author: REINHARD, Presiding Judge.

text:
    John W. GIESECKE, Plaintiff, v. W AND G CORPORATION, Defendant-Claimant, v. KXEN, INC., Defendant-Claimant-Appellant, v. Patsy Garrett McGINNESS as guardian of John William Garrett, a minor, Defendant-Claimant-Respondent.
    No. 40126.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Edward P. Burke, Clayton, for appellant.
    Myron Gollub, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Appellant, KXEN, Inc., appeals from an order of the Circuit Court which set aside a previous judgment and reinstated the case.

This case is a civil action of interpleader commenced in January, 1968, in which the plaintiff was allowed to deposit in court five promissory notes and a check, and requiring the defendants to interplead with each other to determine who was entitled to receive each of the notes and check.

On August 29, 1977, the circuit court dismissed with prejudice the claims of all in-terpleaded defendants except defendant KXEN, Inc. for failure to appear at the trial. The court further ordered that the notes and check which had been deposited in the registry of the court be delivered to interpleaded defendant KXEN, Inc.

The record indicates that on September 28,1977, an attorney for Patsy Ruth McGinness, Guardian of the Estate of John William Garrett filed an “affidavit of Non Notice to Party Plaintiff” with the clerk of the circuit court. The affidavit executed by the attorney alleged that he had no notice óf the case having been set for trial on August 29, 1977. The affiant requested that the cause be reinstated on the docket and the same set for trial in November. The circuit clerk in compliance with the previous order delivered the notes and check held in the registry of the court to appellant on October 21, Í977.

On January 27, 1978, the court entered the following order: “On Motion of Defendant, Patsy Ruth McGinness, Guardian for John William Garrett, a minor, having received no notice of hearing on August 29, 1977, wherein said cause was dismissed, this cause is hereby reinstated.” From this order appellant appeals.

The appellant contends that the court ruled ex parte without motion or notice. Apparently, the court considered the affidavit as a motion but there is nothing in the record indicating the service of notice on any other party and on appeal respondent does not contend that any party was served notice of the affidavit or received prior notice of the court’s action.

Frankly, the answer to this case is found in our recent case of Caldwell Paint Manufacturing Company, Inc., a Corporation v. Ron LeBeau and Gail LeBeau, his wife, D/B/A Ron LeBeau Painting Co., 591 S.W.2d 1 (Mo.App.1979).

The circumstances there were similar to those in the instant case other than this being an interpleader action. We said in Caldwell:

It is settled law in this State that although the trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify said judgment for good cause within that period of time, Rule 75.01, the power and jurisdiction to do so is subject to the qualification that the party to be adversely affected be given reasonable notice and an opportunity to be heard on the factors inducing the court’s intended action. Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 574[14] (banc, 1939); Hoppe, Inc. v. St. Louis Public Service Co., 235 S.W.2d 347, 348[2] (Mo. banc 1951); State ex rel. Murphy v. Aronson, 330 S.W.2d 140, 143[1] (Mo.App.1959); Summers v. Clayton, 500 S.W.2d 28, 30[2] (Mo.App.1973).
This concedely [sic] was not done in this case and therefore the trial court lacked jurisdiction to enter the order of May 27, 1977, setting aside and holding for naught the judgment of April 28, 1977, in favor of the respondent and against the appellants, and said order is, and was since its entry, a nullity.

Id. at 6.

At best, we consider respondent’s affidavit as a suggestion for it to exercise its power under Rule 75.01. It was filed on the 30th day after entry of the judgment on August 29, 1977; the court made its order attempting to set aside the judgment approximately four months later. There was no notice to the adverse party of the filing of the affidavit or the action of the court prior to when it was taken. Under these circumstances the court was without jurisdiction to enter- its order and we must reverse.

Order setting aside judgment reversed.

DOWD, P. J., and CRIST, J., concur.

      . Respondent would have us consider the affidavit as a Rule 74.32 motion. Even if we were to accept respondent’s contention, there was no prior notice to appellant.


source: Caselaw Access Project

author: GUNN, Presiding Judge.

license: Public Domain

text:
    R. F. ALLEN and Lucy Allen, Appellants, v. CITY OF FREDERICKTOWN, a municipal corporation of the fourth class, Respondent.
    No. 40651.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Albert C. Lowes and David G. Beeson, Buerkle, Lowes & Beeson, Jackson, for appellants.
    Kenneth W. Shrum, Pros. Atty., and Gary A. Kamp, Marble Hill, for respondent.
   GUNN, Presiding Judge.

Appellants brought suit against respondent City of Fredericktown to recover the cost of the installation of water and sewer lines within a subdivision development. Appellants grounded their action on a municipal ordinance providing for reimbursement by the City, under certain conditions, of the cost of, construction of water and sewer lines placed in subdivisions by developers. The City defended the action for a variety of reasons, among which were: that there had been a repeal of the reimbursement ordinance; that no written contract existed upon which to base their liability; and that the five year statute of limitations of § 516.120(2), RSMo 1978, barred appellants’ claim. In inditing detailed findings of fact and conclusions of law, the trial court ruled in the City’s favor. We affirm on the ground that there was no written contract.

Appellants are developers in Frederick-town. In the course of developing certain additions and subdivisions they incurred costs in the installation of water and sewer lines. Recoupment of such costs was sought and obtained from the City until May 27,1968 under Fredericktown’s municipal Ordinance No. 202 which provided for the reimbursement by the City to developers for sewer and water line installation costs. Both parties agree that there is no controversy regarding expenses incurred prior to May 27, 1968. Ordinance No. 68— 10, enacted May 27, 1968 has spawned the litigation now before us. Ordinance No. 68-10 required a subdivider seeking to develop land within the City to submit and obtain approval of development plans by the Board of Aldermen. Following approval of the preliminary plans the subdivider was required, among other things, to furnish a bond or provide for an assessment to guarantee the cost of such improvements, including water and sewer lines. Some of the provisions of Ordinance No. 68 — 10 were as follows:

No final or official plat of any subdivision shall be approved unless: (a) the subdivider agrees with the Board of Aldermen upon an assessment whereby the city is put in an assured position to install the improvements listed below at the cost of the owners of property within the subdivision, or (b) the improvements listed below have been installed prior to such approval, or (c) the subdivider filed with the Board of Aldermen a surety bond, cashier’s check, or a certified check upon a solvent bank located ' in the City of Fredericktown conditioned to secure the construction of the improvements listed below in a satisfactory manner and within a period specified by the Board of Aldermen, such period not to exceed two years. No such bond or check shall be accepted unless it be enforceable by or payable to the city in a sum at least equal to the cost of constructing the improvements- as estimated by the City Engineer and in form with surety and conditions approved by the City Attorney.

Appellants were reimbursed by the City under Ordinance No. 202 for subdivision water and sewer line improvement costs incurred prior to the adoption of Ordinance No. 68-10. Subsequent to the passage of this latter ordinance, there has been no reimbursement to appellants of the $16,-568.36 expended by them for water and sewer line improvements in subdivision development. It is this sum which forms the seedbed of controversy between the parties and for which appellants seek recovery.

The trial court in its well written findings of fact, conclusions of law and judgment found, among other reasons, that appellants’ claim for recovery was deficient as they had failed to obtain the requisite Ordinance No. 68-10 final approval of their development plans or by failure to fulfill conditions of preliminary plans which had been given conditional approval. The .trial court found that appellants were not entitled to any recovery for any costs expended subsequent to May 27, 1968. Appellants recognize that there has been a failure of compliance in certain aspects with Ordinance Nos. 202 and 68-10 but have based their claim on an alleged contractual obligation by the City to reimburse them for their expenses. However, the trial court concluded, inter alia, that there was no written contract between the parties; that without a written contract appellants have no right of recovery under § 432.070, RSMo 1978, which specifically provides:

No . . city . . . shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law . . . ; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.

Appellants postulate that the existence of Ordinance No. 202 providing for reimbursement of water and sewer line expenses, creates a unilateral or executory contract which needs only some action or performance by appellants to complete the contract with the ordinance serving as the written document. Appellants also rely on the fact that the mayor and city clerk did execute certain documents indicating their approval of the plans submitted, albeit the Board of Aldermen had not enacted the requisite legislation for approval. Conversations between the appellants and the City’s water works manager in which there was no disavowal of the City’s liability for payment under Ordinance No. 202 were used by the appellants to further their position. As precedent for their theorem and as an example of their assiduous research, appellants cite Aurora Water Co. v. City of Aurora, 129 Mo. 540, 31 S.W. 946 (1895). In that case it was held that a properly adopted ordinance may serve as a written , contract binding a municipality when accepted in writing by a second party. But we must reject appellants’ argument. First, it is a fundamental precept that a municipality must reduce its contract to 'writing under the mandate of § 432.070, RSMo 1978. City-Wide Asphalt Co. v. City of Independence, 546 S.W.2d 493 (Mo.App.1976). Other than Ordinance No. 202, there is no writing extant to meet the directive of § 432.070. Nor can we find that Ordinance No. 202 suffices as the requisite written instrument. The situation in this case is unlike that in Aurora Water Co. v. City of Aurora, supra, where the ordinance — a contract in itself— contained complete contract provisions, including cost of items and detailed specifications. Ordinance No. 202 cannot serve as any kind of paradigm for a contract. It is, at most, the authority which could lead to the preparation of a written contract for the construction and reimbursement provisions for sewer and water lines in a subdivision. The ordinance cannot under any circumstances be considered to constitute the writing demanded by § 432.070. Burger v. City of Springfield, 323 S.W.2d 777 (Mo.1959), cited by appellants, also fails to supply sufficient succor for their position that Ordinance No. 202 provides the writing necessary to comply with the mandate of § 432.070, for in Burger there were other written instruments of sufficient specificity to compliment the ordinance and form a written contract. Such is not the case here. See also: State ex rel. Hwy. Com’n v. City of Washington, 533 S.W.2d 555 (Mo.1976). Other cases relied on by appellants are similar to Burger and Aurora and thus not congruent with the situation in this case.

Appellants assert that the City has reaped the benefit of $16,568.36 in water and sewer line improvements installed by them post-Ordinance No. 68-10; that the City is thereby estopped from denying the existence of a contract, particularly as payments had been made pre-Ordinance No. 68-10. We first note that the benefits derived from appellants sewer and water line construction efforts were to the subdivisions owned and developed by appellants. But further, Mo. Intern. Inv., Inc. v. City of Pacific, 545 S.W.2d 684 (Mo.App.1976), provides a remarkably poignant rejection to appellants’ estoppel and undeserved benefits argument through the following statement:

Plaintiff attempts to parry this rule [the rule of § 432.070] . with the theory that the city should be estopped from denying the existence of the contract because it accepted the benefits of the contract and made a partial payment thereon. The city did pay plaintiff $1,750.00 after receiving a bill from plaintiff for that amount. The city may have also received some additional benefits as a result of plaintiff’s efforts which were the subject of this law suit. But ‘[t]he contract, absent the prescribed writing, is void. The fact a municipality has received the benefit of a performance by the other party does not make the municipality liable either on the theory of a ratification, estop-pel or implied contract’, (original emphasis) Id. at 685.

Accord: State ex rel. Walmar Investment Co. v. Mueller, 512 S.W.2d 180 (Mo.App.1974).

Appellants continue to argue that they had fully performed all conditions of the contract by asserting Ordinance Nos. 202 and 68-10 as the basic written contract and their acceptance and performance of the conditions contained in the ordinances. Thus, appellants adjure, their performance of the conditions of the written ordinance caused a contract to develop and ripen giving them a proper cause of action. However, appellants are unable to overcome the fact that they have not complied with many of the provisions of Ordinance Nos. 202 and 68-10, the most stark of which is the failure to obtain approval of the final plats by ordinance as mandated by the ordinances and § 445.030, RSMo 1978.

Appellants dwell on the fact that the mayor and city clerk approved certain of the plats. But the cachet of those two officials to the plats is not enough to fulfill the directives of § 445.030 that subdivision plats be approved by ordinance. Certainly, more than the mayor’s and city clerk’s imprimaturs or conversations with a municipal employee unauthorized to speak for the City is necessary to raise any writing to the status of an effective written contract within the meaning of § 432.070 or to qualify as a binding authorization or approval of contract conditions by the City. There must be direct authorization by the Board of Aldermen. State ex rel. State Hwy. Com’n v. City of Sullivan, 520 S.W.2d 186 (Mo.App.1975); State ex rel. Walmar Investment Co. v. Mueller, supra.

Having reached the conclusion that appellants are not entitled to recover for the foregoing reasons, we need not address other findings and conclusions of the trial court serving as a basis for the denial of appellant’s claim.

Judgment affirmed.

STEPHAN and PUDLOWSKI, JJ., concur.

      . Fredericktown has acknowledged in open court that it owes appellants $117.85 for water and sewer line costs incurred prior to May 27, 1968. Both parties have stipulated that this item is not at issue in the case and may be disregarded by this court.

      . Ordinance No. 202 was expressly repealed on October 13, 1975.


author: CLEMENS, Senior Judge.

text:
    Walter Eugene MORSE, Movant, Appellant, v. STATE of Missouri, Respondent.
    No. 39587.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 6, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Richard L. Parker, Asst. Public Defender, 25th Judicial Circuit, Vienna, for movant, appellant.

      John Ashcroft, Atty. Gen., James R. Cumbee, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Movant Walter E. Morse, hereafter “defendant,” having been found guilty of burglary and stealing, filed a Rule 27.26 motion to vacate judgment. The trial court summarily denied the motion and defendant has appealed. We reverse and remand.

The crucial ground of defendant’s motion to vacate is that he was denied assistance of counsel to file a motion for new trial. This failure arose under the following circumstances. Public Defender Melvin Franke had represented defendant at trial and after the guilty verdict on April 15, 1975 was granted leave to file a motion for new trial by May 21. On its own motion the court then requested defendant to file an “indi-gency form” pursuant to § 600.086 3. RSMo. 1979. Defendant declined to do so. On May 5 the court, again on its own motion, ordered Mr. Franke relieved of his appointment as defense counsel. This occurred sixteen days before expiration of the time for filing a motion for new trial, which was never filed. Thereafter, the trial court arraigned and sentenced defendant, who then filed his Rule 27.26 motion. The trial court denied it without a hearing. This appeal followed.

The issue before us is whether the trial court erred in leaving defendant without counsel during the critical period when preparing and filing a motion for new trial was vital to defendant’s right to appeal. We say the court erred.

A closely parallel case arose in Nicholson v. State, 524 S.W.2d 106[3, 4] (Mo. banc 1975), where “appellant’s court-appointed counsel requested and was granted leave by the trial court to file a motion for new trial on or before April 17 . . . . Counsel was allowed to withdraw from the case some 25 days before the time expired without having filed the motion, and new counsel was not appointed until after the time had expired. Appellant . . . does not suggest that the court erred in allowing the first attorney to withdraw; rather, the error lies in that the court neither required him first to file the motion, nor appointed another attorney to do so within the time allotted.” There, the defendant sought remand for a new trial, but the court held the proper relief “is to vacate the sentence and order the case remanded with directions to permit appellant to file a motion for new trial.”

As mandated by Nicholson, the judgment here is reversed and the cause remanded with directions to set aside the order relieving trial counsel, vacate the sentence and judgment, and permit the defendant to file a motion for new trial.

DOWD, P. J., and CRIST and REIN-HARD, JJ., concur.


author: REINHARD, Judge.

text:
    STATE of Missouri, Respondent, v. Rudy WEAVER, Appellant.
    No. 40721.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 6, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.

      Leonard W. Buckley, Jr., St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Judge.

Defendant was charged in a two-count information with second degree murder and assault with intent to kill with malice aforethought. Trial by jury resulted in a verdict of guilty on the assault charge and a mistrial on the murder charge. The jury assessed punishment at. ten years and the court entered judgment accordingly.

The victims of this shooting incident were Mark Baldwin and Terence Shanks. Baldwin, the victim of the assault, testified that on November 20, 1976, he and Shanks, the deceased, were proceeding down a walkway in the Darst-Webbe Housing Complex when the defendant appeared from behind a trash can with a revolver in his hand and ordered them to halt. The defendant wore an army field jacket and was accompanied by one Darrel Steel who was told by the defendant to search Baldwin and Shanks for weapons. An argument ensued between defendant and Shanks and defendant shot Shanks. Defendant then pointed the pistol at Baldwin and shot him in the abdomen. After shooting Shanks again and then shooting Baldwin in the leg as he attempted to walk away, the defendant ran from the scene. Baldwin stated that he was shot four times and that neither he nor Shanks had a gun that evening.

Several other persons also witnessed the incident. Baldwin’s sister testified that she looked out her apartment window and saw the defendant shooting a gun “back and forth.” Joyce Sams indicated that she saw Baldwin and three other men standing outside her window. One of the men wore a green army-type uniform and had a gun. She also saw Baldwin and another boy being checked for weapons. She saw the person wearing the green uniform firing at Baldwin as he was backing way. Jerome Tolliver also saw defendant holding a gun and stated that he had shot Baldwin.

Defendant took the stand in his own behalf. He testified that he was arguing with Shanks when Shanks reached into his pocket and pulled out a pistol. Defendant grabbed Shanks and they struggled for the gun. During the struggle the gun discharged wounding Shanks. Defendant stated that his finger was not on the trigger, nor did he recall the number of times the weapon fired. Defendant then took the gun away from Shanks and looked at Baldwin who was backing away with his hands in his pockets. He stated that because he was afraid he started pulling the trigger. He then fled from the scene.

On appeal, defendant contends that the trial court erred in sentencing him to a term of more than five years imprisonment. He argues that the omission of the word “aforethought” in the verdict form makes it unclear whether the jury intended to convict him under § 559.180 RSMo 1969 or § 559.190 RSMo 1969.

Defendant relies on Hardnett v. State, 564 S.W.2d 852 (Mo. banc 1976) to support his argument. In Hardnett, the defendant was charged with and pleaded guilty to assault with intent to maim with malice. He was sentenced to six years in the Department of Corrections. The court in reversing and remanding discussed §§ 559.180 and 559.190. The court concluded that a charge and conviction of assault with malice and with malice aforethought were not the same. It reasoned that since defendant pleaded guilty to assault with malice, and not assault with malice aforethought, he was convicted under § 559.190 RSMo 1969 and not § 559.180 RSMo 1969.

Here, the defendant was charged with assault with intent to kill with malice aforethought. The court submitted one assault instruction (No. 8) which required the jury to find that the defendant did the act with malice aforethought in order to find him guilty of this assault. It did not give an instruction on the lesser included offense of assault with intent to kill without malice. The verdict returned was in the following form: “Verdict. The clerk: Verdict, Circuit Court of the City of St. Louis, No. 76-3085, State of Missouri v. Rudy Weaver. November 19, 1977, On Information For Assault With Intent to Kill With Malice. As to Count 2, we, the jury find the defendant guilty of Assault With Intent to Kill With Malice as submitted in Instruction No. 8. We affix punishment at ten years imprisonment, (signed) Andrea H. Rathbone, Foreman.” (emphasis added)

Frankly, we find no confusion here, nor do we believe that the jury was confused as to what offense it was convicting the defendant. The jury found defendant guilty as charged in Instruction No. 8, an instruction clearly submitting the offense of assault with intent to kill with malice aforethought. Since this was the only verdict directing instruction submitted on the assault charge, the jury could not have meant to find defendant guilty of the lesser included offense. We rule this point against the defendant.

Defendant next contends that the court erred' in permitting the State to cross-examine him about possession of a gun over his objection because this was evidence of a non-related criminal act.

The defendant testified on direct examination that he did not own a firearm and that no one had given him a firearm on or before November 20,1976. On cross-examination, he denied any knowledge of the operation of automatic handguns. He claimed that he had never fired one or even had one in his possession. The Prosecuting Attorney then asked, “Isn’t it a fact on February the 21st of 1976, at approximately 3:40 in the morning, you pointed a gun at Oscar Williams and fired three shots at him?” Defendant objected to the materiality of the question and the court sustained the objection. The defendant requested no further relief; however, the court instructed the jury to disregard the question. The court did permit the Prosecuting Attorney to ask defendant if he had a gun on February 21, 1976. Defendant answered, “No.” He also asked if defendant knew Eric Washington. Defendant responded that he did not. He then asked if defendant had a gun on the 4th of March, 1976. Again, the answer was “no.”

Proof of commission of a separate and distinct crime is not admissible unless such proof has a legitimate tendency to directly establish defendant’s guilt of the charge for which he is on trial or comes within one of several exceptions to show motive, intent, absence of mistake or accident, a common plan or identity. State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967); State v. Jones, 578 S.W.2d 286, 288 (Mo.App.1979). Defendant claimed that he did not have a gun in his possession on the evening of the occurrence, but took the automatic pistol from one of the victims and fired it in self-defense. He stated that he did not know how to use an automatic pistol and that he never owned or possessed one. The State had a right to impeach this portion of defendant’s testimony which it did by asking the questions of which defendant now complains.

The trial court sustained the defendant’s objection as to the State’s question regarding defendant’s firing a . weapon at Williams. The court on its own instructed the jury to disregard the question. Defendant asked for no further relief. In view of the record, we cannot say the court should have granted a mistrial sua sponte. The question as to his prior possession of a gun was permissible to impeach the defendant. The trial court has broad discretion in determining the scope of cross-examination. State v. Rice, 522 S.W.2d 335, 338 (Mo.App.1975). We find no abuse of that discretion here.

Judgment affirmed.

DOWD, P. J., and CRIST, J., concur.

      . § 559.180 RSMo 1969 provides for a punishment range of two years to life imprisonment. The maximum sentence under § 559.190 RSMo 1969 is five years imprisonment.

      . This case was tried prior to the Supreme Court’s decision in Hardnett. The court recognized there, that both attorneys and judges used rather informal language in describing offenses under §§ 559.180 and 559.190 RSMo 1969. The court stated in Footnote 1:
      It is readily acknowledged that in conversation among lawyers and judges and in a number of opinions the offense of assault with intent, etc., with malice aforethought under Sec. 559.180 is commonly referred to as assault, etc., “with malice”, and the assault with intent, etc., under Sec. 559.190 is referred to as assault, etc., “without malice.”

        Id. at 853.

      . INSTRUCTION # 8
      As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
      First, that on November 20, 1976, in the City of St. Louis, State of Missouri, the defendant shot at Mark Baldwin, and
      Second, that he did so with malice aforethought — that is, intentionally and without just cause or excuse and after thinking about it beforehand for any length of time, and
      Third, that he did so with intent to kill Mark Baldwin, and
      Fourth, that such assault by defendant was not justifiable as submitted in Instruction # 9, then you will find the defendant guilty under Count II of assault with intent to kill with malice aforethought.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty under Count II of that offense.
      If you do find the defendant guilty under Count II of assault with intent to kill with malice aforethought, you will fix his punishment at imprisonment by the Department of Correction for a term fixed by you, but not less than two years nor more than life imprisonment. (MAI-CR 6.22, submitted by the State).


text:
    STATE of Missouri, Respondent, v. Felix Samuel MARTIN, Appellant.
    No. 40844.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 6, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Jim McGhee, Pros. Atty., Bloomfield, for appellant.
    Rob G. Carpenter, Oklahoma City, Okl., Gary L. Smith, Smith & Holden, Dexter, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant Felix Martin guilty of wounding a police officer engaged in performing his lawful duties. Sec. 557.-215, Laws 1965. The court sentenced defendant, as a prior felon, to four years in prison.

Defendant appeals, contending primarily that the trial court erred in refusing his self-defense instruction, a modified MAI-CR 2.40. Error depends on whether evidence favorable to defendant warranted that instruction.

A brief background statement of the conceded facts will suffice to focus on the pertinent facts concerning the propriety of the self-defense instruction. The parties are in substantial agreement that: Defendant, with his wife and several children, lived in a rural trailer home. She was having emotional problems and he filed a petition in probate court to have her declared incompetent. After a hearing the court denied the petition. Mrs. Martin preferred to live elsewhere and the probate judge recommended that she return to the trailer home and pick up her personal effects. Defendant was agreeable to this, and the probate judge later requested a deputy sheriff to accompany Mrs. Martin for that purpose. That evening she and two deputy sheriffs, Larry Hampton and Bill Stroup, drove to the parties’ home in a patrol car; sheriff Hampton went to the door and told defendant his wife wanted to come in, to which defendant consented. Then Hampton and Stroup brought Mrs. Martin to the door and defendant held it open for her. At that point the evidence diverged.

The state’s evidence came from sheriff Hampton, supported by deputy Stroup: When Mrs. Martin entered Hampton tried to follow her inside. Defendant blocked Hampton, who demanded entrance. Defendant cursed Hampton and denied entry without a search warrant. Defendant lunged from the door, grappled with Hampton, and they fell to the ground, the defendant pulling Hampton’s revolver from its holster and pointing and trying to fire it at him as they wrestled on the ground. Sheriff Hampton grabbed the gun, and with his hand blocked the hammer as defendant pulled the trigger. During this struggle defendant’s mother and two teenage sons joined in, pulling at and striking sheriff Hampton.

As said, defense testimony varied starkly, coming from defendant and substantially supported by his mother and two sons: As Mrs. Martin approached the trailer sheriff Hampton asked defendant if he had any guns and said he wanted them. Defendant told Hampton he couldn’t come inside without a search warrant and held onto the door. Hampton forced the door open, came inside, cursed defendant, hit him in the chest and knocked him back against a table. At the doorway Hampton then unsnapped his holster, again cursed defendant and said: “I’m gonna give you a bullet right in the belly.” As Hampton began to pull his gun from the holster and was raising it defendant grabbed the barrel. The two men fell to the ground, violently struggling for possession of the gun. When defendant’s son twisted Hampton’s arm he released the gun. Defendant took it, gave it back to Hampton, the affray ended, and defendant was arrested.

As said, defendant offered and the court refused defendant’s offered self-defense instruction. In part, it read: “If the defendant had reasonable cause to believe and did believe that he was in immediate danger of serious bodily harm and had reasonable cause to believe and did believe that it was necessary for him to act as he did to protect himself from such danger, then you are instructed that he acted in lawful self-defense and must be acquitted.”

The gist of defendant’s evidence was that he denied sheriff Hampton entry to defendant’s trailer to search for guns; that Hampton forced his way in, assaulted, cursed and threatened to shoot defendant, took out his gun and while pointing it at defendant, they began struggling for its possession.

In two cases of wounding a police officer while performing lawful duties it was held the asserted defense of self-defense was not supported by the evidence. See State v. Ross, 492 S.W.2d 792(1) (Mo.1973), and State v. Milentz, 521 S.W.2d 1(1, 2) (Mo.App.1975). However, where there is such evidence the rule is: “Any unlawful interference with the fundamental right of personal liberty may be resisted. Accordingly, every person has a right to resist an unlawful arrest.” Kansas City v. Mathis, 409 S.W.2d 280(7) (Mo.App.1966). See also City of St. Louis v. Penrod, 332 S.W.2d 34(7) (Mo.App.1960). In State v. Browers, 356 Mo. 1195, 205 S.W.2d 721(5, 6) (1947), an action for assaulting a police officer, the court held that if there was evidence the officer had no right to arrest a resisting defendant, the trial court must instruct on self-defense.

The latest case on the subject is State v. Nunes, 546 S.W.2d 759(1-2, 12) (Mo.App.1977). In affirming a conviction for violating Sec. 557.215 the court held defendant was not entitled to a self-defense instruction only because the evidence showed he was the aggressor and the police had not used unreasonable force. (l. c. 764, 765). However, the court logically ruled (1, 2, 14) that a citizen’s right of self-defense permits reasonable resistance by a citizen to excessive force in order to protect his person. The court concluded at l.c. 764: “Any substantial evidence of self-defense — even from the defendant alone — requires instruction on the issue to the jury as part of the law of the case.”

Here, defendant’s evidence was that he took no aggressive action until sheriff Hampton had threatened to shoot him and was pulling out his gun, at which time defendant first took action by struggling for and finally gettjng possession of the gun. We hold this evidence required an instruction on self-defense and the trial court erred in refusing it.

Reversed and remanded.

DOWD, P. J., and REINHARD and CRIST, JJ., concur.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edgar William ALDAG, Defendant-Appellant.
    No. 39797.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 13, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.

      Fred Roth, Clayton, for defendant-appellant.
    William C. Mcllroy, Pros. Atty., Bowling Green, for plaintiff-respondent.
   DOWD, Presiding Judge.

The Pike County Circuit Court, in an appeal from Magistrate Court, in a court tried case, found defendant Edgar William Aldag guilty of careless and imprudent driving by reason of failing to yield the right of way. He was fined $35.00 plus costs and appeals that conviction.

Defendant’s traffic conviction arose from an accident between his Jeep Scout and a car driven by Mrs. Della Mae Naxera. The defendant had been traveling south on Route D, a two lane road. Mrs. Naxera was northbound on the same road. Defendant made a left turn in the path of Mrs. Naxera’s car into the entrance of a plant where he was working. Mrs. Naxera drove off the highway to the right and struck defendant’s car somewhere on Route D’s northbound shoulder. The Highway Patrolman who was called to the scene ticketed the defendant for failing to yield the right of way. That charge was later amended to operating “a motor vehicle in a careless and imprudent manner by failing to give the right of way to a vehicle being operated in the opposite direction”.

The defendant raises, in this appeal, two contentions of trial court error. First, he argues that the court should not have allowed the State to amend the information since, by doing so, the State was increasing the charge to a greater or additional Crime than the one originally charged. The Circuit Court granted the State leave to file the amended information before the case was heard de novo on appeal in that court. Defendant did not object to the amended information nor did he include this claim of error in his motion for new trial. He raises this claim of error for the first time in his brief on appeal. This case was tried without the aid of a jury, therefore, no motion for new trial was necessary to preserve this point for our review. State v. Ewing, 518 S.W.2d 643, 645 (Mo.1975).

It is within the trial court’s discretion to allow amendment of informations anytime (prior to verdict or finding provided that no additional or different offense is •charged and the substantial rights of the defendant are not prejudiced. State v. Fleming, 518 S.W.2d 449, 451 (Mo.App.1975); Rule 24.02. Defendant claims that amending the information to add the language operating “a motor vehicle in a careless and imprudent manner” was sufficient to charge him with a greater or different crime. He makes this claim in spite of the fact that he was charged under § 304.351 RSMo 1969 in both informations. While we realize that citation to specific statutory sections in an information is not conclusive on the question of which offense defendant has been charged with, State v. Bryne, 503 S.W.2d 693, 695 (Mo.1973), we find it to be persuasive in this case. The additional language was inserted merely to clarify the charge by advising the defendant of the manner in which he failed to yield the right of way. State v. Velas, 537 S.W.2d 881, 884 (Mo.App.1976); See, State v. Colbart, 411 S.W.2d 92, 95 (Mo.1967). The original information was sufficient to charge the crime of which the defendant was convicted and any excess verbiage added at a iater date cannot detract from that sufficiency. State v. Frankum, 425 S.W.2d 183, 190 (Mo.1968).

Although we hold that the amended information did not charge a different or additional crime the ultimate question is one of prejudice suffered by the defendant. State v. Wilson, 544 S.W.2d 859, 862 (Mo.App.1976). The test of prejudice to the defendant is whether he could utilize the same evidence and defenses in his case after the information was amended as he could before it was amended. State v. Wilson, supra, at 862. It is clear that since the defendant was charged with the same offense in both informations, failing to yield the right of way in violation of § 304.351 RSMo 1969, he could not have lost or gained any defenses or evidence by virtue of the amendment.

The record demonstrates that the amended information was filed on April 19, 1977. The trial commenced on August 16, 1977. This allowed the defendant' four months time to file his objection to this amendment and to prepare to meet the new charge. Defendant should have voiced his objection to the amended information at the trial. See, State v. Reed, 298 S.W.2d 426, 428 (Mo.1957).

It is also relevant to note that the punishment assessed against the defendant in the Circuit Court after the amendment was the same as that assessed in the Magistrate Court before the amendment. We cannot find, in the face of these circumstances, that the defendant was prejudiced by the amendment to the information.

We do not mean to hold this amended information up as an ideal, however, informations charging misdemeanors are less strictly scrutinized for technical nicety than are those charging felonies. State v. Velas, supra, at 884. In view of the fact that the defendant could have suffered no prejudice by the information we rule defendant’s first point against him.

In his second point, defendant contends that the trial court should have sustained his motion for acquittal at the close of all the evidence since the State’s evidence was insufficient .to support a conviction.

In reviewing the evidence supporting the defendant’s conviction we are bound to consider such evidence in the light most favorable to the State. State v. Williams, 565 S.W.2d 749, 750 (Mo.App.1978). This court must allow all reasonable inferences from the evidence which are in support of the verdict and disregard any inferences contrary thereto. State v. Lowery, 565 S.W.2d 680, 684 (Mo.App.1978).

The prosecuting witness testified that she was cresting the hill approaching the Hercules Plant at approximately 30 m. p. h. She stated that she had her foot on the brake and that defendant turned in front of her too suddenly for her to sound her horn. She was sure that the defendant neither slowed his speed, nor used his turn indicators before the two vehicles made contact. According to the witness the rear bumper of the defendant’s car was still in the northbound lane at the point of impact.

Witness for the State, William Castro testified that the defendant did not stop before making his turn but, on the contrary, increased his speed prior to entering the intersection. Another witness, Officer Gos-ney, testified that the defendant’s vehicle came to rest in the middle of Route D.

Defendant was charged with violation of § 304.351, RSMo 1969. While the information does not specify under which paragraph of this section defendant was charged we find paragraph six to be the one most applicable to the facts as presented. Paragraph six states:

“The driver of a vehicle intending to make a left turn into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction when the making of such left turn would create a traffic hazard.” § 304.351, RSMo 1969.

Defendant’s own testimony indicated that he intended to make a left turn into a driveway. The fact that defendant turned in front of the prosecuting witness and a collision resulted in the roadway is sufficient evidence that the defendant did not yield the right of way and that such action by the defendant created a traffic hazard.

Point two is ruled against defendant.

Judgment affirmed.

REINHARD and CRIST, JJ., concur.


author: WEIER, Chief Judge.

text:
    CITIZENS ELECTRIC CORPORATION, Respondent, v. Robert W. AMBERGER et al., (Tracts 12 through 18), Appellants.
    No. 40146.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 20, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.

      Albert C. Lowes and Thomas A. Ludwig, Buerkle, Lowes & Beeson, Jackson, for appellants.
    Claude C. Knight, Hannegan, Knight, Kennedy, Schoenberg & Weber, Inc., St. Charles, for respondent.
   WEIER, Chief Judge.

This is an appeal from a judgment awarding damages to seven landowners for a high-line easement across their land. The plaintiff, Citizens Electric Corporation, obtained the easement through condemnation proceedings. Exceptions to the commissioner’s report were filed by the utility and the landowners. All seven cases were consolidated and tried before the court without a jury. From the resulting judgment, the defendant-landowners have appealed setting out six contentions of error on the part of the trial court which they maintain entitle them to a new trial.

Failure of substantial evidence to support the court’s award of damages was first charged for the reason that the values of the various tracts of land immediately after the taking by the utility company as determined by the trial court were not supported by any of the evidence. At trial, values of the seven tracts before and after the taking by the utility company were established by presenting testimony of expert witnesses and the owners. The defendant-landowners offered the testimony of three expert witnesses who made appraisals of land values on the seven tracts. The owners of each tract also took the stand to testify as to the value of their land before and after the taking of the easement. Plaintiff-utility company qualified a land appraiser as an expert witness, who testified as to the values of the particular tracts before and after the imposition of the easement. This valuation testimony varied greatly, depending on whether the landowners’ or the utility company’s witnesses were on the stand.

In his findings, the trial judge determined the before and after valuation of each particular tract and then computed from these figures the damage award. In' three instances, that is on tract 12 owned by Wilbert Neislein and Barbara Neislein, his wife; tract 13 owned by Charles E. Henderson and Frances E. Henderson, his wife; and tract 18 owned by Norman Meisner and others, the court found an after-taking value in excess of the amount found by any witness. In two instances, that is tract 14 owned by Ella F. Oster and 16 owned by Willard C. Fritsche and Kathryn M. Fritsche, his wife, and Gerald W. Fritsche and Sandra K. Fritsche, his wife, the court found an after-taking value higher than any land appraiser expert witness but within the amount of after-taking valuation testified to by the landowners.

It is a fundamental principle in eminent domain cases where there is a partial taking of the total tract that “the measure of just compensation is the difference between the fair market value of the landowners’ property immediately before and immediately after the taking.” State ex rel. State Highway Commission v. Wilcox, 535 S.W.2d 131, 132[1] (Mo.App.1976). It is equally fundamental that the amount of the award must be within the limits established by the evidence. Public Water Supply District No. 2 of Jackson County v. Alex Bascom Company, 370 S.W.2d 281, 290[12] (Mo.1963). More specifically, “absent other factors, a judgment is within the range of all the evidence if it does not exceed an amount in excess of the highest amount of damages which the evidence will sustain and is not below the lowest amount shown by the party who does not have the burden of proof.” State ex rel. State Highway Commission v. Kemper, 542 S.W.2d 798, 804[8] (Mo.App.1976). Thus in the determination of the after-taking values of tracts 12, 13 and 18 the court erroneously determined an after-taking valuation in excess of any testimony found in the evidence. The court’s findings as to these particular tracts is therefore not supported by substantial evidence, Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976) and the judgment as to these tracts must be reversed and remanded for redetermination of the damages. State ex rel. State Highway Commission v. Kemper, supra at 805[9].

The after-taking valuation of tracts 14, 15, 16 and 17 by the court was within the range of the evidence. The after-taking valuation of tracts 15 and 17 was supported by the testimony of at least one professional land appraiser and the after-taking valuation of tracts 14 and 16 was supported by the testimony of the owners of each tract. An owner of real property is qualified to give an opinion as to the value of his property although he is not a real estate expert. State ex rel. State Highway Commission v. Northeast Building Company, 421 S.W.2d 297, 301[3] (Mo.1967).

Defendant-landowners next contend that the trial court erred in failing to take into account when assessing damage to the tracts caused by the easement, the damage to several fences. Specifically, the contention is based upon the assertion that the trial court found values in accordance with the utility company’s land appraiser and that this expert witness did not consider damage to fences on the property in his valuation. Actually the evidence indicates to the contrary. In describing the various factors that the witness took into consideration in determining before and after value in appraising the seven tracts, this expert for the utility described as one of the factors “depreciation to the fences.” The court in its findings with regard to the factors which the court considered referred to depreciation or damages to the fences. Since the effect on the fences was considered in arriving at the total land damage, such contention is without basis in fact.

Defendant-landowners further sought reversal because of alleged error in the court’s exclusion of a statement volunteered by an expert witness called by the landowners. This ruling was made after the witness stated: “It is a known fact, then, that utilities follow the path of least resistance which results in crossing the best lands that a farmer has.” This statement followed a question asked by the utility attorney to have the witness enumerate the various factors that he considered in figuring value where there was not a total taking. Objection was made by the attorney representing the utility as being speculative, conjectural and irrelevant. The objection was sustained by the court. The ruling was correct. A statement as to what utilities generally do, even if true, is not relevant to the issues in this case. It was obviously an effort to influence the trier of fact and prejudice him against the utility company; and since it throws no light on the controversy, it should be excluded. Switzer v. Switzer, 373 S.W.2d 930, 939[13] (Mo.1964).

It is further contended that the trial court erred in considering the testimony of witness Dockins, the land appraiser testifying for the utility. It is charged that his responses to questions were “so inherently incredible as to be subject to total disbelief.” Dockins was qualified as a land appraiser after he was called as a witness for the utility company. No challenge was made to his qualifications at that time. His testimony as to the value of tracts came from direct, first-hand observation of the parcels of land. Although he may have testified that the land value is lower than that found by the landowners’ expert witnesses, this disparity alone is not a basis for the charge made as to his credibility. Widespread disparity in expert witness testimony is not a basis for overturning a verdict or finding of fact. It is the prerogative of the fact finder, not an appellate court, to resolve evidentiary conflicts as to values in damages. State ex rel. State Highway Commission v. Twin Lakes Golf Club, Inc., 470 S.W.2d 313, 315[6] (Mo.1971).

As an additional point on appeal, the landowners contend that the court improperly allowed the utility company to introduce evidence that the owners were using areas within the 100 foot easements after condemnation to grow crops upon the land subjected to the easement. In support of this contention, the appellants argued that the language of the easement pleaded in the petition was so general that it amounted to a total taking and that any introduction of use by the landowners of the easement land would be contrary to the theory of the taking set forth in the petition. The appellants overlooked the fact that the petition sets out that except for the area required for the transmission lines and the other rights that plaintiff sought to acquire, as alleged, the real estate would not actually be appropriated by plaintiff but would remain for such use by the defendants as would not endanger or interfere with the transmission lines. In support of this clause, the trial court allowed the utility company to place in evidence the fact that the easement land was actually being used by the defendant-landowners for the planting and growing of crops.

As previously stated when a part of a tract of land is taken for condemnation, the compensation to which the owner is entitled is the difference if any between the fair and reasonable market value of the entire tract of land before and after the appropriation of the part taken by condemnation. This occurs when the money awarded by the commissioners is paid into court. The question of damages is not referable to the time of trial nor to the time of the construction of the project but to the time of the appropriation. Such damages are not limited to mere severance of title but include those caused by the use of the property for the purpose for which the condemnation is made. This use embraces the construction of the work or improvement and the maintenance, use and operation of the improvement. It would be proper for the trier of fact in determining the burden imposed on the land at the time of the appropriation to take into consideration that the utility was going to construct an electric transmission line on its right-of-way and that it had the right to patrol the line and to operate and maintain it. It would be proper to consider the effects of construction as it bears upon value. Such matters as ruts, erosion and compaction of the soil, placing of gravel on the ground for passage of heavy equipment and other non-tortious acts affect the market value of the remainder of the land as of the time of the appropriation. If the line has been constructed at the time of the trial, actual damage to the right-of-way during construction can be shown as evidence to the extent of the burden cast upon the land at the time of the appropriation except tor-tious acts which could not have been reasonably anticipated. Kamo Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W.2d 858, 861-62 (1956). See also, Northeast Missouri Electric Power Cooperative v. Cary, 485 S.W.2d 862 (Mo.App.1972). If such evidence is admissible to show the effect of construction upon the market value of the land, then it follows that use of the land by the owner in planting and production of crops upon the easement is also relevant to indicate the use of the landowner may still have of the easement land. Such use is also relevant as a factor in arriving at after-taking value. We rule this point against the appellants.

Finally, the landowners charge error in the refusal of the trial court to allow testimony of damage done to nonburdened land. One of the owners attempted to testify that there is damage done off one of the easements by the contractor in the construction of the power lines. Because of a rough spot on the easement, the contractor’s employees and equipment left the easement, went through an adjoining field and destroyed some of the wheat growing there. Obviously this is not a use of the burdened land contemplated in the easement. Rather it is a tortious destruction of property off of the easement right-of-way and is the subject of a separate tort action. Kamo Electric Cooperative v. Baker, supra at 862-863[11]

The j'udgment is affirmed with respect to tracts 14, 15, 16 and 17. The judgment is reversed with respect to tracts 12,13 and 18 and remanded for new trial as to the issue of damages.

SNYDER, P. J., and PUDLOWSKI, J., concur.

      . For a discussion of the cases with regard to future or illegal uses see Happy, Damnum Absque Injuria, 36 Mo.L.Rev. 453, 467 (1971).


author: PREWITT, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Paul W. QUIGLEY, Defendant-Appellant.
    No. 11292.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 5, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 17, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael A. Scearce, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.
   PREWITT, Judge.

Defendant appeals from convictions of two counts of assault without malice. § 559.190, RSMo 1969. Defendant was sentenced to three years on Count I and four years on Count II.

The charges arose from an incident which occurred on June 10, 1978 near a peach orchard operated by John and Carlton Stewart, five miles north of Campbell in Dunklin County, Missouri. A four-door 1970 or 1971 Oldsmobile entered a private road leading to Carlton Stewart’s house that afternoon about 1:30. The vehicle was chocolate brown with a light colored top. Later, around 3:00 p. m., it was seen again in the área and there were two individuals in the car. One had “bushy” hair. ' The vehicle was seen there again about 4:15 p. m. with the same persons in it.

Carlton Stewart was awakened from a nap shortly after 8:00 p. m. and went to the door where a person later identified as Anthony Germanceri was at the door. Anthony pulled a gun and tried to enter the premises, but Carlton hit the barrel of the pistol with his arm and slammed the door. Anthony then fired into the lock and Carlton got a pistol and fired back several times. After the shots were exchanged, Anthony went back to the car and started to leave. On the passenger’s side was a large fellow with “bushy” hair, later identified by Carlton Stewart as the defendant. As Stewart was opening the front door, a shotgun blast shattered the glass door. Anthony was driving and the shot came from the passenger’s side of the vehicle. Stewart fired several shots at the vehicle as it left the area.

Defendant resided at Qulin, Missouri, 14 miles northwest of Campbell. On June 17, 1978, a 1971 four-door Oldsmobile which had been destroyed by fire, was found about 4 miles south of Qulin. The only paint remaining was a brown strip in the trunk. It was not possible to determine the color of the top of the car. No bullet holes were found in the automobile, although a small dent was located in the right rear fender. The Oldsmobile was registered to Anthony Germanceri. Defendant and Germanceri were seen together in the area near the date of the offense. Pictures of the burnt vehicle were identified by witnesses as being the car at the Stewart residence. Prior to trial, and at the trial, appellant admitted burning it. Defendant said he didn’t know why he burnt the vehicle. He said it was given to him in St. Louis by a “bushy headed beatnik” who he couldn’t identify further. When asked if it was to cover up evidence, he replied, “I don’t know”. Several witnesses testified that defendant was in St. Louis, Missouri when the shooting incident occurred.

Defendant has three claims of error. These will be considered in the order stated in defendant’s brief. He first claims that the State’s information was defective and untimely. On the day of trial, before any testimony was heard, the State was allowed to amend the information to add that defendant had previously been convicted of a felony and imprisoned in Arkansas. That conviction was admitted. Defendant objected to the amendment because of “its form and timeliness”. Rule 24.02, V.A. M.R., provides that “The court may permit an information to be amended ... at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” While the indictment might not be in perfect form, we believe it sufficiently apprised defendant of the facts of the offenses charged. No prejudice was shown due to the time that the amendment was allowed. The prosecutor stated that written notice of the motion to amend was given to defendant’s counsel six days before the trial and that he had been orally advised of the amendment several days before that. Defendant’s attorney acknowledged that this was correct. The amendment apparently made no change in the facts alleged in the two counts charged and did not charge any additional or different offense for which defendant was being tried. An amendment to add the second offender act does not charge an offense different from that originally charged. State v. Shumate, 516 S.W.2d 297, 299 (Mo.App.1974). No prejudice to defendant’s substantial rights appears. Under these circumstances the trial court did not err in permitting the amendment. Point I is ruled against defendant.

Defendant’s second point claims error in allowing evidence that defendant had burned the Oldsmobile, as it showed the commission of a crime unrelated to the offense charged. The general rule in this State is that proof of the commission of a separate crime is not admissible unless it has a legitimate tendency to directly establish the defendant’s guilt of the crime charged. State v. Dalton, 587 S.W.2d 644, 645 (Mo.App.1979); State v. Cheesebrew, 575 S.W.2d 218, 222 (Mo.App.1978). The State did not attempt to show that the burning of the car constituted a crime. However, even if we assume that burning alone might constitute a criminal offense or that the jury might have so inferred, the evidence would have been admissible. Evidence that an accused attempted to destroy evidence is always admissible as showing his consciousness of guilt. State v. Smith, 355 Mo. 59, 194 S.W.2d 905, 907 (1946); State v. Hoyel, 534 S.W.2d 266, 269 (Mo.App.1975). If evidence is logically pertinent in reasonably tending to prove a material fact, it is not rejected because it incidentally proves the defendant guilty of another crime. State v. Burr, 542 S.W.2d 527, 530 (Mo.App.1976). Undoubtedly, this evidence was harmful to the defense, not so much because any crime was involved in the burning, but because the evidence showed that this car was registered to Anthony Germanceri and was used in the crime charged. Defendant admitted burning it but never gave a satisfactory explanation why. That he attempted to destroy evidence has a legitimate tendency to establish defendant’s guilt and is admissible. Point II is ruled against defendant.

Defendant’s last point is that the trial court erred in allowing a deputy sheriff to testify to statements made by the defendant. This was said to be improper because the testimony was not known until the night before trial, and the testimony was so inconsistent and contrived as to make it impossible for proper findings on the issue of voluntariness to be made and that the court did not make proper findings that the statements were voluntary.

The statements implicated defendant in a shooting near a Dunklin County orchard where he had once worked. At a hearing outside the presence of the jury, the deputy testified he read defendant his “Miranda" rights before the statements were made, and defendant said he understood them. There were no promises or threats and defendant voluntarily made the statements. Defendant denied he was advised of his rights or had made the statements. The burden was upon the State to show that the defendant was effectively advised of his rights and intelligently and understandingly waived them. State v. Alewine, 474 S.W.2d 848, 851 (Mo.1971). Voluntariness is for the State to prove by a preponderance of the evidence. State v. Olds, 569 S.W.2d 745, 751 (Mo. banc 1978). Although there were some slight inconsistencies in the deputy’s testimony and evidence that he may have been prejudiced against defendant, his credibility was for the trial court to determine. State v. Alewine, supra, 474 S.W.2d at 852. Where evidence is conflicting, the admissibility of a confession is in the discretion of the trial court. State v. James, 562 S.W.2d 185, 187 (Mo.App.1978). The trial court found that prior to the time the statements were made, the defendant was advised of his constitutional rights and that he knowingly and intelligently waived those rights and voluntarily made the statements without any threats or promises. These findings were sufficient. Evans v. United States, 375 F.2d 355, 360 (8th Cir. 1967). The time that the prosecuting attorney learned of the statements and notified defendant’s counsel is not shown to have prejudiced defendant. Point III is ruled against defendant.

Our examination of the record indicates that no error, plain or otherwise, occurred which affected defendant’s substantial rights.

The judgment is affirmed.

All concur..


author: TITUS, Judge.

text:
    James CREED, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 11288.
    Missouri Court of Appeals, Southern District, En Banc.
    Dec. 17, 1979.

      George M. Johnson, Springfield, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Donna G. Bowles, Asst. Atty. Gen., Jefferson City, for respondent.
   TITUS, Judge.

In his Rule 27.26 motion filed in the Circuit Court of Wright County, movant sought to vacate a ten-year sentence imposed by that court on July 7, 1977, when movant (then defendant) entered a plea of guilty to a felony charge of stealing property of another of the value of over $50. §§ 560.156-2 and 560.161-1(2). Following an evidentiary hearing, the court made findings of fact and conclusions of law [Rule 27.26(i)] and overruled the motion. Movant appealed.

In this appeal movant’s sole point relied on reads: “The trial court erred in overruling appellant’s motion to vacate in that appellant was not informed of the charge against him because neither of the necessary elements of theft by deceit or without the owner’s consent was included in the information filed against him and to which he pled.”

The point relied on is not self-sufficient for understanding, and thus has been penned in disregard of the mandatory requirements of Rule 84.04(d), equally applicable to civil and criminal cases. Rule 28.18; State v. Brown, 535 S.W.2d 606[1] (Mo.App.1976). Nevertheless, to comprehend the intendment of the point we gratuitously, and beyond duty, look to the involved information and statute.

In part, the information to which movant pleaded guilty reads: “. . . that [mov-ant] on or about the 20th day of April, 1977, . did then and there wilfully, unlawfully, and feloniously steal, take and carry away one .22 Marlin lever action rifle of the value of over $50.00 of one Gale Garner, then and there being with the intent to, permanently deprive the owner of the use thereof and to convert the same to his own use . . . .” § 560.156-2 provides: “It shall be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit.” (Emphasis supplied). The gist of movant's contention on appeal is that as the information did not charge the alleged stealing was either without the consent of the owner or occurred by means of deceit (as provided in § 560.156-2) there was no guilty plea made to a proper charge and, consequently, the court imposing the sentence was without jurisdiction to do so. State v. DiLiberto, 537 S.W.2d 671, 672[1, 2] (Mo.App.1976).

While it is true the information did not in express terms charge that the act of stealing was committed either without the owner’s consent or by means of deceit, it does state that movant (then defendant) “did then and there wilfully, unlawfully, and feloniously steal, take and carry away” a rifle of another. “The word ‘steal’ itself imports a wrongful taking and appropriation of the property of another to the taker’s own use and benefit, and thus is defined as meaning to take and carry away feloniously; to take without right or leave and with intent to keep wrongfully; to take or appropriate without right or leave, and with intent to keep or make use of wrongfully; to take and carry away property of another with the felonious intent to deprive the owner thereof, and to appropriate it to one’s own use; the felonious taking and carrying away personal goods of another.” 82 C.J.S. “Steal”, pp. 1037-1038. Thus, when the information averred that movant “did then and there wilfully, unlawfully, and feloniously steal, take and carry away” the property of another, it meant that he took it without right or leave and with the intent to keep the property wrongfully. A taking without right or leave, and with an intent to keep wrongfully, is obviously a taking without the consent of the owner. An attack upon the sufficiency of the information for failure to use the precise words of the statute in this regard when raised for the first time after verdict or a plea of guilty, must be disallowed. State v. Zammar, 305 S.W.2d 441, 445-446[7, 8] (Mo.1957); Paxton v. State, 565 S.W.2d 750, 752[2] (Mo.App.1978).

Judgment affirmed.

All concur.

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

      .. Albeit Rule 27.26 is included among the “Rules of Criminal Procedure”, section (a) thereof proclaims that “A motion filed hereunder is an independent civil action . .


author: HOGAN, Judge.

text:
    Richard KERSEY and Delores Jean Kersey, Plalntiffs-Appellants, v. Samuel HARBIN, W. L. Clayton, Albert Holmes, Jr., Webb Edwards and Mary Mather, Defendants-Respondents.
    No. 10801.
    Missouri Court of Appeals, Southern District, Division 3.
    Dec. 18, 1979.

      Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for plaintiffs-appellants.
    David E. Blanton, Blanton, Rice, Sickal, Gilmore & Winchester, Sikeston, for defendants-respondents.
   HOGAN, Judge.

The legal aspects of this tragedy are before this court for a second time. On March 5,1974, plaintiffs’ son Daniel was an eighth grade student in the Sikeston, Missouri, Junior High School. Daniel was not quite 14 years old. At 2:40 p. m., Daniel reported to his regularly scheduled physical education class. His regular instructor was absent that day attending a “health work-' shop” in Cape Girardeau, with the permission of his superior. Mr. Clayton, the principal, had arranged for Mr. Holmes, another instructor, to teach both classes. ■ Mr. Holmes regularly taught a physical education class of eighth and ninth graders in the school gymnasium, as did Daniel’s usual instructor, Mr. Edwards. Normally, the two classes met at the same time, shared the locker room adjacent to the gym and exercised in the same gym, but each class had a separate teacher.

By deposition, Mr. Clayton testified he had discussed combining the two classes with Mr. Holmes and Mr. Edwards; both Holmes and Edwards assured Clayton the combination would create no difficulty. There is some evidence of a state administrative policy against assigning more than 45 students to any particular physical education instructor. Mr. Holmes and Mr. Edwards indicated that there were 20 to 25 students in each of the classes which were combined, but the size of the combined class is not definitely established by the record; Mr. Clayton, Mr. Holmes and Mr. Edwards alluded to the existence of “grade books” from which an accurate roll could be prepared, but these books were not produced.

On the afternoon of Daniel’s fatal injury, Mr. Holmes departed from his usual routine. Holmes’ usual practice was to remain in the locker room while his gym class dressed in order to prevent horseplay and to make sure stragglers left the locker room. As each student dressed, he would move onto the gym floor. On this occasion, Holmes departed from his usual practice by instructing his own class to go from the locker room onto the floor of the gym; Daniel’s class was told to remain in the locker room until all were dressed, then go out to the gym together. Holmes did this to imitate Mr. Edwards’ practice.

Mr. Holmes remained in the locker room to follow the last students into the gym. As Daniel went from the locker room into the gym, he was injured. The record contains no eyewitness account of the incident, but Mr. Clayton inquired after the fact.’ Mr. Clayton’s inquiry indicates that as Daniel and another student, Steve Sims, were going through the hallway leading to the gymnasium, Sims began stepping on the heels of Daniel’s shoes. Daniel thereupon “elbowed” Sims in Sims’ genitals. Sims then picked Daniel up and Daniel either fell or was dropped on the floor.

Daniel requested and obtained permission to see the school nurse. The nurse, Mrs. Mather, found no apparent sign of extreme injury, and permitted Daniel to return to his gym class. He became worse; he returned to the nurse’s office and Mrs. Mather summoned either one or both of his parents. Daniel was taken to his physician and expired shortly thereafter. An autopsy revealed Daniel had sustained a skull fracture; on the record, his death seems to have been caused by massive cerebral hemorrhage.

Thereafter the plaintiffs commenced a wrongful death action against Samuel Harbin, Superintendent of Public Schools at Sikeston; W. L. Clayton, principal of the junior high; Albert Holmes, Jr., and Webb Edwards, the two instructors involved, and Mary Mather, the school nurse. The trial court sustained defendants' motions to dismiss ón several grounds. On appeal this court concluded, in a rather unsatisfactory opinion, that the action was a “disfavored” action, the pleadings were insufficient, but reversed and remanded the cause to allow plaintiffs an opportunity to amend their petition. Kersey v. Harbin, 531 S.W.2d 76 (Mo.App.1975).

After remand, plaintiffs filed an amended petition in several counts. Defendants severally filed motions to dismiss the action. Interrogatories were propounded to the plaintiffs and their verified answers were filed. The depositions of all the parties were taken. The trial court took up the motions to dismiss, the depositions were opened and filed, and the motions were taken under advisement. The motions to dismiss were denied; defendants thereupon filed answers and separate motions for summary judgment. The plaintiffs filed an opposing affidavit.

On March 8, 1977, defendants’ motions for summary judgment were called. Counsel presented arguments and the motions were taken under advisement. On August 29, 1977, the trial court entered a judgment granting the motions for summary judgment each and severally. Plaintiffs appealed from the judgment, but in this court they have assigned error only to the entry of summary judgment in favor of defendants Harbin, Clayton and Holmes. The appeal as against defendants Edwards and Mather must therefore be deemed abandoned. Charles Palermo Co., Inc. v. Wyant, 530 S.W.2d 15, 17[1] (Mo.App.1975); Komanetsky v. Missouri State Medical Association, 516 S.W.2d 545, 549[1] (Mo.App.1974). We are therefore concerned only with the summary judgments entered against defendants Samuel Harbin, W. L. Clayton and Albert Holmes.

The “ground rules,” so to speak, governing entry of a summary judgment against a plaintiff in a tort case have been so often stated it is unnecessary to restate them at length. Rule 74.04(h), V.A.M.R., states:' “ . . . In no case shall a summary judgment be rendered on issue [sic] triable by jury . . . unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Aside from noting that federal decisions construing Fed.R.Civ.P. 56 are regarded as persuasive in Missouri, Cooper v. Finke, 376 S.W.2d 225, 228[1] (Mo.1964), we need not repeat or expand what was held in Pagan v. City of Kennett, 427 S.W.2d 251, 252-253 (Mo.App.1968). The only other preliminary matter to be noted is that the depositions offered and received in the proceeding for summary judgment are prefaced by the following stipulation:

“It is stipulated and agreed that depositions may be taken by Stenograph and transcribed; that [any and] all . objections, excepting as to the form of the question, may be made at the trial; and it is further agreed that the signatures of the witnesses may be waived.” (emphasis added)

The relevant charges of negligence against defendants Harbin, Clayton and Holmes may be briefly summarized as follows: defendants Harbin and Clayton are charged with actual or constructive knowledge of quarrelsome propensities on Sims’ part and with negligence in directing Daniel’s usual instructor to be elsewhere on March 5, 1975; negligent failure to provide a substitute for the regular instructor; failing to take appropriate measures to prevent injury by Sims to other students, particularly Daniel, and leaving an eighth grade physical education class composed of 20 to 25 male students unsupervised in a gymnasium without a teacher. Mr. Holmes was charged with negligence in failing to keep the two physical education classes under direct supervision at all times; the petition further avers that Mr. Holmes had actual or constructive knowledge of Sims’ propensity for “ . . . causing disturbances and . . fighting, agitating and arousing his fellow students in ways likely to cause harm to other students,” and in failing, in light of that knowledge, to take proper measures to avoid fighting in the class. The questions for decision here are: 1) whether the petition, states a claim upon which relief can be granted, and 2) whether it appears, considering the evidence in the light most favorable to the' plaintiffs, defendants have shown by unassailable proof they are entitled to judgment as a matter of law.

In arguing that their motions to dismiss should have been granted, the defendants contend that as officers of the school district, they are clothed with a spe-. cies of immunity and cannot be held liable except for commission of an intentional tort. We reject this argument, but in view of our prior opinion, a word of explanation is called for. Our analogy to “disfavored causes” was unfortunate, but it was based upon the implications of Baker v. Owen, 395 F.Supp. 294, 302-303[9-10] (M.D.N.C.1975), aff’d 423 U.S. 907, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). Baker dealt directly with the constitutionality of a statute, but implied that a public school student’s interest in bodily security was subject to Eighth and Fourteenth Amendment protection. The decision strongly suggested that an instructor could admonish unruly students, but could do little else without a prior hearing, regardless how counsel for the appellants may have read the decision. The uncertainty created by Baker has been dispelled, to some degree, by the majority holding in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). We will reiterate that we have found no rule of law, no line of authority, which clothes any of the defendants with immunity from liability for his negligent acts. What Smith v. Consolidated School Dist. No. 2, 408 S.W.2d 50 (Mo.banc 1966), actually held, we are now convinced, is that the scope of the supervisory duty is very narrow. Defendants’ obligation was to exercise ordinary care to supervise the children, or in the case of defendants Harbin and Clayton, to exercise ordinary care to see that they were supervised. They were not insurers of the students’ safety. Clark v. Furch, 567 S.W.2d 457, 458[2] (Mo.App.1978). Insofar as the arguments suggest the school district itself is immune, we agree, Laws of Mo.1978, p. 983, H.B.1650, § 1, and see State ex rel. Allen v. Barker, 581 S.W.2d 818, 824-825[8][9] (Mo.banc 1979), but the liability of the district itself is not in issue.

A further consideration in this connection is that a pleading should not be adjudged insufficient, as against a motion to dismiss, if the averments of the petition, accorded every reasonable and fair intendment, state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief. Boyer v. Guidicy Marble, Terrazzo & Tile Co., 246 S.W.2d 742, 744[1] (Mo.1952); Ingalls v. Neufeld, 487 S.W.2d 52, 54[4] (Mo.App.1972). We believe, and hold, that the motions to dismiss were properly denied.

The other question for decision is more difficult, but, with deference to the trial court, for whose judgment we have only the highest respect, we are convinced the motions for summary judgment were improperly granted. The defendants argue that because the content of the depositions and interrogatories was not negated by an affidavit made on personal knowledge and setting forth facts admissible in evidence, the evidence showing defendants’ want of constructive knowledge of Sims’ reputation for fighting stand admitted as true. Emphasis is placed on the language of Rule 74.04(e), which provides, in material part:

“When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

Defendants contend, as we understand them, that because the plaintiffs’ responsive affidavit, their answers to interrogatories and the depositions, do not set forth facts admissible in evidence showing there is a genuine issue of fact, and do not show that plaintiffs are competent to testify to those facts, the summary judgments must stand. We are generally familiar with the principle invoked, First National Bank of Liberty v. Latimer, 486 S.W.2d 262, 266[1] and n.1 (Mo.1972), and we agree that the responsive affidavit filed by the plaintiffs is defective, but even so, defendants’ proof must be “unassailable” if the judgments are to be sustained. Cf. Bently v. Wilson Trailer Co., 504 S.W.2d 277, 278[3] (Mo.App.1973). And, to reiterate, this court departs from its usual stance in reviewing the evidence; it is most strongly construed against the result reached. Wood v. James B. Nutter & Co., 416 S.W.2d 635, 636[1] (Mo.1967); Cooper v. Finke, supra, 376 S.W.2d at 228[2]; Otto v. Farmers Ins. Co., 558 S.W.2d 713, 715[1] (Mo.App.1977). In our opinion, defendants’ proof is not “unassailable” and material issues of fact remain.

The charge of negligence against Harbin and Clayton are, in substance, that they left a large class insufficiently supervised. Looking to the depositions, which were received for the purpose of ruling on the motions for summary judgment, we find that Clayton testified that Mr. Edwards’ and Mr. Holmes’ classes, combined, were “numberwise ... a small group that normally one person could very easily handle.” Clayton further testified that the State Department of Education’s “guideline” suggests no physical education instructor should be given more than 45 students to supervise. Mr. Clayton took the regulations as being “advisory,” and we find nothing in the books which indicates the contrary is true. Clayton gave as his opinion that it “seemed” to him discipline was not as difficult in a physical education class as in a classroom. Clayton knew Sims, Daniel’s classmate, but was “not aware” of any problems that other instructors had had with him.

Mr. Harbin, by deposition, testified that at Daniel’s funeral, he had told the plaintiffs that Sims “had been in trouble before,” but upon checking had found that “Simms had been talked with by administrators and classroom teachers [on] a few occasions, but [the records] would also indicate in [Harbin’s] opinion that he was not a vicious, violent student.” Harbin also testified that principals are given substantial discretion concerning the size of a particular class to be entrusted to a single instructor..

There is no record proof which indicates, one way or another, whether Daniel’s injury was an isolated incident or part of a pattern of dangerous activity; as we shall see, there is no admissible account of the manner in which Daniel sustained the injury.

The record proof, which we have synop-sized for brevity, is insufficient to sustain the summary judgments entered for defendants Clayton and Harbin. The liability of supervisory school employees for failure to provide adequate supervision is a peculiarly subjective matter, but establishing compliance with the State Commissioner of Education’s standards concerning the size of the class is not conclusive upon the issue of defendants’ liability; compliance-.with a legislative enactment or an administrative regulation does not preclude a finding of negligence where a reasonable man would take additional precaution. Restatement (Second) of Torts, § 288 C and Comment a (1965); see also W. Prosser, Torts, § 35 at 205 (3rd ed. 1964). Neither is the evidence that defendants Clayton and Harbin lacked constructive knowledge of Sims’ assaultive propensities, if any, conclusive on the issue of negligence vel non in failing to assign a teacher to each class.

Defendant Holmes, as indicated, was charged with negligent failure to supervise the two classes assigned to him. The record is not sufficient to entitle him to a summary judgment because it contains no admissible account of the manner in which Daniel was injured. Mr. Holmes had started his class, “started doing our exercises,” when Daniel said he had a headache and was sent to see Mrs. Mather, the school nurse. In response to the question “Do you recall asking him anything?”, Mrs. Mather answered at length including in her answer the observation that Daniel had said he was in a scuffle. Defendant Clayton voluntarily related Daniel’s account of the accident in response to the question “Where was [Daniel] when you talked with him?” Mr. Clayton related Sims’ version of the incident in response to the question “Did you have any occasion to talk with any of the other boys after[ward] as to what happened?”

The rule invoked by the -defendants to support their contention that the plaintiffs’ responsive affidavit was insufficient, and to support their argument that the plaintiffs’ answers to interrogatories were insufficient to show a genuine issue of material fact is a rule of general application. Hearsay may not be relied upon either to avoid or support a summary iudgment. Broadway v. City of Montgomery, Alabama, 530 F.2d 657, 660-661 (5th Cir. 1976); Daily Press, Inc. v. United Press International, 412 F.2d 126, 133[3] (6th Cir. 1969); Morrissey v. Proctor & Gamble Company, 379 F.2d 675, 677 n.2 (1st Cir. 1967). By stipulation repeated with emphasis above, both parties had retained the right to make “any and all objections, excepting as to the form of the question” at the trial. None of the questions which elicited voluntary hearsay necessarily called for the witness to answer with hearsay; an objection that the question called for hearsay would have been premature. We are aware that errors and irregularities in the form of the questions and answers may be waived under Rule 57.07(d)(3)(B), V.A.M.R., but in the face of the parties’ stipulation, it cannot be said there was any such waiver here.

We will repeat that the tort liability of supervisory public school employees and teachers for inadequate supervision of their students is highly subjective, and the scope of their duty is extremely narrow. Nevertheless, we do not find the defendants to be immune,, and we cannot say that in the absence of admissible evidence showing the circumstances or the manner in which Daniel was injured, defendants have shown by “unassailable proof” that they are entitled to judgment as a matter of law.

As to defendants Edwards and Mather, the summary judgments must be affirmed. As to defendants Harbin, Clayton and Holmes, the judgments are reversed and the cause is remanded.

FLANIGAN, C. J., and BILLINGS, J., concur.

      . The death of defendant Mather has also been suggested, and no motion for substitution has been made in this court. Inasmuch as the appeal as against defendant Mather has been abandoned, no order of dismissal as to her is necessary; it is sufficient to note that in the circumstances, the action does not abate as to the other parties. Roy v. Landers, 467 S.W.2d 924, 924-925[1] (Mo.1971).


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    Faith D. KIRKSEY et al., Respondent, v. Howard W. ABBOTT, Sr., Appellant.
    No. 41187.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 18, 1979.
    Dennis Neil Smith, Clayton, for appellant.
    Thad Niemira, St. Louis, for respondent.
   REINHARD, Judge.

In this paternity suit, respondent’s mother alleged that appellant was the father of her minor daughter (age approximately one and one-half years). She asked the court to declare appellant to be the father. She also requested custody, child support, and attorney’s fees. Appellant filed an amended answer and counterclaim admitting that he was the father of the child, asking for custody, and requesting that the last name of the child be changed from that of the mother’s to his.

After a hearing, the court found the appellant to be the father of the minor child; gave general care, custody,- and control of child to mother; and provided for temporary custody in the father on alternate week-ends. The decree also established other periods of temporary custody. The decree further provided that the father pay child support to the mother in the amount of $22.50 per week and that the child’s last name remain that of the mother’s.

Father appeals only from that portion of the decree denying his right to have the child’s last name changed to his last name.

The testimony revealed that the mother had a legitimate twelve year old son who carried the mother’s last name. The mother wanted the daughter to carry the same last name as her son’s. She revealed that she was soon to marry and that her last name would be changed. The father testified that he was the father of the daughter and further claimed he had the right to have the child carry his name. He stated the following as reasons why he wanted the child’s name changed: “It will be rather embarrassing to me to introduce her as my daughter and give another name. The other [reason] is insurance.”

Father relies on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) wherein the Supreme Court of the United States expanded the rights of fathers of illegitimate children. Mother cites Pintor v. Martinez, 202 S.W.2d 333 (Tex.1947) wherein the Texas Supreme Court held that an illegitimate child should have the same surname as that of the family of which it is a component part.

While there is a paucity of precedent on this question, it is apparent that the court has wide discretion and should be guided by what is in the best interests of the child. Neither parent has an absolute right for the child to bear his or her name.

Based upon the meager evidence presented on this issue to the trial court, we cannot say the court abused its discretion.

Judgment affirmed.

DOWD, P. J., and CRIST, J., concur.


text:
    Robert EVERSOLE and Doris Eversole, Plaintiffs-Respondents, v. Jim Douglas STRAIT, Defendant and Third Party Plaintiff-Respondent, v. John E. MURRAY, d/b/a John E. Murray Earth Moving Contractor, Third Party Defendant-Appellant.
    No. 10452.
    Missouri Court of Appeals, Southern District, En Banc.
    Dec. 20, 1979.

      Ralph E. Baird, Joplin, for plaintiffs-respondents.
    Dean S. Johnston, John R. Martin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for third party defendant-appellant.
   TITUS, Judge.

Plaintiffs and defendant (sometimes herein Strait) own adjoining acreages situate in rural Newton County, Missouri. Defendant’s land, similar to that of plaintiffs’ contiguous acreage, is rocky, hilly, wooded and is on a higher elevation than that of plaintiffs’ property. It was this land on which defendant constructed an earthen dam and pond in July 1973. On June 6, 1974, the dam breached, causing rocks, gravel, debris and water to be thrown onto plaintiffs’ land.

In this court-tried case, plaintiffs sought recovery from defendant for damages to their property (plaintiffs also sought punitive damages [Count II] and injunctive relief [Count III]) and defendant Strait, as third-party plaintiff, in his third-party petition, sought indemnification from third-party defendant John E. Murray, d/b/a John E. Murray Earth Moving Contractor, the builder of the dam, for all sums which may be awarded to plaintiffs against defendant/third-party plaintiff Strait. In addition, Strait sought recovery (in Count II) of all sums expended by him in payment to third-party defendant Murray for construction of the ill-fated dam.

Judgment was rendered in favor of plaintiffs on Count I of their petition and against Strait, in the sum of $3,600. The court found in favor of defendant Strait on Count II (punitive damages) and Count III (injunctive relief) of plaintiffs’ petition. The trial court further found all issues on Count I (indemnification) of third-party plaintiff Strait’s petition in favor of third-party plaintiff and against third-party defendant John E. Murray, and assessed damages in the amount of $3,600. The court found in favor of third-party defendant Murray on Count II of third-party plaintiff’s petition (which sought recovery of all sums expended by Strait in payment to Murray for construction work on the dam). It is this judgment from which third-party defendant Murray appeals.

In a court-tried case, our judicial eye on review is focused on the postulations found in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976). On review of a judgment of a trial court, sitting without a jury, we will sustain the judgment “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.”

No findings of fact or conclusions of law were requested. In such cases, all fact issues will be deemed found in accordance with the result reached and the judgment will be affirmed if it is correct on any reasonable theory supported by the evidence. Lackey v. Joule, 577 S.W.2d 114, 117[3] (Mo.App.1978); Roth v. Roth, 571 S.W.2d 659, 664[2] (Mo.App.1978); Corley v. Kiser, 556 S.W.2d 218, 222[2] (Mo.App.1977). It is this background against which we view third-party defendant’s two points relied on.

Taken together, the two points relied on by third-party defendant Murray aver, in substance, first, that the dam was built to specifications provided to him, therefore there was no negligence on his part, and, second, that defendant Strait altered the dam after construction was completed, thereby rendering .him (Strait) primarily or contributorily negligent, thereby absolving Murray from liability.

Facts adduced at trial were sometimes in conflict and included the following: Murray built the dam for Strait on Strait’s property; the dam broke; plaintiffs Eversole suffered property damage; specifications for the dam called for a principal spillway inlet (6" pipe) to be built into the center of the dam to carry off overflow water; a 4' X 4' “anti-seep collar” was to be attached to the pipe, located within the earthen dam, to prevent water from seeping along the pipe and into the center of the dam; the “collar” as installed by Murray was 30" X 30"; there was a break in the weld which attached the “anti-seep collar” to the spillway pipe; the specifications called for a 3:1 slope on both sides of the dam; the completed dam had a 2:1 slope on the back (downstream) side; large cracks developed in the center of the dam shortly after completion; the middle (center) of the dam sank or settled to a point lower than either end of the dam; Strait had constructed a concrete pad on or near the center of the dam for the purpose of creating an overflow spillway (where the center or middle of the dam had settled to a point lower than either side of the dam); Strait had filled in the emergency spillway (located to one side of the dam) for the purpose of allowing a concrete truck to better pour the concrete pad in the middle of the dam.

The fact that the “anti-seep collar” installed by Murray was some 1404 square inches smaller than that called for in the specifications, and the existence of a 2:1 slope of the downstream side of the dam instead of the 3:1 slope required in the specifications, belies appellant Murray’s first contention that he can be guilty of no negligence since he, averredly, had constructed the dam in accordance with plans and specifications furnished to him. Third-party defendant Murray’s first point relied on is denied.

Where there is a conflict in the evidence in a court-tried case, we adhere to the fixed principle that appellate courts resolve the conflict by according due deference to the trial court because of its superior opportunity “ ‘to observe the conduct and demeanor of the parties and their witnesses and to weigh, evaluate and assess their testimony’ ” [Pittman v. Great American Life Insurance Co., 512 S.W.2d 857, 861-862[7] (Mo.App.1974)], and because the trial judge has leave to believe or disbelieve all, part or none of the testimony of any witness. North Side Finance Co. v. Sparr, 78 S.W.2d 892, 894[4] (Mo.App.1935). See also Roth v. Roth, supra, 571 S.W.2d at 665[4] and Long v. Lincoln, 528 S.W.2d 512, 513[3] (Mo.App.1975).

In this case, the court could have found that Murray’s deviations from the specifications for the dam were the proximate and sole cause for the dam’s breach. The court could also have found upon the evidence that any subsequent changes or alterations to the dam allegedly made by Strait in no way caused or contributed to the ultimate failure of the dam and the concomitant damage to plaintiffs’ property. Third-party defendant Murray’s second point relied on, given our deference to the trial judge’s resolution of conflicting evidence at trial, is denied.

The judgment is affirmed.

HOGAN, BILLINGS, MAUS, GREENE and PREWITT, JJ., concur.

FLANIGAN, C. J., recused.