author: SWOFFORD, Presiding Judge.

text:
    Vernon VOGEL, Respondent, v. HALL IMPLEMENT COMPANY and John Deere Insurance Company, Appellants.
    No. KCD 28687.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Application to Transfer Denied July 11,1977.

      Wendell E. Koerner, Jr., St. Joseph, for appellants; Brown, Douglas & Brown, St. Joseph, of counsel.
    Price Shoemaker, St. Joseph, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

This is a Workmen’s Compensation case. The employer, Hall Implement Company (Hall), and its insurer, John Deere Insurance Company (Deere), appeal from a judgment of the Circuit Court affirming an award of the Labor and Industrial Relations Commission (Commission) in favor of the employee-respondent, Vernon Vogel (Vogel), for permanent and total disability.

The only issues raised by Hall and Deere before the Commission and in the court below were the nature and extent of Vo-gel’s injuries and resulting disability. Here, they raise two points seeking the mandate of this court reversing the award or, in the alternative, ordering a remand to the Commission for the taking of additional evidence. They assert: First, that the court below should have set aside the Commission’s award because there was not sufficient competent evidence to support an award for permanent total disability, and second, there was not sufficient competent evidence to support the finding that Vogel’s condition was the result of the accident sustained by him.

It is appropriate to recognize at the outset the firmly established confines of judicial review in this type of proceeding, of particular significance in the determination of this appeal. The constitutional provision covering judicial review of administrative decisions states that “such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.” Article 5, Section 22, Constitution of Missouri.

The controlling decisional law is clear that the reviewing court should not substitute its judgment for that of the Commission (even though the court might have been persuaded to a different initial conclusion); the Commission’s award should be set aside only when it is not supported by substantial evidence or when it is clearly contrary to the overwhelming weight of evidence; the evidence, including all legitimate inferences, must be viewed in the light most favorable to the award; the Commission judges the credibility of the witnesses and the weight of their testimony; and the ultimate obligation of the reviewing court is to determine from the whole record whether the Commission could reasonably have made its findings and award. Merriman v. Ben Gutman Truck Service, Incorporated, 392 S.W.2d 292, 296[1-3] (Mo.1965); Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, 307 (Mo.1970); Slider v. Brown Shoe Company, 308 S.W.2d 306, 307[1, 2] (Mo.App.1957); Stegall v. St. Joseph Lead Company, 465 S.W.2d 855, 861[3] (Mo.App.1971); Saale v. Alton Brick Company, 508 S.W.2d 243, 246[1-4] (Mo.App.1974), and Smith v. Plaster, 518 S.W.2d 692, 696[1] (Mo.App.1975).

Giving appropriate recognition to these controlling principles, the facts, as pertinent to the points raised on appeal, may be thus summarized:

Vogel, the claimant, was nearing his 53rd birthday on March 11, 1972. He had finished grade school and then engaged in farming until 1947. He was then employed by Swift and Company in its packing plant and worked for the company for 17½ years, until it shut down. He went to work with Hall’s in 1967 as a farm equipment set-up man assembling heavy farm implements of various kinds. All of these occupations involved heavy manual labor.

On March 11, 1972, he was engaged in removing a cornhead from a Massey-Ferguson combine, when spring loaded arms holding the cornhead suddenly released and the arms struck him across the chest. That same day, he was seen by Dr. Butler, an associate of the Thompson-Brumm-Knepper Clinic (Clinic) at St. Joseph, Missouri, whose initial diagnosis was contusion of the lower sternum and chest. He was treated as an outpatient at the Clinic from March 11, 1972 to April 4, 1972, principally by Dr. Donald Stallard, an internist, and was also seen during that period by Dr. Fischer, a thoracic surgeon, both associates of the Clinic.

His condition deteriorated and he was admitted to the Methodist Hospital at St. Joseph on April 4,1972, where it was found that he had a swollen and tender left leg with one or more blood clots. Bloody fluid was removed from his chest cavity and the final diagnosis was: “Fracture second and third ribs, right; contusion (crack) of sternum; pulmonary embolism and infarction.” Dr. Stallard testified that these conditions were the result of the accident of March 11, 1972.

He was seen frequently by Dr. Stallard after his release from the hospital and was given anticoagulant medication. Vogel complained of a complete lack of his previous strength and energy, and shortness of breath and dizziness. He was sent to Kansas University Medical Center by the Clinic for examination and evaluation, and such diagnosis was reported “congestive heart failure, cause unknown”.

Vogel continued under Dr. Stallard’s care and his complaints persisted. In July, 1974, Dr. Stallard referred him to Dr. Ben McCal-lister, a cardiologist at Kansas City, for examination. On that occasion, Dr. McCal-lister made a finding that there was an abnormal bulge on the posterior aspect of Vogel’s heart which he thought was an aneurism which could be due to trauma or injury. Vogel returned to Dr. McCallister in September of 1974, at which time a diagnosis was made of a congenital abnormal arrangement of one of the pulmonary veins. The normal function of this vein is to carry the blood from the right side of the heart to the lungs to be oxygenated and then return it to the left side of the heart to be circulated. It was Dr. McCallister’s opinion that the pulmonary vein in Vogel’s case returns the blood it carries back to the right side of the heart (instead of the left) and thus back to the lung rather than into his body’s general circulation system. McCallister estimated that this abnormality involved 20% of Vogel’s blood circulation. In his second examination, Dr. McCallister revised his original opinion regarding the bulge in the heart (as an aneurism) and concluded it was due to a congenital abnormality of a heart muscle.

Dr. McCallister did not testify in person but his report to Dr. Stallard dated September 12, 1974 was introduced by Hall-Deere into evidence, without objection. Following his September, 1974 examination, he reported: “The relationship of this problem to the accident would seem to be most unlikely”. He added, “At the present time I do feel that Mr. Vogel is disabled for more than mild physical activities and do not feel that he could perform moderate to heavy physical work.” Further, Dr. McCallister’s report states that Vogel “definitely has evidence of a cardiomyopathy-myocardial disease of indeterminate etiology” and that this condition together with the anomalous pulmonary vein “certainly would compromise patient's cardiac function and account for his symptomatology”, yet he attempts to give no medical explanation or opinion accounting for the dramatic onset of the cardiac symptoms contemporaneous with the violent trauma of March 11, 1972, followed by the admitted traumatic results as above described.

Vogel continued under the care of Dr. Stallard, who testified at the hearing on February 21, 1975. After relating the history of the medical treatment given Vogel, the hospitalization and consultations secured, he stated that Vogel was still under his care and testified:

“Q. Concerning the facts of this accident, and, of course, your treatment to (sic) the medical history and so forth, is it your opinion that Mr. Vogel could return to his past employment?
A. No, I don’t think he can.
Q. He has never been in condition to return to work since he has been under the care of the Clinic, along with Dr. Butler and yourself?
A. No, he hasn’t.”

Further, he stated:

“Q. Then I believe I understand you have no idea at the moment or you are unable to determine when, if at anytime, Mr. Vogel could return to work?
A. I think he could return to mild work at any time; moderate or heavy work, no.
Q. Work like he was doing?
A. I don’t think he could ever return to that.”

On direct examination, Dr. Stallard further testified:

“Q. With reasonable medical certainty, would you say that the condition he suffers from at the present time was a result of the accident of March 11, 1972?
A. Well, I have always found that a hard one for me to answer and yet his symptoms date from that moment. Prior to that time he had no physical problems that I know about. He was a good worker to the best of my information and had a pretty clear bill of health previous to that time. Since that time he has continued to complain with being short of breath with very little exertion and very little strength and energy.”

On redirect examination:

“Q. And is it your opinion that the severe blow and (sic) something weighing about twenty-four hundred pounds could have aggravated that congenital condition?
A. Well, I find that a very hard question to answer and I don’t think I have a hard and fast answer. This is the way it seems to me as I mentioned earlier. He was to all intents and purposes and appearances in good health prior to the accident and has not been since. He did have pulmonary embolism or clotting to the lung, which resulted in the accumulation of bloody fluid and so forth. It seems to me reasonable that all those events added enough of an extra burden to his heart that it no longer functioned as good as it did previous to that time and probably the reason is he did not have a completely normal heart to begin with. Perhaps if his heart was entirely normal to begin with, he would have tolerated it much better.” (Emphasis supplied)

On cross-examination, Dr. Stallard testified with reference to Dr. MeCallister’s report:

“Q. And those tests indicate that the present condition of his heart were (sic) not related to the accident of March 11, 1972, did they not?
A. That is Dr. McCallister’s opinion." (Emphasis supplied)

The record on this appeal contains a standard form of Surgeon’s Report filed with the Commission on June 23, 1975, dated May 9, 1975, signed by Dr. Stallard, in which the following appears:

“7. Will the injury result in (a) Permanent defect? Yes. If so, what? Presently and probably permanently. So far as previous type of work that he was doing is concerned.”

Vogel in his testimony stated that he would be 56 years of age on May 18, 1975, and related his background and work experience as a farmer, employee in the meat packing business and with Hall, as above recounted. He stated the facts of the accident and testified that the blow to his chest was of sufficient force to cut a coin purse and bend a metal car key therein, which purse he was carrying in a chest level pocket of his bib overalls. He recounted his medical treatment following the accident, as summarized above.

Vogel testified that he had always earned his living by hard labor; had always been in good health; had no prior disabilities; and had no previous heart trouble. He stated that since his injury he just “wears out” if he tries to do anything; even walking wears him out and makes him short-winded or short of breath so that he has to sit down and rest; trying to shell some pecans at a table produced the same result the day before the hearing; around the house he can only get breakfast or help with the dishes; at Christmastime, he tried to make two toy railroad cars, wore out and had to rest for three or four hours; he could not help his wife much with a small vegetable garden; now “I just can’t do anything I want to do”; trips to the shopping center wear him out so he has to rest; and sometimes he is dizzy until he “gets rested up”.

Mrs. Vogel, the claimant’s wife, stated that Vogel tries to do things, has the desire to do things, but “goes to pieces” and isn’t able to carry them out. Since he recovered from the initial blood clot and lung conditions, she has noticed no improvement in his general condition, and in her opinion, he hasn’t been able to do a day’s work. He is still under the care of Dr. Stallard of the Clinic.

Hall-Deere introduced no evidence except certain exhibits, including Dr. McCallister’s report to Dr. Stallard, introduced during cross-examination of claimant and Dr. Stal-lard.

Section 287.020(7) RSMo 1969, provides as follows:

“Definitions
* * * * * *
(7) The term ‘total disability’ as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.”

This subsection was part of the original Workmen’s Compensation Act, Laws 1925, p. 381, Section 7(e).

Our courts have held that the phrase “inability to return to any employment”, as used in this statute, means that the person referred to is unable to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. Kinyon v. Kinyon, 230 Mo.App. 623, 71 S.W.2d 78, 82[5] (1934); Kateman v. Zink, 238 Mo.App. 253, 180 S.W.2d 253, 257-258[3, 4] (1944). In the case of Groce v. Pyle, 315 S.W.2d 482 (Mo.App.1958), this court after stating the above rule of construction, said, 1. c. 490[6]:

“ * * * Further, the terms ‘any employment’ mean any reasonable or normal employment or occupation as those words are generally understood, and it is not necessary that the injured employee be or remain completely inactive and inert in order to meet the statutory definition of one unable to return to any employment. * * * The question is could any employer of labor, in the usual and ordinary course of business, seeking persons to perform the duties of an employment in the usual and customary way, reasonably be expected to employ him in his present physical condition, and could he reasonably be expected to perform the duties of the employment?”

The Groce court cited and followed the earlier case of Maddux v. Kansas City Public Service Co., Ill S.W.2d 208 (Mo.App.1937), where the court in resolving the same problem stated, 1. c. 214[3]:

“ * * * Claimant might be able to sit on the street and sell peanuts, pencils or shoe strings. There is ample evidence from which the commission could have found that he could not carry on any normal dignified occupation. * * * ”

In this case, considering the limited education of Vogel, his past history of occupations involving hard manual labor and his present disabilities, the conclusion is reached that there was substantial and competent evidence before the Commission to support its finding of total permanent disability. The first point urged by appellants Hall-Deere is ruled against them.

At the outset of consideration of Hall-Deere’s second point, dealing with medical causation, it should be noted that the testimony and findings by Dr. McCallister of a congenital heart defect affecting Vogel’s circulatory system is not disputed.

However, it is well-settled law in this state that prior existing physical handicaps or deficiencies do not prevent an award for compensation where the other standards of the Act are met. Federal Mutual Insurance Company v. Carpenter, 371 S.W.2d 955, 957[3] (Mo.1963); Gill v. Massman Construction Co., 458 S.W.2d 878, 882-883[6, 7] (Mo.App.1970).

In Cowick v. Gibbs Beauty Supplies, 430 S.W.2d 626 (Mo.App.1968), a case where an employee died following an automobile accident, which in itself produced no external evidence of trauma, recovery under the compensation law was allowed for his widow and children. An autopsy was performed which disclosed evidence of an old heart infarction and hardening of the arteries which resulted in narrowing of the openings through which the blood reaches the heart and a resulting lack of adequate blood supply. The autopsy pathologist testified that the cause of death was ventricular fibrillation which would further add to the lack of blood supply and “one does not need to look further” than the emotional stress of the accident and the following walk in the snow as significant aggravating factors to precipitate the fatal ventricular fibrillation which, the doctor stated, “I presume has to be the mechanism of death”.

In affirming an award of compensation to the widow and children, the court said, 1. c. 630[5]:

“If an accident results in aggravating or accelerating a pre-existing disease or condition, it is compensable. Mashburn v. Chevrolet-Kansas City Division, 397 S.W.2d 23, 29 (Mo.App.). There is evidence here from which the Commission could have found that the accident activated the condition which caused death to occur at the time it happened; that it was an efficient, exciting, superinducing, concurring, or contributory cause of death. Wilson v. Emery Bird Thayer Company, 403 S.W.2d 953, 958 (Mo.App.)”

In compensation proceedings the testimony of any medical witness should be appraised and weighed in its entirety, Slider v. Brown Shoe Company, 308 S.W.2d 306, 309[3] (Mo.App.1957) and cases cited therein. A fair appraisal of the testimony of Dr. Stallard in this case and his report to the Commission dated May 9,1975, leads to the conclusion that, considering Vogel’s lack of previous difficulties or handicap from his congenital heart condition, it was the doctor’s opinion that there was in fact medical causation between the trauma sustained by Vogel on March 11, 1972 and his present physical condition. In this regard, his sworn testimony and his statements in the aforementioned report, even though in apparent conflict with the opinion of Dr. McCallister, were accepted by the Commission. This was a finding of fact, particularly for the determination of the Commission. Groce v. Pyle, supra, at 1. c. 490[5]. Such acceptance as between conflicting medical opinions or conclusions cannot be here disturbed unless the conclusions accepted were against the overwhelming weight of the evidence. Stegall v. St. Joseph Lead Co., 465 S.W.2d 855, 861[3] (Mo.App.1971); Franklin v. St. Louis Independent Packing Company, 360 S.W.2d 350, 355[4] (Mo.App.1962).

The testimony of Dr. Stallard coupled with that of Vogel and his wife constituted competent and substantial evidence from which the Commission could reasonably find (as it did) that claimant’s present condition was caused by the accident of March 11, 1972. Slider v. Brown Shoe Company, supra. Hall-Deere’s second point is ruled against them.

The judgment of the Circuit Court affirming the final award of the Industrial Commission is affirmed.

All concur.


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    Harvey F. EUGE, Plaintiff-Appellant, v. James F. GOLDEN et al., Defendants-Respondents.
    No. 37480.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 3, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11,1977.

      Harvey F. Euge, pro se.
    Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Dennis H. Tes-reau, John A. Schneider, Hillsboro, for defendants respondents.
   DOWD, Judge.

This is an appeal from an order of the Circuit Court of St. Louis County entered on June 13,1975, sustaining the defendants-respondents’ motion to dismiss the first amended petition of the plaintiff-appellant, Harvey Euge, which sought to set aside a trustee’s foreclosure sale for fraud and misrepresentation and damages for slander of title. For reasons herein stated, we reverse the order sustaining the motion to dismiss and remand the cause for further proceedings.

After oral argument, defendants-respondents filed a motion to dismiss the appeal, contending that plaintiff-appellant failed to comply with Rule 81.04. Defendants argue that appellate jurisdiction has not been properly invoked because plaintiff’s notice of appeal was not filed within 10 days after the trial court’s order became final as required by Rule 81.04. Defendants’ contention is without merit.

Rule 73.01(l)(c) provides that, in a court-tried action, a party “may, but need not” file a motion for new trial in order to preserve error. If the party does file a motion for new trial, the judgment does not become final for 90 days or until the trial court rules on the motion. Rule 81.05; 508 Chestnut, Inc. v. City of St. Louis, 389 S.W.2d 823, 827[1] (Mo.1965). In the case at bar, plaintiff filed his motion for rehearing or, in the alternative, motion for new trial on June 28, 1975, within the 15 day time limit for such motion. Rule 73.01. The record does not contain any ruling by the trial court on this motion. Thus, the order dismissing plaintiff’s action on June 13, 1975 did not become final until September 26,1975, 90 days after plaintiff’s motion for new trial was filed. Rule 81.05. Plaintiff’s notice of appeal on October 6, 1975 was within 10 days after the judgment or order became final and was timely. Rule 81.04.

Plaintiff is not an attorney but represented himself in the proceedings below and filed a pro-se brief here.

Plaintiff filed a “Petition to Set Aside a Trustee’s Foreclosure Sale for Fraud, Deceit, and Misrepresentation To Set Aside a Trustee Deed Issued Therein For Damages for Slander of Title.” Defendants moved to dismiss the petition for failure to state a claim upon which relief could be granted or, in the alternative, to make the petition more definite and certain. In addition, defendants moved for an order that plaintiff give security for costs. On April 22, 1975, the following order was entered by Judge George E. Schaaf:

“It is difficult to determine whether plaintiff’s cause of action is for an Injunction, a Suit to Set Aside a Foreclosure Sale and Deed of Trust, or a Suit for Damages on the theory of slander of title. They are all commingled. Therefore, defendants’ Motion to Dismiss, heretofore heard and submitted, is sustained. However, this Court will permit plaintiff one more attempt to properly plead within 30 days.
“Defendants’ Motion to Secure Costs is hereby sustained. Filing costs in St. Louis County are $71.00 and plaintiff is granted 30 days to pay into the Registry of Court the additional $30.00 Court costs required.”

Plaintiff then filed his three-count, amended petition, asserting: (1) he bought certain real estate by general warranty deed from defendant Goldens; (2) defendant Goldens, as maker of a note to defendant Coster, and defendants Coster and Schubel, had a false, fraudulent, and worthless deed of trust against the real estate, which did not represent a true debt; (3) plaintiff was never informed of the terms of the deed of trust, and no demand was made upon him to pay it; (5) Schubel and Coster foreclosed on the deed of trust, and Schubel sold the property to defendant Goldens; (6) the deed of trust was “maintained” on the real estate at the time conveyed to plaintiff by general warranty deed for the purpose of defrauding plaintiff of his money and property rights; (7) defendant Goldens is seeking to oust him from possession of the real estate; and (8) by these acts, defendants have slandered plaintiff’s title to the real estate.

In summary, plaintiff alleged that defendants engaged in a scheme to take away his property by a foreclosure on a false deed of trust. He asked the court to rule that the deed of trust was null and void, to set aside the foreclosure sale and trustee’s deed, to prevent enforcement of the trustee’s deed, and to award actual and exemplary damages.

Defendants again moved to dismiss the petition, urging that: (1) the petition did not state a claim upon which relief can be granted, because plaintiff admitted the deed of trust was recorded at the time of the purchase of the real estate and plaintiff did not contend he did not have notice of the foreclosure; and (2) the cause of action was dismissed by the operation of Judge Schaaf’s order, because the petition was not filed and the costs were not paid within the 30 day period allotted in said order.

On the 13th day of June, 1975, the following order was entered by Judge Ninian Edwards:

“Comes now the Court and takes up defendants’ motion to dismiss plaintiff’s petition with prejudice; plaintiff has announced to the clerk that he will not appear, and does not appear. Defendants appear by counsel of record to argue their motion which was duly noticed; cause is dismissed with prejudice because of plaintiffs failure to file amended petition and other grounds set out in defendants’ motion; this ruling is designated a final appealable order.”

Plaintiff’s brief urges that his petition was filed within the 30 days allotted him by Judge Schaaf’s order, that his petition states a cause of action for fraud, and that therefore the lower court erred in dismissing his petition. Defendants argue that the transcript on appeal shows a filing date after the 30 day period and that, in addition to failure to file on time, the petition was properly dismissed for failure to state a claim because the deed of trust was recorded prior to the conveyance.

We first consider the question whether the first amended petition was timely filed. We have examined the trial court file and find that plaintiff’s first amended petition was stamped as being received at 4:21 p. m. on May 22, 1975. A piece of paper stating the amended petition was filed and $30.00 costs paid is also filed and stamped as received at 4:21 p. m. on May 22,1975. Both documents are stamped as being filed on May 28, 1975.

A paper is filed when it is delivered to the proper officer and lodged in his office. Ely v. Parsons, 399 S.W.2d 613, 619 (Mo.App.1966). The critical date is the date the document is received; and, once the document is delivered, the person filing the document is not responsible for the disposition of the document by the clerk’s office. See Stephan v. World Wide Sports, Inc., 502 S.W.2d 264 (Mo.1973). We hold that plaintiff’s petition was filed within the 30 day period as ordered and that the trial court erred in dismissing the amended petition on the ground it was not timely filed or that the court costs were not paid on time.

We are then left with the question of whether or not plaintiff’s amended petition states a claim upon which relief may be granted, the only other ground for dismissal alleged in defendants' motion.

On a motion to dismiss for failure to state a claim, we are required to construe the petition favorably and to give the pleader the benefit of every reasonable and fair intendment in view of the facts alleged. If the pleader’s allegations invoke principles of substantive law which may entitle the party to relief, the petition is not to be dismissed. If the facts pleaded and reasonable inferences to be drawn therefrom, looked at most favorably from the plaintiff’s standpoint, show any ground upon which relief can be granted, the plaintiff has a right to proceed. Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629, 630 (Mo.App.1975). Indeed, under principles of modern pleading, a petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Laclede Gas Company, supra at 630.

Defendants argue that plaintiff admitted the deed of trust was recorded at the time of the conveyance to him. We do not agree plaintiff admitted such a fact in his pleading. He only states in paragraph 16 that the deed of trust was “maintained on the real estate” at the time of the conveyance to him. Furthermore, plaintiff’s claim extends beyond record notice to the claim that the recorded deed of trust was false and was part of a scheme to defraud him.

The elements of an action for fraud and misrepresentation are that (1) a representation was made of a material fact which was false and known to be false and recklessly made, (2) the statement was made with an intent that it should be relied upon by the person and in the manner reasonably contemplated, (3) that the hearer was ignorant of the falsity of the statement, (4) that the hearer has a right to rely on the statement and did in fact do so, and (5) that the plaintiff was induced thereby to act to his consequent and proximate injury. Yeager v. Wittels, 517 S.W.2d 457, 463 (Mo.App.1974).

Plaintiff’s allegations are unclear, and he does not specifically allege each element of fraud. However, if the petitioner’s allegations invoke substantive principles of law which may entitle the pleader to relief, it will be sustained even though the cause of action is imperfectly or defectively stated. Schnabel v. Taft Broadcasting Co., Inc., 525 S.W.2d 819, 821 (Mo.App.1975); Kersey v. Harbin, 531 S.W.2d 76, 79 (Mo.App.1975). Plaintiff alleges a scheme to defraud him by conveying property under a general warranty deed and foreclosing upon a false and fraudulent deed of trust. We cannot say that plaintiff could prove no set of facts in support of his claim which would entitle him to relief.

Plaintiff’s allegations also state a claim in an action of damages for slander of title. He must plead that false words were maliciously uttered which resulted in his pecuniary loss. Long v. Rucker, 166 Mo.App. 572, 149 S.W. 1051 (1912). Recordation of a false instrument does state a claim under slander of title. Greenlake Inv. Co. v. Swarthout, 161 S.W.2d 697 (Mo.App.1942). Plaintiff here alleges a false deed of trust was recorded against his property with intent to defraud him. His allegations state a claim.

Although plaintiff may have to amend to add facts to support his claim in fraud, and although plaintiff may have difficulty proving his allegations, he should be afforded his day in court and have the opportunity to prove his claims.

The trial court’s order dismissing plaintiff’s petition is reversed, and the cause is remanded for further proceedings.

CLEMENS, P. J., and SMITH, J., concur.


author: WEIER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Cornelius DODSON, Defendant-Appellant.
    No. 37903.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 10, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11,1977.

      Lee & O’Hanlon, Robert J. O’Hanlon, Lawrence J. Lee, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Judge.

Defendant Cornelius Dodson was found guilty of first degree murder and was sentenced to life imprisonment. In this appeal from the judgment of conviction defendant advances four contentions of trial error. To understand these contentions a statement of the facts is required.

On February 7, 1975, Henry Blake was found dead in his car parked at a St. Louis housing project. He had been shot to death. Recovered on the ground nearby were forty-five caliber cartridge cases and a magazine that would fit into a Spitfire forty-five caliber semi-automatic weapon. Another man was also shot in the incident, a Robert Cole.

Later police officers were informed that defendant Cornelius Dodson had shot Henry Blake. On February 13, 1975, upon learning of the defendant’s location, about ten police officers went to the defendant’s motel room and arrested him without a warrant. Upon arrest the defendant was given a reading of his Miranda rights by Sergeant Charles Porter. When asked if he wanted to tell the police anything at that time, the defendant said he did not. The defendant was then brought to police headquarters and again read his Miranda rights by the sergeant. About an hour and twenty minutes after his arrest, the defendant was brought to the interrogation room and again informed of his constitutional rights by Sergeant Porter.

Upon the occasion of this third reading, the sergeant asked the defendant if he understood his rights and if he wanted to make a statement. He replied that he understood them better than the police, that he had one of the best attorneys in town and that while he would not make a written statement, he would tell the police what happened orally because the police wouldn’t use that against him. The defendant then related to the police the story that he had been playing in a crap game early in the morning of February 7, 1975, when Henry Blake and Robert Cole robbed him of some money and a diamond ring. The defendant then put out a reward for knowledge of Blake’s and Cole’s whereabouts. He learned that they were at a service station but refrained from shooting them for fear of hitting the attendant. Later he found out they were parked in a car at a housing project. He fired at them with his Spitfire weapon, killing Blake. The day before he had told another police officer that he owned such a weapon. Cole ran away and the defendant wasn’t able to kill him for fear of hurting a woman on the street. The interrogation took one hour according to the police.

The defendant contests his conviction on four major grounds. We reject all of these and affirm the conviction.

The defendant contends first that the trial judge abused his discretion by not excusing for cause venireman William F. Walsh, who then had to be removed by the defendant with a peremptory challenge. The defendant charges that venireman Walsh could not be a fair and impartial juror by reason of a thirty-year acquaintanceship with one of the police officers scheduled to be a witness to the defendant’s oral confession. He argues the judge should not have relied on Mr. Walsh’s assertions that the police officer would have no extra degree of credibility in the venireman’s eyes.

It is well-settled that a defendant is entitled to a full panel of qualified jurors before he must make peremptory challenges. State v. Lovell, 506 S.W.2d 441, 443[1] (Mo. banc 1974). Failure of a trial judge to excuse for cause a legitimately challenged venireman is reversible error. See, e. g., State v. Lovell, supra at 444[4]; State v. Land, 478 S.W.2d 290, 292[3] (Mo.1972). The defendant’s challenge to Mr. Walsh was not made on statutory grounds. See §§ 546.100-546.150 RSMo 1969. As for nonstatutory challenges, the rule is that the trial judge is vested with broad discretion, that his decision should not be overturned unless there is a clear abuse of discretion, and that any doubts are to be resolved in favor of the trial judge’s decision. State v. McGrew, 534 S.W.2d 549, 551[3] (Mo.App.1976). When determining whether to over turn a trial judge’s decision, the reviewing court must judge each case on its own facts. State v. Land, supra at 292.

Here venireman Walsh, continued throughout the voir dire examination to insist that he would be a fair and impartial juror and that he would give no additional credence to the police officer’s testimony. Although it is up to the trial judge and not the venireman to conclude that he is able to be an impartial juror, the venireman’s testimony on his impartiality is evidence of that fact. State v. McGrew, supra at 551[4]. Friendship or relationship with a police offi-, cer alone is not sufficient to disqualify a venireman. See, e. g., State v. Eaton, 504 S.W.2d 12, 17[9] (Mo.1973); State v. Cashman, 485 S.W.2d 431, 434[5] (Mo.1972); State v. Drake, 518 S.W.2d 335, 337[6] (Mo.App.1975); State v. Wraggs, 512 S.W.2d 257, 259[5] (Mo.App.1974). Nor is friendship with a witness alone. See, e. g., State v. Cashman, supra at 433[3]; State v. McGrew, supra at 551-52[6, 7]. Mr. Walsh was not a close friend of the testifying police officer. For the last five years of the thirty-year acquaintanceship, Mr. Walsh had at the most merely said “hello” to the officer once in a while. Mr. Walsh stated he would be impartial and would put the officer to the same standards of credibility as any other witness. Both of these factors lead us to find that there was no abuse of discretion in refusing to excuse venireman Walsh for cause.

The second contention of the defendant is that he was entitled to a directed judgment of acquittal at the close of the case .because there was no extrinsic evidence to corroborate his confession. An extrajudicial confession alone will not suffice to support a conviction. State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396, 397[2] (1951). A confession must be corrob orated but full proof of the corpus delicti, independent of the confession, is not required. State v. McQuinn, supra at 397[3]; State v. Colton, 529 SW-2d 919, 921[1] (Mo.App.1975). All that is'required is evidence of corroborating circumstances tending to •prove the corpus delicti and corresponding with circumstances related in the confession. State v. McQuinn, supra at 397[4]; State v. Colton, supra at 921-22[2]. The corpus delicti murder consists of the death of the victim by means of the criminal agency of someone besides the deceased. State v. MeQuinn, supra at 396[1].

The state introduced into evidence proof of many corroborating circumstances tending to prove the death of Henry Blake by someone other than the deceased. Such circumstances corresponded with the events related in the defendant’s confession. Among these were the finding of Blake dead with a bullet hole in his head seated in a car with bullet holes in it. Bullets were found in the car that had been fired. Cartridge cases were found on the ground ne'ar the car. A loaded magazine fitting a Spitfire forty-five caliber semi-automatic weapon was also found on the ground. Defendant had told a policeman prior to the killing that he owned such a weapon.. Defendant referred in his confession to the place where Blake was killed, to the time he was killed, and how he was killed, all of which corresponded to the other evidence. We therefore determine that defendant was not entitled to a directed judgment of acquittal for lack of corroborating evidence.

The defendant’s third point on appeal is that the trial judge erred in refusing to submit to the jury an instruction offered by defendant on the issue of the voluntariness of his confession and in submitting to the jury instead MAI-CR 3.44. The defendant’s instruction No. C would have specifically required the jury to consider whether the defendant asked for and was refused his right to an attorney in determining the confession’s voluntariness. The MAI-CR 3.44 instruction merely told the jury to consider “all of the circumstances surrounding and attending the making of the statement” in determining its voluntariness.

We conclude that this issue was not properly preserved for review. In his motion for new trial, the defendant stated this contention of error: “The Court erred in refusing to give defendant’s instructions B, C, D, E, F, G, and H, for the reason that they submitted the issue of voluntariness of the confession and which issue was supported by substantial evidence in the record.” Such a generalized assignment of error is not at all sufficient to meet the requirements of Rule 27.20(a) that a motion for new trial “set forth in detail and with particularity . . .the specific grounds or causes therefor.” In order for a motion to satisfy these requirements it must indicate what facts in evidence warrant the refused instruction. State v. Sanders, 541 S.W.2d 530, 532[1] (Mo. banc 1976); State v. Schulten, 529 S.W.2d 432, 434[8] (Mo.App.1975). There was no attempt here to set forth any facts in evidence to support this charge of error. Therefore this issue was not preserved for appellate review.

The final contention of the defendant is that the trial judge should have granted the defendant’s pre-trial motion to suppress the confession. The defendant claims the confession should have been suppressed on two nonconstitutional grounds and three constitutional grounds. But here again defendant’s counsel has not properly-preserved this point for review. Rule 78.09 (made applicable to criminal cases by Rule 28.01) requires that counsel timely make known to the trial judge his objections to the judge’s actions and his reasons for objecting. This requires that counsel object at trial when the state first seeks to admit into evidence the defendant’s confession. It is not enough for appellate review that counsel file a pre-trial motion to suppress in order to preserve his objection to the admission of the confession. State v. Stevens, 467 S.W.2d 10, 19 — 20[7] (Mo.1971), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971); State v. Jones, 536 S.W.2d 523, 524[1] (Mo.App.1976); State v. Hampton, 509 S.W.2d 139, 142[6] (Mo.App.1974). The reasons for this rule are discussed in State v. Yowell, 513 S.W.2d 397, 402-403 (Mo. banc 1974).

We find no “manifest injustice or miscarriage of justice” that would warrant our exercise of the “plain error” rule under Rule 27.20(c).

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . On appeal, the defendant asks us to review the refusal of instruction C only.


author: GUNN, Judge.

text:
    HANNIBAL SALES COMPANY, Plaintiff-Respondent, v. J. W. SOLTER, Defendant-Appellant.
    No. 37791.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 17, 1977.

      J. Patrick Wheeler, Canton, for defendant-appellant.
    Wasinger & Parham, Marion F. Wasinger, Hannibal, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant was sued by plaintiff-respondent for the price of ten cows purchased by defendant at a cattle auction. Defendant counterclaimed for actual and punitive damages. The jury returned a verdict in favor of plaintiff against defendant for $4,961.70 in damages and interest. On appeal, defendant’s counsel in the best tradition of a lawyer fighting for his client with earnest zeal has raised a multitude of alleged points of error, and we consider those which have been preserved for our review.

Defendant attended a public auction conducted by the plaintiff auction company. He paid $4,470.00 for ten pregnant cows offered for sale at the auction and had the cows delivered to his farm. However, shortly after the sale, defendant stopped payment on his check, and plaintiff sued defendant for payment of the cows plus punitive damages, alleging a conspiracy to inveigle plaintiff from his property. Defendant counterclaimed charging he had been fraudulently induced to purchase the cows; that the ages of some of the cows had been understated; and that while the cows did calve, they did so later than had been represented at the sale. Jury verdict was for plaintiff on the bid price of the cows, plus interest.

During the course of the two day trial, there was all kinds of interesting testimony on how the age of a cow can be determined by looking in its mouth (mouthing); also, that a young cow can lose its teeth in a variety of ways, thus becoming a broken mouthed cow; that as a cow has no upper teeth it must use its tongue to pull on the grass it eats. The transcript also vividly portrays that in the fray of this hard fought courtroom battle, tempers became frayed. We note, however, that the trial judge was remarkably halcyon throughout the storm of trial. And throughout the trial and this appeal strong undertones of sweet Rose, the barren bovine of Aberlone, have bawled forth.

Defendant’s first point of error relates to the trial court’s exclusion of two registration certificates for the cows purchased. At the auction, plaintiff’s auctioneer, reading from a card furnished him by an employee in the sale barn, announced that within the ten cow group ultimately purchased by defendant, four cows were five years old, four cows were six years old, one was seven and one was eight. Defendant bought the cows and took them home. He subsequently had the cows mouthed to determine their ages and found that while five of them were of the ages stated at the auction, and therefore acceptable, four were older than had been represented, and one was broken mouthed. To substantiate his testimony regarding the cows’ ages, defendant sought to introduce certificates of registration on three of the cows showing the ages of two to be nine years and the age of one to be ten years. Plaintiff objected to the introduction of the certificates and testimony regarding the certificates on the ground that in discovery proceedings defendant failed to supply the certificates upon plaintiffs request. The court sustained plaintiff’s objection, and refused to accept the certificates in evidence. Plaintiff’s interrogatory to defendant asked:

“Attach copies of all registration papers on any cattle that you own to the answers to these interrogatories.”

Defendant’s response to the request was: “None.”

We believe that the interrogatory was sufficiently definite to place defendant on notice that plaintiff was seeking the certificates of registration on the cattle which were the subject of the litigation and which could be important to plaintiff in the preparation of its case. Clearly, defendant had the continuing obligation to supply plaintiff with the information requested in the interrogatory relating to the certificates of registration. Laws v. City of Wellston, 435 S.W.2d 370 (Mo.1968); Skelton v. General Candy Co., 539 S.W.2d 605 (Mo.App.1976); Will v. Carondelet Savings & Loan Association, 508 S.W.2d 711 (Mo.App.1974). The issue, then, is whether the trial court abused its discretion in rejecting defendant’s attempts to place the certificates in evidence, for, as stated in Aulgur v. Zylich, 390 S.W.2d 553 (Mo.App.1965), l.c. 556:

“It is well established that the trial court has a broad discretion to choose a course of action during trial when evidence is challenged on the ground it has not been disclosed by answers to interrogatories. In the sound exercise of that discretion, the trial court may admit or reject such evidence, or otherwise determine and impose appropriate sanctions for violations of rules governing interrogatories.”

Hilmer v. Hezel, 492 S.W.2d 395 (Mo.App.1973), is also appropriate. Inasmuch as defendant did possess the certificates of registration, and the information contained in the certificates did refer to a controverted issue, we find no abuse of discretion by the trial court in rejecting their use. We also observe that plaintiff through other means did place before the jury evidence as to the various ages of the cattle.

Defendant entreats us to find that Rules 56.01 and 57.01 and the cases supporting those rules require supplementation of answers to interrogatories only as to witnesses. But the rules are not so limiting. Rule 56.01(e)(2) requires amendment to any prior responses under the (e)(2) conditions, and is not restricted to witnesses only. See Hil-mer v. Hezel, supra.

Defendant’s second point relates to his income tax records requested under subpoena. Defendant was compelled to produce his joint income tax records under a protective order. Although the tax records were not used, and the record is destitute of any indication that the jury was aware of their presence, defendant complains bitterly that the requirement to produce such records was a facinorous incursion into his right of privacy. We must rule against defendant on this point. At the time the protection order was given, the action for punitive damages against defendant and his wife was pending. It has been held that evidence of a defendant’s financial worth through income tax records is admissable in an action seeking punitive damages. State ex rel. Kubatzky v. Holt, 483 S.W.2d 799 (Mo.App.1972). Here, defendant claims that the action of plaintiff to obtain the tax records was an oppressive harassment. However, the records, although given to the plaintiff, were never used nor shown to the jury, nor was the jury aware of their existence, accordingly, there could not be any

prejudice to defendant with the jury. If, as defendant assiduously argues, the fact that the records had to be made available in this case amounted to undue hardship or oppressiveness, it would appear that an attack on the production of such records could be better made in a prohibition action. See State ex rel. Kubatzky v. Holt, supra.

Defendant also charges that the trial court erred in failing to properly instruct and admonish plaintiff’s counsel for his consistent use of leading and suggestive questions. Throughout the trial, the interruptions, objections and comments by both counsel were fulsome and undulating, evoking retaliatory riposte by the other. Frequently, the proceedings passed from reasonable dialectic to a display of asperity, with each counsel, on occasion slipping into the banality of flinging an invective or two. But we note that in our reading of all 472 pages of transcript, each time that defendant objected to the use of leading and suggestive questions by plaintiff’s counsel, the objection was sustained and plaintiff’s counsel admonished by the trial judge. No mistrial was requested, so the defendant’s counsel received all the relief requested and was not prejudiced. Burian v. Dickens, 527 S.W.2d 26 (Mo.App.1975).

Finally, of the points preserved for appeal, defendant claims that the trial court failed to submit the proper verdict forms for the jury. Defendant contends that there was no verdict form submitted which would have allowed a finding for defendant on plaintiff’s claim and for the plaintiff on defendant’s counterclaim. The record does not contain the verdict forms submitted except for plaintiff’s verdict form which the jury rendered, finding “the issue in favor of the plaintiff and assess its damages at $4,470.00 and assess interest at $491.70, being a total sum of $4,961.70.”

From the record, we know that defendant tendered the trial court two forms that were combined by the trial court and given to the jury. In discussing the verdict forms with both counsel, the trial judge stated that he was giving the plaintiff’s suggested verdict form and the combined forms of verdict for the defendant, “so the jury in one verdict may make a finding for Plaintiff on its cause of actions and for Defendant on the counterclaims.” Defendant’s counsel protested “that there ought to be a verdict available to the jury for a finding against all the parties because it is possible that they could find the cattle had no value.” The trial judge specifically found as a matter of law that the cattle had value and refused further verdict forms other than those tendered to the court by plaintiff and defendant.

We are hampered in our consideration on this point inasmuch as only one form of verdict has been supplied for our review. See State v. Laws, 547 S.W.2d 162 (Mo.App.1977); Davis v. Long, 521 S.W.2d 7 (Mo.App.1975). But in any event, the trial court was correct in finding as a matter of law that the cattle that defendant purchased had value. The defendant specifically testified that the cows each had a value of $200-208 and that at one point he had offered to pay $3,700 for them. Therefore, the trial judge was correct in rejecting defendant’s request for a verdict form which would allow the jury to find that the cattle had no value, for such finding would not comport with the evidence.

We finally come to the end of this hard fought case in which neither side would bend. The courtroom action was considerably less tranquil than the meadows of contentment where defendant’s cows expatiate and chew their cuds.

As one could reasonably expect, the Rose of Aberlone must resurrect.
So we believe it befitting from the Rose of Aberlone to quote,
that which Professor Currie felicitously wrote:
“The briefs are in, the case submitted.
The lawyers on both sides acquitted
Themselves with nice distinction, just
As earnest counsel ever must
In fealty to their sacred trust.
Their arguments had an intensity
Befitting the issue’s immensity;
And now they linger with cooling zeal
To learn the upshot of [this] appeal.”
But whereas with the Rose, the judgment was reversed;
Here we are compelled to do the converse.
Though hard and long the defendant has travailed,
Alas for him, his cause has failed.

Judgment affirmed.

KELLY, P. J., and WEIER, J., concur.

      . Suit was initially brought against defendant and his wife, but plaintiff subsequently dismissed its action against defendant’s wife.

      . For instance, we do not consider defendant’s objection to instructions on this appeal where there was no trial objection nor where there was no reference to such instructions in the motion for new trial. Cole v. Evans, 546 S.W.2d 748 (Mo.App.1977). Neither do we consider points raised on appeal which are unsupported by citations of authority. McMillin v. Sears, Roebuck & Co., 523 S.W.2d 111 (Mo. App.1975).

      .Brainerd Currie, “Rose of Aberlone,” Student L.J. (April, 1965).'

      . The defendant suggests that the jury could have seen the records on counsel’s table, but we believe that it is too speculative to suggest that the jury would have been aware of what the records were or what they contained.

      . Brainerd Currie, Rose of Aberlone, supra.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Joe Thomas CAMPBELL, Defendant-Appellant.
    No. 37937.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 17, 1977.

      Deeba, DeStefano, Sauter & Herd, Thomas C. Mummert, St. Louis, George D. Johnson, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, W. Mitchell Elliott, and David L. Baylard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Co-sentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant was convicted on two counts of assault with intent to do great bodily harm without malice, in violation of § 559.190. On appeal, defendant raises the issue of double jeopardy and also contends that the trial court erred in failing to instruct on justifiable and excusable assault. We find no merit in defendant’s contentions and affirm the judgment.

A trash fire on a vacant lot near defendant’s home in St. Louis led to defendant’s problems. On the day of the fire, defendant was in a neighborhood tavern about two blocks from his home. He had consumed a substantial quantity of beer when he was advised by a friend that his house was on fire. Actually, the fire was in a vacant lot about 50-75 feet from defendant’s home, but in his numbed condition, defendant was unable to discern from the smoke whether his home was on fire — at least, he thought it was. Defendant immediately left the tavern and drove in his automobile by a curiously circuitous route toward his home, which was on the corner of Seventh and Hickory Streets. Fire fighting equipment was on Hickory Street and police officers were stationed at the Sixth and Hickory and Seventh and Hickory Street intersections to direct traffic. Police Officer King was directing traffic at the intersection of Sixth and Hickory Streets, with Robert Girard, a uniformed security guard, standing next to him. Officer King observed defendant’s car driving at a high rate of speed on Hickory toward the Sixth Street intersection and signaled defendant to stop. Initially, defendant slowed somewhat, but he suddenly accelerated, veered his car directly at Officer King and Girard and yelled, “Get out of my way _” Officer King pushed Mr. Girard aside and dove for safety. Defendant’s car narrowly missed striking both King and Girard and would have run over both of them had not Officer King taken his evasive action for both himself and Mr. Girard. It was also apparent that defendant would not have struck either King or Girard had he kept on his initial path, but it was after he veered and aimed his car at them that they were endangered.

After defendant had barely missed hitting King and Girard — only by reason of King’s movements — defendant’s car careened down Hickory Street at a high rate of speed running over fire hoses. Defendant’s car finally jumped the curb, went on the sidewalk and came to a stop a short distance from a telephone pole. As defendant was trying to back away from the telephone pole, his engine stalled, and police, including Officer King, were promptly on the scene to arrest him. Defendant was bellicose and continued to spew vitupera-tions and obscenities at the police, who removed him from the car.

Defendant’s testimony was that because of his inebriated condition he was unable to remember anything that happened other than he had been told his house was on fire.

Defendant was charged with peace disturbance, several traffic violations and assault with malice upon Officer King and Mr. Girard. Defendant subsequently pleaded guilty in St. Louis City Court to the following city ordinances violations: driving under the influence of alcohol, careless and reckless driving, disobeying the reasonable directions of a police officer, driving over a sidewalk and general peace disturbance. Before trial on the assault charges, defendant moved to be discharged on the ground of double jeopardy, arguing that the charges to which he had pleaded guilty arose out of the same instance or occurrence as the assault charges. The trial court denied the motion.

It is fundamental that the State may not split a single crime and prosecute in separate parts; neither may there be multiple punishments for a single offense. State v. Brown, 547 S.W.2d 217 (Mo.App.1977); State v. Gordon, 536 S.W.2d 811 (Mo.App.1976). It is also true, as defendant argues, that jeopardy attaches in municipal ordinance prosecutions punishable by imprisonment. Kansas City v. Bott, 509 S.W.2d 42 (Mo. banc 1974). But as stated in State v. Carter, 535 S.W.2d 537 (Mo.App.1976) l.c. 538:

“In the determination of double jeopardy, Missouri does not follow the same transaction rule, but applies the separate or several offense rule. This means that a defendant can be charged with and convicted of several offenses which arise from the same transaction, incident or set of facts, without violation of double jeopardy. Indeed, the very same act can support multiple convictions without infringement of double jeopardy so long as the convictions rest on separate offenses.” (citations omitted, original emphasis)

Thus, an individual can be convicted in magistrate court of careless and imprudent driving and at the same time be convicted in the circuit court of driving while intoxicated. State v. Carter, supra. Also, there is no double jeopardy violation for separate convictions for improper backing of a motor vehicle and driving while intoxicated, although both offenses arise out of a single act. State v. Johnson, 532 S.W.2d 883 (Mo.App.1976).

The test in Missouri for determining whether there has been a double jeopardy violation for separate charges arising out of a single act is “whether each offense necessitates proof of an essential fact or

element not required by the other.” State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975). See also Thomas v. State, 548 S.W.2d 564 (Mo. banc 1977), reaffirming the

Chambers’ rule. We therefore look to the elements of proof involved in this case. An essential element of proof for assault without malice, for which defendant was convicted, is whether the defendant committed the assault with intent to kill, to do great

bodily harm or to commit a felony. State v. Webb, 518 S.W.2d 317, 320 (Mo.App.1975);

§ 559.190. Thus, the State was obligated to prove that defendant intended either to kill or to inflict great bodily harm upon Officer King and Mr. Girard. We believe a jury could find such intent from the evidence presented by the State that defendant veered from his course of direction, accelerated and aimed his auto directly at Officer King and Mr. Girard. The State thereby presented an element of proof not required or present in the city court violations to which defendant pleaded guilty. There was no violation against defendant’s right against double jeopardy.

Defendant also argues that the trial court erred in failing to instruct on excuse or justification, using the MAI-CR 2.28 and 2.40 excusable homicide and justifiable homicide instructions as paradigms. Defendant was not entitled to either instruction. As to “excusable assault,” defendant was clearly in the commission of an unlawful act or acts at the time of the assault. Certainly, he was not acting with “usual and ordinary caution.” That fact alone is sufficient basis for rejecting an “excusable assault” instruction. State v. Milentz, 547 S.W.2d 164 (Mo.App.1977). But there is further reason for not giving an excusable assault instruction. There was no evidence of accident. The entire evidence was that defendant deliberately drove his car at a high rate of speed at Officer King and Mr. Girard. There was nothing to refute the State’s evidence in this regard. Therefore, there was no error in failing to instruct on accident or excusable assault. State v. Watson, 364 S.W.2d 519 (Mo.1963). Excusable assault implies an involuntary act. Here, defendant’s actions were deliberate acts. See State v. Merritt, 540 S.W.2d 183 (Mo.App.1976).

With regard to defendant’s argument on justifiable assault, Note 2 of the MAI-CR 2.40 Notes on Use specifically recites, “. . . with slight alterations MAI-CR 2.40 should be adapted and used in assault cases where applicable under the law and the evidence.” (original emphasis). MAI-CR 2.40 contemplates that a defendant is either acting in lawful self-defense or committing his action in the situations enumerated in § 559.040. Here, there is a total absence of evidence of any of the elements of § 559.040 which would warrant the giving of a justifiable assault instruction. There is nothing to indicate that defendant was acting in self-defense, or protecting any of the persons listed in § 559.-040(2), or was lawfully attempting to preserve the peace or capture a felon, or suppressing a riot. Without the presence of any of the elements of § 559.040, a justifiable homicide instruction was not justified. See State v. McQueen, 431 S.W.2d 445 (Mo.1968); State v. Harkins, 535 S.W.2d 462 (Mo.App.1976); State v. Neria, 526 S.W.2d 396 (Mo.App.1975); State v. Milentz, 521 S.W.2d 1 (Mo.App.1975).

The judgment is affirmed.

KELLY, P. J., and WEIER, J., concur.

      . Statutory references are to RSMo 1969.

      . Although defendant was only two blocks from home when alerted to the fire, the route he traversed encompassed at least seven blocks to the point where he stopped.

      . Defendant’s speed was estimated at 40-45 m. p. h.

      . Defendant directed a highly denigratory invective at Officer King as he drove at him.

      . “559.040. Justifiable homicide — Homicide shall be deemed justifiable when committed by any person in either of the following cases:
      (1) In resisting any attempt to murder such person, or to commit any felony upon him or her, or in any dwelling house in which such person shall be; or
      (2) When committed in the lawful defense of such person, or of his or her husband or wife, parent, child, brother, sister, uncle, aunt, nephew, niece, master, mistress, apprentice or servant, when there shall be reasonable cause to apprehend a design to commit a felony, or to do some great personal injury, and there shall be reasonable cause to apprehend immediate danger of such design being accomplished; or
      (3) When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing any riot or insurrection, or in lawfully keeping or preserving the peace.”

      . The following statement in State v. Milentz, 521 S.W.2d at 3, involving an assault on a police officer, is remarkably appropriate:
      “This record discloses the case of an intoxicated, distraught, hostile, belligerent, violent and dangerous man on a rampage; a man . . . who hates the police, and who expressed his contempt for the police by every vocal and physical means at his disposal .; a vengeful person making an unprovoked attack upon an officer who had given appellant no reason to act as he did.”


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tim MURTA, Defendant-Appellant.
    No. 10466.
    Missouri Court of Appeals, Springfield District.
    May 23, 1977.

      John Ashcroft, Atty. Gen., Paul Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Allan Goodloe, Jr., Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
   PER CURIAM:

By information, defendant was charged with possession of phendimetrazine tablets. In orally instructing the jury panel after it was sworn for voir dire examination, the court stated that defendant was charged with possession of the controlled substance. MAI-CR 1.02. By Instruction No. 4 (MAI-CR 14.10), the court charged on the crime of possession. Nevertheless, the jury returned a verdict finding defendant “guilty of selling a controlled substance.” After overruling defendant’s motion for a new trial, the “Court fixed punishment in accordance with jury verdict” and, in his notice of appeal, defendant stated that “The offense of which appellant was convicted was possession of controlled substance.”

Prom the foregoing it is obvious that defendant was not charged with the offense of which he was convicted. The verdict, not being responsive to the issues, is fatally defective. State v. Barnes, 492 S.W.2d 729, 730[2 — 3] (Mo.1978); State v. Bird, 242 S.W.2d 576, 577[3] (Mo.1951). The judgment, therefore, is reversed and the cause remanded for a new trial.

All concur.

      . All emphasis is ours.

      . The transcript of appeal does not reflect the entry of a judgment as required by Rule 27.11, V.A.M.R.


author: PER CURIAM.

text:
    In the Matter of the ESTATE of Ada STICKLER, Deceased. FIRST CHRISTIAN CHURCH OF DEXTER, a corporation, and W. E. Babb, Jr., Plaintiffs-Respondents, v. Adeline LEAZENBY, Defendant-Appellant.
    No. 10198.
    Missouri Court of Appeals, Springfield District.
    May 26, 1977.

      Paul McGhee, James E. McGhee, McGhee & McGhee, Dexter, for defendant-appellant.
    Powell, Ringer & Ringer, Dexter, for plaintiffs-respondents.
   PER CURIAM.

May an absentee, who should have been joined as a party to a lawsuit but was not, emerge the victor? Under the unsavory facts here, this court answers the question in the affirmative.

This action was commenced by the filing of a “Petition to Discover Assets” (§ 473.340 V.A.M.S.) in the Probate Court of Stoddard County, Missouri. By agreement of the parties it was certified to the circuit court of that county for a nonjury trial. The petitioners, respondents here, were First Christian Church of Dexter, a corporation, (“the church”), and W. E. Babb, Jr. (“Babb”), both of whom were named as beneficiaries in the will of Ada Stickler (“Ada”), deceased. The executrix of the will of Ada Stickler is Adeline Leazenby (“Adeline”), who was also a beneficiary.

Ada’s will was admitted to probate on September 13, 1973. The will, which was dated November 17, 1970, devised “the house and furnishings located at the corner of Vine and Poplar Streets, Dexter, Missouri,” to the church, and “the house at 26 South Hickory, Dexter, Missouri,” to Babb. When the will was executed Ada owned 225 shares of stock in the Citizens Bank of Dexter. The will provided that one-half of that stock was given to the church and the other half to Nellie Babb. Nellie Babb is the mother of Babb and the latter is the assignee of Nellie’s interest.

On March 27, 1973, Ada, who was 91 when she died the following August 19, executed a power of attorney, broad in scope, appointing Adeline as her attorney in fact. This instrument was prepared by an attorney in Kenosha, Wisconsin, where Ada was temporarily residing. Adeline was present when the attorney drew the document, although Ada was not.

On March 29, 1973, Adeline, using the power of attorney, obtained access to Ada’s safety deposit box in the Citizens Bank of Dexter and removed from it the 225 shares of the bank stock. Adeline sold 50 shares to Margaret Rendleman and 175 shares to Ray Rainey for a price of $105 per share, admittedly a reasonable value, and received for the stock $23,625. Adeline deposited the $23,625 in her own account in a savings and loan institution in Dexter.

On April 17, 1973, Adeline, using the power of attorney, sold the two houses, left under the will to the church and Babb respectively, to Claude Arnold and his wife for $11,000 from which a commission of $1,000 was paid to real estate agent Willis Conner. Conner testified that the church property was sold for $6,000 and the Babb property for $5,000, their respective reasonable values, and that Arnold paid for the two tracts with one $11,000 check. Adeline deposited the $10,000 in her own account at a savings and loan institution in Dexter.

On April 4, 1973, Ada wrote a letter to Nellie Babb in which Ada said, “I think Adeline has tricked me out of all my estate.”

According to the inventory filed by Adeline in the probate court, Ada’s estate consisted only of seven government bonds having a total value of $7,850.40.

The trial court made certain findings of fact including: “[Adeline] has not accounted for the proceeds . . . from the sales of said bank stock and real estate of Ada Stickler and such proceeds are not included in the inventory filed in Ada Stickler’s estate as assets of said estate; in selling and disposing of the aforesaid property of Ada Stickler, the said Adeline Leazenby was acting in her own behalf and not on behalf of Ada Stickler and by her said acts the devises in the will of Ada Stickler to the First Christian Church of Dexter, Missouri, W. E. Babb, Jr. and Nellie Babb have not been and are not adeemed, and the said First Christian Church of Dexter, Missouri, and W. E. Babb, Jr. are the owners of and entitled to the value of the proceeds from the sales and disposition of the 225 shares of stock in the Citizens Bank of Dexter and the two tracts of real estate located in Dexter, Missouri, together with interest thereon . . . ”

The court entered judgment in favor of the church and against Adeline in the amount of $17,812.50, together with interest thereon “since October 1, 1973” (the date the inventory was filed in Ada’s estate). Exclusive of interest, the amount of the judgment in favor of the church was the sum of $11,812.50 (one-half of the value of the bank stock) and $6,000 (the value of the real estate devised to the church.) The court also entered judgment in favor of Babb and against Adeline in the amount of $16,812.50, together with interest thereon since October 1, 1973. Exclusive of interest, the amount of the judgment in favor of Babb was the sum of $11,812.50 (one-half of the value of the bank stock) and $5,000 (the value of the real estate devised to Babb).

Adeline appeals.

Section 473.340, which governs the procedure for discovery of assets, was enacted in its present form in 1973. Under the former procedure the action was initiated by the filing of an affidavit alleging that a person was withholding an asset of the decedent. The court could cite the withholder to appear before it and if the withholder did not admit the claim contained in the affidavit, the former procedure required that he be examined under oath and that he answer interrogatories. The issues were made up by the interrogatories and the answers thereto.

Under present § 473.340 the proceeding is instituted by the filing of a verified petition in the probate court in which the estate is pending. The petition may be filed by any executor, administrator, creditor, beneficiary or other person who claims an interest in “personal property which is claimed to be an asset of [the] estate or which is claimed should be an asset of [the] estate.” The petition must describe the property “if known” and must allege the nature of the interest of the petitioner and the fact that “title or possession of the property, or both, are being adversely withheld or claimed.” Section 473.340, subsec. 2, provides, in part, “Service of summons, petition and answer thereto together with all subsequent proceedings shall be governed by the Missouri Rules of Civil Procedure.” It should be noted that the issues are now made up by the petition and the answer. In this respect the present procedure differs from the former in that under the latter they were made up by the interrogatories and the answers. There is now no requirement that interrogatories be filed and answered.

In this case the church and Babb filed separate verified petitions. The church’s petition specifically described the real estate and the bank stock left to it under Ada’s will. It alleged that Adeline, acting under the power of attorney, had sold these assets but had done so for her individual use and benefit and not for the use and benefit of Ada. It further alleged that the proceeds from the sales were being withheld by Adeline and were being claimed by her. The petition also alleged that the described property, or its value, should be delivered “to the executrix of the estate of Ada Stickler and included in the inventory.” The Babb petition was essentially the same except that it described the land which Ada’s will left to Babb and the bank stock which it left to Babb’s assignor.

It is important to note that each petition named, as the sole party defendant, Adeline Leazenby; that is, she was sued only in her individual capacity and not in her capacity as executrix of Ada’s will. Section 473.340, subsec. 4, provides, in part, “The court shall order the joinder of the personal representative of the estate if he is not named as a party.” The failure to comply with that mandate has rendered the disposition of this appeal needlessly complicated.

It should be observed that neither the church nor Babb by their respective petitions sought a judgment in favor of themselves. Each petition, limited as it was to the assets (or the proceeds of the sale of same) in which the petitioner was interested, sought the inclusion of same in the inventory of Ada’s estate.

Adeline’s answer to each petition consisted essentially of a general denial.

Thus the basic inquiry before the court was whether or not, under the evidence, the property described in the petitions were assets of Ada’s estate. It was not incumbent upon the court, under the pleadings or under the statute, to determine whether or not the church or Babb or both would be entitled to some or all of those assets at the time the estate was ordered to be distributed by the probate court.

Under § 473.340, subsec. 3, if the court found that the disputed property were assets of Ada’s estate, the court was under a duty to “direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto . . .” That person, in this case, would be the personal representative of Ada’s estate.

Subsec. 3 further provides: “If the party found to have adversely withheld the title or possession, or both, of said property has transferred or otherwise disposed of the same, the court shall render a money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld. In addition to a judgment for title and possession, or either, or for the value thereof, the court may enter a judgment for all losses, expenses and damages sustained, if any, but not including attorney fees, if it finds that the property was wrongfully detained, transferred or otherwise disposed of.”

Most of the evidence in this case was offered by petitioners. It included admissions which Adeline had made in answers to interrogatories propounded by petitioners and the contents of a stipulation as to certain facts, the stipulation having been signed by counsel for petitioners and counsel for Adeline.

All of the facts set forth above concerning the handling of Ada’s assets and the proceeds of those which Adeline sold are supported by the evidence. Indeed most of them were admitted by Adeline and none was denied. During their case, petitioners called Adeline as a witness. After direct examination of Adeline by petitioners’ counsel, Adeline’s attorney elicited no testimony of significance. After petitioners rested their case, Adeline introduced no evidence.

It should be noted that Adeline admitted selling the property described in the two petitions and, except for the payment of a $1,000 commission to realtor Conner, deposited same in her personal account.

The matter of the nonjoinder of the personal representative of Ada’s estate has not been raised by the parties to this appeal. That nonjoinder was and is a significant omission which requires discussion. However, neither Adeline nor petitioners may complain on appeal about the nonjoin-der of Ada’s personal representative, they having waived that right by failing to raise the question in the trial court. Grundel v. Bank of Craig, 515 S.W.2d 177, 180[4] (Mo.App.1974); S_v. W_, 514 S.W.2d 848, 855[15] (Mo.App.1974); Lamb v. N. Y. Life Ins. Co., 377 S.W.2d 148, 150[4] (Mo. App.1964); Bartlett v. DeGraffenreid, 305 S.W.2d 906, 910[5, 6] (Mo.App.1957).

The central issue was whether the property described in the two petitions was owned by Ada at the time of her death, and thus should have been inventoried, or whether that property was owned by Adeline. Manifestly, Adeline’s personal interest in that issue conflicted with the interest of Ada’s personal representative. Unfortunately Adeline still serves in the latter capacity, there having been no direct attack upon her tenure by the filing of the removal proceeding contemplated by § 473.140.

In Davis v. Roberts, 206 Mo.App. 125, 226 S.W. 662 (1920) there was a direct proceeding to remove the defendant as an executor. The action was brought under the counterpart of what is now § 473.140. One of the beneficiaries of the estate charged that the executor was “unsuitable to execute the trust reposed in him” and “[had failed] to discharge his official duties” (language contained in the former statute on removal and still appearing in § 473.140) by failing to inventory a note. It was alleged that the note was an asset of the estate but the executor claimed personal ownership of it. At p. 664 the court said:

“[1-3] In a proceeding of this kind it was not necessary to show that the estate was the owner of the property, but only to show, as the court found, that there was a real and substantial controversy as to the ownership of the note and that there was reasonable and probable cause to believe that the note belonged to the estate. A finding of this kind shows that the position of the executor and the estate is entirely antagonistic and that he ought not to be permitted to serve longer. It is contrary to the policy of the law to permit an executor who stands in a position somewhat like that of a trustee to assume a position where his interest conflicts with that of the estate, for it is contrary to general experience that one is able to fairly represent his own interest and at the same time represent those of another which are in conflict with his own. When a situation appears such as we have in this case it is the positive duty of the court to remove the executor under the provisions of section 50, R.S.1909, on the ground that he has become ‘incapable or unsuitable to execute the trust reposed in him.’ As we have already stated, it is not necessary to show, as was undoubtedly done in this case, that the property in controversy belongs to the estate.” (Citing many authorities)

See Estate of Luyties v. Scudder, 432 S.W.2d 210 (Mo.1968) at p. 215 where Davis is cited with approval and some of the foregoing language is set forth. See also Moffett v. Commerce Trust Co., 283 S.W.2d 591, 597[7] (Mo.1955); Arrington v. McCluer, 326 Mo. 1011, 34 S.W.2d 67, 71[2, 3] (1930); State v. Thym, 282 S.W.2d 178, 187[19, 20] (Mo.App.1955).

It is clear that if a removal proceeding had been instituted against Adeline under § 473.140, a showing of the pendency of the instant controversy, coupled with the evidence in this record (and Davis contains language to the effect that something short of the latter would be sufficient), would have necessitated Adeline’s removal as Ada’s executrix. Unfortunately that was not done.

Authorities exist to the effect that this court may not, in this proceeding, unseat Adeline. “After an executor or administrator has been appointed even though a statutory cause for removal occurs, the removal is not automatic. The authority, duty and status of the person so appointed is terminated only upon the entry of an order of removal by a court with jurisdiction of the proceeding. The probate court has exclusive jurisdiction of a proceeding to remove an executor or administrator for a cause defined by statute.” Maus, Missouri Practice, Probate Law and Practice, Vol. 4, § 1513, p. 632. To similar effect see 33 C.J.S. Executors and Administrators § 91b-91c, pp. 1039-1040; see also In Re Boeving’s Estate, 388 S.W.2d 40, 52[17—20] (Mo.App.1965) and 47 A.L.R.2d, § 6 p. 307 at p. 312.

In Moffett v. Commerce Trust Co., supra, 283 S.W.2d at p. 597[7] the court pointed out that, at least under some circumstances, conflicting interests may not “absolutely disqualify” a personal representative although they may constitute a ground for refusal to appoint or for removal.

If this court in this proceeding possessed the authority to unseat Adeline, it would be exercised. But authorities previously cited hold that removal may be accomplished only in a direct proceeding, one in which that relief is specifically sought, and only after giving the personal representative due notice and the opportunity to be heard on that issue. Here notice of the nature of this controversy has been given and Adeline had the opportunity, but essentially declined it, to offer evidence in opposition to the petitions. Unquestionably her removal should now be sought in the appropriate proceeding under § 473.140 unless she has the prudence to resign.

Now to be considered are Adeline’s three “points relied upon.”

Her first point is that the will provisions in favor of the church and Babb were “adeemed” and thus the court erred in entering judgment in favor of petitioners. It is true that a victory for petitioners should have resulted in a judgment in favor of the personal representative, as the petitions requested, and not in favor of petitioners themselves. At the time of the trial the estate was still in the process of administration and the circuit court possessed no authority to enter in favor of petitioners what was in effect an order of distribution. See Cook v. McCoy, 118 S.W.2d 1043, 1046[1-6] (Mo.App.1938); State v. Lamm, 216 S.W. 332, 333[4] (Mo.App.1919); § 473.617 V.A. M.S. Similarly the question of whether there had been an ademption was of no concern to the court in this proceeding. It was premature to inquire into that question, one perhaps to be pursued when the distribution of the assets is ordered in the probate court.

But Adeline can derive no comfort from the foregoing. The fact that petitioners may not yet be entitled to distribution does not mean that the assets sought to be discovered should not be taken from Adeline and placed in Ada’s estate where they belong.

Still under her first point, Adeline claims that the finding of the trial court “that [Adeline] was acting in her own behalf in selling the property” was not supported by the evidence. The issue in this proceeding was not whether Adeline exceeded her authority in using the power of attorney to sell the houses and the bank stock. The issue was whether Adeline converted to her own purposes the proceeds which she admittedly received. As previously stated, Adeline’s answer consisted solely of a general denial and made no direct claim to ownership of the disputed property. Her evidence was similarly devoid of any explanation for her retention of the proceeds.

“It is the general rule that the agent is bound to account to his principal for all money and property which may come into his hands by virtue of the agency. And, further, when the principal has shown the existence of such a relation and the receipt of money or property by the agent, the burden of showing that he made a proper disposition of it rests upon the agent. 1 Mechem on Agency (2d Ed.) §§ 1327, 1344; Carder v. Primm, 52 Mo.App. 102.” O’Day v. Annex Realty Co., 236 S.W. 22, 24[2] (Mo.1921).

“Unless otherwise agreed, an agent receiving or holding things on behalf of the principal is subject to a duty to the principal not to receive or deal with them so that they will appear to be his own, and not so to mingle them with his own things as to destroy their identity.” Restatement, Agency 2d, § 398, p. 228 (1958).

Comment b of § 398 reads:

“b. Money received. Ordinarily, an agent who receives money on account of the principal cannot properly place it to his own credit in a bank, where it may be subject to a set-off or lien by the bank, or so mingle it with his own that there may be difficulty in tracing it. Unless so understood, an agent receiving money either as a trustee or a bailee is not privileged to change the right of the principal in the specific moneys received, or his right against a bank if they are deposited, into a debt claim against himself. The principal’s trust is in the honesty and not necessarily in the solvency of the agent. See § 427 and also the Restatement of Trusts, §§ 179, 180.”

See also Brown v. Maguire’s Real Estate Agency, 343 Mo. 336,121 S.W.2d 754, 757[5-9] (1938).

As stated previously, Adeline deposited the proceeds of the sales in her personal account in a savings and loan institution. She failed to inventory those proceeds. By that conduct Adeline committed conversion, even though, which need not be decided, her initial receipt of the proceeds may have been lawful. 3 C.J.S. Agency § 280, p. 57.

Also under her first point Adeline claims that the trial court erred in granting relief because Ada “ratified” the sales of the bank stock and the two houses. This contention has no factual support. There is no evidence that Ada knew that Adeline sold the houses or the bank stock. More significantly there is no evidence that Ada ratified or even knew of the conduct of Adeline in treating the proceeds as her own.

Adeline’s second point is that the trial court erred in excluding evidence tendered by Adeline to the effect that while Ada was “in a hospital in Kenosha, Wisconsin, during the latter part of March 1973, [Ada] instructed [Adeline] to dispose of the two houses which were located in the city of Dexter and also to dispose of the shares of stock that she had in the Citizens Bank, both by selling them.”

Adeline’s offer of such evidence underlines the conflict which existed between her interest and the interest of the estate. It is unnecessary to consider whether or not the offered evidence could have been excluded on the basis of the Dead Man’s Statute, § 491.010, if the estate had been separately represented and its representative had interposed such an objection. It is also unnecessary to decide whether the proffered evidence was vulnerable to other objections.

The offered evidence could not have had a material effect upon the outcome of this proceeding. Even if Ada specifically authorized the sale of the bank stock and the two houses, there was nothing in the offer or in Adeline’s other evidence to show that Adeline’s retention of the proceeds and the depositing of them in her personal account were accomplished with Ada’s knowledge and consent.

It is unnecessary to decide whether or not the trial court erred in refusing to receive the offered testimony for the reason that the error, if any, did not materially affect the merits of this action and thus constitutes no ground for reversal. Rule 84.13(b) V.A.M.R.

Adeline’s third point is that the trial court erred “in not giving credit to [Adeline] for the expenditure made by Adeline on behalf of Ada in the amount of $5,236.80; in not deducting the broker’s fee of $1,000 from the proceeds of the sale of the real estate before computing the judgment for plaintiffs; and in awarding interest to plaintiffs from the date of the filing of the inventory.”

At least one answer to the first prong of the third point is that there was no evidence that Adeline expended $5,236.80 for the benefit of Ada. Whether or not such testimony, if offered, would properly have been a part of this proceeding need not be decided.

With respect to the real estate commission of $1,000 which Adeline paid realtor Conner out of the proceeds of the sale of the real estate, the trial court should not have included that item in its award. The instant record does not show that the sale of the real estate was improper or unauthorized. That issue was not explored and, in the absence of Ada’s personal representative or possibly others, it should not have been. The amount of the instant judgment will be reduced by $1,000 but without prejudice to the right of the appropriate party to litigate that issue in a separate proceeding.

In challenging the award of interest Adeline argues that the trial court should not have awarded interest on the proceeds of the sales from the date of filing of the inventory, as it did, because, says Adeline, the petitioners were not entitled to receive the proceeds until final distribution was accomplished under § 473.617. The fallacy in this argument is that it is the personal representative of Ada’s estate, not the petitioners, who is entitled to the proceeds and, under § 473.340, subsec. 3, interest thereon accrues “from the date the property, or any interest therein, was adversely withheld.” The proceeds of the sale of the bank stock ($23,625) have been “adversely withheld” since the date of that sale and the deposit of the proceeds in Adeline’s personal account (March 29,1973). The net proceeds of the sale of the real estate ($10,-000) have been “adversely withheld” since the date of that sale and the deposit of the proceeds in Adeline’s personal account (April 17, 1973).

Other assets of Ada, not described in the two petitions and not ruled upon by the trial court in this proceeding, may well merit the attention of a successor personal representative and taxing authorities. The information contained in footnote 1 should be of interest to them.

The essential result of this appeal is that Adeline has lost it. The petitions were meritorious. It is not procedurally permissible to enter a judgment against Adeline individually and in favor of Adeline in her capacity as executrix. “Ordinarily, as appears in Actions, § 31, no action may be maintained in which one person is both plaintiff and defendant, even in different capacities; and, therefore, it is not competent for a personal representative acting in his representative capacity to sue himself in his individual capacity, or, acting in his individual capacity, to sue himself in his representative capacity.” 34 C.J.S. Executors and Administrators § 689, p. 665.

The judgment is set aside and the cause is remanded with the following directions to the circuit court:

1. To appoint a suitable person to act as receiver for the estate of Ada Stickler, deceased, with respect to the proceeds of the judgment mentioned in paragraph 2 and to enter its order adding said receiver as a party to this action.

2. To enter judgment in this action in favor of said receiver and against Adeline Leazenby in a sum equal to the total of the following:

(a) $23,625, together with interest thereon at the rate of 6 percent per an-num from March 29, 1973, to date of judgment, and
(b) $10,000, together with interest thereon at the rate of 6 percent per an-num from April 17,1973, to date of judgment, together with costs.

3. To include in the judgment a recital that it shall not impair the right of any person to challenge, in a separate proceeding, the propriety of the expenditure of $1,000 by Adeline Leazenby for the real estate commission of Willis Conner.

4. To instruct the receiver to take all steps necessary to collect the judgment and to place the proceeds on deposit at interest until they are transferred, under the supervision of the circuit court, to a duly appointed personal representative of said estate, said personal representative being someone other than Adeline Leazenby. Reasonable expenses incurred by the receiver, including a receiver’s fee, may be allowed by the circuit court and taxed as costs.

5. To tax the costs of this appeal and subsequent proceedings in the circuit court against Adeline Leazenby, individually.

6. To order the clerk to file in the Probate Court of Stoddard County, Missouri, in Estate No. 12,243, a certified copy of the judgment entered in this action, together with a copy of this opinion.

In the event, at the time of entry of the judgment, a person other than Adeline Leazenby is the duly appointed representative of the estate of Ada Stickler, deceased, the appointment of the receiver need not be effected and the judgment shall be entered in favor of said personal representative.

It is so ordered.

All concur.

      . The evidence included the following transactions not specifically encompassed by the petitions but considered by the trial court as bearing on Adeline’s motives:
      On March 29, 1973, Adeline, using the power of attorney, withdrew $14,899.28 from Ada’s account in Citizens Bank at Dexter, leaving a balance in that account of $72 which Adeline withdrew on April 2, 1973. Also on March 29, 1973, Adeline cashed a $7,000 cashier’s check drawn on the First National Bank of Kenosha, Wisconsin. This check had been issued in payment of a certificate of deposit owned by Ada. Of the $7,000 Adeline deposited $5,000 in Adeline’s personal account in the Citizens Bank of Dexter. The $2,000 plus the $14,899.28 withdrawn from Ada’s account were used by Adeline to purchase a bank money order in the amount of $16,899.28 payable to Grace Powell. It was Adeline’s testimony that neither she nor Ada “owed Grace anything.” Adeline said that she gave the money order to Grace because Grace “fell in love with Dexter and decided to move here and I let Grace have the money to buy a house until Grace could sell her house and pay me back.” Adeline also testified that Grace decided not to buy a house in Dexter and “in a short time” Adeline got back from Grace a cashier’s check for the same amount.
      On April 16, 1973, Adeline, using the power of attorney, executed a deed, on behalf of Ada, conveying a farm to Eloise LaRue. The farm, under the will, had been devised to Adeline subject to a restraint on alienation, the validity of which need not be considered. This deed was recorded at 8:40 a.m. on April 17, 1973. On the latter date Eloise LaRue executed a warranty deed conveying the farm to Adeline. Both deeds were prepared by the same attorney in Dexter. Eloise LaRue testified that she did not give or receive any consideration for having been a party to either conveyance. According to Eloise, “Adeline took me to the lawyer, Adeline talked to the lawyer first,” and then the lawyer talked to Eloise. The lawyer said “that Adeline had a power of attorney and it was all legal — it would not involve me, that it was in Adeline’s name anyway and she was just transferring the name.”

      . “Personal Property” includes interest in goods, money, choses in action, evidences of debt, shares of corporate stock and chattels real. § 472.010(5) and (25).

      . For a discussion of Missouri law pertaining to “ademption” see Maus, Missouri Practice, Probate Law and Practice, § 1467, p. 597.

      . In this proceeding there was no attack upon Ada’s competency to execute the power of attorney or the validity of the instrument.

      . If Adeline claimed ownership of the property as a gift from Ada, the burden was upon Adeline to establish such fact. In re Petersen’s Estate, 295 S.W.2d 144, 150[8-10] (Mo. 1956); In Re Kaimann’s Estate, 360 Mo. 544, 229 S.W.2d 527, 529[6] (1950); Roethemeier v. Veith, 334 Mo. 1030, 69 S.W.2d 930, 933[2-4] (1934); Tygard v. Falor, 163 Mo. 234, 63 S.W. 672 (1901) (a case most similar on its facts); Newell v. Edom, 242 S.W. 701, 702[2] (Mo.App.1922).

      . See Roethemeier v. Veith, 334 Mo. 1030, 69 S.W.2d 930 (1934); Carmody v. Carmody, 266 Mo. 556, 181 S.W. 1148, 1151 [3] (1916); Tygard v. Falor, 163 Mo. 234, 63 S.W. 672, 674 (1901); Birdsong v. Estate of Ladwig, 314 S.W.2d 471, 475 (Mo.App.1958); Schwalbert v. Konert, 230 Mo.App. 811, 76 S.W.2d 445, 451 (1934); Davis v. Robb, 10 S.W.2d 680 (Mo.App.1928).

      . Adeline’s brief, purporting to show a factual basis for the claim that she expended $5,236.80 for Ada, says that evidence is contained in Adeline’s answer to Interrogatory 35. However, the answer to the interrogatory was not offered or received in evidence. Moreover, if Adeline had offered the interrogatory answer it may have proved unrewarding. “While the rules of evidence permit answers to interrogatories to be used against the party giving them, where such answers are self-serving they are not admissible on behalf of the party giving them.” 23 Am.Jur.2d, Depositions and Discovery, § 292, p. 691. See 13 A.L.R.3d, § 5, pp. 1312, 1327.
      See also Carmody v. Carmody, 266 Mo. 556, 181 S.W. 1148, 1151[3] (1916).