author: McMILLIAN, Judge.

text:
    Sol F. CANTOR, Relator, v. Honorable Milton SAITZ, Respondent.
    No. 39307.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 7, 1978.

      Cupples, Cooper & Haller, Inc., Irving L. Cooper, Barbara W. Wallace, Clayton, for relator.
    Lewis, Rice, Tucker, Allen & Chubb, John C. Shapleigh, St. Louis, for respondent.
   McMILLIAN, Judge.

Our preliminary writ of prohibition was issued to respondent circuit judge to show cause why he should not be prohibited from compelling relator Sol F. Cantor to answer questions which may tend to incriminate him.

On May 12,1977, an examination of judgment debtor and relator in this proceeding Sol F. Cantor was held pursuant to Rule 76.64, as a result of a judgment registered by plaintiff XYOmed, Inc. During the examination by plaintiff’s counsel, Cantor invoked his privilege against self-incrimination under the Fifth and Fourteenth Amendments of the United States Constitution, and Art. I, § 19 of the Missouri Constitution. We set forth the proceedings containing the questions in which the relator invoked his privilege:

1. Shapleigh (Plaintiff’s counsel) asked Cantor (Judgment Debtor) his address. Cooper (Counsel for Judgment Debtor) advised Cantor not to answer. Cantor invoked Fifth Amendment. Judge Saitz compelled Cantor to answer.
2. Q (Shapleigh) Are there any legal actions or suits pending against you?
A (Cantor) Fifth Amendment (Fifth), Judge Saitz compelled answer.
3. Q (Shapleigh) Are you able to show this court how an answer to the last question will incriminate you?
A (Cantor) Fifth, Judge Saitz compelled answer.
4. Q (Shapleigh) Do you have any other sources of income?
A (Cantor) Fifth, Judge Saitz compelled answer.
5. Q (Shapleigh) Do you feel you can’t answer without incriminating yourself?
A (Cantor) Yes.
6. Q (Shapleigh) Can you show this court how this answer will incriminate you?
A (Cantor) Fifth, Judge Saitz compelled answer.
7. Q (Shapleigh) What monies did you receive in the last 60 days from sources other than St. Elizabeth’s?
A (Cantor) Fifth, Judge Saitz compelled answer.
8. Q (Shapleigh) What are your normal living expenses?
(Cooper) Objection for non-relevancy-
Judge Saitz overruled objection.
A (Cantor) Fifth, Judge Saitz compelled answer.
9.Q (Shapleigh) Do you own an auto?
A (Cantor) Fifth, Judge Saitz compelled answer.
10. Q (Shapleigh) Can you show why the last question will incriminate you.
A (Cantor) Fifth, Judge Saitz compelled answer.
11. Q (Shapleigh) Do you own your own home?
A Fifth, Judge Saitz compelled answer.
12. Q (Shapleigh) Do you own any other real estate in or outside of Missouri?
A (Cantor) Fifth, Judge Saitz compelled answer.
13. Q (Shapleigh) Do you understand what you are saying?
A (Cantor) Yes, that these answers may, not will, but may incriminate me.
14. Q (Shapleigh) Again, can you show any reasons why that answer will incriminate you?
A (Cantor) Fifth, Judge Saitz compelled answer.
15. Q (Shapleigh) Do you have any interest under a will or trust?
A (Cantor) Fifth, Judge Saitz compelled answer.
16. Q (Shapleigh) Have you received any money recently under any will or inheritance?
A (Cantor) No, then invoked Fifth. (Cooper) asked for a voir dire to see if Cantor understood what happened. Judge Saitz denied.
17. Q (Shapleigh) Within the past 2 years did you receive any inheritance?
A Fifth, Judge Saitz compelled answer.
18. Q (Shapleigh) What property did you devise in the will?
A (Cantor) Fifth. Judge Saitz compelled answer.
19. Q (Shapleigh) Do you have any bank accounts, checking or savings accounts?
A (Cantor) Fifth, Judge Saitz compelled answer.
20. Q (Shapleigh) Do you own any household goods?
A (Cantor) Fifth, Judge Saitz compelled answer.
21. Q (Shapleigh) Do you have a safe deposit box?
A (Cantor) Fifth Amendment, Judge Saitz compelled answer.
22. Q (Shapleigh) Do you have any insurance on your life?
A (Cantor) Fifth, Judge Saitz compelled answer.
23. Q (Shapleigh) To whom to (sic) you owe money?
A (Cantor) Fifth, Judge Saitz compelled answer.
24. Q (Shapleigh) From which bank do you receive such a statement?
A (Cantor) Fifth, Judge Saitz compelled answer.
25. Q (Shapleigh) Do you receive statements from more than one bank?
A (Cantor) Fifth, Judge Saitz compelled answer.
26. Q (Shapleigh) Have you recently given any financial statements for example, in order to obtain credit?
A (Cantor) Fifth, Judge Saitz compelled answer.
27. Q (Shapleigh) Did you file a Federal or State income tax return in 1976?
A (Cantor) Fifth, Judge Saitz compelled answer.
28. Q (Shapleigh) Did you cash a check in order to get that cash?
A (Cantor) Fifth. Judge Saitz compelled answer.
29. Q (Shapleigh) Do you own an auto?
A Fifth. Judge Saitz compelled answer.

Before citing the relator for contempt, the respondent granted leave to file this writ of prohibition.

Missouri courts have for quite some time, recognized that the privilege against self-incrimination as it appears in both the federal and state constitutions, is available to a judgment debtor in an examination proceeding. State ex rel. Howard v. Allison, 431 S.W.2d 233, 235 (Mo.App.1968); State ex rel. North v. Kirtley, 327 S.W.2d 166 (Mo. banc 1959); State ex rel. Lee v. Cavanaugh, 419 S.W.2d 929 (Mo.App.1967). If an answer to a question posed to a witness may disclose a fact which forms a necessary and essential link in a chain of testimony which would convict the witness of any crime, then he is not bound to answer it. State ex rel. Caloia v. Weinstein, 525 S.W.2d 779, 780 (Mo.App.1975); State ex rel. Howard v. Allison, supra, at 237.

The seminal case on the subject appears to have resulted from the historic trial of Aaron Burr in the early years of the 19th century. See United States v. Burr, 25 Fed.Cas.No. 14,692 E, pages 38, 40, 1 Burr’s Trial 244. Justice Marshall delineated some concrete guidelines for the scope of the privilege. Although Justice Marshall’s interpretation pertained to the Fifth Amendment of the United States Constitution, much of his language has been frequently quoted by our courts construing the scope of the constitutional privilege in Missouri. In Ex parte Gauss, 223 Mo. 277, 122 S.W. 741, 742, our supreme court adopted the following excerpt from Justice Marshall’s oft-cited opinion:

“[I]f the question be of such a description, that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say, upon his oath, that his answer would criminate himself, the court can demand no other testimony of the fact. * * * Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule, that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case, that a witness, by disclosing a single fact, may com-píete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. The fact of itself might be unavailing; but, all other facts without it would be insufficient. While that remains concealed within his own bosom, he is safe; but draw it thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself, would most obviously be infringed, by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is attainable, against any individual, the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which, discloses a fact that would form a necessary and essential part of a crime, which is punishable by the laws.” State ex rel. Howard v. Allison, supra, at 237; State ex rel. Lee v. Cavanaugh, supra, at 933; Presta v. Owsley, 345 S.W.2d 649, 652 (Mo.App.); Ex Parte Arvin, 232 Mo.App. 796, 801, 112 S.W.2d 113, 116.

In Gauss, supra, our supreme court went on to say that the principles set out in the Burr ease, supra, are “. . . entirely consistent with the doctrine generally held, [and specifically followed in Missouri cases] that where the court can say, as a matter of law, that it is impossible that a witness would incriminate himself by answering a question one way or the other, then the court can require an answer . . . .” Ex parte Gauss, 223 Mo. 285, 122 S.W. at 742; State ex rel. Howard v. Allison, supra, at 237; State ex rel. Lee v. Cavanaugh, supra, at 933; Presta v. Owsley, supra, at 652; Ex parte Arvin, 232 Mo.App. 802-03; 112 S.W.2d at 116, 117. Perhaps the consistency is best illustrated in State ex rel. Caloia v. Weinstein, supra, at 780, 781:

“. . . [T]he witness knows what the court cannot know and the witness must himself judge what the effect of his answer will be. So, if he says under oath that he cannot answer without incriminating himself, then the case is not one where the court can say as a matter of law that it would be impossible for him to incriminate himself by answering the question one way or another. He cannot be compelled to answer and will be protected by law in his refusal to do. State ex rel Howard v. Allison, 431 S.W.2d 233, 236[5], 237[6] (Mo.App.1968); Presta v. Owsley, 345 S.W.2d 649, 652[1] (Mo.App.1961); Brady v. Brady, 71 S.W.2d 42, 46[3, 4] (Mo.App.1934).”

Our research has produced several cases which appear to be in conflict with the above authority. In Presta v. Owsley, supra, at 653, the court imposed a “burden of proof” on the witness claiming the privilege to show that the question asked called for an answer that may tend to incriminate him. Accord, State ex rel. Caloia v. Weinstein, supra, at 781. This burden requires an explanation from the witness, and puts the judge in a position to evaluate the witness’ claim. The court in Presta, went on to say that if a particular question appears innocuous on its face, the witness has the burden of showing that the answer might incriminate him. In State ex rel. Lee v. Cavanaugh, supra, at 934, however, the court pointed out that “. . . the privilege extends not only to refusing to answer the question asked, but to refusing to explain how the answer might incriminate the witness.” The obvious danger of the Presta approach is the explanation may be as incriminating as the answer sought. The danger of self-incrimination becomes ever more present with each word of the explanation, and the protection guaranteed is thereby undermined. For example, a witness questioned about the ownership of an automobile could, in the process of explaining how his response could incriminate him, volunteer information that would furnish the missing link in an unsolved hit and run accident or a robbery.

It is said that in appraising the claim, a judge “. . . must be sensitive to the circumstances existing and perceptive in viewing the possibilities of incrimination, . ” Presta v. Owsley supra, at 653, but this assumes a judge can hypothesize circumstances which are in fact known only to the witness.

In the above example, it would be unlikely that a judge could hypothesize circumstances to include the proposed crimes especially in view of the innocent nature of the question.

The burden pertaining to an innocuous question can be equally dangerous. Even a question that appears to be innocuous on its face can call for an answer that provides the missing link in a chain of readily accessible or known facts, which could lead to a conviction. See State ex rel. Lee v. Cavanaugh, supra, at 934. We believe the better reason of authority does not impose a burden of proof on the witness. See State ex rel. Howard v. Allison, 431 S.W.2d 233, where the witness offered no explanation of the possible incriminating effects of her response.

While we believe imposing a “burden of proof” on the witness is improper, we are mindful that the privilege is, absent some check, subject to abuse by anyone wanting to evade responding to a question. Just what check should be imposed, however, is a difficult question. As discussed above, requiring the witness to explain his reasons defeats the protection of the privilege to the extent that the substance of the explanation can be used against him. On the other hand, no check on the privilege provides for arbitrary use.

After considering carefully the interests involved, we believe that the privilege is not eroded by requiring the witness or his counsel to describe, in general terms, a rational basis upon which his answer could conceivably incriminate him. State ex rel. Lee v. Cavanaugh, 419 S.W.2d 929 (Mo.App.1967). We consider this to be significantly different than imposing a burden of proof, for great weight should be given to the witness’ claim. See Application of Leavitt, 174 Cal.App.2d 535, 345 P.2d 75, 77 (Cal.App.1959). The court cannot compel the witness to answer unless it can say as a matter of law that it would be impossible for the witness to incriminate himself. Ex Parte Gauss, supra. We caution trial judges to be “ ‘. . acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry.’ ” State ex rel. Lee v. Cavanaugh, supra, at 935.

Relator has pointed out that his answers may expose him to criminal penalties for concealment in fraud of his creditors, or income tax evasion. In addition, we can visualize the distinct possibility of several other areas of criminality which could arise in connection with questions propounded at a judgment debtor examination. These areas range from fraud to perjury.

Viewing the questions posed to the relator in light of the possible criminal penalties listed above, and described in cases cited in this opinion, we can understand the relator’s reluctance to respond to many of these questions. The questions concerning relator’s income, financial statements, real property, certain personal property, tax returns, banks, bank accounts, and debts, are by no means innocuous. State ex rel. Howard v. Allison, supra (real property); State ex rel. Caloia v. Weinstein, 525 S.W.2d 779 (Mo.App.1975) (tax returns); Presta v. Owsley, 345 S.W.2d 649 (Mo.App.1961) (business assets, certain individuals); State ex rel. Strodtman v. Haid, 325 Mo. 1137, 30 S.W.2d 466 (Mo.App.1929) (bank accounts); State ex rel. Lee v. Cavanaugh, supra (creditors of the witness). A trial judge could perceive how a response to a question relating to the aforementioned areas might provide a necessary and essential link in a chain of testimony leading to a conviction for a crime.

The questions relating to property received through inheritance, or property belonging to the relator which is included in his testamentary disposition, (questions 16, 17 and 18) are merely attempts to rephrase questions concerning assets. The questions have inheritance tax ramifications as well as those mentioned above.

Questions 1, 2 and 3, however, do not appear to involve matters which could realistically expose the relator to criminal prosecution if he was compelled to answer. It is here that the witness claiming the privilege should describe in general terms a rational basis as discussed above. If the court can say as a matter of law that it is impossible for the witness to incriminate himself, it may compel an answer.

For the reasons stated above, we make our preliminary writ absolute to all questions except 1, 2 and 3. As to those questions, our preliminary writ is quashed.

GUNN, P. J., and KELLY, J., concur.

      . For the purposes of this appeal, we need only consider the privilege as guaranteed by the Constitution of Missouri.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Lee NACHTIGAL, Defendant-Appellant.
    No. 10508.
    Missouri Court of Appeals, Springfield District.
    Feb. 14, 1978.
    Motion for Rehearing or Transfer Denied March 7, 1978.
    Application to Transfer Denied April 10, 1978.

      W. Henry Johnson, Douglas, Douglas & Douglas, Neosho, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Charged as a second offender, (§ 556.-280), defendant Michael Lee Nachtigal was convicted by a jury of robbery in the first degree by means of a dangerous and deadly weapon, (§ 560.135), and felonious assault with a deadly weapon, (§ 559.180), and was sentenced, on each offense, to 25 years’ imprisonment, the sentences to run concurrently. Defendant appeals.

At approximately 9 p.m. on March 5, 1976, Jackie Clark, age 18, and his date, Debbie Smith, age 17, were sitting in Jackie’s car which was parked on a country road near Joplin, Missouri. Two men, Gary Black and defendant Nachtigal, arrived at the scene in Black’s car. The two men robbed Jackie of his billfold and its contents. They then ordered Jackie to step out of the car and to lean against it. While Jackie was in that position one of the men, using a sawed off shotgun, shot Jackie in the middle of the back. Although his wounds were grievous, Jackie survived.

Defendant’s first “point relied on” is that the trial court erred in permitting the prosecuting attorney, over defendant’s objection, to ask an improper question during voir dire examination of the prospective jurors. The challenged question was, “Are there any among you who, after you have listened to all the evidence and testimony, saw the exhibits, and given the court’s instructions, could not for any reason, find guilt if proved beyond a reasonable doubt?”

At the time the question was asked, defense counsel objected to it “on the basis it invades the province of the court.” On this appeal defendant challenges the statement on the ground that “it was an improper attempt to commit the jury to a course of action before they had heard the evidence.” The latter objection was presented initially in the motion for new trial.

The objection now urged has not been preserved because it was not made at the time the alleged error occurred. State v. Thomas, 452 S.W.2d 160, 164[10] (Mo.1970); State v. Brookshire, 353 S.W.2d 681, 688[17] (Mo.1962). In addition, voir dire questions substantially similar to the instant one have been held to be not vulnerable to the objection now sought to be presented. State v. Gray, 423 S.W.2d 776, 781[6] (Mo.1968); State v. McCaine, 460 S.W.2d 618, 622[11] (Mo.1970); State v. Coles, 467 S.W.2d 889, 890 (Mo.1971).

Defendant’s first point has no merit.

Defendant’s second point is: “The trial court erred in allowing officer Wells, over the objection of appellant, to testify from a police report, Exhibit No. 40, as to the description related to him of a shotgun allegedly missing from the home of Frank Black because officer Wells could not testify as to the correctness of the description contained in the report and because it constituted hearsay.”

Frank Black and officer Wells testified as witnesses for the state. Frank Black is the father of Gary Black. Frank Black testified that defendant and Gary Black were together at the witness’s home on March 5 and that they left the home about 8 p.m. in Gary Black’s car.

Frank Black testified that he was the owner of two .410-gauge shotguns, one of which, “it came to my attention,” was missing on Saturday morning, March 6. The missing shotgun was a “single barrel break-open.” He testified that, in a telephone call he made that morning to the Joplin police station, he told officer Wells the specific description of the missing shotgun — “I gave him (Wells) the name of the gun, the manufacturer of the gun, the model number, and the serial number.” He testified, however, that he did not remember the model number and the manufacturer, although he had given that information to Wells.

Wells testified that he had had two conversations with Frank Black, several hours after the crimes had been committed. In the first conversation Wells informed Frank Black that his son Gary and the defendant had been taken into custody. Wells also asked Frank Black if he had any shotguns and if he had any shotguns missing. Five minutes later Frank Black telephoned Wells and gave Wells a description of the missing shotgun. At that time Wells made a memorandum of that description and included it in his “full report” of his investigation of the crimes. Wells’ report was state’s Exhibit 40, which was not admitted into evidence.

The report, which had been typed by a police stenographer, had been reviewed and signed by Wells in its typewritten condition and, according to Wells, it accurately reflected the description of the shotgun as related to Wells by Frank Black. Shown state’s Exhibit 40, Wells testified that it refreshed his recollection as to what Frank Black had told him as to the description of the shotgun. Wells was then permitted to tell the jury that the description, which Frank Black had related to him, was “Springfield, Model 947, single shot, .410-gauge shotgun, serial number QZ-6.”

In essence, Frank Black, having personal knowledge of the specific description of the shotgun and the fact that it was missing, related to officer Wells that description. At time of trial Black did not remember the specific description but did remember that he had stated it to Wells. Wells, who had no personal knowledge of the shotgun and the fact that it was missing, made a memorandum, the accuracy of which he verified, setting forth the description which Black related to him. With the aid of that memorandum, Wells told the jury that description. Both Black and Wells were present at the trial and were cross-examined. Under the following authorities, the testimony of Black and Wells, considered together, authorized the reception into evidence of the testimony of Wells setting forth the specific description which Frank Black had related to him. U. S. v. Booz, 451 F.2d 719, 724-725[6—10] (3rd Cir. 1971); Swart v. U. S., 394 F.2d 5 (9th Cir. 1968); People v. Davis, 265 Cal.App.2d 341, 71 Cal.Rptr. 242, 246-247 (1968); Wigmore on Evidence, Vol. III, § 751(3), p. 108; Wigmore, supra, Vol. V, § 1530, p. 450.

In Booz, K, a government witness, observed a license number on a vehicle and reported the license number to B, an FBI agent. At the trial K did not remember the license number but did testify that he had related it to B. B testified that K had told him the license number and, using the FBI report to refresh his recollection as to what K told him, B testified that the license number was S0633. On appeal the defendant claimed that B improperly testified as to hearsay, i. e., K’s oral statement to B.

In rejecting defendant’s contention, the court said, “Some courts and textwriters have taken the view that where as here, a record is the joint product of two individuals, one who makes an oral statement and one who embodies it in a writing, if both parties are available to testify at trial as to the accuracy with which each performed his role, the recollection may be admitted. (Authorities cited) We think such an exception to the hearsay rule is sound and adopted here. If [B] can verify the accuracy of his transcription and if [K] can testify he related an accurate recollection of the number to [B] we believe that, even though [K] may not have read the report, sufficient indicia of its accuracy exist to let the evidence go to the jury.” (Emphasis added) Booz, supra, at p. 725.

In Swart, the sole issue on the appeal from a bank robbery conviction was whether the court erred in admitting testimony of police officers as to the license number of the “getaway car,” recorded by officers in their official reports as to the observation of persons at the scene who appeared as witnesses but who had no present recollection of the number. In affirming the conviction, the court cited textbook authorities for the proposition that “when the observer testifies to the accuracy of his report to the recorder and the latter testifies to the accuracy of the recording, the trial court may in its discretion admit the contents of the written report as the recorded past recollection of the observer.”

In Davis, S observed the license number of a vehicle involved in an offense. S telephoned W and told him the license number. Both S and W testified at the trial. S did not remember the license number. W had made a written memorandum of the license number which S had related to him. At the trial W had no independent recollection of the license number but did testify that he had recorded the number as given him by S. The license number, as contained in W’s memorandum, was properly admitted into evidence.

Defendant’s second point has no merit.

Defendant’s third point is that the trial court erred in permitting state’s witness Frisbe, a representative of the company which manufactured the “missing” shotgun discussed under defendant’s second point, to give certain testimony. Defendant’s third point asserts that the testimony should not have been admitted “because there had not been sufficient foundation that the weapon used in the crime was manufactured by said firearms company and thus all the testimony of the representative was irrelevant and immaterial.” Frisbe testified, using the specific description of the missing shotgun, that it was manufactured by his employer.

Defendant’s third point is, in essence, dependent upon the validity of defendant’s second point. The latter point having been resolved against defendant, defendant’s third point fails.

Another reason for the invalidity of defendant’s third point is that there was no objection made to Frisbe’s testimony until the conclusion of recross-examination. At that time defendant’s counsel made an objection, far more general than the one made here, and made no motion to strike. “An objection made after the answer is untimely and, in the absence of a motion to strike the answer, the ruling of the trial court is not preserved for review.” State v. Taylor, 408 S.W.2d 8, 11[8] (Mo.1966).

Defendant’s fourth point is that plain error, violating defendant’s constitutional right to remain silent, was committed during the direct examination of officer Wells by the prosecutor.

The testimony under scrutiny was as follows:

Q. (By the prosecutor) After Mr. Nachti-gal was placed under arrest at the Do-nut Shop, did he make another statement?

A. No, sir.

Wells was on the witness stand four times. Three times he was called as a state’s witness and on each occasion he was cross-examined. His fourth appearance was as a witness for the defendant. The episode in question took place during Wells’ second trip to the stand as a witness for the state.

On Wells’ initial appearance he testified, on cross-examination by defense counsel that, after Wells had arrested defendant at the Donut Shop, “at that stage I don’t believe he made any comment after his arrest, I don’t recall it right off if he did.” That testimony was responsive to the question which elicited it. Prior to that testimony, defense counsel had questioned Wells extensively concerning statements which the defendant made to Wells a few hours prior to the Donut Shop episode.

In State v. Mayo, 559 S.W.2d 264 (Mo.App.1977) defendant complained that the trial court erred in not ordering a mistrial when a police officer testified that at one point during defendant’s interrogation at the police station he had refused to talk further and had refused to make a written statement. In rejecting defendant’s claim of error, the appellate court pointed out that such testimony had been elicited by defendant’s own counsel on cross-examination of the state’s witness. “Appellant may not be heard to charge prejudice on account of testimony produced by appellant’s own counsel. Any objection to the testimony of the police officer with respect to appellant’s unwillingness to talk was waived.” (Citing authorities) Mayo, supra, at p. 267. See also State v. Doepke, 536 S.W.2d 950[2] (Mo.App.1976); State v. Miller, 501 S.W.2d 547, 548[2] (Mo.App.1973).

Defendant’s fourth point has no merit.

Defendant’s fifth and sixth points will be considered together. In essence they charge that the trial court erred in invoking the Second Offender Act (§ 556.-280) on the basis of a prior Oklahoma conviction because (a) the Oklahoma conviction resulted in “a suspended sentence” and (b) the trial court improperly received certain testimony from the first assistant district attorney from Ottawa County, Oklahoma, concerning the conviction.

The state introduced the record of a judgment and sentence of the District Court of the Thirteenth Judicial District of the State of Oklahoma, sitting in Ottawa, Oklahoma. That record shows that on January 19,1976, defendant, while represented by an attorney, entered a plea of guilty to the offense of burglary in the second degree, was found guilty by the court of that offense, and was sentenced to a term of four years in the Oklahoma penitentiary.

“[T]he important requirement for the protection of a defendant is that the proof (the evidence) as to prior convictions sufficiently establish those things required for the Second Offender Statute to be applicable, viz: that defendant was convicted of a prior offense punishable by imprisonment in the penitentiary; that he was sentenced therefor; and that he was subsequently placed on probation, paroled, fined or imprisoned therefor.’’ State v. Blackwell, 459 S.W.2d 268, 272[3] (Mo. banc 1970). (Emphasis in original)

Defendant argues that the Oklahoma conviction resulted in a “suspended sentence” and relies upon State v. Gordon, 344 S.W.2d 69 (Mo.1961). In Gordon, however, the showing of the prior conviction was defective because defendant had not been sentenced for the prior conviction. The record of the latter stated “imposition of sentence hereby is suspended.” In the case at bar the sentence was in fact imposed and only the execution of it was suspended. Defendant was “sentenced” in the sense required by Blackwell, supra. State v. Bevelle, 527 S.W.2d 657, 662[6] (Mo.App.1975); State v. Briggs, 435 S.W.2d 361, 363[3] (Mo.1968); State v. Hooper, 399 S.W.2d 115, 117[6] (Mo.1966). Subpoint (a) has no merit.

The defendant himself testified that he was placed upon probation subsequent to the Oklahoma burglary conviction. The state’s proof, coupled with the admissions of the defendant, supported the findings of the trial court upon which he invoked § 556.280. The soundness of the attack upon the testimony of the first assistant district attorney need not be considered for the reason that his testimony, which was received outside the hearing of the jury, was merely cumulative and it was consistent with the findings of the trial court which were fully supported by the other evidence. Subpoint (b) has no merit.

Defendant’s fifth and sixth points have no merit.

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969 V.A.M.S.

      . Whether or not Wells was reading from state’s Exhibit 40 in giving the jury the description is not reflected by the record.

      .The state proved two prior Oklahoma convictions.

        . State v. Brown, 543 S.W.2d 56, 59[4] (Mo.App.1976); State v. Bolden, 525 S.W.2d 625, 634[17] (Mo.App.1975); State v. Redding, 357 S.W.2d 103, 109[14] (Mo.1962).


text:
    STATE of Missouri, Respondent, v. Roger J. ZINN, Appellant.
    No. 10539.
    Missouri Court of Appeals, Springfield District.
    Feb. 17, 1978.

      Robert W. Richart, Joplin, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Charged as a second offender, defendant Roger J. Zinn was found guilty by a jury of burglary in the second degree, § 560.070, and received a sentence of 10 years’ imprisonment. Defendant appeals.

Defendant’s first “point relied on” is that the trial court erred in failing to sustain defendant’s motion for judgment of acquittal at the close of the state’s evidence and at the close of all the evidence because the evidence was insufficient to support the verdict.

This contention will be reviewed in light of the rules set forth in State v. Berry, 526 S.W.2d 92, 95[1-5] (Mo.App.1975). Having offered evidence at the close of the state’s case, defendant waived any claim of error as to his motion of acquittal filed at the close of the state’s case. State v. Benfield, 522 S.W.2d 830 (Mo.App.1975).

The evidence, viewed in the light most favorable to the state, showed that on Sunday, February 15, 1976, at 7:30 p. m., a silent burglar alarm, located in a building owned by Sutherland Building Materials, a partnership, sounded at the Joplin police headquarters. Two officers responded to the call. The officers observed two men, one of them the defendant, inside the building. Forcible entry had been obtained through a rear door. Inside the building the officers found several power tools, property of the partnership, which had been placed in a “gunny sack.” The manager of the building testified that he locked it when he had departed from the premises a few hours previously. He had given no one permission to enter. Defendant and his accomplice were taken into custody as they were leaving the building.

The foregoing evidence is sufficient to support the verdict. State v. Hawkins, 491 S.W.2d 342, 343[2] (Mo.1973); State v. Johnson, 533 S.W.2d 629, 631[2, 3] (Mo.App.1976); State v. Williams, 521 S.W.2d 169, 170[1] (Mo.App.1975). Indeed defendant’s brief does not attempt to state in what respect the evidence was allegedly insufficient.

Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in denying his motion for a change of venue “in that the pretrial publicity of defendant’s unauthorized absence from the county jail and the widely publicized picture depicting him painting a political campaign poster for the incumbent sheriff, all of which became an integral part of a highly contested and controversial political campaign, created bias and prejudice against defendant in the minds of the inhabitants of Jasper County.”

The application for change of venue, filed on July 12, 1976, alleged that the inhabitants of the county were prejudiced by reason of publicity accorded by television, radio, and other news media, to defendant’s unauthorized absence from the county jail. A hearing on the application was held on October 7, 1976, the morning of the trial.

At the hearing on the application defendant produced the affidavits of ten people. The state made no objection to their production. The affidavits were identical and stated that the affiant was a resident of Jasper County, had no interest in the outcome of the case and it appeared to affiant that as result of pretrial publicity concerning the unauthorized absence of the defendant from the county jail the defendant could not have a fair trial in the county.

Defendant produced only one witness, an attorney who had practiced law a year and a half, doing primarily criminal defense work. This witness mentioned a photograph which appeared in the Carthage Press “showing a picture of a man painting a political sign for the incumbent sheriff.” The witness said that the name of the defendant was given in the news summary which accompanied the picture. He said, however, that the photograph showed only the back of the head of the defendant and did not show his face. The photograph itself, which had not been mentioned in the application, was not introduced into evidence at the hearing on the application nor does it appear in the transcript.

The state produced the testimony of seven people, each a substantial citizen of Jasper County, most of whom lived in Joplin where the case was tried. One testified that he had seen the picture and read the caption but the picture did not cause him to form any opinion as to whether the defendant was guilty of burglary. None of the state’s witnesses recognized the name of the defendant and their testimony, in essence, was that there was no general feeling of hatred or illwill toward the defendant in the county.

During voir dire examination the prospective jurors were asked if any one of them was acquainted with the defendant or had ever heard of him “in any way, shape or form” and there was no response. At no time during voir dire examination or the trial itself was there mention of defendant’s week-long “unauthorized absence” from the county jail which occurred in April 1976, nor was there mention of the sheriff’s campaign or the photograph in which defendant appeared.

Rule 30.04 and § 545.490 provide that, in a county such as Jasper County, the defendant seeking a change of venue must prove the truth of his allegations of prejudice by competent evidence and the state is authorized to offer rebutting evidence. When that procedure is followed, the granting of a change of venue is a matter within the discretion of the trial court and its ruling is not to be disturbed on appeal unless an abuse of discretion is demonstrated. State v. Parcel, 546 S.W.2d 571, 574[11] (Mo.App.1977). See also State v. Odom, 369 S.W.2d 173 (Mo. banc 1963).

Defendant has failed to demonstrate that the trial court abused its discretion in denying the application.

Defendant’s second point has no merit.

Defendant’s third point is that the trial court erred in invoking the Second Offender Act, § 556.280, for the reason that the prior felony conviction, on which the invocation was based, was tainted. The prior conviction involved a plea of guilty to a charge of burglary and stealing. The plea was entered on August 19, 1964, in the Circuit Court of Jasper County and the records of that proceeding show that defendant was then represented by counsel.

Defendant challenges the validity of the prior conviction on two grounds: (a) ineffective assistance of counsel at the time the plea was entered, and (b) remoteness of the prior conviction.

The evidence with respect to the pri- or conviction was sufficient to support the finding of the trial court that the Second Offender Act was applicable. There was no duty on the part of the trial court to make an inquiry into the adequacy of the manner in which defendant was represented by counsel in connection with the prior conviction, or to make a specific finding thereon, the record of the proceeding being regular on its face. State v. Lasiter (No. 10477, Mo.App., Springfield District, filed February 3, 1978), -S.W.2d - (Mo.App.1978), and authorities there cited.

The challenge of remoteness is also invalid. “The Second Offender Act places no time limit within which the previous conviction shall have occurred.” State v. Phillips, 511 S.W.2d 841, 843[2] (Mo.1974).

Defendant’s third point has no merit.

Defendant’s fourth point is, in essence, that the trial court erred in permitting the prosecutor to cross-examine the defendant with respect to a court martial conviction of defendant, while he was in the armed forces, for the offense of murder. This was error, says defendant, because his counsel had informed the court and the prosecutor that defendant had been pardoned and defendant himself testified that he had been “exonerated.”

On direct examination by his attorney defendant said that he served in the armed forces and “I received a letter of commendation until I was court martialed.” On cross-examination by the prosecutor defendant admitted that while he was in the service he was convicted of the murder of six Chinese soldiers, received a sentence, and “I served nine years — I served the sentence out.” Defendant testified that in 1968 a lawyer in California had told his wife that he had been exonerated but that he had never been so informed.

Evidence of defendant’s court martial conviction for murder was properly received, under § 491.050, for the purpose of impeaching the defendant. State v. Himmelmann, 399 S.W.2d 58, 61[3] (Mo.1966). Generally, in the absence of statute, a pardon does not preclude the use of the conviction for the purpose of impeaching the credibility of a witness. Gurleski v. United States, 405 F.2d 253, 266[25, 26] (5th Cir. 1968); U. S. v. Denton, 307 F.2d 336, 339[4] (6th Cir. 1962); 81 Am.Jur.2d 584 Witnesses § 579.

Rule 609(c) of the Federal Rules of Evidence (28 U.S.C.A.) provides, in pertinent part, that a conviction is not admissible for impeachment purposes if the pardon was based on a finding of innocence. However, the burden is on the party challenging the admissibility of the conviction to demonstrate to the court by appropriate evidence that the pardon was so based. Wein-stein’s Evidence, United States Rules, Vol. 3, § 609[04]. See also Gurleski, supra.

The Supreme Court of California has ruled that evidence of a pardon is more available to a defendant than to the prosecution and that a mere statement by counsel, supported by sworn testimony of the defendant, that the defendant had been pardoned did not preclude the use of the conviction to impeach the defendant. The court pointed out that “the trial court was, of course, not required to believe [defendant’s] testimony.” In re Terry, 4 Cal.3d 911, 921, 95 Cal.Rptr. 31, 39, 484 P.2d 1375, 1382[5-7] (Cal. banc 1971).

Defendant’s fourth point has no merit.

Defendant’s fifth point is that the trial court erred in sustaining the state’s hearsay objection to portions of the deposition of a defense witness. The challenged portions have been reviewed by this court. They were hearsay and were not competent under any exception to the hearsay rule. The trial court’s ruling was proper. Defendant’s fifth point has no merit.

Defendant’s sixth point is that the trial court erred in failing to sustain defendant’s motion to produce, for his inspection, certain gloves found at the scene. The gloves were depicted in state’s Exhibit 12, a photograph. The photograph was introduced into evidence but the gloves were not. When the whereabouts of the gloves were discussed between counsel, the prosecutor stated that he had no objection to “bringing in the gloves.” Defense counsel stated, “I will waive the gloves. We have seen the picture.” Defendant’s sixth point has no merit.

Defendant’s seventh point is that the prosecutor improperly introduced into evidence before the jury certain testimony of the defendant which he had given during the second offender hearing, the latter having been held earlier in the day and outside the presence of the jury. Neither the statement of facts portion nor the argument portion of defendant’s brief sets forth what the challenged evidence was. The point has not been preserved for review. State v. Lewis, 532 S.W.2d 843, 844[2] (Mo.App.1975); Rule 84.04(c).

Defendant’s eighth point is that the trial court erred “in reading the names of the owners of the Sutherland Building Materials partnership to the jury in its verdict-directing instruction,” thereby denying defendant a fair trial.

The amended information, on which the case was tried, described the burglarized premises as “a certain building located at 2800 Rangeline, Joplin, Missouri, known as Sutherland Lumber, the property of Sutherland Building Materials, Inc.” During the presentation of the state’s case, evidence was adduced to the effect that the building was owned by a partnership consisting of John, Herman, Bob, Tom, and Chris Sutherland, d/b/a Sutherland Building Materials. Outside the hearing of the jury and before the state had rested its case, the prosecutor obtained permission of the court to amend the information to show ownership by the partners rather than by the corporation. The only objection made by defense counsel to the amendment was, “it is too late” and “it is unfair.”

“The court may permit an information to be amended ... at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Rule 24.02. Similar amendments of burglary informations, made during the trial, have received appellate approval. State v. Cobb, 444 S.W.2d 408, 415[15-16] (Mo. banc 1969) (change in name of corporate owner); State v. Roberts, 506 S.W.2d 817, 818[2, 3] (Mo.App.1974) (deletion of name of purported owner and insertion of name of true owner); State v. McLallen, 522 S.W.2d 1, 4[5] (Mo.App.1975) (adding the name of a co-owner of property taken and a technical change in the title of the burglarized store).

The trial court did not abuse its discretion in permitting the instant information to be amended. As stated in Cobb, supra, the offense charged remained the same after the amendment was made and there is no showing that any substantial right of the defendant was prejudiced in any respect.

Although the argument under defendant’s eighth point mentions the amendment, the point itself seems to complain that the trial court erred in correcting the state’s principal instruction (Instruction No. 4). Instruction No. 4, as initially read to the jury, stated that the building was “owned by Sutherland Building Materials, Inc.” The court realized the mistake and called it to the attention of counsel. Defendant’s counsel objected to any correction of the mistake and asked for a mistrial which was denied. The court then amended Instruction No. 4 so as to read: “owned by John, Herman, Bob, Tom, and Chris Sutherland, d/b/a Sutherland Building Materials, a partnership,” and read the amended version.

Defendant has demonstrated no prejudice by reason of the court’s correction, during the reading of the instruction, of a mere clerical error. The same situation arose in State v. Sawyer, 367 S.W.2d 585, 588[6-8] (Mo.1963). A similar correction of an instruction was made during the reading of it to the jury. The offense was burglary and the instruction was corrected so as to state the name of the owner. The court said at p. 588: “Courts may withdraw or correct an instruction and it is the duty of the court to do so at any time during the trial, especially before the case has been submitted, if upon reflection the same is considered to have been erroneously given.”

Defendant’s eighth point has no merit.

Defendant’s ninth point has not been preserved for review for the reason that it is a mere abstract statement of law and fails to state briefly and concisely what actions or rulings of the trial court are sought to be reviewed and wherein and why they are claimed to be erroneous. Rule 84.04(d); State v. Shumate, 516 S.W.2d 297, 300[8] (Mo.App.1974).

Defendant’s tenth point is, in essence, that the trial court erred in refusing to give Instructions A, B, and C, offered by defendant.

Instruction A was MAI-3.42, a circumstantial evidence instruction. Because this was not a case where the evidence was wholly circumstantial, there being two eyewitness, there was no error in refusing to give Instruction A. State v. Gotthardt, 540 S.W.2d 62, 68[8] (Mo. banc 1976).

Instruction B was a definition of “specific intent.” Instruction C was a definition of the word “willfully.” Neither Instruction B nor Instruction C is found in MAI-CR. The instructions which were given, and their accuracy and completeness has not been challenged, did not use either of the terms defined by the refused instructions. The trial court did not err in refusing to give Instructions B and C. State v. Abram, 537 S.W.2d 408, 411[3, 4] (Mo. banc 1976).

Defendant’s tenth point has no merit.

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.


author: TITUS, Judge.

text:
    Narcisa LARREA, Plaintiff-Appellant, v. OZARK WATER SKI THRILL SHOW, INC., a corporation, Defendant-Respondent.
    No. 10482.
    Missouri Court of Appeals, Springfield District.
    Feb. 17, 1978.

      David Donnelly, David E. Wilhite, Don-nelly, Baldwin & Wilhite, Lebanon, for plaintiff-appellant.
    Charles E. McElyea, Ronald K. Carpenter, Phillips & McElyea Corp., Camdenton, for defendant-respondent.
   TITUS, Judge.

Plaintiff, a 68-year-old female, fell on defendant’s parking lot and was injured. The jury gave her a verdict but the trial court entered judgment for defendant n. o. v. and plaintiff appealed. As the matter concerns us, the chief question for determination is whether plaintiff made a submissi-ble case for the jury.

These are the ground rules for appellate review of this case: We “must indulge the presumption that the plaintiff’s evidence is true, disregard defendant’s evidence in conflict therewith, and give the plaintiff every reasonable favorable inference to be drawn from all the evidence. But these rules and criteria do not go so far as to permit [us] to disregard the dictates of common reason and to accept as correct or true that which obviously under all the circumstances in evidence cannot be correct or true; nor to give plaintiff the benefit of any other than reasonable inferences. . . . The plaintiff is bound by [her] own testimony; may not have the benefit of or resort to the support of evidence inconsistent with such testimony, and conceded facts may not be disregarded. . . . The court may not supply missing evidence, give the plaintiff the benefit of unreasonable, speculative or forced inferences, or consider only isolated parts of the plaintiff’s evidence.” Levin v. Sears, Roebuck and Company, 535 S.W.2d 525, 527[1—3] (Mo.App.1976). With the foregoing in mind, we hereinafter recast the evidence in a light most favorable to the jury’s verdict. Gregory v. Robinson, 338 S.W.2d 88, 91[1] (Mo. banc 1960).

On July 26, 1972, defendant operated a water ski show at Paradise Cove on the Lake of the Ozarks. Its premises, “about 300 feet long [north and south] and probably about 150 feet wide [east and west]”, were situate on the west side of the cove and sloped downward from west to east to the water’s edge. Patrons viewed the show from facilities located at the northeast corner of the property adjacent to the lake; a parking lot occupied the southwest part of the premises. According to the main instruction proffered by plaintiff and given by the court, “defendant’s parking lot was irregular and uneven and was covered with rocks and gravel.” Growing trees were interspersed about the parking area. The casualty occurred near 8 p. m. By taking judicial notice of the time of sunset [Phillips v. Stockman, 351 S.W.2d 464, 467[1] (Mo.App.1961)], we know that on the date and at the place of the accident sunset occurred at 8:27 p. m. Sunrise and Sunset Table No. 1166, prepared by Nautical Almanac Office, U.S. Naval Observatory, Washington, D.C. Also, we are aware that “ ‘When lighted lamps are required’ [for motor vehicles upon the highways] means at any time from a half-hour after sunset . . ..” § 307.020(9), V.A.M.S. Consequently, we may confidently assume it was daylight at the time concerned.

Plaintiff, a business invitee, arrived at defendant’s parking lot as a backseat passenger in a four-door car driven by her son who shared the front seat with his wife and three-year-old daughter. In accordance with directions given by attendants, the automobile was parked near the south side of a tree, headed west, parallel in a row with previously parked vehicles. Carrying her daughter, the wife left the car, walked around the tree and headed for the seating and viewing area. Plaintiff looked at the ground as she alighted from the automobile. However, after she “got out of the car and . . came around the tree and . . . started walking down the hill,” plaintiff was “[l]ooking to the lake, toward the lake” and following her daughter-in-law. Plaintiff walked past the tree a few feet where she stepped on top of a rock. Her foot slipped off the rock causing her to fall and be injured. The rock, said to have been “imbedded tightly in the ground,” apparently had a fairly flat surface and measured approximately three inches wide by five inches long. Its surface was described as sloping down towards the lake with its highest elevation being about one and three-quarters inches above ground level. Neither plaintiff nor her daughter-in-law observed the rock until after the fall.

If any, the liability of defendant (as possessor of the land) to plaintiff (its invitee) is generally declared as follows: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.” 2 Restatement, Torts 2d, § 343, pp. 215-216. It has been stated that the doctrine enounced in the Restatement, supra, “together with all of its technicalities is firmly embedded in the jurisprudence of this jurisdiction, . . . and the problem is whether the facts and circumstances of this occurrence reasonably fit into the pattern of the rule as it has been established in Missouri.” Dean v. Safeway Stores, 300 S.W.2d 431, 432 (Mo.1957); Hokanson v. Joplin Rendering Company, Inc., 509 S.W.2d 107, 110[1, 2] (Mo.1974). Of equal interest and importance is what is said in § 343 A. of 2 Restatement, Torts 2d, p. 218, and in Comment on Subsection (1), par. e., p. 219: “§ 343 A. Known or Obvious Dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. . . . Comment on Subsection (1): . . . e. In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.” Likewise, “In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance.” Comment e. under § 343, 2 Restatement, Torts 2d, p. 217.

An invitee who goes upon a paved sidewalk, paved passageway or paved parking lot, or who enters upon the premises of a store, theater, hotel, motel or office building, is entitled to expect that the possessor thereof will have made far greater preparation to secure the safety of his invitees than will have been made by the possessor of a primordial lakeside parking area which obviously conforms to its inclined terrain, is irregular, uneven, covered with dirt, rocks and creek gravel and which, intermittently, accommodates trees native to the property. See, Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104 (Mo.1973); Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366 (Mo.App.1974); Abel v. Campbell 66 Express, Inc., 378 S.W.2d 269 (Mo.App.1964); Willis v. Rivermines I. G. A. Supermarket, 350 S.W.2d 437 (Mo.App.1961); Hoffman v. The Kroger Company, 340 S.W.2d 152 (Mo.App.1960); Byron v. Fresh Pond Open Air Theatre, 333 Mass. 121, 128 N.E.2d 785, 787[4], 50 A.L.R.2d 1452, 1456 (1955); 2 Restatement, Torts 2d, § 343, Comment e., p. 217.

Defendant-possessor owed to plaintiff-invitee only the duty to provide a reasonably safe parking lot, but defendant did not owe plaintiff absolute safety for it was not an insurer of her safety. Potter v. Zorensky, 508 S.W.2d 21, 22[1, 2] (Mo.App.1974). Furthermore, defendant is not liable to plaintiff for injuries which result from an open and obvious condition which is or must have been known to plaintiff in the exercise of due care for her own safety, and if plaintiff was or should have been aware of the condition and of the consequence of disregarding it, she may not recover. Possessors of premises are not obliged to anticipate that their invitees, in the exercise of ordinary care, will fail and neglect to appreciate dangers generally which are known to be inherent in obvious conditions. Hopkins v. Sefton Fibre Can Company, 390 S.W.2d 907, 912[7, 8] (Mo.App.1965). The attention which an invitee must give his surroundings and come by an appreciation of them in governing his actions is not a legal absolute but is to be judged by the concomitant circumstances and conditions and the environment in which he finds himself. Tharp v. Monsees, 327 S.W.2d 889, 893[3] (Mo. banc 1959); Henryetta Construction Co. v. Harris, 408 P.2d 522, 531[19], 28 A.L.R.3d 876, 889 (Okl.1965).

The bucolic nature of the parking area was patent. In the exercise of ordinary care for her own safety, plaintiff should have recognized that the semi-sylvan plot as it inclined to meet the lake was rugose, overlaid with coarse gravel and rocks and that its rustic terrain demanded near-constant scrutiny by all desiring safe passage. No duty reposed in the possessor of such a lot to maintain its surface absolutely smooth. The wary, using due care, would realize that in such a surface there would be depressions, rises and rocks and that danger was a probable consequence of disregarding these conditions. Consequently, it cannot be responsibly said that it is negligent to allow such impedimenta of nature to remain so long as they are only those as may be expected in such a place. We conclude that there was no actionable negligence insofar as the surface of the particular parking lot in question was concerned and that had plaintiff, instead of looking at the lake, used the care as should have been used by an ordinarily prudent person walking on such a surface, she would not have been injured. Cf. Heidt v. Lauless, 348 S.W.2d 599, 602[2] (Mo.App.1961); Byrnes v. National Casualty Co., 45 So.2d 408, 410-411 (La.App.1950).

Judgment affirmed.

All concur.

      . All time references are to Central Daylight Saving Time.


author: PER CURIAM. FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Stephen D. LEE, Defendant-Appellant.
    No. 10794.
    Missouri Court of Appeals, Springfield District.
    Feb. 21, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David Donnelly, Donnelly, Baldwin & Wilhite, Lebanon, for defendant-appellant.
   PER CURIAM.

Defendant Stephen D. Lee was jury tried and convicted of robbery in the first degree by means of a dangerous and deadly weapon and his punishment fixed at ten years’ imprisonment. Following an unsuccessful motion for new trial the court granted allo-cution and imposed sentence and rendered judgment. However, the transcript filed herein fails to show that the clerk entered judgment as required by Rule 27.11, V.A. M.R., and consequently, we have no jurisdiction of this appeal.

Rule 27.11 provides: “Whenever a judgment upon a conviction shall be rendered in any court, the clerk of such court shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.”

The only entry in the transcript purporting to be the judgment from which would trigger the appellate process is nothing more than a docket entry which states: “Defendant is advised of jury’s verdict and his punishment is fixed at commitment to State Dept, of Corrections for a period of ten (10) years. Allocution granted defendant. Judgment and Sentence. Defendant allowed 267 days jail time. Sheriff allowed one guard.”

Where the clerk has failed to enter the required judgment the proper disposition is to set aside the submission of the case here and remand it with directions to the trial court to enter judgment. State v. Skaggs, 248 S.W.2d 635 (Mo.1952); State v. Wilke, 560 S.W.2d 601 (Mo.App.1978).

It is so ordered.

All concur, except FLANIGAN, J., dissents in separate opinion.

FLANIGAN, Judge.

I respectfully dissent for the reasons stated in my dissenting opinion in Gothard v. Spradling, 561 S.W.2d 448 (Mo.App., Springfield District, No. 10762, 1978).


author: STEPHAN, Judge.

text:
    Ophelia COLE, Plaintiff-Appellant, v. Arthur LITZ, Fred A. Eppenberger and Eleanor Waltuch, as Members of the Civil Service Commission of St. Louis County, Missouri, Defendants-Respondents.
    No. 38592.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 21, 1978.

      Steven K. Brown, St. Louis, for plaintiff-appellant.
    Andrew J. Minardi, Associate County Counselor, St. Louis, for defendants-respondents.
   STEPHAN, Judge.

Appellant, Mrs. Ophelia Cole, was a merit system employee of the St. Louis County Department of Community Health and Medical Care assigned to the billing office of the county hospital. Her employment commenced on August 29, 1971, and was terminated as of November 15, 1974. She was notified of the termination by letter dated November 21, 1974, from Gerald Pen-dleton, Assistant Director of the department’s personnel branch. Mrs. Cole made timely demand for a hearing before the Civil Service Commission. A full hearing resulted in a decision, in effect, that there was cause for her dismissal (inefficiency) but that she should be placed on the “reemployment eligible list”. The decision also encouraged the department to consider Mrs. Cole for appointment in the same grade in any unit of the department other than the billing office. The decision of the commission was affirmed by the Circuit Court, and Mrs. Cole appeals. We review with the guidance of Article 5, § 22, Constitution of Missouri, Rule 100.07(b) and § 536.140-2, RSMo 1969.

Appellant asserts that the trial court erred in affirming the Commission’s decision because there was not substantial and competent evidence on the whole record to support it. In the body of her argument, appellant urges this conclusion for two basic reasons: that certain matters received in evidence did not rise to the necessary quantum, and that the commission and the trial court erroneously assumed that the burden of proof was on her at the commission hearing. For reasons herein stated, we hold that there was substantial and competent evidence from which the commission could have found that she was inefficient in the performance of her duties. However, it being clear that the commission misconceived its adjudicative functions in this case, we remand to the circuit court with directions to reverse the order of the commission and remand the cause to the commission for reconsideration.

From the evidence adduced at the hearing, the commission reasonably could have found the following: Robert Stewart became general supervisor of the hospital billing office in April, 1974. He reviewed the incoming mail on a daily basis and noticed that many claims directed by the hospital to Blue Cross, Medicaid, Medicare, and insurance carriers were being returned because of various errors. He began keeping a log to assist him in fixing responsibility. From this and other sources he learned that Mrs. Cole was making many of the errors. Those attributed to Mrs. Cole included errors in billing proper amounts, failure to supply necessary supporting data with claims, improper computer coding, mathematical errors, and incorrect alphabetical filing of patients’ accounts. In Stewart’s opinion, Mrs. Cole was guilty of twice as many errors as any other employee in the office. Because of the time it took to correct the errors and because of the substantial number of days of sick leave and vacation taken by Mrs. Cole, it became necessary to assign two summer employees to assist Mrs. Cole in attempting to bring her work to a more current status.

The commission could have further found: Mrs. Cole took a scheduled vacation from August 26 through 30, 1974. On the morning she was to return, she called Stewart and advised him that she would have to take another week of vacation because she did not have a babysitter for her children. The second week had been earned but not scheduled, and Stewart objected because of the large volume of business in the office and the fact that she was needed. Upon her return the following week, Stewart met with her and told her that her work was below acceptable standards. Stewart presented her with a summary sheet of the matters discussed, which Mrs. Cole refused to sign. On the next day, a meeting of the hospital’s comptroller, Mr. Stewart, and Mrs. Cole took place. The comptroller, a Mr. Trent, placed Mrs. Cole on thirty days’ probation under the terms of which she would turn her work into Mr. Stewart for examination. According to Mr. Stewart, her work did not improve during this period. She apparently was not advised of her status at the end of the thirty days. On October 21, 1974, Mrs. Cole consulted a physician who recommended major surgery. After a second consultation, she entered a hospital on October 27, underwent the surgery, and was released six days later. While she was in the hospital, she received two telephone calls from Stewart inquiring when she could return to work. Stewart placed a similar call to Mrs. Cole while she was convalescing at home. When Mrs. Cole could not give him a date as to when she could return to work, he told her that her sick leave time had been exhausted and that he could not keep her job open for her indefinitely. The termination letter followed.

In support of the contention that certain evidence did not meet the “competent and substantial” test, appellant urges that the department’s evidence “consisted of”: (a) a summary list of errors committed by several billing clerks (including herself) which revealed neither the ratio of errors to total transactions performed by each employee nor the economic impact of any of the errors; (b) four improperly processed billing forms; and (c) appellant’s legitimate sick leave and vacation usage record without a showing of the impact on appellant’s quality of work or a showing that her usage was excessive when compared to usage of other employees.

Having examined the transcript of the hearing before the commission, all of the exhibits introduced at the hearing, and the briefs of the parties, we disagree with the appellant’s contention that the department’s evidence “consisted” of the foregoing matters. In making such argument, appellant ignores the evidence presented by the department from which the commission could and did find that she was inefficient in the performance of her duties. The documentary evidence referred to in (a) and (b) of appellant’s point was merely illustrative of testimony presented on behalf of the department; the evidence concerning appellant’s use of sick leave and vacation time was, in fact, accompanied by a showing of deleterious impact on the quality of appellant’s work and a showing that her usage exceeded that of other employees.

We determine that there is substantial and competent evidence on the whole record to support the decision and that the decision was not clearly contrary to the overwhelming weight of the evidence. Hanebrink v. Parker, 506 S.W.2d 455 (Mo.App.1974). However, we cannot affirm.

The evidence tending to support the charge of inefficiency was not uncontro-verted. There was evidence which, if believed, tended to show the absences were justified and that the errors were not the result of inefficiency or incompetency, but rather the product of unfair work distribution among the employees resulting in an inordinate amount of workload being assigned to appellant. Appellant was entitled to have this evidence weighed fairly and impartially by the commission. Rule 100.07(b); § 536.140-2, RSMo 1969.

Under the heading “Conclusions of Law and Decision”, the commission noted that, according to its own rule, its policy is to support appointing authorities in requiring efficient service from merit system employees. The commission then stated:

“It is tempting for the Commission in a case of this character to substitute our judgment for that of the responsible party-
“Although we are sympathetic with Appellant we are compelled to conclude that the judgment of the Department must be upheld. To hold otherwise would be to substitute the judgment of the Commission for that of the appointing authority and we do not feel that we should do that in the absence of some compelling evidence that the judgment of the appointing authority was unsound or improperly motivated. There is no such evidence here.”

Thus, by the terms of the commission’s decision, Mrs. Cole could not have prevailed unless there appeared “compelling evidence that the judgment of the appointing authority was unsound or improperly motivated . . . ” even though the commission found the independent exercise of judgment “tempting”. The appointing authority was entitled to no such position of evidentiary advantage; evidence presented by the department did not, simply by virtue of its source, deserve more credit than that presented by the appellant.

A similar situation appeared in Heidebur v. Parker, 505 S.W.2d 440 (Mo.App.1974) in which a police officer demanded a hearing before the board of police commissioners after the superintendent of police ordered his dismissal. Under a board rule, a dismissed officer was required to open and close the hearing. The officer argued that the rule unfairly shifted the burden of proof; and this court, speaking through Judge McMillian, agreed. The following appears at page 444:

“In the instant case the evidence is undisputed that plaintiff was discharged by the Superintendent based not upon a hearing, but only upon the Inspector’s Report. His first evidentiary hearing, although styled an appeal, was before the Board. It was at this hearing that pursuant to the Board’s procedure that defendant was required to put on his proof that he had not violated any of the department regulations contained in the Code of Discipline and Ethics. In other words, defendant had the burden of proving that his discharge was improper. Here what is styled by the Board as an appeal, is, in fact, even from a cursory reading of the transcript a de novo hearing of the entire controversy. Thus, since the Board hearing was the first eviden-tiary hearing of an adversary nature, we hold that the Superintendent has the burden of proof and should have been required to put on his case first; . It is only fair since the Superintendent filed the charges that he be required to prove them before ordering plaintiff’s discharge.”

The court then concluded that the procedure dictated by the rule “failed to afford plaintiff due process”.

In the instant case, it is clear that the department undertook the burden of proof by going forward with the evidence. The problem arises here in the commission’s own concept of its function and its refusal to “substitute” its “judgment” for that of the appointing authority. The commission was the finder of fact and the arbiter of disciplinary measures to be imposed, if any. It could not abdicate that responsibility. By requiring appellant to come forward with compelling evidence of her innocence of the charges, it unfairly shifted the burden of proof, thus failing to afford appellant due process. Heidebur, supra.

We may not substitute our judgment on the facts of this case for that of the commission. Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856, 863 [19, 20] (Mo.App.1977). Accordingly, the cause is reversed and remanded to the circuit court with instructions to remand the same to the commission for reconsideration in light of this opinion. Rule 100.07(e); § 536.140-5, RSMo 1969.

STEWART, P. J., and REINHARD, J., concur.

      . In the letter to Mrs. Cole from the appointing authority setting forth the reasons for her dismissal, “excessive absenteeism” is cited as one of the grounds. However, the commission found “that the bulk of the evidence concerning absenteeism is only relevant insofar as it affects the issue of efficiency . . ” Thus, Mrs. Cole appears to have been exonerated by the commission on the charge of excessive absenteeism, though not wholly from the effect of the evidence introduced to support it. In view of the disposition of this case, we invite the commission’s attention to the discussion of such a charge in Stewart v. Board of Education of Ritenour Consolidated School District, 538 S.W.2d 765 (Mo.App.1976).

      . This statement by Stewart was apparently erroneous. Prior to her employment at the hospital, appellant had been employed by the county in the office of the prosecuting attorney. At the time her employment in the prosecutor’s office terminated, she had accrued 43.5 hours of sick leave. When she returned to work for the county, she was not given credit for these hours.

      . The evidence tending to support a result favorable to appellant could not reasonably be characterized as “overwhelming”. It is, however, substantial and competent. Cf. Hanebrink v. Parker, 506 S.W.2d 455, 458 (Mo.App.1974).

      . Compare Mark Twain Bancshares, Inc. v. Kostman, 541 S.W.2d 1, 3, footnote 2 (Mo.App.1975) wherein this court held that the circuit court misstated the law when it said that a decision of the State Banking Board was arbitrary and capricious because the board had substituted its discretion and judgment for that previously exercised by the Commissioner of Finance. There, as here, the hearing was de novo.


author: SMITH, Judge.

text:
    CONSTRUCTION ENTERPRISES, INC., Plaintiff-Appellant, v. Gerald M. SCHAEFFER et al., Defendants-Respondents.
    No. 38909.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 21, 1978.

      Charles D. Dalton, Klamen, Summers & Compton, Maureen Swihart, Clayton, for plaintiff-appellant.
    Joseph A. Fenlon, Clayton, for defendants-respondents.
   SMITH, Judge.

Plaintiff appeals from the judgment of the trial court directing a verdict against it. Plaintiff had sued defendants for breach of contract based upon defendants’ failure to complete a contract for purchase of a lot and house.

Plaintiff does not attack the action of the trial court in sustaining defendants’ motion for directed verdict. Rather it raises on appeal allegedly erroneous evidentiary rulings of the trial court, which precluded plaintiff from introducing evidence to establish its damages arising from the breach.

The sale contract provided for a purchase price of $23,846 for the lot and house. The house was to be constructed by plaintiff. The structure was completed and defendants refused to complete the contract. Plaintiff’s petition sought $5000 as loss of profits. At trial plaintiff sought to introduce a cost sheet of the amount expended to build the house and testimony by the plaintiff’s president of the costs and labor in the construction of the property. The court refused admission of this evidence and it is this refusal that plaintiff raises as error here.

It is clear in Missouri that the general measure of damages for breach of a contract for the sale of land with a structure thereon is the difference between the purchase price and the fair market value of the property on the date of breach. Duncan v. Townsend, 325 S.W.2d 67 (Mo.App.1959) [3]; Biggers v. Gonter et ux., 54 S.W.2d 783 (Mo.App.1932) [5]; Norris v. Letchworth, 140 Mo.App. 19, 124 S.W. 559[5] (1910). No special damages were pleaded. Whether plaintiff would or would not make a profit on the sale, or what its costs were, was irrelevant to the damages which it could recover for breach of this contract. There was no error in the court refusing admission of the evidence complained of and had the evidence been admitted it would not have served to establish plaintiff’s damages.

Plaintiff also sought to introduce a contract of sale between it and Henry C. Collins, Jr., its president and sole stockholder, for the purchase of the property after the breach. Plaintiff has not raised in this court any claim of error in the trial court’s refusal to admit this evidence. Additionally, there was no testimony or offer of proof that such contract reflected the fair market value of the property and in fact plaintiff’s offer of proof was that the contract price was arrived at by determining the cost of construction plus overhead. That does not establish fair market value.

There was no evidence offered of plaintiff’s damages and the action of the trial court in directing a verdict was correct.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Victor HILL, Defendant-Appellant.
    No. 38940.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 21, 1978.
    Crouppen, Walther, Zwibelman & Walsh, P. C., Roy A. Walther, III, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant appeals from a judgment of conviction for the possession of heroin and a sentence of eight (8) years imprisonment, § 195.200, RSMo 1969. For reversal appellant argues that the court erred in denying his motion to suppress because the heroin was seized as a result of an arbitrary pedestrian check. We affirm.

At the pretrial hearing on the motion to suppress evidence, the court rejected appellant’s version of the events leading up to the discovery of the heroin and accepted the state’s version. Where there is conflicting testimony, it is the prerogative of the court to accept that version of the testimony that appears to be the most credible. State v. Anderson, 384 S.W.2d 591, 604 (Mo. banc 1964). Here the court chose to believe that during a pedestrian check, i. e., where the officers are stopping citizens upon the street, getting their names and addresses, and then checking to determine if they are wanted for any law violations, without a search, appellant threw down a newspaper. In the discarded newspaper picked up by the officer was found the heroin in question.

In State v. Hall, 534 S.W.2d 508, 510 (Mo.App.1976), we said:

“. . . ‘Where the articles sought to be suppressed were in plain sight of the arresting officer, were dropped or thrown away by the person arrested, and were picked up by the officers, the articles are admissible in evidence over an objection that they were seized as the result of an unlawful search.’ ” See also State v. Jackson, 476 S.W.2d 540, 542 (Mo.1972) where defendant dropped or attempted to dispose of a bottle containing heroin; and also State v. Berry, 450 S.W.2d 212, 213 (Mo.1970) where defendant discarded a bottle of capsules into a vacant lot.

Here appellant discarded the newspaper containing the contraband and was arrested after the officer discovered the capsules; hence there was neither a search nor an unlawful seizure. State v. Rankin, 477 S.W.2d 72, 75 (Mo.1972).

Accordingly, judgment affirmed.

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


author: PER CURIAM.

text:
    Arle F. DALTON, David Dalton and Pamela Dalton, Plaintiffs-Appellants, v. Otto T. C. BORGER, Defendant-Respondent.
    No. 38772.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 21, 1978.
    Shepherd & Weenick, Lawrence N. Weenick, Clayton, for plaintiffs-appellants.
    David L. Zwart, St. Louis, for defendant-respondent.
   PER CURIAM.

This is an appeal by plaintiffs-appellants, the Daltons, from a judgment entered on November 8, 1976, by the circuit court of the City of St. Louis dismissing two counts of plaintiffs’ petition to establish a 1966 will of Otto Carl Paul Borger as a valid will and to declare a later 1972 will invalid.

The petition filed by the plaintiffs is in four counts. Counts I and II relate to the wills of 1966 and 1972 and seek to establish a September 2, 1966 will as “the true and valid Last Will and Testament” of Otto C. P. Borger and to declare a later 1972 will invalid because the document was not freely executed. Count III sought to set aside a trust instrument purportedly executed by Otto C. P. Borger on October 14, 1972, whereby he allegedly transferred all his real and personal property in trust to certain trustees to be transferred to beneficiaries after his death, and Count IV sought an accounting in the event the trust was found invalid.

On June 29, 1976, the defendant, Otto T. C. Borger, moved to dismiss Counts I and II of the petition for failure to state a cause of action and for lack of jurisdiction over the subject matter.

On November 8, 1976, the circuit court sustained the motion to dismiss Counts I and II with prejudice but the record does not reflect that it designated the order as a final and appealable one under Rule 81.06. We are therefore faced with the initial inquiry as to whether there is a final, appeal-able order subject to review.

It is elementary that an appellate court must inquire sua sponte whether a final, appealable order has been entered. Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 379 (banc 1956). If no final judgment has been entered the appeal is premature and must be dismissed. Dudeck v. Ellis, 376 S.W.2d 197, 204 (Mo.1964). The general principle is that to be final and appealable a judgment must dispose of all parties and all issues in the case and leave nothing for future determination, unless the trial court has ordered a separate trial of any claim or issue or has specifically designated the particular judgment as a final judgment for purposes of appeal. Caudle v. Kelley, 545 S.W.2d 427, 429 (Mo.App.1976).

In Byous v. Lawshee, 475 S.W.2d 47 (Mo.1972), it was held that, when the trial court did not dispose of a second count and did not designate the judgment a final one, the appeal was premature. See also Scholz Homes, Inc. v. Clay Wideman & Sons, Inc., 524 S.W.2d 896 (Mo.App.1975). In Caudle, the court held that, where four counts were pleaded in the petition and the court granted a motion to dismiss two of the counts, there was no final, appealable judgment when the court did not designate it as final.

The appellants’ jurisdictional statement in their brief states that the order of November 8, 1976, is an appealable judgment “under the provisions of Supreme Court Rule 81.06.” No further elaboration is made substantiating this conclusion. On argument counsel for the parties indicated that the judgment was final and appeala-ble.

The jurisdictional statement filed in this court states that a motion for separate trials was sustained, and a statement in the appellants’ brief obliquely refers to an order of the trial court sustaining a motion of the defendant, Otto T. C. Borger, for separate trials of Counts I and II from Counts III and IV. These statements are not borne out by the record before us and such statement in the brief is not supported by any transcript reference. There is nothing in the record to indicate that the trial court sustained a motion for separate trials on Counts I and II.

The general statement in the appellants’ brief that the order is appealable under the provisions of Rule 81.06 does not delineate the specific subsection or portion of that rule which makes the November 8, 1976 order a final and appealable one.

Rule 81.06 deals with three situations:

(1) When a separate trial of any claim is ordered in any case and a jury trial thereof is had, the separate judgment entered upon the verdict shall be deemed a final judgment for purposes of appeal.

(2) When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case, the judgment entered shall not be deemed a final judgment for purposes of appeal unless specifically so designated by the court in the judgment entered.

(3) When a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, the judgment entered shall be deemed a final judgment for purposes of appeal, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims are determined.

We are unable to discern fi’om the record before us the applicable specific sub-provision of Rule 81.06 which makes the order of November 8,1976 a final, appeala-ble judgment subject to our review. It is clear that the trial court in its November order did not designate the order dismissing Counts I and II as final and appealable, and the record does not reflect that the trial court sustained any motion of defendant for separate trials of Counts I and II.

We are not able to determine from the record whether the separate hearing before the court on Counts I and II was “of an entirely separate and independent claim unrelated to any other claims” joined in the case. Rule 81.06.

We held in State ex rel. Pisarek v. Dalton, 549 S.W.2d 904, 906 (Mo.App.1977) that “if plaintiffs had requested, or should now request, the dismissal order to be so designated” as a final order, there was no “positive barrier” to its approval. See also State ex rel. Scott v. Sanders, 560 S.W.2d 899 (Mo.App.1978).

In the state of the record before us and in the absence of an appealable judgment, we are compelled to dismiss the appeal as premature.

The appeal is dismissed as premature.

All the Judges concur.


author: BROCK, Justice.

text:
    STATE of Tennessee ex rel. Ora EADS, Appellant, v. Frederick S. HUMPHRIES et al., Appellees. STATE of Tennessee ex rel. William J. RANSBOTTOM, Appellant, v. Frederick S. HUMPHRIES et al., Appellees. James DENNIS, Sr., Appellant, v. TENNESSEE STATE UNIVERSITY and Frederick S. Humphries, Appellees. STATE of Tennessee ex rel. Dorothy P. BRADLEY, Appellant, v. Dr. Billy M. JONES et al., Appellees. M. Janelle ANDERSON et al., Appellants, v. Billy M. JONES et al., Appellees.
    Supreme Court of Tennessee.
    Jan. 16, 1978.
    James D. Petersen, Petersen, Buerger & Yost, Franklin, for appellants.
    William J. Haynes, Asst. Atty. Gen., Nashville, for appellees; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

These cases were consolidated for consideration on appeal because they involve identical or closely related issues respecting the tenure rights of university professors who were employed to teach in institutions governed by the State Board of Education at the time their services were terminated. Professors Eads, Ransbottom and Dennis were employed at Tennessee State University and Professors Sprecklemeyer, Kenney, Stack and Bradley were employed by Memphis State University. Each of the plaintiffs asserts that he or she had acquired rights of tenure pursuant to T.C.A., § 49-1421, and the rules and regulations promulgated thereunder by the State Board of Education, and that his or her discharge from employment was in violation of those tenure rights.

I

T.C.A., § 49-1421, provides:

“The State Board of Education is hereby authorized and required to establish a system of tenure for college and university teachers under its jurisdiction. On or before September 1,1961, the Board shall promulgate and publish reasonable rules and regulations for the establishment of a tenure system for such teachers and the Board shall have the power to promulgate and publish such rules and regulations as are deemed reasonably necessary for the establishment of such tenure system which shall include but not be limited to standards and requirements concerning,
(a) the minimum qualifications of teachers eligible for tenure .
(g) grounds and procedures concerning suspensions and dismissals
“The rules and regulations shall . be approved and filed in the manner required by § 4-501, et seq., of this Code. “After giving written notice of charges against any teacher, the Board shall hold a hearing in the same manner and shall have the same powers as provided in § 49-1416, provided that where such section refers to the superintendent, for the purposes of this Chapter reference shall be made to the Chairman of the State Board of Education. In addition, a teacher shall be entitled to a judicial review of the action of the Board for the same purposes and in the same manner provided by § 49-1417.”

Pursuant to this statute the State Board of Education on August 11, 1961, adopted the following regulation:

“Teachers shall be employed for the academic year annually during a probationary period of three (3) years after which time if their services have been satisfactory, they may become members of the permanent teaching staff. The probationary period may be extended or shortened upon recommendation of the president of the college subject to the approval of the State Board of Education.”

This regulation was approved by the Attorney General and filed with the Secretary of State in compliance with the requirements of T.C.A., § 4-501, et seq., and was in effect at all times relevant to the claims asserted by these plaintiffs.

The State Board of Education attempted to change the length of the probationary period from three years to five years by adopting a resolution to that effect on February 11, 1966. However, this resolution was not approved by the Attorney General nor filed with the Secretary of State, and was therefore in violation of T.C.A., § 4-503, which provides:

“No rule or regulation shall be altered, amended, suspended, repealed or superseded except with the written approval of the attorney-general as to legality, and until all of the provisions of § 4-502 are complied with.”

Accordingly, it was invalid under T.C.A., § 4-504, which provides:

“All rules and regulations promulgated after July 1, 1941, excepting such as relate to the organization or internal management of a state agency, shall be void and of no effect unless and until the requirements of § 4-502 and 4-503 are complied with.”

Each of the plaintiff teachers was first employed in September, 1970, except plaintiffs Kenney and Bradley wh'o were first employed in September, 1968; and each has completed a third consecutive year of teaching and, in fact, has been re-employed for a fourth and fifth year. However, each teacher was informed upon receipt of his or her contract documents for the fifth year that the contract for that year would be a terminal one and that his or her services would not be continued beyond the school year 1975-1976. Dr. Bradley’s probationary period was extended to seven years.

Each of the plaintiff teachers was notified by the employing institutions at the time of original employment that one of the “fringe benefits” afforded was “the opportunity to be recommended for tenure after a period of five years of satisfactory service,” and, each teacher alleges that it was his or her belief that the five years probationary period mentioned in the letter of employment was the probationary period established by Tennessee law. Nevertheless, the plaintiffs allege that by virtue of completing three years of satisfactory employment and upon being elected for a fourth year each acquired tenure under the statute and the 1961 regulation of the Board of Education, since the 1966 regulation attempting to change the probationary period from three years to five years was invalid because not approved by the Attorney General or filed with the Secretary of State. Accordingly, they brought these actions asserting that the attempt of the employing institutions to terminate their employment without hearings and without charges is in violation of the tenure rights thus obtained. The defendant institutions contend that, although the resolution of the State Board of Education adopted in February, 1966, attempting to change the probationary period from three years to five years was invalid for the reasons herein-above stated, and as was decided by this Court in State ex rel. Chapdelaine v. Torrence, Tenn., 532 S.W.2d 542 (1976), the plaintiff teachers are, nevertheless, bound by the five years probationary period and did not acquire tenure upon the completion of three years’ service and re-appointment for the fourth year because each teacher was informed at the time of employment that the probationary period would be five, rather than three, years. Defendants rely upon dictum found in Chapdelaine, supra, 532 S.W.2d at 551.

We conclude that the contention of the defendants is essentially correct. It is well settled in this State that parties, who have dealt with each other in good faith in reliance upon a statute which, in fact, is unconstitutional and who have materially altered their respective positions in reliance upon such statute, may not invoke the aid of the courts “to undo what they themselves have done.” This principle was recently reaffirmed by this Court in Capri Adult Cinema v. State, Tenn., 537 S.W.2d 896, 899 (1976), wherein we said:

“The principle is well settled in civil litigation that when parties have dealt with each other at arms’ length upon the basis of an unconstitutional statute, they are bound by the results of their actions. Thus in the case of Roberts v. Roane County, 160 Tenn. 109, 123, 23 S.W.2d 239, 243 (1929), after citing a number of cases, the Court said:
‘The authorities cited do not question the general rule, that an unconstitutional statute is not a law, does not of itself confer any rights, duties or obligations, and is “in legal contemplation, as inoperative as though it had never been passed.” . . . But it is recognized that parties may so deal with each other upon the faith of such a statute that neither may invoke the aid of the courts to undo what they themselves have done.’ ”

Accord, State v. Hobbs, 194 Tenn. 323, 250 S.W.2d 549 (1952); Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579 (1955).

Although the cases cited dealt with statutes which were invalid because in violation of the constitution, we can see no reason why the same principle should not apply when the law relied upon is a rule or regulation of an administrative agency which is invalid because of non-compliance with statutory requirements. See Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107 (1935); United Fuel Gas Company v. Railroad Commission, 278 U.S. 300, 49 S.Ct. 150, 73 L.Ed. 390 (1929).

Therefore, we hold that each of the plaintiff teachers in these cases is bound by the five years probationary period provided by the 1966 amendatory regulation, and that they have not acquired tenure status. Consequently, termination of their employment without notice, hearing and charges did not violate their legal rights.

Our holding that none of the plaintiffs acquired tenure renders it unnecessary to consider other issues raised and they are, accordingly, pretermitted.

The decree of the trial court in each case is affirmed. Costs are taxed against appellants and sureties.

HENRY, C. J., and COOPER, FONES and HARBISON, JJ., concur.