text:
    Gary Vincent JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10700.
    Missouri Court of Appeals, Springfield District.
    Jan. 26, 1978.

      David Robarás, Public Defender, Jasper County, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty, Gen., Jefferson City, for respondent.
   TITUS, Judge.

Movant was convicted by a Jasper County jury of robbery in the first degree by means of a dangerous and deadly weapon. §§ 560.120 and 560.135. The conviction was affirmed on appeal. State v. Johnson, 522 S.W.2d 106 (Mo.App.1975). The present appeal is from the judgment of the trial court denying movant’s pro se Rule 27.26 motion without an evidentiary hearing.

In its findings of fact and conclusions of law the trial court, inter alia, stated: “By this [Rule 27.26] motion [g]rounds numbered (a), (b), (c), (d), (k) and (I) were all decided adversely to Movant by the Court of Appeals. The remaining six grounds all attack the sufficiency of the evidence . . . . This Court finds that all grounds raised by Movant are allegations of mere trial errors which either were raised on appeal and decided adversely to Movant or could have been raised on appeal and do not affect constitutional rights of Movant. Therefore, it is found that the motion and the files and records of the case conclusively show that Movant is entitled to no relief and an evidentiary hearing is not required.” We agree with the trial court and affirm.

Grounds stated in a Rule 27.26 motion concerning matters considered and rejected in the direct appeal of a criminal case are not to be considered in a postcon-viction proceeding [Cochran v. State, 545 S.W.2d 710-711[1] (Mo.App.1976); Achter v. State, 545 S.W.2d 86, 87[1] (Mo.App.1976)], and grounds for relief stated in a motion for a new trial which are not briefed in the appellate court in the criminal appeal are to be treated as abandoned and are not available to a movant in a collateral attack upon the sentence imposed in the criminal case. Griggs v. State, 479 S.W.2d 478, 481[3] (Mo.1972). By taking judicial notice of the transcript on appeal in the criminal case [Mitchell v. State, 532 S.W.2d 219, 220[1] (Mo.App.1976); Layton v. State, 500 S.W.2d 267, 269-270[4-8] (Mo.App.1973)], we observe that all of the grounds alleged in paragraph 8 of the instant Rule 27.26 motion (see note 2, supra) simply parrot the averments contained in the motion for a new trial and the accompanying affidavit filed in the criminal cause. Furthermore, the allegations in the instant motion which challenge the sufficiency of the evidence to support the guilty verdict in the criminal case are not within the scope of a Rule 27.26 proceeding. Barker v. State, 505 S.W.2d 448, 449[2] (Mo.App.1974). Moreover, a motion filed under Rule 27.26 may not be employed as a second appellate review of matters which were or should have been raised in a direct appeal. Sherrill v. State, 515 S.W.2d 611, 612[1] (Mo.App.1974).

Albeit erudite appointed counsel for movant on appeal candidly recognizes our foregoing conclusions, he, nonetheless, suggests and urges particular issues not presented in the Rule 27.26 motion which might be considered to afford movant post-conviction relief or necessitate a remand to require the trial court to conduct an eviden-tiary hearing upon an amended motion. Without belaboring the opinion with a recasting of particulars, it is sufficient to observe that where issues have not been included in a Rule 27.26 motion and are not, therefore, before the trial court, they will not be considered for the first time on appeal. Parton v. State, 545 S.W.2d 338, 341[1] (Mo.App.1976); White v. State, 540 S.W.2d 148, 149[4] (Mo.App.1976); Garrett v. State, 528 S.W.2d 174, 176[2] (Mo.App.1975); Neighbors v. State, 515 S.W.2d 792, 793[1] (Mo.App.1974).

Affirmed.

All concur.

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

      . Par. 8 of the motion: “State concisely all the grounds known to you for vacating, setting aside or correcting your conviction and sentence. (a) The Court erred in failing to sustain motion for a change of venue, (b) The Court erred in not disqualifying itself pursuant to the request for disqualification made by defendant, (c) The Court erred in failing to sustain defendants [sic] motion to suppress the identification of witness Ed Bond, (d) The Court erred in limiting defendants [sic] Counsel’s right to interrogate potential jurors during the Voir dire, (e) The Court erred in failing to sustain the defendants [sic] motion for Judgment of acquittal at the close of the States [sic] case. [Any error in failure to sustain motion for judgment of acquittal at the close of the state’s case was waived when defendant introduced evidence in his own behalf. State v. Lewis, 526 S.W.2d 49, 52[1] (Mo.App.1975)]. (f) The Court erred in denying defendants [sic] motion for Judgment of acquittal at the close of all evidence, (g) Because the verdict is based upon insufficient, contradictory, confusing, and conflicting evidence. (h) Because the verdict is contrary to the evidence, (i) Because there was not proof beyond a doubt, (j) For the reason that all of the evidence, viewed in the light most favorable to the State on a motion for a new trial, is insufficient to sustain the verdict against defendant. (k) For the reason that the Court erred in assessing a sentence of 99 years upon defendant, sentence was punishment to defendant for having a Jury trial, (I) That the defendant was informed that he would be sentenced to 35 years by the prosecuting attorney if he plead guilty, but would get 99 years if he went to trial.”


source: Caselaw Access Project

author: SWOFFORD, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Basil X. HATTEN, Appellant.
    No. KCD 28124.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      Gary R. Bradley, Lexington, for appellant.
    John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

The appellant (defendant), after a jury trial, was found guilty under a three count information of Robbery in the First Degree (Count I) and Assault with Intent to Kill with Malice Aforethought (Counts II and III). He was sentenced to twenty (20) years on Count I, and eighteen (18) years each on Counts II and III. The sentences on Counts II and III were to run concurrently but consecutively with the sentence on Count I.

The original information charged the defendant of these crimes jointly with Adrian Gibson and Robert K. Bryant, but upon defendant’s motions he was granted a severance and a change of venue to Lafayette County. Also, before trial an evidentiary hearing was held upon defendant’s motion to suppress certain evidence and that motion was overruled.

The defendant raises four points or assignments of error on this appeal which may be thus summarized: (1) failure to sustain his motion to suppress evidence obtained by the police in an illegal search and seizure of a Cadillac automobile, such evidence particularly described as a black hat, and erroneously permitting it to be introduced as an exhibit; (2) failure to discharge and quash the panel of jurors (ve-nire) or, in the alternative, failing to grant a new trial because there were only three blacks on the entire panel, of which one worked in a bank, and there were no blacks on the final panel, thus defendant was deprived of a fair and impartial jury; and, that this was a deprivation of his constitutional rights and was plain error; (3) failure to sustain defendant’s motions for acquittal because the verdict was supported by incompetent and circumstantial evidence and the state failed to sustain its “burden of law” to show malice aforethought and deliberation with an intent to kill on the assault charge, as required by the statute; and (4) failure to sustain the defendant’s objections to improper and prejudicial closing arguments of the prosecutor.

The sufficiency of the evidence to support the verdict is challenged by Point III and thus the evidence must be here reviewed in its light most favorable to support the verdict. State v. Franco, 544 S.W.2d 533, 534[1] (Mo. banc 1976), U. S. cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977); State v. Gideon, 453 S.W.2d 938, 940[1] (Mo.1970), and cases cited in each. When so viewed, the evidence adduced and the reasonable inferences to be drawn therefrom warranted the jury in finding the following facts.

On Thursday, April 25, 1974, Mary Lou Ballenger, Assistant Manager of the Bank of Commerce West, at Columbia, Missouri (Bank) observed an unknown black man in the Bank lobby whose actions and close observation of the interior of the Bank aroused her suspicions. She left the Bank to make a business call in the neighborhood and observed this man get into a late model white Cadillac automobile with a black vinyl top in the shopping center parking lot. She observed this car stop at another point in the parking area and pick up another black man.

When Ms. Ballenger returned to the Bank parking lot, she again observed the same Cadillac “cruising” the area and the occupants thereof closely scrutinizing the Bank’s exterior and the surroundings. She obtained the license number and made a note of it in her pocket notebook. The number was CP 2587, and later developments disclosed that the car was registered in the name of Adrian Gibson.

During the noon hour on Monday, April 29, 1974, three black men entered the Bank and robbed it of about $22,000.00. Two of these men were armed with handguns and the third carried a sawed-off shotgun. According to the Bank employees, one of them wore what was described as a “red dress” and a “floppy” hat; another wore boxer shorts and a floral design shirt; and the third was dressed in a dark suit or jacket and trousers and wore a small black hat. None were masked. There were no Bank customers present.

These men threatened to shoot the four employees in the Bank and vaulted the tellers’ cages. The employees were forced at gunpoint to lie face down on the floor and their hands were bound behind them. Some of the money which the men removed from the tellers’ cash drawers was “bait money” which is marked and when removed from the drawers activates a silent alarm at the police headquarters in Columbia.

While the three armed robbers were in the Bank, someone shouted from the lobby entrance area “Let’s get out of here” and the three robbers (and presumably the fourth man at the entrance, whose presence was established by automatic photos) fled the Bank, accompanied by the sound of gunfire from the outside. None of the four Bank employees could identify the defendant as one of the men.

Officer Hanks, a motor car patrolman with the Columbia Police Department, received a radio message that the alarm at the Bank had been activated. He immediately proceeded to the Bank and, upon arrival, observed a blue and white Plymouth automobile, containing one black male, parked on the north side of the building. As Officer Hanks drove up he saw two black men run from the Bank and the officer then fired five shots in an unsuccessful attempt to stop them. These men jumped into the Plymouth which then left the parking area with Hanks in pursuit, at speeds which reached 60-70 mph. Hanks testified that during this pursuit he observed five men in the Plymouth and that one of these jumped out during this time. At one time, one of them leaned out of a window of the Plymouth and fired a pistol at Hanks at a distance of two or three car lengths. The Plymouth turned into a Howard Johnson parking lot in the vicinity of Sexton Road and Hanks lost sight of it, but he observed that another police car had turned into the opposite side of the lot.

Officer Harold Calvin of the Columbia Police Department was on patrol southbound on Clinkscales Avenue when he received the radio alert with reference to the Bank. As he was driving toward the Bank he observed a blue and white Plymouth northbound and he attempted to stop it, without success. As the Plymouth passed him a shotgun was fired at him from one of the windows. A pedestrian, William Johns, a high school student, observed this occurrence on Clinkscales and was struck by some of the shotgun pellets but not seriously wounded.

William Treaster of the Columbia Police Department observed the high speed chase and pulled into a parking lot next-door to Howard Johnson’s. He observed the Plymouth stop and men jumping out of the car. Shots were fired at him, one of which struck his pistol as he was returning the fire. The men from the Plymouth “took off” in different directions.

Mr. Roberts, who resided on the street in back of Howard Johnson’s, while on his front porch at this time, heard gunshots and then observed three men run out of the door of Howard Johnson’s and run towards the business establishment of Hulett’s Heating and Ventilation Company. One of these men, Roberts observed, carried a white sack in one hand and a gun in the other.

Mr. Wilson, who worked with a company sharing the same building with Hulett’s, heard “bangs and booms going off” and went to the front of the shop. Through the window he saw two black men run past the window and he saw a third man with a .38 caliber handgun. He identified this man as the defendant. Wilson then walked out in front of the shop and saw a police car go by and the defendant lying on the ground underneath a motor vehicle. Shortly thereafter Wilson saw the defendant handcuffed and in police custody. Later, Wilson found a handgun hidden in the grill of his Chevrolet pickup truck and a pair of brown gloves beside it.

Earl Chick, who owns the business next-door to Wilson’s place of employment, saw the defendant in the parking lot in front of his place lying on the ground underneath a truck. The defendant was wearing a pair of brown cotton gloves. Chick observed the defendant place a gun inside the grill of the truck, take off his gloves, drop them, and walk off. Chick also saw a man in that area wearing a bright red upper garment and carrying a sawed-off shotgun. He also found a pair of coveralls and a maroon cap lying on the ground near Hulett’s shop.

The gun found in the grill of Wilson’s truck, which Chick saw the defendant place there, was later found to contain five live and one spent cartridges.

Two other witnesses for the state, William Gibson and Steve Osborne, employed in the area, testified they had observed a man in a red dress, housecoat or shirt running past their locations. Osborne saw the man remove the garment and observed that he had a sawed-off shotgun. The man “ducked behind” a car when a police vehicle passed. Both Gibson and Osborne were then approached by the defendant, who was muddy and who made inquiry of them as to the man they had seen. The defendant told Gibson that the man had “pushed him down” and “I have got mud all over me”. The defendant then went off in the direction indicated by Gibson and Osborne.

The defendant was arrested by Officer Vemer walking on Sexton Road about thirty yards from the parking area. He denied that he was the man seen hiding under the truck and accounted for his muddy condition by telling the officer he had been robbed and knocked down by two men. Only a matter of a few minutes elapsed from the time of the Bank robbery until defendant’s arrest.

The police had been given a description of the white Cadillac automobile observed by Ms. Ballenger, as above related. This car was located the day of the robbery locked and parked in a lot two blocks from the Bank. It was towed away by the police and searched, without a warrant. A black hat was found in the Cadillac. This hat bore the imprint in the inside band of “Basil X”.'

Evidence linking the defendant to the crime was also found in the blue and white Plymouth which served as the getaway car. In it was a card case containing a number of credit cards in the name of “Basil X. Hatten” and a blue necktie and a coat belonging to the defendant. In the pocket of the jacket the police found three live rounds of .38 caliber ammunition. The police also recovered from the Plymouth a pillowcase containing $13,082.00.

The defendant testified in his own behalf and denied that he had participated in the robbery of the Bank. Substantially all other facets of the state’s evidence against him he admitted but offered explanation.

His presence in the Cadillac he stated, came about by reason of the fact that he and Adrian Gibson, the owner, were engaged together on the morning of April 29, 1974 in selling Black Muslim newspapers in the Kansas City area. Since he had worked all the night before, he fell asleep in the back seat of the Cadillac and when he awakened they were fifteen miles west of Boonville, Missouri. He had “a confrontation” with Gibson because he had appointments for his employer to keep in Kansas City that afternoon. He was unable to convince Gibson to return to Kansas City however, and he, Gibson and a man named Robert Bryant, whom he did not know but who was in the car when he awakened, proceeded to Columbia.

Here, he separated from Gibson and Bryant and became confused or lost as to his location. He was out walking trying to get his bearings. He was carrying his coat over his arm when he “heard a commotion” and as he turned around, he was hit in the side and fell to the ground. One of the three men who were running by him threw an object at his head which turned out to be a pistol which landed on the ground. Since he was on probation and desired to avoid trouble, he hid the pistol in the grill of the truck under which he had been knocked. Defendant did not again see his coat that he had been carrying and was unable to explain how it got into the Plymouth getaway car. He denied wearing any brown cotton gloves. He was arrested shortly thereafter walking on Everett Street.

Except as above noted, the defendant’s testimony as to the details of his actions and conduct during and after the gunfight and getaway was in sharp conflict with the testimony of the state’s witnesses. By testifying, the defendant placed his credibility in issue and it was for the jury to believe or disbelieve his version of the events of April 29, 1974. For reasons that are obvious, it chose not to credit his testimony with verity-

It is true that the state’s evidence was based upon circumstances in that no one identified the defendant as one of the men inside the Bank during the robbery nor as one of the fleeing robbers who engaged in gunfire with the pursuing police. Such direct evidence is not necessary to support the guilty verdicts if from the facts and circumstances shown the jury could reasonably find that the defendant was present, aided, abetted, encouraged or participated in the plan or action of the robbery and the events thereafter. State v. Adams, 537 S.W.2d 201, 203[4] (Mo.App.1976); State v. Gamache, 519 S.W.2d 34, 39-40[1-8] (Mo. App.1975); State v. Cain, 507 S.W.2d 437, 440-441[3-10] (Mo.App.1974).

The principle of review that all of the facts in evidence and all favorable inferences reasonably to be drawn therefrom will be considered in the light most favorable to the state, State v. Franco, supra; State v. Gideon, supra, applies with equal force and vigor whether the state’s evidence against the defendant is circumstantial or direct. State v. Cobb, 444 S.W.2d 408, 412[3] (Mo. banc 1969); State v. Cain, supra, at 441[12]; State v. Webb, 527 S.W.2d 728, 729[1] (Mo.App.1975).

In order to support a guilty verdict based entirely on circumstantial evidence such evidence need not demonstrate the impossibility of innocence and the injection into the case of a possible hypothesis of innocence by the defendant’s testimony (as here) is not enough to withhold or remove the case from the jury. State v. Franco, supra, at 534; State v. Kramer, 534 S.W.2d 281, 283[4] (Mo.App.1976); State v. Maxie, 513 S.W.2d 338, 343[5] (Mo.1974), U. S. cert. denied 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975).

The most compelling fact and circumstance shown by the evidence, which the defendant made no attempt to deny or explain, was that his coat and other personal effects were found in the Plymouth car employed in the Bank robbery and as a getaway vehicle. The undisputed evidence produced by the state was that the men in flight were observed abandoning the Plymouth and it was left with all four doors open, the motor running and the windshield wipers in operation. Thereafter it was kept under constant police surveillance and no person returned to the car. The reasonable (and indeed, inevitable) inference must be drawn that the defendant fled the car and left his coat and effects behind.

It is unclear from the wording of defendant’s Point III whether he challenges the sufficiency of the evidence as to Count I (robbery) or only Counts II and III (assault with intent to kill) as charged in the information. However, the record has been carefully studied on this appeal as to all three charges. It might be here again noted that the complaint as to Counts II and III is that the state failed to sustain its burden to show malice aforethought and deliberation with intent to kill as to the assaults charges. Malice and deliberation and intent in most circumstances are purely subjective and thus difficult, if not impossible, to prove by direct or positive evidence. This evidentiary gap is abundantly filled by an existing presumption of law that malice and intent exist as a concomitant of an unlawful assault with a deadly weapon. State v. Webb, 518 S.W.2d 317, 321[3-5] (Mo.App.1975); State v. Ayers, 305 S.W.2d 484, 486[1—3] (Mo.1957). In determining whether the necessary element of intent exists the jury may consider all of the related circumstances. State v. Goodman, 496 S.W.2d 850, 852[1] (Mo.1973); State v. Kopf, 481 S.W.2d 7, 9[1, 2] (Mo.1972).

Some forethought is implicit where bank robbers are fleeing and fire at pursuing officers. If the jury found defendant guilty of participating in the robbery of the Bank (as it did) the record also supports an inference and finding of guilt as to Counts II and III, the assaults by gun fire on Officers Harold Calvin (Count II) and Marty Treaster (Count III).

The court did not err in refusing to direct a verdict of acquittal as to the charges against the defendant, and his Point III is ruled against him.

The defendant’s Point I wherein he asserts error by the trial court in failing to sustain his motion to suppress the black hat found in the Cadillac automobile because it was the fruit of a warrantless and unconstitutional search and seizure is without merit since he lacks the necessary standing to assert such claim. This, for the reasons that the defendant claimed no proprietary or possessory interest in said Cadillac; he was not in or near the car when the search was conducted; and, the black hat did not constitute an essential element of the offense charged. (In the latter connection the defendant admitted being a passenger in the Cadillac the morning of April 29, 1974 from Kansas City to Columbia). In the absence of one of these three essential elements to show standing the defendant cannot complain of the illegality of a search since he had no expectation of privacy in the place (vehicle). State v. Bates, 540 S.W.2d 161, 164-165 (Mo.App.1976), and authorities cited therein; accord, State v. Perkins, 543 S.W.2d 805, 807-808[3-5] (Mo.App.1976); State v. Damico, 513 S.W.2d 351, 359[5] (Mo.1976).

The absence of such standing destroys the right to raise this claimed error. The defendant’s Point I is ruled against him.

Under his Point II the defendant claims a violation of his federal and state constitutional rights to trial by a fair and impartial jury of his peers drawn from a cross section of the community. To support this position he states that there were only three blacks on the venire panel and “the state by preemptory (sic) challenge succeeded in keeping all three black persons off of the trial jury.” He invokes the now well-established rule in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) that it was constitutionally impermissive to adopt a system of selecting persons to serve on venire panels where any process of systematic exclusion of blacks (or any other class of otherwise qualified citizens) was employed, and that it was equally violative of constitutional guarantees for the state to exercise its peremptory challenges so that the result would be a systematic exclusion of any class in “case after case”. The rule in Swain has been adopted and followed in a long line of Missouri decisions. For example, see, State v. Baker, 524 S.W.2d 122, 124-125 (Mo. banc 1975); Edwards v. State, 535 S.W.2d 124, 125 (Mo.App.1976); State v. Ross, 530 S.W.2d 457, 460 (Mo.App.1975); State v. Kelly, 506 S.W.2d 61, 62-63 (Mo.App.1974), and many other cases which adopt the principles of Swain.

The difficulty which this court faces in attempting to rule this Point II is that the transcript filed in this case does not contain any of the pre-trial or voir dire record and it is therefore impossible to determine if the constitutional objections now raised as to the composition of the venire or the trial jury were properly raised and preserved, or if the defendant waived any such objections by accepting the panels. Prom the record before the court it appears that the question of the composition of the panels was raised for the first time in defendant’s motion for a new trial. So far as this record discloses the defendant did not at any time produce or offer to produce any evidence to support his present objections, which involve questions of fact, the burden of establishing which rested on defendant. Thus, the record completely fails to afford any facts to bring the defendant within the ambit of the constitutional principles of Swain v. Alabama and the Missouri decisions cited above. This court is precluded from consideration on review of any facts not set forth in the approved transcript or supplemental transcript. Section 512.110 RSMo 1969; Rule 81.12. To do so would involve the rankest kind of judicial speculation and conjecture. This court declines to venture into that area. The defendant’s Point II is ruled against him.

In his fourth and last point, the defendant charges error in that the trial court overruled his objection to the prosecuting attorney’s closing arguments to the jury which the defendant asserts were outside the evidence and were intended to incite the passions, prejudices and fears of the jury and deprived him of his constitutional right to a fair trial. He points out in the argument in his brief seven (7) such instances of claimed improper argument. It should be here noted that during the course of the argument defense counsel made no objection; thereafter he made objection to only one of these arguments and such objection was general in nature and was made after the jury had retired to deliberate on its verdict; and, counsel asked for no relief such as a declaration of mistrial or admonition to the jury.

Objections to improper arguments to the jury must be made at the time of the argument and come too late after the jury has retired or when raised for the first time in a motion for a new trial after verdict and judgment. Otherwise, nothing is properly preserved for review. State v. Carter, 478 S.W.2d 358, 361[4] (Mo.1972); State v. Williams, 419 S.W.2d 49, 53[6] (Mo.1967); State v. Bankhead, 536 S.W.2d 172, 173[2] (Mo.App.1976); State v. Flynn, 505 S.W.2d 48, 49 (Mo.1974). The reasons for this rule have been frequently stated. A trial court cannot be charged with error for reasons not timely presented so that remedial action may be taken during the trial, if required. State v. Lang, 515 S.W.2d 507, 511[7] (Mo.1974); State v. Perryman, 520 S.W.2d 126, 132[15, 16] (Mo.App.1975).

In his brief the defendant steadfastly and stubbornly disregards these and many other authorities to the same effect and relies upon a few cases where the argument complained of or an accumulation of improper comments was so apparently objectionable and corrupting of the whole trial as to require unsolicited corrective action at the trial or on appeal. Such cases are not authoritative or controlling under the facts in this case.

The purport of defendant’s brief, however, is that regardless of the above-stated principles, this court is requested to review Point IV as plain error under Rule 27.20(c). The hallmark principle of review as plain error is that although such review can encompass points of error not raised in the trial court or properly preserved for review, and this would include alleging error occurring in closing arguments, State v. McClure, 504 S.W.2d 664, 670[11] (Mo.App.1974), the result of the trial below under these circumstances will only be disturbed if a “sound, substantial manifestation * ⅜ a strong, clear showing, that injustice or miscarriage of justice will result” is apparent on the record. State v. Meiers, 412 S.W.2d 478, 480 — 481[1] (Mo.1967). “Where no objection has been made to the argument review is usually denied without explanation.” State v. Bryant, supra, at 1.c. 211[1],

No useful purpose would be served or precedential value attach to a detailed analysis of the arguments complained of here and comparison thereof with the record evidence. Suffice it to say that this process has been carefully accomplished and the conclusion reached that each of the seven arguments complained of, taken in the context of the whole record, fall within permissible limits as argument of the facts and permissible inferences to be drawn therefrom within the legitimate scope of a prosecutor’s admonition for law enforcement and the result of a verdict of acquittal. No deprivation of a fair trial, injustice or impairment of constitutional rights resulted.

The defendant’s Point IV is ruled against him.

The judgment is affirmed.

All concur.

      . See: State v. Bryant, 548 S.W.2d 209, 212[3] (Mo.App.1977), a companion case wherein a conviction of Bryant, another occupant of the Plymouth, was affirmed; and State v. Gibson, 547 S.W.2d 861 (Mo.App.1977), wherein the conviction of the owner of the Cadillac automobile was affirmed.

      . Present counsel on appeal was not trial counsel below.


author: ROBERT R. WELBORN, Special Judge.

text:
    Betty L. SMITH, Respondent, v. Johnny S. SMITH, Appellant.
    No. KCD 28610.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      Snowden, Crain & DeCuyper, Joseph Y. DeCuyper, Hsiang-Lin Lee, Kansas City, for appellant.
    Arthur R. Kincaid, Vincent F. Igoe, Jr., Liberty, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Dissolution of marriage proceeding. Trial court entered decree of dissolution as prayed for by wife as petitioner, divided marital property, gave wife allowance for maintenance and ordered husband to make payments for support of minor children. Husband has appealed.

Betty L. Smith and Johnny S. Smith were married December 31, 1951. Four children were born to the marriage, Stephen L. Smith born April 24,1954, Johnny M. Smith born September 16, 1955, Jeffrey W. Smith born April 26, 1958, and Roger A. Smith born December 6, 1972. A child of Betty, Jack L. Smith, was adopted by Johnny and was an adult.

The wife’s petition, filed May 12, 1975, alleged that the marriage was irretrievably broken. The husband’s answer denied that allegation and requested the court to enter an order requiring counseling. § 452.320 2. (2), RSMo 1975 Supp. (All references herein to statutes are to that compilation.) The petitioner’s reply reaffirmed her allegation that the marriage was irretrievably broken and the respondent reasserted his denial.

The matter was heard December 8, 1975. The wife testified that her husband had on occasion struck her and threatened her with physical injury. She said that she had previously filed for divorce in August, 1973 and moved out of the family residence after threats of violence. The proceeding was dropped and she returned when her husband agreed to seek counseling and they did so, but he decided that there was nothing wrong with him and that counseling was pointless. The wife continued to seek counseling, but she “finally recognized there simply wasn’t any hope as far as I was concerned that he would ever change and I could not live the way we had been living * i£ 5⅝ J>

The husband testified that he did not want the marriage dissolved because he believed his “ * * * wife is under some sort of a problem with her health and it’s affecting her judgment on certain matters of emotion.” He stated that he would like to go to counseling. He said that in the preceding four years, his wife’s behavior had changed markedly. She stopped preparing meals, became a “lousy” housekeeper and failed to keep herself clean. He denied that he had quit the counseling service, saying that his wife had quit first.

At the conclusion of the husband’s testimony, his counsel stated that the husband was still “greatly desirous of trying to save his marriage * * *. If, however, the Court does find this marriage is irretrievably broken, Mr. Smith would then ask there be a legal separation entered instead of a Dissolution of Marriage at this time.” The husband repeated this request at a further hearing some ten days later.

The trial court found that the marriage had been irretrievably broken and entered a decree of dissolution. On this appeal, the first contention of the husband is that, by reason of the provision of Section 452.305 2., the trial court, upon his request for a decree of legal separation, was obliged, upon finding that the marriage was irretrievably broken, to enter a decree of legal separation rather than dissolution of the marriage. Section 452.305 2. provides: “If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form.”

This question was before the court in McRoberts v. McRoberts, 555 S.W.2d 682 (Mo.App.1977). In that case, the wife as respondent in dissolution proceedings prayed for a decree of legal separation. The court held that, in view of the provisions of Section 452.305 2., the trial court was required to grant the relief requested by the wife. There is no need to repeat the reasoning that led to that conclusion. Highly persuasive was the fact that, in the enactment of Section 452.305, the legislature changed the language of the Uniform Marriage and Divorce Act by deleting at the end of the provision the language “unless the other party objects.”

Respondent here suggests that the party referred to in Section 452.305 2. should be held to be the party filing the petition. Nothing in the language of the statute or its history supports this contention. Respondent does not suggest that the failure of the husband to make his request in his pleading precluded the relief. McRo-berts requires the reversal of the decree of dissolution and substitution of a decree of legal separation.

Inasmuch as upon legal separation, the court was empowered to divide the marital property (§ 452.330), enter an order for maintenance (§ 452.335) and for child support (§ 452.340), appellant’s assignments of error on those matters must be considered.

Appellant’s first complaint on this score relates to a tract of land in Tulsa, Oklahoma, valued by the husband at about $30,000 and the wife at $23,500, which the trial court ordered to be taken by the wife “as her sole and separate property.”

The property in question had been received by the wife and her brother as joint owners by either gift or inheritance from their mother. The Smiths purchased the brother’s share for $3,000. According to Mrs. Smith, she received $1,500 “cash settlement out of her father’s death” and that sum was applied to the purchase of her brother’s share. The other $1,500 was paid from the parties’ joint bank account. Mr. Smith claimed that the entire $3,000 came from that source. According to Mrs. Smith, the property was held in the joint names of the parties. “A couple of years ago my husband very pointedly requested that I have his name added to the title of it because he felt that if anything should happen to me that he didn’t want it to go to any of my family.”

Appellant argues that, under Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975), the fact that the property was jointly held makes it marital property in these circumstances unless it is shown by clear and convincing evidence that the transfer to the parties jointly was not intended as a gift to the husband. This contention is supported by Conrad v. Bowers, supra. Respondent’s answer is premised largely upon disagreement with the reasoning and result of the majority in Conrad v. Bowers. She relies upon the reasoning of the concurring opinion in Conrad of Judge McMillian, which disagreed with the majority on the issue here involved, i. e., the effect of a transfer to joint ownership by husband and wife of property which might otherwise have been separate property. This court has followed the reasoning and result of the majority in Conrad v. Bowers. See Forsythe v. Forsythe, 558 S.W.2d 675 (1977); Vadnais v. Vadnais, 558 S.W.2d 249 (1977).

Respondent’s statement that she transferred the property to her husband and herself as joint owners at his request does not rebut the presumption of gift to the husband in this case. Therefore, the trial court erroneously considered the Tulsa property the wife’s separate property. The question remains whether or not, as argued by respondent, the allocation of the property to respondent can be sustained on the grounds that she contributed the major share toward the acquisition of the property. This question must be considered in the light of the over-all division of marital property to which appellant objects as “unconscionable.” He also applies the same objection to the allowance for maintenance.

The marital property and the division made by the court were as follows:

1. The parties owned a four-bedroom residence purchased for $26,300 around 1967. The house, valued by the parties at from $38,000 to $45,000 at the time of trial, was subject to a mortgage on which some $16,-500 remained unpaid. The house was ordered held in the joint names of the parties until the child Roger, then three years old, was emancipated or reached his majority or the respondent remarried, whichever occurred first. Upon such occurrence, the property was ordered to be sold, with $10,-000 of the proceeds of the sale to be paid to the husband. The wife and children were to be permitted to live in the home until its sale. The wife was made responsible for paying the encumbrance, maintenance, taxes and insurance on the property.

2. Household furnishings, valued at $1,500 were awarded to wife.

3. Wife was awarded 1973 Vega and 1969 Pontiac autos and husband a 1974 Pontiac.

In addition the wife was awarded alimony in gross of $3,000, payable $100 per month. Child support payments for the minor children of $350 per month, payable by the husband, together with an obligation upon him to maintain health and accident and hospitalization insurance on the children until they reach the age of 23 years, are not questioned. The wife was also given $750 attorney’s fees.

The husband was an employee of the United States Weather Service, with a take-home pay of approximately $1,266 per month. The wife had been employed for two years by the Liberty Hospital as a laboratory technician, with a take-home pay of $512 per month. Mrs. Smith estimated that the cost of her operation of the household with the three children would be approximately $933 per month. She stated in detail the items making up that amount.

Appellant argues that the trial court’s division of the property gave the respondent property valued at between $39,000 and $50,000, whereas he receives only $10,-000 in the future and an automobile.

It is now well established that the marriage dissolution law does not require an equal division of the marital property. What is required is a fair and equitable distribution to be weighed in the light of the non-exclusive factors enumerated in Section 452.330 1. C_ _ L_ _ R_ _ v. L_ _ B_ _ R_ _, 555 S.W.2d 372, 375[3] (Mo.App.1977).

As above noted, the trial court erroneously considered the Oklahoma property respondent’s sole property. However, such error does not necessarily invalidate the trial court’s conclusion if the court ultimately reached a correct result. C_ _ L_ _ R_ _ v. L_ _ B_ _ R_ _, supra [1].

As respondent points out, insofar as the Oklahoma property was concerned, the respondent may be considered to have made the major contribution to the acquisition of that particular property, since she acquired one-half interest in it by gift and provided one half of the price of the other one-half interest. § 452.330 1. (1). However, that tract cannot be viewed separately insofar as the present argument is concerned, but must be viewed as one item in the total picture.

The evidence showed that approximately $10,000 had been paid toward the purchase price of the family residence, apparently from appellant’s earnings. It had increased in value since its purchase from the $26,300 purchase price to a minimum of $38,000. Section 452.330 1. (3) recognizes “the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children * * * in this case respondent. The device here employed with respect to the family home is one means of accomplishing this end. See In re Marriage of Heddy, 535 S.W.2d 276, 280 (Mo.App.1976).

Appellant’s monetary contribution toward the purchase of the house as well as his one-fourth share of the Oklahoma property, would be subject to offset for respondent’s contribution “as homemaker.” § 452.330 1. (1). Her duties in that regard were somewhat more onerous than usual because the first son born to the marriage, Stephen, was born with an opening in his spine, resulting in his having limited mental capacity and no control over his bladder and bowels.

As above noted, appellant’s “economic circumstances” (§ 452.330 1. (3)), insofar as earning capacity was concerned, were superior to those of respondent. Her efforts to improve her potential earning power by further education had been thwarted by her pregnancy with the couple’s youngest son.

Finally, appellant’s “conduct during the marriage” (§ 452.330 1. (4)) may be considered a negative factor in the division of the property, in view of the respondent’s testimony to his physical mistreatment of her.

Taking into consideration the factors above mentioned which weighed against equality in the division of the property, the result reached by the trial court, even when the Oklahoma property is considered marital property and also considering the $1,500 household goods awarded the wife, is not inappropriate and cannot be said to be contrary to law or lacking in evidentiary support. See Halbrook v. Halbrook, 557 S.W.2d 45 (Mo.App.1977).

Appellant suggests that his share of the proceeds of the sale of the residence should be as awarded in Ortmann v. Ortmann, 547 S.W.2d 226, 230[6] (Mo.App.1977) where the court held that the husband’s share upon sale of the residence should be measured as a percentage of the net sale proceeds, rather than a lump sum. See Klinge v. Klinge, 554 S.W.2d 474, 477[3 — 5] (Mo.App.1977). In accordance with that holding, the decree should be amended to provide that, in lieu of $10,000 upon sale of the residence, the appellant shall receive 35% of the net proceeds. Such allocation recognizes appellant’s contribution to the purchase price of the property.

Appellant also attacks the award of maintenance to the respondent. However, his attack does not demonstrate an abuse of discretion by the trial court. Appellant ignores the wife’s testimony as to her expenses in the maintenance of the household. She testified to expenses totalling $933.85 per month. Considering the allowance for support of the children, she anticipated that she would have $862 per month income. In the division of marital property, no income-producing property is given the wife. That factor distinguishes this case from In re Marriage of Neubern, 535 S.W.2d 499 (Mo.App.1976), the sole authority cited by appellant in support of his contention that the maintenance award is “unconscionable.” In Neubern, the wife was awarded a liquor business in which she had worked during the marriage and which provided her a source of income. That case is not authority for concluding that the trial court’s maintenance order is this case was an abuse of discretion. Appellant has not carried bis burden of demonstrating that the maintenance award in the case was an abuse of discretion on the part of the trial court.

The decree of dissolution of marriage is set aside and the cause remanded with direction to enter a decree of legal separation. The decree shall also be amended to provide that, upon sale of the residence at 603 Glendale, Liberty, Missouri, “Petitioner shall pay to Respondent 35% of the net proceeds of said sale,” rather than the sum of $10,-000.00. Otherwise the decree is affirmed.

Affirmed in part; reversed and remanded, with directions in part.

All concur.


author: PRITCHARD, Presiding Judge.

text:
    Iva M. THOMAS, Appellant, v. FIRST NATIONAL BANK OF RICHMOND, Respondent.
    No. KCD 28705.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      Robert M. Hill and David H. Miller, Richmond (Hill, Hill & Busch, Richmond, Bruce G. Heavner, Kansas City, of counsel), for appellant.
    James W. Benjamin, Kansas City (Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, A. V. McCalley, Richmond, of counsel), for respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

By the verdict of the jury appellant was denied her claim for personal injuries alleged to have resulted from a fall on an icy sidewalk upon which respondent had diverted water accumulated on its premises. The dispositive issue is whether there was sufficient evidence to support respondent’s given instruction as to appellant’s failure to keep a careful lookout.

Appellant, a lady about 84 years of age, did not testify. Respondent maintained a drive-in facility on its premises which sloped downward across a sidewalk. On the day in question the temperature, about 8:00 a. m., was slightly above freezing, and there was a slight drizzle. It had snowed the day before but it had been cleaned off. Respondent’s former employee, Jarik, testified that he and other employees applied snow or ice melt on what was left to control. There were snow piles which were melting and draining off of a retaining wall back through the driveway and on to the east on a walk which led to the Neal Rogers Automobile Agency. Because of a buildup of ice along the retaining wall, a path 2½ feet wide was cleared, and on each side of the path the sidewalk was icy with a 3 to 4 inch buildup close to the curb. Appellant had been to the bank, and its drive-in teller, Mrs. McBee, watched her walk down the driveway “very slowly and very carefully”, but she did not see appellant fall, or any accumulation of ice, snow or mud on the driveway. Jarik, upon being notified of the fall, saw appellant lying on the sidewalk, with her feet on the walk. He testified that the pavement was icy, but there was nothing to obstruct the view of the sidewalk so that a person could not see the conditions which there existed. Mrs. Georgia Beard testified that she saw appellant sitting on the sidewalk after she was told that a woman had fallen. Janet Roberts saw appellant fall, at which time she was out of respondent’s driveway, and she marked a photograph with an “x” as to the place of fall which is on the sidewalk. There was no testimony from her as to whether appellant was walking on the cleared path (she could not remember the cleared path) or on the ice adjacent to the path, but it was “real slicky” where she fell. Appellant’s son observed the area sometime after the fall, and saw frozen patches of mud, and ice on the sidewalk, where his mother was supposed to have fallen. A Mr. Scott testified that appellant did not have any problem with her vision that he knew of.

Appellant cites Janicke v. Hough, 400 S.W.2d 645 (Mo.App.1966); and Stegall v. Wilson, 416 S.W.2d 658 (Mo.App.1967), for her contention that the lookout instruction here had no evidence to support its submission. These two cases, and many others, involving moving vehicles, involve facts concerning time, speed and distance within which a party could have, by maintaining an effective lookout, avoided a collision by evasive action. Those situations have no application to the facts here — that of a slowly, very carefully, walking plaintiff. In the instant case, appellant, had she looked and observed any existent danger upon the surface which she contemplated to traverse, could have stopped, or changed her walking course, to avoid the dangerous area, if so, instantaneously, as the jury could have found. Although “It is generally said that a person walking [such as appellant here] is ‘not required to look down at his feet or the pavement at every step or to survey the pavement with a “critical eye”, or walk with his eyes “glued upon” the pavement.’ Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 108[7] (Mo.1973)”; Shackman v. Lincoln Property Co., 556 S.W.2d 50, 52[2] (Mo.App.1977), the law is also that where a duty to look exists, it is contributory negligence to fail to see what is plainly visible. Combellick v. Rooks, 401 S.W.2d 460, 463[2] (Mo. banc 1966). In 65A C.J.S. Negligence § 120(1), p. 51, the general rule is stated: “The duty to exercise ordinary care to avoid injury includes the duty to exercise ordinary care to observe and appreciate danger or threatened danger, and contributory negligence will be found where it appears that plaintiff should or could have discovered the danger, and avoided it, by the exercise of ordinary care.” In Burch v. Moore’s Super Market, Inc., 397 S.W.2d 590 (Mo.1965), a case involving alleged ice accumulated on a parking area, the court said, loe. cit. 594[5], “That plaintiff was guilty of contributory negligence as a matter of law should not be declared in a situation such as this unless the danger involved was ‘so obvious and glaring’ that a reasonably prudent person would not use the facility.” In this ease, there is evidence that there was nothing to obstruct the view of the sidewalk and to the effect that appellant had no impairment of vision. There was evidence from appellant’s son that sometime after she fell, he saw frozen patches of mud and ice on the sidewalk; Janet Roberts testified it was “real slicky” where appellant fell. Jarik testified that the pavement was icy. From these bits of evidence the jury could find that there were observable existent conditions which made walking hazardous, which in turn raised a jury issue as to whether appellant kept a careful lookout. Compare Helfrick v. Taylor, 440 S.W.2d 940, 945[6, 7] (Mo.1969), where the evidence disclosed that as plaintiff entered the vestibule she did not observe what it was that caused her to fall, and the court held, “ ‘On the record presented the issues of negligence and contributory negligence were for the jury.’ ” There was of course no evidence from appellant here as to where she fell, or as to her observance, but the other evidence presented permitted the jury to find that there were slick areas on the sidewalk which were visible to a person exercising ordinary care to keep a careful lookout. The court did not err in giving the instruction as to appellant’s failure to keep a careful lookout.

Respondent urges that appellant failed to make a submissible case of its negligence that it was snow or ice from its premises which caused appellant’s fall on the public sidewalk. It is unnecessary to rule that contention in view of the evidence that the jury could find appellant’s contributory negligence above discussed, which rules the case.

Appellant lastly contends that there was error in the giving of Instruction No. 4 as to her contributory negligence in its submission that respondent was relieved of liability “whether or not defendant was negligent” (emphasis appellant’s) because that instruction should have hypothesized the same language as the verdict directing Instruction No. 3, that respondent’s standard of liability was the failure to exercise “ordinary care”. Appellant cites Brewer v. Swift and Company, 451 S.W.2d 131 (Mo.1970), holding that a converse instruction [not an affirmative converse instruction requiring independent evidence to support it] must be set out in the same terms as the verdict director. The instant instruction is, of course, not a converse instruction, but is a contributory negligence instruction requiring evidence to support it. Negligence was defined in Instruction No. 5, as the “failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.” Instruction No. 4 was taken from MAI 32.01 verbatim. It was approved in the Helfrick case, supra, and in Fehlbaum v. Newhouse Broadcasting Corporation, 483 S.W.2d 664, 666 (Mo.App.1972). No error appears, and the point is overruled.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri ex rel. Larry W. MOORE, Respondent, v. STATE BANK OF HALLSVILLE and Waldo Mottaz, Appellants.
    No. KCD 28847.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      Thomas A. Vetter, Dale C. Doerhoff, Cook, Vetter & Doerhoff, Jefferson City, for appellants.
    William D. Powell, Columbia, for respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J, and DIXON, J.
   SWOFFORD, Chief Judge.

This is an appeal from a peremptory writ of mandamus issued by the court below directing the State Bank of Hallsville (Bank) and Waldo Mottaz (Mottaz), its majority stockholder and president, that Larry W. Moore (Moore), a stockholder and director of the Bank, be given full access to the Bank’s corporate books and records for the purpose of examination and inspection during regular banking hours.

The Bank and Mottaz raise a single point on this appeal supported by four subpoints. They assert, in summary, that the trial court erred as a matter of law in concluding that Moore had an unqualified right to inspect the Bank’s corporate records during regular banking hours in that; (A) it was error to declare the law to be that a director of a banking corporation has an unqualified right to inspect books and records made prior to his election as a director; (B) it was error as a matter of law to permit such inspection to be conducted during regular banking hours when such a right of inspection should be “at some reasonable time”; (C) the judgment of the trial court was not supported by any substantial evidence; and, (D) it was error as a matter of law not to limit such inspection by place and time because such right should be exercised during a time certain, on the premises of the bank and should not extend to “older” books and records without a showing of need to inquire into a particular matter. These points are somewhat overlapping and repetitive as will appear from the discussion which follows.

The facts in this case were presented to the court below by means of written stipulations, exhibits and affidavits and are virtually undisputed. The Bank is located in the town of Hallsville, a community of approximately 750 persons, in Boone County, Missouri, and is chartered under state law. It has four full-time employees, including Mottaz, who is president. It has a five-member board of directors which includes Mottaz, his wife and brother. On December 11, 1973, Moore, a certified public accountant, acquired ownership of capital stock in the Bank and on January 12, 1974, he was elected to the board. Soon after his election he requested that he be given access to the Bank’s books and records, and thereafter he made repeated requests both orally and in writing and by way of proposed resolutions to the board that he be accorded that right. The record shows at least 21 such requests, which were ignored, or in the case of the board resolutions, either defeated by vote, tabled or failed for a lack of a second.

On September 24, 1974, Moore was allowed to inspect the stock register or transfer book and the minute book of the board. On October 21,1974, Moore filed this action, and on December 17, 1975, the Bank and Mottaz entered into a stipulation that Moore would be given access to all books and records made subsequent to his election to the board. This apparently did not satisfy Moore, however, and he persisted in this action with the results above noted. There has never been, and is not now, any claim that Moore is not a duly qualified, elected and acting member of the Bank’s board of directors.

Under these facts this appeal narrows to the sole issue of whether or not a director of a banking institution has a right of access to the corporate books and records made and reflecting the corporate activities prior to his election to the office of director, and if so, what conditions should be placed upon the exercise of such right by the trial court.

The Bank and Mottaz base their claim that the writ was not supported by any substantial evidence upon the fact that they have not denied Moore access to their books and records (as found by the court below) since they have agreed in writing that such access will be given to those books and records reflecting the Bank’s operation since his election as director and that thereby this issue is moot and unsupported by the evidence. This argument falls of its own weight upon this record because the Bank and Mottaz have since the outset of this dispute and since their stipulation and agreement denied Moore access to any other records (except the minute book and stock register above mentioned) with an amazing and persistent vigor and resolve. Their agreement and stipulation is obviously not satisfactory to Moore, who refuses to accept such restricting access. Since Moore was a director and his access to certain records was and is withheld, there was substantial evidence to support the trial court’s findings, and we must uphold such findings. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

Appellants’ Point 1(C) is ruled against them.

Directors of a corporation are just what the title implies. They are the directors and managers of the corporation. Further, they act in their capacity as agents and trustees for the corporation and shareholders, and, in the case of a banking corporation, also for the depositors. Bent v. Priest, 86 Mo. 475, 483 (1885). Theirs is a fiduciary relationship. Charged with these responsibilities, they must perform them based upon informed judgment. It becomes therefore axiomatic that a director have access to information contained in the corporate books and records. A director, therefore, at common law, has been held to have an absolute and unqualified right to examine such records. State ex rel. Watkins v. Cassell, 294 S.W.2d 647, 655[7] (Mo.App.1956) and cases cited therein. Such rule has received wide acceptance in other jurisdictions. 19 C.J.S. Corporations § 780; 18 Am.Jur., Corporations, Section 183, pp. 712, 713; 5 Fletcher Cyc. Corp., Section 2235, p. 872.

Where, as here, this right of inspection is sought to be enforced by mandamus, a writ of discretion and not of right, the court may temper the absolute right by conditions to avoid unreasonable or oppressive interference or disruption of corporate business. State ex rel. Watkins v. Donnell Mfg. Co., 129 Mo.App. 206, 107 S.W. 1112 (1908); State ex rel. Wilson v. St. Louis-San Francisco Railway Co., 29 Mo.App. 301 (1888). The mere possibility of abuse or misuse of the right does not afford any ground for its denial or restriction, 5 Fletcher Cyc. Corp., Section 2245, p. 897, and the factors which motivate a director in the exercise of this right are not the proper subjects of judicial inquiry, State ex rel. Spinney v. Sportsman’s Park and Club Ass’n, 29 Mo.App. 326 (1888); State ex rel. Holmes v. Doe Run Lead Co., 178 S.W. 298 (Mo.App.1915), and a presumption exists that inspection of books and records by a director is made in good faith and with honesty of purpose. Watkins v. Cassell, supra, at 652[4]. Where enforcement of inspection rights is sought through mandamus, those objecting to such inspection bear the burden of overcoming such presumption. State ex rel. Jones v. Ralston Purina Company, 343 S.W.2d 631, 641[9] (Mo.App.1961) appeal transferred 358 S.W.2d 772 (Mo. banc 1962). Appellants failed to introduce evidence of any kind that Moore’s desire to inspect the Bank’s books and records was motivated by any improper reason; that his inspection would result in any unreasonable or disruptive interference with the Bank’s business or would be harmful to the interests of the stockholders. Absent such affirmative showing on this record, it cannot be said that the trial court exceeded its jurisdiction or abused its discretion by issuing its writ of mandamus. If in the course of the execution of the mandate of the writ adjustments or modification of the mechanics as to time and place are needed, the matter can be presented to the trial court for proper action. Presumably all parties are interested in avoidance of unnecessary disruption of the Bank’s business.

Appellants Points IA, B and D, are ruled against them.

The writ of mandamus was properly issued and the judgment is affirmed.

All concur.


text:
    F. V. GREENE, Respondent, v. KELLY ENTERPRISES, INC., a corporation, Appellant.
    No. KCD 28865.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      Ronald A. Barker, Andrew A. Krohn, Princeton, for appellant; Barker & Krohn, Princeton, of counsel.
    R. Max Humphreys, Trenton, for respondent; Miller, Humphreys & Seidel, Trenton, of counsel.
    Before PRITCHARD, P. J., and SWOP-FORD, C. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

Respondent received judgment for $6,500.00, rendered upon the verdict of a jury, upon his claim for compensation under an oral employment contract for a fixed term at $500.00 per week.

Appellant was the owner of a lake development in Mercer County, Missouri, called Lake Marie. Respondent came there in early March, 1974, and remained there until the second or third week in July, 1974, being paid $2,500.00 of his claimed $9,000.00 total due, for administering the subdivision. Issues presented principally relate to the admissibility of evidence which respondent adduced in support of his claim.

Appellant contends that error was committed in the admission of a corporate resolution of Crocker Investment Corporation, which respondent admitted to be a copy, because there was no proper foundation laid, and it violated the best evidence rule. The document recites that pursuant to a special meeting of the corporation’s board of directors on March 1, 1974, “That F. V. Greene be and is duly authorized by this Corporation to act for and in behalf of its wholly owned subsidiary, Kelley Enterprises, Inc., in the capacity of a Vice President of the same and as such may borrow monies, execute deeds, sign checks, accept mortgages and otherwise act as a responsible officer.”

Appellant, in its counterclaim (upon which a verdict was directed), alleged that it is a Missouri corporation in the business of selling the real estate of a subdivision known as Lake Marie located at Mercer, Missouri, and “2. That between March 1, 1974, and July 12, 1974, Plaintiff acted in the capacity of a Vice-President of Defendant and while acting in said capacity, Plaintiff caused certain contracts to be entered into by Defendant for the sale of portions of Defendant’s real estate.” Respondent testified that he had the original of Exhibit 2 in his possession. There was no evidence that it was unavailable for any reason, so as to come within the exception to the best evidence rule as set forth in Kennedy v, Boken Associates, Inc., 381 S.W.2d 39, 41, 42[1, 2] (Mo.App.1964). Because of appellant’s counterclaim allegations, the portion of Exhibit 2, relating to respondent to be a vice president of appellant, is judicially admitted, M.F.A. Central Cooperative v. Har- rill, 405 S.W.2d 525, 529[4] (Mo.App.1966), and that matter became subject to the doctrine of curative admissibility. Sigman v. Kopp, 378 S.W.2d 544, 547 (Mo.1964); Young v. Dueringer, 401 S.W.2d 165, 167 (Mo.App.1966), where the court quoted from Dorn v. St. Louis Public Service Co., 250 S.W.2d 859, 865 (Mo.App.1952), ‘“An objection to the admission of evidence is waived where the same or similar evidence has been adduced [here judicially admitted] by the party objecting.’ ” [Brackets added.]

Appellant’s Points II and III relate to the giving and refusal of instructions. These will not be noticed because the instructions are not set forth in appellant’s brief, in violation of Rule 84.04(e). See Cole v. Evans, 546 S.W.2d 748, 750[2, 3] (Mo.App.1977), and cases cited.

The counterclaim judicial admission does not cover matters as to how respondent became employed by the corporate appellant. The establishment of this element of respondent’s case depends in part upon the declarations of a Mr. McCollum, president of Crocker Investment Company, which owned appellant corporation, the admissibility of the declarations being challenged by it in Point IV. Respondent testified, without objection, that he had been employed in Arizona by Consolidated Mortgage Corporation, a land developer, of which Mr. McCollum was a principal. When he came to Missouri he presented Exhibit 2, the corporate resolution, which had been delivered to him by Mr. McCol-lum. On arrival, respondent testified he was working in appellant’s office with Mary Berndt, its secretary, who wrote the checks, $500.00 per week to pay him, and that he took orders from Mr. McCollum. Mr. Ronald L. Barker, attorney at law, testified he had been treasurer, and was the corporate agent for appellant, and he kept its corporate records. In 1972, the corporation was owned by a Ken Johanson, and there was a contract signed to purchase it in Phoenix, Arizona, between Johanson and A1 McCol-lum. Upon McCollum’s default, Johanson took back the corporation sometime in June, 1974.

Mary Berndt testified, without objection, that she had been employed by appellant since 1968, at Lake Marie, at which time she took orders from a Mr. Kelly. In 1971, she took orders from Mr. Johanson, and from October, 1973, to the spring of 1974, from Mr. McCollum, during which time she was secretary-treasurer of appellant. During this time respondent was vice president, “and Mr. McCollum I think was President.” To her knowledge, those two were all the officers of appellant. Mr. McCollum, she thought, gave her authority to sign checks when he was on the property in 1973. She had a document like Exhibit 2 appointing her secretary. This testimony is sufficient for the jury to infer that McCollum was president, an officer, of appellant. He is tied in to appellant through his delivery of Exhibit 2 to appellant. Respondent’s testimony as to what Mr. McCollum told him when they sat down together as to what his salary would be and what work he would do for appellant is admissible against it, because Mr. McCollum was clearly shown to be its managing agent. His statements were relative to his power to transact necessary business for the corporation. See Willsey v. W. C. Porter Farms Company, 522 S.W.2d 29, 32[3, 4] (Mo.App.1975); and Cline v. Carthage Crushed Limestone Company, 504 S.W.2d 102, 114[12-15] (Mo.1973), “ ‘A president of a corporation has incidental authority to make declarations and admissions binding upon his corporation, in matters which are within the scope of his ordinary duties; * * *,’ 19 C.J.S. Corporations § 1071, p. 608.” Point IV is overruled.

Point V relates to contended error in the admission of Exhibit 1, which was a copy of a letter written by respondent to appellant’s attorney. This letter could only bear upon respondent’s claim for interest after demand (§ 408.020, RSMo 1969), and the jury did not allow him any interest, so there could be no prejudice to appellant. Compare Thompson v. Bi-State Transit System, Inc., 458 S.W.2d 903, 905[5-7] (Mo.App.1970). Point V is overruled.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas LORA, Defendant-Appellant.
    No. KCD 28970.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Assistant Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals his conviction for robbery in the first degree. Defendant raises two issues, that the evidence was insufficient and that the trial court erred in failing to declare a mistrial when defendant alleges the jurors heard a portion of the evidence concerning the application of the Second Offender Act.

Because sufficiency is raised, a statement of facts is required. Defendant and two women visited the apartment of a John Morelanco, the victim, in the Wayne Miner Apartment complex in Kansas City. More-lanco had known defendant and his family for 15 to 20 years. The victim lived in apartment 607, defendant in apartment 609 in the same building. The group arrived at the victim’s apartment at about 7:00 or 8:00 in the evening and spent the evening drinking and watching television. The women left just after 10:00, and defendant left shortly thereafter. Morelanco went to bed and was awakened sometime between midnight and 1:00 a. m. by a banging at his door. Morelanco answered the door and saw defendant who instructed Morelanco to “back up” into the apartment. Defendant was carrying a nickel plated gun. Defendant backed Morelanco into his bedroom which defendant began to ransack. Defendant forced the victim to remove the mattress from his bed. The victim normally kept money under his mattress; and on this particular evening, he had seventy dollars under the mattress which was exposed when the mattress was removed.

At this point the two men began scuffling over the gun, and the victim called for help. While the two men were struggling over the gun, defendant told the victim that he was going to shoot him. Soon thereafter, defendant’s brother Raymond entered the apartment and inquired what was wrong. The victim replied that, “Your brother is robbing and misusing me.” Defendant instructed his brother to restrain the victim in the front room, which Raymond accomplished by standing between the door and the victim. The victim sat in his living room for about fifteen minutes while defendant was searching through his bedroom, but then he knocked Raymond away from the front door and proceeded to contact the security officers at the apartment complex. When the victim and the security officers returned, the seventy dollars was missing.

Sharon Mitchell, who lived in the apartment directly below the victim’s, testified that on the night in question she heard some scuffling in the apartment above her and that she heard Morelanco cry for help.

The principal thrust of the defendant’s complaint with respect to the sufficiency of the evidence is that because there was no direct evidence of the taking of the money, the circumstantial evidence rule applies. Defendant argues that for the prosecution to meet its burden of proof all of the inferences from the circumstantial evidence must be consistent with each other and irreconcilable with any reasonable theory of defendant’s innocence. Defendant relies upon State v. Taylor, 324 S.W.2d 643 (Mo.1959) and State v. Sallee, 436 S.W.2d 246 (Mo.1969). These eases indeed state the rule of circumstantial evidence in the form set forth above and relied upon by the defendant. Later cases have defined more narrowly the application of the circumstantial evidence rule. The rule requiring that all inferences must be consistent with each other and irreconcilable with any reasonable theory of defendant’s innocence has been limited to situations where the entire proof of defendant’s participation in the crime is circumstantial. State v. McClure, 504 S.W.2d 664 (Mo.App.1974); State v. Johnson, 533 S.W.2d 629 (Mo.App.1976). The statement of the facts recited indicates that the victim was familiar with the defendant, that the victim kept money under his mattress, and that the defendant forced the victim to remove the mattress, and the money was exposed. The defendant had threatened the victim with a pistol, and the defendant’s brother restrained the victim while the defendant searched the bedroom. When the victim returned to his apartment immediately after these events, his money was missing. The circumstances set forth above indicate clearly that a reasonable inference arises that the defendant obtained the money while his brother detained the victim in the adjoining room. The defendant himself admits in his brief that the State’s case was only “partially circumstantial.” It is not essential that a victim be aware of the robbery or the taking providing force is used to render the victim unaware of the taking. State v. Williams, 548 S.W.2d 227 (Mo.App.1977).

State v. Hampton, 509 S.W.2d 139 (Mo.App.1974), is squarely in point. In that case, there was no direct testimony that the defendant had taken money from the cash drawer of the store which had been robbed. The court pointed out that the evidence established money was in the cash drawer before the incident, that the defendant was seen near the cash drawer, that the defendant was armed and appeared to intend to take the money, and that the drawer was found empty a half hour after the incident. The Hampton court held this was sufficient to support the jury verdict of guilty. Comparing the record in the instant case with the evidence and ruling in Hampton makes it obvious the evidence is sufficient to support the verdict in this case.

The second point of the defendant is that the trial court erred in failing to declare a mistrial after two members of the jury entered the courtroom during the Second Offender Act hearing. Defendant relies upon State v. Martin, 506 S.W.2d 473 (Mo.App.1974). In Martin, the judge inadvertently informed the entire jury of the defendant’s prior convictions, and the court, on appeal, reversed. In Martin, it was abundantly clear that the jury became aware of the prior convictions. In the instant case, with respect to the claim of the defendant, the court, aware of the potential for a claim of error and of the necessity for recording the event, made the following statement at the time the incident occurred:

“THE COURT: Well, for the record, the Court noted two jurors, accompanied by the bailiff, merely stuck their heads in the door, came in the door merely for enough time to pick up their hats from the rack which is right by the door. And they were not at all in the courtroom except right by the door, and that just a matter of seconds, and there’s nothing to indicate that the jurors were aware at all as to what was transpiring. I don’t feel that there is any prejudice in the case due to that interruption.”

It is clear from the court’s statement that the court found that the jurors did not obtain information concerning the defendant’s prior convictions. In the face of that finding, the assertion of counsel, that the jurors knew of the defendant’s prior conviction, does not prove itself. State v. Dowe, 432 S.W.2d 272, 275 (Mo.1968). The denial of a motion for a mistrial is a discretionary ruling. State v. Heather, 498 S.W.2d 300 (Mo.App.1973). The rule in Anderson v. Robertson, 402 S.W.2d 589 (Mo.App.1966) that a discretionary ruling is presumed to be correct and the burden of showing abuse is cast upon appellant applies to criminal cases. State v. Edmonds, 468 S.W.2d 685 (Mo.App.1971). Upon the basis of the court’s specific finding that the jurors did not obtain information concerning the defendant’s prior conviction, the defendant has failed to show an abuse of discretion by the trial court in overruling the motion for a mistrial.

Judgment and conviction affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Guy Daniel SMITH, Appellant, v. COOK PAINT & VARNISH CO. and the Travelers Insurance Company, Respondents.
    No. KCD 29045.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      Thomas M. Howell, Kansas City, Elwyn L. Cady, Jr., Independence, for appellant.
    Gary E. Lowe, Jack B. Robertson, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The employee Smith made claim against employer Cook Paint and Varnish Company for accidental injury to the eye and other bodily functions from exposure to anhy-dride chemicals. The Industrial Commission denied benefits, the circuit court affirmed, and the claimant appeals.

At the time of the event, the employee was a foreman and had worked in the resin manufacture department for more than twenty-five years. The product was made from a process in which phthalic and maleic anhydrides in solid form were liquefied and pumped at high temperature under pressure through a system of pipes to kettles to be cooked.

In the early morning of January second, one of the pumps in the phthalic anhydride system malfunctioned from leakage of the chemical which solidified around the pump. It was a recurrent phenomenon which the claimant had confronted many times before. The pump was located in a tunnel in the basement. The claimant entered the tunnel to free the machine but was enveloped in clouds of phthalic crystals and so had to remove the face mask he wore in order to proceed with his work. After an effort of about twenty minutes, the claimant withdrew from the tunnel, but then returned for another five minutes to conclude the task. An hour later he became nauseated and developed chest pains. Then, during the week he began to develop pains in the thighs and calves of his legs.

The claimant assumed his trouble was arthritis and sought medical treatment for that malady. He was treated for that condition by medication first by one doctor and then another. His leg complaints did not abate, so the claimant was admitted to the Veterans Hospital where he remained from February 26th until March 7th. A biopsy of the calf muscle diagnosed his condition as polymyositis. During that internment he experienced an occasional loss of vision in the left eye. On May 14th, after the claimant had returned to work, and while on a regular shift he suddenly and painlessly lost the sight of his right eye. He consulted Dr. Deligeorges who diagnosed the condition as a central retinal occlusion.

The main issue before the Industrial Commission was whether the exposure to either or both of the anhydrides — phthalic or maleic — was a cause of the central retinal occlusion. It was the theory of the claimant that the exposure to these chemical fumes was an accident which aggravated a preexistent collagen disease [malady of the connective tissue] and resulted in the central retinal occlusion in his right eye.

The first point on appeal contends that the Industrial Commission applied an erroneous standard of causation to deny compensation. This contention focuses upon one finding by the referee adopted by the Industrial Commission:

I have been unable to find the necessary convincing evidence that the two chemical substances known as phthalic anhy-dride . . . and maleic anhydride . were the medically competent producing cause of the injuries sustained by the Claimant solely as a result of the exposure on the second day of January, 1970.

The claimant contends that this finding discloses the referee [and the Commission] found only that the exposure to the chemicals was not the sole cause of his blindness but failed to consider whether or not, in concurrence with the pre-existent collagen disease, it was a contributing cause of the injury.

The law compensates industrial injury which follows as a legitimate consequence of an accident. An accident need not be the sole or direct cause of injury to be compensable; it is enough that the accident be “an efficient, exciting, superinduc-ing, concurring or contributing cause.” Manley v. American Packing Co., 363 Mo. 744, 253 S.W.2d 165, 169[3] (Mo.1952). Thus, it is immaterial to recovery that a particular disability was not expected from an accident or cannot be directly traceable to that event. It is enough if the accident produced the final injury. Inquiry as to whether the result was natural or probable does not properly arise. Fielder v. Production Credit Association, 429 S.W.2d 307, 316[16, 17] (Mo.App.1968). This legal conclusion of cause and effect, of course, ordinarily depends upon evidence of medical cause given by physician witnesses, and on this claimant bears the burden of proof. Griggs v. A. B. Chance Company, 503 S.W.2d 697, 704[6] (Mo.App.1974).

The findings of the Commission on the evidence are to be read as a whole and so as to validate the award where such a construction is reasonable. 100 C.J.S. Workmen’s Compensation § 636, p. 936. A fair understanding of the findings made by the referee and adopted by the Commission imports the decision that claimant failed to prove that the exposure of January second to the anhydrides, phthalic and-or maleic, produced the retinal occlusion, either by direct cause or as an aggravation of the pre-existent collagen disease. The term solely which the claimant indicts antecedes “as a result of the exposure on the second day of January” and does not bear on the precedent “medically producing cause of the injuries.” That term, taken in the context of decision and award, does not express a standard of medical cause but merely determines that legal cause for the injury was not shown. Put simply: the claimant did not prove that the injury was caused by the employment. This surmise is confirmed by the four successive findings which evaluate that the physician testimony did not prove medical causation between the exposure and the injury.

The claimant argues also that the term “necessary convincing evidence” employed in the finding to deny compensation demands a more rigorous proof than the mere preponderance of the evidence the law actually imposes. The claimant cites § 2498 of the Wigmore treatise. That same section [pp. 325-326] acknowledges that proof which “satisfies” or “convinces” is used in decisions as equivalents of proof by a “preponderance.”

The second point on appeal contends that the award of the Industrial Commission which denied compensation was not supported by substantial and competent evidence. The claimant excerpts a pastiche of testimony to show that his witness Nichols, forensic pathologist, gave the only competent expert evidence on the issue of causation — and to show, also, that the employer witnesses either gave opinion on imperfect premises, or were altogether biased.

As to the contention of qualification for opinion, the claimant insists that employer witness, ophthalmologist Deligeorg-es, had not seen a ease where a pre-existent collagen disease, exposure to anhydrides, and central retinal occlusion coincided, and so could not express a valid conclusion as to causation. It is clear, however, that witness Nichols for the claimant admitted that neither had he. The claimant also contends that the testimony of employer witness Kelly, Medical Director for Monsanto Chemical Company, was biased towards producers of chemicals, and that his opinion was in any event, a response to a contrived and imperfect hypothetical question. The claimant does not suggest any particular bias of motive or inadequacy of examination. As to the first criticism, the assessment of ulteri- or motive or other credibility of the witness, of course, rests with the trier of fact, and not with this court [ Williams v. S. N. Long Warehouse Company, 426 S.W.2d 725, 733 [5-9] (Mo.App.1968)]; as to the second, the point is not preserved for review.

The evidence of medical causation came from three witnesses. The ophthalmologist Deligeorges, who treated the claimant for his loss of vision, testified for the employer that his opinion, on reasonable medical certainty, was that there was no causal relationship between the exposure to the anhy-drides and the retinal occlusion — even on the assumption that there was a subsistent collagen disease process, which he denied. Dr. Kelly testified that the anhydrides were irritants to the nose, eyes and chest — especially when inspired in concentrated form or as hot fumes. In his almost forty years of experience in the treatment of exposure to maleic and phthalic anhydrides, he had never seen a single case of central retinal arterial occlusion in any employee. Nor had he ever heard of an aggravation of rheumatoid arthritis or polymyositis by exposure to these chemicals. His search of the Toxicon Computer Network, a data bank of medical periodicals for the past twelve years, disclosed no connection between anhydride chemicals and polymyosi-tis or central retinal occlusion. The witness concluded with the opinion that there was no causal relation between the exposure of the claimant to the anhydrides and his visual and muscular disabilities.

The claimant relies on the testimony of pathologist Nichols for the proof of causation. The direct examination elicited only that “on the predicate you have laid there is probably a reasonable probability of cause and effect.” Cross-examination disclosed the uncertain basis for even this opinion. He admitted that the causes of the collagen disease process are not known, and named four specific stimuli which aggravate that condition — the anhydrides not among them. He admitted also as to no specific knowledge of the chemical properties of the anhy-drides and that the basis for his claim that the chemicals are noxious was the warning printed on the bottles in the chemical department. He admitted also that he knew of no case where the anhydrides were a causative factor in a central retinal occlusion or contributed to the blindness of someone with a pre-existent collagen disease.

This evidence, taken most favorably to the decision of the Commission, reasonably supports the denial of compensation. The judgment is affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Billy Wayne SCHRADER, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29092.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    John B. Schwabe, II, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Walter 0. Theiss, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Judge.

Billy Wayne Schrader filed a motion under Rule 27.26 to vacate sentences imposed following a plea of guilty to burglary second degree and stealing. The court denied the motion and this appeal follows.

Schrader alleges error on the part of the court in the following: (1) failing to make a finding of fact on a contested issue; (2) refusing to disqualify himself; (3) refusing to take the stand to testify; (4) allowing Schrader’s original counsel in the courtroom; and (5) in finding Schrader had adequate assistance of counsel.

In his 27.26 motion, Schrader alleged he was denied effective assistance of counsel because his counsel misled him by falsely stating that a deal had been made for the sentences on the two charges to run concurrently when in fact the sentences assessed were consecutive. ■ He further contended his sentence was unlawfully increased when, after a probation violation, the sentences were for the first time made to run consecutive.

Schrader testified at the hearing on the motion that he entered a plea of guilty but his attorney at that time, the public defender of Boone County, told him a deal had been made and the sentences on the two charges would be concurrent. He testified he remembered the guilty plea hearing and stated he remembered hearing everything except he did not remember the judge stating the sentences were to be served in consecutive fashion.

Mr. Mays, the public defender, denied he had made any representation to Schrader as to what sentences he would receive. Mays further stated his notes made at the guilty plea hearing reflected the sentences on the two counts were to run consecutively. During the hearing on this motion, the court had the court reporter read his untran-scribed notes of the sentencing at the guilty plea hearing which revealed the court stated the sentences were to run consecutively.

Schrader first contends the court failed to make a finding on whether or not the judge stated the sentences were to run consecutively. Contrary to this contention, the findings of fact made by the court reflect the court found the sentences were stated to be served consecutively at the time sentence was imposed. The court did make a finding on this allegation and the point is without merit.

Schrader next contends the judge should have disqualified himself when the judge requested the reporter to read his notes made at the time of the guilty plea hearing. No objection was made to this procedure. Schrader contends the authenticity of the notes then came in issue which required the judge to become a witness. In his next point, which may be considered with the one under discussion, Schrader contends the judge wrongfully refused to take the stand to testify as to the authenticity of the records of the guilty plea hearing.

It has long been settled that a court not only may, but should, take judicial notice of its own records at prior proceedings which involve the same parties and which involve basically the same facts. Hardin v. Hardin, 512 S.W.2d 851, 854[2, 3] (Mo.App.1974). Here the court did nothing more than take judicial notice of its own records reflecting what took place at the guilty plea hearing. There was no requirement for the judge to disqualify himself nor to take the stand to testify regarding such records.

Schrader next contends the court erred in failing to exclude Mr. Mays from the courtroom during the hearing on this motion. No request for exclusion of witnesses had been made, but while the hearing was in progress, Mr. Mays entered the courtroom. At this time counsel for Schrader requested Mr. Mays be excluded. The court refused.

In Brown v. State, 485 S.W.2d 424, 430[13, 14] (Mo.1972), it was noted that officers of the court are generally not subject to the exclusionary rule of witnesses. The court further observed that the enforcement of the exclusionary rule is a matter which rests within the sound discretion of the court. Here Schrader fails to demonstrate any abuse of discretion.

Schrader finally contends the court erred in finding that Schrader’s counsel was competent in his representation. Schrader does not point to any evidence to demonstrate any incompetency on the part of Mr. Mays but argues the court should have found that Mays told Schrader before his guilty plea that a deal had been made and for that reason the guilty plea was actually involuntary. In its findings the court stated it did not believe the testimony of Schrader on his conversation with Mays pri- or to the guilty plea.

Of course, the credibility of the witness was for the trial court. Bonner v. State, 535 S.W.2d 289, 292[5] (Mo.App.1976). Here the court did not believe Schrader and this was certainly within the province of the court. No evidence was introduced to show any inadequacy in the conduct of Schrader’s counsel.

The findings of fact and conclusions of law are not clearly erroneous and the judgment is affirmed. Rule 27.26(j).

All concur.


author: DONALD B. CLARK, Special Judge.

text:
    Elmer W. BENNINGFIELD and Theda Benningfield, Appellants, v. AVEMCO INSURANCE COMPANY, Respondent.
    No. 29332.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Max Von Erdmannsdorff, Von Erd-mannsdorff, Zimmerman, Gunn & Trimble, Kansas City, for appellants.
    Morris J. Nunn, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM, J., and CLARK, Special J.
   DONALD B. CLARK, Special Judge.

Appellants appeal the order of the trial court sustaining respondent’s motion for judgment on the pleadings and dismissing plaintiffs’ petition. Facts necessary to address the controversy are not in dispute, the issue being one of application of contract provisions of respondent’s insurance policy to conceded facts.

During the relevant time period, respondent had issued to appellants and there was in force Aircraft Policy No. AVI-0115 47 insuring a 1965 Cessna Skyhawk owned by appellants. While operating a borrowed aircraft identified as a 1963 Musketeer, appellants damaged the plane in an accident and were sued by the owners for repair costs. Respondents refused to afford a defense. The expense incurred by appellants for settlement of the claim and defense costs are the sums here in controversy.

Insuring agreement A of respondent’s policy provided indemnity to the insureds for sums which they became legally obligated to pay for injuries to persons and damage to property within stated limits arising out of the use of the aircraft. By policy definition, aircraft means the aircraft described in the policy which by the policy declarations was the 1965 Cessna.

Not included among risks insured were the following:

“This policy does not apply * * * under coverage A to injury to or destruction of property owned or transported by the insured or property rented to or in charge of the insured * * *

Insuring agreement IV of the policy extended coverage for property damage and other risks with respect to other aircraft subject to certain conditions and provided further that the named insured be one individual who owned the aircraft described in the declarations.

Appellants contend that insuring agreements affording liability coverage for the described aircraft and other aircraft as well as the exclusion applicable to property in charge of the insured are ambiguous, that the construction of the contract thereby necessitated should favor the insured and that priority should be accorded in the order in which the paragraphs appear in the policy. As the exclusions follow the delineation of coverages, this theory would require that exclusion clauses be disregarded.

Appellants’ argument fails initially for the reason that the subject policy by its terms affords no coverage whatever to appellants for use of other aircraft. Such coverage is extended only “If the named insured is one individual who owns the aircraft described in the declarations”. Named as insureds under the policy are appellants, Elmer W. Benningfield and The-da Benningfield.

Irrespective of the foregoing, however, any extension of liability insurance to other aircraft afforded no coverage for damage to the substitute aircraft itself. Applicable is the quoted exclusion of damage to property in charge of the insured. In construing similar language used in an automobile policy, this court has previously held in Northwestern Mutual Insurance Co. v. Haglund, 387 S.W.2d 230 (Mo.App.1965), that the exclusion of damage to property in charge of the insured is clear and unambiguous and excludes liability under the policy for collision damage to the property while in the custody and being operated by the named insured as a permissive user. From Exhibit A (the petition in damages filed against appellants by the owners of the borrowed aircraft) attached to appellants’ petition here, the 1963 Musketeer was being operated by appellant Theda Benningfield at the time of the accident and, hence, was property in charge of the insured not covered under the policy.

Finally, appellants contend that interpretation of the insurance contract was a matter to be submitted to a jury and that respondents owed, at a minimum, a duty to defend the property damage claim.

Where, as here, the facts on which liability is claimed or denied are undisputed and determination of the case depends solely upon construction of the policy, the question is one exclusively for the court. Tomnitz v. Employers’ Liability Assur. Corporation, 343 Mo. 321, 121 S.W.2d 745 (1938); Richardson v. Employers Mut. Liability Ins. Co. of Wis., 269 S.W.2d 132 (Mo.App.1954); 44 Am.Jur.2d, Insurance § 2064.

The obligation of the insurer to defend arises only as to claims and suits for damages covered by the terms of the policy. Evaluation of this obligation depends not on resolution of controverted facts under which the claim is advanced but on the insuring agreements and the allegations of the claimant, whether groundless or valid. Northwestern Mutual Insurance Co. v. Haglund, 387 S.W.2d 230 (Mo.App.1965); Farmers Alliance Mutual Insurance Co. v. Reed, 530 S.W.2d 470 (Mo.App.1975). The insurer owes no duty of defense where, as here, the allegations of the claimant’s petition and the insurance contract demonstrate that coverage does not apply.

The judgnfient is affirmed.

All concur.