author: GUNN, Judge.

text:
    Paul HOLTMEYER, Plaintiff-Respondent, v. Joseph Lee SCHERER, Defendant-Appellant.
    No. 37501.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 28, 1976.

      Kortenhof & Ely, Ben Ely, Jr., St. Louis, for defendant-appellant.
    Hansen, Stierberger & Hartley, E. A. Stierberger, Union, for plaintiff-respondent.
   GUNN, Judge.

Plaintiff’s motorcycle and an automobile operated by defendant collided at an uncontrolled intersection in Washington, Missouri. Plaintiff brought suit and the jury awarded him $35,142.50 for personal injuries and property damage. On appeal, defendant raises the following points: 1) that plaintiff was contributorily negligent as a matter of law; 2) that it was error to permit a police officer to testify that the street on which plaintiff was traveling was a major thoroughfare; 3) that the trial court erroneously permitted expert witness testimony as to the location of the vehicles at the point of impact; 4) that the trial court erroneously permitted expert witness testimony regarding the speed of the vehicles at the time of impact; 5) that it was error to include in plaintiff’s verdict director a submission that defendant was driving on the wrong side of the road; 6) that the trial court erred in failing to completely define “right of way” as it related to an uncontrolled intersection. We find that the admission of expert witness testimony regarding the point of impact of the vehicles to be prejudicially erroneous and therefore reverse and remand.

The accident occurred on a summer evening while still daylight and took place at the uncontrolled intersection of Third and Boone Streets in Washington. Plaintiff was traveling on his motorcycle east on Third Street, and defendant was driving an automobile south on Boone Street. Plaintiff’s motorcycle was struck on the left side in the southeast quadrant of the intersection, and plaintiff and his wife, who was riding with him as a passenger, were thrown from the motorcycle. Debris from the accident and some gouge marks made by the motorcycle at the time of the collision were found in the intersection.

Plaintiff was rendered unconscious by the accident and had no recollection of what occurred, but two witnesses testified on his behalf. Marie Rogles observed the accident from her front porch, 50-70 feet away. She testified that plaintiff’s motorcycle was moving at a speed of approximately 20 m. p. h. when it entered the intersection; that shortly before entering the intersection (about 50-70 feet away), plaintiff looked to his left into Boone Street, and at the point where plaintiff looked left, a person could see approximately 25 feet into Boone (toward the direction from which defendant was entering the intersection). An embankment and tree obstructed further view into Boone. Mrs. Rogles did not see plaintiff look to his left again and noted that he did not decrease his speed of approach into the intersection nor swerve or sound his horn. At the time plaintiff was struck by defendant’s auto, he was more than halfway across the Boone Street intersection.

Plaintiff’s wife testified that she was a passenger on the motorcycle driven by plaintiff; that she could not recall whether plaintiff looked to his left before entering the intersection but that he did not slow, swerve or brake once into the intersection. She also testified that the embankment and tree obstructed the view to the left into Boone and that it was possible to see a distance of approximately one car length into Boone before reaching the intersection. Plaintiff’s wife further testified that the defendant’s vehicle was moving more rapidly than the motorcycle; that she did not observe the defendant brake, swerve or sound a warning; and that the motorcycle had entered the intersection before defendant.

Defendant testified that as he approached the Third Street intersection on Boone Street he reduced his speed from 25 m. p. h. to 20 m. p. h. Defendant’s automobile was five feet from the intersection when the defendant first saw the motorcycle, and he estimated the distance of the motorcycle to be 15-20 feet from the intersection. The defendant also testified that he had attempted to apply his brakes.

Defendant first asserts that the trial court erred in failing to find the plaintiff contributorily negligent as a matter of law, as the evidence demonstrated that plaintiff failed to keep a careful lookout as he entered the intersection. In determining whether plaintiff was contributorily negligent as a matter of law, “plaintiff’s evidence must be accepted as being true and he must be afforded the benefit of all favorable inferences arising therefrom. If reasonable men would honestly differ upon the issue of whether plaintiff used and exercised the highest degree of care in the operation of the ear [vehicle] he was driving on the occasion involved, that issue should have been determined by the jury, not by the trial court.” Cox v. Miller, 529 S.W.2d 196, 198 (Mo.App.1975). It is primordial legal rubric that the issue of contributory negligence is generally for jury determination, Ogden v. Toth, 542 S.W.2d 17 (Mo.App.1976), and that the burden of proving plaintiff’s negligence, rests with the defendant. Clark v. McCloskey, 531 S.W.2d 36 (Mo.App.1975). Furthermore, “[w]hat constitutes negligence in failing to keep a lookout in a particular direction at any certain place or time depends upon the then existing circumstances and conditions and is usually a jury question.” Clark v. McCloskey, Id., at 37.

Defendant relies on the testimony of plaintiff’s witnesses for the purpose of showing that plaintiff was contributorily negligent in failing to maintain a lookout as he approached the Third Street-Boone intersection. Mrs. Rogles testified that when the plaintiff was 50-70 feet from the intersection, he looked to his left into Boone Street (the direction from which defendant was approaching) and then proceeded into the intersection without looking to his left a second time. But we also note that the impact of Mrs. Rogles’ testimony in favor of defendant that plaintiff did not look to his left a second time is enervated by her further testimony that it was “[n]ot to my knowledge” that he looked back a second time — scarcely a conclusive affirmation that the second look was not made. And plaintiff’s wife’s testimony is not helpful to defendant, for she simply did not remember whether plaintiff looked to the left. While defendant argues that plaintiff’s failure to look to his left into Boone a second time was contributory negligence as a matter of law, based on the evidence, we disagree. Due to the view obstruction, plaintiff would be able to see only approximately one car length, or, at the most, 25 feet looking left into Boone immediately prior to entering the intersection. Therefore, when plaintiff first looked to his left toward Boone approximately 50-70 feet from, the intersection, he would not have been able to see the defendant.

It is certainly true that a motorist entering an intersection has a duty to keep a careful lookout ahead and laterally. Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918 (Mo.1959); Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972 (1952); Cox v. Miller, supra. Courts have frequently noted that in exercising this duty, a motorist cannot be required to look in one direction all the time, or keep his head in constant motion. Schmittzehe v. City of Cape Giraudeau, supra; Knight v. Richey, supra; Cox v. Miller, supra; Johnson v. Bush, 418 S.W.2d 601 (Mo.App.1967); Bischoff v. Dodson, 405 S.W.2d 514 (Mo.App.1966); Norris v. Winkler, 402 S.W.2d 24 (Mo.App.1966). Although a plaintiff is charged with seeing that which could have been seen, “the law does not require the impossible nor hold one guilty of contributory negligence because of his inability to see through impenetrable objects or bend his vision around them. If plaintiff could not see defendant’s automobile, he is not to be charged with negligence in not seeing it.” Cox v. Miller, supra at 198. See also Fuzzell v. Williams, 288 S.W.2d 372 (Mo.App.1956). The record here is lacking any precise or specific evidence to establish the point at which defendant’s auto would have been visible to plaintiff. The best that can be said is that plaintiff would have had to have been “pretty close” to the intersection before he could see defendant. And although there is some evidence that plaintiff may not have looked to his left when he was “pretty close” to the intersection, we cannot say that his failure to do so rendered him guilty of contributory negligence as a matter of law. For even if the plaintiff had looked to his left in time to have seen defendant’s auto, there is no evidence to suggest that having seen defendant’s auto, plaintiff could have done something to avoid the accident. Thus, defendant has failed to establish a causal connection by the plaintiff’s failure to look and the ensuing accident. Such showing is necessary before we can find plaintiff contrib-utorily negligent as a matter of law. Norris v. Winkler, supra; Fuzzell v. Williams, supra.

Also, by being to the right of the defendant as the vehicles entered the intersection simultaneously, plaintiff possessed the right of way pursuant to § 304.-351(2) RSMo 1969. The following statement from Knight v. Richey, supra at 975-76 is thus felicitous:

“There was evidence tending to show that plaintiff and defendant reached the intersection at approximately the same time, and there was evidence tending to show that plaintiff reached and moved into the intersection when defendant was yet some distance to the eastward. Although in the exercise of care plaintiff must have seen and become aware of defendant’s approach even though the view to plaintiff’s left was somewhat obstructed, we believe it should not be said as a matter of law that, in the circumstances of the collision including the circumstance of plaintiff’s favored position as a traveler approaching from defendant’s right, plaintiff was not justified in assuming that defendant would manage or regulate the speed and progress of her automobile so that plaintiff could pass safely over the intersection.”

See also Norris v. Winkler, supra. We therefore conclude that the question of plaintiff’s contributory negligence was properly one for the jury and not for the trial court.

Defendant next contends that it was error to allow a police officer to testify that the street on which plaintiff was driving — Boone Street — was a major thoroughfare. Although no witness indicated that traffic on Third Street possessed an automatic right of way over traffic on Boone, any such possible inference was dispelled by Instruction No. 7. Instruction No. 7 set forth the proper rule regarding intersection right of way and was clear in establishing that plaintiff did not have the automatic right of way by the mere fact he was traveling on Third Street. Any error regarding the testimony as to Third Street being classified as a major thoroughfare was rendered harmless by the instruction. See Kanter v. Kansas City, Missouri, 336 S.W.2d 387 (Mo.1960); Rule 84.13(b). See also Meade v. Kansas City Public Service Co., Mo., 250 S.W.2d 513 (1952). But inasmuch as we are remanding this case for other reason, we suggest that plaintiff eschew comment as to whether Third Street is considered a major thoroughfare.

Defendant next contends that it was error to permit plaintiff’s expert witness to testify that defendant’s auto was driving on the wrong side of the road at point of impact; that such testimony invaded the province of the jury. Defendant’s contention in this regard is well taken. The expert witness gave testimony as to the location and position of the vehicles at the time and point of impact based on where the wreckage debris and gouge marks made by the motorcycle in the intersection were found. Housman v. Fiddyment, 421 S.W.2d 284 (Mo. banc 1967), is directly in point on this issue. In Housman, the trial court permitted an expert witness to testify as to the location of the point of impact and the position of the defendant’s vehicle at the time of impact. In the expert’s opinion, the defendant’s station wagon was on the wrong side of the road. In discussing this issue, the Supreme Court first stated the rule concerning the use of expert testimony:

“When jurors, for want of experience or knowledge of the subject under inquiry, are incapable of reaching an intelligent opinion without outside aid the courts out of necessity admit the testimony of experts in the field. Allowing an expert to give an opinion upon a subject of inquiry, instead of requiring that the witness give only facts, is an exception to the general rule that witnesses must state facts.” Housman v. Fiddyment, supra at 289. (original emphasis)

The court went on to state the standard of review on appeal of a trial court’s ruling concerning the admissibility of expert testimony: “The determination of the question of necessity rests in the first instance in the sound discretion of the trial judge and his discretion in this respect will not be set aside in the absence of a showing of an abuse of discretion.” Id., at 289. Citing a long line of cases, the court reiterated the rule that opinion testimony concerning the position of the defendant’s vehicle is incompetent and inadmissible. Id., at 290. The court then stated that the trial court abused its discretion in admitting the expert’s testimony concerning the position of the defendant’s vehicle and the point of impact because “[tjhese subjects do not involve an application of the principles of physics, engineering, mechanics or other technical fields of science requiring specialized information. These questions could be determined by jurors possessed of the knowledge of ordinary men of the time. Automobile collision cases involving these subjects of inquiry are routinely decided by Missouri juries without the aid of expert witnesses.” Id., at 291-92. Butler v. Crowe, 540 S.W.2d 940, 942 (Mo.App.1976), also observes that “[t]he admission of an opinion on the relative location of vehicles at impact . is generally erroneous.”

Plaintiff relies on Yocum v. Kansas City Public Service Co., 349 S.W.2d 860 (Mo.1961), to support the trial court’s action. But Yocum is readily distinguishable from this case and was distinguished in Housman v. Fiddyment, supra at 291, for the reason that in Yocum the expert’s opinion involved technical information not possessed by the ordinary juror. In the case before us, the expert witness did not rely on technical calculations to arrive at his opinion. Rather, as in the case of Housman v. Fiddyment, supra, the expert based his opinion on the location of debris and gouge marks, photographs and the damage to the two vehicles. All this evidence was before the jury which possessed the knowledge necessary to accurately place the vehicles prior to the accident. Based on the rationale of Housman v. Fiddyment, supra, we must reverse and remand this case.

Defendant also attacks plaintiff’s expert witness’ testimony that defendant’s auto was driving at a greater rate of speed than plaintiff’s motorcycle. Defendant argues that there was no foundation for such an opinion. However, plaintiff’s expert did articulate a theory of velocity of momentum of the vehicles related to the location of the gouge marks in the pavement caused by the motorcycle and as to the direction which the vehicles were traveling. Such theory allowed a conclusion that defendant’s auto was moving faster than the motorcycle at the time of the collision. The expert’s opinion as to speed was based on adequate facts and data and was not conjectural. Similar matters have been held to be the proper subject of expert testimony. Jones v. Smith, 372 S.W.2d 71 (Mo.1963).

The defendant asserts that error was committed in submitting a portion of the plaintiff’s verdict directing instruction. The instruction reads as follows:

“Your verdict must be for plaintiff if you believe:
First, defendant either: failed to keep a careful lookout, or drove on the wrong side of the road, or failed to yield the right of way, and
Second, the defendant’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and
Third, as a direct result of such negligence, plaintiff sustained damage,
Unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.”

The defendant submits that the submission of driving on the wrong side of the road did not follow the prescribed MAI form as revised in 1973. While this contention is not properly preserved for appeal, on retrial, the plaintiff should follow MAI 17.13 as revised if he chooses to submit a wrong side of the road theory to the jury.

The defendant also claims that the trial court improperly included a wrong side of the road submission in that there was no showing that this negligent act could have been a proximate cause of the accident. Defendant cites no authority to support his position and thereby fails to comply with Rule 84.04(d). As the defendant’s point stands naked of any citation of authority, it is deemed abandoned. Cox v. Lee, 530 S.W.2d 273 (Mo.App.1975). Further, as we are remanding this case due to the inadmissibility of plaintiff’s expert witness’ testimony which placed defendant’s auto on the wrong side of the road, we do not reach the merits of this point; it is not likely to arise in a new trial.

Defendant’s final point is that the trial court erred in failing to fully instruct the jury on the meaning of “right of way” as used in the plaintiff’s verdict directing instruction. The court read and submitted to the jury MAI 14.03:

“The phrase ‘right of way,’ as used in these instructions, means the right of one vehicle to proceed ahead of the other.
When two vehicles reach an intersection at approximately the same time, the vehicle on the right has the right of way.”

The court failed to add to the last sentence the phrase “provided a very careful person would so proceed under the same or similar circumstances” which appears in brackets at the end of MAI 14.03. The Notes on Use following MAI 14.03 state that the bracketed clause “must be added where there is evidence that the party entitled to the right of way failed to use such care.” The defendant claims that the evidence produced at trial demonstrated that the plaintiff failed to exercise due care when entering the intersection and, therefore, the clause should have been included in the instruction. Although we hold that the plaintiff could not be found to be contributorily negligent as a matter of law, we believe that there is evidence indicating that the plaintiff may have failed to act as a “very careful person” in proceeding through the intersection. There was evidence to show that the view north onto Boone Street was obstructed until an eastbound motorist on Third Street was nearly in the intersection. It is also possible that a jury could find that the plaintiff failed to look to his left and while proceeding into the blind intersection, he failed to slow, swerve or sound a warning. We believe that based on this evidence, the defendant was entitled to have the bracketed clause included in the instruction defining “right of way.” See Haymes v. Swan, 413 S.W.2d 319, 324-25 (Mo.App.1967); Robinson v. Gerber, 454 S.W.2d 933 (Mo.App.1970).

The case is reversed and remanded for a new trial.

KELLY, P. J., and SIMEONE, J., concur.

      . At the time of the accident, plaintiff was n< ried prior to trial. married to his passenger, but they were mar-

      . Defendant initially contended that the issue of plaintiff’s negligence was'established in a suit brought by plaintiff’s wife (prior, of course, to the marriage) against plaintiff and defendant where plaintiff was held to have been negligent. Defendant abandoned this position in view of Lee v. Knight, 538 S.W.2d 345 (Mo.App.1976).

      . There is some evidence that would support a finding that plaintiff entered the intersection before defendant.

      . Third Street was 42 feet wide and Boone was 34 feet wide.

      . Even if a proper foundation had not been laid by the plaintiff, it is manifest that any error would have been harmless, as the plaintiff decided not to submit excessive speed to the jury as a theory of defendant’s negligence. “[W]here evidence has been improperly admitted on issues not submitted to the jury for their determination, such improperly admitted evidence does not constitute reversible error.” Wissmann v. Pearline, 235 Mo.App. 314, 135 S.W.2d 1, 6 (1940).

      . This issue is not properly preserved for appeal since no objection was made to the giving of this instruction at trial, nor was this point included in the defendant’s motion for a new trial as required by Rule 78.07. Price v. Ford Motor Credit Co., 530 S.W.2d 249 (Mo.App.1975).

      . This should not be construed to mean that the plaintiff is barred from submitting his case against the defendant on the theory that the defendant was driving on the wrong side of the road. Based on Mrs. Rogles’. testimony placing the accident in the southeast quadrant of the intersection and on the defendant’s equivocal response on cross-examination that he may have been on the wrong side of the road, there was sufficient evidence to place the defendant on the east side of Boone even without plaintiff’s expert’s testimony. We do note however, that the evidence is vague as to whether the fact that the defendant was on the wrong side of the road was the proximate cause of the accident. As the evidence now stands, it appears that the jury would have had to resort to speculation and conjecture in concluding that had the defendant been on the proper side of Boone, the plaintiff’s motorcycle would have cleared his path.


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    Howard W. ABBOTT, Plaintiff-Appellant, v. The CIVIL SERVICE COMMISSION OF the CITY OF ST. LOUIS, Defendant-Respondent.
    No. 37199.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 28, 1976.
    Daniel B. Hayes, Clayton, for plaintiff-appellant.
    Joseph Niemann, Asst. City Counselor, St. Louis, for defendant-respondent.
   WEIER, Presiding Judge.

Plaintiff Howard W. Abbott appeals from a judgment of the trial court which affirmed the findings of fact and conclusions of law determined by the Civil Service Commission of the City of St. Louis. This decision held Abbott was ineligible for the position of Correctional Manager of the St. Louis City Jail. We affirm.

On February 15,1972, the Department of Personnel of the City of St. Louis announced that an examination for the position of Correctional Manager would be held for those applicants satisfying the necessary qualifications. These qualifications included “graduation from an accredited college or university with specialization in corrections, penology, criminology, sociology or a closely related field.” Plaintiff submitted an application for the position which ostensibly fulfilled the qualifications. He was allowed to take the examination, was posted to an eligible list, was certified to the appointing authority, and was eventually appointed to the job in December, 1973.

Shortly thereafter an investigation of plaintiff’s academic credentials was initiated by the Department of Personnel after a complaint was lodged against plaintiff. As a result of this investigation plaintiff was dismissed. Plaintiff appealed his dismissal to the Civil Service Commission, who upheld it. Plaintiff then sought judicial review in the Circuit Court. There the decision of the Civil Service Commission was affirmed.

Appellant first urges that the decision of the Civil Service Commission was not authorized by law. The “law” on which the appellant relies in his argument is the City of St. Louis Civil Service Rules. These rules were not offered or introduced at the administrative hearing and, thus, do not appear in the transcript. The appellate court may not take judicial notice of the rules of administrative agencies. Kersey v. Harbin, 531 S.W.2d 76, 80[7] (Mo.App.1975).

Appellant’s second contention is that the decision of the Commission was not supported by competent and substantial evidence on the whole record. The scope and method of judicial review of an administrative agency decision is reviewed in Hane-brink v. Parker, 506 S.W.2d 455, 457[1-7] (Mo.App.1974). See also, Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53[2-7] (Mo.App.1975). Briefly, the evidence must be viewed in its entirety, together with all legitimate inferences therefrom, and viewed in the light most favorable to the findings of the agency. If the evidence supports the finding of the administrative agency a reviewing court is not authorized to substitute its judgment for that of the agency. And, once supported by competent evidence, a reviewing court is authorized to set aside an agency decision only where the findings of fact by the agency are clearly contrary to the overwhelming weight of the evidence. The Civil Service Commission made the following Findings of Fact:

“I.
The necessary qualifications for the position of Correctional Manager to which Howard Abbott [plaintiff] applied called for graduation from an accredited college or university * * *.
II.
When making application for a position in City Service, appellant [plaintiff] stated that he possessed a Bachelor’s degree in theology from the Central Baptist College in Kansas City, Kansas and a Master’s degree in theology from the Ohio Christian College in Columbus, Ohio.
III.
The Commission finds that the appellant [plaintiff] does not possess a Bachelor’s degree from the Central Baptist College * * * and that the Ohio Christian College is not accredited by a recognized bona fide accrediting agency.
IV.
Upon learning that the appellant [plaintiff] did not meet the qualifications * * and that he had misstated the material fact of educational credentials, the Director of Personnel properly directed appellant’s [plaintiff’s] appointing authority to dismiss [him] * * *

These findings are supported by testimony and exhibits in the record. Correspondence between the Department of Personnel, as well as appellant’s appointing authority, and the Dean of Central Baptist Theological Seminary revealed that appellant did not receive a degree from that institution because he lacked sufficient hours of course credit. Appellant’s transcript from the Seminary confirms the fact. Secondly, testimony from employees of the Department of Personnel who had several years of experience in the personnel field, and letters and documents introduced in evidence, revealed that Ohio Christian College, from which appellant allegedly obtained two degrees, was not “accredited” by nationally recognized accrediting agencies. Ohio Christian College was merely a correspondence school which had been the subject of federal and state litigation. Thus, the Commission could properly find from this competent and substantial evidence that appellant did not possess a degree from an accredited college, had misstated his qualifications for the position of Correctional Manager, and was properly dismissed from that position.

Finally, the findings of the Commission are not arbitrary and capricious because they are based on substantial evidence. Burrows v. County Court of Carter County, 308 S.W.2d 299, 305[9] (Mo.App.1957).

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Donald HOLLIDAY, Appellant.
    No. 37901.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 28, 1976.

      Robert C. Babione, Public Defender, James W. Whitney, Jr., Jeffrey Shank, Asst. Public Defender, St. Louis, for appellant.
    Thomas W. Shannon, Pros. Atty., David Miller, Dennis Kay, Lawrence E. Manion, Asst. Pros. Attys., St. Louis, for respondent.
   CLEMENS, Judge.

The state charged defendant Donald Holliday with attempting to steal property of unstated value (§ 556.150, RSMo.). In a jury-waived trial the court found him guilty of stealing and sentenced him to six months’ imprisonment. The state does not challenge defendant’s point on appeal that he was charged with one offense and improperly convicted of a greater one. We must either remand for re-sentencing, or reverse outright for plain error if the evidence fails to support the charge. Rule 27.20(c); State v. Potter, 530 S.W.2d 268[1] (Mo.App.1975).

We examine the state’s evidence to determine its sufficiency to prove the charge of attempting to steal “therapy equipment” belonging to Jay Cremer by forcing open the side window of his station wagon. Aside from a stipulation defendant did not have permission to enter Cremer’s car, the state’s only evidence came from the arresting officer, Gary Poehling. His pertinent testimony: Cremer’s station wagon was on a parking lot and he saw defendant standing near the front of the driver’s side “placing his left hand inside of a vent window.” Nothing was on the front seat but “in the trunk part of the station wagon” there were boxes containing “therapeutic equipment, stuff used for hospitals.”

The classic requisites of criminal attempt are: “(1) An intent to commit the crime; (2) an overt act toward its commission; (3) failure of consummation; (4) apparent possibility of commission.” State v. Wright, 342 Mo. 58, 112 S.W.2d 571[5] (1937); and the host of cases annotated at 9 Mo.Dig., Criminal Law, 44. Intent is the primary element of an attempted crime. State v. Holtzdaw, 258 S.W.2d 666[2] (Mo.1953). “Intent is the purpose or design with which an act is done.” Since intent is a state of mind it is rarely susceptible of direct proof and must ordinarily be inferred from surrounding facts.

Intent is the challenged element of the attempted stealing charge here — defendant’s intent to steal, specifically, his intent to “appropriate by exercising dominion over” the “therapy equipment.”

The only inculpatory evidence here is that defendant put his hand into the Cremer car somewhere in which there was “therapy equipment.” The state had the burden of further showing beyond a reasonable doubt defendant did so with the specific intent to appropriate the therapy equipment located “in the trunk part of the station wagon.” That specific intent is not logically proven by the lone fact defendant put his hand in the front vent window of the car.

Bearing in mind the facts the state might have but did not show to prove defendant’s intent, we conclude the state failed to prove the offense charged.

Judgment is reversed and defendant ordered discharged.

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

      .The state’s evidence of defendant’s intent to steal the therapeutic equipment would have been clearer had it shown Cremer’s car was locked; that there was forcible entry of the car; that the therapeutic equipment was visible to defendant from outside the car and that it had some monetary value. The state’s evidence was devoid of all these facts.

      . State v. Hughes, 344 Mo. 116, 125 S.W.2d 66[8] (1939).

      . Section 560.156 1.(2).


author: DOWD, Judge.

text:
    Ralph L. VOEGTLIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37894.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 4, 1977.
    Robert C. Babione, Public Defender, James M. Smith, Asst. Public Defender, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., Charles B. Black-mar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   DOWD, Judge.

Appellant, Ralph L. Voegtlin, appeals the denial of his Rule 27.26 motion without an evidentiary hearing. Voegtlin, who was found guilty by a jury of Burglary Second Degree and sentenced to ten years imprisonment, alleges the trial court erred in denying him an evidentiary hearing because perjured testimony was used at his trial to prove a material element of the crime.

Voegtlin alleges that the policeman who testified against him committed perjury because he testified at the preliminary hearing that the burglar entered through the basement window, but at trial testified that the burglar entered through the side window. While the transcript of the trial is not part of the record before us, the judge at the post-conviction hearing states in his memorandum opinion that the policeman testified at trial that both windows were broken and investigation showed that entry was through the side window.

In order to show perjury entitling him to post-conviction relief, the appellant must prove that the witness’ trial testimony was false and that the prosecution used the testimony knowing it to be false and that the conviction was obtained because of the perjured testimony. Williams v. State, 536 S.W.2d 190, 193[7] (Mo.App.1976); Duncan v. State, 520 S.W.2d 123, 124[1] (Mo.App.1975). Mere inconsistency of variance in the testimony does not constitute perjury; and in the absence of showing perjury, the trial court has no obligation in post conviction proceedings to order an evidentiary hearing to review evidence given at trial. V.A.M.R. 27.26; Cloud v. State, 535 S.W.2d 577, 578[3] (Mo.App.1976); Tyler v. State, 501 S.W.2d 189, 190-191[2, 4] (Mo.App.1973).

An evidentiary hearing on a 27.26 motion will be had only if the movant pleads facts, not conclusions, which if true would entitle him to relief. Movant must also show that such factual allegations are not refuted by the record before the court. Smith v. State, 513 S.W.2d 407, 411[1] (Mo. banc 1974). Appellant’s motion fails to offer any factual basis to support a finding of perjury.

The appellant alleged that the police officer changed his testimony. He failed to offer any factual allegation that the testimony at trial was false or that the prosecution knew it to be false. The fact that testimony at trial varied from testimony at the preliminary hearing is not proof that the testimony at trial was false. In fact, the lower court’s review of the testimony at trial supports the veracity of that testimony-

The judgment denying the 27.26 motion is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


author: HOGAN, Judge.

text:
    In re the MARRIAGE OF Sara SCHULTE, Appellant, and Joseph C. Schulte, Respondent.
    No. 9807.
    Missouri Court of Appeals, Springfield District.
    Jan. 11, 1977.

      Emerson Foulke, A. L. Shortridge, Joplin, for appellant.
    L. R. Buehner, Charles E. Buchanan, Buehner & Buehner, Joplin, for respondent.
   HOGAN, Judge.

This is an action for dissolution of a marriage under the Dissolution of Marriage or Divorce Reform Act, now codified as §§ 452.250-452.415, RSMo Supp.1975. The trial court found the marriage irretrievably broken and ordered it dissolved. Further, the court awarded petitioner Sara Schulte 12,000 shares of stock in Talbot-General Wire Products, Inc., as her share of the marital property and granted her an indefinite maintenance order in the amount of $375 per month. Sara appeals, contending 1) that § 452.330 violates Mo.Const. Art. I, § 13, because it retrospectively deprives her of vested property rights, and 2) that the disposition of marital property and the amount of maintenance allowed are unconscionable, if authorized by law. No issue is tendered concerning the irretrievable breakdown of the marriage nor the custody of the parties’ three children.

By way of brief background sketch, it appears that Sara and J.C., as the parties are referred to in the record, were married August 26,1950, J.C. was, and is, a practicing dentist. Before their marriage, Sara worked as a dental assistant in J.C.’s office. Sara had been married before she married J.C., and J.C. adopted her son, James.

After the marriage, Sara continued working in J.C.’s dental office. Sara was the only employee. Her testimony was that she worked at the office and at home on the bookkeeping, and that she and her husband lived very frugally, because J.C. “didn’t believe in debts”. From time to time, Sara was warned “don’t spend a dime this week other than what you have to” because the two “wanted to pay on [their] property, stocks and bonds.” At the time of their marriage, Sara owned no property, and J.C. owned only a lot at 1720 Annie Baxter Street in Joplin. The two had a house built on that lot during the first years of their marriage, and it stands admitted that both J.C. and Sara participated in the construction of the house. Sara’s testimony was that during the early years of her marriage, “it was rough for a while, all I got was $20.00 a week [J.C.] gave me for my clothes and grocery money.”

Without going into detail, it is apparent from the record that J.C. and Sara prospered, by community standards. They became the parents of two children, built a new home, joined a country club and traveled. They acquired a considerable amount of property, of which we shall speak further. It stands admitted, as we understand the record, that all the property in issue was accumulated before the parties separated. J.C. belittled Sara’s assertions that she had lived frugally and denied that Sara had been required to work in the office after the children were born, but he admitted that for 18 years after the two were married, he “couldn’t have been more pleased” with Sara as a wife and mother.

The cause of the parties’ separation is, of course, disputed. J.C.’s testimony was that Sara started staying out late after her regular Tuesday golf date — “she might be late or sometimes didn’t show up at all.” Sometimes Sara stayed out all night. J.C. asked Sara where she had been, but received only “[v]ague answers”. Several times he located her at Glady’s Heidelberg Inn, a Joplin bar, at first alone, but later with others. “It eventually became known,” according to J.C., that Sara was “running around” with a man named Hughes. Because he was “bird dog enough to want to know”, J.C. followed Sara; he had seen her car parked outside Hughes’ apartment, sometimes overnight. J.C.’s version of the facts was that he had many times asked Sara to return, but his entreaties had fallen on deaf ears.

Sara’s testimony was that she had left home because, “We just couldn’t settle our differences.” She stated quite unequivocally that J.C. “liked to abuse [her] physically” and she eventually became afraid of him. Sara admitted staying out overnight “once or twice”. Mr, Hughes, called as a witness, admitted knowing both parties, said he had “occasionally” kept company with Sara, but denied any impropriety. J.C. admitted striking Sara, but intimated that he had done so only because her conduct had driven him to distraction. There is much evidence other than that which we have recited, but our statement illustrates the tenor of the cause.

Broadly stated, the appellant’s first point is that to the extent it permits an unequal distribution of marital property, § 452.330 violates Mo.Const. Art. I, § 13, because it operates to allow a court to divest a spouse of his vested interest in entirety property. Arguing that her point requires only “application” of established constitutional principles, as distinguished from “construction” of Mo.Const. Art. I, § 13, the appellant urges application of that section to void the distribution of marital property. The respondent joins in this clamor, maintaining that Rule 83.06, V.A. M.R., is inadequate and we should transfer the case to our Supreme Court pursuánt to Rule 83.02, V.A.M.R., because of the general interest and importance of the case. There is, in point of fact, no constitutional question present on this appeal, nor would there be any such question before our Supreme Court if we exercised our authority to transfer the appeal there pursuant to Rule 83.02, V.A.M.R.

The transcript shows that this action was commenced in the Circuit Court of Jasper County on July 30, 1969, when Sara filed a petition for divorce together with a motion for suit money, attorneys’ fees and alimony pendente lite. Issue was joined by the filing of an answer and crossbill on September 12, 1969. At some time not clearly indicated the trial court awarded Sara the sum of $300 per month as temporary alimony. Sara’s action, as she euphemistically puts it, “remained dormant” until February 22, 1974. Sara then asked leave to file an amended petition on the ground that the Divorce Reform Act had become the law of Missouri and amendment of the petition was therefore necessary. The amended petition concludes with a prayer that the trial court dissolve the marriage and “divide the marital property in such proportions as the Court deems just after considering all relevant factors.” We find no motion or objection, oral or written, directed to the constitutionality of the Divorce Reform Act at any place in the record. Indeed, the appellant’s jurisdictional statement alleges the appeal to be within the general jurisdiction of the Court of Appeals. Having embraced the act as a basis for her recovery, the appellant may not now disclaim it as an infringement of her constitutional rights. Nixon v. Nixon, 525 S.W.2d 835, 837-838[1] (Mo.App.1975).

As for the respondent’s contention that the appeal should be transferred because of the general interest and importance of the constitutional issue, we remind counsel that a constitutional issue never raised on trial cannot be considered on appeal. Whatever may have been the appropriate stage to raise a constitutional issue in this bench-tried case, it cannot be raised for the first time on appeal as an inherent matter. Consideration of a constitutional issue raised for the first time on appeal would exceed the powers of this court or our Supreme Court. Christiansen v. Fulton State Hospital, 536 S.W.2d 159, 160[3] (Mo. banc 1976); City of St. Louis v. Butler Co., 358 Mo. 1221, 1230, 219 S.W.2d 372, 378[7] (banc 1949).

The focal issues on this appeal concern the propriety of the distribution of marital property and the award of maintenance. Essentially, Sara contends that the division of marital property is unconscionably disproportionate and the amount of maintenance allowed is wholly inadequate. In this connection, she argues that fault is irrelevant to the distribution of marital property and that the trial court erroneously evaluated the relevant factors enumerated in § 452.330, RSMo Supp.1975. J.C.’s position is that both the division of property and the amount of maintenance awarded are adequate and proper in light of the evidence presented. These contentions call for a subjective review of the evidence. Rule 73.01, para. 3(a), V.A.M.R.; Murray v. Murray, 538 S.W.2d 587, 588[3] (Mo.App.1976).

The parties testified at length concerning the property they acquired during their marriage. The trial court held, at least informally, that all the property was marital property as defined by § 452.330, paras. 2 and 3, RSMo Supp.1975, and that ruling is not challenged here. We must acknowledge that there is no tabulation of the marital assets, the evidence touching the value of those assets is diffusely scattered throughout the record, and we are left in doubt about some items, for example, J.C.’s Keogh [H.R. 10] Plan. Nevertheless, we are convinced in this particular case that the deficiencies of the record should not prevent an adjudication of appeal. Determination of the parties’ rights has been pending since July 1969 — more than seven years — and we bear in mind that it is our duty to finally dispose of the cause on its merits, if possible. Rule 84.14, V.A.M.R.; Dickey Co., Inc. v. Kanan, 486 S.W.2d 33, 36[1] (Mo.App.1972); State ex rel. George v. Mitchell, 230 S.W.2d 116, 120[5] (Mo.App.1950).

At trial time the parties were owners of three parcels of realty:

1) A house and lot at 2539 E. 15th Street in Joplin. This is the family residence. It was built in 1957 for $26,000. Sara’s testimony was that the house and lot were worth $35,000 and that the household furnishings, including antiques, were worth $10,000. J.C.’s evidence was that the house and lot were worth $32,000 and the furnishings were worth $5,000.

2) An 80-acre farm in Newton County near Diamond, Missouri. This farm was acquired in 1953 for $12,000. Sara’s evidence about the value of the farm was that “[w]e were offered at one time $40,000.00 for it.” J.C. maintained the offer was only $26,000 and estimated the value of the farm at $30,000.

3) Two lots, described as the Freeman Grove property, acquired in 1948 for $1,850. Sara believed the two lots were worth $5,000; J.C. estimated their value at $2,500. We may note there was evidence that Sara and J.C. bought another tract of land in 1963 for $7,500; it was sold after their separation for $11,250. The net proceeds of this sale were divided equally; Sara received $4,021.30 as her share. So, the value of the marital realty and household furnishings at trial time, depending upon the estimate of value accepted was either $90,000 (Sara) or $69,500 (J.C.). The trial court apportioned all the realty and household furnishings to J.C.

Marital personalty included 1,150 shares in an investment fund known as Investor’s Variable Payment Fund; it was stipulated that the value of this stock three days before the trial was $5.52 per share; the total value was therefore $6,348. Further, the parties owned 22,400 shares of stock in a closely-held corporation, Talbot-General Wire Products Inc. of Neosho, Missouri. The accountants who regularly audited Talbot-General valued the stock at $5 per share, but testimony of other experts indicated that the stock was not saleable. The corporate secretary projected corporate earnings as being “in the area of 60 to 65 cents per share”, but there is other evidence that the book value of the stock was only $1.70 per share, and the accountant’s audit for fiscal 1973 shows that the stock paid a dividend of $.04 per share in 1972 and $.05 per share in 1973.

The existence of other assets was shown. J.C. had set up a Keogh [H.R. 10] Plan in December 1968; he had accumulated $11,-500 in this account. The details of the plan were not put before the trial court and are not, of course, before us. We shall assume, without specifically deciding, that Sara had some interest in the Keogh Plan. J.C. also “owned” several life insurance policies; the cash value of these policies was $13,690. As we read and understand the record, J.C. had also accumulated the sum of $7,779 in a “fund” known as the American National Investment Fund. The value, or approximate value, of the stocks, insurance policies and savings funds comes to $39,317, excluding the Talbot-General stock. J.C. testified that he owned office equipment worth $5,000 and automobiles valued at $2,287. His debts, excluding current accounts, came to $7,250. To sum up, accepting Sara’s estimates and valuing the Talbot-General stock at $5.00 per share, the net value of the marital property was $241,354; accepting J.C.’s estimates, it was $220,854. If we set the value of the Talbot-General stock at its book value, $1.70 per share, the two figures become $167,434 and $146,934. The trial court awarded Sara 12,000 shares of the Talbot-General stock as her full share of the marital property.

In deciding whether the division of marital property was so disproportionate as to be unconscionable, we bear in mind that § 452.330, RSMo Supp.1975, directs the trial court to consider four specifically listed factors: 1) the contributions of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; 2) the value of the property set apart to each spouse; 3) the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and 4) the conduct of the parties during the marriage. The factors enumerated are not exclusive. In re Marriage of Heddy, 535 S.W.2d 276, 280-281[13] (Mo.App.1976).

Before we turn to the fairness of the apportionment of marital property, a preliminary word is appropriate. Counsel have cited a number of cases decided under the former divorce law and a number of authorities from foreign jurisdictions. With one or two exceptions, the authorities are inapposite. We do not criticize counsels’ presentations; the case was well-tried by two able advocates, and the appeal has been vigorously argued here. Nevertheless, since this case was tried — and apparently since it was briefed — a respectable body of precedent dealing with the Divorce Reform Act has developed, and we need not look to precedents under the former law for guidance. We note, in addition, that one or two rules concerning appellate review of orders distributing marital property and orders granting maintenance have developed. The first of these is that § 452.330 does not require an equal division of marital property; it looks only to a subjectively fair and equitable distribution of those assets. The second is that the trial court is vested with considerable discretion in dividing marital property and granting maintenance orders; appellate courts will neither scour and nitpick the record for accounting error nor second-guess the trial court’s balance of the equities, but will interfere only if the division of property is so heavily and unduly weighted in favor of one party as to amount to an abuse of judicial discretion, or unless the amount of maintenance is patently unwarranted or wholly beyond the means of the spouse who pays maintenance. Our inquiry into the distribution of marital property is whether the division is so disproportionate as to amount to an abuse of discretion or an erroneous application of the law.

As to enumerated consideration (1) —the contribution of each spouse to the acquisition of the marital property, including Sara’s contribution as a homemaker — it is evident that each spouse contributed materially and substantially to the acquisition of the marital property accumulated during the nineteen years they lived together. J.C. worked five days a week, sometimes six, as a dentist, and this work, as he described it, is “physical work”. Sara worked in the dental office, kept books and attended to her home and children with the assistance of a woman who came in to “clean” once a week. Neither spouse was guilty by any standard of any profligate dissipation of the marital property, and it was not necessary for Sara to prove the value of her contribution on a dollar-per-hour basis. See Cain v. Cain, 536 S.W.2d 866, 874 (Mo.App.1976), and Gaskie v. Gaskie, 534 P.2d 629, 631[2][3] (Colo. banc 1975).

In considering factor (2) of those specifically listed, we are remitted for the most part to the parties’ estimates of value, but of course the parties were competent to give an opinion of the value of their own property, although the trial court was not bound to accept either estimate as exact. Carnell v. Dairyman’s Supply Co., 421 S.W.2d 775, 779[9, 10] (Mo.1967); State ex rel. State Highway Commission v. Northeast Building Co., 421 S.W.2d 297, 301[3] (Mo.1967); In re Marriage of Heddy, supra, 535 S.W.2d at 280[11][12], We have described the marital assets in detail. Accepting the most sanguine estimate of the value of the Talbot-General stock, the value of the marital property lies between $241,354 and $220,854. The value of the property apportioned to Sara comes to $60,000, but the property is unsaleable, and the record indicates she may expect to receive $.04 to $.05 per share as a dividend on the Talbot-General stock. This would produce a yearly income of $600.

Turning to factor (3), the economic circumstances of each spouse at the time the property is divided, including the desirability of awarding the family home (or the right to live there for reasonable periods) to the spouse having custody, we find that Sara had no assets except the $300 monthly temporary alimony which J.C. had been paying since 1969. She was living in a one-room basement apartment. At trial time Sara was 52 years of age. J.C. was 56 years old, in good health, practicing dentistry five to six days a week. He has occupied the family residence since he and Sara separated in 1969. He has maintained the home and the children have lived with him. He estimated his living expense to be “$18,-000.00 a year, $20,000.00 a year, something like that.” J.C.’s federal income tax returns for the years 1971 and 1972 indicate a gross annual income of about $35,000.

The final, specific factor for appraisal is the conduct of the parties during the marriage. § 452.330, subd. 1(4), RSMo Supp.1975. In this connection we have considered Sara’s contention that “fault” cannot be considered in apportioning the marital property. She is mistaken. As a general matter, there is no necessary correlation between the elimination of fault as a ground for divorce and the elimination of fault as a relevant consideration in the division of marital property, and when, as in Missouri, the legislative decision has been to retain “fault” or “misconduct” as a factor to be considered in dividing marital property, the courts are not at liberty to disregard that decision. Conrad v. Bowers, supra n.6, 533 S.W.2d at 620[6]; Kretzschmar v. Kretzschmar, 48 Mich.App. 279, 210 N.W.2d 352, 356-357[2] (1973). Nevertheless, the statute refers to “conduct” of the parties “during” the marriage; as noted in Conrad v. Bowers, supra n.6, 533 S.W.2d at 620[6], the noun “conduct” includes both good conduct and marital fault, and we find the preposition “during”, properly defined, to mean “throughout the whole continuance of”, I Oxford English Dictionary p. 819 (Compact ed. 1971); or “throughout the course or continuance of”. Merriam-Webster New International Dictionary p. 801 (1955). Inordinate focus on a particular incident or series of incidents is therefore inappropriate, particularly when the dissolution affects a marriage of long duration; § 452.330, subd. 1(4) was' not intended to authorize judicial censure of either party by means of a wholly disproportionate distribution of marital property. In re Marriage of Neubern, 535 S.W.2d 499, 502 (Mo.App.1976); In re Marriage of Powers, supra n.5, 527 S.W.2d at 956-957[13, 14].

Sara’s misconduct, her “fault” in bringing about the separation, is an important circumstance here, but it is by no means controlling. The marriage lasted nearly 19 years; there is no doubt that Sara contributed materially and substantially to the accumulation of the parties’ property. Taken' most favorably to J.C. and the result reached by the trial court, the record establishes that in 1969 Sara started frequenting bars, staying away from home overnight, and developed an adulterous relationship with a man named Hughes. Several times Sara and J.C. attempted to become reconciled, but those attempts were unsuccessful. Sara has been guilty of misconduct, but her “fault” or misconduct has not been such as to deprive her of her right to share equitably in the marital property. In re Marriage of Powers, supra n.5, 527 S.W.2d at 956-957[14].

To recapitulate the evidence touching the four factors enumerated in § 452.330, and at the expense of some repetition, the record shows that the marital property is a product of “team effort”, so to speak; J.C.’s cross-examination indicates that what he and Sara accumulated, they accumulated while they “were living together”. As noted the trial court found that all the property was marital property, and that finding is in no wise challenged here.

As to factor two, the value of the property set apart to each spouse, our calculation, necessarily imprecise, indicates a marital estate having a net value between $220,854 and $241,354, or a net value between $146,-934 and $167,434, depending on the value placed on the- Talbot-General stock. Sara has been awarded 12,000 shares of the stock. The-Talbot-General stock originally represented an investment of $16,000 for 3,200 shares in 1967. The stock thereafter split seven for one. Assuming a number of things, “continuity of management and everything else along that line”, and “applying] a factor of 10 to 12 times earnings”, Talbot-General’s accountant valued the stock at $5 per share, perhaps $6 per share. However, the testimony of Mr. Robert E. Talbot, Vice President and Treasurer of Talbot-General, indicates the stock cannot be sold, and the evidence of Mr. Gene Schwartz, corporate secretary, indicates the stock has a book value of $1.70. As indicated the corporate audit received in evidence indicates Sara may expect to earn $.04 to $.05 per share on the stock. In short, Sara has received about half of one single marital asset, the value and utility of which is extremely nebulous and open to doubt.

The economic circumstances of each spouse, the third- consideration listed in § 452.330, para. 1, stand in stark contrast, as Sara argues. As we have said, Sara has no assets; J.C. has considerable property and a gross income of more than $30,000 per year. It must be conceded that J.C. has maintained the family home and that it is desirable to award that home to him, even though it would obviously have been his duty to maintain that home if Sara had not left it.

Summed up, the record shows the parties lived together happily or at least compatibly, for 18 years. Sara then began drinking, staying away from home, and eventually began consorting with a paramour. J.C.’s response, we note, was to become emotionally upset to the point of striking his bride of 18 years, the mother of his children. We cannot judicially approve adultery nor the abdication of a spouse’s family responsibilities, but Sara’s misconduct has not been such as to warrant the grossly disproportionate award of marital property. True, Sara has been granted a maintenance order, but as she argues, the distribution of marital property is final, § 452.330(4), and her economic future and security should not be made dependent upon a single marital asset of problematic value and upon the continuance of J.C.’s good health and earning capability. Such a distribution constitutes a misapplication of the law. Sara has taken some continued interest in the farm in Newton County. The farm is a saleable asset. If Sara is to be turned out of house and home once and for all, she should be awarded some asset of more tangible value than the stock. We hold that the farm should be awarded to Sara, in addition to her share of the Talbot-General stock.

There remains the question whether the order granting maintenance can be sustained in light of the requirements of § 452.335. Contrary to Sara’s apparent understanding, maintenance under § 452.335 is not the legal equivalent of alimony; maintenance may be awarded to either party upon dissolution of a marriage, but unless the spouse seeking maintenance is the custodian of a child, it must appear that he or she 1) lacks sufficient property, including the marital property apportioned to her to provide for her reasonable needs, and 2) is unable to support herself through appropriate employment. § 452.335(1)(1) and (2); In re Marriage of Neubern, supra, 535 S.W.2d at 503[4,5], Nevertheless, the statutory conditions are relative, not absolute, Casper v. Casper, 510 S.W.2d 253, 254-255 (Ky.1974), and the spouse seeking maintenance is not required to consume her part of the marital property before being entitled to maintenance. In re Marriage of Powers, supra n.5, 527 S.W.2d at 955[10]; In re Marriage of Eller, 552 P.2d 30, 31[1] (Colo.App.1976). The most that can be accurately said about the amount to be granted is that it is neither the policy of the law to give the spouse receiving maintenance a lifetime annuity nor to reduce her to menial labor to eke out an existence. See In re Marriage of Powers, supra n.5, 527 S.W.2d at 954-956 [9,10][11][12]; Casper v. Casper, supra, 510 S.W.2d at 254-255; In re Marriage of Kitson, 17 Or.App. 648, 523 P.2d 575, 578-579 (1974).

Sara testified at length concerning her reasonable needs. At trial time she was living in a one-room basement apartment. Her rent was $65 per month. She was driving a 1971 Volkswagen on which she owed $1,100. She was looking for a new apartment because her landlord had sold his property, and she estimated that new living quarters would cost between $125 and $150 per month. She spent $100 per month on groceries, gasoline cost between $25 and $35 per month, and her medicine cost about $40. Her utility bill ran between $30 and $35 per month, her telephone cost $10 per month, and incidentals, including clothing, came to $84. Sara said her “miscellaneous expenses” ran from $100 to $200 per year, and her monthly car payment was $62.12 per month. In response to a direct question, Sara stated that her living expense came to $464 per month, and even at that rate she was unable to keep her current accounts paid.

Does Sara have sufficient property, including marital property apportioned to her, to provide for her reasonable needs? We believe not. Sara has no property other than the marital property apportioned to her and the productivity of what she has is open to question. Manifestly the dividend she may expect from the Talbot-General stock is insufficient to provide for any person’s reasonable needs. There was evidence that the Newton County farm had- been acquired as a sort of security, as J.C. put it, “someplace to retire” “should something happen to me”, but other evidence indicates that it has been used as a residence for Sara’s mother and stepfather, and J.C.’s federal income tax returns suggest that the farm has been used as a tax shelter; at least it has been operated at a net loss for several years. Sara testified that she had done some farm work in the past, but she is now in her middle fifties and her health is uncertain. In our opinion, the farm — in Sara’s hands — probably will constitute a marginal enterprise rather than a source of regular income. It may be said, therefore, that the first condition prescribed by § 452.-335 is met even when the farm is apportioned to Sara.

Is Sara employable at an income sufficient to meet her reasonable needs? To determine this question, it is proper to consider her education, training, experience, age, health and the length of her marriage. The length of the marriage is important because the longer the marriage, the less likely it is that the wife can acquire training sufficient to find suitable employment and become completely self-sufficient. From the record it appears that Sara has a high school education. She has been trained as a dental assistant, but she has no professional skill or training. The last time she worked as a dental assistant, she was paid $10 for a nine-hour day. Sara “used to be” a typist, but “can’t any more.” She has worked as a bookkeeper, but kept books “sort of by guess”. She has worked at various types of employment since she and J.C. were separated; she had one traveling job at which she earned between $100 to $125 per week, but was unable to continue in that employment because she didn’t feel well. More recently she has been employed as a desk clerk at several Joplin motels, earning from $.75 per hour to $1.60 per hour.

When the trial was had, Sara was 52 years of age. She is a “heart patient” and suffers from hyperglycemia. It is necessary for her to take medicine regularly and see her physician regularly. Her hearing is now impaired, and this impairment has prevented her from becoming an efficient employee. It seems obvious to us that Sara is unlikely to acquire any significant new skills and that her prospects for future regular employment sufficient to meet her reasonable needs are negligible. We bear in mind that Sara and J.C. were married and lived together nearly 19 years, and we consider that the second statutory precondition to a grant of maintenance exists here.

The amount of maintenance awarded— $375 per month — is obviously not sufficient to maintain Sara by itself. However, as indicated, it is not the purpose of an award of maintenance to provide Sara with a comfortable annuity in view of the fact that she can work and earn sufficient money to supplement the award of maintenance. If the parties’ financial circumstances change significantly, the award may be modified in a future proceeding. See In re Marriage of Powers, supra n.5, 527 S.W.2d at 955-956.

The cause is remanded with directions to the trial court to modify its apportionment of marital property and to apportion the farm, described as the east one-half of the southeast one-quarter (E ½ of SE ⅝) in Section 21, Township 27, Range 31 West, Newton County, Missouri, to Sara Schulte as her sole and separate property. In all other respects, the judgment and decree of the trial court is affirmed.

All concur, except TITUS, J., who took no part in the consideration or decision of this case.

      . “That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.” (our emphasis)

      . Which provides for transfer to the Supreme Court upon application of a party prior to opinion if such application is filed within ten days of filing the transcript with the Court of Appeals.

      . During J.C.’s cross-examination and again at the close of the hearing, the trial court indicated it would find all the property in issue to be marital property. J.C.’s counsel was asked to prepare an appropriate decree. The order prepared does not reflect the trial court’s announced finding but of course no specific, written finding was required by § 452.330 in the absence of a request. Stark v. Stark, 539 S.W.2d 779, 781 [1] (Mo.App.1976). Neither party requested findings pursuant to Rule 73.-01, V.A.M.R.

      . The parties’ estimates of value varied, e. g., J.C.’s estimates on trial were at variance with his answers to interrogatories; we have taken the most definite figures we can find in the record.

      . See: In re Marriage of Powers, 527 S.W.2d 949, 957[16] (Mo.App.1975); In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, 566-568[7] [8-10] (bank 1976); Blitt v. Blitt, 139 N.J.Super. 213, 353 A.2d 144 (Ch. Div.1976); DeRevere v. DeRevere, 5 Wash.App. 741, 491 P.2d 249, 251-252[3] (1971).

      . In re Marriage of B.K.S., 535 S.W.2d 534, 536[4] (Mo.App.1976); Conrad v. Bowers, 533 S.W.2d 614, 620[7] (Mo.App.1975); In re Marriage of Powers, supra n.5, 527 S.W.2d at 957[15]; Reed v. Reed, 516 S.W.2d 568, 570[5] (Mo.App.1974).

      . See, e. g., Naeger v. Naeger, 542 S.W.2d 344, 347[6] (Mo.App.1976); Murray v. Murray, supra, 538 S.W.2d at 588[4]; In re Marriage of Heddy, supra, 535 S.W.2d at 280-281 [13]; In re Marriage of Powers, supra n.5, 527 S.W.2d at 951; In re Marriage of Janko, 533 P.2d 62, 63[2] (Colo.App.1975).

      . Peterson v. Peterson, 242 N.W.2d 103, 108[4-6] [7] (Minn.1976); Clark, Divorce Policy and Divorce Reform, 42 U.Colo.L.Rev. 403, 410 (1971).


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri ex rel. Mary Ann NESBIT, Relator, v. The Honorable Herbert LASKY, Judge of the Circuit Court of St. Louis County, Respondent.
    No. 38431.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 11, 1977.

      Rosecan, Popkin & Chervitz, Richard C. Witzel, St. Louis, for relator.
    Paul Taub and Jerry A. Klein, Overland, for respondent.
   McMILLIAN, Presiding Judge.

On July 21,1976, respondent judge struck all existing orders in relator’s dissolution action and dismissed the action without prejudice. On August 30, 1976 the court issued an alternative writ of mandamus ordering the judge to reinstate the stricken orders and proceed with the case. The issue now before this court is whether the writ should be made absolute.

The procedural history of this controversy is relatively involved but very pertinent to a proper resolution of the case. On July 16, 1975, relator filed her suit for dissolution of marriage in the circuit court of Jackson County, State of Missouri. On August 1, 1975, the relator’s husband’s first attorney entered a limited appearance in the Jackson County court for the purpose of contesting that court’s jurisdiction over the parties. Apparently no resolution was ever made of this motion to dismiss. Allegedly pursuant to an agreement between relator’s attorney and relator’s husband’s first attorney, a second dissolution action was filed on November 17, 1975, in the circuit court of St. Louis County. An answer and appearance for relator’s husband were entered in St. Louis County. The St. Louis County action then proceeded for several months during which time motions were heard, depositions were taken, interrogatories were filed and answered, and after oral argument and testimony a pendente lite order for child support was entered. In May of 1976, relator’s husband’s first attorney withdrew and a new attorney appeared for the husband commencing June 14, 1976. On June 25, 1976, the St. Louis County cause was transferred to respondent judge pursuant to the new attorney’s motion for change of judge. On July 9, 1976, relator’s husband filed a motion to strike previous orders and to dismiss alleging that the circuit court of St. Louis County had no jurisdiction over the subject matter of the cause because of the pendency of the previously filed suit in Jackson County. On Friday, July 19, 1976, immediately before the hearing on this motion to dismiss the Jackson County action was dismissed by relator. On July 21, 1976, respondent judge sustained the motion to strike previous orders and to dismiss, and dismissed relator’s cause without prejudice. The grounds upon which the judge dismissed relator’s cause are not made explicit in the order but based on the positions taken by the respective parties in argument on the writ, we assume the striking and the dismissal were based on the judge’s determination that at the time of entry of the orders he lacked subject matter jurisdiction because of the pendency of the Jackson County suit.

Respondent judge contends that our alternative writ of mandamus was improvidently granted because relator has a pending appeal in this court which respondent asserts will give relator full relief and because relator has failed to plead facts demonstrating any inadequacy of the remedy by appeal.' Respondent also asserts that the pendency of the Jackson County suit deprived St. Louis County of subject matter jurisdiction. Relator counters that the remedy by appeal is not adequate so as to preclude mandamus and that the pendency of the Jackson County suit did not deprive St. Louis County of subject matter jurisdiction but simply allowed relator’s husband a possible plea in abatement of the St. Louis County action. Relator further contends that relator’s husband’s voluntary appearance in St. Louis County amounts to a waiver of the defense of abatement.

Before addressing the correctness of respondent’s ruling on the jurisdictional issue, we must discuss briefly the propriety of mandamus as a remedy. Mandamus is an extraordinary remedy normally unavailable if there is another plain, speedy and adequate remedy at law, State ex rel. M. B. v. Brown, 532 S.W.2d 893, 895 (Mo.App.1976). In the present case, relator has a concurrently pending appeal to this court filed August 30, 1976, but the mere fact that an appeal is pending does not preempt mandamus. The other remedy must be equally adequate and efficient, State v. McDonnell, 426 S.W.2d 11, 15 (Mo.1968), State ex rel. M. B. v. Brown, supra, at 895. Respondent contends that relator’s petition to this court fails to state facts to support her allegation that other adequate relief is unavailable. Relator’s reply to respondent’s return to alternative writ of mandamus, paragraph 4, however, reveals to this court that the basis of the claimed inadequacy is the treatment of pendente lite child support payments. Our alternative writ of mandamus ordered the trial judge to reinstate the stricken orders and thus to reimpose the child support obligation. If we were to quash the alternative writ and relegate relator to the appeal route, then until such time as the appeal was resolved there would be no existing judicially mandated support obligation. We feel that the question of child support marks the present dispute with an inherent need for celerity sufficient to render appeal an inadequate remedy and thus to justify usei of mandamus.

In the present case, the alternative writ of mandamus should be made absolute because there was not a legally justifiable basis for dismissal of relator’s action. The trial court struck orders believing them to be nullities because entered by a court lacking subject matter jurisdiction due to pend-ency of the prior filed suit. The pendency of a prior action, however, does not serve to deprive the second court of subject matter jurisdiction. Respondent’s confusion is understandable in light of the ambiguous language in which the general rule is normally stated. As recently noted, the general rule provides:

“. . . ‘that where two actions involving the same subject matter are brought between the same parties in courts of concurrent jurisdiction, the Court in which service of process is first obtained acquires exclusive jurisdiction of the cause, and may dispose of the whole controversy without the interference of any other court.’ ” (Emphasis added.)

State ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391, 393 (Mo. banc 1975). See generally cases collected at Missouri Digest, Courts, The usage of the words “exclusive jurisdiction” in the statement of the general rule imports, however, only a very well-established judicial policy of deference to the first filed suit. The rationale of that policy has been repeatedly stated as:

“This rule rests upon comity and the necessity of securing proper and orderly administration of justice to prevent vexation, oppression, harassment and unnecessary litigation. Any other rule would result in a multiplicity of suits and create unseemly, expensive and dangerous conflicts in the securing and execution of judgments.”

In re Gaebler’s Estate, 248 S.W.2d 12, 15 (Mo.1952); Warder v. Henry, 117 Mo. 530, 23 S.W. 776, 779 (1893); Martin v. Richmond Cotton Oil Co., 194 Mo.App. 106, 184 S.W. 127, 130 (1916); State ex rel. Nicholson v. McLaughlin, 170 S.W.2d 705, 707 (Mo.App.1943); 21 C.J.S. Courts § 492, pp. 747-8. Though not necessary to our resolution of this controversy, we note that the record filed in this court gives no indication of vexatiousness or oppression.

A further clue to the realization that pendency of a prior filed suit does not raise a question of subject matter jurisdiction is found in Rule 55.27, V.A.M.R. As correctly noted by respondent, the defense of subject matter jurisdiction cannot be defeated by waiver, acquiescence or even express consent, Kelch v. Kelch, 450 S.W.2d 202, 204 (Mo.1970) and Lafayette Federal Savings & Loan Association of Greater St. Louis v. Koontz, 516 S.W.2d 502, 504 (Mo.App.1974). Rule 55.27(g)(1), however, specifies as one defense deemed waived if not timely made the defense “that there is another action pending between the same parties for the same cause in this state.” A separate subsection, Rule 55.27(g)(3) relates to the defense of subject matter jurisdiction and expresses the general principle that this defense is always available.

Our alternative writ of mandamus should, therefore, be made absolute because:

“We have established the rule that when, upon a preliminary question of jurisdiction depending wholly upon the law and not upon the facts, the court misconceives its jurisdiction of the cause or of the parties and refuses to proceed to a final determination upon the merits then the appellate court will issue its writ of mandamus- to compel the lower court to reinstate the matter and proceed to its final determination . . .

State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009, 1011 (1940); State ex rel. Alden v. Cook, 360 Mo. 252, 227 S.W.2d 729, 732-3 (banc 1950); State ex rel. Great American Ins. Co. v. Jones, 396 S.W.2d 601, 603 (Mo. banc 1965).

As a final comment, we note that even if the existence of the Jackson County suit had been properly argued to respondent judge as a plea in abatement, the defense would have been unavailing. Respondent’s return to alternative writ, paragraph 4, admits the filing of an answer in the St. Louis County action on December 30,1975. Respondent’s motion to strike and dismiss raising the defense of a prior filed suit was not made until July 9, 1976. Under Rules 55.27(a) and 55.27(g)(1), the defense would properly be deemed to have been waived.

The alternative writ of mandamus is made absolute.

STEWART and RENDLEN, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommie WILLIAMS, Defendant-Appellant.
    No. 37909.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 28, 1976.

      Robert C. Babione, Public Defender, Mary Louise Moran, Terry Burnet, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Ronald Safren, Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Tommie Williams appeals from a conviction by a jury of murder in the second degree. He was sentenced to fifty years imprisonment.

Defendant Williams does not question the sufficiency of the evidence to sustain his conviction. The jury could find that Williams and the victim, Phillip Rowan, had been drinking and gambling during the afternoon of December 28, 1974. These events terminated when the victim refused to pay defendant a gambling debt. Defendant and Rowan entered a tavern and were overheard discussing the money owed. Rowan left, ostensibly to obtain the money. When Rowan returned, defendant was waiting outside the tavern and pulled a pistol on him. After some conversation, defendant shot Rowan as he turned to leave. Then defendant went to Rowan as he lay on the ground and fired two more shots at Rowan.

Defendant testified on his behalf that, when the gambling ended, all the participants except defendant entered the tavern. His testimony indicated Rowan was accompanied by an unidentified man. Defendant stated that this unidentified man had a gun, and when he came back outside with Rowan he stated: “Quit talking to the little fool and shoot him.” Defendant feared that either Rowan or the unidentified man was going to do something to him, so he shot Rowan.

On appeal, appellant contends that the court erred in overruling defendant’s objection to comments by the prosecutor on defendant’s failure to call the victim’s unidentified companion as a witness in closing argument. The argument in question is set out below:

“The other thing he was in fear of was this unknown man, who, the first time I have ever heard about the man was here yesterday when you did. The first time I heard Tommie’s story was here yesterday when you did. Who is that man? Where is he? Mr. Fanning has the right to bring in any witness he wants. The defendant told you he’s known in that area.
* * * * * *
“I didn’t even know about him until yesterday. How can I bring him in? You have seen the defendant’s friends and relatives sitting out there for two days. They could have gone back to the corner and gotten that man any time in the last year and a half, but he didn’t come in because there is no such person.”

To these comments, defendant’s counsel promptly objected.

The trial court has wide discretion in controlling the arguments of counsel. Whether remarks of counsel are improper and whether improper remarks are prejudicial so as to necessitate reprimand of counsel or discharge of the jury rest within the trial court’s sound discretion. It is only when that discretion is abused that an appellate court will reverse and remand for new trial. State v. Ball, 529 S.W.2d 901, 908[19] (Mo.App.1975).

In support of his contention, appellant cites State v. Collins, 350 Mo. 291, 165 S.W.2d 647 (1942), and State v. Houston, 451 S.W.2d 37 (Mo.1970). The court in Houston, at 40, states the general rule that it is improper for the state to argue the failure of a defendant to call a witness in his behalf where the witness is equally available to both parties. Three principal elements of availability are enunciated in State v. Collins, supra at 648-649: (1) the superior means of knowledge of one party regarding the existence and identity of a witness; (2) the superior means of knowledge regarding the nature of the witness’ testimony; and (3) the relationship of the parties. There was no special relationship between defendant and the unidentified alleged witness. However, defendant had the superior means of knowledge of the existence and identity of this alleged witness and of the nature of his testimony.

Though defendant did not know the alleged witness, he had seen the man on previous occasions and had been gambling with him prior to the shooting. Defendant could identify the alleged witness, could locate him through information obtained by talking to other persons who had gambled with defendant and the alleged witness on the day of the shooting, or could locate him in the neighborhood where defendant had previously seen him. Defendant also had the superior means of knowledge regarding the nature of the testimony of the alleged witness, and of the value of that testimony to him. See, State v. Brown, 525 S.W.2d 565, 567[2] (Mo.App.1975). Defendant was the only person at the scene who saw or heard the alleged witness. The state had no knowledge of the existence of this alleged witness, no description of the unidentified man, and no indication of the contents of any testimony he might give.

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.