author: PER CURIAM.

text:
    Terzah Irene COPE and William H. Cope, Plaintiffs-Appellants, v. Jack McCLAIN, also known as Earl Jackson McClain, Defendant-Respondent.
    No. 35945.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 5, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.
    Henry Gerhardt, Bruer & Rollings, St. Charles, for plaintiff-appellant.
    Robert E. Morley, O’Fallon, for defendant-respondent.
   PER CURIAM.

This is an action for damages by Terzah Cope and William H. Cope, her husband, for injuries and damages sustained as the result of an alleged battery on Terzah Cope by Jack McClain, her brother. There was a jury verdict for the defendant from which Terzah Cope and William H. Cope appeal. We regret, that we must once again, dismiss an appeal.

Plaintiff’s first point reads:

“The trial court erred in giving instruction No. 4, the defendant-respondent’s self defense instruction for the reason that there was no substantial evidence to support such a self defense instruction.”

Rule 84.04(d) requires that “the points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . . ” As far back as 1957 an assignment of error almost verbatim to the one above stated was held not to be in compliance because it fails to specify and designate wherein and in what respects the instruction is not supported by the evidence. Lewis v. Watkins, 297 S.W.2d 595 (Mo.App.1957).

Appellant is also derelict in the preparation of his brief in failing to set out in full the instruction which he seeks the court to review, in violation of Rule 84.04(e) which provides If a point relates to the giving, refusal, or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief . . . ” Failure to comply with this Rule requires that this point not be considered. Bohning v. Hegerfeld, 488 S.W.2d 297 (Mo.App.1972).

The only other assignment is:

“The trial court erred and abused its discretion in failing to grant plaintiffs-appellants a new trial for the reason that the verdict was against the greater weight of the evidence. The verdict is against the law, against the evidence and against the laws applied to the evidence, because there is no substantial evidence to support the verdict.”

Such an assignment presents nothing for our review, State v. Jackson, 477 S.W.2d 47, 53 (Mo.1972); Lewis v. Watkins, supra. In fact when one says that the verdict is against the greater weight of the evidence it implies that there is some evidence to support the verdict. Nutz v. Shepherd, 490 S.W.2d 366, 369 (Mo.App.1973). To then say that the reason that the verdict is against the weight of the evidence is because there is no substantial evidence to support the verdict is a contradiction in terms.

What was said by Judge Lamm in Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668, 670 (1908) bears repeating at this time:

“The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to be obeyed, they should be done away with once and for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it — the very ones it should not injure.”

See also Ambrose v. M. F. A. Co-operative Ass’n, 266 S.W.2d 647 (Mo. banc 1954); Lewis v. Watkins, supra, and the concurring opinion of Simeone, P. J. in Cole v. Cole, 516 S.W.2d 518, 521 (Mo.App.1974).

Not only does the violation of the Rule place an additional hardship upon the appellate courts but more importantly it places a heavy burden upon opposing counsel who should not be required to restate the facts and to guess at the issues to which he must respond and which may ultimately be the basis for the ruling of the court. As was said in Cole, supra, we are “sympathetic with the great demands on the time of counsel”, but opposing counsel also have great demands upon their time and it is with them that we must extend our greater degree of sympathy.

We must demand compliance with these simple rules in order to attain a fair and expeditious disposition of the mass of litigation flowing through our courts. Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo. App.1972).

The appeal is dismissed.

All Judges concur.


source: Caselaw Access Project

author: SMITH, Chief Judge.

license: Public Domain

text:
    Samuel MONTGOMERY, Movant, Appellant, v. STATE of Missouri, Respondent.
    Nos. 36308, 36134.
    Missouri Court of Appeals, St.Louis District, Division Four.
    Aug. 26, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Chief Judge.

Samuel Montgomery appeals from the action of the trial court in denying two post-conviction motions of movant. Montgomery is currently serving a 35 year term for assault with intent to kill with malice imposed following jury trial in 1961. The punishment was assessed by the trial court under the Second Offender Act (Sec. 556.-280, R.S.Mo.1969), following the court’s finding that Montgomery had previously been convicted in 1953 of Murder Second Degree. That conviction was the product of a plea of guilty and resulted in a ten year sentence from which defendant was discharged in 1959 after serving six and one-half years.

Movant’s first motion before us seeks to set aside the plea of guilty entered in 1953. Since the sentence has long since been served, the trial court properly treated this motion as an application for a writ of error coram nobis. See Laster v. State, 461 S.W.2d 839 (Mo.1971) [1], Movant’s second motion before us is a Rule 27.26 motion seeking to set aside the 1961 conviction because movant was not a second offender and therefore was entitled to have the jury determine his punishment. Obviously, the relief sought by movant in the second motion is contingent upon him prevailing on the first.

Movant’s 1961 conviction was reviewed by the Supreme Court on appeal in 1963 and 1968. See State v. Montgomery, 370 S.W.2d 316 (Mo.1963) and State v. Montgomery, 424 S.W.2d 744 (Mo.1968). No contention was made on either appeal that the trial court’s finding that the movant was a second offender was erroneous. Movant also had previously filed a 27.26 motion attacking the 1961 conviction, which motion was denied and which denial was affirmed by the Supreme Court. See Montgomery v. State, 461 S.W.2d 844 (Mo.1971).

The only matters raised before this court involve the validity of the 1953 conviction and its effect upon the 1961 conviction. The attack against the 1953 conviction is two-fold: (1) The proceedings took place in the judge’s chambers and not in open court and (2) the plea was not voluntarily made because an inadequate questioning and explanation of defendant’s rights occurred. We have some substantial doubts that either of these matters entitled movant to an evidentiary hearing. The underlying basis of both movant’s motions is to set aside the 1961 conviction. Whether defendant was a second offender at the time of that conviction was a question of fact to be determined by the trial court in that proceeding. See State v. Thomas, 452 S.W.2d 160 (Mo.1970) [7]; State v. Garrett, 435 S.W.2d 662 (Mo.1968 [2, 3, 4], If as a matter of fact or law the evidence failed to support that finding, the matter should have been preserved for and raised on appeal. Whether the plea of guilty was voluntary and whether it was taken in open court are not questions determined by Constitutional doctrines established subsequent to the appeal of the second conviction. They could and should have been raised on appeal from that conviction, and Rule 27.26 is not designed as a method of appellate review.

The trial court, however, held a full evidentiary hearing and Judge Harold Satz prepared an extensive, thorough, well reasoned and complete memorandum on the facts and the law. We have carefully reviewed those findings and conclusions and the record upon which they are based, and find the action of the trial court fully supported by the evidence and the law. The court placed no credibility on the testimony of movant and found that, although the record made at the time of the guilty plea falls short of present day requirements, defendant was aware of his right, was properly advised by competent and experienced counsel and entered his plea voluntarily. See Flood v. State, 476 S.W.2d 529 (Mo. 1972). We do not find these determinations to be clearly erroneous.

The record of the 1953 guilty plea reflects it was made “in open court.” Defendant’s testimony twenty years after the plea is, by itself, insufficient to impeach the records of the court. State v. Harrison, 299 S.W.2d 479 (Mo.1957).

The judgment is affirmed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.

      . The requirements of trial and appellate procedure requiring preservation of error serve a vital function in the administration of justice. They permit prompt correction of error and immediate retrial while witnesses are still available and memories fresh. It is not infrequent to have evidence of a prior conviction either stipulated to or at least not contested. It is also not infrequent for prosecutors to establish only one of several prior convictions for reasons of economy of time or money. Where the legal principles which cause a prior conviction to be invalid have already been established by the courts at the time of the second conviction, we can see no valid reason why the attack on the prior conviction should not be made at that time rather than years later on a Rule 27.26 motion. Compare Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962 (1947) and Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Particularly is this true where the record shows the prior conviction to be presumptively valid rather than presumptively void.

      . This includes movant’s contention, advanced twenty years after the fact and refuted by other testimony, that he had a valid self-defense argument.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory DAVIS, Defendant-Appellant.
    No. 35493.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 9, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.

      Rau & Martin, James M. Martin, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a jury verdict finding him guilty of robbery first degree by means of a dangerous and deadly weapon. On appeal the defendant raises four (4) principal contentions for our consideration: (1) That the trial court erred in refusing to suppress lineup and subsequent in-eourt identification said to be the product of im-permissibly suggestive procedures; (2) That post-trial examination of the foreman of the jury revealed an improper consideration of the defendant’s failure to testify in violation of the defendant’s right against self-incrimination; (3) That the trial court erred in giving an instruction connecting reasonable doubt with substantial doubt thereby shifting the burden of proof to the defendant; and (4) That the defendant was entitled to a judgment of acquittal because he has demonstrated the use of peremptory challenges by the State for the systematic exclusion of blacks from jury service.

The defendant does not challenge the sufficiency of the evidence; therefore, we will simply summarily highlight the facts relevant to defendant’s contentions.

On January 18, 1970, a Velvet Freeze store in St. Louis County was robbed. The two employees of the store, Davis and Ebert, viewed the robber at the time of the incident and Ms. Davis recognized the robber as a previous customer of the store. On the night of the robbery, Ms. Davis gave a fairly inexplicit description of the man to the police.

Approximately two years later, the defendant was arrested and placed in a lineup with two other men. It appears that there was some disparity in the heights of the participants and that one of the participants was a uniformed member of the police custodial staff. At the lineup, Ms. Davis identified defendant as the perpetrator of the robbery. At the trial one year later, the defendant was identified by both employees of the store. The defense attempted to impeach the identifying testimony of Ms. Davis by establishing that she could not clearly establish the duration of the robbery nor recall certain other facts. On cross-examination, Ebert admitted that he had discussed the matter of identification with Ms. Davis in the hall of the courthouse but insisted that his in-court identification of the defendant was based on observations on the night of the robbery.

At the conclusion of the trial, the judge gave one instruction connecting reasonable doubt with substantial doubt. The nature of the instruction is further explored subsequently.

Following the trial, the defendant entered a motion for judgment of acquittal charging use by St. Louis County prosecutors of peremptory challenges to systematically exclude blacks from jury service. The motion, buttressed by a statistical memorandum, was denied.

Following the proceedings, the defense attorney apparently spoke with the foreman of the jury who revealed some discussion in jury chambers regarding the failure of the defendant to take the stand. Over the objection of the State’s attorney, the foreman of the jury was examined. Defendant’s motion for a new trial on this point was overruled.

Defendant’s general contention concerning the suppression of identification testimony is multi-pronged. The lineup identification is characterized as the product of suggestive procedures. The in-court identification of the defendant is challenged as equivocal and as derivative from the allegedly suggestive lineup. In assessing the general contention, we must keep in mind that what we are guarding against is the “substantial likelihood of irreparable misidentification,” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and that the admissibility of identification testimony is determined in light of the totality of the circumstances, State v. Parker, 458 S.W.2d 241, 243 (Mo.1970) and State v. Cole, 519 S.W.2d 370, 372 (Mo.App.1975). As an aid in the application of this totality of the circumstances approach, Missouri courts have suggested a three-part test requiring that:

“ . . . consideration be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification. . . . ” (State v. Parker, 458 S.W.2d 241, 244)

This three-part test has been reaffirmed by subsequent Missouri courts, State v. Boothe, 485 S.W.2d 11, 13 (Mo.Banc 1972); State v. Tidwell, 500 S.W.2d 329, 331 (Mo.App.1973); State v. Murphy, 508 S.W.2d 269, 274 (Mo.App.1974) and State v. Goff, 516 S.W.2d 818 (Mo.App.1974). Several more specific considerations are encapsulized in the three-part test.

The first of these more specific considerations requires attention to the mechanics of the lineup. This examination fits most neatly under the second listed factor of the Parker test. In the present ease there is no claim of police prompting witnesses or other police misconduct. The defendant isolates as suggestive factors a disparity in the height of the participants and the clothing of one of the participants. In evaluating this contention of the defendant, we must keep in mind that “ . [pjersons in a lineup cannot be identical, and to say that one was ‘darker’ or taller than another does not establish unfairness. ...” Gaitan v. State, 464 S.W.2d 33, 35 (Mo.1971). Noticeable differences in the appearance and clothing of the participants in lineups have repeatedly been held not to necessitate a finding of suggestiveness, State v. Britt, 504 S.W.2d 38, 41 (Mo.1973); State v. Lee, 491 S.W.2d 317 (Mo.Banc 1973); State v. Cole, supra, at 373 and State v. Tidwell, supra, at 332. The suggestiveness of a lineup should be measured by a subjective test in terms of its effect on the identifying witness.

The importance of this observation is highlighted in the present case by recognition that the defendant has failed to suggest any prejudice resulting from the disparity in height. The identifying witness was only about 5'4" tall and admitted during cross-examination by defense counsel that she was not a very good judge of height. To the witness, the participants in the lineup were “all tall men. All about the same height.” The disparity in heights can hardly be labelled as a prejudicially suggestive factor when it was not even noticed by the identifying witness. The different clothing of one of the participants in the lineup also does not seem to be a prejudi-cially suggestive factor. Defendant’s complaint here is not that he appeared in the lineup in distinctive clothing as did the defendant in State v. Everly, 430 S.W.2d 156 (Mo. 1968), but rather that another participant was a “ . . . uniformed member of the police custodial staff. . . . ” Upon viewing the photograph of the lineup, we fail to see anything distinctive about the clothing of this participant. He is pictured wearing blue jeans and a dark lightweight jacket without any visible insignia. Once again defendant has failed to demonstrate any plausible suggestive effect on the identifying witness. Our conclusion is that the lineup was not suggestive.

Even if the lineup were suggestive, parts 1 and 3 of the Parker three-part test would indicate another approach under which identification testimony may be admissible. This alternative approach requires a judicial examination of the existence of an independent source for the identification, State v. Payne, 452 S.W.2d 805, 810 (Mo.1970). The presence of an independent source will serve to remove any taint that might result from a suggestive confrontation, State v. Goshon, 506 S.W.2d 99 (Mo.App.1974) and State v. Davis, 507 S.W.2d 32, 35 (Mo.App.1974). Isolation of an independent source requires consideration of numerous factors including:

“ . . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” {Neil v. Biggers, supra 409 U.S. at p. 199, 93 S.Ct. at p. 382)

Neil v. Biggers, supra, dealt specifically with an independent source for a pre-trial identification but a similar analysis should be applicable to the assessment of an independent source for an in-court identification. Applying this test to the present case reveals an independent source. The witness viewed the defendant at close range for some minutes, State v. Goshon, supra. Ms. Davis recognized the defendant as a previous customer of the store, State v. Johnson, 457 S.W.2d 762 (Mo.1970). The description given to the police was not specific but also was not inaccurate. There was no showing of any hesitancy in the identification at the time of the lineup. The transcript of the trial reveals a similar certainty in the witness’ in-court identification. The final listed factor, the length of time between the crime and the identification initially, appears significant in the present case. Two years passed between the crime and the lineup — three between the crime and the trial.

In the Neil case, a seven (7) month lapse of time was suggested as a “seriously negative factor in most cases.” The lapse of time was, however, held not to be fatal to the identification because of the decisiveness of the other factors. A similar analysis negates any effect of the delay involved in the present case. The conclusion is that the trial court did not err in finding that the in-court identification of the defendant by the witness Ms. Davis had an independent source resting in the view of the defendant at the time of the crime. Ms. Davis so testified. Analysis of the in-court identification by the other witness, Mr. Ebert, reveals the same independent source for the identification. While Ebert admits that he discussed the identity of the defendant with Ms. Davis in the hall of the courthouse, Ebert’s testimony is that he based his identification on seeing the defendant at the scene of the crime.

The only remaining consideration relates to the certainty of the in-court identification. Appellant suggests several circumstances questioning the identification but all of these circumstances should go to the weight of the identification rather than the admissibility.

The trial judge, therefore, did not err in refusing to suppress the lineup and in-eourt identification.

An additional claim of the defendant is that the jury acted improperly in that it drew adverse inferences from the defendant’s failure to testify thereby violating defendant’s Fifth Amendment protection against self-incrimination. Defendant attempts to support this contention by reference to the transcript of the post-trial testimony of the jury foreman. The contention, however, is foreclosed by two considerations.

First, we note that the defendant’s proof of such misconduct is far from overwhelming. The testimony of the foreman consists simply of his impressions of the thoughts of other unnamed members of the jury. The testimony of the foreman also reveals that, “ . . . the statement was also made (that) this would in no way, shape or form have any bearing on the case being tried.

Secondly, both the approach taken by the defendant and the result sought run counter to the long-recognized general rule in Missouri that a jury will not be heard to impeach its own verdict, State v. McDaniel, 392 S.W.2d 310, 318 (Mo.1965) (juror visited scene of crime during deliberations, contrary to court’s instructions); State v. Beal, 474 S.W.2d 830, 833 (Mo.1971) (juror misconstrued meaning of an item of evidence) and State v. Foster, 490 S.W.2d 659, 661 (Mo.App.1973) (juror took notes in trial). The general rule makes inadmissible the testimony of jurors relating to allegations of misconduct. V/hile the rule has been subjected to criticism as arbitrary in its limits, it has been recognized as a protection of the finality of verdicts. Apparently Missouri courts have rejected the criticisms. The prohibition against the post-trial examination of jurors seems most reasonable where, as here, the attempt is to probe the decision making processes of the jury. A claim identical to that of the defendant in the present case, that the jury drew adverse inferences from the defendant’s failure to testify, has been rejected as contrary to the general rule as long ago as State v. McGinnis, 320 Mo. 228, 7 S.W.2d 259 (1928).

Another contention of defendant’s is that the trial judge erred in submitting the case to the jury under an instruction connecting reasonable doubt with substantial doubt. First, we note that this contention of defendant’s has not been properly preserved for review due to the failure of the defendant to set out the allegedly erroneous instruction in the argument portion of his brief as required by § 84.04(e), V.A.M.R. Similar inadequacies were pinpointed in State v. Larkins, 518 S.W.2d 131, 135 (Mo.App.1974) and State v. Mesmer, 501 S.W.2d 192, 197 (Mo.App.1973). Defendant here not only failed to set out the instruction but also misdirected the court’s attention by reference in the brief to “Instruction No. 8” while Instruction No. 5 is the only instruction actually bearing on reasonable doubt.

Furthermore, even if the point had been preserved for review, we would reject it in the present case. The instruction objected to was as follows:

“The law presumes the defendant to be innocent and this presumption continues until it has been overcome by the evidence which proves the defendant’s guilt beyond a reasonable doubt; and the burden of proving the defendant’s guilt rests with the State.
“If, however, this presumption has been overcome by the evidence and the guilt of the defendant proved beyond a reasonable doubt, your duty is to convict.
“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground out (sic) to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of the defendant’s innocence.” (Emphasis added.)

As recognized by the defendant, this reasonable doubt instruction has been in use in Missouri for over a century, apparently originating in State v. Nueslein, 25 Mo. 111, 124 (1857). The instruction has withstood a multitude of attacks like the defendant claiming that it is confusing or shifts the burden of proof. A few recent examples of such judicial approval include State v. Aikens, 507 S.W.2d 386 (Mo.1974); State v. Scott, 491 S.W.2d 514 (Mo.Banc 1973); State v. Taylor, 506 S.W.2d 94 (Mo.App.1974) and State v. Brown, 527 S.W.2d 15 (Mo.App.1975). While we are aware of the logical dilemma expressed so well by Judge Seiler in his concurring opinion in State v. Davis, 482 S.W.2d 486 (Mo.1972), we must also recognize, as he did, that it seems improper to label the trial judge’s use of such instruction as error where the instruction has been so long approved, State v. Davis, supra, at 489. We do not reject defendant’s contention simply because of the instruction’s continued acceptance but also because “ . . . [w]e cannot say here as a matter of law that a jury of reasonably intelligent men and women were confused and misled by the instruction in returning their verdict against this defendant.” State v. Yarbrough, 506 S.W.2d 90, 92 (Mo.App.1974).

Defendant claims a denial of his Sixth Amendment right to an impartial jury of his peers by virtue of the St. Louis County prosecutor’s office’s use of peremptory challenges to exclude black jurors from the jury panel. Claims identical to that of the defendant’s have been frequently litigated in Missouri courts and uniformly have been unsuccessful. Three distinguishable lines of analysis have been utilized to dispose of such contentions. All three might be said to derive from the landmark case on the subject of exclusion by peremptory challenges, Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Applying any of the three approaches to the present case yields the defendant’s defeat.

The first line of analysis yras demonstrated in State v. Collor, 502 S.W.2d 258, 261 (Mo.1973) where the court observed:

“ . . . Allowing of peremptory challenges, as the last step in the selection of a petit jury, has long been accepted as a fair and logical method of eliminating persons suspected of having some latent bias or prejudice that could not be reached through a challenge for cause. The defendant, as well as the state, participates in this refinement process. If either is motivated by bigotry or racism, it is to be abhored; however, absent a constitutional prohibition against the procedure, or the advancement of a fairer method of accomplishing the same objective, the practice of allowing peremptory challenges should not be abolished.” (Emphasis added.)

This analysis might best be labelled as pragmatic. It seems to admit the possibility of the discriminatory use of peremptory challenges but emphasizes the necessity of maintaining some system comparable to peremptory challenges. The Collor court might find some support for its approach in Swain’s praise for the peremptory challenge system as a “ . . . necessary part of trial by jury . . ” Swain, supra, 380 U.S. at 219, 85 S.Ct. at 835, which “ . . . serves (a function) in a pluralistic society in connection with the institution of jury trial . ” Swain, supra, at p. 222, 85 S.Ct. at p. 837. The Swain court felt that the value of the peremptory challenge system was sufficient to justify the insulation of the system from examination in any individual case — see also State v. Davison, 457 S.W.2d 674, 677 (Mo.1970) and State v. Huddleston, 462 S.W.2d 691, 692 (Mo.1971) — but did not legitimize a total foreclosure of examination of the overall system if the defendant could establish systematic exclusion on a case by case basis. A broad reading of Collor, however, could suggest such total abstention. It seems that Collor should not be read broadly to immediately foreclose analysis because such a reading results in the championing of a procedural device, the peremptory challenge, over a constitutional right, the right to an impartial jury. Such a result was soundly criticized by the dissenting justices in Swain v. State of Alabama, supra, and apparently rejected by the majority opinion in Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). The peremptory challenge system should, therefore, remain open to attack where the defendant makes a sufficient showing. The difficulty of devising an alternative to the system is real but should not be dispositive. In the present case, however, the defendant’s attack on the peremptory challenge system is found to be insufficient.

A very recent decision of the Missouri Supreme Court may reveal another approach to the problem of jury exclusion. In most of the cases dealing with jury exclusion, the courts and defendants have framed the issue in the context of a black defendant’s right to an impartial jury. The emphasis of defendants and courts has, therefore, been on the practices of prosecutors in cases where the defendant is black.

In State v. Baker, 524 S.W.2d 122 (Mo.Banc 1975), the defendant offered a verified motion to support his claim of systematic exclusion by use of peremptory challenges. Defendant’s emphasis of the allegation that the exclusion was particularly marked “where the accused is a Negro” was latched onto by the court as the fatal flaw in the contention, State v. Baker, supra, at p. 125. The inference drawn from defendant’s allegation was that blacks are not excluded from juries when the defendant is not a black and, therefore, that a violation of Swain was not established, State v. Baker, supra at p. 125. The rejection of defendant’s claim was justified under that portion of Swain suggesting the necessity of demonstrating exclusion “ . in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be . .” Swain v. State of Alabama, supra, 380 U.S. at 223, 85 S.Ct. at 837. (Emphasis found in Baker.) We read Baker as adopting a slightly different approach from that of other Missouri cases to the.extent that it requires examination of the practices of prosecutors in excluding black jurors where the defendant is white.

If the test of Baker is applied to the present case, the defendant must lose. Apart from any appraisal of the sufficiency of defendant’s proof with regard to the exclusion of blacks in the case of black defendants, the defendant’s statistics in cases of white defendants appear wholly insufficient to carry the defendant’s burden of proof. The statistics presented in the defendant’s memorandum indicate that the state only used its peremptory challenges to strike about one-third of the potential black jurors when the defendant was not black. These statistics can hardly be said to demonstrate systematic exclusion on a case by case basis if the practices of the prosecutor’s office must be evaluated for both black and white defendants.

The final and most common approach to the problem of systematic exclusion by peremptory challenges suggests the possibility of a defendant establishing such exclusion by evidence. It is, therefore, technically distinguishable from the previously discussed approach of the Colior court to the extent that Colior forecloses examination. The very heavy and often shifting burden of proof imposed upon the defendant may, however, as a practical matter, make this third approach comparable to the Colior approach.

In the present case the defendant attempts to shoulder the burden of proof by means of a detailed statistical memorandum examining the record of peremptory challenges in about one year of St. Louis County criminal cases. The memorandum separates strikes by the state and strikes by the defendant, thereby satisfying the requirement of a defendant demonstrating the particular responsibility of the state, as distinguished from defense counsel’s participation in the alleged exclusion. It is with regard to the additional “case by case” proof requirement enunciated by Swain that the defendant here fails. A few recent cases illustrate the perhaps insuperable proof problem confronting the defendant. In State v. Booker, 517 S.W.2d 937 (Mo. App.1974), the defendant supported his claims with records compiled by a reporter covering fifty-two (52) jury panels in the case of black defendants over a period of one and one-half (1½) years which revealed the following:

“ . . . Ninety-four blacks were on these panels. Of these, twelve were alternates and never subject to challenge. Of the remaining eighty-two potential black jurors, fifty-seven were peremptorily struck by the state. Five were peremptorily struck by defendants; another five were struck for cause by either side. Fifteen black jurors actually served on trial juries involving black defendants. About sixty-eight per cent of prospective black jurors were removed by the state’s use of peremptory strikes.” (State v. Booker, supra, at 939-940)

The proffered evidence was summarily rejected as insufficient and as not even reaching to the level of proof in State v. Dinkins, 508 S.W.2d 1 (Mo.App.1974). In Dinkins, the defendant adopted testimony adduced in the trial court in State v. Coiior, supra. The defendant’s claim of systematic exclusion was also rejected summarily in both Dinkins and Coiior. The evidence presented in Coiior and adopted in Dinkins is described in State v. Booker, supra, as including:

“ . . . statements by a former prosecutor from St. Louis County who testified that it had been his practice to exclude blacks from juries whenever he prosecuted a black defendant. Testimony was also given by members of the Public Defender’s office who regularly tried cases in which all or most of the blacks were struck by the state . . . ” (State v. Booker, supra, at 941)

In the present case the defendant’s statistics reveal thirty-one cases involving black defendants. Of forty-four (44) black jurors empaneled apparently six (6) were not sworn. Of the thirty-eight (38) black jurors sworn, the state struck twenty-nine (29), the defense struck two (2) and two (2) were struck for cause. About seventy-five percent (75%) of potential black jurors were removed by the state’s use of peremptory strikes.

In the twenty-seven (27) cases of white defendants, thirty-six (36) blacks were empaneled of which apparently twenty-nine (29) were subsequently sworn. The state used its peremptory strikes to eliminate twelve (12) of the twenty-nine (29), the defense struck two (2) and five (5) were struck for cause. About forty percent (40%) of the potential black jurors were removed by the state’s use of its peremptory challenges.

In assessing the present defendant’s attempt to carry the burden of proof, we note that the statistics compiled by the defendant here apparently represent a subset of the statistics presented to this court in the case of State v. Booker, supra. The statistics here are reported as covering the period from the Fall of 1972 through the Spring of 1973. The statistics in Booker, covered cases involving black defendants from November of 1971 through May of 1973, State v. Booker, supra, at p. 939. It is difficult to understand how we could label the current statistics as adequate in light of the decision in State v. Booker, supra. While the compilation in the present case may reveal a slightly higher percentage of exclusion of black jurors in cases of black defendants than was shown in Booker, this may well reflect a very real problem in attempting to utilize statistics to prove systematic exclusion, in light of the observed relationship between the two sets of statistics. The statistics can be misleading.

Any systematic exclusion of blacks from juries is deplorable but, in the law, discrimination may not simply be labelled, it must be proven. With considerable hesitancy, we hold that the defendant in the present case has failed to satisfactorily demonstrate systematic exclusion of black jurors on a case by case basis.

Judgment is affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . See McCormick, Evidence 2d Ed. 1972, p. 148.

      . This case was tried February 6, 1973; therefore, we note that the above instruction, pursuant to Supreme Court Rule 20, entitled “Instructions and Verdict Form in Felony Cases,” adopted and effective January 1, 1974, MAI-CR, will no longer be given.

      . This concurring opinion was noted by the majority in United States v. Atkins, 487 F.2d 257, 260 (8th Cir.1973). The Atkins court’s disapproval of the reasonable doubt-substantial doubt formulation was dicta. Trial counsel had not objected to the instruction when given. The Court of Appeals held that giving the instruction in this situation did not equal plain error.

      . An excellent analysis of the whole problem of peremptory challenges is found in Van Amburg, “A Case Study of The Peremptory Challenge: A Subtle Strike at Equal Protection and Due Process,” 18 St.L. U.J. 662 (1974). Discussion of the procedural device-constitutional right dilemma is found at page 670.

      . The problem is that the suggested alternatives seem to require legislative action. Such alternatives include redrawing jury districts to give the black community numerical security on the venire panel, making the jury source list more truly representative and applying the federal cross-section rule to state juries. See Van Amburg, supra, at p. 671. Another approach is to lessen the number of peremptories available to the state. Along these lines the Missouri statute was challenged as unconstitutional in State v. Davison, supra, as giving the state too many challenges and thereby creating a situation tending to foster discrimination. The defendant’s claim was viewed as being foreclosed by Swain v. State of Alabama and State v. Davison, supra, at 677.

      . See, “Note: The Case for Black Juries,” 79 Yale Law Jrnl. 531, 537 (1970). Perhaps the Baker court’s approach requiring the defendant to demonstrate systematic exclusion in the cases of both black and white defendants derives from a different appraisal of the purpose of preventing exclusion of blacks from juries. That prevention of exclusion from juries serves a dual purpose which has been long recognized: “ . In Strauder (Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664), the Court observed that the exclusion of Negroes from jury service injures not only defendants, but also other members of the excluded class: it denies the class of potential jurors the ‘privilege of participating equally ... in the administration of justice,’ 100 U.S., at 308 . . . .” (Peters v. Kiff, supra, 407 U.S. at p. 499, 92 S.Ct. at p. 2167). In terms of protecting the “privilege of participating equally in the administration of justice,” perhaps the race of the particular defendant is not the important factor in examining a claim of discriminatory exclusion from jury service.

      . Van Amburg, supra, at 683, suggests that the heavy burden of proof makes the constitutional principle a hollow one. The dissenting opinion in Swain expressed a similar appraisal, Swain v. State of Alabama, supra, 380 U.S. at 242, 85 S.Ct. 824.

      . Defendant’s failure to isolate the responsibility of the state was noted as the failure of proof in Swain v. State of Alabama, supra, 380 U.S. at 224, 85 S.Ct. 824.


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Percy Lee SIMPSON, Defendant-Appellant.
    No. 35864.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 16, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.

      Christopher T. Hexter, Legal Aid Society, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Percy Lee Simpson appeals from his conviction of burglary in the Second Degree, § 560.045, RSMo 1969. After a hearing out of the presence of the jury, the trial court also made a finding that the defendant had previously been convicted of a felony, to-wit: Stealing from a Dwelling House, §§ 560.156 and 560.161 ¶ 2[1], RSMo 1969, that the evidence satisfied the requirements of § 556.280 RSMo 1969, the Second Offender Act, and, after the finding of guilty by the jury, imposed a sentence of five years in the custody of the Missouri Department of Corrections. This appeal followed.

Defendant does not challenge the sufficiency of the evidence to support the jury verdict. Therefore, a brief statement of the State’s evidence, viewed in a light most favorable to the verdict arrived at by the jury, is sufficient.

On June 18, 1973, at about 2:45 p. m., the Reverend Arthur Althoff, a Catholic priest, was seated in his bedroom on the second floor of the rectory of St. Barbara’s Catholic Church, located at 1371 Hamilton Avenue in the City of St. Louis, when the door to the rectory study, located adjacent to the bedroom in which Father Althoff was sitting, was opened and he saw a “strange face” peering into the room. The door was immediately closed and he heard footsteps running away from the door. He got up and pursued the fleeing person to the first floor of the rectory where he apprehended a man, later identified as, this defendant, as the man was attempting to exit through a window of the rectory office. While he pursued the fleeing man Father Althoff observed that the man was carrying a radio, Father Althoff’s personal property, which had previously been on a desk in the second floor office of the rectory. The man dropped the radio he was carrying on the floor of the rectory office as he was attempting to flee through the window. After the priest apprehended the defendant he called his housekeeper who called the police and notified them of the burglary. Father Althoff observed a tear or rip or cut in the screen or window in the first floor rectory office through which the defendant attempted to flee. He further testified that the only access to the rectory was through the front door and that all of the doors and windows, except for the window in the rectory office, had been closed. He had been in the rectory office until noon on that morning and at that time, although the window was open, the interior screen was in perfect condition. There was also testimony from a police officer attached to the Identification Division of the St. Louis Metropolitan Police Department who testified as a fingerprint expert that he was able to classify a fingerprint found on a cigar box taken from the counting room of the rectory as a fingerprint of the defendant’s right ring finger.

Defendant presents to this court two Points — that the trial court erred:

1. in overruling his challenge to one of the veniremen for cause after the jur- or stated that he would give more credence to the testimony of a priest than that of other witnesses simply because he was a priest, and
2. in giving Instruction No. 3 and in refusing his Instruction No. A, both burden of proof instructions.

We have considered both Points and affirm.

With respect to defendant’s first Point, although he states in his brief filed in this court that he had to use one of his peremptory challenges to remove the juror, there is nothing in the record to support this allegation. The record in this court contains defendant’s request that the juror be challenged for cause and the trial court’s denial of that request. But the record is devoid of any evidence that it was the defendant who removed the juror from the panel by the exercise of a peremptory challenge.

The Supreme Court of this state was faced with this same problem in State v. Londe, 345 Mo. 185, 132 S.W.2d 501, 504[7] (1939) and there said: “If the State peremptorily challenged the questioned veniremen and appellant was not required to exhaust any of his peremptory challenges in striking said veniremen from the jury list; was appellant prejudiced by the court’s ruling, if error? There is no legal proof in the instant record showing that the State did not peremptorily challenge said veniremen or that appellant was required to exhaust any of his peremptory challenges in removing said veniremen from the trial jury.” (Emphasis supplied). It is the responsibility of the trial counsel to preserve for appeal a proper record and we may not go outside the record itself to determine issues not properly preserved therein. The record in this case reveals that the juror in question did not serve on the jury which tried this case. However, the record fails to reveal who used a peremptory challenge to remove him from the trial jury. Defendant, in his Statement of Facts in the brief filed in this court, states that he objected to the presence of the juror on the panel after his challenge for cause had been denied; but he does not therein state that he used one of his peremptory challenges to remove the juror from the panel. It is, for the first time, in his Points Relied On that he states: “Appellant was forced to exercise one of his peremptory challenges to his detriment in order to remove Mr. Alexander from the panel.” This is unsupported by the record. We rule this Point against defendant.

The thrust of defendant’s argument on Point II is directed against the inclusion in the burden of proof instruction given by the trial court the phrase “but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt and not a mere possibility of defendant’s innocence.” He argues that this lightened the State’s burden of proof. This same point has been before the appellate courts of this State on numerous occasions and at the time this case was tried, June 18, 1973, this was the instruction approved by the Supreme Court en banc, State v. Scott, 491 S.W.2d 514, 520[11] (1973). We rule this Point against the defendant.

We have examined those portions of the record we are required to by Rule 28.02 and find them to be in order.

The judgment is affirmed.

SMITH, C. J., and STEWART, J., concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Jud Flynn WHITE, Appellant.
    No. 9839.
    Missouri Court of Appeals, Springfield District.
    Oct. 3, 1975.
    Motion for Rehearing or To Transfer to the Supreme Court was Denied Oct. 23, 1975.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Dee Wampler, Wampler & Wampler, Springfield, for appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

A Greene County jury found defendant Jud Flynn White guilty of selling marijuana and fixed his punishment at five years in the custody of the Department of Corrections. Following an unsuccessful motion for new trial, allocution was granted and defendant was formally sentenced. In this appeal ten alleged errors are asserted by the defendant as grounds for reversal, but for the reasons which follow we affirm.

The sufficiency of the evidence to support the verdict of the jury is not questioned, and a brief statement of facts giving rise to the charge against the defendant and his resultant conviction will suffice.

At about 10:40 p. m. on October 15, 1973, two undercover narcotics agents, Trooper D. W. Lipp of the Missouri State Highway Patrol and Deputy Sheriff Bill McConnell of the Greene County Sheriff’s Office, met Dan Gullet and Jim Odzark at Gullet’s apartment in Springfield, Missouri. The two officers had previously purchased narcotics from Gullet and had arranged this meeting to complete negotiation for the purchase of a large quantity of marijuana. By 11:00 p. m. Gullet agreed to sell the officers 27 kilograms of marijuana for $75.00 per pound. Gullet, Odzark and the two officers left the apartment and walked to a public telephone booth from which Gullet made a telephone call. Immediately after completing this call, Gullet told the officers he would go pick up the quantity of marijuana and they were to meet him and “his contact” at 12:15 a. m. on the southwest corner of the parking lot of the Fountain Plaza Apartments in Springfield where the officers maintained an “undercover apartment.” It was agreed that Odzark would remain with the officers and accompany them to the meeting.

When the officers and Odzark arrived at the designated meeting point in an unmarked patrol car, Gullet and the defendant were sitting in Gullet’s parked pickup truck. The five men got out of the vehicles and walked to the rear of the truck. Gullet stated the marijuana was in a large wooden box in the back of the truck. Deputy McConnell slid the box to the rear of the truck bed and began to open it, but the defendant protested there was too much traffic on the parking lot and said the box should be taken inside the apartment building before it was opened. The defendant and Deputy McConnell, accompanied by Gullet, Odzark and Trooper Lipp, carried the box into the apartment rented by the officers.

Inside the apartment the defendant asked Deputy McConnell if he had the money. The deputy replied, “Yeah, I have it.” and showed the defendant an envelope containing $4,000.00. Defendant reached for the envelope, but McConnell pulled it back and asked to see the marijuana. Defendant then opened the wooden box and placed 27 packages wrapped in brown paper on a coffee table. Deputy McConnell walked to the dining room table and counted out $4,000.00. Odzark noted this sum was $70.00 short of the agreed price whereupon McConnell took this latter sum from his billfold and added it to the money on the table. At this point the defendant reached to pick up the money. McConnell and Lipp announced they were police officers and placed Gullet, Odzark and the defendant under arrest.

The packages defendant had placed on the coffee table were replaced in the wooden box and taken to police headquarters. Later that morning a police chemist randomly selected five of the 27 packages for analysis of their contents. Each of these packages weighed about two pounds and contained marijuana.

In this appeal we are initially confronted with the defendant’s failure to comply with Rule 84.04 in the preparation of his brief filed herein. The deficiencies and defects of the brief do violence to the requirements of paragraphs (b), (c), (d), (e) and (h) of Rule 84.04 as hereinafter noted.

The jurisdictional statement is inadequate since it fails to “. . . [S]et forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of the Constitution whereon jurisdiction is sought to be predicated.” Rule 84.04(b).

The statement of facts consists of six sentences. Only two of the sentences contain transcript page references. Rule 84.-04(c) calls for a fair and concise statement of the facts relevant to the questions presented and paragraph (h) of the Rule requires transcript page references to be included in the statement.

The points relied on fail to advise us wherein and why actions or rulings of the trial court sought to be reviewed are claimed to be erroneous, and in the main are abstract statements of law without any showing how they are related to any action or ruling of the lower court. Rule 84.04(d).

Points I, IV, and V(B) purport to attack two instructions given by the court. The instructions are not set forth in the argument portion of the brief as mandated by Rule 84.04(e).

Points II, III, V(A), V(B), V(C), V(D), V(E) and V(F) were not included in defendant’s motion for new trial and thus not preserved for appellate review. Rule 27-20(a), 28.02, 70.02; State v. Rennert, 514 S.W.2d 579 (Mo.1974); State v. Grey, 525 S.W.2d 367 (Mo.App.1975). Nevertheless, defendant urges us to invoke the plain error provision contained in Rule 27.20(c) as to the matters mentioned in the six points listed under point V.

Defendant recognizes the invocation of the plain error rule is directed to the discretion of the court and is available to a defendant in a criminal casé when the court “deems that manifest injustice or miscarriage of justice has resulted” from plain errors affecting substantial rights. However, before the plain error doctrine comes into play, there must be a “ ‘sound, substantial manifestation ... a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.’ ” State v. Caffey, 457 S.W.2d 657, 660 (Mo.1970). And, when guilt is established by overwhelming evidence, no injustice or miscarriage of justice will result in a refusal to invoke the plain error doctrine. State v. Hurtt, 509 S.W.2d 14 (Mo.1974).

We have carefully read the original transcript filed herein by trial counsel and the supplemental transcript filed by counsel employed on appeal with the foregoing principles in mind. We find no basis for reviewing the various assignments as plain errors because they are lacking in merit and did not result in injustice or a miscarriage of justice. Additionally, as the facts related herein attest, the defendant’s guilt of the crime charged was established by the state by overwhelming evidence. We decline review under Rule 27.20(c).

Rule 28.18 provides the Rules of Civil Procedure, with exceptions not here involved, are to be followed and govern in the appeals of criminal cases. Consequently, Rule 84.04 applies equally as well to the preparation of briefs in criminal appeals as in civil appeals. While evidencing a reluctance to do so, and in case after case overlooking clear violations of Rule 84.04 and ruling the appeal on its merits, the appellate courts of this state are finding it more and more necessary to require and demand observance of and compliance with the rules governing appeals. Dismissal of civil cases for non-compliance with Rule 84.04 is becoming more commonplace. In a recent decision [Cope v. McClain, 529 S.W.2d 6 (Mo.App.1975)] our St. Louis brethren recalled the words of Lamm, J., in Sullivan v. Holbrook, 211 Mo. 99, 104, 109 S.W. 668, 670 (1908):

“The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to be obeyed, they should be done away with once and for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it — the very ones it should not injure.”

We recently had occasion in State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975), to note the tripling of the number of civil and criminal appeals to this court since the expansion of our jurisdiction by Constitutional Amendment and decisions of our Supreme Court. Approximately one-third of the appeals lodged with us in the 1974-75 judicial year were criminal appeals; and just as “We must demand compliance with these simple rules in order to attain a fair and expeditious disposition of the mass of litigation flowing through our courts” [Cope v. McClain, supra] in civil cases, we believe the time long overdue to apply the same principle and insist on obedience to the rules in criminal cases. Otherwise, as Judge Lamm sagely observed nearly three-quarters of a century ago, the rules should be done away with once and for all.

Notwithstanding our firm conviction that this appeal should be dismissed for the reasons stated, we are admonished by Rule 28.02 we must review the “sufficiency of the information or indictment, verdict, judgment and sentence” even though allegations of error concerning such matters were not raised in the trial court or preserved for our review. We have, accordingly, examined the transcript concerning these matters. The information is sufficient in form and substance, as is the verdict of the jury. The defendant was afforded allocution. The sentence is within the statutory range of punishment and the judgment and sentence sufficient in form and substance.

The judgment is affirmed.

All concur.

      . Both Gullet and Odzark were armed with loaded revolvers. The transcript indicates that prior to the defendant’s trial Gullet had entered a plea of guilty to selling controlled substances. Odzark’s appeal of his conviction for carrying a concealed weapon is presently pending in this court.

      . Defendant’s reply brief reargues points covered in his main brief, contrary to Rule 84.04(g).

      . E. g., Robbins v. Meyers, 412 S.W.2d 504 (Mo.1967); Cope v. McClain, 529 S.W.2d 6 (Mo.App.1975); Dors v. Wulff,
        522 S.W.2d 325 (Mo.App.1975); Graff v. Montileone, 523 S.W.2d 131 (Mo.App.1975); Glick v. Harris, 518 S.W.2d 227 (Mo.App.1974); Power v. Automobile Club Inter-Insurance Exchange, 516 S.W.2d 541 (Mo. App.1974); Kerr v. Ehinger, Inc., 515 S.W.2d 763 (Mo.App.1974); Hampton v. Gilmore, 511 S.W.2d 442 (Mo.App.1974); Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo.App.1972).


author: HOGAN, Judge.

text:
    Steven Dewayne WILLIAMSON, a minor, by his next friend, Ella Mae Williamson Johnson, et al., Plaintiffs-Appellants, v. Marie A. EPPERSON, Defendant-Respondent.
    No. 9586.
    Missouri Court of Appeals, Springfield District.
    Oct. 7, 1975.

      Theodore Beezley, Robert T. Beezley, Wayne T. Walker, Springfield, for plaintiffs-appellants.
    Kenneth H. Reid, Turner, Reid & Duncan, Springfield, for defendant-respondent.
   HOGAN, Judge.

This is an action for damages for personal injuries and property damage arising out of a collision between a motorcycle and an automobile. The accident occurred in clear, dry weather near the intersection of Lake-view or Owen Road and Grant Street Road north of the city of Springfield, Missouri. Plaintiff Steven Williamson sought damages for personal injuries; plaintiffs Ella Johnson and Eugene Williamson, Steven’s parents, sued to recover damages for loss of Steven’s services and for damage done to the motorcycle which belonged to Steven, but was “titled” in his father’s name. A jury found for the defendant on all three counts of the petition and plaintiffs have appealed.

The ease was quite competently presented in considerable detail, but an extensive recitation of the background facts is unnecessary for our purposes. The casualty occurred, as we have indicated, near the intersection of Grant Street Road and Owen Road north of Springfield. Owen Road is an east-west street; Grant Street Road runs north and south. Grant Street Road intersects Owen Road from the north just west of the point of collision, but does not extend south of the intersection. Approximately 75 feet north of the north edge of Owen Road, Grant Street Road bifurcates, so as one approaches Owen Road from the north, one fork of Grant Street Road curves to the west, the other to the east (left).

Plaintiff Steven Williamson, a 17-year-old high school student, had purchased a “trail bike” three days before the accident. Steven had an appointment in Springfield and in order for him to get where he was going, it was necessary for him to travel south on Grant Street Road. Immediately before the collision Steven was riding his bike south on Grant Street Road going approximately 15 or 20 miles per hour. He apparently intended to turn left on Owen Road and continue riding a short distance east to another intersection. There was evidence indicating that Steven approached the intersection on the “inside” of the east fork of Grant Street Road and that he decreased his speed but did not stop before entering the intersection.

Defendant Marie Epperson was driving west on Owen Road going approximately 35 to 40 miles per hour. Defendant’s evidence was that she first saw Steven as he was “coming around on the inside” of the curve on Owen Road from Grant Street Road. Defendant applied her brakes and swerved to the left but was unable to avoid striking the motorcycle. There was evidence that the collision occurred on the south side of Owen Road; that the right front of the defendant’s automobile struck the left side of the motorcycle; and that the defendant’s automobile skidded 72V2 feet before striking Steven and his bike. There is no question that Steven sustained serious injuries, but the nature and extent of those injuries are not in issue here.

Two questions are raised in this court. They are: 1) whether or not the trial court erred in refusing to admit prior consistent statements to rehabilitate plaintiff Steven Williamson after he had been impeached by introduction of prior statements inconsistent with his trial testimony, and 2) whether or not the trial court erred in submitting plaintiff Steven Williamson’s failure to keep a careful lookout as contributory negligence because there was no substantial evidence to support the submission.

The first of these questions arose in this fashion: On direct examination, plaintiff Steven Williamson was asked when he first saw defendant’s automobile before the accident. Steven replied, “About halfway through the curve.” The interrogation continued: “Q. And then what did you do then, Steve? ... A. When I seen that she was coming toward me, I kind of headed for the south, southern direction, more straight south. Q. More straight south. Why did you head more in a southerly direction instead of going around the outside of the curve? A. I thought maybe I could get over away from her toward the field.”

On cross-examination, counsel for defendant asked Steven if he had seen the Epper-son vehicle before the collision. Steven answered that he had. Counsel then inquired if Steven remembered giving a pretrial deposition. Steven remembered the deposition and the date it was given, whereupon he was interrogated as follows:

“Q. Steve, I’m going to ask you if at that time ... I asked you this question and you gave me this answer:
Sf! ⅜ ⅜ ⅜ * ‡
‘Question: Did you ever see the vehicle that was driven by Mrs. Epperson at any time before the collision occurred?’ And you gave the answer: ‘No, sir.’
A. No, I thought you was talking about something else. Q. All right. Then later (our emphasis) in your deposition, I did, further asking about where this other vehicle might have been when you first had any knowledge of its being out there at the scene, I am going to ask you if you didn’t indicate it was out opposite the bushes in front of the service station? A. Yes, sir.”

On redirect, counsel for the plaintiffs asked the court: “May I read other questions [from the pretrial deposition], Your Honor, which I have a right to do because he didn’t read a part of it?” There was an objection from defendant’s attorney, and the trial court advised plaintiff’s counsel, “You can ask him questions on redirect but you can’t read what he said in the deposition. That isn’t proper. You can ask him further questions if you choose.”

Plaintiffs’ counsel then asked to be heard out of the hearing of the jury, and made the following tender:

“Your Honor, at this time, plaintiffs make an offer to read from line 11, page 16, of Steven DeWayne Williamson’s deposition on through line 4 on page 17 of the deposition. We are offering this as rehabilitation of this witness because Mr. Reid out of context took question number — the question at line 8 on page 16 of the deposition where it says, ‘Did you ever see the vehicle that was driven by Mrs. Epperson at any time before the collision occurred?’. And line 10 where it says, ‘No, sir.’ Now from 11 on, he asked him again, ‘As you were going around the curve, where were you looking? Answer: I was looking into the corner. Question: By “into the corner,” I’m not sure what you mean, Steven. Answer: Well, I was watching the road, but I didn’t see her until I just started into the corner.’ And then it goes on talking about the corner and the curve, where he first saw her, and the jury would be confused by taking that one sentence out of — one question and answer out of this deposition without me rehabilitating the witness and reading the rest of it.”

In this court, plaintiffs vigorously assert that the trial court erred in refusing their offer, maintaining that they were, as a matter of law, entitled to read prior consistent statements from Steven Williamson’s deposition. Defendant argues that Steven was not impeached, and even if he was, the statements offered as rehabilitation did not have that effect. The point has been briefed somewhat beyond its complexity in this instance, and we shall not attempt to review all the authorities cited.

We need not decide whether counsel’s inquiry about the pretrial deposition, taken with the answers given by Steven Williamson, were sufficient to demonstrate testimonial self-contradiction, nor consider whether or not defendant’s trial strategy was to elicit admissions or compromise Steven’s credibility as a witness. We recognize that a preliminary question or “foundation” is not a prerequisite to the introduction of a party-opponent’s admission, Stratton v. City of Kansas City, Missouri, 337 S.W.2d 927, 931, 933 (Mo.1960), and that the tenor of a nonparty witness’ answer may determine the necessity for other, additional proof of an inconsistent statement in order to impeach the witness to the extent necessary to permit rehabilitation by prior consistent statements. McElhattan v. St. Louis Public Service Co., 309 S.W.2d 591, 595-596[2][3] (Mo.1958). In this case, it is immaterial whether Steven was testimonially impeached, for two reasons. First, to be admissible in evidence as a rehabilitating statement, the particular statement must have been made prior to the impeaching statement, Nielsen v. Dierking, 418 S.W.2d 146, 149[1] (Mo.1967); Ayres v. Keith, 355 S.W.2d 914, 921 — 922[16][17] (Mo.1962), and as far as we can determine, the statements offered here as rehabilitation were made after Steven had said he never saw defendant’s automobile before the collision. Further and more important, the plaintiffs have come to this court on a record wholly insufficient for us to adjudicate the merits of their claim. They argue specifically that they were denied the opportunity to read certain questions and answers from a deposition, but the deposition is not preserved in the record, except for those parts which were actually offered and received. Since the deposition was not copied into the record, nor made a part of the record here in any manner, we cannot pass on the admissibility of the parts of the deposition plaintiffs sought to offer. Heinbach v. Heinbach, 262 Mo. 69, 86, 170 S.W. 1143, 1148[5] (1914); Mohr v. Prinster, 213 S.W.2d 267, 269[1] (Mo.App.1948). Moreover, it appears that counsel offered or sought to offer parts of the deposition without specifying what questions and answers he considered to be admissible. The trial court was under no obligation to sort out the admissible parts of the offer and sever them from the inadmissible and in our view was justified in rejecting the whole offer of proof, as it did. Lott v. Kjar, 378 S.W.2d 480, 483-484[1] (Mo.1964); Fincher v. England, 463 S.W.2d 82, 86[7] (Mo.App.1971).

Plaintiffs’ further complaint is that the trial court erred in submitting Steven Williamson’s failure to keep a careful lookout as contributory negligence because there was no evidence that Steven could have taken effective precautionary action after he saw, or should have seen defendant’s vehicle moving west on Owen Road. Defendant, arguing the evidence from her point of view, maintains that Steven had ample time and wholly efficient means to avoid the collision. Plaintiffs reply by asserting that Steven did not have sufficient time and distance in which to act effectively after his duty to act arose. Disposition of this point requires some further restatement of the evidence.

As noted above, defendant was driving west on Owen Road immediately before the accident; plaintiff Steven Williamson was approaching Owen Road from the north, traveling southeastwardly along the curved east fork of Grant Street Road. Exhibits introduced in evidence show, in addition to the facts already recounted, that there is a gas station north of Owen Road and some distance east of the point of collision. There are two gasoline pumps immediately south of the gas station. The record discloses that defendant’s effort to avoid the collision by slowing her car left skidmarks on Owen Road beginning on the north side of the street, and extending in a curve to the southwest 72½ feet to a point near the south edge of Owen Road where the collision occurred.

Steven’s testimony was that he approached the bifurcation of Grant Street Road going south at a speed of “about” 35 to 40 miles per hour. As he came up to the curved east fork of the road, he “let off the gas and hit the brake” and slowed to between 15 and 20 miles per hour. On trial, Steven testified he saw defendant’s vehicle “[ajbout halfway through the curve.” Defendant was then “about even with the [gas] pumps [in front of] the gas station.” On cross-examination, Steven testified he did not stop before entering the intersection because he thought defendant was going to turn right onto Grant Street Road. In response to the question, “Did she have her turn signal on, anything to lead you to believe that [defendant would turn north]?”, Steven answered, “No, sir.”

Defendant testified on her cross-examination that Steven was about halfway around the curve, or east fork of Grant Street Road, when she first saw him. She also said that when she first saw the motorcycle, she “threw on [her] brakes and swerved to the left.” Defendant “guessed” her brakes had locked; in any event she had been unable to avoid striking Steven.

By extrapolation from plaintiffs’ exhibit 1, an architect’s scale drawing of the intersection involved, we can determine that the length of the curve negotiated by plaintiff Steven in approaching Owen Road from the bifurcation of Grant Street Road is about 100 feet, possibly a little more. The distance from the south end of the east fork of Grant Street Road to the apparent point of collision on Owen Road is 45 feet, Steven’s stopping distance does not clearly appear in the record, but since plaintiffs concede in their brief that he could have stopped within 59.3 feet, we may assume he could have stopped in that distance. Hammack v. White, 464 S.W.2d 520, 522[4] (Mo.App.1971).

Defendant maintains that since Steven had 95 feet in which to stop (half the curve plus 45 feet) after he saw defendant’s automobile moving west on Owen Road, she was entitled to submit his failure to keep a careful lookout as contributory negligence. Plaintiffs counter by arguing that Steven was under no duty to take precautionary action until some danger of collision became apparent to him, and since he testified he “thought” defendant was going to turn right, and did not realize she was going to continue driving west until “just before the impact”, defendant made no submissible case on failure to maintain a careful lookout.

Plaintiffs’ argument is without merit. There is no doubt that the lookout submission presupposes the means and ability to take effective precautionary action after the driver charged with failure to maintain a lookout could or should have seen the other vehicle, Heberer v. Duncan, 449 S.W.2d 561, 563[3] (Mo. banc 1970); Zalle v. Underwood, 372 S.W.2d 98, 102[1-3] (Mo.1963), but plaintiffs mistakenly assume that the submissibility of Steven’s contributory negligence depends solely upon their evidence. The law is that defendant is entitled to have all the evidence considered in the light most favorable to her, giving her the benefit of any favorable inferences that may reasonably be drawn therefrom, disregarding plaintiffs’ evidence unless it tends to support the grounds of contributory negligence submitted in the instruction. Jackson v. Skelly Oil Co., 413 S.W.2d 239, 242[2] (Mo. banc 1967); Rickman v. Sauerwein, 470 S.W.2d 487, 489[1] (Mo.1971); Welch v. Sheley, 443 S.W.2d 110, 118-119[6] (Mo.1969).

Applying this standard, we find that plaintiff Steven Williamson testified that he saw defendant’s automobile about halfway through the curved east fork of Grant Street Road, and that defendant’s vehicle was then “about even with” the pumps in front of the gas station north of Owen Road. Steven was then going 15 to 20 miles per hour, and could have stopped and avoided the collision in 59.3 feet, well within the 95 feet available to him. Disregarding Steven’s testimony concerning the reasonable appearances of the situation, if his statement as to what he “thought” rises to that dignity, we may look to defendant’s testimony and the physical evidence indicating that defendant saw Steven when he was about halfway through the curve and immediately began to skid and swerve to the left in an attempt to avoid the collision. So considered, the evidence justifies the inference that Steven saw, oh in the exercise of the highest degree of care should have seen that the paths of the two vehicles would cross and a collision would result if he did not stop, that he could have stopped within the time and distance available, but failed to do so.

The case at hand is easily distinguishable from Heberer v. Duncan, supra, 449 S.W.2d 561, and Stegall v. Wilson, 416 S.W.2d 658 (Mo.App.1967), upon which plaintiffs rely. In Heberer, neither the sight nor stopping distances were shown; here, both appear of record or by admission. In Stegall, the defendant was obliged to rely solely upon the plaintiffs evidence to establish contributory negligence; here defendant’s evidence and the reasonable inferences therefrom aid the submission. Neither precedent is controlling in the circumstances of this case.

We find no error materially affecting the merits of the action, and the judgment is accordingly affirmed.

All of the Judges concur.


author: PER CURIAM:

text:
    In the Matter of the ESTATE of Clarence C. LANGFORD, Deceased. Appeal of Pauline COONROD, Administratrix.
    No. 9919.
    Missouri Court of Appeals, Springfield District.
    Oct. 7, 1975.

      James L. Paul, Abe R. Paul, Pineville, for administratrix-appellant.
    Robert W. Evenson, Pineville, for respondent Carmen E. Langford.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   PER CURIAM:

Intestate’s widow claimed a year’s maintenance allowance (§ 474.260-1) in the Probate Court of McDonald County which denied the claim on the theory that the widow was not entitled to share in the estate because of a postnuptial agreement executed by the widow and the decedent. § 474.120. The widow appealed (§ 472.160) to the Circuit Court of McDonald County. § 472.200. That tribunal court-tried the case and on December 20, 1974, entered judgment remanding the cause with directions to the probate court to grant the widow a year’s support in such sum as the probate court should find to be reasonably necessary for the purpose. Administratrix filed a motion for a new trial. When that was overruled December 27, 1974, she filed a notice of appeal “from the Judgment entered in this action on the 27 day of December 1974.”

The order overruling the motion for a new trial is not appealable. § 512.020; Mills v. Berry, 395 H.W.2d 228, 231[8] (Mo. App.1965). The appeal should have been taken from the judgment entered December 20, 1974 — not from the order of December 27, 1974, overruling the new trial motion. World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607 (Mo.App.1970). Nonetheless, as we attribute to administratrix a good faith effort to appeal from the actual judgment, her notice of appeal will be so treated. Dors v. Wulff, 522 S.W.2d 325, 326[1] (Mo.App.1975).

In the third section of her brief, entitled “Points and Authorities,” administratrix asserts the trial court erred in ruling for the widow (1) “in that the post-nuptial contract was a valid, binding agreement between the parties,” (2) “since there was a full disclosure, the agreement was fair and equal consideration was given the [widow]”, and (3) “since the [widow] was not overreached or under duress at the time the agreement was executed.” In a fourth and final “point,” the administratrix says the trial court “erred in admitting into evidence the guardianship file of [decedent] as it is irrelevant to the pending case.”

The just recited “points” prompted the widow to move this court to dismiss the appeal for administratrix’s failure, inter alia, to meet the requirements of Rule 84.-04(d) which must be strictly applied [Associates Discount Corp. of Iowa v. Fitzwater, 518 S.W.2d 474, 477[2] (Mo.App.1974)], are mandatory [M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470[1] (Mo.App.1974)], and applicable to review of court-tried cases. Freshour v. Schuerenberg, 495 S.W.2d 116, 118[8] (Mo.App.1973).

Rule 84.04(d) demands of an appellant to state under “Points Relied On” not only what actions and rulings of the trial court he seeks to have reviewed, but also to elucidate as to wherein and why those rulings and actions are claimed to be erroneous. Kerr v. Ehinger, Inc., 515 S.W.2d 763, 764 (Mo.App.1974). Cases are legion which hold that mere abstract statements included in the points relied on fail to properly isolate and formulate either the actions and rulings sought to be reviewed or the reasons wherein and why those rulings and actions are claimed to be wrong. E. g., Chase Realty Company v. Dorrel Company, 437 S.W.2d 65, 66[1] (Mo.1969); Hamil v. Hamil, 488 S.W.2d 300, 301[3] (Mo. App.1972). The rule envisions particularization of error assignments in points relied on and is not satisfied by reference to the argument portion of the brief as we are not obliged to trod that field to ascertain what administratrix intended or should have stated in her points. Lawson v. Cooper, 475 S.W.2d 442, 447[7, 8] (Mo.App.1972).

Under the points as written by ad-ministratrix, wherein and why the contract was a valid binding agreement, wherein and why there was full disclosure, wherein and why the agreement was fair, wherein and why equal consideration was given the widow, wherein and why the widow was not overreached or under duress, or wherein and why the guardianship file was irrelevant is left to conjecture and for us to ponder and guess. The brief is wholly inadequate to advise us how administratrix conceives these abstractions demonstrate wherein and why the trial court allegedly erred in applying the law to the facts or vice versa. Kerr v. Grand Foundries, Inc., 525 S.W.2d 783, 785[3] (Mo.App.1975).

The widow’s motion is well taken and is sustained. The appeal is, therefore, dismissed.

All concur.

      . References herein to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R.

      . Rules 84.04(a) and (d) indicate the third section of an appellant’s brief should bear the title “Points Relied On.”


author: RENDLEN, Judge.

text:
    CITY OF ST. LOUIS, a Municipal Corporation, Plaintiff-Respondent, v. Sam GOLDENBERG et al., Defendants-Appellants., and Sam Demba & Sons Realty Company, Defendant.
    No. 36095.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Oct. 14, 1975.

      Blumenfeld, Kalishman, Marx, Tureen & Paster, P.C., Phillip J. Paster and Michael S. Moran, Clayton, for appellants.
    James J. Wilson, Assoc. City Counselor, St. Louis, for City of St. Louis.
    LeMay & Dunlop, Clayton, for respondent Cleary.
    Ralph H. Schnebelen, St. Louis, for respondents, Salsich & USRIC.
   RENDLEN, Judge.

Appellants seek review of the trial court’s judgment overruling their motion to surcharge the Receivers of appellants’ five unit rental flat located at 5039-41 Enright Avenue in the City of St. Louis. The motion was filed as a part óf an ongoing equity proceeding, instituted under the provisions of § 441.500-640 RSMo 1969, V.A.M.S., known as the “Enforcement of Minimum Housing Code Standards Act.”

Pursuant to authority of the act, the City through its Building Commissioner brought an equitable action on October 16, 1970, alleging numerous housing code violations existed on appellant’s property. The City further alleged that appellants received notice of these violations on September 27, 1969, and as recently as September 22,1970, the violations were not abated. That the property in its then condition constituted a public nuisance and a continuing danger to the public health and safety. By consent, the cause was submitted without argument. On April 1, 1971, the court, finding a nuisance did exist, ordered all present and future rent paid into the court and appointed respondent Thomas Cleary receiver of the property. The receiver was ordered to take possession of the property, collect all rents and profits, pay all costs of management, including insurance premiums and taxes and remove with all reasonable speed the housing code violations. To that end the receiver was given a lien upon the rents for the expenses necessarily incurred in the execution of the court’s order and that lien to have priority over all others except taxes, assessments and mortgages recorded before October 13, 1969. His authority included the right of issuance of receiver’s certificates. The court further authorized compensation for the receiver of $50 per month.

The trial court has provided no findings of fact or conclusions of law, none having been requested, and in such cases “all fact issues shall be deemed found in accordance with the result reached and the judgment must be affirmed, if it is correct on any reasonable theory supported by the evidence.” Gottlieb v. LaBrunerie, 514 S.W.2d 27, 28[1] (Mo.App.1974).

From the evidence adduced at the motion hearing, the trial court could reasonably have found the following:

At the commencement of the receivership, appellants’ property was subject to a deed of trust given to secure the payment of promissory note in the amount of $12,000 for the benefit of Sam Demba & Sons Realty Company, one of the named defendants in the original action. This deed of trust encumbered three other multi-family dwellings, not involved here. The building was protected by a policy of fire insurance purchased by the mortgagees providing $20,000 coverage for the term January 1, 1971 to January 21, 1972. At that time four apartments were occupied.

Receiver Cleary qualified, assumed his duties on April 9, 1971, and for a few months was able to collect rents, but only $410.10. He paid these expenses: water, $85.85; boardup, $39.85; money order expense, $2.65; bank service charge, $.30, totaling $128.65. In the month preceding Cleary’s appointment, the owners (appellants here) had been able to collect rents of only $91. Though the building at one time brought in $480 per month, the owners had lost money on the property for several years prior to this proceeding.

Notwithstanding his considerable efforts, the receiver was unable to secure financing for necessary repairs to the premises, the cost of which was estimated at $5,000. He diligently sought to keep the then tenants and promised as soon as money was available repairs would be undertaken to make the apartments habitable. The funds could not be found, the repairs could not be made and eventually the tenants vacated.

In May, 1971, the receiver submitted a detailed report to the court and City Counselor, summarizing his efforts to clean up the property, work with the tenants and locate funding for the receivership, without which the project was doomed to failure. The receiver discovered and reported the condition of the premises was as bad “as the court order indicated.” He arranged with one of the tenants to clean the mess and filth in the basement for $50 but the tenant did not carry out the agreement.

Continuing his efforts, the receiver reported in June that the mortgagee was demanding payments of more than $1,000 on delinquent interest plus payment of current interest and pointed out the extent this complicated his task. He requested a meeting with the court. In August, Cleary made a comprehensive report of the receivership difficulties and in November by further report, explained the urgency of these problems, outlined steps he had taken and explained his inability to operate without financing. The court was able to give little specific guidance except “keep trying.” On November 15, 1971, Mr. Cleary submitted his resignation with a letter detailing his difficulties and a summary of funds collected and expenses paid. On December 27 he wrote the court asking what disposition to make of the receivership monies and tendered an account thereof. During all this time, the receiver reported to the City Counselor seeking his advice and guidance. The court entered an order accepting Cleary’s resignation, upon filing his final report and appointed Peter W. Salsich and Union-Sarah Realty Investment Corporation, co-receivers, they to furnish bond of $5,000. Neither Salsich nor “Union-Sarah Realty” filed such bond as receivers. Though Cleary did not file a formal final accounting until October 2, 1972, he had previously reported all monies collected and expenses paid.

The Division of Building and Inspection on February 4, 1972, issued a repair or wreck order against the property and on June 20 of that year the building was gutted by fire. At that time real property taxes on the premises were three years delinquent.

On June 28, 1973, at a hearing on a motion to discharge receivers, appellants moved to surcharge the receivers $20,000, alleging negligence and dereliction of duty to preserve and repair the property. Following an evidentiary hearing, the motion to surcharge was overruled and from this judgment the owners appeal.

In this court-tried equitable proceeding we “. . . review the case de novo upon both the law and the evidence, giving deference to the opportunity afforded the trial court to judge the credibility of the witnesses, and not disturb the judgment unless clearly erroneous.” Borgmann v. Florissant Development Co., 515 S.W.2d 189, 191[1] (Mo.App.1974); Blumenberg v. Minton, 507 S.W.2d 26, 27[3] (Mo.App.1974). “Clearly erroneous” in this context means “incorrect.” Grossman Wrecking Co. v. Bituminous Casualty Corp., 518 S.W.2d 719, 724[1] (Mo.App.1974); Mission Insurance Co. v. Ward, 487 S.W.2d 449, 452 (Mo. banc 1972).

The case requires an examination of the receivers’ performance as prescribed by the statutes and set forth in the appointing order. The court’s order is little more than an enumeration of pertinent statutory powers available to receivers; however, the statute provides no standard or statement of the required level of care. Accordingly, we turn to the general law to find the prescribed standard of performance. It appears that “A receiver, in caring for the property or managing the business over which he has been appointed, is bound to proceed with at least ordinary care and prudence. When he uses ordinary care and prudence, that is, the care and diligence which an ordinarily prudent man uses in handling his own estate, he has fulfilled the measure of his official duty, and is not answerable for losses which occur to the property and assets in his charge; but when he fails to exercise this degree of care and diligence, he becomes answerable for the consequences of his neglect or dereliction. He is not an insurer of the safety of the property; ordinary care is the test of his responsibility.” 66 Am.Jur.2d Receivers § 867, p. 184; Vander Vorste v. Northwestern National Bank, 81 S.D. 566, 138 N.W.2d 411 (1965); 20 A.L.R.3d 960. “So a receiver is not personally liable for acts done and losses sustained in administering an estate . provided he acts in good faith and with ordinary care and prudence.” 75 C.J.S. Receivers § 189, p. 835. This rule found expression in several cases from sister states including Athanason v. Hubbard, 218 So.2d 475, 478[6] (Fla.App.1969), in which a receiver was held not liable for good faith actions, taken while following advice of counsel; and in Morris v. Pierce, 188 Okl. 396, 110 P.2d 294 (1940), it was held “A receiver is required to exercise only ordinary care and judgment in the keeping of property coming into his possession as receiver . . . Similarly the Texas Court of Civil Appeals in Harrison v. Coutret, 157 S.W.2d 454, 456[1] (Tex.Civ.App.1941) stated: “Having acted within the authority given him in the order appointing him, he is not responsible for any loss which may have accrued, unless he acted in bad faith or failed to use ordinary care and discretion in the management of the business.”

Appellants assert that the receivers were negligent in (1) failing to attempt to relet the apartments as they became vacant; (2) making only insignificant attempts to collect rents due after July, 1971; (3) making no attempt to repair the apartments or abate the housing code violations; (4) making no attempt to prevent vandalism; and (5) failing to insure the building against fire. We find these contentions without merit.

This rental property was, at the time it came into the receiver Cleary’s hands, in such an unsanitary state of disrepair and dilapidation as to be unfit for human habitation. Repairs necessary to make it habitable would cost approximately $5,000. Receiver Cleary promised the tenants repairs would be made as soon as possible and on the strength of such promises, collected rents of $450. This money was insufficient for the needed repairs. By July, 1971, the tenants no longer believed the improvements could be made, refused to pay more rent and began to vacate the building. Cleary correctly judged the rental income insufficient to provide the extensive repairs required and that receivership certificates would not be salable because of the delinquent outstanding mortgage. Hence he sought financing from the Department of Housing and Urban Development and other public and private organizations, who repeatedly informed him that because of (1) the history of the owner’s bad management practices, (2) the outstanding mortgage on the property, and (3) the delinquent real property taxes, no credit would be extended for rehabilitation of the property.

Given the condition of the property and the lack of prospect for rehabilitation, the receivers were not bound to relet the premises. If the apartments had been relet, new tenants could refuse to pay for unfit housing or vacate whenever they chose, King v. Moorehead, 495 S.W.2d 65 (Mo.App.1973); therefore, the promise of future rents provided no basis to finance needed improvements. Appellant overlooks the receiver’s efforts to collect rents and keep the tenants, suggesting he should have sued to collect the rents. We are not impressed with this argument since any action for rents would meet an affirmative defense that the condition of the let premises was in substantial violation of the applicable housing code and not habitable during the tenancy. See King v. Moorehead, 495 S.W.2d 65 (Mo.App.1973). The tenants justifiably vacated and withheld further rents. The meager rent collected and the receiver’s inability to obtain financing, rendered futile any attempt to prevent vandalism or repair the vacant building.

Concerning.the receivers’ failure to insure, we find the property was uninsura-ble and the fund available insufficient to pay the premiums. As mentioned above, a policy of fire insurance had been purchased and maintained on the property by the mortgage holder before the receivership. This Home Insurance Company policy purchased through “Fair Plan” provided there would be no coverage if the property were unoccupied more than sixty days. By December, 1971, the building was totally vacant, the utilities had been cut off at least four or five months prior to the fire, and in February, 1972, the building inspector condemned the property, informing the owners the property must be repaired or be torn down. A representative of the Home Insurance Company explained his company would not have insured the property when the policy expired in January, 1971, unless ordered to do by the “Fair Plan.” Mr. Bernard, the manager of “Fair Plan,” testified that the “Fair Plan” would not have required renewed coverage on the property since property taxes were three years delinquent at the time of the fire. The statute and the court’s order gave the receiver authority to insure but the uninsurability and lack of funds effectively vitiated this responsibility. It is the general rule that “[a] receiver, acting in good faith and within the authority conferred on him, is not liable in his personal capacity for losses resulting from . . . failure to insure property.” 75 C.J.S. Receivers § 189, p. 835; Meltzer v. Grazi, 10 A.D.2d 869, 200 N.Y.S.2d 733, 735 (1960), app. dism. 8 N.Y.2d 911, 204 N.Y.S.2d 154, 168 N.E.2d 828 (1960), app. den. 11 A.D.2d 948, 206 N.Y.S.2d 553 (1960). From this record we cannot say the receiver acted other than in good faith and within the authority conferred by the order of the court.

In sum, the receivers were placed in an untenable position for it was impossible financially to carry out the order to rehabilitate the property. Receiver Cleary’s efforts to collect rents, let the property and obtain necessary financing were reasonable and proper under the circumstances. By December, 1971, the building was an unin-surable derelict, of minimal value and not economically salvageable. The fire and the alleged diminution of value was not the result of any negligence or misconduct of the receivers.

The judgment of the trial court overruling the motion to surcharge is affirmed.

WEIER, P. J., and DOWD, J., concur.

      . Section 441.570 RSMo 1969: “The court may, after hearing and finding the dwelling unit or building constitutes a nuisance,
      (1) Direct that present and future rents due from one or more occupants be deposited by the occupant or occupants with the clerk of the court as such rents fall due, or
      (2) Allow the owner a reasonable time to correct the deficiencies. Any rents deposited under the provisions of this section shall be held by the court until the deficiencies noted in the building have been remedied, and shall not accrue interest during the time they are so held. Upon the completion of the work required to abate the nuisance, any remaining surplus after authorized disbursements and payments of cost shall be forwarded to the owner, together with a complete accounting of the rents deposited and the costs incurred.”

      . As authority for the court’s order, see § 441.590[4, 5] RSMo 1969, which provide in part as follows: “The receiver may on order of the court take possession of the property, collect all rents and profits accruing from the property, and pay all costs of management, including all insurance premiums and all general and special real estate taxes or assessments . . . The receiver shall with all reasonable speed remove all of the housing code violation, which constitute a nuisance as found by the court.”

      .Section 441.590[6, 7] RSMo 1969: “The receiver may with the approval of the circuit court borrow money against, and encumber, the property . . The circuit court may authorize the receiver to issue receiver’s certificates as security against such borrowings, . . . pledge the rentals from the property and borrow or encumber the property on the strength of the rental income.”

      . The motion to surcharge was filed against receiver Cleary and successor receivers Peter W. Salsich and Union-Sarah Realty Investment Corporation, though through most of the receivership period, Cleary alone served as receiver. Following his motion for discharge the court made its order appointing receivers Peter W. Salsich and Union-Sarah Realty Investment Corporation and as pointed out herein, the record is not clear concerning what function if any they performed.

      . Little detail as to the workings of Manager Insurance Placement, or “Fair Plan” was brought out. It is apparently a program established pursuant to state law designed to guarantee the availability of insurance to owners of difficult to insure property.