default the sureties are bound, with the exception hereafter noted, by their obligation. State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522 (1954). The only exception in the above rule is that “A surety is entitled to discharge [from his written contractual obligation] as a matter of law only when the principal is prevented from making his bonded appearance by an act of God, an act of the law, or an act of the obligee, [in this case] the State of Missouri.” State v. Jones, 491 S.W.2d 241, 243 (Mo.1973). See also State v. Patterson, 508 S.W.2d 304 (Mo.App.1974), and State v. Wynne, supra.

Appellant does not expressly so contend, but apparently it would have the facts of this case to be governed by the third situation above set forth, or that it is entitled to discharge from its bond because of “an act of the obligee.” However, as noted, the purpose of the bail was to insure the defendant’s presence, and while the granting of a continuance in excess of the time authorized was improper, in fact it has been described as an “unauthorized and illegal act,” State v. Caffey, 438 S.W.2d 167, 171 (Mo.1969), that act had nothing whatever to do with the failure of the defendant to appear in the magistrate court “from time to time * * * as directed by the court * * and that is what appellant solemnly contracted to have done.

Appellant contends that the magistrate court had “no power” to set the case for trial on April 4, 1973, because that setting followed continuances in excess of the period authorized, and for that reason the failure of defendant to appear could not result in a forfeiture of the bond. The logical conclusion of this argument would be that once a magistrate court intentionally or inadvertently granted a continuance of even one day in excess of the authorized period, it would lose jurisdiction of the case and could not thereafter set a day for a preliminary examination. This contention is expressly ruled in State v. Strong, 484 S.W.2d 657, 660 (Mo.1972) and State v. Caffey, supra. In the Strong ease the court said this:

“Defendant first contends that the magistrate court lost jurisdiction because of seven continuances from November 28, 1969, to April 6, 1970. While it is true our Rule 23.06, V.A.M.R., provides continuation of a preliminary hearing is not to exceed ten days at one time, the failure of adhere to this rule did not oust the magistrate court of its jurisdiction. In State v. Caffey, Mo., 438 S.W.2d 167, we held that a continuation of a preliminary hearing over an eleven month period was a procedural irregularity and did not divest the magistrate court or the circuit court of jurisdiction over the subject matter.”

If the magistrate court had jurisdiction to set the case for trial on April 4,1973, which it had, the terms of the bond bound appellant to have the defendant present in court on that date and it is no defense that the court committed a procedural error in that prior thereto it had granted a continuance in excess of the authorized period.

We also mention that procedural errors can be waived, and in the absence of a showing that the defendant objected to a continuance on the basis that it was for too great a time, and there is no such showing, it may be assumed that each of the continuances was with the consent of the defendant.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


text:
    J. S. ALBERICI CONSTRUCTION CO., INC., Appellant-Respondent, v. EMERSON ELECTRIC COMPANY, Respondent-Appellant.
    Nos. 35958, 36037.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 11, 1976.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Donald L. James, James E. Whaley, St. Louis, for appellant.
    Millar, Schaffer, Ebling & Wallace, Samuel C. Ebling, John B. Lewis, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

J. S. Alberici Construction Co., Inc. (hereafter referred to as “Alberici”) filed suit in two counts against Emerson Electric Company (hereafter referred to as “Emerson”). A separate trial was ordered as to Count I, and judgment in the amount of $121,386.64, plus accrued interest in the amount of $29,-739.73, was entered in favor of plaintiff. Each party appealed, a single transcript has been filed, and the appeals have been consolidated in this court.

Alberici’s cause of action is based on a written contract whereby it was to be paid at the unit prices set forth therein for the excavation of various types of material. Alberici contends that it was entitled to payment at $29 per cubic yard for the excavation of 15,403.6 cubic yards of what it contends constituted “rock or stone in original ledge.” Emerson, on the other hand, asserts in its brief that “the excavation was machine excavation at [$]0.29 per cubic yard.” The contract is somewhat lengthy, and we shall set forth verbatim only those provisions necessary to present the issues for determination.

The contract was for the performance of general construction work for the Lighting and Sciences Building for Emerson located at 8100 West Florissant Boulevard, City of St. Louis. Item 8 of the contract, entitled “Rock Excavation,” contains “Definitions” as follows:

1. The excavation of the following items, if they cannot be broken and removed by power excavation equipment and require the use of systematic drilling and explosives is defined as “Rock Excavation” and will be paid for as an extra in accordance with the “Unit Price Schedule” in the Form of Proposal. When such material is encountered, it shall be uncovered and exposed and the Architect notified so that proper and complete measurement can be made prior to removal of such.
(a) Rock or stone in original ledge.
(b) Hard shale in original ledge.
(c) Boulders over two (2) cubic yards in open excavation and one-half (½) cubic yards in trenches.
2. Boulders, ledge and other obstructions over two (2) cubic yards in open excavation and over one-half (V2) cubic yards in trenches that are removed by power excavation equipment without use of drills and/or explosives, will be paid for as an extra in accordance with the “Unit Price Schedule” in the Form of Proposal.

An addendum to the contract set forth the “Unit Price” as follows:

A. Price per cu. yd. for more or less building excavation, including disposal, not shown on plans or specified.
1. Machine excavation (neat) $ 0.29
2. Hand excavation (neat) $ 7.15
* * * *
D. Price per cubic yard for removal of more or less rock or stone in original ledge. Base bid includes removal of 1000 cubic yards. $29.00
* * * *
F. Price per cubic yard for removal of more or less boulders over two (2) cubic yards in open excavation and over one-half (½) cubic yards in trenches.
Base bid includes removal of 500 cubic yards. $ 7.40

At a conference between the court and counsel it was agreed that the “material involved * * * is a sandstone material,” that Emerson “has no indication” that the amount of material for which payment was sought by Alberici was not as claimed, that in the excavation of the material no “drilling or blasting” was done, and that the excavated material was removed “by mechanical means” consisting of a “D — 9 Caterpillar with Kelly ripper attached” which constituted “power excavating equipment.”

The court ruled that the contract was not ambiguous, that the unit price of $29 is “applicable to Paragraph 1 of Specification 8 defining rock specifications,” that the unit price of $7.40 is “applicable to Subpara-graph 2 of Specification 8,” that Subpara-graph 2 “is a specification which is applicable to boulders, ledges and other obstructions which may be removed by power equipment” and “in view of the stipulated facts that the material involved * * * was removed by power equipment and was not removed by blasting or drilling, * * the $7.40 per yard rate is applicable to the excavation in dispute in this case.” The court then discharged the jury and entered what we might call summary judgment based on stipulated facts. Each party offered evidence in the form of an offer of proof to demonstrate that the contract was ambiguous. On this appeal, however, Al-berici makes no such contention. Instead it asserts that the contract is not ambiguous, and that the trial court should have held the $29 unit rate to be applicable, and therefore it erred in its construction of the “clear meaning of the total contract.”

Subparagraph 1 of Paragraph 8 defines the term “rock excavation” as the excavation (a) of rock or stone in original ledge, (b) of hard shale in original ledge, and (c) of boulders over two cubic yards when in open excavation and boulders over one-half cubic yards when in trenches, when these items cannot be broken and removed by power excavation equipment but requires the use of systematic drilling and explosives. Sub-paragraph 2 defines the operation of excavating by use of power excavation equipment without the use of drills or explosives when that excavation is limited to “boulders, ledge and other obstructions” which are over two cubic yards in size and when they are in “open excavation” or over one-half cubic yards when “in trenches.”

We turn now to Addendum No. 2 which sets forth the “Unit Prices,” and we first comment that although in each of the above Subparagraphs of Paragraph 8 it is provided that the operation there described should be paid for “as an extra in accordance with the ‘Unit Price Schedule’ in the Form of Proposal,” there is no “Unit Price” which describes precisely the operation defined in either Subparagraph.

Item A provides for a payment of $0.29 per cubic yard “for more or less building excavation * * * not shown on plans or specified.” Emerson contends that the excavation done by Alberici for which payment is requested should be paid for at this rate. However, we find nothing in the record to indicate whether the excavation was “building excavation,” whatever that term means, or whether the excavation was or was not “shown on plans or specified.”

Item D provides for a payment of $29 per cubic yard for the “removal of more or less rock or stone in original ledge.” We note that nothing is said as to whether the removal is to be by power excavation equipment or by systematic drilling and explosives. Presumably, this rate would apply without regard to the method of removal. The record, by reason of the stipulations, shows that the material excavated was “sandstone material.” There is nothing in the record to indicate whether it was or was not the intention of the parties, or that it is generally understood in the industry, that the removal of “sandstone material” is included in the term “removal of more or less rock or stone in original ledge.”

Item F provides for a payment of $7.40 for the removal (again without limitation as to the method) of “more or less boulders” over two cubic yards in open excavation and over one-half cubic yards in trenches. We note that Subparagraph 2 of Paragraph 8 refers to “boulders, ledge and other obstructions,” while Item F refers only to boulders. The record does not disclose whether the term “ledge and other obstructions” was intended to include sandstone. It is admitted by Alberici that it did not excavate any two-cubic yard boulders, and there is no contention that there was any trench excavation. The trial court held that the payment provided for by Item F was applicable to the operation described in Subparagraph 2 of Paragraph 8, and that the “Unit Price” in Item F was the price to be paid for the excavation work performed by Alberici. Both parties on this appeal contend that this determination is not correct, but for different reasons.

Emerson contends that the trial court erred in its determination that the contract was not ambiguous. Emerson asserts the contract was reasonably susceptible of differing and opposing constructions, and therefore the court erred in discharging the jury. In this we agree.

We need not elaborate on the applicable general rules. It is sufficient to say that if the terms of a contract are clear and unambiguous the contract will be enforced according to its terms and without construction to determine the intention of the parties. Leggett v. Missouri State Life Insurance Company, 342 S.W.2d 833, 851 (Mo. banc 1960). But, where the contract is ambiguous, and what we have previously stated clearly demonstrates that ambiguity, then in order to obtain the intention of the parties, Robson v. United Pacific Insurance Company, 391 S.W.2d 855 (Mo.1965), the contract is subject to construction according to certain established rules, some of which are the interpretation placed on the contract by the parties, Landau v. Laughren, 357 S.W.2d 74 (Mo.1962), the surrounding circumstances, Paisley v. Lucus, 346 Mo. 827, 143 S.W.2d 262 (1940), and the generally accepted meaning in the industry of the words and phrases used.

The judgment is reversed and the cause remanded.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Respondent, v. Willis Glenn OWENS, Appellant.
    No. 37187.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 11, 1976.
    Robert C. Babione, Public Defender, Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas G. Muldoon, Asst. Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

Willis Glenn Owens appeals his conviction on two counts of rape, § 559.260, RSMo. 1969, two counts of robbery first degree, § 560.120, one count of sodomy, § 563.230, and consecutive sentences of imprisonment on the five crimes aggregating sixteen years.

Appellant’s sole contention of error concerns the trial court’s refusal to grant a continuance. On the morning of trial appellant moved for continuance claiming a news article published the day before in a local daily newspaper prejudiced the prospective jurors against appellant. The published article did not concern appellant or the crimes for which he stood charged; instead it reported an alleged rape of two girls, one of whom was murdered in Philadelphia, Pennsylvania, the previous day. It was quite unrelated except the coincidence of appellant’s being charged with rape and robbery of two young ladies in St. Louis one year earlier.

Denying appellant’s motion, the trial court stated that while there was no showing of prejudice, appellant was not precluded from raising the matter “at a later time,” presumably referring to voir dire of the panel.

The panel was sworn, voir dire conducted, the jury selected, but before the jurors were sworn, appellant renewed his motion for continuance, offering the “offending” newspaper article as defendant’s Exhibit “A”. Overruling the renewed motion, the court reiterated, “I don’t see that any prejudice from that newspaper article had been shown to this court, and for that reason I am overruling it.” Opposing the motion, the circuit attorney had earlier argued it had not been demonstrated the article would prejudice “this particular defendant” and that the State could rarely “go to trial in the City of St. Louis on any rape case if we were to continue it just because articles have appeared in the papers,” contending further the problem would be “more properly one for voir dire examination rather than for a continuance.” The transcript contains nothing of the voir dire examination and appellant does not suggest that any fact developed there demonstrated prejudice of the veniremen resulting from the news story.

As a general rule, the trial court has wide discretion in determining whether an accused is entitled to a continuance because publicity concerning the case would prevent a fair and impartial trial. State v. Spica, 389 S.W.2d 35, 41[5] (Mo.1965), cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966), citing Finnigan v. United States, 8 Cir., 204 F.2d 105; State v. Golden, 353 Mo. 585, 183 S.W.2d 109 (1944), cert. denied, 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427 (1945). See also State v. Glenn, 429 S.W.2d 225, 230[1, 2] (Mo.banc 1968). Because of its vantage point when ruling requests for continuances based on pre-trial publicity, the trial court’s decision will not be lightly disturbed and “it requires a very strong showing to induce the higher court to interfere.” State v. Brookins, 468 S.W.2d 42, 45[1] (Mo.1971); State v. Golden, supra at 113[2].

To require a continuance absent “extraordinary or unusual circumstances” mov-ant must demonstrate pre-trial publicity has had a prejudicial effect on the panel. The rule was stated as follows by the Missouri Supreme Court in Brookins, supra at 45:

“[PJublic excitement or prejudice is not of itself a sufficient cause for the continuance of a criminal case, at least where such excitement or prejudice is not such as to prevent a fair and impartial trial. The mere fact that there has been widespread adverse pre-trial publicity about accused does not, by itself, establish the reasonable probability that accused cannot obtain a fair and impartial jury at the trial so as to entitle him to a continuance.”

In State v. Spica, supra at 41, the court, refusing a request for continuance because of alleged prejudicial pre-trial publicity stated: “In the vast majority of such cases the proper procedure is not to postpone the trial, but to proceed to trial and to determine on the voir dire of the panel and the individual talesmen whether a fair and impartial jury can be selected.”

A factual situation similar to that under consideration appeared in State v. Arrington, 375 S.W.2d 186 (Mo.1964). Before and during trial the defendant, charged with rape, made three motions for continuance because of publicity concerning a brutal rape and murder which had occurred one week prior to trial. Nothing in the record disclosed “any question was asked the panel members which was designed to inquire into their knowledge concerning or the effect upon them of the publicity in connection with the other rape case,” 375 S.W.2d at 189[1]. The Missouri Supreme Court found, as we do here, the trial court had not abused its discretion refusing to grant a continuance since nothing in the record indicated defendant was automatically prejudiced and a fair trial made impossible.

Finally when an appellant contends his conviction should be overturned on the ground it was error to deny his request for a continuance because of pre-trial publicity, it has been held such contention “must be rejected if the defendant does not show that the jurors who tried the case were actually influenced or prejudiced by the pretrial publicity of which he complains.” State v. Brookins, supra at 45-6[1], Here, as in Brookins, appellant does not contend any juror who heard the case should have been excused or that a challenge to any juror was erroneously denied. Appellant’s allegation of error is without merit. Judgment affirmed.

WEIER, P. J., and McMILLIAN, J., concur.


text:
    Harold E. JACKSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36576.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 11, 1976.

      Charles Sarkisian, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Asst. Atty. Gen., Scott A. Raisher, Lucia Leggette, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

Movant appeals denial of his Rule 27.26,' V.A.M.R. motion seeking to set aside the conviction of assault with intent to kill with malice and sentence of twenty years imprisonment affirmed on direct appeal in State v. Jackson, 477 S.W.2d 47 (Mo.1972).

Movant contends he was denied effective assistance of counsel in that: (1) counsel did not move for production of a police report which, appellant alleges, would have impeached the prosecution’s main witness and established the foundation for a lesser included offense instruction; (2) counsel failed to object to introduction of a rifle used in the crime, thus foreclosing Supreme Court review of the wrongful search and seizure issue; and (3) counsel failed to conduct a full pretrial investigation and to subpoena witnesses and records requested by movant. Appellant also asserts the trial court erred in the 27.26 evidentiary hearing by quashing a subpoena duces tecum for the “police report."

In this review we determine whether “the findings, conclusions and judgment of the trial court are clearly erroneous,” Supreme Court Rule 27.26, V.A.M.R.; Johnson v. State, 516 S.W.2d 500, 501[3] (Mo.App.1974). “The burden of proof to establish the oft-levelled claim of ineffective assistance of counsel in post-conviction proceedings is on the movant and such onus is not met unless it is clearly demonstrated that the acts or omissions of counsel went beyond errors of judgment or trial strategy and were of such character as to result in a substantial deprivation of the right to a fair trial.” Crow v. State, 514 S.W.2d 13, 14[2] (Mo.App.1974).

The first allegation of error concerns defense counsel’s failure to request production of a police report in which the State’s chief witness is reported to have stated that he shot at movant first. Though not admissible as direct evidence, movant contends the report could have been used to impeach the State’s key witness, and lay the foundation for an instruction on the lesser offense of assault with intent to kill without malice. Defending his actions, movant’s trial counsel Eichenser, testified he was afforded the opportunity to read the police report and in his opinion nothing in the report was useful or favorable to mov-ant. He further stated that “after consulting with Mr. Moore [co-counsel] we felt the motion would be of no consequence.”

In State v. Aubuchon, 381 S.W.2d 807, 814[9] (Mo.1964), our Supreme Court held: “[I]f there is a satisfactory showing that a report or statement of a witness in the hands of the State is of such nature that without it, the defendant’s trial would be fundamentally unfair, then it should be produced; otherwise not.” The court further commented “if it be fairly shown that a material prosecution witness had previously made a statement of facts which completely exonerated the defendant, or which would totally change the degree of a crime, this should be produced.” However when this case was tried in May, 1970, counsel had no absolute right to a police report. State v. Aubuchon, supra at 815. The trial court could in a proper case refuse a request and such action is only reviewable for abuse of discretion. State v. Cannon, 465 S.W.2d 584, 587[1] (Mo. banc 1971). The primary reason underlying the restriction on use of police reports are their hearsay character. Often they are written by officers from what they remember having been told and frequently they are the composite work of several officers. As stated in Duncan v. State, 520 S.W.2d 123, 125[2] (Mo.App.1975): “[A] police report contains statements written down by the reporting officer of what other officers have informed him a certain person said in regard to certain facts. It is a condensation, not a verbatim transcript. It contains much hearsay and interpretation by the various officers whose contributions make up the report. It is seldom supported by sworn statements. Such a report cannot even be used to impeach a witness.” See also Williams v. State, 536 S.W.2d 190 (Mo.App.1976).

Nothing appears in the record to “exonerate” movant or “totally change the degree of the crime.” On the contrary, the testimony of defendant’s counsel who examined the report indicate it was of little or no “consequence” to the defense. In these circumstances it cannot be said that failure to move for production of the report so prejudiced appellant’s case that he was denied a fair trial. We rule the point against appellant.

Appellant shot at the owner with a .22 caliber rifle when interrupted during an attempted burglary. He now complains his attorneys failed to object to the rifle’s admission into evidence, thus not preserving the issue for appellate review and failed to preserve the point for consideration as plain error. The record belies the contention. Defense counsel moved to suppress the evidence arguing want of probable cause in the initial arrest and that the rifle was the fruit of illegal search and seizure. The motion was heard and denied. While it is true that no objection to the admission of the rifle was made during trial, defense counsel testified they decided to abandon suppression of the evidence strategy and concentrate on the identification issue, which, in their opinion was more likely of success. In their judgment this would avoid the risk of confusing the jury and diluting the stronger “identification” issue. Error in trial strategy is not sufficient to establish a charge of incompetence. State v. Brownridge, 506 S.W.2d 466, 468[6] (Mo.App.1974); Cheek v. State, 459 S.W.2d 278, 281[2] (Mo.1970). As the failure to file a motion to suppress evidence is not, in itself sufficient to show the defendant was deprived of effective counsel, Brown v. State, 512 S.W.2d 404, 408[6, 7] (Mo.App.1974); a fortiori when, as here, such motion is filed and overruled, the strategy decision to waive the issue during trial does not constitute ineffective assistance of counsel in the constitutional sense. Though appellant questions counsels’ strategy decision, the rifle was not crucial, as all elements of the offense were fully established by the testimony of prosecution witnesses. The point is ruled against defendant.

Appellant next contends counsel failed to conduct a full pretrial investigation, to subpoena Officer Gene Smith and to subpoena certain hospital records. Appellant told his attorneys he had been with Officer Smith prior to the incident, that he had borrowed money from Smith who would testify as an alibi witness, and Smith told another officer that appellant could not have possibly committed the offense. At the evidentiary hearing Attorney Moore testified he had called Smith but Smith would not corroborate appellant’s story and stated his testimony would not be favorable to appellant. Smith testified he had not been contacted by Moore although he did admit he could have forgotten.

While choice of witnesses is a matter of trial strategy, Crow v. State, supra at 16[5], and exercise of that choice does not afford a basis for a finding of ineffectiveness of counsel, Monteer v. State, 506 S.W.2d 25, 27[5] (Mo.App.1974), it is incumbent upon defense counsel in most cases to investigate and contact potential witnesses requested by defendant. Jones v. State, 491 S.W.2d 233 (Mo.1973); Foster v. State, 502 S.W.2d 436 (Mo.App.1973). In the instant case however, counsel testified that he had contacted the witness. The issue thus becomes one of credibility to be resolved by the trial court whose finding is only reversible if clearly erroneous. Rule 27.26(j), V.A.M.R.; Campbell v. State, 515 S.W.2d 453 (Mo.1974); Quinn v. State, 515 S.W.2d 603 (Mo.App.1974). We cannot say that the trial court’s finding was clearly erroneous, particularly in light of Smith’s testimony that he might have forgotten. We find appellant has not met the burden of proving his charge that failure to subpoena Smith constituted ineffective representation.

Appellant’s claim regarding his attorneys’ failure to obtain certain hospital records was not raised in the evidentiary hearing and thus is not properly before the court for review. Harkins v. State, 494 S.W.2d 7, 14[7] (Mo.1973); Day v. State, 516 S.W.2d 53, 56[7] (Mo.App.1974); Steward v. State, 499 S.W.2d 830, 832[1] (Mo.App.1973).

The fourth point is also without merit. Appellant asserts that trial counsel failed to lay a foundation for an instruction on a lesser offense. However, this contention rests on the failure to obtain and utilize the police report mentioned in Point I above and since the report could not have been admitted into evidence nor used to impeach and because it clearly contains no material “which would totally change the degree of a crime” it could not have provided a basis for an instruction on a reduced charge.

Finally, the evidentiary hearing court refused to permit reading the police report into the record. Appellant contends this was error, requiring remand because without the report the court could not rule on the seriousness of counsel’s failure to move for its production. He misses the mark. A copy of the report was attached to appellant’s 27.26 motion. The hearing court was informed of its content and the purpose urged for its admittance. Further, in the criminal proceeding the report was available to and examined by defense counsel but as hereinabove determined, was not admissible or available for impeachment. The point is without merit. Judgment affirmed.

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

      . Had the police report been admissible as substantive evidence and if the victim had stated he shot at the robber first, when as here mov-ant was an armed threatening intruder in the victim’s shop at night, it is doubtful if an instruction of assault with intent to kill without malice would be warranted. See State v.

        Burns, 328 S.W.2d 711, 713-14[5, 6] (Mo.1959); State v. Spencer, 307 S.W.2d 440 (Mo.1957).

      . While no transcript of the motion to suppress proceeding was brought to the Supreme Court in State v. Jackson, 477 S.W.2d 47 (Mo.1972), the court’s opinion recites facts relative to probable cause for arrest including the victim’s immediate description of defendant (movant here), defendant’s possession of the rifle used in the crime and his dropping of the rifle in the officer’s presence as he ran to avoid arrest. These and similar facts led the court to comment that notwithstanding its refusal to consider the search and seizure issue stemming from the warrantless arrest, since it was not properly preserved for review, the court did not mean “there was no probable cause for the, initial arrest,” State v. Jackson, supra at 51, implying the point though not reached was not well-taken.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Milton FEEMSTER, Defendant-Appellant.
    No. 37122.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 11, 1976.
    Huck, Hasten & LaBeaume, Graham W. LaBeaume, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Douglas G. Mooney, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant was found guilty by a jury of the § 557.390 charge of escaping from custody before conviction. On appeal the defendant contends that the State failed to prove that the defendant had not yet been convicted of the charge for which he was held. We disagree and affirm.

The evidence conclusively shows that on May 15, 1974, defendant was charged with first degree murder. While the charge was pending, the defendant was taken to St. Louis City Hospital No. 2 for treatment of a leg infection. On August 10, 1974, while in the hospital, the defendant was able to twist off the handcuffs binding him to his hospital bed, and he escaped. He was again arrested on January 18, 1975. The defendant concedes that he was in lawful custody for the criminal charge of first degree murder and that he escaped from that custody while in the hospital on August 10, 1974. However, he asserts that the State failed to prove that his escape was before conviction. The record clearly refutes defendant’s argument. The official court file relating to defendant, which was admitted into evidence without objection, conclusively established that from May 15, 1974, the filing date of the substitute information for the charge of first degree murder, until August 10,1974, the date of the hospital escape, the defendant had not been tried or convicted for the first degree murder charge. Hence, the defendant’s escape was before conviction. The record placed in evidence was the official court file, properly identified by the deputy clerk of the St. Louis Circuit Court of Criminal Causes, served as competent evidence that the defendant had escaped his confinement before conviction of the charge of first degree murder. § 490.680; State v. Kent, 382 S.W.2d 606 (Mo.1964).

Defendant relies on State v. Alderman, 500 S.W.2d 35 (Mo.App.1973), which is not appropriate to this case. In Alderman, the record conclusively established that the defendant had escaped after his conviction of the charge for which he was being detained and that there was an utter lack of evidence to prove that the defendant had escaped before conviction; not so here.

The judgment is affirmed.

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

      . Statutory references are to RSMo. 1969.


author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Troy L. RUSS, Defendant-Appellant.
    Nos. 36889, 37057.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 11, 1976.

      James C. Jones, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Sheila Hyatt, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Troy L. Russ, was charged, tried and found guilty by a jury of the offense of burglary in the second degree, § 560.095, and the trial court, under the provisions of the Second Offender Act, § 556.280, imposed sentence of five years in the Department of Corrections. He appeals. We affirm.

Appellant, on this appeal contends that he is entitled to a new trial because the trial court erred in overruling defense counsel’s objection to the introduction in evidence of a “cardboard box full of bottles of liquor . . . .” He contends there was no adequate foundation laid and no valid chain of custody shown to reasonably assure that the exhibit was the same at trial as it was when it was first seized at the scene of the offense.

Since this is the only point raised on appeal and since appellant does not raise any issue concerning the sufficiency of the evidence to make a submissible case, we shall state only those facts necessary for the disposition of the point raised on appeal.

On August 2,1974, Lillian Elizabeth Burr owned a tavern known as Earl’s Place in the City of St. Louis. Mr. James Joseph Bogeman, Sr. worked there and was working there in August, 1974. On the evening of August 1, 1974, he was the last one to leave the premises. Before leaving, he “locked the front door and the side door. . [a]nd the back door.” At about 12:25 a. m., on the morning of August 2, 1974, Officer Herman Moon, an officer of the St. Louis Police Department, having finished his tour of duty for the day and having returned to his home, was “fixing to go to bed.” While he was doing so, he “heard glass breaking.” He looked out his window to the tavern directly across from where he lived and noticed that a “window across at the tavern was broken out and a man was climbing through the window.”

The tavern was about one hundred feet away from his front window. The individual climbing in the tavern window was wearing “white and red checkered pants . .” Officer Moon also saw a man standing on the sidewalk next to the window and another man “down on the corner.” After hearing the breaking of glass, he “jerked” on his trousers and went across to the tavern. As he approached the tavern, the man with the “white and red checkered pants,” later identified by Officer Moon as the appellant, Troy L. Russ, was handing whiskey out the window to another man. The whiskey which was being taken out was “being put in a cardboard box.” The man standing on the sidewalk was taking the whiskey from the man inside [Russ]. Officer Moon informed the men they were under arrest. The man on the sidewalk ran. The man on the inside [Russ] ran to the back of the tavern but could not get out that way because of a steel door, and returned to the window and “fell when he came out the window . . . .”

By this time, someone had called the police, and other officers including Officer Joseph Kresko arrived. Officer Moon “turned” the appellant, Russ, and the evidence — box containing the liquor — over to Officer Kresko. At trial, Officer Moon was “positive and certain” that the appellant was the gentleman he “saw enter the tavern” that evening.

At trial, Officer Moon was asked to “take a look at State’s Exhibit 1 [the box and bottles of liquor].” He testified that the box' and liquor were the “same or similar to the box and liquor” he saw on the morning of August 2, 1974. The initials “J. K.” [Joseph Kresko?] appeared on the bottles.

In the early hours of the morning on August 2, 1974, Lillian Burr, the owner of Earl’s Place, was called and came to the tavern after she was informed the tavern had .been broken into. Inside the tavern she found a rock about “that” big behind the bar; she also saw a box of liquor by the window. She testified that the box of liquor introduced at trial “looks like the same box because you see the name of it down there — Mansfield. We have all this kind.” In fact, she said, “I am sure it looks like the same box . . . .” She testified that the top shelf “where we keep the V-O” was almost empty and that the box introduced in evidence contained a number of bottles of Seagrams V-O.

When the assistant circuit attorney requested that the exhibits be admitted, defense counsel objected to “admitting the bottles of liquor and the box, in that no proper foundation, no chain of custody has been laid as to whether these are the same. Everyone says they are similar, no one says they are the same. There was no testimony on chain of custody.” The objection was overruled and the exhibit admitted.

The defendant presented testimony to the effect that the criminalist at the police department who examined defendant’s clothes found no glass or “specimens that were brought in from the scene.”

The jury found the defendant guilty, and the court, after granting allocution, sentenced him to five years in the Department of Corrections.

On this appeal, appellant argues that no chain of custody was shown and that a “reasonable assurance” that the exhibit was the same at trial as when it was first obtained was “clearly lacking”; hence, appellant contends he was prejudiced by the admission of the exhibit — the box and the bottles of liquor.

We find no error. First, when an exhibit is “susceptible to positive identification in a singular sense and has been specifically identified . . . , chain of custody becomes an irrelevant issue.” State v. Orr, 493 S.W.2d 374, 377 (Mo.App.1973). Or, put negatively, chain of custody is only a relevant issue to a determination of whether certain evidence is admissible where the exhibit is not susceptible to positive identification. State v. Granberry, 484 S.W.2d 295, 300-301 (Mo.banc 1972). To come within this principle, a “positive” identification is not essential. It is sufficient for purposes of admissibility if the identification of tangible property is a qualified one. State v. Alderman, 498 S.W.2d 69, 72 (Mo.App.1973); State v. Johnson, 286 S.W.2d 787, 791 (Mo.1956) [weapon “ ‘looked like,’ . looked ‘very much’ like . . .”]; State v. Stancliff, 467 S.W.2d 26, 30 (Mo.1971); State v. Kern, 447 S.W.2d 571, 575 (Mo.1969); State v. Hollins, 512 S.W.2d 835, 839 (Mo.App.1974). Identification of an exhibit need not be wholly unqualified in order to make it admissible; the weight to be given to the identification is a matter for the jury. State v. Alderman, supra, 498 S.W.2d at 72.

Second, to establish a chain of custody the evidence must afford reasonable assurance that the exhibit was the same at trial as it was when first obtained. State v. Heather, 498 S.W.2d 300, 306 (Mo.App.1973). The chain of control or custody requirement is to prevent the alteration of or tampering with exhibits or to prevent any substitution. But it is not required to account for hand-to-hand custody of the evidence between the time it is obtained and the time it is admitted or that it be continually watched to establish a chain of possession. State v. Alderman, supra, 498 S.W.2d at 72; State v. Heather, supra, 498 S.W.2d at 306. It is sufficient if the evidence shows reasonable assurance that it was the same and in the same condition.

We hold there was a sufficient showing of a chain of custody here. Officer Moon testified that he turned the box and bottles of liquor over to Officer Kresko, the initials “J. K.” appeared on the bottles at trial, and Officer Moon and Lillian Burr testified that the box and bottles of liquor were the same or similar to the box and liquor found outside the window that August evening. Lillian Burr testified that a number of bottles of Seagrams V-O was in the box which was introduced as an exhibit. There was, under these circumstances, a reasonable assurance that the exhibit introduced was the same at trial as it was when it was first seized by Officer Moon and turned over to Officer Kresko.

Hence, we reject appellant’s assertion on this appeal that it was error to introduce, over defendant’s objection, the box and bottles of liquor because there was no adequate foundation or a showing of proper chain of custody. We find no error, and we therefore affirm the judgment of conviction.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.