author: SHANGLER, Presiding Judge.

text:
    Catherine EMILY, Appellant, v. MISSOURI STATE DIVISION OF FAMILY SERVICES, Respondent.
    No. KCD 29741.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      Effie F. Day, James M. Smith, Legal Aid of Western Missouri, Kansas City, for appellant.
    Robert R. Northcutt, Paul T. Keller, Division of Family Services, Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The claimant Emily appeals from a judgment which affirms the decision of the Missouri State Division of Family Services to deny general relief and medical assistance benefits for August of 1976. The benefits were denied on the basis of Division Rule and Regulation 40-2.070(1) [now codified at 13 C.S.R. 40-2.070]:

General Relief shall not be granted to employable persons or to persons living in households containing an employable specified relative. Such specified relatives are the spouse, father, mother, sister, brother, son, daughter, grandfather, grandmother, and their spouse. [Emphasis supplied]

The claimant was given a hearing on her claim for benefits. The evidence was that claimant Emily sublet an apartment from her sister Patricia for the month of August while she was away from the city on a leave of absence. Patricia did not live in the apartment during the month although she left her possessions there and visited a number of times. The claimant Emily paid the rent money directly to the sister and not to the landlord. The claimant became ill during the month and spent much of that time in the hospital.

The decision of the Director to deny benefits recites:

. The fact that claimant’s sister continued to maintain the living quarters as her own, by the presence of her personal belongings, maintaining her mailing address, and the landlord considering her as a tenant, along with not having an established address elsewhere, would indicate that she did live at the [apartment] address during the period of time in question and was away from the home merely for vacationing. The claimant is considered living in an employable household with a specified relative and the . action to deny benefits for August is sustained.

It is conceded that the claimant herself was not an employable person. The decision rests on the evident rationale, therefore, that the apartment arrangement between the sisters constituted a household not eligible for general relief by Regulation 40-2.070(1) because one of the sisters was employable. The circuit court affirmed the decision of the Director. Our review determines whether this decision is authorized by law, and if so, whether it rests on competent and substantial evidence on the whole record. Hill v. State Department of Public Health and Welfare, 503 S.W.2d 6, 8 (Mo. banc 1973).

The claimant contends that Rule 40-2.-070(1) which denies general relief to an unemployable person merely for living in a household with an employable relative [sister] conflicts with § 208.010.3, RSMo 1969 which considers the resources of the relative only to the extent that they are actually available for the support of the unemployable who seeks public assistance. This section, however, expressly refers to eligibility and grant of benefits under federally aided programs and has no relevancy to the assistance the claimant seeks. The general relief and medical assistance program is completely state funded. [C.C.S.H.B. 6, 79th General Assembly, First Regular Session; see also, Appropriations, Missouri Session Laws 1976-77.] The benefit for an unemployable person to aid or public relief is established by § 208.150.1(2) within the means test of § 208.010.1. That test determines need by “consideration of all facts and circumstances surrounding the claimant, including his living conditions, earning capacity, income and resources, from whatever source received ... in accordance with standards developed by the Division of Family Services.”

The standard developed by the Division to govern benefits to an unemployable person is expressed in Regulation 40-2.070. That regulation defines unemployable person in terms of household composition. The claimant questions the validity of the regulation because it does not require actual support by the employable relative, but only that they compose the same household. It is evident from the decision, on the other hand, that the Director understands household to mean house within the context of the regulation.

The validity of an administrative rule or regulation is reviewed in the light of the ill sought to be cured and will be sustained unless unreasonable or plainly inconsistent with the enactment. A rule or regulation is not unreasonable merely because it may be burdensome, but only if it bears no rational relationship to the legislative purpose. Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197[1-4] (Mo. banc 1972). The care of the poor and the prevention of suffering of those in want from age, infirmity or other dependency, are legitimate purposes of an enlightened government. Jennings v. City of St. Louis, 332 Mo. 173, 58 S.W.2d 979, 982[4, 5] (Banc 1933); 79 Am.Jur.2d, Welfare Laws, §§ 1 & 2. These are the ends served by the public assistance provisions of Chapter 208 — in the terms of § 208.010.1 — “to provide such persons with reasonable subsistence compatible with decency and health.” In order to give fair effect to this remedy within the limited means available, the legislature has authorized the Division of Family Services to establish uniform standards. §§ 208.010.1, and 208.265. Regulation 40-2.070(1) undertakes such a standard for unemployable persons.

The validity of Regulation 40-2.-070(1) depends upon whether that standard bears a reasonable relationship to the purpose of Chapter 208 to provide public assistance to those in need of general relief. The welfare benefits of § 208.010 — general relief among them — issue as family services and are meant to enhance the home unit. § 207.020.1(15); Garrard v. State Department of Public Health and Welfare, 375 S.W.2d 582, 589-90[14, 21] (Mo.App.1964). To determine eligibility the law takes into account “all facts and circumstances surrounding the claimant, including his living conditions, earning capacity, income and resources from whatever source received." § 208.010.1 [Emphasis supplied]. A regulation which denies general relief to an unemployable person who lives in a household containing an employable relative falls within the compass of § 208.010.1 only if the household relative can be deemed a resource within that statute. It is evident the Director construes the Division regulation to deny relief to a claimant who merely occupies living quarters with an employable relative, whether or not as components of a household or for actual support. In this, the Director misapplies the sense of the regulation and contradicts the statutory test for means and eligibility.

The promulgated Regulation 40-2.070(1) operates to disqualify for general relief all “persons living in households containing an employable specified relative.” We must assume that the term household as used in the regulation means to subserve the purpose of matrical § 208.010.1. The word household is various in definition according to the purpose intended. Ferbrache v. Grand Lodge, 81 Mo.App. 268, 271 (1899). In general definition, household signifies a domestic unit — a collection of parents and children or of an even broader body of persons who live together under the same roof, subsist together and direct their attention to a common object and are under one head. Roller v. Montgomery’s Estate, 45 S.W.2d 945, 947[2] (Mo.App.1932). And in the particular context of § 208.010.1 which, determines eligibility for public welfare by the resources available to a claimant to live in decency and health, household imports a condition of reciprocal dependency and support. Elliott v. Thomas, 161 Mo.App. 441, 143 S.W. 563, 564[2, 3] (1912). In short, a household is a family [41 C.J.S. Household; 35 C.J.S. Family] and the regulation term household reflects the statutory policy that, where a claimant is part of a domestic unit, welfare benefits issue as family services. § 207.020.1(15).

The decision of the Director to deny general relief to claimant Emily rests on the determination that

the presence of her personal belongings, maintaining her mailing address, and the landlord considering her as a tenant, along with not having an established address elsewhere, would indicate that she [the sister] did live at the [apartment] address during the period of time in question. .

These findings do not suggest a family relationship of support by the sister to the claimant during this interim or that the sister was a resource which enabled claimant Emily to live in decency and health. Nor do the findings suggest that permanency of relationship which is the character of a household [Wentz v. Chicago, B. & Q. R. Co., 259 Mo. 450, 168 S.W. 1166, 1172[9] (1914), but only a transitory use by one relative of the living quarters of another. If we may assume the finding of the Director that the sister continued to maintain the living quarters as her own even in her absence, such a "presence” would not suffice to prove a household within the meaning of the regulation in the absence of a domestic purpose between them. A sister has no duty to a sister however needy, and the Division of Family Services may not create an obligation for support the law does not require. See, Howlett v. Social Security Commission, 347 Mo. 784, 149 S.W.2d 806, 810[10] (Banc 1941). Yet, the construction given by the Director to the regulation presumes such an obligation merely from the fact of a habitation shared between sisters.

The regulation which defines unemployable person —and thus eligibility for general relief — in terms of household composition is validly based upon the statutory purpose but only when construed in terms of the family relationship as a resource of actual support. The decision of the Director, however, rests on an error of law and a misconstruction of the Division regulation. In that determination the Director has assumed that the sister was a resource available to the claimant and that evidence of actual support or other source of subsistence was not a necessary proof to deny general relief. That was in violation of § 208.010.1 that:

[i]n determining the eligibility of a claimant for public assistance under this law it shall be the duty of the division of family services to consider and take into account all facts and circumstances surrounding the claimant, including his living conditions, earning capacity, income and resources, from whatever source received . . ..

The judgment of the circuit court is reversed with directions to remand the cause to the Division of Family Services for further proceedings.

All concur.


source: Caselaw Access Project

author: GUNN, Presiding Judge.

license: Public Domain

text:
    Marilyn ROBERTSON, Plaintiff-Appellant, v. The RELIABLE LIFE INSURANCE COMPANY, Defendant-Respondent.
    No. 38980.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 1, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 5, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      George R. Gerhard, St. Louis, for plaintiff-appellant.
    Armstrong, Teasdale, Kramer & Vaughan, Richard B. Scherrer, St. Louis, for defendant-respondent.
   GUNN, Presiding Judge.

Plaintiff appeals from the trial court’s finding that a policy of insurance issued by defendant, The Reliable Life Insurance Company, covering her deceased husband’s life was void for premium nonpayment. Plaintiff alleges that the policy premiums had been paid, or, in the alternative, that Reliable Life had waived any forfeiture of the policy. We affirm the judgment.

Plaintiff’s husband, Thomas B. Robertson, contracted with Reliable Life for a $20,000 policy of insurance on his life with a supplemental accidental death benefit of an additional $20,000. Plaintiff was beneficiary under the insurance policy. Terms of the policy required Mr. Robertson to make payments of $34 on or before the 15th day of each month. A grace period of 31 days was provided for late payments, after which time the policy would lapse to be reinstated on the fulfillment of two conditions: (1) payment of all overdue premiums with interest; (2) presentation of evidence of the insured’s insurability.

From time to time during the policy period Mr. Robertson was late in making his premium payments but would ultimately catch up and be current except in the situation which we now examine. Mr. Robertson failed to pay the premium due on January 15, 1974. Reliable Life sent him a letter dated March 7, 1974 advising of the delinquency in premium payment and that the policy had lapsed, leaving Mr. Robertson without insurance coverage. The letter offered to reinstate the policy “if payment for all premiums due and past due is made within 30 days of the date of this letter.” For acceptance of the foregoing offer before March 15, Mr. Robertson would have been required to remit a payment of $68; after March 15, an additional $34 would have been required. On March 11 Reliable Life received Mr. Robertson’s check in the amount of $34. This check, which was received in Reliable Life’s branch office, was deposited but not reported to the home office pending receipt of the balance of the delinquent premium necessary to revive the expired policy. The receipt of a copy of the March 7 letter and the $34 check by the branch office triggered a number of administrative and accounting changes in the handling of Mr. Robertson’s account, characterized chiefly by placing his account into the “lapsed file” and entering his payment in a separate account book referred to as “the revival booklet.” A representative of Reliable Life also telephoned Mr. Robertson to advise him that the insurance policy had lapsed and that he had no insurance coverage. Mr. Robertson stated to the representative that he had already made out a check to cover the delinquent premium and would be mailing it on Friday which, according to the evidence, would be one or two days after the telephone call. The representative’s response to Mr. Robertson’s suggestion was: “[F]ine Mr. Robertson. I just wanted you to be aware of the condition of your insurance.” On Friday, March 20, 1974 Mr. Robertson was killed in an automobile accident. In his possession was a $68 check payable to Reliable Life, which was subsequently mailed to the insurance company by Mr. Robertson’s son on March 21 and received by Reliable Life on March 26. The envelope in which the check was sent was postmarked March 22,1974. Reliable Life’s employee, aware of Mr. Robertson’s death when he received the $68 check, placed it in his desk to await advice of counsel. On April 1, 1974 the uneashed check was sent to plaintiff along with Reliable Life’s check for $34 representing the return of the March 11 payment. Plaintiff claimed the $40,000 death benefit under the policy, but Reliable Life declined to pay, asserting that at the time of Mr. Robertson’s death the policy was not in force. Plaintiff thereafter initiated this suit for recovery of the $40,000, plus damages for vexatious refusal to pay. The trial court found that the policy was void at the time of Mr. Robertson’s death and denied recovery.

Plaintiff’s first point on appeal is that the trial court erred in concluding that the policy was void for nonpayment because the payments were made and accepted by Reliable Life. We must reject plaintiff’s contention. It is a fundamental tenet that where premiums are not paid as required under the insurance contract, there is no insurance coverage for the insured. Hampton v. Metropolitan Ins. Co., 528 S.W.2d 17 (Mo.App.1975). See also Citizens Nat. Bank v. State Farm Mut. Ins. Co., 552 S.W.2d 50 (Mo.App.1977). While the burden is upon the insurer to prove the policy’s lapse and forfeiture of benefits by the insured by reason of nonpayment of premiums, Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811 (Mo.App.1975), we believe that the evidence here clearly establishes that the policy had lapsed for premium nonpayment. By the terms of the policy, premiums were required to be paid by the 15th of each month. Reliable Life did not receive the January, 1974 premium until March 11, 1974, substantially beyond the grace period. According to the policy, payment had to be made before the end of the grace period; otherwise benefit coverage lapsed to be reinstated only upon proof of insurability and payment of all overdue premiums. Reliable Life did advise Mr. Robertson by its March 7 letter that the policy had lapsed but could be reinstated if he paid all premiums “due and past due” within 30 days. At the time of the March 7 letter, a payment of $68 was required to comply with the communicated conditions for reinstatement. On the date of Mr. Robertson's death, March 20, an additional $34 was due. Mr. Robertson had sent only $34. Thus, the conditions of reinstatement had not been fulfilled. The policy was not reinstated, and there was no coverage for Mr. Robertson. Hatchett v. Cosmopolitan Life, Health and Acc. Ins. Co., 241 Mo.App. 1098, 247 S.W.2d 348 (1952); Beeman v. Kansas City Life Ins. Co., 104 S.W.2d 391 (Mo.App.1937).

The simple fact is that the policy had lapsed for nonpayment of premiums, and the past due premiums had not been paid at the time of Mr. Robertson’s death. The conditions for reinstatement were not met. The policy was consequently void and of no force or effect on the date of death. Randall v. Western Life Ins. Co., 336 S.W.2d 125 (Mo.App.1960). After having become forfeited in the lifetime of Mr. Robertson, the policy could not be resuscitated or continue to endure as a contract after his death. His death cancelled the possibility of resurrecting the policy of insurance. Hamilton v. Northeast Mut. Ins. Ass'n, 116 S.W.2d 159 (Mo.App.1938). The subsequent tendering of past due premium payments after his death would have no effect on reviving it.

Plaintiff argues that she sent Reliable Life the balance of the money necessary to reinstate the policy within the thirty day period stipulated in the letter and that this fulfilled the conditions necessary for reinstatement. In order for the policy to have been in force at the time of the death, it must have been reinstated on or before March 20, 1974. Plaintiff did not send the check until March 21, 1974. Further, the letter which stipulated the conditions for reinstatement stated that insurance coverage would resume as of the date payment was postmarked. This was March 22, 1974, two days after Mr. Robertson’s death.

Plaintiff next argues that Reliable Life did not properly tender back the money sent by plaintiff; therefore, she argues, it accepted payment and waived its claim that the policy was not reinstated. This argument lacks merit for several reasons: (1) as noted above, even if the payment made by plaintiff reinstated the policy it did not do so until March 22, two days after Mr. Robertson’s death, the only event which could cause Reliable Life’s liability to arise. (2) Reliable Life did not negotiate the check, and the trial court held that inasmuch as payment was tendered back within a reasonable time, it was not accepted. Reliable Life returned plaintiff’s check within six days, two of which were on a weekend. The court found that tender back in this time was reasonable and the circumstances of this case support this finding. Under the standard of review announced in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the trial court’s finding must be upheld. (3) Plaintiff’s reliance on certain cases which state that tendering back of premiums received before and rejected after the death of the insured must be made to his administrator is misplaced. Those cases are not apt here, because the payment was made by the plaintiff after the insured’s death.

Plaintiff’s second point is in the alternative. She suggests that even if we find that Mr. Robertson did not pay the required premiums, the policy was in effect at the time of his death because Reliable Life waived the forfeiture. Plaintiff suggests waiver by reason of Reliable Life’s letter to Mr. Robertson stating that the policy would be reinstated upon payment of past due premiums and by the telephone conversation of its representative stating that it would be “fine” if the past due premium check were sent on the following Friday. We see nothing in either the letter or telephone conversation which implies any waiver of the policy conditions. Rather, both the letter and telephone conversation were clearly designed to impress upon Mr. Robertson that the policy had lapsed and could be reinstated only upon payment of past due premiums before a particular date and, certainly, before Mr. Robertson’s death. We are not insensate to plaintiff’s plight, but we simply cannot find any basis for relief for her or a finding other than that the policy had completely lapsed prior to Mr. Robertson’s death.

The trial court concluded — and we agree — that there was no waiver of the policy termination provisions. The policy specifically provided that it would lapse on nonpayment of premiums beyond the grace period. The trial court correctly found that there was no waiver of those policy provisions. The true' syllogistic conclusion is that the policy was not in force at the time of Mr. Robertson’s death.

Judgment affirmed.

WEIER and KELLY, JJ., concur.

      . One of plaintiffs exhibits was a check dated January 25, 1974 payable to Reliable Life and marked “paid” January 31, 1974. There is no explanation in the record in this regard, but a fair inference is that the December, 1973 premium was not paid until January 25, 1974.


author: PER CURIAM.

text:
    STATE of Missouri ex rel. Louise JOHNSON, Relator, v. John KELLEY, Robert Wallerstedt, Samuel Epstein & Rev. William Dancy, constituting Board of Election Commissioners of Kansas City, Missouri and Phillip Scaglia and James C. Kirkpatrick, Secretary of State for the State of Missouri, Respondents.
    No. KCD 30325.
    Missouri Court of Appeals, Kansas City District.
    Aug. 3, 1978.
    Rehearing Denied Aug. 28, 1978.
    Holliday & Bryant, P.C., Mark S. Bryant, Kansas City, for relator.
    William K. Poindexter, Cleo H. Muller, Kansas City, for respondent Scaglia.
    Before SOMERVILLE, P. J., SWOF-FORD, C. J., and WASSERSTROM, J.
   PER CURIAM.

Relator Johnson petitioned the Circuit Court for a writ to prohibit respondents Board of Election Commissioners and the Secretary of State from placing the name Phillip P. Scaglia upon the ballot of the primary election as candidate for nomination to the Missouri General Assembly from the 30th Legislative District. After hearing evidence, the trial court denied the writ. Relator appeals.

Relator challenges Scaglia’s qualifications as a candidate on the ground that he is not a resident of the 30th Legislative District, as required by Article 3, Section 4 of the Missouri Constitution and Section 21.080, RSMo 1969. Scaglia answers and introduced evidence to show that he does reside at 5008 Paseo, Kansas City, Missouri, within the District. Relator rejoins and offered evidence to show that the Paseo residence was only ostensible and that Scaglia’s true residence is 416 Glen Arbor Road, outside the District. The trial court found: “Respondent Scaglia has been a resident of 5008 Paseo which is located within the 30th Legislative District of the Missouri General Assembly for one year next before the election contest of November, 1978.”

Rule 73.01 as explained by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) prescribes the limited scope of appellate review of a court-tried case. Under the standards there enunciated, the judgment of the trial court must be affirmed. That judgment follows correct principles of law, is supported by substantial evidence and is not against the weight of the evidence. An extended opinion would have no preceden-tial value and therefore will be dispensed with pursuant to the authority of Rule 84.16(b).

The various motions taken with the case are overruled.

Affirmed.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Merle Edward ZWEIFEL, Appellant.
    No. 39555.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 22, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application for Transfer Denied Oct. 10, 1978.

      Zenge & Smith, Canton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Daniel Lyman, Jefferson City, William 0. Green, Pros. Atty., Scotland County, Memphis, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction of manslaughter by a jury. The jury assessed punishment at ten years imprisonment; the trial court reduced the sentence to five years.

The victim, Mr. Erwin, was the superintendent of the Gorin R-III School. Defendant’s son, Carl, was a junior in that school. Erwin had a discussion with Carl in a shop class during which he made statements which Carl interpreted as indicating a doubt in Erwin’s mind of the truthfulness of an excuse for an absence which Carl’s mother had sent to the school and a doubt of the truthfulness of Carl’s explanation of the absence. Carl left the school and went home to report the conversation to his parents. His father, defendant, returned to the school with him. There is no evidence that defendant’s intentions were other than peaceful. When defendant and Carl arrived at the superintendent’s office, Erwin was not there. Shortly Erwin came up the stairs (24 in number). A discussion ensued followed by a scuffle between Erwin and defendant. Erwin was 59, six feet or taller and weighed 230 pounds or more. Defendant was 36, five feet six or eight, and weighed between 150 and 170 pounds. The initial scuffle was broken up by several teachers. Some further talk ensued initially between Erwin and Carl and then between Erwin and defendant. While no profanity was used, the exchange between Erwin and defendant could be considered provocative from both sides and resulted in a second scuffle. While defendant’s evidence was that Erwin was the aggressor in the second scuffle, there was evidence upon which the jury could believe defendant charged into Erwin and was the aggressor. The two men, locked in combat, fell into Erwin’s office onto a desk and then to the floor with defendant on top. There was testimony, contradicted by defendant’s evidence, that defendant choked Erwin while on the floor. The men were quickly parted and defendant and Carl left the school. Erwin was coughing and having difficulty breathing and two of the teachers attempted to provide first aid. Erwin died almost immediately from circulatory failure caused by cardiac arrest.

The results of the autopsy established that ten to twelve days before his death, Erwin had sustained a myocardial infarction, apparently unknown to him or anyone else.

Defendant’s first contention on appeal is that the state failed to establish that the altercation between defendant and Erwin was the producing cause of Erwin’s death. This contention is based upon the medical testimony in the case that in the case of a man who had had a recent myocardial infarction, as Erwin had, it is impossible to pinpoint exactly the stress which produced the cardiac arrest. While the state’s medical expert conceded it was possible that the action in climbing the stairs or that even no stress at all could have triggered the arrest, he stated it was more probable that the physical altercation with defendant was the cause.

In State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49 (1946) l. c. 54, the rule to be applied was stated as follows:

“The applicable rule, as stated in Guthrie v. City of St. Charles, 347 Mo. 1175, 1188, 152 S.W.2d 91, 97(8), is that where a plaintiff shows a casualty resulted from one of several causes, for only part of which the defendant was responsible, no case is made — unless the evidence also shows a greater probability that the proximate cause was one for which the defendant was liable.” (Emphasis in original). See also State v. Null, 355 Mo. 1034, 199 S.W.2d 639 (Mo.1947) [10].

The evidence here meets the test set forth in Brinkley. Although conceding the possibility of another cause for the death, the medical expert testified the altercation was the more probable cause. Additionally, the evidence was that the fatal heart attack occurred either during or immediately after the altercation. The evidence was sufficient to support the jury verdict.

Defendant’s second point is that the court erred in not permitting counsel to cross-examine a medical expert on allegedly inconsistent statements made by the expert at the preliminary hearing. The record does not contain the transcript of the preliminary hearing and the transcript was not offered into evidence. In such posture the matter has not been preserved for review. State v. Hughes, 562 S.W.2d 140 (Mo.App.1978) [2]. From the record before us and the colloquy between counsel and court we are unable to determine whether the doctor’s testimony at the preliminary hearing was inconsistent with that at trial. The trial court held it was not and we have no basis to disagree.

Defendant also premises error upon the trial court’s failure to sustain an objection to the prosecutor’s closing argument. The argument is set forth in the margin. Again the matter has not been preserved. The court stated it wished to hear the rest of the statement before ruling. No further objection was made and under the circumstances the trial court could properly assume that the remainder of the statement had clarified the argument so that defendant no longer found it objectionable. See State v. Henderson, 510 S.W.2d 813 (Mo.App.1974) [21]. Additionally, the completed statement was a correct statement albeit inartfully worded, that the defendant may be convicted if his acts are the proximate cause of the death even though the decedent’s physical condition made the consequences more severe than might be expected. State v. Johnson, 475 S.W.2d 95 (Mo.1971) [1]; State v. Brinkley, supra [8]. We find no abuse of discretion by the trial court.

Defendant next contends that the court erred in failing to excuse a venireman for cause. Defendant correctly sets forth the law that he is entitled to a full panel of qualified jurors before making peremptory challenges. While we recognize that practical difficulties are encountered, particularly in rural circuits, where excuses for cause reduce the panel below that required, such practical difficulties do not obviate the above stated proposition. An unqualified venireman must be excused upon a challenge for cause regardless of the effect upon the size of the venire panel. Here, however, the record does not support defendant’s contention. In his brief, defendant asserts that the venireman in question had been the losing party in substantial litigation in which defendant’s attorney represented the prevailing party and that defense counsel and the prosecutor had agreed that this venireman would be excused as well as another venireman represented by defendant’s attorney in which the prosecutor was on the opposite side. This agreement was stated to be “subject to the approval of the Court.” Those assertions do not find support in the record. While in chambers after voir dire defendant’s attorney made reference to the situation, his statement was neither affirmed nor denied by the prosecution. The voir dire examination by the court had posed questions to the veniremen concerning prejudice arising from contacts with counsel and the venireman in question did not indicate any prejudice. Aside from counsel’s statement of presumed prejudice, there is nothing of record upon which the court could base a finding of actual prejudice. No request was made to reopen voir dire examination to permit further inquiry of the venireman in question. On the record before us we find no error by the trial court.

Defendant’s last point is that a new trial should have been granted because of the bias and prejudice of the jurors as allegedly revealed in an affidavit of the foreman. Since no objection appears of record to the affidavit, it is to be considered by the court. See Bailey v. Hilleman, 566 S.W.2d 504 (Mo.App. decided May 9, 1978). As in Bailey, however, we find the affidavit conclusory in nature and nonspecific in fact. We find no abuse of discretion by the trial court in refusing to grant a new trial on the basis of the affidavit.

Judgment affirmed.

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

      . “Now we have this issue of whether or not the cause was the assault. I don’t want you ladies and gentlemen to be confused, and I’m sure Mr. Zenge doesn’t either. In order to convict the Defendant of murder or manslaughter, you do not have to find beyond a reasonable doubt this assault caused the death of Mr. Erwin—
      MR. ZENGE: If the Court please, we object to that. That’s not a correct statement of the law. They do have to find beyond a reasonable doubt.
      COURT: Let him finish the statement so I can get the thrust of it.
      MR. GREEN: What you must find is that the assault was one of several causes that hastened death. The Defendant takes his victim as he finds him. It was a misfortune to engage a man with a heart condition in the assault. That’s not the State’s fault. That’s Mr. Zwei-fel’s fault. Ladies and gentlemen, I submit to you and I ask you this one question: Do you believe, do you have any reasonable doubt that if this assault had not occurred, would Mr. Erwin still have been alive when Mr. Zweifel left that office? My answer to that question is yes, and I don’t think there’s any way that you can confuse that issue at all.”


author: PRITCHARD, Judge.

text:
    Jackie K. DAUGHERTY, Respondent, v. NORTH KANSAS CITY MEMORIAL HOSPITAL, Appellant.
    No. KCD 29003.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Dean F. Arnold and B. W. Jacob, Kansas City, for appellant.
    David R. Odegard and Robert M. Som-mers, Kansas City, for respondent; James, Odegard & Millert, Kansas City, of counsel.
    Before WELBORN, Special Judge, Presiding, Higgins, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Respondent recovered judgment, upon a verdict of a jury, for $30,000, upon her claim of negligence, as submitted in Instruction No. 4, that appellant allowed an ice collar to remain upon respondent too long [thereby causing Bell’s Palsy, which, according to the record, resulted from a swelling of the cranial nerve in the bony passageway to the face].

Appellant’s contentions are, first, that the court erred in failing to direct a verdict in its favor because respondent did not make a submissible case in that she produced no expert medical evidence that it violated any standard of care; and second, Instruction No. 4 was erroneous because it also was not supported by expert medical evidence.

Instruction No. 4 is:

“Your verdict must be for the plaintiff and against defendant North Kansas City Memorial Hospital if you believe:
First, defendant North Kansas City Memorial Hospital aljowed the ice collar to remain on plaintiff too long,
Second, defendant North Kansas City Memorial Hospital was thereby negligent, and
Third, as a direct result of such negligence plaintiff sustained damage.
“The term ‘negligence’ as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.”

On the evening of June 8, 1970, respondent entered the hospital for a tonsillectomy scheduled the following morning, at which time she received an injection of 100 mg. Demerol which caused her to be drowsy. At 8:45 a. m., in the operating room she received an injection of sodium pentothal, which caused her to be unconscious. Respondent did not recall regaining consciousness until about noon on the same day.

The operating surgeon, Dr. Parker, prescribed post-operative injections of 50 mg. Demerol every 4 hours, which dosage was sufficient to cause drowsiness or sedation, and respondent was given this dosage at 10:55 a. m., and again at 3:30 p. m. She was also given Empirin No. 3 at 2:00, 5:00 and 7:00 p. m., on the day of the operation. After the operation, Dr. Parker left orders to appellant’s nursing staff that an ice collar was to be applied to respondent “ad lib”, which means “at the patient’s desire.” After respondent awoke, Dr. Parker advised her that he would give her an ice pack for her throat, and he instructed the nurse to change it from side to side every two hours.

Respondent testified that after she awakened in her room about noon, Dr. Parker was there and told her he would give her an ice pack for her throat, and he also told the nurse to switch it every two hours, and she went back off to sleep. She. awakened in mid-afternoon, at which time the ice collar was on, covering her ear and jaw. She was given a pain pill and went back off to sleep. She next awakened around 5:30 or 6:00 that evening at which time the ice bag was still on the right side of her face. Her face was numb and red, and she had some burning or itching sensation on the right side of her face. She removed the ice collar and did not reapply it that night, but she used it the next day, switching it from side to side as directed by the nurse.

Dr. Parker saw respondent the evening of the second day, and asked her why she was winking at him. It was discovered that she could not close her right eye, and she could not move the right side of her face. It was Dr. Parker’s notation on respondent’s medical chart that she developed Bell’s Palsy on the second post-operative day, considered to be due to the refrigeration effect of the collar. There was medical evidence from Dr. Kovac as to this same causation, and that respondent’s condition is permanent and progressive. There was also evidence that if a nurse applied an ice collar to a sleeping or unconscious patient, she would not be following the doctor’s orders to apply the collar “ad lib”; and that if the patient is asleep or unconscious, she cannot make her desires known to the nurse.

There was no expert evidence as to any existent standard of care required of hospital attendants and nurses in applying ice collars to patients such as respondent. No expert testimony was necessary, however, because the gist of respondent’s claim of negligence is based upon.the failure of the nurses ‘to follow the doctor’s orders to change the ice collar from the right side to the left side every two hours, and to apply it at the patient’s request. This failure to follow orders occasioned the ice collar being left on too long, as submitted as the ultimate fact in Instruction No. 4. See the similar case of Larrimore v. Homeopathic Hospital Association of Delaware, 4 Storey 449, 54 Del. 449, 181 A.2d 573, 577[2] (1962), where it was said, “In the'case at bar, the nurse had but to read all the physician’s instructions appearing on the Order Sheet in order to avoid the mistake she made. It appears in the record by expert testimony that the very purpose of the Order Sheet is to guide the nurses in carrying out the doctor’s orders. This being so, we think the calling of an expert witness to testify that the failure of a nurse to follow the doctor’s written instructions was a violation of the expected standards of her profession, would be an empty gesture. * * * However, we think the particular issue did not require the establishment of standards by experts.” In Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 449, 239 N.E.2d 368, 374[12] (App.1968), the court said, “With respect to the hospital, there can be little dispute that the plaintiffs made out a prima facie case when they introduced substantial evidence to establish that the nurses had not conformed to the pediatrician’s orders.” The rationale for the rule in cases where expert testimony is not needed is stated in Washington Hospital Center v. Butler, 127 U.S.App.D.C. 379, 384, 384 F.2d 331, 336[6, 7] (1967), “Nor is there peculiar need for expert testimony on any issue the resolution of which would not extend the jury beyond the range of ordinary lay knowledge and experience. * * ‘ “[TJhere must be, in the nature of things, many instances where the facts alone prove the negligence, and where it is unnecessary to have the opinions of persons skillful in the particular science to show unskillful and negligent treatment.” ’ ” Compare also Howard v. Research Hospital & Medical Ctr., Inc., 563 S.W.2d 111, 112[1,2] (Mo.App.1978), and cases cited; Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743, 749 (1953). Respondent made a submissible case of negligence of appellant in its nurses’ failure to follow the physician’s orders to her damage. It follows that Instruction No. 4 is supported by the evidence, and its giving was not error as contended.

Appellant’s last contention is that the trial court erred in admitting Dr. Ko-vac’s deposition because he was not shown to be unavailable for the trial under Rule 57.07. The doctor’s x-ray technician testified at trial that he was at his office attending pre-scheduled patients and would be there all morning, and that he was scheduled to see patients at an industrial plant and downtown all afternoon. This is direct, positive evidence of unavailability, different than the hearsay testimony to establish the fact in Tillman v. Wedge Mobile Service Station, 565 S.W.2d 653 (Mo.App.1978). The trial court here properly found unavailability.

The judgment is affirmed.

All concur.


text:
    Joe ROTH and Ellen Elizabeth Roth, Plaintiffs-Appellants, v. James M. TAYLOR and Naomi R. Taylor, Defendants-Respondents.
    No. KCD 29093.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Price Shoemaker, Robert B. Randolph, St. Joseph, for plaintiffs-appellants.
    Morton, Reed & Counts, Richard A. Heider, Christi M. Insco, St. Joseph, fop defendants-respondents.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   PER CURIAM.

Action by grantors to set aside deed on grounds that grantees overreached and took advantage of grantors who were mentally and physically unable to exercise rational business judgment in an arm’s length transaction. Trial by the court resulted in judgment for grantees. Grantors appeal.

The issues raised on the appeal are purely factual. Review of the transcript of the proceedings below in accordance with the guidelines set forth in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976), reveals that the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. No error of law is asserted.

An extended opinion would have no prec-edential value. "Rule 84.16(b).

Respondents’ motion for damages for a frivolous appeal (Rule 84.19) is overruled.

Judgment affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John ASKEW, Jr., Defendant-Appellant.
    No. KCD 29114.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Clifford A. Cohen, Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a conviction and jury-imposed sentences totaling 45 years for the crimes of robbery and sodomy. There were six counts. Two counts charged separate acts of sodomy per os and per anus on one boy and two counts charged the same offenses as to another boy. The robbery counts charged a forcible taking of property from each of the victims. There were convictions on three counts of sodomy and one count of robbery; two counts resulted in acquittals. The trial court directed that the sentences imposed by the jury for two acts of sodomy as to one boy be concurrent and the twenty-year sentence imposed by the jury for a single sodomy on the other youth be served consecutively. The finding of guilty on one count of robbery was made consecutive to the other sentences imposed.

Defendant raises a single issue’ asserting error in the admission of the victim’s written statement given to the police when the crime was reported.

The sufficiency of the evidence is not questioned.

J. C., age 13, and his friend, S. B., walked to a shopping area where S. B. spent forty cents of a dollar in his possession. About 7 p. m., the boys started home, taking a path along a creek bed. J. C. noticed that they were being followed by a black male. As the boys started up from the creek bed, the black male that J. C. had noticed earlier grabbed both boys, told them to empty their pockets, and took their knives and a hatchet they had found.

The black male, later identified as John Askew, tied each of the boys up, forced them to commit oral sodomy and to submit to anal intercourse. After kicking and beating both boys and after taking sixty cents from S. B., the man left; the boys returned home, and the police were called.

On the basis of a detailed physical description of the assailant and the bicycle he was riding furnished to the police, John Askew was arrested the following day on a bridge overlooking the creek. J. C. identified the defendant as his attacker in a four-man line-up at the police station. S. B. could not be contacted after the evening of the attack, and it was established later that he had moved to Arkansas, leaving no forwarding address.

After the line-up Askew signed a written confession to the crimes. Detectives testified that Askew’s confession was freely and voluntarily given after a waiver of his rights, and it was before the jury.

On the single issue raised as to the propriety of the use of the victim’s written statement, the defendant argues on appeal that the statement was hearsay and improper rehabilitation of the victim’s direct testimony. The objection made by defendant at the time the statement was offered is lacking in specificity. A fair reading of the colloquy between counsel and the court indicates that the statement was admitted on the theory that it was a prior consistent statement offered to rehabilitate the victim’s testimony after cross-examination, to which the defendant objected.

The initial inquiry must address the record facts to determine if an inconsistency or contradiction of the victim’s testimony appears from the testimony. The victim was examined closely about the details of the attack, about the line-up procedure, and about the possibility of influence or “coaching” from the prosecutor. Although the cross-examination was thorough, it failed to shake J. C.’s account of the attack, nor his identification of the defendant. Nor did the questioning about conversations of the victim with the prosecutor give rise to any real inference of the prosecution having suggested testimony to the witness. The witness’ responses on cross-examination admitted some refreshment of memory. The prosecutor then handed the witness the statement and asked the boy if that was the statement which the prosecutor had used in pretrial discussions refreshing his memory. It was then established that the statement was in the youth’s own words. Thereafter, the statement was offered and received in evidence, and, ultimately, read to the jury.

The general rule concerning use of prior consistent statements permits a showing of the fact that the prior statement or complaint was made for corroboration; the details of the statement are not generally admissible. State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945). However, details may be admissible for rehabilitation.

“. . . prior extrajudicial statements consistent with a witness’ testimony at the trial are admissible in evidence in rebuttal to rehabilitate the credibility of the witness after testimony establishing extrajudicial statements by the witness contradicting the witness’ testimony at the trial has been introduced for impeachment purposes.” State v. Fleming, supra at 15.

The Fleming rule is further modified by State v. Cox, 542 S.W.2d 40 (Mo.App.1976), and State v. McKinney, 475 S.W.2d 51 (Mo.1971). In Cox and McKinney, courts broadened the Fleming rule to include any inconsistencies that occur in testimony — not just inconsistencies that appear in a prior extrajudicial statement:

“ ‘On redirect examination a witness may properly be interrogated as to facts, circumstances, or any matter tending to refute, weaken, or remove inferences, impressions, implications, or suggestions which might result from testimony or inquiries on cross-examination, although the facts brought out may be prejudicial to the other party. * * * Where there is a real or apparent inconsistency in the testimony of a witness, he may be questioned on redirect examination to straighten out the inconsistency, and for this purpose he may be asked questions tending to refresh his memory, such as whether he made certain statements before the trial. * * *’ State v. McKinney, 475 S.W.2d 51, 54 (Mo.1971).” State v. Cox, supra at 48-49.

Applying these principles to the instant case, there appears to be no justification for the reading of the statement to the jury. Such use of the witness’ prior statement was erroneous where no contradiction or unfavorable inference arose from the cross-examination. The prosecutor, by proving that the pretrial refreshment of the witness was from the witness’ own statement went as far as Cox, supra, and McKinney, supra, would authorize, and the subsequent reading to the jury of the entire statement was improper.

Even though the use of the statement constituted error, its prejudicial effect, if any, must be determined. Harmless error does not require a reversal. The standards for determining harmless error are clear in Missouri. State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972):

“Harmless error is not grounds for reversal; however, error in the admission of evidence should not be declared harmless unless it is so without question, (citations omitted).” State v. Degraffenreid, supra at 64.

The Degraffenreid opinion also cites with approval the standard of error stated in Thomas v. United States, 281 F.2d 132, 136 (8 Cir. 1960). “We are also mindful that error which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong.” State v. Degraffenreid, supra at 65.

Applying these standards to the present case, the error is harmless. There is a strong evidence,of guilt in the case; Askew signed a voluntary confession of guilt; J. C. was positive in his recollection of the attack and in his identification of Askew as his assailant. The erroneously admitted statement could only be considered cumulative to the testimony and evidence properly admitted.

Some care must be used in dismissing cumulative evidence as harmless for, as the concurring opinion in Degraffenreid points out:

“. . . the fact that evidence is cumulative does not automatically make its admission harmless. I agree with that viewpoint. Actually, each case must be examined to determine whether the particular cumulative evidence admitted therein was harmless and hence not prejudicial, even though erroneous.” State v. Degraffenreid, supra at 66.

Even observing that cautionary note, it is clear that the evidence in question is both cumulative and harmless. The strong evidence of guilt supports the verdict, and the statement of the victim supplied no additional force or strength to the case against the defendant.

The judgment and conviction are affirmed.

All concur.


text:
    BROOME & CONKLING, a partnership, Appellant, v. CITY OF GLADSTONE, Missouri, Village of Oakwood, Missouri, Respondents.
    No. KCD 29125.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Jerry Conkling, Kansas City, for appellant.
    John C. Dods, James T. Newsom and Allen R. Purvis, Kansas City,, for respondents; Shook, Hardy & Bacon, Kansas City, of counsel.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

The issue is whether there was an abandonment of a strip 10 feet wide abutting a street and appellant’s property so as to vest title in it [appellant sued as a partnership], so as to entitle it to compensation, pursuant to a contract, for its reasonable value.

Appellant owns property fronting 120 feet along the east side of 6405 North Oak Trafficway in the Village of Oakwood. Immediately to its north is the south line of the City of Gladstone, Missouri, the city limits of which are also the west boundary of appellant’s tract (which is to the center-line of old U. S. Highway 169). In 1922, the appellant’s predecessors in interest conveyed a strip 30 feet wide to the State of Missouri, which apparently was the east half of the street, thereafter used as old U. S. Highway 169. In 1960, new U. S. Highway 169 was constructed about one mile west of North Oak and the State Highway Commission widened the paved portion of North Oak which resulted in the northbound lane being 12 feet wide. By letter of October 6, 1961, the State Highway Commission notified the Village of Oakwood of the completion of the contract for street widening and that it could proceed with such maintenance work as it deemed necessary at its convenience (calling attention to a previous letter of September 27, 1961, as to these same matters). The letter also recited: “The State Highway Commission at its meeting on October 3, 1961, took official action on the transfer of the maintenance responsibility on this roadway.”

Various mesne conveyances of the property adjoining the highway show that the easement of 30 feet for highway purposes was recognized, although its width was sometimes misdescribed as being 38 feet. A 1968 warranty deed to Broome and Con-kling, as joint tenants, showed a highway easement over the west 38 feet. Broome and Conkling, in a 1971 deed, revested title in themselves as tenants in common, again noting the easement on the west 38 feet.

About 1973, the City of Gladstone began to acquire right-of-way for widening North Oak Street, and, agreeing with the Village of Oakwood, sought to acquire 35.5 feet to the west of appellant’s property, 30 feet of which being included in the 1922 deed of easement. Appellant’s claimed compensation for the east 10 feet of the 1922 easement of 30 feet, this claim being in controversy, and the matter was submitted to arbitration. The arbitration award was limited to the 5.5 feet which respondents admit was never included in the 1922 easement, and for which appellant was awarded $18,250.00. Appellant then filed this declaratory judgment action seeking an adjudication that it was entitled to compensation for the east 10 feet of the original easement under its contract with respondents.

The northbound lane of North Oak is 12 feet wide. To its east is a shoulder 8 feet wide, and to the east of that is the strip 10 feet wide here in question. Appellant’s basic contention is that this latter strip was abandoned as an easement when the State Highway Commission relocated U. S. Highway 169 in 1961. In this ease, there was no agreement between the commission and the City and Village as to maintenance, as was the fact in Floreth v. State Highway Commission, 472 S.W.2d 614, 615 (Mo.1971). As to maintenance, however, Harley Hoar, a trustee for the Village, testified: There was no formal ordinance enacted for the acceptance of maintenance by the Village. The maintenance, after the repaving by the commission, was done by necessity. It consisted of rebuilding two culverts, grading the shoulders three times and patching pavement twice in the last 12 years. In return for the City’s not lifting their blade on snow removal while going through the Village, the latter does “three of their odd-ends.” To Mr. Hoar’s knowledge, the State has done no maintenance after the 1961 paving, “We were, we were told that if anything needed to be done it was our responsibility, so we have assumed that responsibility.” After 1961, the public has continued to use the roadway, and there has been increased traffic thereon.

In the Floreth case, supra, the commission, pursuant to the agreement, retained the roadway, with the proviso that if the Cape Fair Special Road District did not properly maintain it in an acceptable manner, the commission might terminate the maintenance agreement and abandon the right-of-way. The public had used the roadway, and the trial court found that public funds had been expended on it for 5 years prior to 1967. Appellants’ contention there was similar to that of appellant here: the use made of the disputed strip is not that of a state highway, which use has been made impossible by the relocation of the highway and thus the use designated in the easement. The court noted that it rejected a similar contention in Holekamp Lumber Co. v. State Highway Commission, 173 S.W.2d 938 (Mo.1943), holding that the relocation of the grade of Highway 30 did not cause an abandonment of the use designated in the easement conveyance, as the use being made of the land was still that of a highway [as here] saying, “We do not believe that a roadway loses its status as a state highway merely because it no longer is a through or main highway.” As held in Floreth, supra, page 617[1], the purpose of the easement is to permit a public roadway to be put on the land, and since that is what the land is being used for, the use is within the purpose of the grant.

Appellant argues that because the entire strip, including the 10 feet in dispute, was included in the conveyance under the arbitration agreement (which reserved for future determination appellant’s right to compensation), respondents acknowledged appellant’s capability to convey the land as being lawfully seized of the strip. Although not specifically presented, the argument seems to pose some kind of estoppel. Assuming, but not deciding, that estoppel would lie against respondent municipal entities, it seems clear that estoppel will not ordinarily lie against the grantee of a conveyance. See the discussion of this rule of law in White v. Wilks, 357 S.W.2d 908, 913[8-13] (Mo.1962); 31 C.J.S. Estoppel § 15 p. 302. Rosenbloom v. Grossman, 351 S.W.2d 735, 738 (Mo.1961), cited by appellant, had no such issue, but only that of the validity of the establishment of easements by agreement. Here, the respondents have relied merely upon the original grant of the easement, with continuity of use thereunder, to show their rights in the disputed strip. Contrarily, if there was any estoppel by reason of prior inconsistent conduct, it was against appellant by reason of its exclusion of the easement, as contained in the 1922 grant, in conveyances as late as 1971 as above set forth, thereby recognizing the existent easement without abandonment.

The trial court did not err in ruling that appellant had not sustained its burden of proof that it has some title in the property for which it is entitled to compensation.

The judgment is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    Louis J. WARREN, Ellen L. Warren, and Richard L. Chandler, Plaintiffs-Appellants, v. Robert S. DRAKE, Jr., Ted Roush, Ruth O. Roush, and Ted Roush, Jr., Defendants-Respondents.
    No. KCD 29226.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      John K. Weilert, J. D. Williamson, Jr., Independence, for plaintiffs-appellants.
    Mark T. Kempton, Sedalia, for defendants-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Judge.

The roots of the action from which this appeal arose run deep. In April of 1975 plaintiffs (appellants) filed suit to set aside a trustee’s sale of certain real property owned by them in Benton County ostensibly conducted under a power of sale conferred by a deed of trust. Defendants Ted and Ruth Roush (respondents), mortgagee-payees of a delinquent promissory note secured by the deed of trust on the real property and by a security agreement on certain personal property, filed an answer and a counterclaim and in the latter prayed for judicial foreclosure of the deed of trust and security, agreement, sale of the real and personal property, extinguishment of plaintiffs’ right of redemption, application of the proceeds of the judicial foreclosure sale in the order listed, and, in conclusion, for the amount of any deficiency that might remain owing to them after application and exhaustion of the proceeds of the sale.

Plaintiffs filed an answer to the counterclaim, and June 9,1975, was set as the trial date for the issues joined in plaintiffs’ petition and the counterclaim of defendants Ted and Ruth Roush. Plaintiffs failed to appear either in person or by counsel when the case was called on June 9, 1975. However, defendant Ted Roush appeared both in person and by counsel on said date, and the remaining defendants appeared by counsel. Defendants confessed judgment as to the relief prayed for by plaintiffs in their petition and then proceeded to offer evidence in support of their counterclaim, principally via the testimony of defendant Ted Roush. Prior to the introduction of any evidence in support of the counterclaim, counsel for defendants advised the court as follows: “The counterclaim, all we’re asking, that the deed of trust be foreclosed, and that the equity redemption be extinguished, and the Court order the trustee to sell it.” During the course of defendant Ted Roush’s testimony he was asked the following question to which he gave the following answer:

“Q And you’re asking the Court today for an Order directing the trustee to foreclose that and the security agreement and the deed of trust, and that the equity of redemption in the real and personal property be extinguished, and that the payment — that after the property is sold, the payment be first placed at costs and expenses of this action, and the same of the real estate, and the personal property, and then, next, the payment of the insurance, taxes, and the penalty, and the interest thereon; that — and third, that any balance be applied to the accrued interest and principal due on this note. Is that correct?
A That is correct.”

Defendant Ted Roush concluded his testimony at this point and the trial judge then made the following announcement in open court: “Judgment for defendants ordering foreclosure and extinguishment and right of redemption, as per entry filed.” Thereafter on June 9, 1975, according to the transcript, the following “entry” was made “upon the records of the Court in this cause”: “Defendants (sic) appear and consent that trustees sale be set aside and trustees deed ordered cancelled. Hearing held on Counterclaim. Judgment for defendants ordering foreclosure and extin-guishment of right of redemption as per entry filed.” Also on June 9,1975, a formal judgment was entered in favor of defendants Ted and Ruth Roush on their counterclaim. The decretal portion of the formal judgment “ordered, adjudged and decreed” foreclosure of the deed of trust and security agreement, sale of the real and personal property, extinguishment of plaintiffs’ right of redemption, and application of the proceeds of the judicial foreclosure sale in the order listed. It contained no provision for and no mention was made of any deficiency judgment. The decretal portion of the judgment was preceded by a rather lengthy recital of findings of fact, among them being that $36,600.00 unpaid principal, $3,726.54 interest and $1,275.33 advanced for taxes was due and owing to defendants Ted and Ruth Roush.

On August 14, 1975, an “Execution to Foreclose Mortgage” was issued to the Sheriff of Benton County, Missouri, and pursuant thereto the real property described in the deed of trust was sold at public auction. Defendants Ted and Ruth Roush, having bid $29,000.00, were the successful bidders for the real property and the real property was conveyed to them by a sheriff’s deed. It is unclear from the record as to the disposition made of the personal property covered by the security agreement. After the payment of all lawful expenses attendant the sheriff’s sale of the real property, there remained due and owing to defendants Ted and Ruth Roush the sum and amount of $12,896.87.

On February 24, 1976, a “General Execution” was issued to the Sheriff of Benton County, Missouri, and pursuant thereto he levied execution upon and seized a boat belonging to plaintiff Richard L. Chandler. The boat was not included or described in the list of property set forth in the security agreement. Consequently, plaintiff Richard L. Chandler filed a “Motion to Quash Execution and Levy” which was sustained by the trial court.

On October 21, 1976, defendants Ted and Ruth Roush filed an “Application For Amendment of Judgment Nunc Pro Tunc” which was passed upon and granted by the trial court on November 19,1976. So far as here pertinent, the decretal portion of the original judgment was amended to include a judgment in favor of defendants Ted and Ruth Roush for the amount of any deficiency that might remain owing to them after application and exhaustion of the proceeds of the sale of the collateral.

THe functional boundaries of nunc pro tunc orders are firmly established in this state. They lie to correct clerical omissions, mistakes or misprisions so as to make the record speak the truth by evidencing an act done or a judgment actually rendered at a prior time but not carried into or faithfully recorded in the record; they do not lie to correct judicial errors, mistakes or oversights, or to create a new record or to enter a judgment never made or one different from that actually rendered, albeit the judgment rendered was not the judgment the judge intended to make. Van Noy v. Huston, 448 S.W.2d 622, 625 (Mo.App.1969); Aronberg v. Aronberg, 316 S.W.2d 675, 681 (Mo.App.1958); Arkansas-Missouri Power Company v. Hamlin, 288 S.W.2d 14, 20 (Mo.App.1956); and Ackley v. Ackley, 257 S.W.2d 401, 403 (Mo.App.1953). The presumption is indulged that a judgment in fact entered is the judgment actually rendered and he who seeks to correct or modify it by a nunc pro tunc order carries the burden of proving by competent evidence that a different judgment was, in fact, rendered. Martin v. Martin, 534 S.W.2d 621, 626 (Mo.App.1976); and Van Noy v. Huston, supra. To meet this burden, thereby justifying correction of a judgment by a nunc pro tunc order, “the record must in some way show, either from the judge’s minutes, the clerk’s entries, or some paper in the cause, the facts authorizing such entries, and no such entries can be made from the memory of the judge, nor on parol proof derived from other sources.” Martin v. Martin, supra, at 626.

Plaintiffs (appellants) submit that the nunc pro tunc order entered by the trial court on November 19, 1976, amending the judgment entered on June 9, 1975, by adding a decretal provision awarding defendants Ted and Ruth Roush a personal judgment against plaintiffs for any deficiency remaining after application and exhaustion of the proceeds of the judicial foreclosure sales of the real and personal property, constituted the entry of a judgment that was never made and one which was different from that actually rendered. To counter plaintiffs’ position, defendants Ted and Ruth Roush rely upon (1) the'inclusion of a prayer for a deficiency judgment in their counterclaim, (2) specific mention in the recital provisions of the formal judgment entered June 9, 1975, that $36,600.00 unpaid principal, $3,726.54 interest and $1,275.33 advanced for taxes was due and owing to them, (3) entry of the aforementioned amounts in the “Judgment Docket of Benton County, Missouri,” and (4) mention made in the minute entry of June 9,1975, in the trial judge’s docket book that “[¡judgment for defendants ordering foreclosure and extinguishment and right of redemption” was “as per entry filed ”. (Emphasis added.)

The four matters alluded to by defendants Ted and Ruth Roush as documenting that the judgment entered (omitting a deficiency judgment) was not in fact the judgment rendered (including a deficiency judgment) are singularly and collectively misplaced and the trial court improperly relied upon them as record indicia that the judgment rendered on June 9, 1975, included an award for a deficiency judgment.

The presence of a request for a deficiency judgment in the prayer of the counterclaim is of no persuasional moment whatsoever because defendants Ted and Ruth Roush for all practical purposes, by means of a positive statement made by their counsel in open court and the unequivocal testimony of Ted Roush, their principal witness; abandoned their prayer for a deficiency judgment and the trial court obviously acquiesced in their doing so because the judgment which was rendered, as reflected by both the minute entry and the decretal portion of the formal judgment entered, completely omitted any mention or reference to a deficiency judgment.

Specific mention in the recital portion of the June 9, 1975, formal judgment that $36,600.00 unpaid principal, $3,726.54 interest and $1,275.33 advanced for taxes was due and owing to defendants Ted and Ruth Roush fails to aid them for a number of reasons. A judgment does not reside in its recitals, but in its mandatory or decretal provisions and any inconsistency between the two gives way to the latter. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (banc 1952); Page v. Page, 516 S.W.2d 537 (Mo.App.1974); and State ex rel. Lodwick v. Cottey, 497 S.W.2d 873 (Mo.App.1973). Moreover, recital of the various amounts due and owing defendants Ted and Ruth Roush, under all the circumstances disclosed by the record, was obviously done for the purpose of affording a basis for allocation of the proceeds of the judicial foreclosure sale.

Defendants’ contention that entry of the various amounts mentioned above in the “Judgment Docket of Benton County, Missouri”, constitutes record evidence of unimpeachable reliability to support the nunc pro tune order of November 19, 1976, is untenable. No such judgment docket entry is contained in the transcript on appeal. The only reference to a judgment docket entry in the transcript on appeal is found in all allegations contained in defendants’ unverified “Application For Amendment of Judgment Nunc Pro Tunc”. It is axiomatic that appellate review cannot reach matters never offered in evidence nor included in the transcript on appeal. When this gap exists, it cannot be closed by unsupported assertions in pleadings and briefs. Davis v. Long, 521 S.W.2d 7, 9 (Mo.App.1975).

According to defendants Ted and Ruth Roush, their final ally in support of the controversial nunc pro tunc order are the words, “as per entry filed”, found in the minute entry made by the trial judge in his docket book on June 9, 1975. These words, “as per entry filed”, completed the following sentence: “Judgment for defendants ordering foreclosure and extinguishment of right of redemption as per entry filed.” Limiting all reference therein to a judgment in favor of defendants for “foreclosure” and “extinguishment of right of redemption” comported with defendants’ abandonment of their prayer for a deficiency judgment and was consistent with the remaining relief prayed for in defendants’ counterclaim. Likewise, construing the words, “as per entry filed”, as having reference solely to “foreclosure” and “extin-guishment of right of redemption” comports with defendants’ abandonment of their prayer for a deficiency judgment and is consistent with the remaining relief prayed for in defendants’ counterclaim.

In spite of defendants’ spirited adjurations to the contrary, the record in this case was wholly bereft of any competent evidence upon which to predicate the nunc pro tunc order drastically changing the original judgment rendered in this case. The record in this case, viewed in its entirety, militates in favor of plaintiffs and against defendants and convincingly demonstrates that the nunc pro tunc order sought by defendants and entered by the trial court was tantamount to a judgment never made and a judgment different from that originally rendered. Stripped of all rhetorical pretentiousness, defendants did not continue to seek and the trial court did not originally render a deficiency judgment.

The order of the trial court of November 19, 1976, purporting to amend the June 9, 1975, judgment nunc pro tunc is hereby reversed and the cause is remanded with directions to reinstate the original judgment entered.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Hesilee FOSTER, Jr., Appellant.
    No. KCD 29243.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Leonard S. Hughes, III, Kansas City, for appellant.
    Ralph L. Martin, Pros. Atty., Robert D. Lewis and Robert Frager, Asst. Pros. At-tys., Kansas City, for respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by the court of a misdemeanor, possession of “a quantity of marijuana, a Schedule I controlled substance.” In question is the court’s denial of defendant’s motion to suppress evidence. Affirmed.

The evidence on both the motion to suppress and the case in chief was stipulated:

“ * * * On May 14, 1976, there was a robbery in the 3000 block of Euclid at approximately 2:40 in the afternoon by two suspects. * * * Kansas City, Missouri police officers, James Standridge and Robert Watts arrived at the 3000 block of Euclid and were contacted by police officer R. Breedlove, who informed officers Stan-dridge and Watts that the robbery suspects had run into the residence at 3009 Euclid. * * * Officers Watts and Standridge entered the residence at 3009 Euclid and contacted Officer Clifford who was speaking to Billy Buford, a robbery suspect whom Officer Clifford had found hiding in a second floor closet of the residence. * * * [Defendant gave no consent to enter premises and no waiver of search was signed.
“ * * * Officer Standridge then entered a second floor bedroom and found William Smith, another robbery suspect hiding in a closet. Officer Standridge then placed Smith under arrest on the charge of robbery. Officer Standridge, Officer Watts and Officer Clifford then began a search of the remainder of the second floor of the house for further suspects. During this search, Officer Standridge was contacted by the defendant, HESILEE L. FOSTER, JR., who told Officer Standridge that the residence belonged to him. When a revolver was found in one of the bedrooms, the defendant HESILEE L. FOSTER, JR., stated that the gun was his; that he kept it for self-protection, and that the only matters he knew about were the revolver and a ‘little weed.’ After Officer Standridge had spoken to defendant Foster the officers observed a closet padlocked from the outside and was located inside a bedroom on the second floor. At that time, Officer Stan-dridge asked Hesilee L. Foster, Jr., to open the door to the closet they just discovered. At that time Hesilee L. Foster, Jr., produced the keys to the door and opened it allowing the officers to. observe the contents of the closet. Upon looking into the closet, Officer Standridge observed a brown paper bag containing five (5) plastic bags which contained a green leafy substance. In addition he observed a green cloth bag containing a .32 caliber five-shot revolver and four (4) bottles of Robitussin cough syrup. Upon finding the green leafy substance, Officer Standridge placed defendant under arrest for possession of narcotics.
“ * * * the two robbery suspects in question were found in a second-floor bedroom that was located other than the one where the contraband was located. * * * The defendant stated that the bedroom where the contraband was found was his. * * * the contraband was marijuana, a Schedule I controlled substance, weighing in excess of 35 grams. * * * [The] premises were not in fact owned by Mr. Foster; that Mr. Foster, in fact, owns and resides at premises at 4203 Agnes, Kansas City, Missouri. * * * Mr. Foster was placed under arrest after discovery of contraband subsequent to search as described above.”

Appellant does not question the sufficiency of the evidence to sustain his conviction; and he concedes the initial entry of 3009 Euclid was permissible under Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). To escape the application of that authority, he asserts the search of the closet was beyond the permissible scope of a search incident to an arrest, cites Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and argues that the two robbery suspects already had been arrested in areas other than that which contained the marijuana. See also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 8889, 20 L.Ed.2d 917 (1968); Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Warden v. Hayden, supra, recognizes that exigent circumstances may exist in which “[t]he Fourth Amendment does not require police officers to delay in the-course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape. * * * The permissible scope of search must, therefore, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape.” 387 U.S. l. c. 298, 87 S.Ct. l. c. 1646.

The similarity of the facts and circumstances in Warden v. Hayden, supra, demonstrates that the exigent circumstances in Foster’s case meet the test of Warden v. Hayden and that the search and seizure of the marijuana were reasonable and lawful. In Warden v. Hayden, a robbery occurred in Baltimore, Maryland, and a witness saw the suspect enter a house at 2111 Cocoa Lane. Police arrived within minutes and, after receiving the information that the suspect had fled into the house, proceeded to search the house. One officer found Hayden in an upstairs bedroom; another found clothing of the type worn by the suspect in a washing machine in the basement. The clothing was not suppressed.

Judgment affirmed.

All concur.


text:
    Clyde W. SWEARINGIN, Plaintiff-Respondent, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellant.
    No. KCD 29314.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    R. Max Humphreys, Miller, Humphreys & Seidel, Trenton, for defendant-appellant.
    Erwin L. Milne, Terry M. Evans, Stock-ard, Andereck, Hauck, Sharp & Evans, Trenton, for plaintiff-respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge, Presiding.

Action to recover on transit insurance policy for damages occasioned by loss of livestock. Jury returned verdict for plaintiff for $1,185.41 plus interest under policy plus $118.54 penalty and $1,680 attorneys’ fees for vexatious delay. Insurer appeals.

In June, 1940, Clyde W. Swearingin obtained a policy of insurance from the Hartford Fire Insurance Company against loss arising out of injury or death to livestock being transported to the Kansas City Stockyards for sale there. The premium on the policy was paid on the basis of each covered shipment. When livestock was delivered to the stockyard, an unloading ticket was prepared by or for the truck operator, showing the date of the receipt of the shipment, the owner’s name, the number and type of livestock involved and the name and address of the trucker. The form included, under the heading “Insurance”: “This shipment insured by-” The tickets were filled out in quadruplicate. One copy was kept by the trucker. The original (white) copy stayed with the livestock. Two copies (yellow and pink) went to the stockyards company. All of the yellow tickets were put in a box and several times each day representatives of Hartford and two other companies issuing similar insurance would go through the box and obtain the tickets showing that the shipments were insured by their company.

In the case of Hartford, the yellow tickets showing Hartford as the insurer were taken to Hartford’s office at the stockyards where the premium due Hartford for coverage of the shipment was noted on the ticket. The yellow copy was then transmitted to the commission company handling the transaction. The commission company deducted that charge, along with others, from the proceeds of the sale and remitted the amount of the insurance premium to the insurer. Each month the Kansas City Hartford office sent the Hartford office in Chicago a Truck Premium Advice Slip, showing the amount of premium charged each month for each policy issued by it.

The Kansas City Hartford office also maintained premium posting cards for each policy. The cards showed the premium received each month and also recorded losses paid under the policy.

At the time this controversy arose, the Hartford policy No. 15472, issued to Clyde Swearingin, could not be found. Hartford did not have a copy of the policy.

Swearingin was a farmer and livestock raiser near Carrollton. Hartford’s premium posting cards, beginning in 1951 for Swear-ingin’s policy, showed numerous premiums charged for shipments under the policy from that time until November, 1973.

Swearingin had three sons, one of whom was Clyde W. Swearingin, Jr. Beginning around 1960, the boys got into their own farming and livestock operation under the name Swearingin Brothers. According to Clyde, Jr., from that time numerous shipments were made to the Kansas City stockyards by them of livestock on which unloading tickets were prepared by him showing Swearingin Brothers as owner and trucker and Hartford as insurer. In all of those instances, the insurance premium was deducted although no policy had ever been issued to other than his father, Clyde W. Swearingin.

Clyde W. Swearingin died May 5, 1969. Hartford was not notified of his death. Between that date and November 15, 1973, nine shipments of livestock were made by Swearingin Brothers under unloading tickets showing Swearingin Brothers as owners and truckers of the livestock and Hartford as the insurer. In each case, the unloading ticket went to Hartford, the amount of insurance was noted and the commission man deducted that amount from the proceeds of the sale and remitted it to Hartford. The total premium on the nine transactions was $100.21.

On August 13, 1975, Clyde Swearingin, Jr., hauled a shipment of hogs owned by Marvin Miller of Carrollton to the Kansas City stockyards. Upon arrival there it was found that seven of the animals had suffocated en route. According to Clyde, Jr., he, not Swearingin Brothers, was the trucker on the shipment and was so shown on the unloading ticket.

Clyde went to the Hartford office at the stockyards to report the loss. He spoke to Don Huebner, the Hartford local manager, who prepared a report of the claim. According to Huebner, when he asked Clyde who the insured was, Clyde stated: “My father, Clyde W. Swearingin.” Huebner’s report showed Clyde W. Swearingin as the insured and also stated that claim was reported by “insured.” Clyde stated that he did not mention his father to Huebner and that he told Huebner that he was the trucker.

The shipment was handled as usual by Hartford who notified the commission man of the premium which was deducted from the amount due Miller, the owner.

On August 26, 1975, Hartford notified Swearingin of the denial of his claim. The amount of the premium was refunded to Miller. It may be inferred that the denial was on the grounds that Hartford had issued no policy of insurance covering Clyde W. Swearingin, Jr. Hartford also subsequently returned to Swearingin Brothers the $100.21 paid by them as premiums after the death of their father. The check was neither cashed nor returned to Hartford.

Swearingin brought suit, alleging that Hartford had sold to him a policy of liability insurance in effect at the time of the loss. Hartford made a general denial of the allegations of the petition and also specifically alleged that it had no policy of insurance or contract with plaintiff.

Evidence at the trial established the facts above set forth. Swearingin testified that the market value of the hogs lost was $1,185.41. He also testified that he had reimbursed Miller by giving him a note for that amount. The case was submitted under plaintiff’s verdict-directing instruction which predicated a finding in favor of plaintiff if “defendant agreed by the acceptance of premiums to provide insurance to plaintiff” covering the loss.

The jury returned a verdict in favor of plaintiff for $1,185.41 “Recovery under the agreement,” $131.00 “Recovery for interest,” $118.54 “Recovery for penalty” and $1,680 “Recovery for attorney fees.” After its motion for new trial had been overruled, Hartford appealed.

In this court, appellant contends that the trial court erred in overruling its motion for directed verdict because the evidence failed to prove a contract between appellant and the respondent. There is no doubt that respondent failed to prove the contract which he pleaded, i. e., a policy of insurance sold to respondent by appellant. The evidence was that the only policy issued had been issued to appellant’s father and there was no evidence of any substitution of respondent as the insured under the policy. “When one contract is pleaded and another proved it amounts to a total failure of proof as to the contract relied upon and defeats recovery. Ringer v. Holtzclaw, 112 Mo. 519, 20 S.W. 800 [1892]; Cook v. Harrington, Mo.App., 54 S.W.2d 436 [1932]; Hoffman v. Mastin, Mo.App., 119 S.W.2d 1027 [1938].” Heard v. Stahl, 271 S.W.2d 68, 70[3] (Mo.App.1954). See Wolfskill v. American Union Life Ins. Co., 237 Mo.App. 1142, 172 S.W.2d 471, 473[2] (1943); cert. quashed, State ex rel. Wolfskill v. Shain, 178 S.W.2d 446 (Mo.1944).

In this case, the appellant cannot be said to have assented to trial on the contract as submitted under respondent’s verdict-directing instruction. Appellant’s motion for directed verdict was based upon failure of proof of the contract alleged. The verdict-directing instruction is claimed to have been erroneous because unsupported by the pleadings. In such situation, Rule 55.33(b) is of no assistance to the respondent.

In this court, respondent does not answer the contention that he failed to prove the contract alleged in his petition. He responds to appellant’s contention that the trial court should have sustained appellant’s motion for directed verdict by stating that appellant is estopped from denying that respondent was an insured under his father’s policy. However, the respondent did not plead a claim based upon estoppel nor did he submit his case to the jury on such basis. In any event, the only estoppel warranted from the evidence would have operated in favor of Swearingin Brothers, based upon the prior dealings between respondent and Swearingin Brothers. Respondent testified quite unequivocally that he was the trucker in this case and that Swearingin Brothers was not involved. Therefore, reliance upon estoppel cannot sustain respondent’s claim.

Insofar as the submitted theory of a contract of insurance based upon acceptance of a premium is concerned, there is no question that a contract of insurance may be enforceable, although it is not in writing. Morris v. Reed, 510 S.W.2d 234, 239[6] (Mo.App.1974). However, certain factors must have been agreed upon: “First, the subject-matter; second, the risk insured against; third, the amount; fourth, the duration of the risk; and fifth, the premium. It is not essential that all of these elements of the contract be expressly agreed upon if the intention of the parties to the contract in these particulars can be gathered from the circumstances of the case.” Chailland v. M.F.A. Mutual Ins. Co., 375 S.W.2d 78, 81[2] (Mo. banc 1964). In this case there was evidence that transit insurance extended “coverage for the hauling of livestock from a point of origin to the Kansas City Stockyards * * * that the policy covered the driver of the vehicle rather than the vehicle; the premium and the method of payment. However, there was no evidence as to whether the insurance was to have been a liability or indemnity policy. See 44 Am.Jur.2d, Insurance, § 1415, p. 265 (1969). Nor was there any evidence as to the amount of coverage.

The trial court should have sustained appellant’s motion for a directed verdict. Inasmuch as respondent failed to produce evidence entitling him to recover on the theory of his submission in the trial court and the theory advanced in this court to likewise afford no basis for relief, there is no cause to remand for retrial on either such theory.

Judgment reversed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Odell SCOTT, Appellant.
    No. KCD 29371.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Clifford A. Cohen, Public Defender, Kevin Locke, Asst. Public Defender, Kansas City, for appellant.
    Ralph L. Martin, Pros. Atty. for Jackson County, Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was tried to the court, convicted of common assault (Sec. 559.220, RSMo 1969), and sentenced to three months confinement in the Jackson County Department of Corrections.

Defendant has not challenged the sufficiency of the evidence. Briefly, defendant entered the victim’s home on the afternoon of May 5, 1976, under the guise of selling “life insurance”. After gaining entry he pushed the victim, a fourteen year old female, into the bathroom for the ostensible purpose of “checking her over” for insurance. Once inside the bathroom, defendant assaulted the victim by pushing her to the floor and attempting to remove her pants.

Prior to trial defendant and the state executed an instrument in writing whereby defendant agreed to submit to a polygraph examination. The parties stipulated therein that the results of the polygraph examination, in the form of an opinion by the polygraphist, could be offered into evidence by either party without objection from the other so long as the results were not indefinite or inconclusive. The parties further stipulated that if the results of the polygraph examination were offered in evidence the opposing party was to have the right to cross-examine the polygraphist as to his qualifications, the manner in> which he conducted the examination, the relevant questions asked the defendant and his opinion as to the defendant’s truthfulness to each of the relevant questions. Although defendant’s polygraph charts and the polygra-phist’s worksheets were not to be introduced into evidence, the parties agreed that the polygraphist could be questioned as to polygraph techniques and the possibility of error.

A polygraph examination of defendant was conducted by polygraphist Ray Crawford with conclusive adverse results so far as defendant was concerned. Crawford, called as a witness by the state, testified on oral examination that defendant, in his opinion, was untruthful when he denied having assaulted the victim. Defense counsel on cross-examination sought to inquire of Crawford as to the “rationale” behind the general rule of evidence obtaining in this state that the results of polygraph examinations are inadmissible as evidence. Defendant’s sole point on appeal is that the trial court erred in refusing to permit defense counsel to pursue this line of inquiry on cross-examination.

Defendant seeks to legitimize the prohibited course of cross-examination on the theory that it was “calculated” to test the “reliability” of the polygraph examination administered to defendant. Absent the written stipulation entered into between defendant and the state, the results of the polygraph examination administered to the defendant would have been inadmissible as evidence because they lacked scientific support for their reliability. State v. Weindorf, 361 S.W.2d 806, 811 (Mo.1962); State v. Cole, Mo., 188 S.W.2d 43, 51, motion den. 354 Mo. 181, 189 S.W.2d 541 (1945); and State v. Jacks, 525 S.W.2d 431, 435 (Mo.App.1975). However, the written stipulation entered into between the parties gave the polygraph examination administered to defendant a legal aura of reliability, thereby infusing the conclusive results obtained with probative value. As previously noted by this court in State v. Mick, 546 S.W.2d 508, 509 (Mo.App.1976), “[hjowever anomalous it may be, the parties, by stipulation, may waive objections to the admission of polygraph examinations and their results, and in that sense imbue them with reliability and probative value. State v. Fields, 434 S.W.2d 507 (Mo.1968).” It is obvious that defense counsel’s prohibited course of cross-examination sought to strip the results of the polygraph examination administered to defendant of all “reliability” and probative value, notwithstanding defendant’s written stipulation to the contrary. To have permitted defense counsel to pursue the objectionable line of inquiry on cross-examination would, for all practical purposes, have permitted defendant to renege on the agreement he made with the state simply because the matters he solemnly committed himself to turned out to be to his detriment. If the shoe had been on the other foot, it is reasonable to assume that defendant would have vociferously objected, and properly so, to a similar line of inquiry by the state on cross-examination.

Judgment affirmed.

All concur.


text:
    Stevens Edward SNOW, Plaintiff-Appellant, v. Michael FIKES, Toyota Motor Co., Ltd., Toyota Motor Sales, U. S. A., Inc., and Toyota Motor Distributors, Inc., Defendants-Respondents.
    No. KCD 29387.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Sloan R. Wilson, McMullin, Wilson & Schwarz, Kansas City, for plaintiff-appellant.
    J. D. James, Larry J. Tyrl, James, Ode-gard & Millert, Kansas City, for defendants-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Plaintiff appeals a jury verdict in favor of the defendants in a tort action. The theory of plaintiff’s claim against Toyota was that a radio antenna was defective in design; and, as against the individual defendant, the claim was based on negligence. Because this appeal must be dismissed for failure to comply with the rules, no further statement of facts is required.

Plaintiff was late in filing the transcript, and the appeal was dismissed. Pursuant to the plaintiff’s motion, the appeal was reinstated and, after three successive continuances of the due date for filing of the transcript, a transcript was finally filed out of time and beyond the final due date for filing.

Because this action is to be dismissed for violation of the rules, the two points on appeal are set out in full.

“POINT I
Where a Missouri approved verdict directing instruction is inadequate or unclear, and a jury is confused thereby, and is in need of enlightment, and so indicates by a written message to the court, it is error for the trial court to refuse to properly enlighten the jury, either orally or in writing, and to tell the jury only to be guided by instructions already given.
POINT II
The court erred in failing and refusing to let expert witness Forman testify as to how the manufacturer and designer could have made the product (exhibit 1) reasonably safe.”

Explanatory of the first point of error, an examination of the transcript reveals that this point is directed to the instruction given by the plaintiff in this case, although the instruction is not set out in the plaintiff’s brief as required by Rule 84.04(e). Plaintiff’s first point, in any event, is nothing more than an abstract statement of the law and does not state what actions or rulings of the court are sought to be reviewed. Middleton v. Meramec Mining Co., 545 S.W.2d 679 (Mo.App.1976). Examination of the motion for a new trial filed in this case reveals no comparable claim of error. What actually occurred is that the jury inquired as to the meaning of “defective” in MAI 25.04. The trial court, in writing, instructed the jury to be guided by all the instructions. About 45 minutes later, while the jury was still deliberating, plaintiff offered a definitional instruction which the court refused to give. Such contentions and disputes regarding instructions are not reviewable when the instructions are not set forth in the brief. Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87 (Mo.App.1972).

Plaintiff’s second point also fails to comply with Rule 84.04(d) because it fails to explain wherein and why the court erred. Merely stating what an alleged error is without an explanation of why the trial court’s actions were erroneous neither satisfies Rule 84.04(d) nor preserves anything for review. Powers v. Powers, 544 S.W.2d 339 (Mo.App.1976). By resort to defendants’ brief and aided in no respect by the brief of plaintiff, it is apparent that the refused testimony would not have been material or relevant to the issue of improper design which was the sole theory of liability against Toyota. The witness had already testified without objection that the antenna was improperly designed and dangerous and further had testified that it could have been made safe by proper design. It was only with respect to the manner of modifying the design that the objection was sustained.

Defendants also point out the statement of facts of plaintiff is in violation of Rule 84.04(c). Even a cursory examination of plaintiff’s brief indicates that the statement of facts is neither fair, concise, nor relevant to the issues raised.

Because of the repeated and critical violations of the rules governing briefing of causes on appeal, the respondents’ request to dismiss the appeal must be sustained.

Appeal dismissed.

All concur.