text:
    STATE of Missouri, Respondent, v. Richard Louis LARABEE, Appellant.
    Nos. KCD 29267 and KCD 29318.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    William J. Roberts, Clinton, for appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.

      Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Appellant was convicted by the verdict of a jury of burglary and attempted stealing. Thereafter, the state entered a nolle prose-qui as to the attempted stealing. Upon a finding that appellant was a second offender, the court sentenced him to 10 years imprisonment in the Department of Corrections upon the conviction of burglary alone.

The submissibility of the evidence to support the conviction for burglary is not directly questioned. That evidence was such that the jury could reasonably find the completed crime of burglary of the building of Cole Camp, Missouri, Producers Exchange. Its’ manager locked the building at about 5:00 p.m. the evening before the occurrence. At about 5:00 a.m. on November 18, 1975, Cole Camp’s deputy marshal, Doty, observed someone within the Exchange, and on further investigation discovered appellant crawling out of its door on his hands and knees, and arrested him. The door facing was splintered and all the other doors were locked. Doty found two large screwdrivers, a nail bar and several plastic bags at the corner of a bench to the east of the door at the front of the store.

Appellant’s first point is that the trial court erred in refusing to grant a motion for judgment of acquittal because the first amended information improperly joined the offenses of burglary and attempted stealing. The amended information did join the charged burglary with the attempt in these words: “[Appellant] did then and there fe-loniously and burglariously attempt to steal, take and carry away: cigarettes, the personal property of Cole Camp Producers Exchange, a Missouri non-profit and marketing association, with the felonious intent then and there to deprive the owner of the use thereof and to convert the same to his own use. * * *.” § 560.110 1, RSMo 1969, provides that “If any person in committing burglary shall also commit a crime of stealing, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, * * *.” That statute says nothing about the joinder of a charge of attempted stealing with one of burglary. The charge of attempted stealing is a distinct felony not authorized by statute to be joined, and it is doubtful that Rule 24.04 authorizes the joinder as being based “on the same act or on two or more acts which are part of the same transaction * * In any event, however, appellant made no objection in the trial court in the form of a motion to quash or to elect or request jury instructions. See the discussion in State v. Terry, 325 S.W.2d 1, 4[3-5], et seq. (Mo.1959), as to the necessity of such a motion, or at least to assign the matter of error in joinder of offenses in the motion for new trial as was done in the there cited and quoted case of State v. Preslar, 316 Mo. 144, 290 S.W. 142 (1926). See also State v. Frankum, 425 S.W.2d 183 (Mo.1968); and State v. Serna, 526 S.W.2d 66, 67[2] (Mo.App.1975), holding that the failure so to move is a waiver of the right to present the alleged error on appeal. The motion for new trial here asserts merely that the court erred in overruling appellant’s motion for judgment of acquittal because (§ 560.110) “does not permit the prosecution of a defendant simultaneously for the offenses of burglary and attempted stealing as was done by the state in its amended information * * That motion, being for a judgment of acquittal, does not present a question of improper joinder of offenses.

But what is curative of any error in joining the charge of burglary with the charge of attempted stealing (regardless of whether preserved for purposes of review), is that after the verdict, the state entered its nolle prosequi of the charge of attempted stealing. Appellant was sentenced only upon the burglary charge, the conviction for which is abundantly supported by the record. This rendered the improper joinder nonprejudicial. State v. Turner, 458 S.W.2d 280, 281[3] (Mo.1970).

Appellant attacks various instructions. There were no objections to instructions in the motion for new trial as required by Rule 20.03, and none were made at trial prior to the time instructions were given. Consideration of the instructions by this court are therefore waived. State v. Jackson, 536 S.W.2d 917, 919[3] (Mo.App.1976).

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James Lee POOLE, a/k/a Lee James Poole, Appellant.
    No. KCD 29280.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Clifford A. Cohen, Kevin R. Locke, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

James Poole was convicted of driving a motor vehicle without the consent of the owner. § 560.175, RSMo 1969. The court sentenced him under the Second Offender Act to five years confinement.

On this appeal Poole contends the evidence was insufficient to prove the automobile he was driving was the property of the owner as alleged by the State. Reversed and remanded.

On this appeal all substantial evidence which tends to support the verdict must be considered as true and every legitimate inference favorable to the verdict must be indulged. State v. Thompson, 428 S.W.2d 742, 744 (Mo.1968).

The jury could reasonably have found that a 1966 4-door maroon Malibu was taken from Jude’s used car lot sometime during the night of September 18 or early morning of September 19, 1976. The president of the car agency produced a title to this automobile which had listed thereon its identification number. No evidence was elicited from this witness concerning the automobile Poole was found to be driving.

Officer Davis of the Kansas City Police Department stated he observed Poole driving a 1966 Malibu on September 20. The car did not have a license plate. When Officer Davis transmitted the identification number on this ear to the police department he was informed the car was reported as having been stolen. No information was given by Officer Davis as to the name of the owner from whom the ear was stolen. Neither did Officer Davis testify as to the color of the automobile Poole was driving or to the number of doors.

The officer who responded to assist Officer Davis testified a Chevrolet Chevelle was the automobile stopped and guessed it was a ’68 to ’70 model.

The identification number observed by Officer Davis on the automobile Poole was driving was not stated in evidence. No further evidence was introduced concerning the description or identification of the automobile Poole was driving.

Poole was charged with having driven an automobile belonging to Jude’s Used Cars and the instruction given to the jury required a finding that Poole was driving a 1966 Chevrolet Malibu owned by Jude’s Used Cars. The long established rule concerning the proof of a crime by circumstantial evidence is set forth in Thompson at page 743. In Thompson the court held the fact the accused had items in his possession “exactly like” those stolen from a residence was not sufficient to show those items were in fact the same items which were stolen. Here Poole challenges the sufficiency of the evidence to prove the automobile he was driving was the same automobile stolen from Jude’s Used Cars. In this case there is not even the evidence that the automobile Poole was driving was exactly like the one stolen.

The owner of Jude’s did not testify concerning the automobile Poole was seen driving. The officer did not give the color or identification number of the automobile being driven so that it could be ascertained with any degree or certainty the two automobiles were in fact the same. The most that can be said in this case is that a 1966 Malibu was stolen from Jude’s and Poole was found to be driving a stolen but otherwise unidentified 1966 Malibu. However, there is no bridge by which the State connected the automobile stolen from Jude’s with that driven by Poole. Under the facts shown it would be pure surmise and speculation to say the two cars were the same. A verdict based on speculation cannot stand. Thompson at 744.

The State failed to prove the essential fact as to the ownership of the automobile. However, it appears the State may be able to adduce the evidence necessary to prove the automobile driven by Poole was that stolen from Jude’s. For that reason the judgment will not be reversed outright. The judgment is reversed and the cause remanded for a new trial. State v. Wade, 531 S.W.2d 726, 730[4] (Mo.banc 1976).

All concur.


author: PER CURIAM:

text:
    Mina M. SLAVENS, Respondent, v. WILLIAM C. HAAS COMPANY, INC., a corporation, and William C. Haas, d/b/a William C. Haas Company, Appellants.
    No. KCD 29348.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Charles C. Shafer, Jr., Kansas City, for appellants.
    Douglas N. Merritt, Kansas City, for respondent.
    Before SHANGLER, P. J., SOMER-VILLE, J., and MASON, Special Judge.
   PER CURIAM:

Our review of this court tried case is as controlled by Rule 73.01, V.A.M.R., and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We are to affirm the judgment unless there is no substantial evidence to support it or it is against the weight of the evidence or it erroneously declares or applies the law, McGee v. St. Francois County Savings and Loan Association, 559 S.W.2d 184 (Mo. banc 1977).

We will set forth the evidence most favorable to the judgment which focuses on the three allegations of error urged by appellants which are that the respondent (1) did not request her delinquent wages from her “foreman or keeper of time” as required by Section 290.110; (2) that plaintiff was not employed at a definite wage so as to come under the protection of that statutory section; and (3) plaintiff did not prove which of the named defendants was her employer. As appellant relies most heavily on the last point,' we will discuss them in inverse order.

The named defendants are William C. Haas Company, Inc., a corporation, and William C. Haas, d/b/a William C. Haas Company. Neither defendant filed an answer or attacked the petition. Both appeared in court by their single attorney and defended. Respondent testified she began her employment with W. C. Haas Company Realtors in February or March, 1975, as a cleaning lady at the Hidden Valley Apartments located in southern Jackson County. She also offered, without objections, photocopies of two of her paychecks which were written on the account of The William C. Haas Company Realtors. Photocopies of her 1975 Wage and Tax Statement declared the employer to be Hidden Valley Associates c/o The William C. Haas Co. The 1976 Wage and Tax Statement declared the employer to be William C. Haas & Co., Inc. The legal structure, if any, of these similar names was not shown, except as may be inferred from those names. Called as respondent’s witness, Robert W. Haas, on cross examination, established that the true employer was William C. Haas Realty Management, a Missouri corporation. He explained The William C. Haas Company Realtors was merely a fiduciary holding trust funds for the owners of the apartment complex. No motion was made to conform the pleadings to the evidence, Rule 55.33, V.A. M.R., nor was any objection voiced to the reception of this evidence. That rule mandates that the pleadings are deemed amended to conform to the admitted evidence though no motion to amend be made, Condos v. Associated Transports, Inc., 453 S.W.2d 682[11] (Mo.App.1970), and cases there cited. Such amendment can be made in this court, Rule 74.31, V.A.M.R.; Condos, supra.

In Green v. Strother, 201 Mo.App. 418, 212 S.W. 399 (1919), quoting from Parry v. Woodson, 33 Mo. 347, 348 (1863), it is stated:

“A name is a means of identity; but the change of the name or the application of a wrong name does not change the thing identified. It is not the name that is sued, but the person to whom it is applied. Process served on a man by a wrong name is as really served on him as if it had been served on him by his right name, and if in such case he fail to appear, or, appearing, fail to object that he is sued by the wrong name, and judgment be rendered against him by such name, he is as much bound by the judgment as if it had been rendered against him by his right name. The use of the right name is every way preferable, since without it as a means of identification the evidence of the identity of the person sued may in process of time become lost; and hence the propriety of the amendment in this case; but so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant had been sued by his right name.”

In Brassfield v. Quincy, O. & K.C.R. Co., 109 Mo.App. 710, 83 S.W. 1032 (1904); and State ex rel. Ziegenhein v. Barr, 143 Mo. 209, 44 S.W. 1045 (1898), the defendant was sued in an incorrect name and the judgment was affirmed with the identities of the defendants corrected. Rule 74.30 provides, in part, that a judgment will not be reversed, impaired or in any way affected by reason of any mistake in the name of any party. In this case judgment was rendered against both named defendants. The evidence is clear that respondent was employed by one of the entities maintained to manage the apartment complex. That entity was identified by Mr. Haas as William C. Haas Realty Management, a Missouri corporation. It is without dispute in the evidence, and, in fact, admitted, that respondent is entitled to $127.50. The only defense offered was that respondent should be paid by the successor management company. This defense is totally without merit as respondent is seeking compensation for services rendered during the pay period ending January 31, 1976, the date the management contract of William C. Haas Realty Management was terminated. That legal entity is, therefore, obligated to pay that compensation. Appellants’ third point is overruled.

Ms. Slavens was paid on the basis of $15.00 for a complete cleaning of an apartment unit and $7.50 for a partial cleaning. She was paid on the 15th and the last day of each month and, admittedly, her earnings varied each pay period depending upon how many apartment units she cleaned and whether she did a complete or partial cleaning job. Her pay check for the period ending December 31,1975, after deductions for income and F.I.C.A. taxes, was $107.75. Her net income for the preceding pay period ending December 15, 1975, was $163.27. From the 1976 Wage and Tax Statement we glean that her net income for the pay period ending January 15, 1976, was $110.44. By a work order dated January 15,1976, signed by Joan Bruce, Ms. Slavens’ immediate supervisor, respondent was directed to fully clean eight apartments and to partially clean one apartment unit for a gross compensation of $127.50. Not being paid this amount, on January 31, 1976, she called the office of her employer and talked with Robert Haas who admitted the indebtedness but refused to pay for the reason above delineated. The petition was filed in the Magistrate Court on March 29, 1976, seeking wages for $127.50, plus 60 days’ wages of $900.00 pursuant to Section 290.-110, Laws of 1972. Respondent prevailed in both the Magistrate and Circuit Courts, the latter court entering judgment for $127.50 actual damages and $900.00 punitive damages. Section 290.110 declares:

“Whenever any person, firm or corporation doing business in this state shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of the servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of the discharge or refusal to longer employ and the servant or employee may request in writing of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station or office where a regular agent is kept; and if the money or a valid check therefor, does not reach the station or office within seven days from the date it is so requested, then as a penalty for such nonpayment the wages of the servant or employee shall continue from the date of the discharge or refusal to further employ, at the same rate until paid; provided, such wages shall not continue more than sixty days. This section shall not apply in the case of an employee whose remuneration for work is based primarily on commissions and whose duties include collection of accounts, care of a stock or merchandise and similar activities and where an audit is necessary or customary in order to determine the net amount due.”

Being a penal statute, it must be strictly construed, Caviness v. Andes & Roberts Brothers Const. Co., 508 S.W.2d 253 (Mo.App.1974); Lotz v. Missouri Distributing Company, 387 S.W.2d 179 (Mo.App.1965); Quinn v. T. M. Sayman Products Co., 296 S.W. 198 (Mo.App.1927). We must determine whether respondent’s method of compensation can be considered “wages.” Counsel have not cited, nor has our own independent research discovered, a case with a comparable factual situation. It must be remembered that respondent’s income varied by pay period and was totally dependent upon the number of apartment units she cleaned. She did not receive an hourly or fixed wage as in McLaurin v. Frisella Moving and Storage Company, 355 S.W.2d 360 (Mo.App.1962). Her income was computed by the units cleaned times the agreed rate. If she was not ordered to clean any units, she received no pay.

In Lotz, supra, the plaintiff sought and recovered wages and credits due him as of the date of his discharge and also received judgment for $900.00 for 60 days wages following the date of his discharge. In that case plaintiff was a route commission salesman and his income varied considerably based upon his volume of sales, the price for which he sold the merchandise and other factors. In reversing the judgment for $900.00, this Court held that Lotz’s method of compensation was “not within the purview or intendment of Section 290.110,” l.c. 185. See also Brackett v. Easton Boot and Shoe Company, 388 S.W.2d 842 (Mo.1965); Monterosso v. St. Louis Globe-Democrat Publishing Co., 368 S.W.2d 481 (Mo.1963); and Maxey v. General Electric Company, 382 S.W.2d 67 (Mo.App.1964), which hold that claims for vacation pay and sick leave pay are likewise not within the purview and intendment of Section 290.110. In this case respondent had a “contract rate” of $15.00 for a complete cleaning and $7.50 for a partial cleaning, but there is no evidence that she was guaranteed a fixed number of units to clean per pay period or that she received a minimum remuneration per pay period. Construing the language of the statute, as guided by the cited cases, we are constrained to hold that respondent’s method of compensation does not bring her within the purview and intendment of Section 290.110, Lotz, supra, and the trial court erroneously applied the law in rendering judgment in respondent’s favor for $900.00. Appellants’ second point is meritorious.

There is another reason why respondent cannot invoke the aid of Section 290.-110 to sustain the $900.00 judgment. The transcript informs us that respondent’s lawyer directed a letter to the president of W. C. Haas Company. However, that letter was not offered or received in evidence. Neither this Court, nor the trial court, can speculate as to the contents of that letter or the date it was mailed, or that it was mailed. The mentioned statutory section requires that the employee demand in writing the unpaid wages so as to obtain the benefits therein enumerated, Williams v. Gideon-Anderson Lumber Co., 224 S.W. 51 (Mo.App.1920). That evidence not having been adduced, the $900.00 judgment (incorrectly labeled as punitive damages) does not have evidentiary support and must be reversed, Murphy v. Carrón, supra. It is, therefore, unnecessary for us to precisely rule appellants’ first point.

The judgment granting respondent actual damages in the sum of $127.50 and punitive damages in the sum of $900.00 against the defendants, William C. Haas Company, Inc., a corporation, and William C. Haas, d/b/a William C. Haas Company, is reversed and the cause is remanded with directions to enter judgment in the sum of $127.50 against the true defendant, William C. Haas Realty Management, a Missouri corporation, Brassfield, supra; State ex rel. Ziegenhein, supra.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ben BELL, a/k/a Eddie Jones, Defendant-Appellant.
    No. KCD 29479.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Philip H. Schwarz, McMullin, Wilson & Schwarz, Kansas City, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a jury verdict of guilty and court-imposed sentence of seven years for armed robbery. The court-imposed sentence was by reason of the jury’s failure to agree on punishment.

Defendant, in two separate points, challenges the testimony of two witnesses concerning identification of defendant at the preliminary hearing.

The robbery of the grocery store occurred when two individuals were refused the sale of beer because of an inability to prove legal age. One of the men pulled a gun and both took cash, a wrist watch, and cigarettes.

Prior to trial, the defendant moved to suppress pretrial and in-court identifications. The trial court ordered suppression of the identification of defendant by photographs because some of those used could not be produced by the state. The trial court denied the balance of the motion.

At trial, the state elicited testimony that both witnesses had identified the defendant at the preliminary hearing. An objection on the ground of hearsay was overruled.

Defendant, on appeal, claims the evidence was hearsay, was self-serving, and was in violation of the pretrial order.

The last two objections are not properly reviewable since they were not raised at the time the evidence was offered. State v. Thomas, 548 S.W.2d 574 (Mo.App.1975); State v. Sanders, 473 S.W.2d 700 (Mo.1971). In any event, the pretrial order did not bar prior in-court identifications as to the one witness; the other witness who had not viewed the photographs was not even mentioned in the-order.

The evidence of identification at the preliminary hearing was admissible. State v. Sigh, 470 S.W.2d 503 (Mo. banc 1971). Such testimony concerning a prior identification is not hearsay. State v. Pitchford, 324 S.W.2d 684 (Mo.1959).

Conviction affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. George L. SMITH, Appellant.
    No. KCD 29490.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Paul Crider, Jr., Public Defender, Rolla, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

George Smith was convicted of burglary and stealing. §§ 560.045 and 560.110, RSMo 1969. He was sentenced by the court under the Second Offender Act to five years confinement on each conviction.

On this appeal Smith alleges error in the admission of a photograph and in allowing the jury to have such photograph in the jury room. Affirmed.

Smith does not challenge the sufficiency of the evidence to sustain his conviction. He and two other men were seen removing furniture from a display mobile home in a mobile home park and loading it into a truck. The owner of the park was called and drove to the scene. He parked his ear in such a position the truck containing the furniture could not be moved. The three men then fled on foot into an adjoining woods. Smith was identified in court as one of the three men who ran from the truck.

Smith was arrested about two hours later on a partially constructed road about three-fourths mile from the burglary scene.

The State introduced an aerial photograph which showed the mobile home park, the woods and the road on which Smith was arrested. The burglary had occurred in April but the photograph was taken in the winter so the photograph did not show any foliage. In addition, the road on which Smith was arrested was only partially completed at the time of the crime but the photograph revealed the road to be fully constructed.

The above differences between the conditions existing at the time of the crime and when the picture was taken were fully explained to the jury.

The rules concerning the admission of photographs and changed conditions of a crime scene are fully developed in State v. Johnson, 508 S.W.2d 18, 20 [1, 2] (Mo.App.1974). That case holds the admissibility of photographs rests in the discretion of the court and any differences existing in the conditions between the time of the crime and the taking of the photograph may be developed in the evidence. Such differences go only to the weight to be accorded the photograph.

Smith also argues the photograph made the arrest scene appear farther from the burglary than the actual distance. All of these matters were fully explained to the jury. Under the rules announced in Johnson the court did not err in admitting the photograph.

Smith further argues the court erred in allowing the jury to have this photograph in its jury room. The court has discretion to allow the jury to take exhibits to its room. State v. Jordan, 532 S.W.2d 776, 782 (Mo.App.1975).

Smith does not demonstrate any reason why such exhibit should not have been permitted in the jury room except the conditions and differences previously discussed.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Webster Cornellious DIXON, Appellant.
    No. KCD 29585.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Jerry W. Venters, Public Defender, Jefferson City, for appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Webster Dixon was charged with murder in the second degree but convicted of manslaughter. He was sentenced to ten years imprisonment under the Second Offender Act.

On appeal Dixon complains of the venue and the giving of an instruction on manslaughter. Affirmed.

Dixon and James Hubbard were both inmates in the state penitentiary. Dixon was seen striking Hubbard in the head with a golf club in a TV room. Hubbard later died from wounds which were stated to be consistent with blows to the head by a golf club.

Dixon first challenges the venue by stating Hubbard died in the University of Missouri Medical Center in Boone County and the case should, therefore, have been tried there. However, in his brief Dixon concedes under § 541.033, RSMo 1969, venue was proper in Cole County because the offense was committed there. Dixon is correct since the assault occurred in Cole County which produced the wounds of which Hubbard later died.

Dixon next contends the court erred in giving an instruction on manslaughter. He concedes that under MAI-CR 6.02, Notes on Use, note 6 requires the court to give a manslaughter instruction if the pleadings and evidence warrant submission of second degree murder. See State v. Stapleton, 518 S.W.2d 292 (Mo.banc 1975). However, Dixon argues Stapleton was a circumstantial evidence case and questions whether the automatic submission of manslaughter when second degree murder is submitted is applicable in a direct evidence case.

This court in State v. Wood, 531 S.W.2d 543 (Mo.App.1975) fully discussed the applicability of the automatic submission of a manslaughter instruction' in a direct evidence case. Further discussion would serve no useful purpose. The manslaughter instruction was required by MAI-CR 6.02, note 6, and, therefore, was properly given.

The judgment is affirmed.

All concur.


text:
    Charlotte W. WRIGHT, Plaintiff-Appellant, v. Harold W. SPRAGUE, Defendant-Respondent.
    No. KCD 29587.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    John C. Russell, Raytown, for plaintiff-appellant.
    Robert G. Oberlander, Kansas City (Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City), for defendant-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Plaintiff appeals an order granting summary judgment to the defendant in a damage suit involving a release.

After plaintiff sued Sprague, Spra-gue filed an answer pleading a general release of Robert Schneider. The plaintiff was a passenger in a vehicle driven by Sprague which was involved in a collision with a car driven by Schneider, and plaintiff was injured. Plaintiff admitted she did not claim any fraudulent inducement by Schneider in the execution of the release, the execution of which she also admitted.

The language of the release is obviously that of general and full release of the claim and the fact that only one tortfeasor is named does not change that result. The trial court’s action is fully supported by New Amsterdam Casualty Company v. O’Brien, 330 S.W.2d 859 (Mo.1960); Rogers v. Piper, 543 S.W.2d 261 (Mo.App.1976); Liberty v. J. A. Tobin Construction Co., Inc., 512 S.W.2d 886 (Mo.App.1974); Kestner v. Jakobe, 412 S.W.2d 205 (Mo.App.1967).

In view of this authority clearly supporting the trial court’s action and the assertion by the defendant of a claim for damages for frivolous appeal, the court undertook, in oral argument, to determine what basis existed for the appeal. With commendable candor, plaintiff’s counsel confessed the appeal was brought because of certain underlying circumstances. Those were that the plaintiff was represented at the time of the release by a different attorney who also represented her driver Sprague in his claim against Schneider. Further, that this lawyer asserted the release of Schneider would not release Sprague. A malpractice action against this lawyer is now pending. The lawyer representing the defendant in the malpractice action served a written notice on plaintiff demanding the appeal be taken. The making of that demand cannot affect the respondent’s claim that the appeal is frivolous.

The function of damages for a frivolous appeal is twofold. It protects the appellate docket from unmeritorious cases which delay cases with merit, Whitman v. Livingston, 541 S.W.2d 61 (Mo.App.1976), and compensates the respondent for the expense incident to the appeal of an unmer-itorious claim.

Both of these reasons call for the imposition of damages for frivolous appeal in this case. The present appeal is within the rule of Brooks v. General Motors Assembly Division, 527 S.W.2d 50 (Mo.App.1975), as being one where no justiciable question has been presented, and the appeal is readily recognizable as devoid of merit.

The judgment is affirmed, and damages for frivolous appeal pursuant to Rule 84.19 are assessed against plaintiff-appellant in the amount of Five Hundred Dollars ($500.00) payable to defendant-respondent.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jack Dean GRIFFIN, Jr., Defendant-Appellant.
    No. KCD 29596.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      John H. Fraze, Maryville, for defendant-appellant.
    Warren L. McElwain, Pros. Atty. of De-Kalb County, Maysville, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a ninety day jail sentence for driving while intoxicated first offense. The appeal must be dismissed since there is no final judgment.

This case presents a maze of procedural error and confusion. The charge was initiated in the circuit court on an information charging the defendant with driving while intoxicated second offense predicated on the pleading of an earlier conviction for the same offense. The defendant waived a jury, and the case was tried to the court. After extensive testimony and argument which need not be detailed here, the trial judge then announced his verdict as follows:

“I believe, . . . , that the State has proven a prima facie case and it is the finding of the court that the defendant, Jack Dean Griffin, Jr., on the 22nd of September, 1972, was convicted on a charge of driving while intoxicated, such conviction was valid. The court further finds that on the charge on the Information the defendant is guilty of driving while intoxicated, having previously been convicted of driving while intoxicated.”

Thereafter, the procedural difficulties began. The verdict by the trial judge was rendered on February 3, 1977. The court then, in a colloquy with counsel about a motion for new trial, said:

“THE COURT: All right. You, of course, will have to file a motion within fifteen days and I don’t think we have authority to extend that any more.”

Despite counsel’s assertion that a motion for new trial would be filed, the court immediately made a docket entry finding the defendant guilty and concluding as follows:

“. . . defendant is accorded allocution and sentenced to nine (9) months in the county jail, defendant returned to bond pending filing of a motion for new trial, motion or new trial set for argument 11:00 A.M., March 3rd, 1977.”

Such a purported judgment could not have been entered until the 10-day period prescribed for filing the motion for new trial had passed or a timely-filed motion was ruled upon or deemed denied under Rule 27.20(b). State v. Nichols, 474 S.W.2d 54 (Mo.App.1971).

The defendant then filed an application for an extension of thirty days from February 13th. This was granted by the trial judge. Curiously, the extension order was dated February 11th, but was not shown filed until February 15th. A motion for new trial was then filed on March 14th, and the matter then languished until May 19th.

On May 19th, the state of the record in this case was thus a verdict of guilty and no proper entry of judgment since the purported judgment of February 3rd was premature. Likewise, there was pending a motion for new trial.

On May 19th, the trial court then took up the motion and made an entry, a portion of which is as follows:

“. . . defendant’s Motion for New Trial is taken up and heard, sustained in part and denied in part, the Court finds that the prior conviction of Driving While Intoxicated was not a valid conviction and therefore the enhancement in punishment was improper, the court therefor sets aside the judgment of the conviction and sentence imposed on February 3, 1977, . . . ” (Emphasis supplied).

That portion of the court’s order of May 19th was justified. The prior conviction offered in evidence was had without the presence of the defendant or his consent and, therefore, is invalid and inadmissible under the rule set forth in State v. Pfeifer, 544 S.W.2d 317 (Mo.App.1976). If the motion had been denied and a judgment entered on May 19th finding the defendant guilty of driving while intoxicated, second offense, the judgment would have to have been reversed on appeal upon the authority of Pfeifer.

However, after setting aside the verdict as noted above, the court then continued the entry as follows:

“. . . defendant is found guilty of driving while intoxicated first (1st) offense and sentenced to Niniy (90) days in the County jail, defendant accorded allo-cution, sentence imposed and on defendant’s Motion to be admitted to bond pending Motion for New Trial and Appeal, the said application is sustained and defendant admitted to Bond pending filing of Motion For New Trial or Appeal ’JSS.” (Emphasis supplied).

This purported new verdict and judgment was then addressed by what is denominated an amended motion for new trial filed May 24th which was overruled on June 9th by a docket entry which refers to the “imposing of sentence” but with no judgmental language or term of sentence mentioned. A notice of appeal was filed on June 15th.

As we view this record,- there is no verdict in this case. The verdict of February 3rd was set aside and properly so on the failure of the state to prove the prior conviction.

The purported finding of guilt of the lesser offense immediately following the setting aside of the verdict is a nullity. The defendant was entitled to attack the verdict as found, and the court could only order a new trial. The court’s attempt to reenter a new verdict was improper. The case, therefore, is still pending in the circuit court awaiting a new trial.

Appeal dismissed.

All concur.


text:
    STATE of Missouri ex rel. Roy G. HORRIDGE, Relator, v. The Honorable Stephen R. PRATT, Judge of the Circuit Court of Clay County, Missouri, Division Three, Respondent.
    No. KCD 29793.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    See also Mo.App., 542 S.W.2d 324.

      Max W. Foust and John F. Clisbee, Morris, Foust & Beckett, Kansas City, for relator.
    Von Erdmannsdorff, Zimmerman, Gunn & Werner, Kansas City, for respondent.
    Before SWOFFORD, C. J., and SHAN-GLER, PRITCHARD, DIXON, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   DIXON, Judge.

This extraordinary writ proceeding is a sequel to the direct appeal of the underlying dissolution proceeding, Horridge v. Horridge, 542 S.W.2d 324 (Mo.App.1976).

Relator seeks to prohibit the trial judge who presided in the original dissolution proceeding from hearing the issues presented upon the remand of the cause. Relator asserts that his motion for a change of judge under Rule 51.05 was improperly denied. It is conceded that the motion was timely and in proper form. The sole issue to be decided is whether the further proceedings in the court below constitute a “new trial” or a continuation of the earlier proceedings.

To sharpen this issue, it is necessary to summarize the earlier appeal and the opinion of this court deciding that appeal.

The wife filed for dissolution. The trial court heard evidence and entered a decree dissolving the marriage and awarding to the wife judgment for “Twenty-five Thousand Dollars ($25,000.00), without interest, payable as follows: (a) Five Thousand Dollars ($5,000.00) on June 1, 1974 payable to the Clerk of this Court, (b) Five hundred Dollars ($500.00) on July 1, 1974 and Five Hundred Dollars ($500.00) on the first day of each succeeding month thereafter until the full sum of Twenty-five Thousand Dollars ($25,000.00) has been fully paid.”

The husband, in the initial appeal, asserted this award was “maintenance” and was “excessive.” This court noted that the trial court did not denominate the award as maintenance but, upon the apparent tacit agreement of the parties that it was maintenance, it was so reviewed. This court found that the proof at trial was insufficient to support an award of maintenance under Section 452.335 RSMo (Laws 1973, page 470, § 8), because there was no evidence of the wife’s needs, nor of the insufficiency of her property or income to meet those needs. On the issue of excessiveness, this court noted that the evidence of the husband’s net worth was conflicting. As to that issue, this court said, “This conflicting evidence will again be for the consideration by the trial court along with the matter of the credibility of the witnesses.” Horridge, supra, at 325.

The court then held as follows:

“The parties have misconceived the requirements of a maintenance award under the statute, and there is a failure of proof of respondent’s reasonable needs, her earning capacity, and the sufficiency of her property to provide for her needs. The judgment will not be reversed outright, however, because respondent should be given the opportunity to make proof of the missing elements of her right to maintenance, and if she does so sufficiently on new trial, the court should make the required findings under § 452.-335. For authority to remand this case for a new trial and the taking of further proof, see Dougherty v. Duckworth, 388 S.W.2d 870, 876 [10, 11] (Mo.1965); Billings v. Paine, 319 S.W.2d 653, 660 [16,17] (Mo.1959); Feinstein v. McGuire, 297 S.W.2d 513, 518 [13] (Mo.1957); and Gardner v. Switzer, 353 Mo. 1124, 186 S.W.2d 561 (1945).
The judgment is reversed and the case is remanded for new trial.” Horridge, supra, at 325. (Emphasis supplied).

Relator urges that this opinion summarized above constitutes a remand for a new trial. The argument is supported by citation of Feinstein v. McGuire, 312 S.W.2d 20 (Mo.1958), which relator urges as authority for the proposition that the language from our opinion set forth above constitutes a setting aside of the prior judgment of the trial court and necessitates a new trial of the issue.

Respondent counters by suggesting that Feinstein is distinguishable because there an amended petition had been filed, and the court considered the issues as indivisible. Respondent further argues that since Chapter 452.360 RSMo 1969, as amended in 1974, provides that a decree of dissolution unap-pealed from becomes final; and, since an appeal is permitted from the property portions of the decree (as occurred in the instant case), the remand on the property issues can only be an extension or continuation of the original proceedings.

Clarity requires that the new procedures established by the Legislature for dissolution of marriage be examined to see if those procedures make inapplicable general principles involved in the reversal and remand for new trial to the trial court.

It is beyond cavil that the Legislature intended for the decree in a divorce case to be divisible for the purposes of finality. The statutory language asserting the finality of an unappealed from decision of dissolution and the granting of a right of appeal from either provisions as to property, or maintenance, or as to custody, despite that finality of judgment accorded the dissolution portion of the decree, makes it clear that such portions of the decree are separable.

A recent line of cases has considered the question of finality as to the property portions of the decree when no division or an imperfect division of marital property has been made. Walker v. Walker, 553 S.W.2d 520 (Mo.App.1977); Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977); Pendleton v. Pendleton, 532 S.W.2d 905 (Mo.App.1976). These cases uniformly hold that the property portion of the decree is not final without such a division of marital property and that an appeal will not lie from that portion of the decree which lacks finality. Such holdings do not and could not affect finality of the unappealed decree of dissolution which, by statute, becomes a final decree and again indicates the separability of the issues in a dissolution proceeding.

By analogy, the portions of the dissolution decree may be considered as recovery upon different counts of a single petition, a situation where the law has long recognized finality as to one count not inhibiting appeal or retrial of another count. Truck Insurance Exchange v. Great Northern Electric Co., 284 S.W.2d 60 (Mo.App.1955).

So also, the courts have divided issues for retrial in cases where but a single cause of action has been pleaded. In Strickland v. Barker, 436 S.W.2d 37 (Mo.1969), the court reversed for new trial on the issue of liability and held in abeyance the jury verdict on damages pending the determination on new trial of the issue of liability. Nor has such division of issues been limited to cases of damage and liability. In Perkins v. Perkins, 236 Mo.App. 616, 151 S.W.2d 253 (1942), the court, on the appeal of a plaintiff-wife from an adverse judgment in a separate maintenance action, divided the issues. The court entered a judgment of abandonment without good cause and reversed and remanded for a trial on the issue of the amount to be paid by the husband for attorney fees and support.

Counsel has cited no case where a new trial has been ordered on one count or one issue and a claim has been sustained that the retrial is limited to an extension or amplification of the evidence heard in the original trial.

The only instances where such issues have arisen are cases where the opinion and the mandate do not unequivocally order a new trial. As in Feinstein, supra, such an issue arises when the original opinion uses the ambiguous phrase “remanded for further proceedings in accordance with the views herein expressed.” Feinstein, supra, at 22. The opinion and mandate in this case exhibit no such ambiguity, both explicitly ordering a “new trial.” The scope of such a new trial was set forth in Nilges v. Nilges,. 564 S.W.2d 262 (Mo.App.1978), where the court pointed out that it was not ordering a piecemeal consideration of one item but remanding for the trial court to exhaust its jurisdiction which would involve consideration of a new record.

The Feinstein court, where the opinion was ambiguous, still held that a new trial of the issues was intended. As to the claim by respondent that Feinstein is distinguishable since the court considered the issue of adverse possession to be indivisible into separate periods of time, this argues in favor of the application of the principle to the instant case. The issue of maintenance is interwoven with and inseparable from the issues of the ownership of property, both separate and that which is marital and thus divisible. The statute itself so provides. Section 452.335(1) RSMo 1969.

It must be held that the previous opinion and mandate ordered a “new trial” on the issue of the wife’s maintenance and that the remand was for that purpose and not for the taking of limited evidence to amplify the prior record. So holding, there seems to be little question that respondent should have granted the relator’s request for a change of judge. Rule 51.05 is similar to Rule 30.12 relating to change of judge in criminal cases. Rule 30.12 has been construed to permit a change of judge on remand for new trial. State v. Sullivan, 486 S.W.2d 474 (Mo.1972). There, pursuant to a remand for a new trial after two previous trials before the same judge, the defendant moved for a change of judge in timely fashion. A change was denied, and the defendant’s conviction was reversed on appeal. The court held that the language of Rule 30.12 was clear and applied no matter how many previous trials had occurred. No reason appears why Rule 51.05 should not receive the same construction.

The preliminary rule in prohibition is made absolute. The rule as issued shall prohibit the respondent from any further action in the case except to grant the request of relator for a change of judge.

All concur.


author: CLEMENS, Presiding Judge.

text:
    Melvin Eugene KYSETH, Appellant, v. STATE of Missouri, Respondent.
    No. 38635.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 28, 1978.

      William J. Shaw, Public Defender, Mary E. Fiser, First Asst. Public Defender, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Gordon Ankney, Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Movant (hereafter defendant) has appealed the denial of his Rule 27.26 motion. He had pleaded guilty to possession of a Schedule II controlled substance and on January 9, 1976 was sentenced to three years’ imprisonment. Defendant then filed his 27.26 motion which was denied. This appeal followed.

We note that a stipulation filed here by defendant’s and the state’s counsel declares that on September 2, 1977 defendant’s sentence was commuted by the Governor of Missouri and defendant has now been discharged from confinement.

Relief under Rule 27.26 is limited to prisoners in custody. Since defendant has been released from the sentence he seeks to vacate, he is not entitled to relief under Rule 27.26. Cook v. State, 543 S.W.2d 309[1] (Mo.App.1976).

SMITH and McMILLIAN, JJ., concur.


author: STEWART, Presiding Judge.

text:
    CITIZENS AGAINST REZONING, INC., Appellant, v. ST. LOUIS COUNTY et al., Respondents.
    No. 39133.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 28, 1978.

      Richard J. Fredrick, Anderson, Fredrick, Preuss & Zwibelman, Clayton, for appellant.
    Thomas W. Wehrle, James H. White, Morton I. Golder, Clayton, Thomas C. Walsh, St. Louis, Michael G. Biggers, Albert A. Michenfelder, Jr., Clayton, for respondents.
   STEWART, Presiding Judge.

Plaintiff, a not-for-profit corporation filed a petition for declaratory judgment seeking to have an ordinance of St. Louis County declared invalid. The ordinance questioned was an amendment to the St. Louis County Zoning Ordinance, changing the classification of a substantial tract of land from a residential district to a planned commercial district. The defendants filed a joint motion for summary judgment which was sustained by the trial court. We affirm.

The threshold question of plaintiff’s standing to bring the action is dispositive of the cause. A detailed discussion of the contents of the petition is not necessary for our consideration of the case.

The allegations of the petition determinative of the issue read:

“1. That plaintiff is a Not for Profit Missouri Corporation organized and existing under the laws of the State of Missouri.
“2. That all of the members of the plaintiff corporation are residents of the State of Missouri, County of St. Louis.
“3. That all of the members of plaintiff corporation are residents and homeowners of the area adjoining Highway 270 and Olive Street Road, in the County of St. Louis, the area rezoned by the County Council by Ordinance No. 7984 and all have interests adverse to and substantially affected by the passage of said ordinance.”

Before a person may bring a declaratory action to attack the validity of a statute or ordinance he must have a legally protectable interest. § 527.020, Rule 87.-02(a). The not-for-profit corporation is a legal entity separate and apart from the persons who are members of the corporation. In order for the corporation to have standing to bring an action attacking the validity of the ordinance the corporation itself must have a legally protectable interest. The interests of the individual members of the corporation can not give standing to the corporation. Lindenwood Improvement Association v. Lawrence, 278 S.W.2d 30 (Mo.App.1955).

The petition does not allege facts from which it can be said that the plaintiff in this case has a legally protectable interest. Plaintiff has no standing to bring the action. The judgment of the trial court is affirmed.

DOWD and REINHARD, JJ., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri ex rel. Nancy NIESS, Bill Biggs, Ross Lauck and J. J. Rupar, Individually and as Representatives of the Joplin Community Teachers Association, an unincorporated association, Relators-Respondents, v. Dr. J. Merrell JUNKINS, Loyd Combs, Colleen Crabb, W. Rand Gilmore, Jr., Dr. Bob F. Steere and Cozetta Thompson, as Officers and Members of the Board of the Joplin R-VIII School Board of the Joplin R-VIII School District, Respondents-Appellants.
    No. 10077.
    Missouri Court of Appeals, Springfield District.
    March 1, 1978.

      Jon Dermott, Joplin, for respondents-appellants.
    Thomas D. Carver, Joplin, David T. Greis, Kansas City, for relators-respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

This is a proceeding in mandamus. Rela-tors, suing as an unincorporated association pursuant to Rule 52.10, V.A.M.R., sought construction and enforcement of § 163.-031(9), which, during the time here involved, regulated the disbursement of school foundation funds and read:

“[A] school district shall spend for teachers’ salaries each year at least eighty percent of the state school funds received under this section that year as provided by section 163.061 and as much of the revenue produced by local tax levies as was spent for teachers’ salaries the previous year. In the event a district fails to comply with this provision, the amount by which the district fails to spend funds as provided herein shall be deducted from the district’s apportionment for the following year, provided that the state board of education may exempt a school district from this provision if the state board of education determines that circumstances warrant such exemption.”

We have concluded we have no jurisdiction of this appeal, but have also concluded that a brief development of the issues presented is appropriate.

Given reasonable intendment and summarized as material here, the substantive averments of the petition for the alternative writ are: (1) that the relators Niess, Biggs, Lauck and Rupar are teachers employed by the respondent school district and are members of an unincorporated association consisting of a majority of all the teachers employed by the district; (2) that the action is brought for and on behalf of all teachers employed by the district and that relators as representatives of the unincorporated association will fairly and adequately protect the interests of the association, its members and other teachers who are not members, in accordance with Rule 52.10; (3) that the relators are paid from a teachers’ fund as required by statute, and that the payment of teachers’ salaries is regulated and determined by the provisions of § 163.031(8) and (9); (4) that respondents have been advised that the school district will receive an allocation of state foundation funds in excess of the sum anticipated by the respondents during the 1974-75 school year; (5) that the relators have repeatedly “demanded” that respondents meet with them for the “purpose of arranging to modify” relators’ contracts by “adjusting” relators’ compensation so as to absorb the alleged additional amount available in the teachers’ fund, and (6) that the teachers of the district have a property right in and a “statutory entitlement” to be paid an additional amount as determined by § 163.031(9). It is also alleged that the teachers employed by the district have no adequate or equally efficient alternative remedy available. Prayer is for the issuance of an alternative writ, hearing of all matters in issue and for issuance of a peremptory writ.

An alternative writ issued. The respondents filed a responsive motion directed to relators’ petition and the alternative writ. In their motion, the respondents sought dismissal for failure to state a claim upon which relief could be granted, alleged that the unincorporated association lacked the capacity to sue, and alternatively prayed determination whether the individual rela-tors adequately represented the claims of all teachers employed by the district. In their return to the alternative writ, respondents: (1) admitted that they anticipated receipt of more state foundation funds than they anticipated receiving at the time their preliminary budget was prepared; and (2) averred that modification of the teachers’ contracts to increase their compensation for the 1974-75 school year would be violative of Mo.Const. art. Ill, § 39(3). Respondents renewed their original objections by reference.

The trial court heard a good deal of oral testimony and received a number of exhibits. For the most part, the evidence consists of competing calculations made by different accounting methods; both the rela-tors and the respondents contend that a proper construction of Chapter 163 demands acceptance of their calculations. In consequence, the evidence is sometimes confusing but not really complex and may, for our purposes, be briefly summarized. Relator Rupar testified that he was a teacher employed by the Joplin R-VIII School Board; that he was chairman of the “negotiating team” designated by the Joplin Community Teachers Association, an unincorporated association, and that one duty of the negotiating team was to meet, discuss and confer with the board when salary figures were established for the school year. It is fairly inferable that the relators were all teachers employed by the respondents. It was shown that there was approximately 340 teachers who were members of the Joplin Community Teachers Association. The trial court found as facts that the relators fairly and adequately represented the unincorporated association and that they had been authorized by the association to bring this action in its behalf.

In general, the relators’ evidence tended to show that the district’s teachers had “negotiated” their salary schedule in June 1974, or prior to that time, and were given an 8½ percent raise. The school tax levy was increased, in large part to defray the cost of the raise. Nevertheless, at the time the salary schedule was adopted, both the relators and the respondents anticipated that the district would receive $2,744,120 from the state foundation program, of which 80 percent ($2,219,296) would be allocated to the teachers’ fund as required by § 165.011(1), RSMo (1969). It is readily inferable that the relators, at least, relied on this preliminary figure when the 1974-75 salary schedule was adopted.

In September 1974, the district was notified that its prorated apportionment of school foundation funds would be $2,947,-672. Eighty percent of this amount or $2,358,138 was thus allocable to and was in fact allocated to the teachers’ fund, as indicated by the incorporation of both these figures in the final budget adopted by the district in October 1974. The difference between the “preliminary” and “final” allocation of state foundation funds was $138,-842; it is admitted that the teachers’ salaries were never adjusted to reflect this increase. During the school year the relators, or their negotiating team, several times sought disbursement of the $138,842 in increased salaries. The respondents agreed only to discuss future payment in the manner suggested by the relators. Such is the substance of the relators’ case.

The respondents’ evidence was directed toward showing that according to the standards used by the State Board of Education in determining compliance with § 163.-031(9), the district would in fact be in compliance for the 1974-75 school year. To this end, the respondents offered two sets of computations prepared by the district, each of which purports to show methods of computation which could be used by the State Board of Education in determining compliance vel non with the statutory requirement. Essentially, these computations are projections, and as we understand the respondents’ argument, it is respondents’ contention that the relators’ computations do not accurately take into account the “local effort” expenditures. Witness Alberty, Coordinator of School Finances for the State Board of Education, stated that if the respondents’ data were correct, then the respondents would appear to be in compliance with the requirements of § 163.031(9), although compliance could not be determined as a fact until completion of the 1974-1975 school year. There was, as noted, a conflict of opinion as to the method of computation which should be used to determine compliance.

Pursuant to a pretrial request, the trial court made extensive findings of fact and conclusions of law. These have been helpful, but we need not repeat them verbatim. The trial court concluded that the teachers employed by the district were entitled to receive the $138,842 as additional reimbursement for services, ordered the respondents to meet with the relators to determine the precise amount to be paid to each individual teacher and then to pay the amount due immediately. The respondents appealed.

In this court, the appellants have raised a number of procedural points. One of these points should be noted preliminarily. In this court, the appellants insist that the relators’ proof and the trial court’s findings are insufficient to sustain this appeal as a class action pursuant to Rule 52.08. Without elaborating, we are inclined to agree. Nevertheless we believe the requirements of Rule 52.10 have been satisfied by the relators’ showing that they have fairly and adequately represented the 340 teachers who are members of the Joplin Community Teachers Association and that the Joplin Community Teachers Association represents the majority of the teachers employed by the district. Owens v. Savage, 518 S.W.2d 192, 197-198[1] (Mo.App.1974). Moreover, the appellants have conceded on oral argument that they conceive this action as an action brought pursuant to Rule 52.10. We do not believe the appeal stands in the same premature posture as Peters v. Board of Education of Reorg. Sch. Dist. No. 5, 506 S.W.2d 429 (Mo.1974), cited by the appellants.

The other points advanced by the appellants are: (1) that their calculations are correct and demonstrate that they are in compliance with the requirements of § 163.-031(9); (2) even if they are not in compliance with § 163.031(9), any additional payments to the district’s teachers would be violative of Mo.Const. art. Ill, § 39(3); and (3) in any event, mandamus is not a proper remedy because mandamus will not lie when other ordinary and adequate remedies are available. Upon reflection, it is easily seen that any determination of the validity of any of these arguments requires an appellate court to ascertain the meaning of § 163.031(9), in context, i. e., to construe the statute as a preliminary matter.

We are convinced that § 163.031(9) is open to several constructions. The trial court has construed the statute to impose an imperative duty upon the respondents, a duty enforceable by mandamus. Alternatively, and for illustrative purposes only, we think it might reasonably be said that if the statute created a new right, it also provided a remedy, or at least a conditional remedy — withholding by the State Board of Education — and, on general principles, the remedy provided by statute was exclusive. See Stanton v. Thompson, 234 Mo. 7, 11, 136 5.W. 698, 699[2] (1911); 1 Am.Jur.2d, Actions, § 74 (1962). If such be the case, then respondents’ argument that mandamus will not lie is well taken. We further have the opinion that if one considers (a) the complexity of effective administration of school foundation laws, (b) the fact that § 163.031(5) delegated the apportionment of school foundation funds to the State Board of Education, and (c) the fact that § 163.-031(9) granted the State Board discretionary power to exempt a school district from compliance with the requirements of § 163.-031(9), it might well be concluded that the General Assembly meant to confide the matter of “compliance” vel non to the expertise and administrative discretion of the State Board of Education.

We have elaborated as we have only because our initial impression was that we should request transfer of the appeal prior to opinion on the grounds that the matter in issue is of statewide interest, deserves to be expedited and in any event would probably have to be decided by our Supreme Court. Two other, very similar appeals are pending, one in our district and one before our colleagues at St. Louis. As indicated, however, we have decided we must transfer the cause for want of jurisdiction. As we believe we have demonstrated, § 163.031(9) directly involves the disbursement of state funds, for public funds acquired by school districts are the property of the state; the district holds these funds only as a statutory trustee. School Dist. of Mexico, Mo. v. Maple Grove Sch. Dist., 359 S.W.2d 743, 746[6] (Mo.1962); School Dist. of Oakland v. School Dist. of Joplin, 340 Mo. 779, 102 S.W.2d 909, 910[2] (Mo.1937). The constitutional proviso reserving exclusive original appellate jurisdiction in our Supreme Court extends to cases “involving . . . the construction of the revenue laws of this state,” and the term “revenue laws” includes laws relating to the disbursement of the revenue and its preservation. Regal-Tinneys Grove Spec. Rd. Dist. of Ray County v. Fields, 552 S.W.2d 719, 720-721[l] (Mo.banc 1977); State ex rel. Attorney General v. Adkins, 221 Mo. 112, 114, 119 S.W. 1091, 1093[2] (1909). We consider State ex rel. Pullum v. Cons. Sch. Dist. No. 5, Stoddard County, 361 Mo. 114, 233 S.W.2d 702 (1950), similar enough to this case to be persuasive that a construction of a revenue law is required. See also 1964 Wash.U.L.Q., §§ 3.040, 3.050, pp. 527-529.

Because we have no jurisdiction of the appeal, we can take no action beyond transferring the appeal to the Supreme Court. Mo.Const. art. V, § 11 (as amended 1970); Winslow v. Sauerwein, 365 Mo. 269, 274, 282 S.W.2d 14, 17[4] (1955); Starr v. Mitchell, 231 S.W.2d 299, 301[4] (Mo.App.1950). Accordingly, the clerk of this court is directed to transfer this cause forthwith to the clerk of the Supreme Court of Missouri.

All concur.

      . References to court rules are to Missouri Rules of Court (9th ed. 1978) and V.A.M.R. References to § 163.031 refer to that statute as it appeared in RSMo (Supp.1971). The amendments to § 163.031 made in 1975 did not become effective until September 28, 1975. Laws of Mo. 1975, pp. 133-134. The particular subsection in issue was reenacted and was again numbered 163.031(9) by the Revisor.

      . The “state school foundation program,” as that term is used in this case, refers to the school finance program established by the 75th General Assembly in 1969 as an emergency measure. Laws of Mo. 1969, p. 268. In this record, the parties consistently refer to the funds provided to the schools under the statute as “school foundation funds.”

      . The petition also avers, in substance, the existence of the prerequisites of a class action as defined by Rule 52.08(a) and (b).

      . Which reads: “Section 39. The general assembly shall not have power: . . . (3) [T]o grant or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or contractor after service has been rendered or a contract has been entered into and performed in whole or in part;”.

      . Specifically, see line 18, listed under code § 31, found p. 12 of respondents’ exhibit 1.

      . See, e. g., Goldstein, Inequalities in School Financing: A Critical Analysis of Serrano v. Priest And Its Progeny, 120 U.Pa.L.Rev. 504, 507-534 (1972).


author: COOPER, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. O. K. STARNES, Appellee.
    Supreme Court of Tennessee.
    Feb. 13, 1978.
    William F. Alley, Jr., Hodges, Doughty & Carson, Knoxville, for appellant.
    Ward S. Whelchel, Jr., H. Douglas Nichol, Gillenwater & Whelchel, Knoxville, for ap-pellee.
   OPINION

COOPER, Justice.

This is a workmen’s compensation case. The sole issue presented is whether the appellee, O. K. Starnes, is entitled to benefits for asbestosis at the rates in effect on the date of his last injurious exposure to asbestos while employed at Bowaters Southern Paper Company (Bowaters) or at those in effect at the time he first became disabled as a result of the disease. The trial judge employed the latter rate, and Liberty Mutual Insurance Company, the insurance carrier for Bowaters, has appealed.

The appellee was employed by Bowaters as an insulation worker from 1956 until 1971. In the course of this employment, he was exposed to asbestos. After he left Bowaters, he had no further contact with the substance. In December, 1976, the ap-pellee, who had been suffering increasingly from lung dysfunction, was diagnosed as having asbestosis, a condition that is caused by the inhalation of asbestos particles. Asbestosis is listed as a compensable occupational disease in the version of T.C.A. § 50-1101 in effect in 1976. The trial judge found that the appellee has been disabled as a result of this condition since December 12, 1976, and that he is entitled to benefits from Bowaters under the provisions of the Workmen’s Compensation Law. In awarding benefits, the trial judge employed the benefit schedule in effect on the date on which the appellee became disabled. The appellant contends that this was error, and that the award should be computed instead at the lower rates in effect in 1971, the time of the appellee’s last injurious exposure to asbestos.

Absent some indication of a contrary intent on the part of the legislature, the statute that determines the rights of the parties under the Workmen’s Compensation Law is that in effect on the date of the accident or injury that provides the basis for the employee’s claim. See Cates v. T. I. M. E., DC, Inc., 513 S.W.2d 508 (Tenn.1974). In the case of a claim arising from an occupational disease, the date of the “accident or injury” is the date on which the employee becomes partially or totally incapacitated for work. T.C.A. § 50-1105. See Tennessee Products & Chemical Corp. v. Reeves, 220 Tenn. 148, 415 S.W.2d 118 (1967); Adams v. American Zinc Co., 205 Tenn. 189, 326 S.W.2d 425 (1959). By using this definition of “accident or injury” in connection with occupational diseases, the legislature has provided a certain, determinable date at which the afflicted employee’s cause of action accrues, a matter of some importance in cases involving occupational diseases, where the time at which the disease is first contracted is often unknown, and the development of the disease slow. See Semon v. George H. Flinn Corp., 4 App.Div.2d 908, 166 N.Y.S.2d 835 (1957); 4 Larson, Workmen’s Compensation Law, § 95.21. This definition is in keeping also with the purpose of the Workmen’s Compensation Law to compensate the employee in part for what he has lost — i. e. his earning capacity at the time of his disability. 1 Larson, Workmen’s Compensation Law, §§ 2.50, 3.30. Therefore, the applicable statute in cases involving occupational diseases is that in effect on the date on which the employee becomes disabled as a result of the disease, rather than that in effect on the date on which he was last exposed to the agent causing the disease. Other jurisdictions have reached a similar result. See, e. g., Dickow v. Workmen’s Compensation Appeals Board, 34 Cal.App.3d 762, 109 Cal.Rptr. 317 (1973); Tucker v. Claimants in Death of Gonzales, 546 P.2d 1271 (Colo.App.1975); Semon v. George H. Flinn Corp., 4 App.Div.2d 908, 166 N.Y.S.2d 835 (1957); Bemis v. Taxaco, Inc., 400 P.2d 529 (Wyo.1965).

The appellant contends that the use of the date of disability rather than the date of last injurious exposure to determine an employee’s rights under the Workmen’s Compensation Law will unduly burden employers by making their potential liability too uncertain. We do not find this argument persuasive. While it is true that an employer’s potential liability for the future disability of a former employee increases upon an increase in the benefit rates, the resulting uncertainty in the employer’s potential exposure is no different from that resulting from the possibility of an increase in the benefits payable to a current employee. However, even if there were merit to this argument, it would avail the appellant nothing. The clear statement of legislative intent in T.C.A. § 50-1105 that, in cases involving occupational diseases, the “accident or injury” shall be treated as having occurred on the date of disability, is determinative of the issue presented here.

In the instant case, the trial judge found that the appellee became incapacitated on December 12, 1976. The appellant does not question this finding. It follows that the appellee is entitled to benefits under the statute in effect on that date.

Accordingly, the judgment of the trial court is affirmed. The costs of this appeal will be taxed to the appellant.

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

      . But cf. Brown v. Consolidation Coal Co., 518 S.W.2d 234 (Tenn.1974), in which the sole question before the court was whether a final judgment may be corrected more than one year after entry, and in which the parties admitted, for the purposes of that action, “that the applicable rate schedule [was] that schedule in effect [on the date of last injurious exposure].”


author: FONES, Justice.

text:
    Dorothy L. FOSTER, Appellant, v. ESIS INCORPORATED, Appellee.
    Supreme Court of Tennessee.
    March 13, 1978.

      James S. MacDonald, Jenkins & Jenkins, Knoxville, for appellant.
    Deke W. Brackett, Poore, Cox, Baker, McAuley, Ray & Byrne, Knoxville, for ap-pellee.
   OPINION

FONES, Justice.

In this workmen’s compensation case, the employee appeals from a trial court judgment that she suffered no compensable injury, and that she would be estopped by fraud from recovery in the event her injury were compensable.

It was proved and uncontradicted at trial that appellant, Dorothy L. Foster, had undergone back surgery in January, 1967, as a result of an accidental injury which arose out of her employment with C. R. Daniels Company in 1964, and it was shown that she obtained a judgment against C. R. Daniels Company awarding her a twenty-five (25%) percent permanent partial disability rating.

Employee testified that her supervisor at C. R. Daniels had been a Mrs. Jack Hilliard, and that she and her husband were social friends of the Hilliards at the time of her injury at C. R. Daniels. Both employee and her husband testified that employee had told Jack Hilliard, a plant manager for Levi Strauss, that C. R. Daniels would not rehire her after her injury, and that she was unable to obtain other work because of her back trouble. The Fosters testified that Jack Hilliard told appellant that his company would be able to hire her so long as she did not disclose her history of back trouble on her employment application.

Employee applied for work at Levi Strauss in November, 1968, and she admitted at trial that she intentionally failed to disclose her history of back trouble on her application; she wrote “I quit” as her reason for leaving C. R. Daniels; she answered “no” to questions asking if she had ever collected workmen’s compensation, or if she had had “frequent or occasional back pain, disorders of the spine”; she omitted any mention of her back condition in questions asking if she had had medical treatment in the past five (5) years and requesting dates and reasons for all hospital admissions in the previous ten (10) years.

Employee stated on cross-examination that she was initially interviewed by a clerk at Levi Strauss, to whom she submitted the admittedly false application. It was established at trial, and uncontradicted, that Jack Hilliard was employee’s supervisor after she was hired at Levi Strauss.

Jack Hilliard testified that he did not know of employee’s history of back trouble, and that he had not told her to falsify her application. He admitted that he and his wife had been social friends with the Fosters, but he could not remember any details of employee’s employment, nor whether they were social friends at that time. The trial judge noted that Hilliard was “remarkable for his poor memory.”

Hilliard and other managerial employees of Levi Strauss testified that it was company policy not to hire workers with histories of back trouble, that job applicants were initially screened by the personnel office, and, if deemed employable, were then referred to the person who would be supervising the applicant in the event he were hired, for the final hiring decision.

Employee argues that she should not be estopped by her misrepresentations because the employer did not rely on them, Hilliard having actual knowledge of the true facts, and because the employer did not carry its burden of proving that the injury for which compensation is sought was causally related to the previous medical history concealed from the employer.

Employee hurt her back in 1975, and received hospitalization benefits through the non-occupational medical insurance carried by Levi Strauss. Employee testified that this injury had been job-related, but that she reported it as non-occupational because she was afraid that she would lose her job if she told the truth. She underwent surgery for a ruptured disc as a result of this injury. She returned to work in early 1976, and shortly thereafter, hurt her back again, which injury is the subject of this lawsuit.

First, we consider the question of estoppel. In Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463 (Tenn.1973) this Court enunciated a three-pronged test to determine whether an employee is es-topped to claim workmen’s compensation benefits because of misstatements on the employment application. The three elements are these: (1) the employee must have knowingly and willfully made a false representation as to his physical condition; (2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; (3) there must have been a causal connection between the condition misrepresented and the injury for which compensation is sought. In addition, the causation between the employee’s prior physical condition and the injury for which compensation is sought must, in all but the most obvious cases, be established by medical testimony. Daniels v. Gudis Furniture Co., 541 S.W.2d 941 (Tenn.1976).

Employee admitted at trial that she willfully misrepresented her prior medical history on her employment application, but here contests the trial judge’s finding of estoppel on the other two criteria.

Even if Hilliard knew of employee’s prior back trouble before hiring her, it does not necessarily follow that the employer could not have relied on the misrepresentations. The employer established by three witnesses that employee could not have been hired without passing the initial screening with a personnel official, and that Hilliard had no control over this initial interview. Representatives of Levi Strauss testified that employee would not have been referred to Hilliard if her prior medical history had been known. The reliance element is established where the employee would not have been hired without the deception. Haddix v. Day & Night Mfg. Co., 540 S.W.2d 639 (Tenn.1975).

Employee urges that Hilliard’s knowledge of employee’s medical history must be imputed to his principal, Levi Strauss. This rule is intended to protect those who exercise good faith, and is not applicable where the party advocating the rule was aware of circumstances which plainly indicated that the agent would not advise his principal. DeFord v. Nat'l Life & Accident Ins. Co., 182 Tenn. 255, 185 S.W.2d 617 (1945). Employee’s testimony provides material evidence to support the conclusion of the trial judge that she was engaged in a conspiracy with Hilliard to conceal her medical history from Levi Strauss.

There was ample medical testimony from which the trial judge could have found that employee’s present back problems were causally related to her earlier back trouble while employed at C. R. Daniels. Doctor David Fardon testified by deposition that one with a history of back trouble is permanently impaired and this impairment results in increased risk of future back problems. The medical evidence adduced at trial revealed that all three episodes of back trouble were characterized by problems with the L-5 disc in her back. Employee’s symptoms in all three episodes were virtually identical, with the exception that pain was present in her left leg on the first two occasions and in her right leg after her most recent injury. Doctor Far-don testified as follows:

“What I have trouble with is understanding what ‘causally related’ means. I think that people who have had previous ruptured discs and previous back surgery are an increased risk to have an additional ruptured disc, additional back surgery, additional back symptoms, or require additional back care. I think that if it is changed from one leg to the other, then that is not exactly the same thing, but I think that it is causally related to the extent that she is an increased risk because of her previous trouble.
The things that I found in my examination that led me to conclude that she had some permanent impairment were primarily the historical things about having had previous back surgery and some findings that were consistent with that. I think that people who have had previous disc ruptures and previous back surgery are permanently impaired; even if they have symptom-free periods, they are impaired.”

Doctor Fardon’s testimony established that employee’s recent injury was probably causally related to the injury she sustained in 1964, and the trial judge found that it was so related. “[MJedical testimony on causation does not require proof to an absolute certainty. [citation omitted]. This rule recognizes the fact that in spite of all its praiseworthy progress, medicine is not an exact science.” Martin Bros. Container & Timber Corp. v. Lynch, 551 S.W.2d 687, 689-90 (Tenn.1977).

We note also that the decree of the trial court in employee’s 1968 suit against C. R. Daniels, admitted by stipulation in this cause, held that employee’s first back injury resulted in permanent disability. The decree was rendered in a contested lawsuit, and although it is not determinative of the question here, it does have probative value in showing that employee was not, at that time, expected to recover fully, from the 1964 injury.

At trial, the medical reports of Dr. David Hawkins were admitted by stipulation, and a letter from Dr. Fred Brown, a physician who had treated employee’s back troubles for some time, was inadvertently attached to Dr. Hawkins’ report. After reading Dr. Brown’s letter, the trial judge stated that he was going to consider it, and no objection was made by either party. Appellant here assigns as error that the letter constituted inadmissible, highly prejudicial hearsay, and that, even had it been admissible, the trial judge erred in finding that employee’s injury was not job-related because appellee did not rely on this defense. This assignment of error is rendered moot by our finding material evidence to support the judgment of the trial court that employee is estopped by fraud from recovery even if her injury be held compensable. Further, on the issue of causal connection between the prior concealed injury and the injury for which compensation is sought, it is clear that Dr. Fardon’s testimony provides substantial material evidence to support the trial court’s finding adverse to employee. Doctor Brown’s meager reference to employee’s present injury as “an aggravation of a pre-existing condition” was merely cumulative, and if erroneously considered by the trial judge, was harmless error. Tennessee Code Annotated § 27-117.

Affirmed. Costs are adjudged against appellant, Dorothy L. Foster.

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


author: HENRY, Chief Justice.

text:
    Jimmie Lee KEY, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 13, 1978.

      J. Anthony Brown, Knoxville, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., Linda R. Butts, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., John W. Gill, Jr., Asst. Dist. Atty. Gen., Knoxville, for respondent.
   OPINION

HENRY, Chief Justice.

We granted certiorari to consider the question of whether a criminal defendant is subject to the enhanced punishment provisions of Sec. 39-901, T.C.A., where his accomplice was armed and the defendant was unarmed, in the absence of proof that he knew his accomplice had a firearm in his possession. We respond in the negative.

I.

Petitioner was convicted of “armed burglary” and of being an habitual criminal under Sec. 40-2801, T.C.A. Petitioner does not appeal the determination of habitual criminal “status”, Pearson v. State, 521 S.W.2d 225 (Tenn.1975); and, in view of the fact that we leave the conviction for the underlying felony (simple burglary) intact, his conviction under the habitual criminal act is affirmed.

II.

It is undisputed that defendant did not “[have] in his possession a firearm at the time of the breaking and entering.” The record is silent as to whether he knew that his accomplice was armed. This essential ingredient may not be presumed from a silent record. We, therefore, predicate this opinion upon the admitted fact that the petitioner was not armed and the assumed fact that he did not know his accomplice had a firearm in his possession.

The trial judge charged the jury in part as follows:

[If] either one had in his possession a firearm at the time, then this defendant would be guilty of first degree burglary and this would be so even though one of the persons did not actually possess the firearm himself. Further, if you should find that one of the persons had in his possession a firearm at the time and place of the breaking and entering, then the law does not require that the other person had to have knowledge of such fact.

We find this portion of the trial judge’s charge to be erroneous. It is prejudicial, however, only to the extent of the punishment and has no bearing upon the underlying offense of simple burglary.

The Court of Criminal Appeals, relying upon Jenkins v. State, 509 S.W.2d 240 (Tenn.Cr.App.1974), overruled the petitioner’s assignment challenging the correctness of the charge and upheld the conviction.

The State expressly relies upon the following language of Jenkins:

. The common purpose need not be to commit the particular crime which is committed; if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal, if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose, or as a natural or probable consequence thereof. 509 S.W.2d at 245.

While this language is quite broad, we recognize it to be a correct general statement of the law. Its applicability to the case at bar, however, must be conditioned upon a conclusion that the concluding sentence of Sec. 39-901, T.C.A., (see footnote 1) operates to create the separate crime of armed burglary. Such a conclusion is untenable. This sentence simply prescribes enhanced punishment for a first degree burglary committed while one “had in his possession a firearm.”

This conclusion is buttressed by the derivation and history of Sec. 39-901.

Prior to 1973, this section was essentially a description of the common law offense of burglary. Ledger v. State, 199 Tenn. 155, 285 S.W.2d 130 (1955). Chapter 227, Public Acts of 1973 was captioned:

An act to amend Tennessee Code Annotated Sections 39-901, 39-903, [burglary in the second degree], 39-904 [burglary in the third degree] relative to the penalty for burglary while possessing a firearm. (Emphasis supplied.)

Thus the language under consideration (last sentence of Sec. 39-901) was added to the three burglary statutes. The 1973 amendment, as it relates to first degree burglary, simply operates to increase the minimum sentence from five (5) to ten (10) years. It reflects generally the legislature’s concern over the growing use of firearms in the commission of felonies and specifically its intent to deter individuals from going armed during the commission of a burglary thereby lessening the possibility of death or injury to occupants of burglarized dwellings.

Again, the 1973 amendment cannot be construed as creating a separate offense of armed burglary or a different degree of burglary. Possession of a firearm is made an aggravating circumstance to be considered in setting punishment. Cf. State v. Winsett, 217 Tenn. 564, 399 S.W.2d 741 (1965) (simple robbery and armed robbery).

There is no indication that the legislature intended the enhanced minimum penalty provisions to extend to anyone other than a person who “had in his possession” a firearm.

The language of Sec. 39-3901, T.C.A., the armed robbery statute, reflects an entirely different intent. There the legislature, after enacting the common law definition of robbery, and fixing the penalty at “not less than five (5) nor more than fifteen (15) years,” provided:

that if the robbery be accomplished by the use of a deadly weapon the punishment shall be imprisonment for life or for any period of time not less than ten (10) years. (Emphasis supplied).

It is of critical significance that there is no requirement in the armed robbery statute that any particular participant have a weapon in his possession or have knowledge that a fellow participant is armed. All that is required to make all guilty is that the robbery be “accomplished by the use of a deadly weapon.”

The armed robbery statute is aimed at the methodology of the crime; the armed burglary statute is aimed at the modus operandi of the individual. The broad general rules set out in Jenkins, supra, would apply to the former, but not the latter.

We have not overlooked the provisions of Sec. 39-109, T.C.A., which provides:

All persons present, aiding and abetting, or ready and consenting to aid and abet, in any criminal offense, shall be deemed principal offenders, and punished as such. (Emphasis supplied).

This section does not come into play because enhanced punishment is not “a criminal offense,” but merely a statutory means of increasing punishment.

Further, the statute on aiding and abetting may not be used to enhance punishment for a crime requiring personal participation. The reasoning of this Court in Looney v. State, 156 Tenn. 337, 1 S.W.2d 782 (1928), is compelling. There the Court, speaking through Chief Justice Green, said:

The particular offense here under consideration as denounced in the Statute [Sec. 6429 Thompson’s-Shannon’s Code, now Sec. 39—109, T.C.A.] is the personal transportation of intoxicating liquors. A personal act is “one done in person, without the intervention of another.” International Dictionary. Another must be involved before there can be any such thing as aiding and abetting. If an offense is personal in terms it must be personally committed before a conviction can be had. (Emphasis supplied). 156 Tenn. at 340-341, 1 S.W.2d at 783.

Here, we deal with a statute “personal in terms.”

In reaching this conclusion, we have applied the controlling rules of construction. First, in order to determine the legislative intent we look to the statute itself, giving its language its usual and ordinary meeting, thus avoiding any forced construction. Ellenburg v. State, 215 Tenn. 153, 384 S.W.2d 29 (1964). Reading it “with the saving grace of common sense,” Lovvorn v. State, 215 Tenn. 659, 389 S.W.2d 252 (1965), we cannot say that a statute enhancing a penalty where a defendant “had in his possession a firearm” really means “if he or his accomplice, had in his possession a firearm.” Such a construction would do violence to the commands of common sense and the promptings of gumption.

Second, we have considered the established rule that a criminal statute is strictly construed in favor of the defendant. Chadwick v. State, 201 Tenn. 57, 296 S.W.2d 857 (1956); Anderson v. State, 545 S.W.2d 951 (Tenn.Cr.App.1976). As was stated in Richmond v. State, 171 Tenn. 1, 6, 100 S.W.2d 1, 2 (1937):

Under the rule of strict construction, such statutes will not be enlarged by implication or intendment beyond the fair meaning of the language used, and will not be held to include other offenses and persons than those which are clearly described and provided for, although the court may think the legislature should have made them more comprehensive. (Emphasis supplied).

III.

We do not, however, hold that the possession contemplated by Sec. 39-901, T.C.A., must be personal and exclusive to trigger the enhancement provision. The reasoning of Judge Dwyer in Peters v. State, 521 S.W.2d 233, 235 (Tenn.Cr.App.1974), is appropriate:

The law, as we understand it, does not require actual or physical possession of the drug. If that were the case it would be a simple matter for participants in crimes of this type [drugs] to designate who was to have actual possession. The other parties would then be secure from culpability because of the fact that another was in actual possession. We think that possession means control.

The possession necessary to invoke the statutory enhancement may be actual or constructive; it may be exclusive or joint. Constructive or joint possession may occur only where the personally unarmed participant has the power and ability to exercise control over the firearm. Such possession may never exist absent knowledge that the other participant is in the possession of a firearm.

In the instant case the proof does not establish actual, joint or constructive possession.

As we have previously pointed out, the erroneous jury instruction addresses itself solely to the penalty. No assignment challenges the sufficiency of the proof to support a conviction of the underlying felony, first degree burglary. The punishment for this offense is not less than five (5) years, nor more than fifteen (15) years.

We reduce the sentence to not less than five (5) years nor more than five (5) years, the minimum permissible under the statute. If the State does not accept this reduction, a new trial will be awarded.

We affirm as to the habitual criminal status determination with resulting punishment fixed at life imprisonment in the state penitentiary.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.

      . After defining burglary and fixing the penalty therefor, Sec. 39-901, T.C.A., concludes as follows:
      Provided, however, if the person convicted of this crime had in his possession a firearm at the time of the breaking and entering, he shall be imprisoned in the penitentiary not less than ten (10) nor more than fifteen (15) years. (Emphasis supplied.)

      . Technically, there is no such offense under Tennessee law (see Sec. II, infra), but the indictment was a sufficient basis for the application of the enhancement provisions of Sec. 39-901, T.C.A.