text:
    STATE of Missouri, Respondent, v. Donald M. JONES, Appellant.
    No. KCD 29900.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.

      Donald M. Harding, Terrell, Van Osdol & Magruder, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Donald Jones was found guilty by a jury of stealing property with a value of over $50.00. § 560.156, RSMo 1969. Jones was tried under the Second Offender Act and upon conviction was sentenced by the court to six years imprisonment. On this appeal Jones contends the court erred in (1) allowing a police officer to testify Jones gave a false name when arrested; (2) failing to require a witness to give the reasons he exercised his right to refuse to testify; (3) failing to find the State had suppressed evidence; (4) denying him the right to call a detective to elicit an unsworn statement of a third party; (5) refusing to give an instruction; and (6) ordering an assistant public defender to counsel a witness with respect to his right to refuse to testify when the public defender had previously represented Jones. Affirmed.

Jones does not question the sufficiency of the evidence. The jury could reasonably have found that on January 3, 1977, Randy Bent, a security officer at the Macy’s store on East Meyer Boulevard in Kansas City, observed a man take several sets of boy’s clothing from a rack and leave the store. Bent gave chase and saw the man jump into a car which proceeded east on 63rd. At the time the man ran from Macy’s with the clothing, Officer Gary Parker of the Kansas City Police Department was driving east on 63rd Street. As he approached the Macy’s store, he saw a man run out the door carrying an armload of clothing with the store tags visible. After this man jumped into a car that pulled in front of Parker the car continued on east with Officer Parker in pursuit. The car Parker was following pulled into a gas station, whereupon the man Parker had observed run from Macy’s with the clothing jumped out and escaped. Officer Parker arrested Leroy Rivers, the driver, and recovered from the car the clothing which was identified as that stolen from Macy’s. When arrested, Rivers stated the man who had fled was James Harris.

A few days later Officer Parker and Bent identified Jones from photographs as the man who had run with the clothing from the store. In February, 1977, Officer Donovan of the Kansas City Police Department stopped an automobile with only one Missouri license tag. The driver identified himself as Jake Walker but the officer checked the auto registration and found the car registered in the name of Donald Jones. The driver was taken to police headquarters and through fingerprints was identified as Donald Jones. Charges were then filed against Jones for the clothing theft.

On this appeal Jones first contends the court erred in allowing Officer Donovan to testify that Jones gave him a false name at the time the officer stopped him. Jones contends the fact he was arrested 40 days after the stealing occurred made the giving of a false name totally irrelevant. In State v. Duncan, 499 S.W.2d 476, 478[8] (Mo.1978) the court held the fact a defendant gave a false name to an arresting officer was a circumstance surrounding the arrest which was for the jury’s consideration. 22A C.J.S. Criminal Law § 627, p. 472 states the rationale for allowing such testimony is that it is relevant to show consciousness of guilt. The fact Jones gave a false name when arrested some 40 days after the crime goes only to the weight and not the admissibility of the evidence. State v. Thomas, 526 S.W.2d 393, 395 (Mo.App.1975). Thus, it was proper to allow testimony that Jones gave a false name when arrested. The remoteness of the date of arrest from the commission of the crime would go only to the weight which the jury could give to such evidence.

Jones also complains because the court allowed evidence that he was driving a car with only one license plate and did not produce a valid driver’s license when requested. However, no objection was made to testimony relating to these facts so nothing is preserved for review. State v. Jones, 523 S.W.2d 152, 155[4] (Mo.App.1975).

Jones next contends he should have been allowed to question Leroy Rivers about his reason for exercising his Fifth Amendment rights in refusing to testify about any bias or prejudice which Rivers had against Jones. When called as a witness by Jones, Rivers stated that he refused to answer any questions concerning the offense because he might incriminate himself. Jones’ counsel then sought to elicit from Rivers the reason for exercising his right to refuse to testify, but the court held counsel could not so inquire. A full discussion of the extent to which a witness may be questioned about his reason for invoking the right not to testify is found in State v. Joyner, 571 S.W.2d 776, 779 (Mo.App.1978). Citing the cases which have discussed this subject, the opinion explains that under the Missouri decisions if the trial court can recognize any rational basis for exercise of the privilege it cannot compel the witness to give his reasons for so doing. Here, Jones wanted Rivers to testify that James Harris was the person who had stolen the clothing and fled from. Rivers’ car but he was obviously frustrated in this effort when Rivers refused to testify. Under Joyner and the cases cited therein, the court was powerless to require Rivers to give his reasons for exercising the privilege because the court could obviously determine a rational basis existed for Rivers to exercise his privilege.

However, Jones carries his argument one step further by asserting he should have been allowed to question Rivers concerning threats which the prosecutor had allegedly made to charge Rivers with perjury if he testified that Harris was the man who stole the clothing. Jones’ counsel did ask Rivers if it was true that Jones was not with him at the time of the theft, and if it was not true that the person who was with him was James Harris. In response to both questions, Rivers stated “I would like to take the Fifth on that.” Thus, when counsel attempted to elicit the information he sought and Rivers exercised his constitutional right by refusing to testify, the court did not err because it was powerless to require Rivers to testify or give his reasons for refusing. Jones also makes a subsidiary argument that he should have been allowed to elicit testimony from Rivers concerning prosecutorial threats in order to show bias and prejudice. However, there is no reason to show bias and prejudice when the witness fails to testify. State v. Gordon, 391 S.W.2d 346, 349 (Mo.1965).

Jones next contends the court erred in failing to grant his motion for a new trial because the prosecutor had prevented Rivers from testifying by threats and this constituted misconduct by suppressing evidence. The trial court held an extensive post-trial hearing when it considered this allegation in the motion for a new trial. The court heard six witnesses whose testimony consumed about 53 pages of transcript. Not one witness testified to threats of any kind against Rivers. At the conclusion of this hearing the court found there was no evidence of any threats and that Rivers had invoked his privilege under the Fifth Amendment for his own reasons and not for any prosecutorial threats of perjury. In order to prevail on this point Jones must allege and prove the State willfully suppressed evidence. State v. Jackson, 519 S.W.2d 551, 557[11—13] (Mo.App.1975). In hearing the evidence introduced in the attempt to prove suppression of evidence, the court, functioning as a trier of fact, had the discretion to make a determination on the allegation. The court’s finding will not be disturbed so long as it is based on a reasonable foundation of fact and the discretion is not arbitrarily exercised. State v. Pennington, 392 S.W.2d 5, 9[7—9] (Mo.App.1965). In the absence of any evidence to support the alleged suppression of evidence, it can hardly be said the court arbitrarily exercised its discretion by refusing to find such suppression.

Jones further contends the court erred by refusing to allow him to call Detective O’Rear to elicit testimony that Jones was not the thief and that no effort had been made to apprehend James Harris. The only testimony O’Rear could have given would have been to recite the unsworn statement which Rivers made at one time that Harris was the man with him. For O’Rear to have testified to this statement would have constituted hearsay. State v. Robinson, 484 S.W.2d 186, 189[10, 11] (Mo.1972). Jones hoped to erect a defense based on testimony of this statement by Rivers. However, since Jones’ entire argument rests on the sandy foundation that O’Rear should have been allowed to testify to hearsay, the court obviously did not err in rebuffing this effort.

Jones next contends the court erred in refusing his tendered instruction which was not in MAI-CR. The instruction Jones tendered was the same as the third paragraph of MAI-CR 2.01 given by the court, with the addition of “concerning the identification of the defendant” which was inserted after the phrase “the weight to be given to his testimony.” The Notes on Use following MAI-CR 2.01, No. 2 states:

Except as may be specifically provided for elsewhere in MAI-CR, no other or additional instruction may be given on the believability of witnesses, or the effect, weight or value of their testimony.

The instruction tendered by Jones added nothing to MAI-CR 2.01 and in the face of the specific prohibition in the Notes on Use, the court could have taken no other action than to refuse Jones’ proffered instruction.

Jones finally contends the court erred when it called Mr. Lopez from the public defender’s office to advise Rivers of his constitutional right to refuse to testify. Jones contends a conflict of interest was created because Lopez had previously represented Jones. Jones does not argue that Lopez did anything other than consult with Rivers concerning his constitutional right to refuse to testify because of self-incrimination. While it may have been preferable for someone else to have advised Rivers, it appears no one else was available. However, even if it be assumed there was a conflict of interest, in view of the previous holding that Rivers had a rational basis for invoking his privilege, there could be no prejudice shown to have resulted against Jones from the consultation between Rivers and Lopez. Only prejudicial error is reversible and in the absence of demonstrated prejudice to Jones, any flaw which may have existed would not require a reversal of the judgment. State v. Belleville, 530 S.W.2d 392, 395[5, 6] (Mo.App.1976).

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    Sheldon HOLLUB, d/b/a Roofers Supply Company, Plaintiff-Respondent, v. Frank P. MOLEY and Marie Moley, Defendants-Appellants, James. R. Dalton, d/b/a J & D Roofing Company, Defendant.
    No. KCD 29918.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Roger J. Barbieri, Vito C. Barbieri, Barbi-eri, Combs & Gotschall, Kansas City, for defendants-appellants.
    Richard A. Rubins, Joseph A. Cambiano, Rubins, Kase & Rubins, Inc., Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Plaintiff brought suit to establish a mechanic’s lien for material furnished to a contractor to re-roof a residence owned by the defendants. The trial court imposed a mechanic’s lien upon the premises owned by the defendants as a tenancy by the entirety.

The defendants raise a single issue — that the court erred in imposing a lien against the tenancy by the entirety property because the plaintiff failed to prove that the wife contracted jointly or expressly or impliedly made her husband her agent to contract with the plaintiff.

The defendants rely exclusively on Kaufmann v. Krahling, 519 S.W.2d 29 (Mo.App.1975). Kaufmann v. Krahling, in fact, reversed the imposition of a lien based on the facts of that case. The holding in Kauf-mann was grounded upon the principle that tenancy by the entirety is a whole estate with no divisible part and upon the unquestioned rule that one spouse may not encumber or adversely affect the tenancy by the entirety without the assent of the other spouse. Kaufmann, supra, however, recognizes that if the evidence supports a finding of joint participation in the acts creating the lien or if there is a logical inference of agency arising from the facts in evidence, then the lien may be imposed. Robinson Lumber Co. v. Lowrey, 276 S.W.2d 636 (Mo.App.1955); Rimer v. Hubbert, 439 S.W.2d 5 (Mo.App.1969); Advance Concrete v. Ingels, 556 S.W.2d 955 (Mo.App.1977).

The scope of review of this court-tried case is limited by Rule 73.01 as interpreted by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). There was evidence before the trial court on which the trial court could have found implied agency on the part of the husband to act on behalf of the tenancy by the entirety. The suit was brought against these defendants, husband and wife, and the original roofing contractor, one James Dalton. Dalton filed an answer admitting that there was a contract between Dalton as the roofing contractor and Frank and Marie Moley, defendants. The defendant, Frank Moley, testified, “[WJe’ve just got plaster in our house, and we had a few leaks and we had to get a new roof.” He stated that the term “we” was in reference to him and his wife. He also testified that she was present while the roof was being put on, and she raised no objections.

The plaintiff testified that when he called the Moley residence a woman identified herself as Mrs. Moley and stated “ . [Y]es, they were going to have new roof put on . . . ” Mrs. Moley did not appear to testify or to deny that she had contracted jointly with her husband. “[T]he failure of a party having knowledge of the facts and circumstances vitally affecting the issues on trial to testify in his own behalf . raises a strong presumption that such testimony would have been unfavorable and damaging to the party who fails to proffer the same.” Block v. Rackers, 256 S.W.2d 760, 764 (Mo.1953).

Upon that evidence, this court cannot find that there was no substantial evidence to support a finding of implied agency.

Judgment of the trial court is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri at the relation of William A. SCHNEIDER, Individually and on behalf of himself and all other qualified voters of the City of Town and Country, Missouri and City of Town and Country, Missouri, a Municipal Corporation, Relators-Appellants, v. Robert G. STEWART, Acting Supervisor of Liquor Control of the State of Missouri, Respondent, and Malvern, Inc., a Missouri Corporation, Intervenor-Respondent.
    No. KCD 29932.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.

      Edward W. Sumner, Jr., Sumner, Hanlon, Sumner, Macdonald & Nouss, P. C., John J. Inkley, Jr., John E. Hilton, Clayton, for relators-appellants.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Merle L. Silverstein, Steven J. Stogel, Richard S. Bender, Rosenblum, Golden-hersh, Silverstein & Zafft, St. Louis, for intervenor-respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The relators Schneider and City of Town and Country brought their common law writ of certiorari to contest the jurisdiction of respondent Acting Supervisor of Liquor Control Stewart to issue restaurant-bar licenses for the sale of liquor by the drink to Malvern, Inc. as a Resort under § 311.095. The writ issued and the respondent Stewart certified to the circuit court the records upon which the licenses issued. The respondent Stewart then moved to dismiss the proceedings for want of status by relators to challenge issuance of the licenses. The motion was taken under advisement and then rendered moot in the circuit court by the determination of the writ of certiorari on the merits. The grant of licenses to Malvern thus continues in effect. In the course of proceedings, Malvern sought and was granted intervention as a party and now responds to the appeal of relators Schneider and City.

On appeal the relators contend that the record before the Supervisor, as a matter of law, failed to prove that Malvern was a Resort within any of the definitions of § 311.095, RSMo Supp.1975, and that the determination by the court under the writ that the grant of licenses by the Supervisor was not unlawful, arbitrary or capricious or an abuse of discretion was error. If we assume that traditional certiorari was open to and employed by the relators, we conclude nevertheless, that they were without interest to assert or, on objection, to continue the action. We determine also that, as to relator Schneider, the remedy by § 536.-150 of the Administrative Procedure and Review Act precludes access to common law certiorari [LaFayette Federal Savings & Loan v. Koontz, 516 S.W.2d 502, 504[1-3] (Mo.App.1974)] which does not issue in the presence of other adequate remedy. State ex rel. Iba v. Mosman, supra, 133 S.W. l.c. 41; 14 Am.Jur.2d § 16, Certiorari.

The petition for common law writ of certiorari was brought in three counts: Count I by Schneider as an individual and as owner of property within the City; Count II by Schneider on personal behalf and for the benefit of all other qualified voters of the City; Count III by the City of Town and Country to quell a public nui-sanee from the unlawful sale of liquor within the municipality. The purport of Count II is that of a class action but the proceedings went to judgment without attempt by relator Schneider to prove the requirements of Rule 52.08(a) for a class action or by entry of order that the additional requirements of Rule 52.08(b) were met and that the action, thus, was maintainable. We deem Count II abandoned. State ex rel. Niess v. Junkins, 572 S.W.2d 468 (Mo.banc 1978).

The respondents Supervisor and Malvern iterate on appeal the substance of their motion to dismiss before the circuit court, that neither relator Schneider nor the City has sufficient interest in the grant of Resort licenses to accord status for judicial review of that agency decision. The rela-tors contend that on principles of common law pleading to certiorari, as well as provisions of the Rules of Civil Procedure, a respondent who makes return to the command of the writ without complaint of want of capacity to sue makes appearance to the action on the merits and waives all attendant irregularity. State ex rel. Davidson v. Caldwell, 310 Mo. 397, 276 S.W. 631 (1925). The practice at common law [which persists] requires a respondent summoned by certiorari either to make return as mandated or to move quashal of the writ before return. That derives from the function of the motion to dismiss as a demurrer which confesses all facts well pleaded and searches the record to determine whether the petitioner is entitled to the relief of the writ. State ex rel. Modern Finance Company v. Bledsoe, 426 S.W.2d 737, 740[5-8] (Mo.App.1968). We need not confront the continued validity of such a common law form in the presence of a code of Rules of Procedure promulgated to secure “the just, speedy and inexpensive determination of every action” [Rule 41.03] because, whether intended as a pristine common law action [as the pleadings and arguments of the relators suggest] or as a method for judicial review of an administrative determination under § 536.-150 [as the judgment of the court and arguments of respondents suggest], the matter of standing does not relate to legal capacity to sue, a defense waived unless timely asserted [Rule 55.27(a)], but to the interest of an adversary in the subject of the suit as an antecedent to the right to relief. It is a matter, in a sense, jurisdictional in limine and so within the notice of a court, even on appeal, for dismissal. Briss v. Consolidated Cabs, 295 S.W.2d 391, 392[1, 2] (Mo.App.1956).

The want of adversary interest in the subject matter in suit operates to deny status for judicial relief, not only against judicial action, but against administrative action as well. 2 Am.Jur.2d, Administrative Law, § 575. The question as to whether a particular person has status to contest the administrative action becomes one of law and depends upon an amalgram of considerations: the nature and extent of the interest of the person who asserts status, the character of the administrative action, the terms of statute which enable the agency action, among them. The determination, ultimately, rests on policy as well as law so that which consideration among the several shall predominate to allow or deny status for judicial review depends upon the discerned legislative values. State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669, 676[12—17] (banc 1956); Bank of Belton v. State Banking Board, 554 S.W.2d 451, 453[1], 456[4] (Mo.App.1977); In re St. Joseph Lead Company, 352 S.W.2d 656, 659[3] (Mo.1962).

The relator Schneider contends for status for judicial review by common law certiorari of the grants of Resort liquor licenses to Malvern. We have expressed conclusion that the proper remedy for that noncontested agency action was by the review provisions of § 536.150 of the Administrative Procedure and Review Act. We discuss the liminal question of status for judicial review because, whether by the method of statutory certiorari or the common law writ, the interest requisite for access to a court of review was in either case the same, and in either case absent.

The Liquor Control Law [Chapter 311, RSMol969] vests the Supervisor with exclusive authority to determine whether an applicant for a license for sale of liquor at retail meets the qualifications of the statute. Section 311.210; State ex rel. Floyd v. Philpot, 364 Mo. 735, 266 S.W.2d 704, 710[4, 5] (banc 1956). The review provisions of that enactment [§ 311.-700] accord to “[a]ny party” aggrieved by the final decision of the Supervisor judicial review to the circuit court. It is clear that the method of review delineated by § 311.-700 is the only remedy available to a licensee for review of the agency decision and precludes access to § 536.150 or any other provision of the Administrative Procedure and Review Act. Brogoto v. Wiggins, 458 S.W.2d 317, 318[2, 3] (Mo.1970). It does not follow, however, as respondents contend, that a person not a party to the application for license, but otherwise aggrieved by the final order of the Supervisor, has no recourse to the courts for infringement of right.

The requirement of Article V, § 22 of the Constitution of Missouri for direct review by the courts of final orders of an administrative agency is made to depend upon whether the decision affects a private right, and not a private right of a party. The Administrative Procedure and Review Act, which furthers the constitutional purpose, accords review to “any person . aggrieved by a final decision in a contested case” [§ 536.100, emphasis added] — whether or not a party to the administrative proceedings [State ex rel. Pruitt-Igoe District Community Corp. v. Burks, 482 S.W.2d 75, 77[1] (Mo.App.1972); In re St. Joseph Lead Company, supra, l.c. 655] and for the review of a noncontested case [§ 536.150] also speaks in terms of any person, not party. These sections derive from the same constitutional authority and give effect to the single desideratum that all final administrative decisions which affect private rights shall be subject to direct review by the courts. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 357 (Mo.banc 1958).

Questions remain whether relator Schneider has the nominal and substantive interests [cognate, in this consideration] to assert common law certiorari to review the grant of liquor licenses by the Supervisor to a third party. A stranger to the record subject to review by certiorari, although not a party in form, may have the writ if he was a party in substance. State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268, 272[1, 2] (Mo.banc 1948). The status of a relator for certiorari not a party to the original proceedings, therefore, depends upon an interest in the subject matter sought for review. A party in substance is one who has suffered injury to a substantial interest from a judicial determination — and, it is clear, the license function of the Supervisor of Liquor Control involves exercise of judicial discretion. State ex rel. Collins v. Keirnan, 240 Mo.App. 403, 207 S.W.2d 49, 53[4—11] (1947).

The relator pleads only that the licenses to Malvern authorized by the Supervisor “ha[ve] caused said relator’s residence to become depreciated in value and said relator has thereby sustained damage by such unauthorized action.” That contention of injury — which rests on no proof other than the assertion — is not sufficient to constitute Schneider a party in substance to the license proceedings. The question is one of aggrievement, whether the administrative decision adversely affects an interest the law protects. Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054, 1058[4]. The interest may be less than a legal wrong done, but the administrative decision must act directly on an interest of the person who claims status for review distinct from the effect on the general public. Stickelber v. Board of Zoning Adjustment, 442 S.W.2d 134, 137[2] (Mo.App.1969); Cooper, State Administrative Law, supra, pp. 535 et seq.

These principles, valid in the statement, are subject to variant considerations of policy, statute, administrative action, among others, which accord status for judicial review in one set of circumstances and withholds status in another. State ex rel. Rouveyrol v. Donnelly, supra, 285 S.W.2d l.c. 676[12—17]. The provision of Article V, § 22 that all final decisions of any administrative officer which are judicial or quasi-judicial and affect private rights shall be subject to direct review of the courts and the enactment of the Administrative Procedure Act to that purpose for any person aggrieved manifest a fundamental policy to facilitate status'for judicial review for injury from agency action. In re St. Joseph Lead Company, supra, l.c. 659[3-5]. These enablements, however are subject to the method of review provided by law [ Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649 (banc 1946); § 536.100] which frequently delimit the class of persons entitled to judicial review and so incidentally define the substance of the interest protected.

A licensee under the Liquor Control Law has only those legal rights granted by the license — including review by the method of § 311.700 for a party to the proceedings aggrieved by a final order of the Supervisor. That remedy for review is mandatory and excludes access by an applicant-licensee to the Administrative Procedure and Review Act. Brogoto v. Wiggins, supra, l.c. 318. The restrictive procedure which confines a party to review by § 311.700 is an expression of the public policy which places the liquor traffic under the ban of the police power because of the threat to the public morals the occupation poses. State v. Parker Distilling Co., 236 Mo. 219, 139 S.W. 453, 461[3] (banc 1911); Pinzino v. Supervisor of Liquor Control, 334 S.W.2d 20, 27[6-8] (Mo.1960). It is, for these reasons, an enterprise set apart from others and subject to a comprehensive and strict code of regulation. Sections 311.010-311.-880; State ex rel. Hewlett v. Womach, 355 Mo. 486, 196 S.W.2d 809, 812[2, 3] (banc 1946). A person who qualifies may apply to the Supervisor for a license to sell liquor [§ 311.090] which the Supervisor may, without hearing, grant or deny at a reasonable discretion. Section 311.060; Kehr v. Garrett, 512 S.W.2d 186, 191[4-7] (Mo.App.1974). This scheme entrusts to the Supervisor the protection of the public interest [State ex rel. Collins v. Keirnan, supra, 207 S.W.2d l.c. 53] and excludes from judicial review all but a party aggrieved by the license decision. Section 311.700.

A person not a party to the license proceedings does not come under the regulation of the Liquor Control Law and so stands differently for review. A person not a party, aggrieved by the agency action, is not precluded by § 311.700 from access to the Administrative Procedure and Review Act. The relator Schneider, therefore, was entitled to the judicial review of § 536.150 upon demonstrated record that the grant of the licenses to Malvern directly affected an interest in a manner personal and distinct from injury to the public. The pleadings and proof by certiorari do not establish such an interest. The contention that the residence of relator Schneider was depreciated in value by the unauthorized grant of licenses by the Supervisor pleads an interest not direct, but quite remote, and an injury [so we assume] shared by all within the City. There lacks even pleading of such rudimentary facts as the locale of Malvern in relationship to the Schneider residence or how the activity of the licensee bears especially on the relator and the use of that property. We do not suggest such proof sufficient for the review status Schneider asserts, but only that the contention of interest for ag-grievement is altogether speculative. In terms of the aggrievement requirement of the Administrative Procedure and Review Act, the relator was in the position of a member of the public without special interest to contest the authority of the Supervisor. In terms of common law certiorari, the relator was not a party in substance to the administrative proceedings and so without status for review by that writ. Cooper v. Hunt, 103 Mo.App. 9, 77 S.W. 483, 485 (1903).

There remains determination of Count III of the petition brought by the City of Town and Country as common law certiorari to contest the legality of the Supervisor grants of licenses to Malvern. The law has developed, perhaps anomalously, that the provisions of § 536.150 of the Administrative Procedure Act [Rule 100.08] for the judicial review of a noncontested case do not apply — in the absence of express statutory authority — to accord status to a political subdivision of the state' [in this case, a school district] to dispute an underassessment of real property by a county board of equalization. State ex rel. St. Francois County School District R-III v. Lalumondier, 518 S.W.2d 638 (Mo.1975). The court noticed that Article V, § 22 speaks of review of administrative decisions which affect private rights, but that the claim of the school board subdivision was a contention of public right which came neither within the constitutional definition of private right nor that of any person entitled to judicial review of a noncontested case under § 536.-150. An apparent anomaly, however, allows a public body in interest status for judicial review of a contested case under §§ 536.100-536.140. In re St. Joseph Lead Company, supra. In that case a county was accorded status for judicial review of a State Tax Commission decision to reduce assessments on the rationale that the diminished revenue from the agency action would impair the public operations of the county should the administrative decision stand. The court reasoned [contradistinctively from Lalumondier] that the private rights of Article V, § 22 established a minimum standard of review and not a limitation on the legislative power to provide for the judicial review of public rights, so that the enactment of §§ 536.100-536.140 that any person aggrieved by agency decision in a contested case [without distinction between private and public right] has status for judicial review. In re St. Joseph Lead Company, supra, l.c. 659[3-5], See Casenote, 40 M.L.R. 653 (1975).

We apply the Lalumondier rule to deny status to the relator City for judicial review under § 536.150 of the noncon-tested Supervisor grants of licenses to Mal-vern and assume that the common law cer-tiorari was the procedure open for review of these agency actions. We conclude, nevertheless, that the City was not a party in substance to the administrative proceedings and may not maintain the common law writ.

We acknowledge, as commentators suggest, that the special interest prerequisite to aggrievement, and so status for judicial review, subserves the notion of administrative finality whereby the actions of agencies, to whom the legislatures have confided the duty of government, shall be insulated from capricious attack. The rationale is expressed in F. Davis, Standing of a Public Official to Challenge Agency Decisions, supra, p. 165 (1964):

Whenever an administrative decision or ruling is formally challenged in the courts, both its authenticity and reliability are exposed to doubt, and the agency in question may be seriously hampered in the discharge of its business. When such challenges can be reduced by restricting the number and classes of persons who can make them, the administrative process enjoys greater freedom from harassment. The imposition of a strict “standing” test to those who would seek to nullify or reverse administrative actions or decisions has the effect of limiting the number of persons who can petition for such relief. The requirement also reduces the number of quarters from which attacks may be launched. In this sense the “standing” requirement contributes to that stability of government and reliability of rulings which the doctrine of administrative finality was meant to advance.

The commentators agree that since administrative action affects the function of government as well as the affairs of persons, the public interest is best served by a procedure which allows a political unit or geographical subdivision of government status to contest an agency decision which affects interests distinct from the body politic of the State at large. F. Davis, Standing of a Public Official to Challenge Agency Decisions, supra, pp. 173-4, 183-4; Cooper, State Administrative Law, supra, pp. 545 et seq.; K. Davis, Administrative Law Treatise, pp. 281 et seq. This is the sense of In re St. Joseph Lead Company, supra, and the intimation of Hertz Corp. v. State Tax Commission, 528 S.W.2d 952, 954[3] (Mo. banc 1975); see, also, Town of Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 96 A.2d 806, 808 (1953); Jersey City v. Hague, 18 N.J. 584, 115 A.2d 8 (1955).

Whether or not, in light of St. Joseph Lead Company, we must understand Lalu-mondier authoritatively to foreclose review by a subdivision of government from a non-contested order of an administrative body, remedy by traditional certiorari remains open to a party in substance to the decision.

The relator City contends for certiorari on assertions that the grant of licenses by the Supervisor was unlawful because Mal-vern was not a Resort within § 311.095 and so' the sale of intoxicating drinks on those premises was a public nuisance subject to abatement within § 311.740 of the Liquor Control Law.

A city, to protect the health, safety and welfare of its citizens, has undoubted authority to quell a condition per se a public nuisance at the common law or declared so by statute. Campbell v. City of Frontenac, 527 S.W.2d 643, 645[3, 4] (Mo.App.1975); § 79.370, RSMol969, Joyce on Nuisances § 379 (1910). In a case where premises are used in violation of the Liquor Control Law, § 311.750 expressly empowers a city to bring a action to enjoin the public nuisance. A proceeding to abate the unlawful manufacture or sale of intoxicating drinks under §§ 311.740 and 311.750, however, does not bring into issue the lawfulness of the administrative decision to grant a license, but that the premises operate without license altogether [State v. Keiter, 394 S.W.2d 399 (Mo.1965)] or with abuse of license. State ex rel. Davenport v. Henry, 270 S.W.2d 88 (Mo.App.1954). A license which issues under color of authority of the Supervisor for premises where the conduct of business poses no threat to the health, safety and welfare of the citizenry does not come under the ban of §§ 311.740 and 311.-750. McQuillin, Municipal Corporations, §§ 24.179 et seq.

A liquor license regularly issued by the Supervisor is not subject to collateral impeachment. State ex rel. Collins v. Keir-nan, supra, 207 S.W.2d l.c. 53[4—11], The pleading of the City, although in the guise of common law certiorari to review the administrative decision to grant licenses to Malvern, asserts substantively the abatement of a nuisance by reason of noncompliance with § 311.095 of the Liquor Control Law. This amounts to a collateral attack on the license, a function not allowed certio-rari, and a proceeding otherwise discountenanced by our law. State ex rel. Collins v. Keirnan, supra. We do not doubt that a municipality has a unique interest, not shared by the populace of the state at large, to protect its citizens from dangers from the licentious use of premises for the manufacture or sale of intoxicating drinks — such to accord aggrievement for certiorari or other direct review of the administrative decision to license — but the pleadings do not present such an interest. Nor, for that matter, do the pleadings assert facts of that certain threat of injury requisite for the injunction of a public nuisance under § 311.-740, the statute the certiorari pleads.

Count III fails to plead a justiciable controversy between the City and the decision of the Supervisor. The authority of a court in a common law certiorari review of administrative grant of liquor license is either to quash the writ or to quash the decision of the Supervisor. State ex rel. Bruno v. Johnson, 270 S.W.2d 99, 103[5] (Mo.App.1954). In this case, the circuit court issued the writ, heard the merits, found against the relator, but entered no order of quashal of the writ. The general decision to deny relief on the writ was proper; neither relator Schneider nor relator City pleaded an interest as a party in substance to the administrative proceedings, and so had not status for the common law writ.

Accordingly, the proceedings are remanded to the circuit court with directions to quash the writ of certiorari on all counts and as to all parties, and as modified, the judgment is affirmed.

All concur.

      . To the extent relevant, § 311.095 provides: “[RJesort means any establishment having at least forty rooms for the overnight accommodation of transient guests, having a restaurant or similar facility on the premises at least sixty percent of the gross income of which is derived from the sale of prepared meals or food, or means a restaurant provided with special space and accommodations where, in consideration of payment, food, without lodging, is habitually furnished to travelers and customers . . .” etc.

      . The relators assert under a common law writ of certiorari. The writ issues to confine an inferior tribunal within the limits of a proper jurisdiction and to relieve a party from injury where there appears, as a matter of law from the record, that the inferior tribunal lacked, abused or was in excess of jurisdiction in the proceedings.. State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 139 S.W.2d 958, 963 et seq. [11-18] (1940). The writ takes the record as it comes and does not take account of the evidence which relates to the merits only. State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473, 476[3] (banc 1912).
      The Administrative Procedure and Review Act [Chapter 536], § 536.150 [present Rule 100.08], on the other hand, accords judicial review by original writ of certiorari of an administrative decision not subject to administrative review [noncontested cases] where the administrative decision determines the legal right, duty or privilege of any person. The function of this statutory writ, however, is not confined to questions of jurisdiction or errors on the face of the record not otherwise reached by appeal [Iba v. Mosman, 231 Mo. 474, 133 S.W. 38, 41 (banc 1910); Neaf, supra, n.2, 139 S.W.2d l.c. 963], but allows for evidence and determinations of fact towards adjudication of whether the administrative decision “in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion.” In short, § 536.150 constitutes the certiorari court with the function of an administrative tribunal in a contested case which hears evidence, makes a record and enters a decision on the facts found [State ex rel. Walmar Investment Company v. Mueller, 512 S.W.2d 180, 182[ 1 ] (Mo.App.1974)] — a role extraneous to the common law writ of certiorari. State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 73[10-12] (banc 1949).
      The judgment of the circuit court rendered in the form:
      “[T]he Court finds that there is nothing in the record to indicate that this action on the part of the Acting Supervisor of Liquor Control was unlawful, arbitrary or capricious . [or] that he has in any way abused the discretion granted him by law”
      suggests review under § 536.150 of the Administrative Procedure and Review Act [Chapter 536] rather than by traditional certiorari and miscegenates the two procedures.

      . “All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law . . [This provision has been redesignated Article V, § 18 effective January 2, 1979].

      . The headnote to § 536.100 prepared by the revisor of statutes reads: Party aggrieved entitled to judicial review. The catchword party does not suit the subject matter of that section which, as enacted, entitles any person aggrieved by a final administrative decision to judicial review. The headnote of a statute is a mere convention, an indicium of statutory content as perceived by the revisor. It imports no Iegisla-five authority and does not affect construction of the statute. Snow v. Hicks Bros. Chevrolet, Inc., 480 S.W.2d 97, 101[4-6] (Mo.App.1972).
      The Missouri Administrative Procedure and Review Act derives from the model State Administrative Procedure Act which, in express terms accords and intends status for judicial review to any person aggrieved. Model State Administrative Procedure Act (1946) § 12(1); [Revised Model State Administrative Procedure Act (1961) § 15(a)]; Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, l.c. 804[8, 9] (Mo.); Davis, Standing of a Public Official to Challenge Agency Decisions, Ad.L.Rev., Vol. 16, p. 174 n.68 (1964); Cooper, State Administrative Law, p. 537 (1965).

      . Other schemes for judicial review of agency action outside the Administrative Procedure and Review Act enlarge, rather than restrict, citizen access to the courts. For instance, an order by the Public Service Commission as to which telephone company competitor shall service an area may be reviewed under § 386.510 on the mere complaint of a customer or other local partisan interest even without proof of direct affect on any property right of the one who claims status for review. State ex rel Summers v. Public Service Commission of Missouri, 366 S.W.2d 738, 741 [1-5] (Mo.App.1963). The entrenched principle that a private citizen must show injury distinct from that of the general public to show aggrievement [May Department Stores Co. v. State Tax Commission, 308 S.W.2d 748, 756[2, 3] (Mo.1958); Everett v. County of Clinton, 282 S.W.2d 30, 34[4] (Mo.1955)] does not strictly apply to such a judicial review. More accurately, perhaps, the private and public interests in the agency decision coincide more nearly for an authoritative determination of such questions. Cooper, State Administrative Law, supra, p. 543.

      . In Kansas City v. Reed, 546 S.W.2d 727, 731[1-4] (Mo.App.1977) the rule in Lalumondier was applied by this court without discussion of In re St. Joseph Lead Company to deny the City of Kansas City status for judicial review of a decision of the Liquor Control Board of review of that city under Article V, § 22 and § 536.150.

      . The status recognized for a political or geographical unit of government is quite apart from any contended interest of a subordinate official to challenge the decision of a superior administrative board. The lack of status of such an official for judicial review in that capacity has been put to rest by Kostman v. Pine Lawn Bank and Trust Company, 540 S.W.2d 72 (Mo.banc 1976) and earlier decisions.

      . As, for instance, where the grant of a liquor license results in an excessive number of such establishments compatible with the public health, welfare and safety. Board of Police Commissioners v. Reynolds, 86 R.I. 172, 133 A.2d 737 (1957).


author: CRIST, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clarence A. WILBURN, Defendant-Appellant.
    No. 39703.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 27, 1978.
    Robert C. Babione, Public Defender, Nick A. Zotos, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Gerard Car-mody, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Defendant was found guilty by a jury of Illegal Possession of a Controlled Substance, Schedule I — heroin. The court, utilizing the Second Offender Act and the penalty provisions of the Narcotic Drug Act, assessed his punishment at twenty years confinement in the Missouri Department of Corrections.

On February 23, 1976, defendant was charged with felonious possession of heroin. On June 4, 1976, a second amended information was filed. Defendant was additionally charged with two prior convictions, possession of a narcotic drug and illegal sale of a narcotic drug. Trial began on September 6, 1977.

Defendant complains of the amended charges of the two prior convictions for the reason that it pleaded a new and more severe offense in violation of Rule 24.02. We disagree.

The purpose of the amendment was to make the Second Offender Act and the penalty provisions of the Narcotic Drug Act applicable in assessing punishment. No new offense or crime was charged by the amendment. We have previously spoken on this issue. State v. Shumate, 516 S.W.2d 297 (Mo.App.1974); see § 195.200, subsection 3 RSMo. Supp. 1975.

The judgment is affirmed.

DOWD, P. J., and STOCKARD, Special Judge, concur.


author: CLEMENS, Judge.

text:
    Thomas Wilbert REYNOLDS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40304.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1978.
    William J. Shaw, Public Defender, William B. Haller, Asst. Public Defender, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Robert G. O’Blennis, Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Judge.

Movant Thomas Reynolds (hereafter “defendant”) has appealed denial of his Rule 27.26 motion whereby he contended his robbery conviction was based on the knowing use of perjured testimony. See State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975).

Defendant contends state’s witness Officer Joseph Mokowa testified differently at his preliminary hearing than at his trial. At his evidentiary hearing defendant testified that at the preliminary hearing Officer Mokowa had said he “couldn’t connect me with anything at the robbery.” At trial, the officer testified he did see defendant scooping jewelry out of a case. The alleged discrepancy was vigorously covered by cross examination at trial. It did not mention the officer’s alleged preliminary hearing statement about defendant not being connected with the robbery. Instead, trial cross examination of the officer concerned whether the officer had earlier testified he had seen defendant put his hand in the jewelry case, or merely had seen him taking jewelry out of the case.

We have examined the transcripts of both the trial and the Rule 27.26 motion and evidentiary hearing. We have considered the record in the light of Tyler v. State, 501 S.W.2d 189[1—4] (Mo.App.1973), and conclude defendant has failed to meet his three-pronged burden: First, since mere variations in testimony are not perjurious per se, defendant has not, as he must, shown the challenged testimony was deliberately false. Second, he has not clearly shown that at trial the prosecuting attorney knew of the alleged discrepancy. Third, since there was a robbery and the charge was that defendant acted in concert with others in committing it, defendant has failed to show his conviction was the direct result of the allegedly false testimony.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: SNYDER, Presiding Judge.

text:
    FORD MOTOR CREDIT COMPANY, a corporation, Plaintiff-Respondent, v. Janet M. PEDERSEN et al., Defendant-Respondent, Florissant Bank, a corporation, Intervenor-Appellant.
    No. 39445.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 27, 1978.

      Richard D. Schreiber, Judson W. Calkins, Lashly, Caruthers, Thies, Rava & Hamel, Clayton, for intervenor-appellant.
    James E. Hawk, Jr., Hawk & Mattingly, Clayton, for plaintiff-respondent.
    Daniel J. O’Toole, Jr., Saitz, O’Toole, Kramer & Weinstock, St. Louis, for defendant-respondent.
    Theodore S. Martin, Clayton, for witness Jasper Cilio.
   SNYDER, Presiding Judge.

This is a replevin action brought by Ford Motor Credit Company (Ford Motor), a corporation, against Janet M. Pedersen to recover possession of a 1972 Ford Torino automobile. Florissant Bank, a corporation, was permitted to intervene in the action as a lien claimant. During the course of the litigation, Pedersen defaulted in her obligation on an installment note given by her to Florissant Bank. Florissant Bank then cross-claimed against her for the face amount due on the note, $1,240.64. The trial court made findings of fact, drew conclusions of law and rendered judgment granting possession of the automobile to Ford Motor and in favor of Florissant Bank on its cross-claim against Pedersen in the sum of $1,674.87, including interest and attorneys’ fees.

Florissant Bank appealed, alleging that the trial court erred: (1) in holding that Ford Motor was entitled to possession over an innocent purchaser for value without knowledge of a perfected lien; and (2) in that its decision was against the weight of the evidence as to who should bear the loss between Florissant Bank and Ford Motor because of a delay by Ford Motor in perfecting its lien, and because Florissant Bank relied on a Missouri Department of Revenue title which indicated no lien was outstanding.

It is typical of such cases that the facts are complicated by the paperwork necessary to successive transfers of title to a motor vehicle.

On May 3,1973, the automobile was traded in by Robert J. and Sharon Peters to Downtown Ford Sales, Inc. The Peters assigned a certificate of title to Downtown Ford Sales, Inc.

On June 25, 1973 Downtown Ford sold the car to Elizabeth Watkins and executed the “reassignment by registered dealer only” portion of the Peters’ title to Watkins. Watkins signed a retail installment contract on the automobile and a Missouri title application form. The retail installment contract was purchased by Ford Motor from Downtown Ford. In conjunction with the purchase, Downtown Ford tendered to Ford Motor the retail installment contract, the lien perfection copy of the title application form, and the title to the automobile showing the reassignment by Downtown Ford to Watkins.

Watkins defaulted on the installment contract. In addition, she neither paid the sales tax nor sent the other copies of the title application form to the director of revenue. Thus, no title was ever issued in Watkins’ name.

Ford Motor on August 23, 1973 filed the assigned title, the lien perfection copy of the title application form, and the required fee with the director of revenue. If a title had been issued to Watkins and statutory procedures followed, the lien of Ford Motor would have been shown on the title which would have been sent by the director of revenue to Ford Motor, the first lienholder. § 301.620(4), RSMo 1969.

On August 1, 1973, the automobile was towed by the St. Louis Towing Company, on order of the St. Louis Police, for parking fines incurred by the former owner, Robert J. Peters. A title check by the police department with the director of revenue disclosed no outstanding lien on the automobile.

On September 10, 1973, pursuant to ordinances of the City of St. Louis, the automobile was sold at auction to Jay’s Auto Parts and Salvage, Inc. by the St. Louis Towing Company. The price was $150.00.

On September 24, 1973 the director of revenue issued a certificate of title, free of liens, to Jay’s Auto Parts.

On October 1, 1973 Jay’s Auto Parts sold the automobile to defendant Janet M. Ped-ersen, who signed a promissory note to Florissant Bank and a security agreement pledging the automobile to secure payment of the note. The evidence as to the sale price was in conflict but the face amount of the note was $1,869.30. Although the assignment on the reverse of the title issued to Jay’s Auto Parts was not signed by an officer, employee or agent of the corporation, when Pedersen applied for a Missouri certificate of title, it was issued in her name showing the lien of Florissant Bank. No other liens were shown on the title.

Ford Motor’s replevin action was subsequently filed.

After Pedersen became delinquent in her payments, the maturity of the note was accelerated by Florissant Bank who then cross-claimed against Pedersen for the balance due.

The trial court rendered judgment awarding possession of the automobile to Ford Motor and in favor of Florissant Bank on its cross-claim against Pedersen. The trial court’s conclusion that Ford Motor was entitled to possession of the automobile was based on Zuke v. Mercantile Trust Company National Association, 385 F.2d 775 (8th Cir. 1967).

The standard of review in a court-tried case is set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment must be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.

Section 400.9-302 of the Uniform Commercial Code relating to the perfection of liens by filing does not apply to automobiles. When the Uniform Commercial Code was adopted by Missouri the legislature also passed § 301.600, which controls the method of perfecting liens and encumbrances on motor vehicles. Section 301.600.2 reads as follows:

2. A lien or encumbrance on a motor vehicle or trailer is perfected by the delivery to the director of revenue of the existing certificate of ownership, if any, an application for a certificate of ownership containing the name and address of the lienholder and the date of his security agreement, and the required certificate of ownership fee. It is perfected as of the time of its creation if the delivery of the aforesaid to the director of revenue is completed within thirty days thereafter, otherwise as of the time of the delivery.

The lien of Ford Motor was perfected on August 23, 1973, the date of delivery of the requisite documents to the director of revenue, inasmuch as the delivery was not made within 30 days after June 25, 1973, the date the lien was created. Therefore, unless there are other reasons why the lien is not enforceable, Ford Motor must prevail.

Florissant Bank relies on: (1) the purchase by an innocent purchaser without knowledge of the lien; (2) the lack of notice to appellant and others because the title certificate was issued to Jay’s Auto Parts showing no lien; and (3) the delay by Ford Motor in perfecting its lien.

Considering these points in order, the first two are refuted by the provisions of § 301.600.1, which reads as follows:

1. Unless excepted by section 301.650, a lien or encumbrance on a motor vehicle or trailer, as defined by section 301.010, is not valid against subsequent transferees or lienholders of the motor vehicle or trailer who took without knowledge of the lien or encumbrance unless the lien or encumbrance is perfected as provided in sections 301.600 to 301.670.

If a lien is not valid against “subsequent transferees . . . who took without knowledge of the lien or encumbrance unless the lien or encumbrance is perfected,” then conversely, it must have been the intent of the statute that a lien is valid against subsequent lienholders if perfected as provided by the law.

Further, it is provided in § 301.650.2 that: “The method provided in sections 301.600 to 301.670 of perfecting and giving notice of liens or encumbrances subject to sections 301.600 to 301.670 is exclusive.” (Emphasis supplied). Admittedly the statute provides that liens shall be recorded by the director of revenue on certificates of title. § 301.-620(4). Ford Motor could not do this. Ford Motor did everything required of it to assure that its lien rights were perfected in accordance with the statute. It was the duty of the director of revenue to maintain records in such a way as to prevent the issuance of a certificate of title free of liens after Ford Motor’s lien information had been delivered to him as required by § 301.600.2. Somewhere in the files of the director when the title to Jay’s Auto Parts was issued was the lien copy of the application for title of Elizabeth Watkins showing the lien of Ford Motor. Through oversight, mistake, a failure of the system or call it what you will, this outstanding lien was not shown on the Jay’s Auto Parts title.

Ford Motor’s compliance with the statute gives it priority over subsequent lienhold-ers. Florissant Bank cannot rely on or prevail because of its innocent purchaser status.

The statutes cited by Florissant Bank to support its argument that it should prevail as an innocent purchaser without notice of the lien, § 513.140 and § 428.070, relate to judgment executions and fraudulent conversions and have no' application to the facts here. The cases cited in its reply brief to support the innocent purchaser theory, Anderson v. Arnold-Strong Motor Co., 229 Mo.App. 1170, 88 S.W.2d 419 (1935), Bonnell v. Mahaffey, 493 S.W.2d 688 (Mo.App.1973), are distinguishable on the facts. In neither case were there disputed lienholder rights. Instead both concerned the statute which provides that the sale of an automobile without the required assignment of a certificate of title is fraudulent and void.

The third reason advanced by Floris-sant Bank for not recognizing the Ford Motor lien is the delay in perfecting it. The lien was created on June 25, 1973 when Elizabeth Watkins signed the retail installment contract. It was not perfected until August 23, 1973 when the requisite documents were delivered to and received by the director of revenue. However, even if the lien papers had been sent immediately by Ford Motor the result would have been the same. The title to Jay’s Auto Parts was issued on September 24, 1973, more than a month after Ford Motor’s lien was perfected. Title to Janet Pedersen was issued on November 6, 1973, more than two months after perfection of the lien. Florissant Bank was not harmed by the delay but rather by the failure of the director of revenue to record an existing lien on the Jay’s Auto Parts title.

Both parties cite In re Jackson, 268 F.Supp. 434 (E.D.Mo.1967) and Zuke, supra, by which the Jackson opinion was affirmed. The Jackson opinion contains a thorough and scholarly analysis of the Missouri statutes relating to automobile liens. Zuke is authority for the proposition that a lien on an automobile is perfected when the lien copy only of the application for title form is delivered to the director of revenue with the other necessary documents, even though the other copies of the application for title are never delivered by the automobile purchaser and the automobile never registered for licensing purposes. The facts in Zuke are almost identical to those being considered here.

In Zuke, Mercantile Trust Company National Association perfected its lien by sending the required documents, including the lien copy of the application for title, to the director of revenue. The purchaser failed to apply for a title by sending the other copies of the application to the director of revenue along with a remittance for the sales tax due. The automobile was never registered for licensing purposes and no certificate of title was ever issued. The purchaser subsequently filed for bankruptcy and the trustee refused to honor Mercantile’s lien.

The Eighth Circuit Court of Appeals held that Mercantile was entitled to possession under these circumstances. Zuke confirms Ford Motor’s position that its lien should be honored.

Florissant Bank argues that Zuke should be distinguished on the facts because of the issuance to Jay’s Auto Parts of the lien-free title and the bank s reliance on that title, and claims that Ford Motor’s lien “passed out of existence,” thus entitling Florissant Bank to possession. No cases are cited to support that theory and the argument is not persuasive. The position of the trustee in bankruptcy in Zuke was similar to that of Florissant Bank. Neither had actual notice of the prior lien. Each had a claim which arose subsequent to the perfecting of the prior lien. The trustee in bankruptcy, in fact, could be said to have had a stronger claim because he was acting as a fiduciary in representing the interests of creditors. Florissant Bank acted solely for itself. The trustee was not allowed to prevail. Similarly, the ruling here must be against Flor-issant Bank.

Florissant Bank contends Ford Motor should have redeemed the automobile when the public auction was held in accordance with the City of St. Louis ordinances, but it fails to cite any authority to support the theory that a lienholder must redeem a chattel at a public sale or lose its lien.

Finally, Florissant Bank advances an equitable argument, claiming it should prevail because Ford Motor was in privity with Elizabeth Watkins, a wrongdoer who failed to pay the sales tax due on the automobile. Again no authority is cited for this very weak reasoning and it is rejected.

There was substantial evidence to support the judgment and no error either in the declaration or application of the law by the trial court.

No appeal was taken from the judgment on the cross-claim.

The judgment is affirmed.

WEIER, C. J., and SMITH, J., concur.

      . All statute references are to RSMo 1969.


author: REINHARD, Presiding Judge.

text:
    Norman Earl WESTBROOK, Appellant, v. James S. MACK et al., Respondents.
    No. 39778.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1978.
    Hale W. Brown, Kirkwood, for appellant.
    Daniel E. Wilke, Carter, Brinker, Doyen & Kovacs, Clayton, for respondents.
   REINHARD, Presiding Judge.

This is an appeal from a summary judgment entered in the trial court under Rule 74.04, V.A.M.R., in favor of defendants. Plaintiff had sued for libel and slander.

In June, 1975, pursuant to information which had been brought to the attention of the Chief of Police of Rock Hill, the City of Rock Hill (hereinafter “City”) suspended plaintiff Norman Westbrook from his position as a Sergeant on the Rock Hill Police Department. On June 19, 1975, plaintiff requested a hearing to consider this suspension, the allegations that had been made against him, and his possible discharge from the police department. A hearing was held on July 7,1975, before the Mayor and Board of Aldermen, at which hearing plaintiff was represented by counsel. Four witnesses testified for the City, among them defendant James S. Mack; plaintiff testified on his own behalf. Subsequent to the hearing, the City decided to terminate plaintiff’s position as a police officer as of July 14, 1975.

Plaintiff filed a petition for review in the Circuit Court of St. Louis County and incorporated as part of his case Exhibits A through M. The circuit court dismissed plaintiff’s petition for review; plaintiff did not appeal this dismissal. Both plaintiff’s petition for review and Exhibits A through M are part of the record herein.

Plaintiff then filed a petition in the Circuit Court against defendants James S. Mack and Medicare-Glaser Corporation, a Missouri corporation, alleging that the statements made by James Mack at the hearing before the Mayor and Board of Aldermen were slanderous and defamatory, and that Mack was acting as agent, servant and employee of defendant Medicare-Glaser Corporation. Plaintiff sought actual damages of $100,000 and punitive damages of $250,000.

Defendants then filed a motion to dismiss or in the alternative for summary judgment, which motion adopted by reference plaintiff’s original petition for review and the aforementioned Exhibits A through M filed therein. The basis for defendants’ motion was that any statements that defendant Mack made at the public hearing were “absolutely privileged;” consequently, neither defendant could be liable for slander for the statements made at the hearing. The motion was verified by James Mack, “to the best of his information, knowledge, and belief.” Plaintiff filed no affidavits in opposition to the motion, made no objection to the form of the motion, and generally made no response to the motion. The motion for summary judgment was sustained. Plaintiff appeals from the granting of summary judgment.

Plaintiff contends that the court should not have accepted as true all of the sworn statements in the motion for summary judgment because the statements contained in said motion were not based on affiant’s personal knowledge and because the motion contained inadmissible conclusions of law. We reject plaintiff’s contention for procedural errors. As noted above, appellant made no response to the motion. Appellant failed to object to the motion as to either form or content. He now asks us to find that the trial court erred in considering material to which plaintiff never objected at trial.

“[A]n appellate court does not review legal propositions not expressly decided by the trial court.” Dyer v. General American Life Ins. Co., 541 S.W.2d 702, 706 (Mo.App.1976). Although this general principle has never been applied in Missouri to the specific circumstances here, the United States Court of Appeals in Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) dealt with a similar situation. In that case, the trial court had granted summary judgment based on a motion to dismiss supported by affidavits, which motion the trial court had considered as a motion for summary judgment. On appeal, the plaintiffs asserted that the affidavits and other material in support of the motion were invalid and should not have been considered. After noting that plaintiffs had made no objection to the affidavits or other documents and had made no motion to strike any of the materials, the appellate court stated, “Under these circumstances, neither this court nor the trial court is precluded from giving the documents consideration.” Id. at 228. The court later stated “. . . it is too late for plaintiffs to urge their objections for the first time in this court, having had ample opportunity to do so in the trial court.” Id. at 229. The applicability of these rules to the Missouri courts is delineated by those cases which note that the federal decisions as to summary judgment are “particularly persuasive in construing Missouri’s summary judgment procedures.” Miller v. United Security Insurance Company, 496 S.W.2d 871, 876 (Mo.App.1973); Maddock v. Lewis, 386 S.W.2d 406, 408 (Mo.1965). Therefore, we refuse to find error in the court’s consideration of the motion.

Plaintiff further contends that there remains a genuine issue of material fact. Defendants respond by saying that, based upon the pleadings, facts alleged in the motion, and the exhibits, there is no genuine issue of material fact. Defendants claim that their statements were within the shelter of an absolute privilege because: (1) the testimony was given at a “judicial” hearing, and (2) the testimony was given at a hearing requested by'plaintiff, so that any publication was made with his consent.

“In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the parties against whom the motion was filed and the judgment was rendered, and to accord to such parties the benefit of every doubt. (Citations omitted.) A summary judgment may only be rendered where it is made manifest by the pleadings, deposition [sic] and admissions on file, together with any affidavits, that there is no genuine issue of material fact. (Citations omitted.)”

Edwards v. Heidelbaugh, 574 S.W.2d 25 at 26-27 (Ct.App.St.L.1978).

One issue as to which there is no dispute is that the plaintiff requested the hearing on his suspension and possible discharge. The record considered by the trial court and now before this court supports the fact of this request. Furthermore, in oral argument, plaintiff’s attorney conceded that the fact of plaintiff’s request for the hearing is not an issue in dispute. We see no other factual issue in dispute which would pre-elude the trial court’s determination that summary judgment was appropriate here.

Whatever the status of the hearing here, there was an absolute privilege protecting the defendants. In Williams v. School District of Springfield R-12, 447 S.W.2d 256 (Mo.1969), plaintiff school teacher requested at a School Board meeting that she be given reasons for her non-reemployment. Although the School District was under no obligation to do so, the school superintendent complied and stated the reasons at the meeting. The teacher then brought suit alleging, inter alia, slander on the part of the superintendent in publicly giving the reasons. The court held that the superintendent was protected by absolute privilege: “the publication, [sic] of a libel or slander, invited or procured by the plaintiff, or by a person acting for him in the matter, is not sufficient to support an action for defamation.” Id. at 268, quoting 33 Am. Jur., Libel and Slander, Sec. 93, pp. 105-106. (Emphasis in original.)

The analogy is apparent. Plaintiff West-brook requested the hearing and requested confrontation by his accusers. He invited the publication of the remarks made at the hearing and cannot be heard to complain of the resulting damage to his reputation. Consequently, his action for defamation is blocked by the absolute privilege existing under the circumstances.

Although the issue of consent to publication was raised on appeal but not raised in defendants’ motion for summary judgment, we note that:

“an appellate court may review the action of the trial court on the whole record and will not reverse a correct result even where granted for the wrong . reasons, (citations omitted), and if defendant’s contention is valid, then the summary judgment entered by the trial court should be sustained in spite of the fact that this argument was not presented in the trial court.”

Labor Discount Center, Inc. v. State Bank & Trust Company of Wellston, 526 S.W.2d 407, 429 (Mo.App.1975). Therefore, we may properly consider that issue.

Finally, in plaintiffs petition, he alleges that the statements were made with malice. However, no remedy is available in a civil action for slander if the statements are absolutely privileged, even though the statement is made maliciously and is false. Williams v. School District of Springfield R-12, 447 S.W.2d at 268. The allegation of malice does not preclude the granting of summary judgment here.

Judgment affirmed.

CLEMENS and GUNN, JJ., concur.

      . Among the exhibits incorporated by reference in the motion and filed with the court was a letter from plaintiffs attorney to the Chief of Rock Hill requesting that the City provide plaintiff with a hearing because plaintiff “wants this hearing . . and he wants to be confronted by these people who have made these serious charges against him.” Although only a 4th class city and therefore not required to give a hearing, the City acceded to plaintiff’s request.

      . There is dictum in a recent case from this court to the effect that remarks made at an administrative hearing would be absolutely privileged. Ramacciotti v. Zinn, 550 S.W.2d 217, 224 (Mo.App.1977). We also note the increasing case law to the effect that testimony at administrative hearings is absolutely privileged. Annot., 45 A.L.R.2d 1296; 50 Am.Jur.2d, Libel and Slander, §§ 234, 237, 249. We do not believe that the fact that the City was not required to give a hearing here would affect any privilege attached to those to testify in an administrative hearing. However, because we decide this case on the basis of plaintiff’s request for the hearing, we need not reach the issue of absolute privilege in this administrative hearing.

      . We do not mean to suggest that the trial court erred in acting as it did.


author: STEWART, Presiding Judge.

text:
    STATE of Missouri ex rel. John ASHCROFT and Missouri Clean Water Commission, Plaintiff-Respondent, v. James and Faye GIBBAR d/b/a J & H Gibbar Construction Co., Defendant Third-Party Plaintiff-Appellant, v. Perry Plaza, Inc., Harold P. and Irene Gibbar, Third-Party Defendant-Respondents.
    No. 39032.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 27, 1978.

      W. H. Frye, Cape Girardeau, for defendant third-party plaintiff-appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
    A. M. Spradling, Jr., Cape Girardeau, for Perry Plaza.
    John P. Bradshaw, Cape Girardeau, for Harold & Irene Gibbar.
   STEWART, Presiding Judge.

This is an appeal from an order of the trial court dismissing the third-party petition filed by James Gibbar and Faye Gib-bar, defendants third-party plaintiffs, against Perry Plaza, Inc. and against Harold Gibbar and Irene Gibbar in the above captioned cause.

The original action was brought by the State of Missouri upon the relatipn of John Ashcroft, Attorney General of Missouri and Missouri Clean Water Commission (Plaintiffs) against James Gibbar and Faye Gib-bar d/b/a J & H Gibbar Construction Company. Plaintiffs’ petition as amended is in three counts and alleges violations of Chapter 204, The Clean Water Law, emanating from three separate tracts of land owned by defendants.

Count I of plaintiffs’ petition alleges that defendants as the owners of Jamestown Estates Subdivision (Jamestown) operated a sewage system without a permit and discharged raw sewage into a sink hole beneath Perry Plaza Shopping Center and eventually into waters of the State. Counts II and III are similar but are concerned with two other residential developments owned by defendants. Plaintiffs sought injunctive relief and statutory penalties against defendants as provided in V.A.M.S. 204.076.

Defendants, who will hereafter be referred to as owners, filed a third-party petition in two counts. The first count purports to state two causes of action, the first is against Perry Plaza, Inc. (Plaza). It is alleged that if owners should be found guilty of any of the acts set forth in plaintiffs’ petition, that it was because of the breach of an agreement made by Perry Plaza, Inc. and owners’ predecessors in title to accept sewage into a system to be built on land owned by Perry Plaza, Inc. and that as a result of such breach Perry Plaza, Inc. as a third-party defendant is liable over to owners for all or any proportionate part of any money judgment or judgments which might be obtained by plaintiffs against owners..

Owners also alleged in Count I of their amended third party petition that Harold P. Gibbar and Irene Gibbar were owners of real property that adjoined the lands owned by owners and that they were discharging sewage under ground onto the lands of defendants third-party plaintiffs and contributing to any alleged pollution and therefore they should be liable for part or all of any judgment or judgments which might have been obtained by plaintiffs against owners.

In Count II of their amended petition owners asked for money damages against Perry' Plaza, Inc. for a breach of the agreement alleged in Count I and to declare that there was an easement in favor of owners across the lands of Perry Plaza, Inc. into a sewage system on the lands of Perry Plaza, Inc. which sewage system eventually runs into the municipal system of the City of Perryville, Missouri.

Upon motions of Plaza and Harold P. Gibbar and Irene Gibbar, third-party defendants, owners’ third-party petition was dismissed for failure to state a claim upon which relief could be granted.

We must first determine whether the order of the trial court is a final judgment so as to invoke the appellate jurisdiction of this court. Pizzo v. Pizzo, 295 S.W.2d 377, 379 (Mo.1956). Our determination is governed by Rule 81.06 which reads in part as follows:

“. . . When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined. In any case (jury or nonjury) when .a separate final judgment is entered the court may stay its enforcement until other or all final judgments in the cause are entered and may prescribe such conditions as are necessary to secure and protect the relative rights of all parties; provided, however, any such stay shall not affect the right of appeal.”

The dismissal of a petition or a count in a petition upon the hearing of a motion to dismiss for failure to state a claim upon which relief can be granted is a separate trial before the court without a jury within the meaning of Rule 81.06. Johnson v. Great Heritage Life Insurance Company, 490 S.W.2d 686, 689 (Mo.App.1973).

In this case the court dismissed both counts of owners’ third-party petition. The hearing on the motion to dismiss was a trial before the court without a jury. The order of dismissal did not provide that the dismissal was without prejudice, therefore the third-party petition was dismissed with prejudice. V.A.M.R. Civil Rule 67.03. Johnson v. Great Heritage Life Insurance Company, supra.

The court did not specifically provide that the order dismissing owners’ third-party petition be deemed a final judgment for purposes of appeal and it did not provide that it was interlocutory or that it was to be held in abeyance pending the disposition of the entire case.

We have jurisdiction only if the order comes within the purview of third sentence of Rule 81.06 which reads:

“However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined.”

To come within the application of this portion of Rule 81.06 the matters disposed of must not be dependent in any respect upon the outcome or final disposition of any issue left undetermined in the case, the order must not provide that it be interlocutory or that it be held in abeyance until other claims are determined. Crenshaw v. Great Central Insurance Co., 527 S.W.2d 1, 3 (Mo.App.1975).

The two counts of the third-party petition are clearly severable and in applying the rule to this case we must consider each count separately to determine where the order with respect to either count is appeal-able.

Count I of the third-party petition seeks indemnity from Plaza and from Harold and Irene Gibbar in the event that plaintiffs recover a money judgment against owners. It is obvious that any liability that Plaza and Harold and Irene Gib-bar might have is dependent upon the disposition of the plaintiffs’ action against owners and would not be an appealable order. Rule 81.06. Crenshaw v. Great Central Insurance Co., supra.

Counsel cited Wegman v. Fendelman, 333 S.W.2d 290 (Mo.App.1960) as saying that the dismissal of a third-party petition is an appealable order. There is some broad language to that effect that was not necessary to the opinion because all parties and all issues were disposed of and the appeal was from the final judgment. The case holds that dismissal of a third-party petition because it fails to state a claim upon which relief may be granted is a disposition of the claim on the merits and if it disposes of the whole case it is appealable. See also Spires v. Edgar, 513 S.W.2d 372[2] (Mo. banc 1974).

The order so far as it dismissed Count I of the third-party petition is not an appeal-able order.

Count II alleges an agreement between owners’ predecessors in title and Plaza to accept sewage into Plaza’s sewer system and the breach of that agreement, it further alleges that owners were unable to fully develope Jamestown as a result of the breach and owners sought compensatory and punitive damages and a declaration that they had an easement across the lands of Plaza into Plaza’s sewage system.

Applying the principles of Crenshaw, plaintiffs in the original action and Harold and Irene Gibbar, defendants in Count I of the third-party petition, are not parties to Count II of the third-party petition. The action relates to the sewage system but the controversy is solely between owners and Plaza. The final disposition of Count II of the third-party petition is in no way dependent on the outcome of the original action filed by plaintiffs or of Count I of owners’ third-party petition. The court did not order Count II to be interlocutory or held in abeyance pending disposition of the other issues in the litigation. The dismissal of Count II of owners third-party petition was a final appealable order and we have jurisdiction to determine the issues presented with respect to that count of the third-party petition.

The dismissal of Count II of the third-party petition was with prejudice and constituted a disposition of the action upon the merits. The Circuit Court has the power and the duty to dismiss a third-party petition for failure to state a claim upon which relief can be granted. Pierce v. Ozark Border Electric Co., 378 S.W.2d 504 (Mo.1964). We must therefore determine whether the second count of that pleading stated a claim upon which relief could be granted against Plaza. If it states a claim we must determine whether Count II is the proper subject of a third-party petition in this action.

In considering the sufficiency of the pleading to state a claim we give the aver-ments a liberal construction, treat the facts properly pleaded as true and accord the pleading those favorable inferences fairly deducible from the facts stated. Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976). So viewed, Count II alleged that Plaza had agreed with owners’ predecessors in title that said predecessors and their successors could connect to the sewer line on what is now Plaza’s property and in consideration of said agreement owners’ predecessors sold to Plaza the land now occupied by Plaza; that Plaza has breached that agreement by refusing to permit owners to connect to its sewer line; that owners were unable to fully develope their property and have been damaged as a result of the breach.

The petition states an agreement by Plaza for the benefit of owners as successors, consideration for the agreement, a breach of the agreement and resulting damages. The second count of owners’ third-party petition states a claim upon which relief may be granted. Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686, 691 (Mo.App.1973). The court erred in dismissing Count II of the third-party petition with prejudice.

We next consider whether Count II of the third-party petition is a proper third-party petition. Rule 52.11 provides that a third-party petition may be served “upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.”

The rule is clear. “[I]f a third-party plaintiff ... . could proceed and recover against the third party defendant . even if the [third-party plaintiff] were to win in the suit brought by the plaintiff . . . the petition would not be covered by rule 52.11.” S. P. Personnel Assoc., Etc. v. Hospital B. & E. Co., 525 S.W.2d 345, 348 (Mo.App.1975).

It is apparent that in this case owners could proceed and recover against Plaza on Count II of the third-party petition, even if owners were to prevail in the original action. The third-party petition does not come within the purview of Rule 52.11.

Rule 52.11 also provides, “Any party may move to strike the third-party claim, or for its severance or separate trial.” The word “strike” is a carefully chosen word. Within the context of Rule 52.11 it means to delete, that is, “to eliminate as a factor or matter for consideration.” Webster’s Third International Dictionary, p. 596 (1967). It is not a ruling upon the intrinsic merits of the pleading. The remedy of striking a pleading provided by the rule contemplates the situation presented in this case. Count II of owners’ petition stated a cause of action against Plaza but was not a proper subject of a third-party petition. The proper remedy is to strike Count II of the third-party petition.

The order of the trial court so far as it dismisses Count II is reversed and remanded with directions to strike said count. The order with respect to Count I is not appeal-able and as to that count the appeal is dismissed.

REINHARD and STEPHAN, JJ., concur.

      . The trial court may in its discretion sever or require a separate trial of a third-party claim in those cases where the third-party claim is within the purview of Rule 52.11.


text:
    Loretta Lydia ROSE, formerly known as Loretta Lydia Grote, Petitioner-Appellant, v. Donald E. GROTE, Respondent.
    No. 40112.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1978.
    Ray A. Gerritzen, St. Louis, for petitioner-appellant.
    Kent Karohl, St. Louis, for respondent.
   CLEMENS, Judge.

Petitioner, former wife of respondent, from whom she was divorced in 1970, has appealed from the partial granting of her motion to modify wherein her monthly alimony was increased from $250 to $325, which she contends is inadequate.

We have fully considered the parties’ evidence of their relative incomes and expenses since the 1970 divorce; reciting the details thereof would have no precedential value. The net result is that there is not enough income to meet the needs or desires of both parties.

As we ruled in petitioner’s cited case of Harriman v. Harriman, 281 S.W.2d 566[2] (Mo.App.1955): “The amount properly allowable is deemed a matter of discretion for the trial judge to such an extent that his decision will not be disturbed unless the amount awarded is so excessive or inadequate as to appear to be an abuse of judicial discretion.” In Kasper v. Helfrich, 421 S.W.2d 66[1-5] (Mo.App.1967), we held judicial discretion is abused only when the trial court’s ruling “is so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice,” and “if reasonable men can differ about the propriety of the action taken by the trial court, then the trial court did not abuse its discretion.”

Viewed in the light of these principles, the trial court did not err.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: DOWD, Presiding Judge.

text:
    Clifford F. GREEN, Plaintiff-Respondent, v. CRUNDEN MARTIN MANUFACTURING COMPANY, Defendant-Appellant.
    No. 39433.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 27, 1978.

      Robert C. Ely, Ely & Wieland, St. Louis, for defendant-appellant.
    James P. Koester, David L. Baylard, St. Louis, for plaintiff-respondent.
   DOWD, Presiding Judge.

Appellant, Crunden-Martin Manufacturing Company, appeals from a judgment favorable to Respondent, Clifford Green, in which the latter was awarded $50,000 in damages.

This civil action stemmed from Green’s injury on appellant’s premises. Clifford Green was a professional truck driver, employed by the Hamill Transfer Company. Hamill had orally contracted to supply Crunden Martin with truck drivers. On the day Green was assigned to work for the appellant, a steel door fell on his head and shoulders while he was assisting in the loading of his truck. Green brought this suit to recover for damages .to his head, neck, brain, spine, right arm, right eye and hearing, allegedly suffered as a result of appellant’s negligence.

The first issue raised in this appeal by Crunden Martin is that the trial court erred in overruling its motion for judgment at the close of all the evidence, for the reason that at the time of the accident, Green was a statutory employee of appellant. If Green is determined to be a statutory employee within the provisions of RSMo § 287.040, this common law action could not be maintained against Crunden Martin, for his exclusive remedy would be under the Workmen’s Compensation Act. Walton v. United States Steel Corporation, 362 S.W.2d 617 (Mo.1962).

Our review of whether the trial court erred in overruling appellant’s motion for a directed verdict consists of construing all evidence and inferences therefrom in the plaintiff’s favor, and determining whether a submissible case has been made. Young v. Mercantile Trust Company National Association, 552 S.W.2d 247 (Mo.App.1977).

Categorization as a statutory employee is contingent on the coexistence of the following factors: 1) the work being performed is pursuant to contract, 2) the injury or death was inflicted on or about the premises of the alleged statutory employer, 3) the work performed by the alleged statutory employee must be that which is in the operation of the usual business of the alleged statutory employer. § 287.040, RSMo. All three factors must be present before an employee is held to be a statutory employee. Ferguson v. Air-Hydraulics Company, 492 S.W.2d 130, 135[5] (Mo.App.1973).

As appellant has interposed the affirmative defense that Green was a statutory employee, appellant has the burden of pleading and proving this issue. Miller v. Municipal Theatre Association of St. Louis, 540 S.W.2d 899 (Mo.App.1976).

Among the factors to be taken into consideration in a determination of whether a worker is a statutory employee within the language of § 287.040, RSMo are: the right of the employer to control the employee, the right of the employer to replace one employee with another, and whether the work performed for the employer is merely incidental, rather than in actual furtherance of the usual course of his business. Ferguson v. Air-Hydraulics Company, Supra.

In order to resolve this issue within the framework of our standard of review, it is necessary to consider the phases of the Crunden Martin operation. The testimony adduced at trial from appellant’s traffic manager, revealed that the company is engaged in manufacturing and distributing. Appellant does not own any trucks, but leases trucks for its driver employees to operate interstate.

The oral agreement which existed between Crunden Martin and the T. J. Hamill Transfer Company provided that the latter would select and supply the appellant with a truck driver every day. Hamill drivers would furnish their own trucks. Once assigned to the job, the driver’s activities were controlled by Crunden Martin. If a breach of duty occurred during the driver’s assignment to Crunden Martin, the latter could request that the driver not be reassigned to its operation again. Hamill Transfer, rather than Crunden Martin, had the right to fire a driver. Hamill paid the drivers who were assigned daily to Crunden Martin, withheld federal taxes, paid unemployment insurance and social security payments.

As phrased in appellant’s brief, the focal point of our inquiry is whether Green’s activity, loading and/or trucking, was within the usual course, or ancillary to, appellant’s business. Walton v. United States Steel Corporation, Supra, cited by the respondent, is persuasive on this issue. The plaintiff therein, a truck driver, was assigned by his employer to make deliveries for the defendant. As in the case at bar, the plaintiff was injured on defendant’s premises, during the loading stage. In reaching the issue of whether the plaintiff was involved in the usual course of defendant’s business, the Court in Walton stated: “the mere fact that delivery of defendant’s products by someone else was essential to its operation does not mean that such delivery service must be considered in the operation of defendant’s usual course of business.” 362 S.W.2d 617, at 624.

Like the defendant in Walton, the appellant did not prove that the activity performed by Green was in the usual course of its business.

Our review of the transcript and briefs reveals that the only provision of § 287.040 which is satisfied by the present set of facts is that which requires the alleged statutory employee’s injury to be sustained on the employer’s premises. § 287.-040(2). This alone is not sufficient to confer the status of statutory employee on the plaintiff. The statute’s applicability is rendered more remote by the fact that the contract which existed between the parties was not of the type contemplated by § 287.040. To be within the statute, the contract must contain a delegation of the usual course of the employer’s business to another. (See, Crain v. Webster Electric Cooperative, 568 S.W.2d 781 (Mo.App.1978). There is no evidence here which indicates that the work performed by the plaintiff at the time he was injured, was within the usual course of Crunden-Martin’s business.

Accordingly, the first point is ruled against the appellant.

In the' second point relied on, appellant alleges that the trial court erred in overruling its motion for a mistrial because respondent’s evidence concerning medical expenses was unrelated to the injury he sustained.

At the trial, evidence of medical expenses incurred by Green following his injury, was introduced over appellant’s objection. The evidence was admitted subject to the court’s directive that the medical expenses would be connected to the injury as the trial progressed. The respondent’s failure to catenate two hospital bills, loss of wages while in the hospital, and bills of four treating physicians, resulted in the trial court’s utilization of the MAI withdrawal instruction, 34.02.

Appellant contends that the withdrawal instruction did not cure the prejudice which allegedly resulted from respondent’s introduction of medical expenses.

At the outset, it must be noted that it is presumed that the jury followed the trial court’s direction to exclude improperly admitted evidence from its consideration and weighed the legal evidence only, unless circumstances indicate otherwise. Barlow v. Thornhill, 537 S.W.2d 412 (Mo.1976).

The withdrawal instruction given by the trial court clearly enumerated the list of medical expenses the jury was to disregard. In addition, the evidence properly includa-ble in the jury’s deliberation was clearly outlined in the remainder of the instructions. In closing argument, respondent confined his remarks regarding damages to evidence which had been properly admitted, and on rebuttal, reiterated that certain of the medical expenses evidence was to be disregarded by the jury. Appellant in closing argument, repeatedly referred to the court’s instruction that the jury not consider certain evidence.

Appellant has not overcome the presumption in favor of the jury’s adhering to the court’s instruction in this respect. The jury was directed to disregard approximately $7,000 of medical expenses introduced, and returned a verdict favorable to the respondent in the amount of $50,000, in contrast to the $100,000 prayed for in Green’s petition.

As Crunden-Martin has not voiced the requisite exceptional circumstances which would overcome the presumption and warrant the drastic mistrial remedy, we rule this point against the appellant.

In the third point relied on, appellant urges that the verdict rendered was excessive. In the context of verdicts, the legal term of art, “excessive”, has been interpreted as being that which is of such a magnitude that it shocks the conscience of the court. State ex rel. State Highway Commission v. Thurman, 552 S.W.2d 42 (Mo.App.1977).

Appellate review of an alleged excessive verdict is limited to a consideration of the evidence which supports the verdict, excluding that which disaffirms it. Strake v. R. J. Reynolds Tobacco Company, 539 S.W.2d 715 (Mo.App.1976).

The respondent presented expert medical testimony which indicated that Green had sustained permanent brain injury as a result of the accident. In addition, his post accident condition has been characterized by recurring dizzy spells, blurred vision, deficient hearing, and ruptured discs which require surgery.

In view of the nature and extent of Green’s injuries and the resulting pain and suffering sustained, we cannot say that the verdict was excessive." Accordingly, we rule this point against the appellant.

Judgment affirmed.

CRIST, J., and ALDEN A. STOCKARD, Special Judge, concur.