author: MARTIN, Chief Judge.

text:
    WOODSON BEND, INC., Appellant, v. MASTERS’ SUPPLY, INC., General Electric Company, Cardinal Kitchens, Inc., and V. E. Anderson Mfg. Co., Appellees.
    No. 76-401.
    Court of Appeals of Kentucky.
    Sept. 1, 1978.

      Eugene L. Mosley, John A. Nold, Nold, Mosley, Clare & Rogers, Louisville, for appellant.
    John T. Bondurant, Brown, Todd & Hey-burn, William R. Mapother, Mapother & Mapother, Marvin R. O’Koon, Joseph C. Oldham, Louisville, for appellees.
    Before MARTIN, C. J., and HAYES and HOWARD, JJ.
   MARTIN, Chief Judge.

This is an appeal of a judgment of the Jefferson Circuit Court upholding a lien against property in Pulaski County for materials supplied to a modular home manufacturer in Jefferson County. The issue before us is whether a lien follows the modular home to its ultimate destination or is extinguished when it is removed from the construction site.

THE FACTUAL BACKGROUND

On July 5, 1972, Woodson Bend, Inc. entered into a contract with Unex Building Systems, Inc. to manufacture, deliver and erect on the Woodson Bend site in Pulaski County sixty modular housing units. Unex Building Systems, Inc. was referred to as UBS throughout this contract. According to the terms of the contract, “All foundations upon which modules will be placed, and all utility connections shall be made and constructed by UBS according to plans and specifications prepared by UBS.” Furthermore, it specified that “Erection of modules at the foundation on site, including all interior and exterior trim and all finishing work will be done by UBS.”

Beginning on June 20, 1972, and extending through August 18, 1972, the appellee Masters’, pursuant to contract with Unex, furnished materials which Unex used to fabricate the forty modular units which were placed on the Woodson Bend property. These materials consisted of hot and cold water pipe and fittings, waste and vent systems, sinks and drains, commodes, wash basins and “all the brass to trim them out with along with the water heaters . . .”

Substantially all of the items that Masters’ furnished Unex for the Woodson Bend project were furnished pursuant to written purchase orders from Unex to Masters’ which specified that the material was for the Woodson Bend project. Each invoice of Masters’ for material that Masters’ furnished Unex for the Woodson Bend project specifically referred to the Woodson Bend project. During construction of the modular units a Masters’ representative observed the items which Masters’ furnished to Unex being installed in the Woodson Bend units at the Unex plant. An exhaustive visual on-the-site examination by Masters’ confirmed that the forty modular units fabricated by Unex which are presently on the Woodson Bend site contain items identical to the material furnished by Masters’ to Unex. The gross price of the materials furnished by Masters’ to Unex and used in these forty units was determined by the trial court to be $12,201.23.

Beginning on, June 29, 1972, and extending through September 26, the Appellee Anderson furnished windows and window screens to Unex which were also used by Unex in the construction of the forty modular units which were placed on the Woodson Bend property. The gross price of these materials was determined by the Circuit Court to be $6,284.03.

Beginning on July 10, 1972, and extending through October 6, 1972, the appellee Cardinal Kitchens, pursuant to purchase orders with Unex, furnished materials which Unex used to fabricate the modular units which were placed on the Woodson Bend property.

All of the items that Cardinal Kitchens furnished Unex for the Woodson Bend project were furnished pursuant to a written purchase order from Unex to Cardinal Kitchens which specified that the material was for the Woodson Bend project. On or about February 7, 1975, the attorneys for Woodson Bend entered into a stipulation with Cardinal Kitchens stating “a total of at least forty (40) prefabricated apartment units were purchased by Woodson Bend from Unex Building Systems, Inc., and were erected on sites at Woodson Bend. Each of these apartment units contain one U-shaped Post Form Top and one Self-Edge Vanity Top”. The gross price of the materials furnished by Cardinal Kitchens to Unex and used in these forty (40) units was determined by the Circuit Court in its judgment to be $3,830.00.

Beginning in early July, 1972, and extending through September 11, 1972, the appellee General Electric, pursuant to a contract with Unex, furnished central air conditioning and heating equipment which Unex installed in the forty modular units which were placed on the Woodson Bend property.

The equipment was furnished pursuant to a Unex Purchase Order dated June 29,1972, which specified the job name as “Woodson Bend I”. John McCarthy, Manager of Operations for General Electric, approved the sale under the terms of the Purchase Order at a meeting on July 5, 1972, with Katherine Peden, President of Unex. His notes, written at the meeting, clearly indicate that all the General Electric equipment was to be used on the Woodson Bend project and that General Electric would have the right to assert a materialman’s lien against the Woodson Bend property if payment were not made as agreed. The notes show an agreement whereby 10% of the purchase price of each unit would be paid the first of the month following delivery to Unex and the 90% balance when the modules were delivered to Woodson Bend.

During the course of litigation, a General Electric representative met with Woodson Bend representatives at the Woodson Bend job site, at which time a visual inspection was made of the materials furnished Unex by General Electric. In the course of this job site inspection, they compared the serial numbers on each of the heating and air conditioning units with the serial numbers on the individual shipping documents and warehouse releases which had been prepared by General Electric at the time of shipment to Unex. This serial number comparison confirmed that the forty modular units fabricated by Unex and located on the Woodson Bend site contained the heating and air conditioning units supplied by General Electric to Unex. The contract price of the materials furnished by General Electric to Unex and used in these forty units was determined by the trial court to be $16,021.20.

In addition to contracting with the appel-lees and others for materials, Unex further undertook to perform its contract with Woodson Bend by subcontracting with Jack Carr Construction Company to build and prepare foundations at Woodson Bend for the modular units and by leasing a crane from McKinney Construction Company with which to erect the modular units on these foundations.

George Brown, President of Woodson Bend, testified that a considerable portion of the modular construction, including carpentry work, carpeting, dry walling, finishing, painting and roofing, was to be completed by Unex on the Woodson Bend site.

By September, 1972, through no fault of the appellees, and without their knowledge, Unex was apparently encountering some difficulty in adhering to the production, delivery and erection schedule contained in the July 5, 1972, agreement.

In a series of letters to Unex and its counsel, counsel for Woodson Bend affirmed its intention to insist that Unex fully comply with the provisions of that agreement and confirmed its understanding that Unex intended to perform its obligations under that agreement.

Specifically, in his September 18, 1972, letter, counsel for Woodson Bend outlined Unex’s duties under the July 5, 1972 agreement to manufacture, deliver and erect the modular units and to make and construct all foundations upon which the units were to be placed and requested that Unex furnish Woodson Bend by September 21, 1972, “a statement from ... all potential lienholds that they have firm contracts for performance with Unex”.

On September 26, 1972, Woodson Bend and Unex entered into an agreement by which Unex sold 32 modular units (64 modules) to Woodson Bend for $249,815.04. Twenty-four of these units (48' modules) had already been partially erected on the Woodson Bend site. Two units (four modules) were at the Pulaski County site but not yet erected and six units (12 modules) were still at the Unex plant.

Subsequently, on October 5, 1972, a second agreement was reached between Unex and Woodson Bend by which Wood-son Bend purchased eight modular units (16 modules) for $62,453.76. Thus, forty of the sixty modular units called for in the original July 5,1972, agreement were ultimately received by Woodson Bend.

At the time of the September 26, 1972 agreement, Woodson Bend obtained from Unex a Certificate of Delivery, Production and Lien Release which provided in part:

It is further certified that the suppliers of all material and services at the Wood-son Bend site in regard to the modules listed have been paid in full, with the exception of those listed and set forth on Schedule “C” attached hereto.
And it is further certified that on all modules listed in Schedules “A” and “B” attached hereto there has been received by Unex Building Systems, Inc., no notice of any liens filed nor notice of intent to file a lien, and all of the said modules are free and clear of all liens and encumbrances, except as otherwise set forth herein.

Woodson Bend’s awareness of the exposure of its property to the potential lien claims of persons who had furnished labor or materials to Unex, at the plant site as well as at the property site, is further demonstrated by the steps which Woodson Bend took to protect itself from such lien claims.

On October 2, 1972, pursuant to the September 26, 1972 agreement between Unex and Woodson Bend, Woodson Bend paid $4,194.00 jointly to Unex and Arrow Electric Company. Arrow Electric had evidently furnished services to Unex at its plant site.

On or after October 11, 1972, Woodson Bend paid a total of $10,766.57 by joint checks with Unex to sixteen different Unex' suppliers. Although these accounts are listed as having been payable as of September 8,1972, only two of the sixteen are listed on the schedule of unpaid suppliers at the Woodson Bend site which is attached to Unex’s September 26, 1972 Certificate, and for significantly different amounts.

Woodson' Bend never received the statement from all potential lienholders which its counsel had requested in his September 18, 1972 letter, since none of the appellees furnished such a statement. Nevertheless, subsequent to September 18, 1972, for the forty units (80 modules) Woodson Bend paid Unex and Business Development Corporation of Kentucky jointly the sum of $202,-112.56 and paid Unex alone a total amount of at least $87,993.58.

None of the appellees received any payment from Unex, or from Woodson Bend on behalf of Unex, with respect to the materials which the appellees furnished Unex for the Woodson Bend project, excluding the payments made by Woodson Bend after entry of the judgments in favor of the appellees by the Circuit Court.

Within the 120-day period prescribed by K.R.S. 376.010(3) each of the appellees gave Woodson Bend proper notice of its intention to claim a lien against the Woodson Bend property by reason of having furnished material by contract with Unex for the improvement of that property.

Within the six-month period prescribed by K.R.S. 376.080, each of the appellees filed a proper statement of lien against the Woodson Bend property in the Pulaski County Court Clerk’s office.

Each of these liens was subsequently discharged from the Woodson Bend property by means of a bond filed pursuant to K.R.S. 376.100 by Woodson Bend as principal and Stephen B. Kelley and C. C. Adams as sureties under which Woodson Bend and Messrs. Kelley and Adams bound themselves, jointly and severally, to satisfy any judgment rendered in favor of the appellees.

THE PROCEDURAL BACKGROUND

On May 30, 1973, appellees Masters’ Supply, Inc. and General Electric Company brought Action No. 174199 in Jefferson Circuit Court, Common Pleas Branch, to enforce materialmen’s liens filed pursuant to K.R.S. 376.010. Subsequently, Pulaski Circuit Court Civil Action No. 6169, styled Woodson Bend, Inc. v. Masters’ Supply, Inc. et al., in which appellees Cardinal Kitchens, Inc. and V. E. Anderson Mfg. Co. had asserted their materialmen’s lien claims, was transferred to the Jefferson Circuit Court by an agreed order entered on October 16, 1973, and was consolidated for all purposes with the Jefferson Circuit Court action. On January 10, 1974, the Circuit Court sustained appellees’ motion for dismissal of all claims asserted by the appellant, Woodson Bend, Inc., in its complaint originally filed in Pulaski Circuit Court and in its counterclaim filed in Jefferson Circuit Court.

On July 14, 1975, the Circuit Court entered a summary judgment in favor of General Electric against Woodson Bend and C. C. Adams and Stephen B. Kelley, the sureties on its lien release bond, jointly and severally. On October 27, 1975, the Circuit Court entered summary judgments in favor of Cardinal Kitchens and Anderson against Woodson Bend and Messrs. Adams and Kelley, jointly and severally.

On November 21, 1975, a trial was held on Masters’ claim before the court without a jury. On January 21, 1976, the Circuit Court entered appropriate findings of fact and conclusions of law with respect to Masters’ claim and entered judgment in favor of Masters’ against Woodson Bend and Messrs. Adams and Kelley, jointly and severally. Thereafter, Woodson Bend alone took this appeal. Messrs. Adams and Kelley have not appealed from any of the judgments entered against them.

THE FINDINGS OF THE TRIAL COURT

The Circuit Court specifically found that when Masters’ furnished materials to Unex for the Woodson Bend project, Unex was contractually obligated to build, deliver and erect the modular housing units on the Woodson Bend property and was, accordingly, the contractor for the construction of these units on the property. This finding was based upon the contractual language that, “All foundations upon which modules will be placed, and all utility connections shall be made and constructed by UBS [Unex] according to plans and specifications prepared by UBS”. The contract between Unex and Woodson Bend also provided that, “Erection of modules at the foundation on site, including all interior and exterior trim and all finishing work will be done by UBS”.

The testimony of George T. Brown, President of Woodson Bend, Inc., reflects the nature of the relationship between Wood-son Bend and Unex by virtue of the July 5, 1972 contract, as held in the trial court’s findings.

Q.46. Did the contract call for Unex to do the coating and mopping?
A. The original contract did.
Q.47. By that do you mean the July 5 contract?
A. I do.
Q.48. And that work could not have been done at the factory; did it have to be done on the site?
A. That work had to be finished on the site, that’s exactly right.
Q.49. And the carpentry work that was uncompleted had to be done on the site?
A. That’s right.
Q.50. And the carpeting?
A. Right.
Q.51. And the trim?
A. That’s right.
Q.52. So where they defaulted was in the work that could not be done at the factory; it was work that had to be done on the site after the boxes were joined together, and it was their obligation to do this work, and they didn’t do it, so you deducted it from what you paid them; now, is that entire statement true?
A. What they did, they defaulted in their original contract that they had with us. None of the work was anywhere near complete. We bought boxes from them, took it over and did it ourselves and did the construction on site at the finishing of the units. What they defaulted in was their contract. You read this one, and you read the September 18th letter which outlines various areas of default, and you’ll see what they didn’t do.

This testimony establishes there was no question that Unex was contractor for Woodson Bend under the July 5, 1972 contract. One who is merely obligated to furnish materials to an owner or contractor is a materialman. One who not only is obligated to furnish materials but also to perform on-site work with respect to them is a contractor within the meaning of the mechanic’s lien statute.

Despite the provisions in the July 5, 1972 agreement, which made Unex a contractor for Woodson Bend, the appellant argues the appellees were not entitled to assert materi-almen’s liens against the Woodson Bend property because Unex failed to perform that agreement to the satisfaction of Wood-son Bend and because Unex and Woodson Bend renegotiated that agreement or entered into a new agreement subsequent to the time that the appellees furnished material to Unex for the Woodson Bend project.

It has been held that the right of one who furnishes material to a contractor to assert a lien against the property involved is not affected by any defect or default in the contractor’s performance. The court said in Rieger v. Schulte & Eicher, 151 Ky. 129, 151 S.W. 395, 398 (1912):

The sole question for determination . is, Was the material furnished by these claimants of the quality called for in the contract . . . ? If so, they were entitled to a judgment for the respective amounts claimed by them, without regard to the character of work done by the contractor himself or other subcontractors or materialmen.

Although there are no Kentucky eases in point, the consensus of the decisions in other jurisdictions is that where the material has already been furnished to the contractor, the validity of the materialman’s lien against the owner’s property cannot be affected by a subsequent agreement between the owner and the contractor, of which the materialman has no notice, which changes the relationship between the owner and the contractor.

In Kierns v. Gibson, Mo.App., 289 S.W. 358 (1927), the evidence indicated that the plaintiff had entered into a contract with someone representing to be an agent of the owner to furnish and install plumbing fixtures in a new residence. The owner resisted the lien subsequently assérted by the plaintiff on the ground that the person with whom the plaintiff contracted was the general contractor and not the owner’s agent. The jury found that the contract by which this person had become the general contractor was not entered into until after the plaintiff had done some of the work called for by his contract.

In holding that the plaintiff, not having been advised of any change in the relationship between the owner and his agent, was not bound by any contract executed between them whereby the agent became the general contractor, the court held, page 362:

The rights of subcontractors, material-men, and workmen cannot be affected by any subsequent agreement between the owner and the contractor to which they have not assented and of which they had no notice, or by any act or waiver of the original contractor.

In Rapp v. Horgan, 101 Cal.App. 605, 281 P. 1034 (1929), an individual contracted with a lessee to make certain repairs to the leased premises, agreeing to furnish the necessary labor and materials. As the work progressed, the lessee began to pay the laborers directly. The court held, however, that this fact did not change the individual’s status from that of a contractor to a materialman. In the court’s view the terms of the contract governed the nature of the relationship between the parties.

The holdings in Kierns and Rapp are supported by such Kentucky authority as might be applicable by analogy. K.R.S. 376.010 provides that the mechanic’s or ma-terialman’s lien, if asserted as provided, relates back and takes effect from the time of the commencement of the labor or the furnishing of material. Likewise, in Vass v. Otting, 22 Ky.L.Rep. 551, 58 S.W. 433 (1900), it was held that the validity of a mechanic’s or materialman’s lien was determined under the law in force at the time the labor or material was furnished.

Logically, then, if the Kentucky authority holds the lien takes effect at the time the material is furnished, and its validity is to be determined under the law in effect at that time, the status of the parties involved, that is, the owner, contractor and materialman, must also be proven as of the time the material is furnished and governed by the contract or contracts in effect at that time.

Applying these principles to the present ease, the status of Unex insofar as the appellees’ lien rights are concerned must be determined by the terms of the July 5, 1972 agreement under which even the appellant acknowledges that Unex was a contractor.

As late as September 21, Woodson Bend was insisting that Unex perform under that agreement.

The appellant does not dispute the fact that the appellees furnished the material for which they have respectively asserted liens and that such material was incorporated in the modular housing units fabricated by Unex in Louisville which are presently situated on the Woodson Bend property on Lake Cumberland. Nor does the appellant raise any issue concerning the statutory notice and filing requirements. It does argue that the movement of the modular unit defeats the lien.

In Grigsby v. Lexington & E. Ry. Co., 152 Ky. 164, 153 S.W. 232 (1913), it was held that only the original contractor, or his subcontractor or materialman, can assert a lien. It was emphasized that, considering the broad scope of the statute,

it is immaterial how many degrees removed from the owners the subcontractor for whom the labor is done and to whom the material is furnished, may be. If he is a subcontractor in the prosecution of the work, and, as such, employs men and buys material to carry out his contract, . . . those who furnished material . . . are entitled to the benefit of the lien provided by this act. 153 S.W. at 234.

The protection afforded by the Kentucky mechanic’s lien law extends to the material-man who furnishes material to a remote subcontractor, away from the job site, so long as the material is ultimately used to improve the property involved. Because the appellees were materialmen of a contractor, it is unnecessary to extend the scope of the mechanic’s lien statute to its maximum limit in order to sustain the ap-pellees’ lien rights.

The language of the statute clearly indicates that the primary burden is on the property owner, since he is receiving the benefit of the labor and material furnished for the improvement of his property and since he controls the disbursement of the funds used to pay for the improvement. This philosophy was unequivocally confirmed by this court in N. O. Nelson Mfg. Co. v. Mann, Ky., 71 S.W. 851, 852 (1903), where the Court said:

The owner of the [property] pays money to his contractor at his peril. It is immaterial whether he knows of the claim or not. The statute casts upon him the duty ... of seeing to it that the materialmen who have furnished material for the work provided for by the contract are paid. No payments made by him to his contractor will relieve him of this duty, and, as said before, the question of whether or not he knew of the claims of the materialmen at the time of the payment to the contractor is entirely immaterial.

The basic argument of appellant fails when the facts are considered. Unex is not to be considered only a materialman but is a contractor. K.R.S. 376.010 was intended to protect the appellees. We believe that the findings of the trial court are supported by substantial evidence.

The judgment of the Jefferson Circuit Court is affirmed.

All concur.


source: Caselaw Access Project

author: HOWARD, Judge.

license: Public Domain

text:
    Jim McKENZIE, Appellant, v. Steven R. OLIVER, Appellee.
    Court of Appeals of Kentucky.
    Sept. 1, 1978.

      Merle C. Clark, Danville, for appellant.
    Joseph M. Scott, Jr., Stoll, Keenon & Park, Lexington, for appellee.
    Before HOWARD, VANCE and WIN-TERSHEIMER, JJ.
   HOWARD, Judge.

This is an appeal from a judgment entered in the Fayette Circuit Court, pursuant to a jury verdict, the jury having found in favor of plaintiff-appellee, Steven R. Oliver (hereinafter referred to as Oliver), against defendant-appellant, Jim McKenzie (hereinafter referred to as McKenzie), and having awarded $5,000.00 in damages to Oliver.

Oliver, as the purported owner of a certain 1974 Corvette, filed suit against McKenzie for conversion and wrongful attachment of the Corvette. McKenzie had the Corvette seized by the Fayette County Sheriff pursuant to a judgment entered on a note, signed by one Robert Davis (hereinafter referred to as Davis), and payable to McKenzie. To secure payment of the note signed by Davis, McKenzie had taken a security interest in the Corvette and other personalty. Davis was the owner of the Corvette at the time the note and security agreement were executed by him.

In the words of Sir Walter Scott: “Oh, what a tangled web we weave, when first we practise to deceive!” The tangled web of the various claimed interests in the 1974 Corvette was primarily woven by Davis. Davis purchased the Corvette in 1973, on a cash basis, from L. R. Cooke Chevrolet in Lexington, Kentucky. The car was subsequently registered in Fayette County in the name of Robert H. Davis for the years 1974 and 1975.

In April, 1975, Davis approached McKenzie for the purpose of obtaining a loan in the amount of some $12,000.00. Davis had borrowed money from McKenzie prior to this time and had always repaid the loans, although the previous loan amounts had never been more than a few thousand dollars. Davis executed a note and also a security agreement to secure payment of the note. The 1974 Corvette, worth approximately $7,000.00, was listed as an item of collateral in the security agreement. McKenzie testified that Davis promised to give him the Certificate of Title and Registration to the car. However, McKenzie never received the Certificate of Title from Davis and McKenzie’s lien was never noted thereon. McKenzie was also unable to record his security interest in the Corvette in the office of the Fayette County Court Clerk, again because he did not have the Certificate of Title to the Corvette.

Davis, meanwhile, was having financial troubles and had several lawsuits filed against him. He testified that he did not want his creditors to be able to levy on the Corvette. Davis, therefore, sold the Corvette to Mike Albert Leasing Company (hereinafter referred to as Albert Leasing), located in Cincinnati, Ohio, and leased it back from Albert Leasing with an option to repurchase. Albert Leasing was not informed of McKenzie’s security interest in the Corvette. The Corvette was subsequently repossessed by Albert Leasing when Davis fell behind with his lease payments and Davis was forced to exercise his option to repurchase or lose the car.

Enter Oliver, a good friend of Davis for a number of years. Oliver was working in Texas and received a phone call from Davis about the imminent loss of the Corvette. An agreement was reached between Davis and Oliver to the effect that if Oliver bought the car, Davis would buy the car from him „when he had the money and would also pay Oliver his traveling expenses and $500.00. Oliver testified that the agreement between he and Davis was that he (Oliver) would be the owner of the car until Davis paid the purchase price. Davis insisted that he was to be the actual owner of the car, with Oliver holding only the bare legal title. The testimony of Davis’ wife and Davis’ ex-secretary, concerning this transaction between Oliver and Davis, was that Davis was going to pay Oliver for the car and if Davis was unable to do so, Oliver would then sell the car and recoup his money.

Oliver returned from Texas in September, 1975, and applied for a loan with First Security National Bank and Trust Company of Lexington (hereinafter referred to as First Security). Oliver borrowed approximately $5,700.00 from First Security and signed a promissory note therefor. Oliver also granted a security interest in the Corvette to First Security. A bank check was issued in the amount of $5,200.00, made payable to Albert Leasing and Oliver. The purchase price of the Corvette was $4,195.00. The money remaining after purchase of the car and some cash furnished by Davis’ mother was paid to Albert Leasing for outstanding lease payments and penalties incurred by Davis.

Oliver was issued an Ohio Certificate of Title for the Corvette from Albert Leasing; no liens were noted thereon. The Ohio Certificate was delivered to First Security as additional collateral and was still in its files at the time of trial. First Security' never filed its lien in the Fayette County Clerk’s Office. Oliver also procured insurance on the Corvette naming First Security as loss payee. Oliver then returned to his job in Texas, leaving the Corvette in possession of Davis.

The car was not registered in Kentucky since Oliver testified he had no intention of driving the car on Kentucky highways. Davis, however, did drive the car, parked it in his driveway, and paid repair bills on it. After receiving a ticket for driving with expired Ohio temporary tags, Davis placed a Kentucky license plate, taken from his wife’s old Thunderbird, on the Corvette.

McKenzie, meanwhile, had not received any payments from Davis on the note. Ultimately, McKenzie filed suit in Fayette Circuit Court on the note and security agreement executed by Davis. A default judgment was granted to McKenzie in December, 1975. McKenzie searched the records in the Fayette Circuit Court and determined that Davis was still the registered owner of the car, and that no liens were recorded against the Corvette. The Corvette was seized by the Sheriff, sometime in February, 1976, while it was parked in Davis’ driveway. At the time the car was seized, Oliver was living in Lexington, however not at Davis’ house. Oliver received a call from Davis, went to his house, and attempted to stop the Sheriff from taking the Corvette. Oliver then instituted the within action against McKenzie.

At trial, Davis testified on behalf of McKenzie. Davis was, at that time, a resident of the Kentucky State Penitentiary in LaGrange, having been convicted of fraudulent practices in selling securities. Davis stated that Oliver knew of McKenzie’s security interest in the Corvette. Oliver testified that he did not know of McKenzie’s security interest. McKenzie didn’t know whether Oliver knew of McKenzie’s security interest.

Davis also attempted to establish that he had fully repaid Oliver for the purchase price of the Corvette. Oliver stated that he had received money from Davis, but stated he received less than Davis said he received. Oliver also testified that the money received from Davis was not for payment of the car but repayment for other amounts of money loaned to Davis by Oliver and for repayment of bills, most notably phone bills in excess of $1,000.00 per month, paid by Oliver on Davis’ behalf. Needless to say, Oliver and Davis were no longer friends at the time of trial.

A portion of the jury instructions given reads as follows and the findings of the jury are indicated by an “X”:

The Court instructs the jury that ownership of an automobile is determined from all the factors involved. Compliance or noncompliance with registration laws is not the sole determining factor but may be considered as evidence. Ownership may be determined upon the basis of the intent of the parties to a particular transaction.
Please answer the following questions: Question No. 1
Do you believe that the plaintiff Steven R. Oliver was the owner of the 1974 Chevrolet Covette (sic) on February 4, 1976, when it was seized by the Sheriff of Fayette County?

(Check one) Yes X No_

If your answer to the above question is “yes” you will answer the following question. If your answer to the above question is “No” you will return a verdict in favor of the defendant, Jim McKenzie. Question No. 2
Do you believe that the plaintiff Steven R. Oliver knew that Jim McKenzie had a security interest in the 1974 Chevrolet Corvette when he became the owner of same?

(Cheek one) Yes_No X

If your answer to Question No. 2 is “Yes” you will return a verdict in favor of the defendant, Jim McKenzie. If your answer to Question No. 2 is “No” you will return a verdict in favor of the plaintiff, Steven R. Oliver, in a sum not to exceed the fair and reasonable market value of said automobile not to exceed the sum of $7,000, the amount claimed in the complaint.

McKenzie argues on this appeal that he has acquired the superior interest in the Corvette and is entitled to judgment in his favor as a matter of law. McKenzie bases this contention on three different theories, namely: 1) Oliver is estopped to claim ownership in the Corvette since he clothed Davis with indicia of ownership to the car; 2) The agreement between Oliver and Davis was essentially a conditional sales agreement, and delivery of the car to Davis, as purchaser, was sufficient to cause Davis to be deemed the owner; and 3) The transaction between Davis and Oliver was a fraudulent conveyance as a matter of law.

Oliver states that he has acquired the superior interest in the Corvette by virtue of KRS 355.9-301(3) which governs priority of interests in collateral as between a purchaser (Oliver) and an unperfected lien-holder (McKenzie). Oliver also states that the fraudulent conveyance statute does not apply, and even if it did, the jury found that Oliver had no knowledge of McKenzie’s security interest thus protecting Oliver as a purchaser. Oliver also states that the jury found that he was the owner of the car in February, 1976.

McKenzie dismisses summarily three different aspects of this case which we deem important. These are the two aforementioned findings by the jury and the sale of the Corvette by Davis to Albert Leasing, an innocent party.

McKenzie’s first argument is that Oliver is estopped to claim ownership in the Corvette because he clothed Davis with certain indicia of ownership and also that Oliver failed to register the car in Kentucky. The trial court’s instructions stated that ownership of an automobile is to be determined from the intent of Davis and Oliver. The trial court also stated that compliance or noncompliance with applicable registration laws is not the sole determining factor of ownership.

In the instant case, there was clearly a factual issue as to the ownership of the car as between Oliver and Davis, even though Davis was clothed with certain indi-cia of ownership. Compliance with registration laws is not dispositive of ownership, as stated in the instructions, since the provisions of KRS Chapter 186, governing licensing of motor vehicles, are police measures and regulatory in nature. Moore v. Wilson, 230 Ky. 49, 18 S.W.2d 873 (1929); Siler v. Williford, Ky., 350 S.W.2d 704 (1961).

Since ownership of the car was a factual issue, we do not believe that Oliver was estopped to claim ownership as a matter of law. Besides, we believe that the instruction on ownership given by the trial court encompasses the doctrine of estoppel. Estoppel is always a question of fact to be determined by the circumstances of each case. Anspacher v. Utterbaek’s Adm’r, 252 Ky. 666, 68 S.W.2d 15 (1934); Duval v. Steele, Ky., 453 S.W.2d 14 (1970). '

Closely related to the above argument is McKenzie’s argument that the transaction between Oliver and Davis was a conditional sales agreement between Oliver and Davis, and delivery to the conditional purchaser, Davis, was a sufficient fact to cause Davis to be deemed the owner. In support of this contention, McKenzie cites Motors Insurance Corporation v. Safeco Insurance Company of America, Ky., 412 S.W.2d 584 (1967), wherein the court held that title to an automobile had passed from a seller to a buyer, pursuant to KRS 355.2-401, even though payment for the car had not been made. The issue concerned whose insurance company would be liable for damages sustained in a collision. However, in Motors Insurance Corporation, supra, both buyer and seller agreed that the buyer was the owner of the car prior to the accident, even though the purchase price had not been paid nor had the title papers been processed.

In the instant case, Oliver’s testimony was to the effect that although Davis was permitted to use the car, there was no intent on the part of Oliver to give ownership of the car to Davis until the purchase price was paid. See Rash v. North British & Mercantile Ins. Co., Ky., 246 S.W.2d 990 (1951), distinguished in Motors Insurance Corporation, supra. That title to the car may have passed to Davis under KRS 355.-2-401 still did not make him the owner of the car. The instructions to the jury read that ownership was to be determined from all the factors involved, including the intent of Davis and Oliver as to the transaction between them concerning the Corvette. Without belaboring the point, the jury determined that Oliver was the owner.

McKenzie’s final argument is that the transaction between Oliver and Davis concerning the Corvette should be held a fraudulent conveyance as a matter of law. KRS 378.010 renders a conveyance made by a party with an intent to defraud creditors void, as to a purchaser for value, only if that purchaser has notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grant- or.

It is also true that when sufficient badges of fraud are shown, a party may be entitled to a directed verdict on the issue of a transfer being fraudulent. However, such directed verdict is proper only in the absence of contradictory proof that the transfer or conveyance was made fairly and without intent to defraud the creditor. Russell County Feed Mill, Inc. v. Kimbler, Ky., 520 S.W.2d 309, 311 (1975).

Although Oliver was purchasing the Corvette pursuant to some kind of agreement with Davis, Oliver obligated himself on the note, in excess of $5,000.00, which he signed with First Security. Oliver also stated that he did not know about McKenzie’s security interest nor did he know about Davis’ scheme to defraud his creditors. Further, Oliver purchased the Corvette from Albert Leasing for a consideration we assume Albert Leasing thought adequate.

To indicate a joint intent to defraud creditors, the consideration paid must be so disproportionate to the real value of the property as to raise a presumption of fraud. Interstate Acceptance Corporation v. Lovins, Ky., 380 S.W.2d 805, 807 (1964). And although Oliver may have known that Davis was in financial trouble, “[k]now-ledge that a proposed grantor is in debt does not charge a purchaser with notice that the former is selling to defraud his creditors.” Interstate Acceptance Corporation, supra, at page 808.

Certainly Davis acted fraudulently. But, we do not believe that McKenzie was entitled to a directed verdict, thereby setting aside the transaction between Oliver and Davis as fraudulent and void. There was a jury issue as to Oliver’s knowledge of McKenzie’s security interest in the Corvette and the jury found in Oliver’s favor, in effect holding that Oliver was a good-faith purchaser.

KRS 186.045 provides for the filing of financing statements affecting vehicles and notation of liens on the certificate of title. In General Motors Acceptance Corporation v. Hodge, Ky., 485 S.W.2d 894, 896 (1972), the court held that the failure of a county court clerk to note a finance company’s lien on a registration receipt, issued to a person who sold the automobile to a defendant, rendered the lien unenforceable against that defendant who purchased the car without notice of the lien. The court in GMAC v. Hodge, supra, quotes a section of 7 Am.Jur.2d, Automobiles and Highway Traffic, § 46, page 631, reading as follows: “Where statutory provision is made for the notation of liens on motor vehicles on the certificate of title, the failure to comply with such provision generally renders the liens unenforceable as against third persons without actual knowledge thereof.”

In the instant case, it was not a county clerk who failed to note the lien on the certificate, but rather Davis who failed to note McKenzie’s lien. Davis also failed to give McKenzie the Certificate of Title to the Corvette as requested by McKenzie. KRS 186.045(9) provides that:

Any person violating any provision of this section or any person refusing to surrender a registration or transfer certificate upon request of any person entitled thereto, is subject to the penalties provided in subsection (1) of KRS 186.990.

KRS 186.990(1) provides only for a monetary fine.

KRS 355.9-301 provides for a rule of priority between an unperfected security interest and certain other parties. Subsection (l)(c) of that statute, applicable to this case, reads as follows:

(1) Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of
(c) in the case of goods, instruments, documents, and chattel paper, a person who is not a secured party and who is a transferee in bulk or other buyer not in ordinary course of business to the extent that he gives value and receives delivery of the collateral without knowledge of the security interest and before it is perfected . .

In a Texas case construing its provision, similar to KRS 355.9-301, Phillips Ford v. St. Paul F. & M. Ins. Co., 465 S.W.2d 933, 42 A.L.R.3d 1158 (Tex.1971), the court stated that an unperfected security interest is subordinate to the interest of an innocent buyer who has given value and received delivery of the secured collateral. In that case, the seller had procured a certificate not showing the lien of the secured party. However, the court went on to hold that because seller failed to properly execute the certificate of title, the sale was void as between the seller and buyer, and the secured party prevailed.

We cite this case in conjunction with KRS 186.045(9) and KRS 186.990(1). The sale of the Corvette by Davis to Albert Leasing, without any notation of McKenzie’s lien on the certificate of title, did not render that sale void. And Oliver, since he was a good-faith purchaser, as found by the jury, must prevail over McKenzie who holds an unperfected security interest.

KRS 355.9-301(l)(c) requires the buyer to be a “buyer not in ordinary course of business” to be entitled to priority under that statute. KRS 355.1-201(9) defines a “buyer in ordinary course of business” as being “. . .a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.” (Emphasis ours)

If a leasing company that sells a car is in the business of selling goods of that kind, Oliver would be a buyer in the ordinary course of business and would not be entitled to the protection of KRS 355.9-301(1)(c). He would still be protected under the rationale of General Motors Acceptance Corporation v. Hodge, supra. However, we believe that Oliver was not a buyer in the ordinary course of business. See 15A Am. Jur.2d Commercial Code, section 4, page 460, note case Hempstead Bank v. Andy’s Car Rental System, Inc., 35 A.D.2d 35, 312 N.Y.S.2d 317, holding that an auto wholesaler’s purchase of cars from an auto leasing and rental company was not a purchase from a person engaged in selling cars.

The judgment of the trial court is affirmed.

All concur.


author: GANT, Judge.

text:
    Ronald A. SCHULTE, Appellant, v. WORKMEN’S COMPENSATION BOARD OF KENTUCKY, Louisville Division of Police, City of Louisville and Vigilant Insurance Company, Appellees.
    Court of Appeals of Kentucky.
    Sept. 8, 1978.
    Daniel T. Albers, Louisville, for appellant.
    Walter R. King, Bixler W. Howland, Louisville, for appellees.

      Before GANT, HOGGE and HOWER-TON, JJ.
   GANT, Judge.

This action is on appeal from the Jefferson Circuit Court decision affirming an order of the Workmen’s Compensation Board which denied appellant’s motion to reopen.

Appellant sustained an injury to his left knee on the night of February 9, 1975, and on March 13, 1975, appellant filed a claim for Workmen’s Compensation benefits. Initially, evidence was taken in this case and a hearing was held before the Workmen’s Compensation Board. However, through negotiations, on November 16, 1975, the appellant and the appellees, Louisville Division of Police, City of Louisville, and Vigilant Insurance Company, entered into an agreement as to the compensation payments. The parties agreed to a 15% permanent partial disability to the body as a whole to be paid in a lump sum. This agreement was approved by the Workmen’s Compensation Board on December 8, 1975, and at that time became an award of that Board. Calculations were made by multiplying the percent of disability times the maximum award. On January 9, 1976, the decision in C. E. Pennington Company, Inc. v. Winburn, Ky., 537 S.W.2d 167 (1976), was rendered by the Supreme Court of Kentucky. Shortly thereafter, appellant asked the appellees to increase the award, using the calculation method applied in Pennington. On May 7, 1976, the Supreme Court denied the petition for rehearing on the Pennington case and mandate issued. Again, appellant requested of appellees’ attorneys additional payments and, again, they refused. Thereafter, on June 2, 1976, the appellant petitioned the Board pursuant to KRS 342.125 to review the award and order and require the appellees to pay the additional sum, using the method of calculation set forth in Pennington. Subsequent to this, the case of Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976), was decided by the Supreme Court. After mandate issued on that case on November 12, 1976, the appellant filed a supplemental petition for review of the award requesting the court to order the appellees to pay an additional sum calculated using the statutory minimum award. The initial petition for rehearing had never been acted upon by the Board but on December 13, 1976, the Board entered an order overruling the plaintiff’s motion for supplemental review. Appellant then filed a petition for reconsideration and a request for a ruling on its original motion for review pursuant to the Pennington ease. On January 17, 1977, the Workmen’s Compensation Board overruled both the petition for reconsideration and the original petition to reopen. From these orders appellant appealed to the Jefferson Circuit Court on January 26, 1977. On August 11, 1977, an opinion affirming the Board was issued by the Jefferson Circuit Court. It is from this decision that the instant appeal has reached this Court.

Although appellees contend that this was a compromise settlement and not available for reopening, and the circuit court used this as a partial basis for affirming the Board’s denial of reopening, this contention is of little merit. In 1932, the Kentucky Court of Appeals in Black Mountain Corporation v. Middleton, 243 Ky. 527, 49 S.W.2d 318 (1932), stated that a settlement filed with the Board and approved by the Board is an award and is subject to reopening. This position has subsequently been approved by the court in Woodford Oil and Gas v. Creech, 250 Ky. 307, 62 S.W.2d 1031 (1933); Lincoln Coal Company v. Watts, 275 Ky. 130, 120 S.W.2d 1026 (1938); Fiorella v. Clark, 298 Ky. 817, 184 S.W.2d 208 (1944). Although compromise and concessions may be involved in the parties’ deciding to reach a settlement, once the Board acts upon the settlement it is an award within the meaning of KRS 342.125. Since it is an award, it is subject to reopening provided a cause as set forth in KRS 342.125 is available.

The dominant question presented on this appeal is whether Pennington, supra, and Apache, supra, are available as a basis for reopening an award. The case of Stearns Coal and Lumber Company v. Vanover, 262 Ky. 808, 91 S.W.2d 518 (1936), interprets the word “mistake” as used in the Workmen’s Compensation Act to include a mistake of law. Therefore, if the Board was guilty of a mistake of law for failing to use the computation methods as set forth in Pennington and Apache, this case would be subject to reopening. At the time of this settlement, the parties were operating under an interpretation of KRS 342.740 that was well accepted. The Board was also using this interpretation.

As stated in our recent decision of Keefe v. O. K. Precision Tool & Die Co., Ky.App., 566 S.W.2d 804, 807 (1978), which held that Apache, supra, would not be applied retroactively, “[t]he award of the Board once final may only be reopened upon a showing that the Board misapplied the law as it was when the award was made. Subsequent interpretations of the law will not warrant the reopening of awards made final under the doctrine of res judicata.” The same reasoning holds true as to the application of Pennington, supra, to this case.

Therefore, the judgment of the Jefferson Circuit Court is affirmed.

ALL CONCUR.


text:
    Jack Virgil JOHANTGEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 8, 1978.

      Jack Emory Farley, Public Advocate, Com. of Ky., Frankfort, Rodney McDaniel, Asst. Public Defender, for appellant.
    Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
    Before GANT, LESTER and VANCE, JJ.
   GANT, Judge.

Appellant was convicted of possession of a controlled substance. The sole question before this Court is whether evidence seized from appellant and introduced at trial was inadmissible as being the fruit of an illegal search. The facts are as follows.

On October 18, 1976, a search warrant was issued commanding a search of one Daryl Driver, his car, his residence and “any other person present believed to be involved in the illegal use of, possession of, or trafficking in controlled substances.” The warrant was executed that same day by four police officers. When they arrived at the Driver residence, the only persons on the premises were a woman and a child. The officers commenced the search and some 20 minutes later Driver arrived, accompanied by appellant. Driver was searched and a quantity of heroin was found on his person. At that time appellant was searched, and one packet of heroin weighing Vsx of an ounce was found in his front pants pocket.

In our analysis of the admissibility of this evidence, we must first determine if the search of appellant’s person was within the scope of the warrant. To phrase the question differently, was the language in the warrant commanding the search of “any other person present believed to be involved in the illegal use of, possession of, or trafficking in controlled substances” sufficient to cover the search of the appellant’s person? The answer to this question must be “no.”

The Fourth Amendment to the United States Constitution provides that “. . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Section 10 of the Kentucky Constitution contains a similar provision that “[n]o warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be. . . .” This has been interpreted to mean that a search warrant “must contain such a description of the place, person or thing to be searched or seized as will reasonably identify them.” Williams v. Commonwealth, Ky., 261 S.W.2d 416, 417 (1953).

Further comment on this question is found at 68 Am.Jur.2d, Searches and Seizures, § 79:

[I]t has been said generally that a search warrant for a person must describe the person to be searched as specifically and accurately as that required for the search of a place, and that it should identify the person in such a manner as to leave no doubt and no discretion as to the person to be searched.

The controlling constitutional requirement is specificity of description. The only specific description in the warrant or the supporting affidavit in this case referred to Driver. No mention was made of appellant in any way. The affidavit in support of the search warrant herein contained no recitation of facts indicating that any other person other than Driver occupied the premises, was present on the premises when probable cause arose, nor was there any description of persons whose identity was known or unknown to the affiant. The search warrant could not be used in justification of the search of the appellant.

We must then ascertain whether the search of appellant was valid as a warrant-less search. A warrantless search is valid under two situations. One is the “stop and frisk” or “pat-down” search, as set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Narcotics investigations are fraught with dangers and the officers had a right and duty to check appellant for weapons to protect themselves and others on the premises. However, the extent of a Terry pat-down is quite limited — only a search of outer clothing is justified unless the officer finds what he believes to be a weapon or anything that might be used as a weapon. If no weapons are discovered, a Terry search may proceed no further. It is hard to conceive how Vs6 of an ounce of any substance could resemble a weapon.

The testimony of the officer regarding the search of appellant indicates that it was not conducted for the sole purpose of discovering weapons, nor did the officer believe that what he felt was a weapon. When asked why he searched appellant, the officer replied, “One, it was done for security reasons, and two, after having found heroin on Mr. Driver, we felt it was probable that Mr. Johantgen would also be in possession.”

Concerning the search itself, the officer testified:

D51 Detective Bryant, in conducting a search of Jack Virgil Johantgen, did you notice a particular object, feel it, and if so, where?
A In his left front pants pocket I felt a small — felt the bulge that felt like a small packet.
D52 Did you remove that particular packet at that time?
A Yes, sir, I did.
D53 Once you felt the particular object itself, based upon your experience as a narcotics officer, did you know what you were dealing with or felt like you did?
A In my mind, yes, sir, I felt like I did.
D54 When you felt the particular bulge, did it make any sound or any noise?
A No, sir.
D55 Go ahead and tell us what you did.
A In conducting the search, I felt the packet in the pocket and removed it. I felt like I knew what I had before I even opened it. I opened it and saw what it was and then charged Mr. Johantgen.

The second justification for a war-rantless search is when the totality of the circumstances furnish probable cause in a situation where obtaining a search warrant is impossible or where the conditions dictate an immediate search. The mere fact that the appellant arrived at the residence where a search was being conducted in the company of one named in the search warrant and on whom drugs were found does not meet the test of probable cause. Absent some other incriminating circumstances or behavior, any search of his person beyond the “pat-down” search was unjustified. The officers had no prior independent information concerning appellant’s involvement in the illegal activity; Driver was not seen passing any contraband to appellant for the search. The fact that appellant was in the company of the person described in the warrant is not sufficient to legitimize a search of him beyond that necessary to reveal any weapons. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), where the appellant had been observed by narcotics officers talking to various known addicts for some eight hours. The court noted that “[t]he inference that persons who talk to narcotics addicts are engaged in the criminal traffic of narcotics is simply not the sort of reasonable inference required to support an intrusion by police upon an individual’s personal security.” Id. at 62, 88 S.Ct. at 1902.

The state cites Bays v. Commonwealth, Ky., 486 S.W.2d 706 (1972), for the contention that probable cause for the search of appellant existed when the officer felt a small bulge in appellant’s pocket. In Bays, however, the circumstances were described by the court as follows:

Two men in a rented van parked on the side of the street in the early morning hours carrying mud-splattered televisions and stereo sets with the price tag on them, who have in the immediate past acted in the operation of the van in a manner suspicious to the employees in a railroad station and who are identified as buddies by a man who associated with them shortly before and who was himself carrying a concealed pistol with the safety off, presents to us circumstances strongly indicative that “criminal activity may be afoot.” Citing Terry, supra. Id. at 709.

Furthermore, the recitation of facts by the court in Bays indicates that before the search Bays and his companion were charged with being under the influence of alcohol. The circumstances surrounding the search of Bays and those surrounding the search of appellant here are obviously vastly different.

We are therefore unable to find any justification for the search of appellant. The evidence seized from him should have been suppressed at trial and, since his conviction could not have been obtained without it, it is therefore reversed.

ALL CONCUR.

      . The first assignment of error regarding the trial court’s instruction on trafficking in a controlled substance is without merit because appellant was not found guilty under that instruction and he was therefore not prejudiced thereby-


author: RENDLEN, Judge.

text:
    STATE of Missouri, Respondent, v. Michael HAMMOND, Appellant.
    No. 60086.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1978.
    Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.
   RENDLEN, Judge.

This cause was transferred by the Kansas City District, Missouri Court of Appeals after opinion, that we might examine the validity of Missouri Approved Instruction— Criminal 6.26 (MAI-CR 6.26). Portions of the Court of Appeals’ opinion are utilized without quotation marks.

Defendant Michael Hammond was charged with assault with intent to do great bodily harm under § 559.190, RSMo 1969, but was convicted of the lesser included offense of common assault, § 559.220, RSMo 1969, with punishment fixed by the jury at thirty days in the county jail. On appeal defendant attacks (1) sufficiency of the evidence and (2) adequacy of the main verdict directing instruction (MAI — CR 6.26, common assault) which defendant contends erroneously permits conviction without a finding as to the constituent elements of common assault.

I.

The evidence taken most favorably to the verdict would permit the jury to find that defendant intentionally offered to inflict bodily injury with a knife upon Lavon L. Jones and is sufficient to sustain the conviction for common assault. We discuss the facts in some detail, not only to demonstrate the sufficiency of the evidence but to make clear the efficacy of the trial court’s instructions to the jury.

It was undisputed that defendant, with a woman companion, was seen by three Safeway employees lingering in the vicinity of the supermarket meat counter of the Safeway Store in Independence, Missouri. The meat market manager, Jim Griffin, noticed the antics of the woman who was repeatedly picking up and putting down packages of expensive steaks and who then placed them in a cart. The manager directed E. D. Hewitt, meat cutter at the store, to keep defendant and his female companion under observation. As they turned down the aisle toward the front of the store, defendant and the woman stuffed the merchandise into her purse. Hewitt, who had seen this, beckoned Griffin to the front of the store where they told Lavon Jones, another store employee, that they suspected the couple was stealing steaks. Defendant and his companion then passed through the checkout stand without a gesture of payment and thence from the store, the woman first followed by defendant.

The manager attempted to follow but defendant purposely blocked the doorway permitting the woman, who was then running from the store, to elude capture. In order to get past Hammond the store employees pushed him through the door but his tactics allowed the woman’s escape. Griffin pursued her as she ran across the parking lot tossing the steaks from her purse but her lead was such that he abandoned the chase, retrieved the steaks and returned to the store. Meantime Hewitt and Jones attempted to restrain defendant near the store. Hewitt took defendant by the arm asking him to return to the store but he jerked his arm away with the obscenity, “Get your f_g hands off me.” He turned to face Hewitt stating, “Stay away from me, man” and at that moment pulled a knife from his trouser pocket, “popped [open] the blade” and belligerently stated to the two men, “Leave me alone.” Jones, who was then only three or four feet from the defendant, warned Hewitt of the knife and both store employees backed away from him. The defendant moved off and the two followed, again asking him to return to the store. Defendant, brandished the knife with its open three inch blade by holding it near the right side at his waist, repeated his warnings and the employees continued to hold back from him. Jones explained his apprehension of defendant this way: “So again we just held back, you know, we wouldn’t — I respected the knife. I wasn’t going to . [go] up there and take it out of his hand . . . .” Hewitt testified it was when defendant first jerked his arm away and turned to address him in bellicose tones that he noticed the knife.

The defendant again moved off and the two employees followed, staying out of reach as he continued to display the knife. When defendant was about to leave the parking lot area, they asked once more that he return to the store but his knife kept them at bay. Immediately after defendant left the lot Jones reported the incident to the police.

Within the hour defendant was arrested and a search incident to the arrest disclosed a pocket knife on his person which was received at trial as evidence against him. This evidence supports the conviction for common assault and defendant’s first contention is without merit.

II.

We turn now to the question of whether challenged instruction No. 6 is a correct submission of the crime of common assault. Section 559.180 defines assault with intent to kill as:

Every person who shall on purpose and of malice aforethought . . . assault . another with a deadly weapon . . with intent to kill, maim, ravish or rob . . . shall be punished by imprisonment in the penitentiary not less than two years. . . . (Emphasis added.)

Section 559.190, implicitly referring to § 559.180, defines felonious assault without malice aforethought as:

Every person who shall be convicted of an assault with intent to kill, or to do great bodily harm, or to commit any . felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary . . . or in the county jail . . (Emphasis added.)

Section 559.220, “common assault” provides:

Any person who shall assault . another, under such circumstances as not to constitute any other offense herein defined, shall, upon conviction, be punished by a fine ... or imprisonment in the county jail . . . . (Emphasis added.)

Clearly the latter section defines common assault as a residual offense and misdemeanor, lesser to and included within the felonies defined in the preceding assault sections of the statute. Although common assault differs from the graver assaults listed above which involve specific intent to kill or to do bodily harm, each requires that the general intent to injure must be proved and each includes the term “assault” as a substantive act proscribed.

Ordinarily in a prosecution for assault it is sufficient if the indictment or information follows the language of the statute when describing the offense charged. State v. Pool, 314 Mo. 673, 285 S.W. 726, 727 (1926). This is true in prosecutions for felonies as well as misdemeanors. State v. Foster, 281 Mo. 618, 220 S.W. 958 (1920). Complementing the practice of couching an indictment or information in statutory language, it is generally sufficient to frame an instruction to the jury in the same manner. As stated by this court in State v. Jones, 365 S.W.2d 508, 515 (Mo.1963):

[i]t has been repeatedly held that a verdict directing instruction, which is not erroneous for some other reason, meets the minimum requirements when in words and effect it follows the language of the statute . . . . (Citations omitted.)

This principle found application in Rimerman v. United States, 374 F.2d 251 (8th Cir.) cert. denied 387 U.S. 931, 87 S.Ct. 2053, 18 L.Ed.2d 992 (1967), where the defendant, convicted of possessing and concealing and of transferring and delivering counterfeit bills, assigned as error the court’s failure to instruct the jury as to “essential elements of the offense as charged.” He argued that use of statutory words constituting essential elements of the offense rendered the instruction defective because it did not define the operative words of the statute. Affirming the conviction the court stated, 374 F.2d at 254:

It was entirely proper for the court to utilize the language of the statute in charging the jury. Speaking for this court in Williams v. United States, 328 F.2d 256, 262 (8th Cir. 1964), Chief Judge Johnsen stated: ‘A court may and generally should, where the law governing a case is expressed in a statute, employ the language of the statute in its instructions.’

In Guon v. United States, 285 F.2d 140, 142 (8th Cir. 1960), the court put it this way:

Guon’s criticism of the trial court’s instruction is without merit. Stated briefly, the contention is that the trial court was required, regardless of any request, to define ‘aiding and abetting’ and to explain what is meant by the words ‘directly or indirectly’ as used in the charge. We cannot agree. ‘Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion.’ (Citation omitted.) Frequently, to attempt to explain understandable language is merely to confuse. If the instructions given cover the case and are correct, that is enough. (Citations omitted.)

In the case at bar instruction No. 5 submitted felonious assault with intent to do great bodily harm without malice aforethought (MAI-CR 6.24) under § 559.190, RSMo 1969. That was followed by the challenged instruction No. 6 (MAI-CR 6.26 under § 559.220) which in pertinent part is as follows:

If you do not find the defendant guilty of assault with intent to do great bodily harm without malice aforethought, submitted to you in Instruction No. 5, you must consider whether he is guilty of common assault.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about June 10,1975, in the County of Jackson, State of Missouri, the defendant assaulted Lavon L. Jones by offering to inflict an injury with a knife, and
Second, that the defendant did so intentionally, then you will find the defendant guilty of common assault. (Emphasis ours.)

This submission comports with the mandate of Rule 20.02(a) that “verdict directing MAI-CR instructions in the 6.00 to 14.00 Series, inclusive, shall be given where applicable even though no request therefor has been made.” Rule 20 was promulgated when the value and benefits derived from the adoption of approved instructions for use in civil cases in 1964 became apparent. In cases where an approved instruction must be modified, provision for such action is found in Rule 20.02(d) which requires:

. the modified form . shall be simple, brief, impartial and free from argument. It shall not submit detailed evidentiary facts. All instructions, where possible, shall follow the format of MAI-CR instructions, including the skeleton forms therein.

The instruction here followed the form of MAI-CR 6.26 and employed the language of the statute. We may assume the jury had average intelligence and comprehended the ordinary statutory language of the instruction by which the manner of the common assault was described by the clear, simple statement that the crime occurred by an intentional offer to inflict injury with a knife which was fully supported by the evidence and which defendant did not refute in any particular. As noted above, the prescribed format requires that instructions be simple, brief, impartial and free from argument. Experience has demonstrated the wisdom of this concise format in which only the essential language of the statute is employed to define the crime. Long before the adoption of MAI-CR this concept was accepted and approved in State v. Fine, 324 Mo. 194, 23 S.W.2d 7 (Mo.1929), a case involving felonious assault in which an instruction utilized the statutory language when submitting the issue of assault with intent to kill with malice aforethought. There the instruction directed a guilty verdict if the jury found that defendant “did make an assault and ... on purpose and of his malice aforethought, fe-loniously assault him . . . with a certain rifle . . . (etc.)” (Emphasis added.) Similarly, the St. Louis Court of Appeals in the early case of State v. Lewellyn, 93 Mo.App. 469, 67 S.W. 677 (1902) approved an indictment for common assault charging that defendant “did . . .intentionally assault . . . [the victim] by . pointing a revolver at . [the victim] . . . in a rude and threatening manner . . . ” and ruled that a proffered instruction requiring acquittal unless the jury found that “defendant intended to shoot the prosecuting witness or do him bodily harm . . . ” was properly refused. We hold that use of the term “assault ” in connection with the specific act of “offering to inflict an injury with a knife” without further definition was neither confusing nor obscure in meaning and adequately submitted the charge.

Defendant argues that the term assault should have been explained or defined by adding to the instruction that the jury must make the following findings:

First — “That there was a hostile demonstration of unlawful force . . . .” Contrary to defendant’s contention, this essential element of the crime was adequately submitted by the language “offering to inflict an injury with a knife.”

Second — “That the act was done in a malevolent and reckless manner.” This suggestion ignores the fact that the instructions required the jury to find the defendant acted “intentionally”, a higher burden of proof than that which defendant suggested was required. See State v. Lewellyn, 67 S.W. at 678.

Third — “That there was the necessary proximity between the appellant and the victim to allow the appellant the present ability to effect the attack.” Such language would submit in slightly different form the concept that defendant had the apparent present ability to effectuate the offer to inflict injury with the knife. The finding of “offer” to use a knife to injure, carries with it the prospect of danger and ability to injure. Stated otherwise, the jury concluded that under the circumstances defendant’s use of the knife constituted an offer to injure and this concept broadly includes an apparent present ability to effectuate the “offer.” The modification suggested by defendant was a matter for argument to the jury and was not a necessary part of the instruction. This contention is denied.

Fourth —“The victim was put in reasonable apprehension of receiving an immediate battery.” This contention too, is not well taken. The instruction required the finding of an “assault” with a “knife” by an offer to inflict an injury with such knife. While defendant might argue to the jury, as we heard in the oral argument here, that the victim was beyond arms length and thus defendant was unable to carry out the “offer”, this was a matter for argument and whether the victim was put in apprehension and held back from the range of the knife because of that “reasonable apprehension” need not be added to the instruction. The words “offering to inflict injury” and “assaulted” were adequate to submit the charge. While it might be contended the term “assault” in cases presenting different factual situations might require further definition or amplifications of terms, such was not required in this case. We do not believe the jury was misled or that the essential elements of the crime were missing from the charge. This time tested and judicially approved format need not be redone as defendant contends.

The rationale of State v. Abram, 537 S.W.2d 408, 411 (Mo. banc 1976) wherein the possibility of a definition instruction of the terms “intends” and “intentionally” in a second degree murder instruction was discussed, is appropriate here. In Abram the court stated,

It is quite clear that had the defendant requested an instruction defining ‘intends’, the trial court would not have erred in refusing to give it, as such refusal would have been in accordance with the concept of MAI-CR and the rulings in earlier cases. The words ‘intends’ or ‘intentionally’ are very ordinary terms and admit of no confusion with respect to their meaning. When further definition of such words is undertaken, it will result in a myriad of instructions formulated by various lawyers or judges according to their thoughts at the moment and will serve to confuse rather than clarify. Some will define a term negatively— what it does not mean, and others affirmatively — what it does mean. This is to be avoided. If experience indicates that it would be helpful for particular words or terms to be defined, lawyers and judges may, and are encouraged to suggest such changes. See MAI-CR, p. xx. Unless and until such changes are made and approved, instructions such as instruction 11 in this case should not be given.

For the reasons discussed herein, the judgment is affirmed.

MORGAN, C. J., and BARDGETT, DON-NELLY and SEILER, JJ., and NORWIN D. HOUSER, Special Judge, concur.

FINCH, J., not sitting.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . The related crimes of mayhem, proscribed by § 559.200 and § 559.210 are not discussed here because they do not employ the term assault when describing the crimes herein.

      . The information charged defendant, in the statutory language, made an assault upon one Lavon L. Jones with a knife.


author: SNYDER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Samuel CSOLAK, Defendant-Appellant.
    No. 37826.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 1, 1978.

      James E. Wynne, Don Anton, Anton, Raleigh, Wynne & Schmidt, St. Louis, for defendant-appellant.
    Cortney Goodman, Jr., St. Louis County Pros. Atty. by Gordon L. Ankney, Asst. Pros. Atty., Clayton, John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Judge.

Defendant was convicted by a jury of the crime of rape (§ 559.260, Cum.Supp.1975) and sentenced to twenty years in the Missouri Department of Corrections. He appeals.

As grounds for reversal, appellant contends that the trial court erred: (1) in overruling his motion to suppress evidence; (2) in failing to issue a writ of mandamus to compel the prosecutor to show cause why he did not file a petition to declare appellant a criminal sexual psychopath under § 202.700, RSMo 1969; (3) in overruling appellant’s motion to suppress lineup and in-court identification; and (4) in failing to declare a mistrial after a police officer answered a question on direct examination as to whether the victim had identified anyone in the lineup.

No complaint has been made by the appellant as to the sufficiency of the evidence to support the conviction. Therefore, only such facts as are necessary to the discussion of the issues raised will be reviewed.

Appellant first claims error on the part of the trial court in overruling his motion to suppress certain physical evidence seized by the state in the warrantless search of an automobile. The physical evidence in question is a spotlight and a starter pistol.

The victim was driving from a drugstore toward her home at approximately 9:45 p. m. on December 4, 1974 when she noticed a flashing light in the automobile behind her. She drove to the curb and stopped. Appellant walked up to her window, pointed a gun at her head and ordered her to open the door. She resisted appellant’s demand to remove her clothing after which he put the gun to her head and told her if she did not comply he would kill her. She was then forced to have sexual intercourse with appellant against her will.

At 2:00 a. m. on May 31, 1975, Florissant police officers arrested appellant at his home on a tip from another alleged rape victim. After being advised of his Miranda rights, appellant stated: “I’m the one you’re looking for.” Appellant was then taken to the Florissant police station. There, the officers asked him the location of the gun and spotlight used in the alleged rape of the other victim. Appellant said they were in the glove box of his car, a 1964 Mercury two-door convertible. The officers had seen this car outside the residence where appellant was arrested.

Appellant was given a “consent to search” form. The officers explained the form to appellant and after reading it over appellant signed it, thereby consenting to the search of his home and car. At the time appellant signed the consent form, there were two, or at most three, police officers present.

After obtaining the signature, two officers and appellant drove back to the house. Appellant handed his car keys to one of the officers, who unlocked the door and found the items in the glove box. This search took place at 2:30 a. m., approximately one-half hour after appellant’s arrest. No search warrant had been issued.

At the hearing on appellant’s pretrial motion to suppress these items of evidence, it was proved that title to the 1964 Mercury was in the name of appellant’s father. Appellant, however, had his own set of keys to the automobile and did not own a car of his own. Appellant testified at the hearing that he could not recall whether he had signed the consent form. The motion to suppress was denied on the grounds that appellant had no standing to challenge the validity of the search and seizure because he did not own the automobile and could not assert the constitutional rights of another.

The trial court erred in finding appellant had no standing to challenge the validity of this search. The Missouri Supreme Court examined the standing of a child to challenge the search of an automobile owned by the father in In re J. R. M., 487 S.W.2d 502 (Mo.banc 1972). After analyzing a number of United States Supreme Court cases on standing, the court decided to follow what it perceived as the trend in the case law to look beyond title to the property or premises in deciding the standing issue. Instead of a strict reliance on proprietary interest, the court adopted a case by case approach which requires an examination of the facts of each case “to determine the relationship of defendant to the premises and property and to determine whether defendant was entitled to and did have a reasonable expectation that the property would be free from governmental intrusion other than by a proper and lawful search and seizure.” (at 508).

On the facts before it in J. R. M., supra, the court determined the child had standing to challenge the search. The court noted the child had his own keys to the car and used it regularly as if it were his own. The child was included in the family insurance coverage and lived at home with his parents where the car was kept.

Similarly, appellant here has standing to challenge the search. He had his own keys to the car and used it regularly as if it were his own. Nothing appears on the record about insurance coverage, but the lack of that evidence does not alter the result. When the car was searched it was parked in front of appellant’s residence, which was different from his father’s. This fact demonstrates the car was in appellant’s possession at the time of the search. Appellant was asserting his own constitutional rights, not those of his father. He had a “reasonable expectation that the property would be free from governmental intrusion other than by a proper and lawful search and seizure.” J. R. M., supra, 508.

The state has cited several cases where the court determined the defendant had no standing to challenge the search because he did not have a proprietary interest in the car. State v. Damico, 513 S.W.2d 351 (Mo.1974); State v. Dilworth, 540 S.W.2d 623 (Mo.App.1976); State v. Edmonds, 462 S.W.2d 782 (Mo.1971). All three of these cases involve stolen automobiles and are, therefore, distinguishable.

Although appellant had standing to challenge the search, the trial court reached the proper result in overruling his motion to suppress this evidence. “[I]f the trial court reached a correct decision on the issue presented it is immaterial that the court may have assigned an erroneous or insufficient reason for the action taken (cites omitted).” State v. Garton, 371 S.W.2d 283, 290 (Mo.1963). Accord: State v. Haynes, 482 S.W.2d 444 (Mo.1972); Umfress v. State, 512 S.W.2d 178 (Mo.App.1974).

The state seeks to justify this warrantless search on several alternative theories, including appellant’s consent to the search. Because valid consent is disclosed by the totality of the circumstances, the other theories will not be discussed.

A warrantless search conducted pursuant to a valid consent is a recognized exception to the Fourth Amendment’s ban against unreasonable searches and seizures. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Berry, 526 S.W.2d 92 (Mo.App.1975); State v. Rush, 497 S.W.2d 213 (Mo.App.1973). When the state relies upon the defendant’s consent to justify a warrantless search, it has the burden of proving that the consent was freely and voluntarily given. Schneck-loth, supra; Berry, supra.

In determining whether a defendant has voluntarily consented to a search, a court looks to the “totality of the circumstances” surrounding the consent. Schneckloth, supra; State v. Pinkus, 550 S.W.2d 829 (Mo.App.1977). “Factors to be considered are the number of officers present, the degree to which they emphasized their authority, whether weapons were displayed, whether there was any fraud on the part of the officers, the acts and statements of the person giving consent, and other matters comprising the so-called ‘totality of the circumstances.’ State v. Berry, 526 S.W.2d 92, 98 (Mo.App.1975); State v. Rush, supra, 497 S.W.2d at 215.” Pinkus, supra, 835.

There were only two, or possibly three, officers present when the consent form was discussed and signed; there is no evidence that appellant was overwhelmed by the superior numbers of the police. No weapons were displayed and appellant was not handcuffed or in any way physically intimidated or abused. Appellant was under arrest, but there is no indication that the police officers exploited their authority to secure his consent. There is also no evidence of any fraud, misleading statements or promises on the officers’ part. Appellant signed the consent form after it was explained and read to him and after he, himself, had read it. Throughout the arrest and interrogation procedures appellant was cooperative and friendly.

Other facts also support the finding of valid consent. Interrogation of appellant could only have lasted a short time if the officers were able to return to appellant’s residence within one-half hour of his arrest. In addition, appellant made several incriminating statements prior to his consent. When arrested, and after being given the Miranda warning, appellant said, “I’m the one you’re looking for.” At the police station he admitted possession of the pistol and spotlight and told where they could be found. “It is generally accepted that consent to a search is valid when preceded by incriminatory statements, there being no reason to assume that the defendant would not voluntarily consent to a search for evidence if he volunteered damaging admissions.” Annotation, 9 A.L.R.3d 858, 883 (1966). Further, appellant freely cooperated in the search. He directed the officers to the evidence and handed them the keys to his car so that they could examine the glove box.

The fact that appellant was in custody at the time of his consent casts some doubt on the voluntariness of that consent. However, in Missouri, the fact that an individual is under arrest is not, of itself, enough to establish that such consent was involuntary. State v. Virdure, 371 S.W.2d 196 (Mo.1963); State v. Foster, 349 S.W.2d 922 (Mo.1961). There is no specific requirement that the person consenting be advised of his right to refuse consent to the search or that it be shown he was already aware of that right. Schneckloth, supra; Rush, supra; Berry, supra. Given the totality of the circumstances, the state has sustained its burden of showing the consent was freely and voluntarily given. More than mere “acquiescence to a claim of lawful authority” was shown. Rush, supra, 215. The motion to suppress the evidence was properly overruled.

Appellant next claims that the trial court erred in failing to issue a writ of mandamus to compel the prosecuting attorney to show cause why he did not file a petition to declare appellant a criminal sexual psychopath under § 202.700, RSMo 1969. No alternative writ of mandamus was issued by the trial court; therefore, appellant’s remedy at the time was an application for the same writ of mandamus to the next higher court having original jurisdiction. That is, appellant should have come to the Missouri Court of Appeals with his application. State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App.1970). If the alternative writ had been issued by the trial court and a return made, then an appeal would lie from either the granting of or refusal to grant a peremptory writ. Penner v. Whitesell, 538 S.W.2d 772 (Mo.App.1976). Since appellant did not seek the proper remedy at the proper time, the criminal sexual psychopath issue is not properly before this court.

Even if this issue were before the court, it would be ruled against appellant. Assuming that the prosecuting attorney has reason to believe that the defendant is a criminal sexual psychopath, as that term is defined in § 202.700, RSMo 1969, it is nonetheless discretionary with him to file the petition and initiate this proceeding. State v. Tartenaar, 371 S.W.2d 192 (Mo.1963); Davis v. State, 482 S.W.2d 468 (Mo.1972). Even if a petition has been filed, the prosecuting attorney may withdraw or abandon it. Tartenaar, supra. The prosecutor’s action will not be disturbed unless appellant shows that the discretion was exercised contrary to law or in a capricious or arbitrary manner. State v. Allen, 255 S.W.2d 144 (Mo.App.1953).

Appellant contends that the trial court erred in overruling his motion to suppress lineup and in-court identification of the appellant by the victim and in allowing her to identify appellant in court on direct examination. He asserts that the lineup did not contain a sufficient number of individuals who resembled him and that he was identified by reason of his individuality rather than the victim’s recollection of his appearance. He further argues that the victim based her in-court identification upon her memory of the lineup rather than her memory of his appearance at the time of the offense.

Even if lineup procedures are suggestive, and the evidence here does not support a finding of undue suggestiveness, identification testimony by a witness is admissible if there exists an independent source for the identification. “The presence of an independent source will serve to remove any taint that might result from a suggestive confrontation, (cites omitted).” State v. Davis, 529 S.W.2d 10, 14 (Mo.App.1975). “[I]t is no longer open to argument in Missouri that, even though the photographic or line-up identifications are tainted or in some way suggestive, where there is an untainted, positive in-court identification made upon a factual basis independent from such photographic or line-up procedures, such in-court identification is proper, (cites omitted).” State v. Ealey, 515 S.W.2d 778, 780 (Mo.App.1974). This principle applies to testimony about both a pretrial identification [Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)] and an in-court identification [State v. Davis, supra; State v. Ealey, supra; State v. Bivens, 558 S.W.2d 296 (Mo.App.1977)]. If there is proof of an independent source of observation on which a witness has based his identification testimony, the court need not examine the details of the questioned lineup procedures for impermissible suggestiveness. State v. Ross, 502 S.W.2d 241 (Mo.1973); State v. Mitchell, 558 S.W.2d 383 (Mo.App.1977).

The factors the court must examine to isolate an independent basis for identification are set out in Neil v. Biggers, supra, 199:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

See also, State v. Davis, supra; State v. Barnes, 535 S.W.2d 602 (Mo.App.1976).

The victim had her best view of the appellant when he was standing beside her automobile next to the rolled-down window. She could see him clearly inside the car although she was not certain her car’s dome light was working. Appellant forced the victim to straddle him during intercourse and they set face to face for a period of five to seven minutes. Their faces were “right next to each other.” The victim had ample opportunity to view appellant. Of more weight is the victim’s own statement at trial that her identification of appellant was based on, in her words, “the night it happened. I can’t forget his face.”

Shorter periods of observation have been found sufficient opportunity to view the assailant: U. S. v. Mooney, 417 F.2d 936 (8th Cir.1969), cert. den. 397 U.S. 1029, 90 S.Ct. 1280, 25 L.Ed.2d 541 (1970) [15 seconds]; State v. Bivens, supra [15 seconds-60 seconds]; State v. Young, 534 S.W.2d 585 (Mo.App.1976) [3 seconds]; State v. Patterson, 465 S.W.2d 599 (Mo.1971) [2 minutes]. Although there is some evidence that the lighting in the area was dim, the area was lit by residential gas lights. In Mooring v. State, 501 S.W.2d 7 (Mo.1973), the court indicated the victim had an independent source for her identification testimony based upon her observation of the defendant in an area lighted by house lights. Given the close proximity of the victim and appellant and her ability to get a close range view of him, the lighting takes on less importance. Further, common sense confirms that “[n]o other crime offers the opportunity for observation of the perpetrator as the crime of rape.” State v. Green, 515 S.W.2d 197, 199 (Mo.App.1974); Grant v. State, 446 S.W.2d 620, 622 (Mo.1969).

The victim here paid close attention to her assailant and was able to provide the police with a reasonably detailed description of her attacker, including his approximate age, height and build, hair color and length, the clothes worn by him and the facts that he had a young or “smooth” face and a mustache.

At both the lineup and the trial, the victim was unhesitating and unequivocal in her identification of the appellant. She recognized appellant immediately at the lineup before he even stepped forward. She noticed that his hair and mustache were somewhat longer at that time than on the night of her rape. She had no doubt that she was identifying her attacker. At trial, her identification was equally positive.

Although five months had elapsed between the crime and the lineup, the time lag is not fatal. Similar or longer periods have been approved: Neil v. Biggers, supra [seven months]; Davis, supra [two years]; Ealey, supra [four and one-half months]; State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975) [nearly four months].

Having established a positive in-court identification and that a substantial independent basis for the victim’s identification testimony exists, it follows that the trial court did not err in overruling appellant’s motions to suppress that testimony, despite appellant’s claims of unnecessary suggestiveness in the pretrial confrontation. Davis, supra; State v. Holland, 534 S.W.2d 590 (Mo.App.1976); Ealey, supra.

Appellant’s final claim is that the trial court erred in not declaring a mistrial because of certain testimony of a police officer concerning the lineup identification. The officer was asked, “Did she [the victim] identify any of the individuals to you?” The officer answered in the affirmative. Appellant’s objection was sustained. Appellant then moved for a mistrial. The motion was denied and the court sua sponte instructed the jury, “to completely disregard the last question and the last answer, the objection to which was sustained.”

The appellant cites State v. Degraffenreid, 477 S.W.2d 57 (Mo.banc 1972) and State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945) in support of his claim of error. The officer’s statement as to the -victim’s out-of-court identification here and in Degraffen-reid was hearsay. However, Degraffenreid is not otherwise in point. In Degraffenreid, the officer testified that he had seen the witness identify a photograph of the defendant and later identify the defendant in a lineup. The objection there was overruled and no corrective action was taken. Here, there was no testimony as to who was identified by the victim; the objection was sustained and the court instructed the jury to completely disregard the offending testimony. Fleming, too, is distinguishable. There was lengthy objectionable testimony in that case from four witnesses: the prose-cutrix, her father and two police officers. Defendant’s objection to all of the testimony was overruled by the trial court, a far more prejudicial situation than exists here.

The declaration of a mistrial is a drastic remedy and “rests largely in the discretion of the trial court who has observed the incident giving rise to the request for a mistrial, and who is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial.” State v. Camper, 391 S.W.2d 926, 928 (Mo.1965). State v. Rollins, 449 S.W.2d 585 (Mo.1970), cert. den., 399 U.S. 915, 90 S.Ct. 2220, 26 L.Ed.2d 573 (1970); State v. Mullen, 528 S.W.2d 517 (Mo.App.1975); State v. Berry, supra. The trial court did not abuse its discretion in refusing to declare a mistrial.

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.