author: ALDEN A. STOCKARD, Special Judge.

text:
    Roger L. LINK, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Respondent.
    No. 38065.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 6, 1977.
    David M. Duree, Kenney, Leritz & Rei-nert, St. Louis, for appellant.
    Thomas H. Mug, Gerald D. Morris, St. Louis, for respondent; Donald E. Engle, St. Louis, of counsel.
   ALDEN A. STOCKARD, Special Judge.

In Plaintiff’s suit against the St. Louis-San Francisco Railway Company (Frisco) for alleged damages to a private street, the trial court entered summary judgment for defendant, and plaintiff has appealed.

Plaintiff alleged that he was the owner of Lot 4 and part of Lot 5 of Arnold Industrial Park in Arnold, Missouri which are “adjacent” to a concrete street known as Industrial Drive, and that pursuant to the provisions of an instrument entitled “Restrictions and Regulations for Arnold Industrial Park,” a copy of which was attached to the petition as Exhibit A, he is required to pay for the upkeep of Industrial Drive, and for that reason he has “a proprietary interest in said Industrial Drive.” He then alleged that in returning a derailed train to the tracks, defendant railroad “intentionally, or in the alternative, carelessly and negligently drove its heavy cranes and other heavy equipment over said Industrial Drive” and damaged it “to the extent that it must be replaced,” all to the damage of plaintiff in the sum of $75,000.

Exhibit A provides, among other things, as follows: “Jefferson County Industrial Corporation and its successor trustees are hereby empowered to assess and collect during each year from and after the date of this indenture from all owners of lots in Arnold Industrial Park, as contained in this legal description, a sum of money sufficient for improving, reconstructing, maintaining, repairing regularly the use of roadways, and other general purposes for the benefit of said Arnold Industrial Park, and the owners of lots therein. * * * The assessments shall be placed in a ‘fund’ and when said ‘fund’ reaches six thousand dollars ($6,000.00), then there shall be no further assessments except to replace the funds expended.”

Frisco filed a motion to dismiss for failure to state a claim upon which relief may be granted and also a motion for summary judgment. There was no ruling on the motion to dismiss. In the motion for summary judgment Frisco alleged that it had paid to plaintiff the sum of $4,008.24 “in full release of any and all claims arising out of damages done to property located at 108 Industrial Drive, Arnold, Mo., on or about January 29, 1975 * * Attached to the motion was a copy of a check in the amount of $4,008.24 payable, not to plaintiff as an individual, but to “Roger L. Link, Incorporated.” The endorsement is not shown, but in Frisco’s brief it is stated that the draft was endorsed “by Roger L. Link, the individual, as its president.” The record does not disclose the location of 108 Industrial Drive, but in oral argument to this court it was stated that it was the street address for Lot 4 and part of Lot 5 owned by plaintiff. It was also stated in oral argument that Roger L. Link, Incorporated, owns no lots in Arnold Industrial Park.

Also attached to the motion for summary judgment was a copy of what is labeled a “General Release and Indemnity Agreement” wherein it was recited that Jefferson County Industrial Corporation contended that the Frisco had damaged property owned by it in Arnold Industrial Park, “including among other things a street known as Industrial Drive,” and that the damage arose out of the derailment of Train No. 834 on or about January 28, 1975 near Arnold, Missouri. It was then provided that in consideration of the sum $52,500.00, Jefferson County Industrial Corporation “does release and forever discharge” Frisco from “any and all liability for all claims for all damages of whatever kind and description * * *,” and that it also agreed “to indemnify and hold harmless [Frisco] * * against all suits, actions, causes of action and claims for damages by owners and tenants of the Arnold Industrial Park * * * with respect to the above-described property owned by the Jefferson County Industrial Corporation.”

Plaintiff makes no claim that he owns the private street known as Industrial Drive. It is admitted that the fee is owned by Jefferson County Industrial Development Corporation. Relying on Larkin v. Kieselmann, 259 S.W.2d 785 (Mo.1953), plaintiff contends that he owns “an easement in this paved concrete street” because his lots adjoin that street. But, plaintiff’s petition is not based on an interference by Frisco with his use of the easement. Instead, it appears to be premised on the theory that he has a cause of action for damages to his “proprietary interest” in the street resulting from his contractual obligation “to pay [a proportionate share] for the upkeep of said Industrial Drive.” As stated subsequently, we are of the opinion that the petition does not state a cause of action. However, that would be a moot question if the trial court correctly entered summary judgment for Frisco. We shall, therefore, rule that issue.

Summary judgment is authorized where, but only where, the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Rule 74.04(c); E. O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167 (Mo.1967).

Plaintiff, as president of Roger L. Link, Incorporated, endorsed a check in the amount of $4,008.24 payable to the corporation and given “in full release of any and all claims arising out of damages done to property located at 108 Industrial Drive * *.” An easement is property, Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844 (1951), and in this case the easement is appurtenant to the dominant estate known as 108 Industrial Drive and is incapable of existence separate and apart from that estate. 28 C.J.S. Easements § 4. Therefore, the reference in the release to “all claims arising out of damages done to property located at 108 Industrial Drive” included claims for damage to his proprietary interest in the easement. Plaintiff argues that “It does not appear that * * * any money [was received] as consideration for a Release from claims for damage to the street * * But, plaintiff does not own the street, and he does not have a cause of action for damages to the street as such.

The essential issue is whether the release signed by Roger L. Link as president of the corporation is binding on Roger L. Link as an individual and the owner of the dominant estate to which the easement is appurtenant. This is a genuine issue of fact which remains unresolved on this record. There is nothing before us to account for the corporation releasing Frisco — no basis or reason given to support the payment of several thousand dollars to the corporation ; nothing to show any consideration for any payment whatsoever to the corporation which did not own the property at 108 Industrial Drive and therefore had no claim for “damages to the property” at that address, and did not own the street. The intention of the parties in executing the release by the corporation, which had no property interest in the transaction, and in not including plaintiff, who did have such an interest, in the release as joint payee of the check for $4,008.24, is of prime importance, and on this record is an unresolved issue of fact. Williams v. Riley, 243 S.W.2d 122 (Mo.App.1951). Was the corporation named in the release and check and Roger L. Link in his individual capacity omitted from both by mutual mistake of fact, inadvertence, misrepresentation or other misadventure? Did the proceeds of the check, upon endorsement by Mr. Link as president of the corporation, go into the coffers of the corporation, or into the individual account of Mr. Link? These and other matters present factual issues which cannot be resolved from the record now before us. They must, however, be determined before it can be ruled as a matter of law that the release signed by plaintiff as president of the corporation is binding on plaintiff, the actual owner of the property, in his individual capacity. For these reasons the declaratory judgment for Frisco was improper.

Because plaintiff’s petition seeks to recover for physical damage to a street which he does not own the petition fails to state a claim upon which he is entitled to recover, and should be dismissed. From this record we may not say that it is impossible for him to state a claim upon which relief may be granted, and therefore he should have an opportunity to amend his petition if so advised.

The judgment is reversed and the cause remanded with directions to dismiss the petition with leave to amend, and for such further proceedings as may be appropriate.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Helen COOPER, Administratrix of the Estate of Howard J. Cooper, Deceased, Plaintiff-Appellant, v. CITY OF CREVE COEUR, Missouri, a Municipal Corporation, et al., Defendants-Respondents.
    No. 37966.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 6, 1977.

      Richard H. Edwards, Paskal, Edwards & Olian Clayton, for plaintiff-appellant.
    J. Leonard Walther, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, Robert P. Elam, Clayton, for defendants-respondents.
   STEWART, Judge.

This is an appeal from the judgment of the circuit court dismissing plaintiff’s “Petition for Review” of the action taken by defendants to discharge Howard Cooper, a police officer. The plaintiff in this action is the widow of the police officer, who sues as administratrix of his estate. Defendants are the City of Creve Coeur, its mayor, and the board of aldermen.

Plaintiff contends as error: (1) the circuit court erred in dismissing plaintiff’s petition because the administratrix of a deceased police officer’s estate may maintain this action pursuant to § 537.010, Revised Statutes of Missouri; (2) the circuit court erred in dismissing plaintiff’s petition because the common law of Missouri enables the admin-istratrix of a deceased police officer’s estate to maintain this action against the defendants; (3) the circuit court’s refusal to permit the administratrix of a deceased police officer’s estate to maintain this action is contrary to the Constitution of the State of Missouri in that the due process clause of the Fourteenth Amendment of the United States Constitution and Article 1, Section 10 of the Missouri Constitution assures the plaintiff the right to maintain this action, and that the equal protection clause of the Fourteenth Amendment to the United States Constitution assures the plaintiff the right to maintain this action.

The motion to dismiss conceded the truth of the facts well pleaded. We review the petition and the exhibits which are made a part of the petition in that light. Higday v. Nickolaus, 469 S.W.2d 859, 864[10] (Mo.App.1971).

Plaintiff’s decedent, Howard Cooper, was a police officer employed by defendant, city. After nine years he had attained the rank of Lieutenant. On July 2, 1974, Cooper was suspended and relieved of all duty, with pay by defendant, Meier, the elected City Marshal. On July 11, 1974, Lt. Cooper’s immediate supervisor, Captain Gooch, handed him a five page list of specific charges. The charges included dereliction of duty, and improper use and lack of judgment, with respects to: (a) failing to serve, and falsely representing to the judge of a magistrate court that he had personally served, subpoena for fellow officers to appear in a criminal proceeding pending in that court, (b) refusing the request of a fellow officer to hold in custody for interrogation, and releasing from custody, a person then under arrest by such fellow officer, (c) permitting a fugitive from another state, then under arrest, in custody and in his presence, to be alone and to escape, (d) in causing, directing and permitting the making of a false fire alarm for the purpose of securing entry to a residence by police officers, (e) falsifying and filing, incorrect reports of traffic citations and warnings, for the purpose of obtaining overtime pay, and (f) returning a handgun, and a magazine and cartridge for it, to a person who was then known to him to have a quarrelsome and violent disposition, angry, and likely to engage in a fight with police officers, after another officer had taken the loaded gun from such person and unloaded it. He was ordered to appear before a hearing of the “Police Committee.” Three hours thereafter Lt. Cooper appeared before the committee. He was not afforded a reasonable opportunity to retain counsel, to cross-examine witnesses against him, or to introduce evidence on his behalf.

On July 27, 1974, Lt. Cooper was discharged by the mayor with the consent of a majority of all of the elected aldermen. He was given written notice that his employment with the city would terminate at the end of the day on July 31, 1974.

At the time of his termination, Lt. Cooper was advised that at his request, he would be afforded a hearing. At his request, a hearing was had before the mayor and the board of aldermen of the City of Creve Coeur. The hearing was commenced on November 18, 1974, partially heard on various dates, and concluded on March 21,1975. On May 15, 1975, Lt. Cooper received written findings of fact and conclusions of law and decision which was dated May 12, 1975. The decision affirmed the dismissal of Lt. Cooper, effective July 31, 1974. Plaintiff’s decedent did not work for defendant city after July 31, 1974, and received no pay after that date.

Lt. Cooper died on June 5, 1975, as a result of injuries received in an accident. Plaintiff was appointed administratrix of her husband’s estate and commenced this proceeding in the trial court by filing a petition denominated “Petition for Review.” Plaintiff sought to have the termination of the decedent set aside and held for naught, and judgment for wages and benefits from the date of termination to the date of Lt. Cooper’s death.

While plaintiff’s brief does not attempt to categorize her petition, she denominates it as a petition for review. In some of her argument, she classifies the action as one in tort for injury to property. However it may be interpreted, the trial court did not err in dismissing the petition.

We consider first respondent’s contention that the appeal should be dismissed because the notice of appeal did not specifically state that it was taken from an order specified in § 512.020, RSMo. 1969. On March 5,1976, the court made the following entry:

“Defendant’s motion to dismiss heretofore heard and submitted is sustained, costs against plaintiff.”

Within ten days after the above entry, plaintiff filed her notice of appeal “from the appealable order entered in this action on the 5 day of March 1976.” Upon motion of defendants, the court, on September 8, 1976, corrected its permanent record nunc pro tunc as of March 5, 1976, to read:

“Defendants’ Motion to Dismiss, heretofore heard and submitted, is sustained.
IT IS THEREFORE ORDERED AND ADJUDGED that plaintiff’s petition and action be and the same are hereby dismissed, at plaintiff’s cost.”

Plaintiff’s notice of appeal was obviously an attempt to timely appeal from a final judgment which, as of that time, had not been properly entered and which was subsequently corrected to be effective as of the date of the faulty entry made by the court. We find no merit in this contention. State ex rel. State Highway Commission v. Kendrick, 383 S.W.2d 740, 742[1-2] (Mo.1964).

The motion to dismiss plaintiff’s petition, attacked the petition as not stating a claim upon which relief may be granted and it also attacked plaintiff’s standing to bring the action.

The points in plaintiff’s brief, as set out above, are confined to the question of her standing to bring this action.

This proceeding is derivative. If the petition fails to state facts upon which Lt. Cooper could have recovered, plaintiff’s cause must also fail. The question of plaintiff’s standing under those circumstances becomes moot.

The law of this State is best stated in Christy v. Petrus, 365 Mo. 1187, 1189, 295 S.W.2d 122, 124 (banc 1956):

“The rule is well established in this state and elsewhere that in the absence of a contract for employment for a definite term or a contrary statutory provision, an employer may discharge an employee at any time, without cause or reason, or for any reason and, in such case, no action can be maintained for wrongful discharge. (citations omitted).”

It is apparent that absent a contract or statute granting Cooper a term or some provision that he could be discharged only for cause, the petition does not state a claim for relief.

Creve Coeur is a City of the Fourth Class. Its powers and duties are derived from the legislature, primarily from Chapter 79, RSMo. 1969. Section 79.230, RSMo. 1969, provides that in cities of the fourth class; “The mayor, with the consent and approval of the majority of the members of the board of aldermen, shall have power to appoint” city officers including a night watchman. In Chapter 85, RSMo. 1969, which pertains to City Police and Fire Departments, § 85.620, RSMo. 1969, provides that in cities of the fourth class “the police of the city may be appointed in such numbers, for such times and in such manner as may be prescribed by ordinance.” Plaintiff does not allege that any ordinance is controlling in her petition.

Whether classified as policemen or watchmen, the members of the police department of Creve Coeur are at most appointed officers. If not considered appointed officers they would be considered common law employees.

The subject of the dismissal of officers of cities of the fourth class is covered in § 79.240, RSMo. 1969:

“79.240. Removal of officers.
The mayor may, with the consent of a majority of all of the members elected to the board of aldermen, remove from office, for cause shown, any elective officer of the city, such officer being first given opportunity, together with his witnesses, to be heard before the board of aldermen sitting as a board of impeachment. Any elective officer, including the mayor, may in like manner, for cause shown, be removed from office by a two-thirds vote of all members elected to the board of aider-men, independently of the mayor’s approval or recommendation. The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office any appointive officer of the city at will, and any such appointive officer may be so removed by a two-thirds vote of all the members elected to the board of aider-men, independently of the mayor’s approval or recommendation. The board of aldermen may pass ordinances regulating the manner of impeachments and removals.”

If we are to consider plaintiff’s decedent an appointed officer, he was subject to removal at will by the mayor with the consent of a majority of all of the members of the board of aldermen or by a two-thirds vote of all of the members of the board of aldermen.

The Springfield Court of Appeals had Section 9310 of the Revised Statutes of 1909, now § 79.240, RSMo. 1969, for consideration in State ex rel. Kendall v. Wilson, 151 Mo.App. 719, 132 S.W. 623 (1910). In that case, charges were filed against the city treasurer of the City of Mount Vernon and a date was set for hearing. The board of aldermen suspended the treasurer pending the hearing. Upon petition of the treasurer, an alternative writ of mandamus was issued, ordering the city to reinstate the treasurer or show cause. Prior to the date the return was made, the board, as was the case here, held a hearing at which relator and his counsel were present. Two-thirds of all of the aldermen concurred in a finding that the treasurer was guilty on each of the charges.

The treasurer contended that even if guilty of the charges alleged they did not constitute grounds for his removal. The court held that under the statute the removal of appointive officers was at will or pleasure and that a two-thirds majority of the board of aldermen had the right to remove an appointive officer with or without any charges or hearing thereon and that no ordinance of the city could take that right away.

In the recent case of Russell v. City of Raytown, 544 S.W.2d 48 (Mo.App.1976), the court had occasion to apply the statute to the appointed city counselor. The city counselor was dismissed by the mayor with the consent of the required majority of aldermen without cause or hearing. The employee relied on an ordinance which prohibited the firing of an employee, except for cause. The court reiterated, that the statutes needed no construction to hold that the mayor had the power to remove the appointed officer any time it suited his pleasure, provided a majority of the board of aldermen concurred. The court went on to hold that an ordinance which in any way restricted that power was contrary to state law and could not operate so as to infringe that power. See also Loman v. Tharp, 542 S.W.2d 306 (Mo.App.1976).

There are no facts stated in plaintiff’s petition from which it can be inferred that Lt. Cooper had any tenure in his employment or that he could be discharged only for cause. Plaintiff pleads no contract of employment, or ordinance to that effect. There is no statute giving him tenure or providing that he could be discharged only for cause. Lt. Cooper was employed at will. He had no property interest in his employment. The determination of the adequacy of the grounds for his discharge is not subject to judicial review because the city could discharge him for no reason or for any reason. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). The only formal requisite for the discharge was that Lt. Cooper be discharged by the mayor with the consent of the majority of all of the members of the board of aldermen or by a vote of two-thirds of all of the aider-men. The petition, and the exhibits, which are made a part of the petition, clearly show that Cooper was discharged by the mayor with the consent of all of the aider-men.

The fact that a summary hearing was had to assist the defendants in their determination and the fact that defendants acquiesced in Cooper’s request for a full hearing to permit them to reconsider their action did not change the nature of his employment or the right to discharge Cooper at will. State ex rel. Kendall v. Wilson, 151 Mo.App. 719, 132 S.W. 623 (1910).

Plaintiff cites Moore v. Damos, 489 S.W.2d 465, 468 (Mo.App.1972); Heidebur v. Parker, 505 S.W.2d 440 (Mo.App.1974); and Davis v. Long, 360 S.W.2d 307 (Mo.App.1962) for the contention that a commissioned police officer acquires a right or title to office and its emoluments which is entitled to protection. This principle was stated in Moore and is confined to the factual situation in that case. It is distinguishable because Moore, the officer in that case, was employed under a civil service code which required a hearing. Heidebur presented the same situation. In Davis, the proceeding to remove a police officer was governed by § 84.150, RSMo. Supp. 1975, which provides that a police officer in the City of St. Louis is “[Sjubject to removal only for cause after a hearing by the board . . ”

In none of the cases cited by plaintiff was there a hiring at will and there was no statutory provision that the employee could be discharged at will.

Lt. Cooper was subject to being discharged at will. If he is considered an appointive officer, he could be discharged by the mayor provided that a majority of all of the members of the board of aider-men consent to the discharge. Plaintiff’s pleadings affirmative show that Lt. Cooper was discharged as required under § 79.240, RSMo. 1969. State ex rel. Kendall v. Wilson, 151 Mo.App. 719, 132 S.W. 623 (1910). If Lt. Cooper is considered to be an employee he could be discharged at will without reason or for any reason.

The well pleaded facts of plaintiff’s petition belie the conclusory statements contained in the pleading. Conclusions of the pleader evidenced by the use of such words as illegal, invalid, arbitrary, capricious, void, unconstitutional, and the like, cannot be considered in determining if a claim or defense has been stated. State ex rel. State Tax Commission v. Briscoe, 451 S.W.2d 1 (Mo. banc 1970).

Plaintiff’s petition presents no justiciable issue irrespective of her standing to bring the action. Under the circumstances it is unnecessary to discuss other issues raised by the parties.

The judgment of the trial court is affirmed.

McMILLIAN, P. J., and SMITH, J., concur.

      . “512.020. Who may appeal
      Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or order refusing to revoke, modify, or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.”

      . “10. That the aforesaid action of the defendants herein, or any or all of them, in terminating decedent’s employment is illegal, unlawful and without authority, in that, to wit:
      a. That the entire proceedings relating to the termination decedent were in violation of the Fourteenth Amendment to the Constitution of the United States and the Constitution of the State of Missouri.
      b. That said termination exceeded the statutory authority and jurisdiction of defendants.
      c. That the action of the defendants is unsupported by competent and substantial evidence upon the whole record.
      d. That said termination was not authorized by law.
      e. That said termination was made upon unlawful procedure and without a fair trial.
      f. That said termination was arbitrary and capricious.
      g. That the actions of the defendants herein involves an abuse of discretion.”


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Giccio STEPHENS, Defendant-Appellant.
    No. 38081.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 20, 1977.

      Crouppen, Walther, Zwibelman & Walsh, Roy A. Walther, III, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant Giccio Stephens appeals from a jury verdict finding him guilty of manslaughter and sentencing him to ten years imprisonment. We affirm the judgment for the reasons discussed below.

On October 29, 1974, defendant was arrested and charged with murder first degree of Danny Thomas. Defendant was convicted on October 16, 1975, of murder second degree and sentenced to twenty years imprisonment. Defendant then filed a motion for a new trial and that motion was sustained. The verdict was set aside and the case was reassigned for trial. In March, 1976, defendant was retried and found guilty of manslaughter and sentenced to ten years imprisonment. Defendant appeals.

For reversal defendant argues that the trial court erred in admitting into evidence (1) a xerox copy of the victim’s emergency room hospital record because the “Best Evidence Rule” required production of the original record, (2) the same xerox copy of the hospital record under the business records exception without the required showing that the record had been kept in the ordinary course of business, (3) defendant’s videotaped confession before the state had established the corpus delicti of the murder independently of the confession, and (4) the same confession because defendant had not been properly advised of his constitutional rights before making that statement.

Defendant’s first point is essentially that the best evidence rule, which prohibits the introduction into evidence of secondary evidence unless it is shown that the original document has been lost or destroyed or is beyond the jurisdiction of the court without the fault of the offering party, bars the admission of the xerox copy of the victim’s hospital record. See e. g., Martin v. Martinous, 219 S.W.2d 667, 674-5 (Mo.App.1949); Miller v. John Hancock Mut. Life Ins. Co., 155 S.W.2d 324, 327 (Mo.App.1941) quoting 20 Am.Jur., Evidence 403. If the original document is lost, then secondary evidence is properly admissible, e. g., State v. McDaniel, 392 S.W.2d 310, 315 (Mo.1965); Bolling Co. v. Barrington Co., 398 S.W.2d 28, 31 (Mo.App.1965). In McDaniel defendant objected to the admission of a thermofax copy of a piece of paper on which a witness had written down the license number of the car in which defendant was riding when the automobile was leaving the scene of the robbery. There was evidence that the original piece of paper had been lost and the supreme court upheld the admissibility of the copy.

In this case Ms. Jo Ann Peterson, custodian of records of Homer G. Phillips Hospital, identified the xerox copy as having been made from the original but was unable to present the original because the original had been lost. She testified that she had brought the original to court on an earlier occasion (October 16, 1975 trial) but was now unable to locate the original in the victim’s file. Two clerks from the hospital and an investigator from the circuit attorney’s office had searched for the original without success. Ms. Peterson also asked the hospital to “double-check” and made a personal search herself.

The trial court has wide discretion in the admission of secondary evidence. Martin v. Martinous, supra. In this case the trial court concluded that the original hospital records appeared to be lost after a sufficiently diligent search failed to produce the missing original and admitted the xerox copy as secondary evidence. We find that the xerox copy was properly admitted into evidence because the original had been lost; thus we rule this point against defendant.

Defendant’s second point is that the xerox copy was improperly admitted as a business record because an inadequate foundation was laid. Under the Uniform Business Records as Evidence Act, 28 Mo.Stat.Ann., § 490.680 (Vernon’s 1952), a record is competent evidence if relevant and the custodian testifies as to its identity and mode of preparation, it was made in the regular course of business and, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. Defendant argues that an inadequate foundation had been laid because the custodian did not actually testify that the records were kept in the regular course of business.

Hospital records fall within the business records as evidence exception to the hearsay rule, e. g., Gathright v. Pendegraft, 433 S.W.2d 299 (Mo.1968); State v. Triplett, 520 S.W.2d 166 (Mo.App.1976). The trial court has wide discretion in determining whether the statutory requirements for admission have been met, e. g., State v. Jones, 534 S.W.2d 556 (Mo.App.1976); State v. Triplett, supra. In this case Ms. Peterson testified that she was the custodian of records at the hospital and that as such the hospital’s medical records were in her custody and care. She explained the general procedure that was followed when patients were admitted, what records were made and where they were kept. Although Ms. Peterson did not specifically state that admission records were kept “in the regular course of business” at the hospital, it was evident that her testimony was not limited to the admission record of the victim but described the standard admissions procedure.

The courts have been relatively liberal in interpreting the requirements for the qualification of business records, e. g., Rossomanno v. Laclede Cab Co., 328 S.W.2d 677, 682-83 (Mo. banc 1959); Allen v. St. Louis Public Svc, 365 Mo. 677, 285 S.W.2d 663 (Mo.1956). In State v. Durham, 418 S.W.2d 23, 30 (Mo.1967), the supreme court held that the identification of an exhibit as part of the hospital records by the custodian of records and the examining physician was sufficient to qualify the exhibit as a business record. In this case Ms. Peterson did more than identify the record and explained some of the admissions procedure and record-keeping. This showing was sufficient to indicate that the records were kept in the regular course of business.

We distinguish the case of Allen v. St. Luke’s Hospital, 532 S.W.2d 505 (Mo.App.1975), cited by defendant. In Allen the hospital record was introduced accompanied only by an affidavit stating that the custodian of records had prepared the complete record of plaintiff from date of admission to date of discharge. The court found the record inadmissible because there was no showing that the record had been kept in the regular course of business.

In addition, failure to comply with the provisions for admission of business records is not relevant when the admission of the document has not prejudiced the defendant. Kelly v. Terminal RR Ass’n, 315 S.W.2d 699, 703-4 (Mo.1958). In Hood v. Heppler, 503 S.W.2d 452, 456 (Mo.App.1973), the court held that any error in permitting defendant to read portions of the hospital record without laying a proper foundation was not prejudicial where facts disclosed were already in evidence. In this case the hospital record did not establish cause of death but stated only the symptoms of the patient on arrival and the diagnosis of “dead on arrival.” The cause of death was established independently by the testimony of Dr. James Criscione, who performed the autopsy.

Defendant’s third point is that the videotaped confession was improperly admitted into evidence because the state had failed to independently establish the corpus delicti of murder before playing the videotape to the jury. Defendant was charged with murder second degree. The corpus delicti of murder is (1) the death of a human being by (2) the criminal agency of another person and not by suicide, e. g., State v. Parsons, 513 S.W.2d 430, 432 (Mo.1974). See also State v. Brooks, 551 S.W.2d 634, 646 (Mo.App.1977), fn. 18, wherein Simeone, C. J., noted:

“The corpus delicti can seldom be proved by direct and positive evidence. In proving the corpus delicti the reasonable rule has always been that only the best proof that is presently attainable need be shown. State v. Simler, 350 Mo. 646, 167 S.W.2d 376, 383 (Mo.1943); State v. Henderson, 186 Mo. 473, 85 S.W. 576, 578-579 (1905); State v. Poor, 286 Mo. 644, 228 S.W. 810, 815 (1921). The corpus delicti may be shown by circumstantial evidence. See cases collected in 30 Am.Jur.2d, Evidence § 1141, pp. 316-317 (1967); State v. Smith, 329 Mo. 272, 44 S.W.2d 45, 48 (Mo.1931) and cases cited therein—corpus delicti may be proved by circumstantial evidence. In Missouri, the corpus delicti has never been construed to require more than proof, direct or circumstantial, that a specific injury occurred and criminal agency of another. See State v. Joy, 315 Mo. 7, 285 S.W. 489, 494 (1926) (Blair, concurring); State v. Hawkins, 165 S.W.2d 644, 646 (Mo.1942).”

The medical evidence established that the victim’s cause of death was a shotgun wound at the back of the head and that the gun had nearly been in contact with the victim’s head when fired. It is unlikely that an individual could fire a 12-gauge shotgun into the back of his own head at point-blank range.

In State v. Ross, 371 S.W.2d 224 (Mo.1963), circumstantial evidence was held sufficient to establish criminal agency. In Ross, the victim was found to have died of a gunshot wound, after his car crashed through the window of a drug store. No gun was found on his person, in the car or in the vicinity. The court concluded that there was sufficient evidence of criminal agency. Id. at 226. In this case the victim also died of a gunshot wound and no gun was found in the vicinity. This evidence sufficiently established that the victim died as the result of criminal action by someone other than himself and did not commit suicide. Thus, the state did independently establish the corpus delicti of murder prior to the admission of defendant’s videotaped confession.

Furthermore, “. . . ‘[i]f there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved.’ ” State v. O’Neal, 436 S.W.2d 241, 245 (Mo.1968) (Emphasis added.); State v. Colton, 529 S.W.2d 919, 922 (Mo.App.1975) (Emphasis added.) Several points in defendant’s confession were corroborated by evidence introduced by the state; the victim was found in a vacant lot where defendant said the shooting had taken place, the victim died of a shotgun wound to the back of the head as the defendant had stated and a shotgun shell was found near the body. The police also received two tips from informants connecting defendant with the incident. The corpus delicti was established by the state’s evidence when considered with defendant’s corresponding confession.

Defendant’s fourth point is that his confession was inadmissible because he was not adequately advised of his constitutional rights before making the videotaped confession. Defendant concedes that the Miranda warnings were read to him as required in Miranda v. Ariz., 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The police initially questioned defendant as a possible witness and arranged to videotape the statement after learning defendant had enlisted in the Army. At some point in the videotaping session, defendant became a suspect. Defendant contends that although he was read his basic Miranda warnings as a witness, he was not apprised of his rights as a suspect and that this “sudden and drastic change” in his status required much more extensive questioning concerning his understanding of his rights. Specifically defendant argues that he should have been told that he was a suspect and would be questioned as such.

Defendant does raise an interesting question. We do not find it necessary to discuss this question, however, because the record establishes that defendant was adequately advised of his rights and was able to intelligently waive such rights. The record indicates that defendant was advised of his rights before questioning and again before the videotaping session. When defendant’s story began to be incriminating during the taping, defendant was again informed of his rights, asked if he understood the meaning of the term “rights” and asked if he wanted to waive his constitutional rights and make a statement. Defendant answered in the affirmative and completed his statement. The record indicates defendant was repeatedly informed of his rights, both as a witness and as a suspect. Although defendant was not expressly told he was no longer a witness but a suspect, it is clear that defendant, whatever his status at a given time, did understand that any statement he made might be used against him in a court of law.

For the reasons discussed above, the judgment is affirmed.

STEWART and REINHARD, JJ., concur.


text:
    STATE of Missouri ex rel. GAMBLE CONSTRUCTION COMPANY, INC., and the Travelers Indemnity Co., Relators, v. The Honorable Richard T. ENRIGHT, Judge of the Circuit Court of St. Louis County, Missouri, Division 3, Respondent.
    No. 38552.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 20, 1977.

      Carroll J. Donohue, Alan B. Hoffman, St. Louis, Nicholas F. Esposito, Chicago, Ill., Ralph C. Kleinschmidt, St. Louis, for rela-tors.
    Donald L. James, Pat F. McLaughlin, Moser, Marsalek, Carpenter, Cleary, Jaeck-el, Keaney & Brown, St. Louis, for respondent.
   STEWART, Judge.

Original proceeding in prohibition. Gamble Construction Company (Gamble) and the Travelers Indemnity Company (Travelers), relators, seek to prohibit respondent judge from denying relators leave to file their third party petitions. Our preliminary writ is quashed.

The underlying cause is an action to enforce an equitable mechanic’s lien, arising out of the construction of the Neiman-Mar-cus Frontenac Fashion Center in St. Louis County. Gamble was the general contractor on the project and Travelers the surety on the labor and material payment bond. The action was commenced March 30, 1975, by R. J. Stephens Drywall Co., a subcontractor. At the time this court issued its preliminary writ, the defendants were Gamble and its surety, Travelers, Carter Hawley Hale Stores, Inc., the owners of the project (owners), and at least nine other subcontractors on the project. Nine of the subcontractors have filed cross-bills for amounts allegedly due them from Gamble and to establish mechanic’s liens against the property. Gamble has filed a cross-bill against the owner for amounts due as general contractor. Gamble has also alleged other causes of action against the owner. The nature of the other causes are not stated in the record.

Discovery was commenced by the parties in the fall of 1975. On June 1, 1976, the court entered a pre-trial order with respect to the trial of the claims of the parties and set the case for trial on October 18, 1976.

Among the issues are claims for extra work (extras) done by the general contractor and the subcontractors. On June 7, 1976, plaintiff in the original action, took the deposition of L. F. Brengard who had been job superintendent for the project for Gamble. Mr. Brengard was not employed by Gamble at the time his deposition was taken. The testimony of Mr. Brengard developed facts that indicated to relators that they might have a claim over against the project architects for extras, which might be charged to Gamble because of negligence of the architects. Gamble and Travelers made further investigation with respect to this possible claim.

On September 15,1976, Travelers filed its motion seeking leave to file a third party petition impleading John Carl Warnecke and Associates Inc. and Eleanor LeMaire and Associates, Inc., the architects on the project. On September 18, 1976, Gamble filed a similar motion. The petitions sound in negligence.

The motions were argued on October 1, 1976. The court, at that time, advised counsel that it would not grant leave to file the third party petitions. It withheld its ruling to permit relators the opportunity of petitioning this court for prohibition. We issued our preliminary writ.

The only ruling the trial court intended to make was to deny relator’s leave to file their third party petition. The court did not undertake to determine whether the third party petitions stated a cause of action. The petition was not before the court for that determination and though briefed by the parties here, we do not rule that issue in this proceeding in prohibition.

We turn to Rule 52.11 as the focus of our discussion. That part of the rule pertinent to our discussion reads:

“(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party petition not later than 10 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. . . .”

The relators did not file their third party petitions within 10 days after they served their original answer. Therefore, it was necessary that they obtain leave of court to file the third party petitions.

“Leave of court” has been defined as “Permission obtained from a court to take some action which, without such permission, would not be allowable; . . .” Blacks Law Dictionary 1036 (4th ed. rev. 1968). “The right to implead is not an absolute right, even if the claim asserted is within the scope of Rule 52.11, but is a matter that is discretionary with the court.” State ex rel. Green v. Kimberlin, 517 S.W.2d 124, 126[1] (Mo. banc 1974).

We may not lightly disturb the discretionary rulings of a trial judge. We may do so only when there is no sound basis for his ruling; when the court has abused its discretion.

When we consider the denial of leave to file a third party petition, we are required to look to the purposes of Rule 52.11. These purposes are so well stated in State ex rel. Laclede Gas Co. v. Godfrey, 468 S.W.2d 693 (Mo.App.1971) that we quote, 698:

“The purpose of third party practice is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence to obtain consistent results from identical or similar evidence and to accomplish ultimate justice for all concerned with economy of litigation and without prejudice to the rights of another.”

If there is any reasonable ground upon which respondent could have denied leave, we must quash the preliminary writ. There is no requirement that the court make formal findings of fact and conclusions of law or that its reasons be formally expressed. Under these circumstances, we consider the issue before the trial court in the light most favorable to the result which it reached. Stark v. Stark, 539 S.W.2d 779, 781 (Mo.App.1976).

The relators point out that the court in a discussion with counsel stated:

“THE COURT: Well, I feel very much inclined against anything that would delay the beginning of this trial on October 18. It seems to me that the architects have been there all this time, and, even though your discovery procedures may recently have discovered the possibility of negligence, it seems to me that the architects have always been there and the possibility of their participation in the negligence has always been there and it just, since we have set the case and I realize that there may be unfairness to both sides, it appears to me at this time that this case is not going to get any smoother as time goes on. In fact, it would probably get more complicated, if anything.
So on the basis of its being untimely, I am going to overrule your motions to join any more parties in this action.”

The court also said, “Unless there is some way that the case can be separately tried, or something, at the end of this case.”

Relators argue that the court abused its discretion because “it is evident that the court based its intended ruling . solely upon consideration relating to possible delay of the then approaching trial setting.” We wish, at this point, to observe that the informal discussions between counsel and the court, as we see here, do not limit our consideration of the issue.

We believe that under the circumstances of this ease, delay could be a valid reason for the court’s position. The claims of ten subcontractors of Gamble were awaiting determination. The amounts involved were substantial, certainly delay has to be prejudicial to the subcontractors who are without the funds that they claim are due them. It has long been recognized that “justice delayed is justice denied.”

Counsel for relator argues that they were diligent in pursuing the remedies of their clients. We recognized that counsel for re-lators are both diligent and able. However, we do not look to counsel, but to the client, Gamble. Mr. Brengard, the source of the information with respect to the alleged negligence of the architect, was the job superintendent for Gamble. His knowledge of the alleged negligent acts of the architects must be imputed to Gamble. Hotchner v. Liebowits, 341 S.W.2d 319 (Mo.App.1960).

Delay of the litigation is not the only reason given by the court. It also acknowledged its awareness of the fact that in granting leave to file the third party petition, it would be adding a tort action involving two additional parties, to an equitable lien action involving at least twelve parties. The issues are highly technical and complicated. If the issues could be tried together, the 14 parties with their varying issues could have been almost unmanageable. Considering the nature of the action and the delay entailed, we do not believe that the court abused its discretion.

There is still another reason why the court was justified in denying relief. The action pending before the court is an equitable lien action governed by Rule 101.11 et seq. The action is one in equity to be tried before the court, unless the court submits one or more issues to a jury in its discretion or because the court deems the parties are entitled to a jury trial on any separate issue or issues. Rule 101.16. The third party petitions are actions at law that would, in any event, be tried separately from the equitable lien action.

Considering all of the circumstances of this case we cannot say that the trial court abused its discretion.

Our preliminary writ of Prohibition heretofore issued is quashed.

McMILLIAN, P. J., and REINHARD, J., concur.

      . The only pleadings in the trial court that a: Motion for Leave to File Third Party Petit: before us are the Third Party Petition and the

      . Rule 101.16 also provides for the appointment of a referee at the instance of any party.


text:
    George W. SKINNER, President, Fred A. Hermann, Jr., George P. Budke, E. Lawrence Keyes, Jr., Rueben M. Morriss, III, Secretary-Treasurer, Individually and as Trustees of Briarcliff Subdivision, Plaintiffs-Respondents, v. Leonard H. HENDERSON and Beulah C. Henderson, his wife, and Dr. Marvin Rosecan and Mary Jo Rosecan, his wife, Defendants-Appellants.
    No. 37365.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 27, 1977.
    Robert F. Ritter, Gray & Ritter, Thomas C. Devoto, St. Louis, for defendants-appellants.
    John J. Cole, Armstrong, Teasdale, Kramer & Vaughn, St. Louis, for plaintiffs-respondents.
   STEWART, Judge.

This is a civil action in equity initiated by plaintiffs, individually and as Trustees of Briarcliff Subdivision to permanently enjoin defendants from erecting, occupying, using and maintaining a certain swimming pool enclosure, and further to enjoin defendants from erecting any swimming pool enclosure without prior written approval of the trustees in violation of the subdivision trust indenture. The trial court, sitting without a jury, found that the swimming pool enclosure was a structure, within the meaning of the prohibition of the indenture, and entered judgment for the plaintiffs individually as lot owners and also as trustees of the subdivision as prayed. We affirm.

Defendants contend that: (1) the trial court erred in finding that the swimming pool enclosure was a “structure” within the meaning of the indenture, because there is no definition of the word “structure” in the indenture, and it is ambiguous with respect to a swimming pool enclosure; (2) the trial court erred in concluding that the swimming pool enclosure was a “structure” within the meaning of the indenture, because the pool enclosure is portable, temporary, and not permanently located in that the weight of the evidence established that a “structure,” to be within the meaning of the indenture, must be permanently affixed to the ground; (3) the trial court erred in enjoining the defendants from using the pool enclosure because the trustees have waived their right to enforce the indenture in that they have failed to enforce restrictions in the past; (4) the trial court erred in granting injunctive relief to the plaintiffs, because the indenture is in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Constitution of the State of Missouri (1945), rendering it void and unenforceable in that the primary purpose of the indenture was to exclude Negroes from the subdivision.

Appellate review of the trial court’s action is controlled by Rule 73.01 V.A.M.R. A decree or judgment of the trial court will be sustained on appeal “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo.1976); Rule 73.01 V.A.M.R.

Specific findings of fact were not requested and were therefore not required. We view the facts most favorably to the result reached by the trial court. Stark v. Stark, 539 S.W.2d 779, 781[1] (Mo.App.1976).

Defendants, Leonard and Beulah Henderson, became owners of record of Lot No. 64 and improvements thereon in Briarcliff Subdivision, St. Louis County, by General Warranty Deed dated January 13, 1969. The deed provided that the conveyance was “made subject to all restrictions, building lines, easements and conditions of record.” Shortly thereafter, defendants, Marvin and Mary Jo Rosecan occupied this property and became owners by General Warranty Deed, which has not been recorded.

In 1969 the Rosecans consulted an architect for the purpose of designing a swimming pool and a swimming pool enclosure. The architect advised them that it would be necessary to submit these plans to the Briarcliff Subdivision Board of Trustees for approval. The trustees approved the plan for the swimming pool, but by letter, dated March 11, 1971, the trustees advised the Rosecans that approval for the proposed pool covering had been denied. The Rose-cans did not erect the pool enclosure which had not been approved.

On August 4, 1971, without the permission, approval or knowledge of the Briar-cliff Trustees, the Rosecans purchased and erected the pool covering which is the subject of this litigation. During November of 1971, the pool enclosure, a custom made clear vinyl dome, 28 feet wide by 58 feet long, was installed. The dome is inflated by an electric blower to the approximate height of 25 feet. It was anchored by a circular vinyl tube filled with water. The estimated weight of the tube, when filled with water, is two and one-half tons. The purpose of the pool cover is to permit swimming year-round. Defendant, Mary Jo Ro-secan, testified that the cover was removed during the summer months of 1972 and 1973. It has been inflated and used year round since that time.

The Board of Trustees, in a meeting on November 12, 1971, found that the pool covering was a structure and that it should be removed. The Rosecans did not respond to the trustees’ letter, dated November 15, 1971, requesting the removal of the pool cover. On February 25, 1972, the trustees decided to consult an attorney. After further unsuccessful attempts by the plaintiffs to secure the Rosecans’ voluntary removal of the pool enclosure, the plaintiffs instituted this action in November of 1973.

The relevant sections of the 1931 Briar-cliff Indenture referred to at trial and in appellants’ and respondents’ briefs are:

“Whereas, it is the purpose of the parties of the first part and of the trustees that said BRIARCLIFF shall be and remain a residence section of the highest class.
TRUSTEES EMPOWERED TO ENFORCE RESTRICTIONS.
SIXTH: The Trustees shall have, and are hereby granted full power and authority, in their own names as Trustees of an express trust or otherwise, to prevent any infringement and compel the performance of any restriction. This provision is intended to be cumulative and not to restrict the rights of any estate owner to proceed in his own behalf and the power and authority herein granted to the Trustees is intended to be discretionary and not mandatory.
BUILDING LINES.
ELEVENTH: Except with the permission of the Trustees no fences or hedges of any type shall be constructed or permitted except on rear estate lines and on that part of the side lines to the rear of the front building line; but no fences permitted shall be of other than open wire, less than four feet in height, and no hedges shall be more than four feet high. All fences, buildings or structures within or upon the estate lines shall be subject to approval of the Trustees.
RESTRICTIONS ON COST AND OCCUPANCY.
THIRTEENTH: The minimum cost of any residence erected in BRIARCLIFF shall be Fifteen Thousand Dollars ($15,-000.00) and no structure whatsoever, may be erected or begun prior to written approval of the preliminary and final plans by the Trustees.”

Defendants contend that the swimming pool enclosure is not a structure and, therefore, plaintiffs have no authority to order its removal because defendants failed to obtain the prior approval of the trustees. To support this contention defendants argue that: (1) the term “structure” is ambiguous and any doubts regarding its meaning must be resolved in favor of the free use of the land and; (2) the term “structure” must be construed to refer to permanently affixed objects.

Defendants rely on the general rule stated by our Supreme Court in Andrews v. Metropolitan Bldg. Co., 349 Mo. 927, 163 S.W.2d 1024, 1038 (1942):

“It must be remembered that restrictive covenants ‘being in derogation of the fee conveyed by the deed . . . will not be extended by implication to anything not clearly expressed in them, and if there be any ambiguity in the terms of the covenant, or substantial doubt of its meaning, such ambiguity should be resolved, if reasonably it can be, in favor of the use complained of.’ ”

This principle “ ‘should never be applied to defeat the plain and obvious purpose of the restriction.’ ” Greenberg v. Koslow, 475 S.W.2d 434, 436[2, 3] (Mo.App.1971). Where “the meaning of [a] terms is questioned, the rule is that the language used, absent any indication ‘that some special or peculiar meaning was intended,’ must ‘be given its ordinary and usual meaning.’ ” Greenberg v. Koslow, 475 S.W.2d at 436-7[2, 3].

The indenture provides that, “[a]ll fences, buildings or structures within or upon the estate lines shall be subject to approval of the trustees.” The trial court held the pool covering to be a “structure.” In ascertaining the intent of the indenture it is well to consider the definitions of some of the key words of the indenture. We look first to the word “building.” It has been said to be “a fabric or edifice framed or constructed, designed to stand more or less permanently.” McGalliard v. Chapman, 129 A. 256, 257 (N.J.1925).

It has been applied to include a fruit and vegetable stand with a canvas top strung over poles set in the ground. McGalliard, supra; a screened enclosure, Union Trust Co. v. Lucas, 125 So.2d 582 (Fla.App.1960). More specifically it is defined as “a: constructed edifice designed to stand more or less permanently covering a space of land usu. covered by a roof and more or less completely enclosed by walls and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure — distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.” Webster’s Third New International Dictionary 292 (1967).

From the definition of “building” it can readily be seen that “structure” is a broader, more comprehensive term which includes “building.”

This court considered the word “structure” in Greenberg v. Koslow, 475 S.W.2d 434 (Mo.App.1971). In that case, defendants built a swimming pool with a plastic bubble top and gave swimming lessons to a solicited clientele on a regular basis for profit. This court held that defendants were in violation of a provision in a subdivision indenture prohibiting the erection of a structure to be used for business purposes. In holding that the swimming pool was a structure within the meaning of the restrictions the court relied on a “composite definition” derived from 83 C.J.S. Structure p. 547 et seq. (1953): “ ‘A structure is . a production composed of parts artificially joined together according to plan and design to accomplish a definite purpose,’ . which ‘may be below the surface of the ground as well as above it,’ . . . and may include, for example, ‘a tunnel and a well . . ..'" Greenberg v. Koslow, 475 S.W.2d at 437[4].

The swimming pool cover in this case is completely enclosed on the sides and top, it is capable of resisting the weather; it was designed for that purpose. After 1974 it was in use the year round and was used for social gatherings. The enclosure in question served the same purpose as the enclosure which the architect submitted and which the trustees disapproved. It served as a dwelling and a shelter. It was an adjunct to the swimming pool. We find that the swimming pool cover in this case is a “structure.”

Defendants argue that the swimming pool cover is portable and temporary, and, therefore cannot be said to be a “structure” as that word is used in the indenture. We note first that the indenture does not confine the requirement of approval to permanent structures. The definition of structure which we have used above does not embrace the concept of permanence. As noted above “structure” is a broader concept than “building” which has the concept of more or less permanence. “Permanent,” does not “ ‘always embrace the idea of absolute perpetuity.’ ” State v. Public Service Commission, 238 Mo.App. 287, 179 S.W.2d 123, 125[1] (1944). We do not believe that the pool covering can be said to be a temporary structure as distinguished from one that is “more or less permanent.” The word “temporary” is defined as “la: lasting for a time only: existing or continuing for a limited time, impermanent, transitory.” Webster’s Third New International Dictionary 2325 (1967). As applied to building it connotes an interim structure; a makeshift; something used until the final objective can be accomplished. The pool covering in this case was custom made for this particular pool. This covering was intended to be used so long as it existed. Originally it was to be used during inclement weather in each year. At the time of trial it was being used the year round. The trial court could reasonably conclude that the structure was “more or less permanent” as those words are used in the definition of “building.” Under the facts of this case we believe that the swimming pool cover could be found to have come within the definition of building. Having used the word “building” and the word “structure” it is clear that the term “structure” was intended to encompass a broader concept than “building.” If the pool enclosure can be said to be a building it can be said to come within the broader term “structure.”

The purpose of the restrictions in the Briarcliff Indenture, as stated in the preamble, is to retain its status as a “residential section of the highest class.” While such recitals may not broaden the restrictions, we may consider this expression in the indenture in determining the intent of the instrument. Keener v. Berry, 442 S.W.2d 159, 162[3] (Mo.App.1969). The restriction requiring that owners obtain the approval of the trustees for proposed structures was one of many provisions intended to ensure that the subdivision remain a residential area of high quality and that buildings and structures placed upon the lots be compatible with the area. The word “structure” is broad in concept but it is not ambiguous, as we have demonstrated. In 1931, as now, it was impossible to conceive of all the objects which may come within the category of “buildings” and of “structures” which the authors of the indenture would wish to be approved prior to erection in the subdivision. The intent of the indenture was to ensure that the trustees review all manner of objects that might be placed upon the lots of the residents so as to carry out the purpose of the restrictions. The court did not err when it concluded that the swimming pool cover was a structure which was required to be approved by the trustees before it could be erected on the lot of the defendants.

Defendants next contend that plaintiffs, by their past conduct, have waived their right to seek judicial enforcement of the Briarcliff Indenture. They rely on Scharer v. Pantler, 127 Mo.App. 433, 105 S.W. 668 (1907) and Lake St. Louis Community Association v. Kamper, 503 S.W.2d 447 (Mo.App.1973) to support their defense of waiver. Neither of these cases are helpful in determining this issue. Both cases involved the prior violation and hence, waiver of specific restrictive covenants.

Defendants point to the indenture restriction providing “but no fences permitted shall be of other than open wire, less than four feet in height . . . ,” and allege that the trustees have permitted fences not conforming to this provision. Contrary to defendants’ contention, the record shows that this restriction applies only to fences on rear estate lines and on that part of the side lines to the rear of the front building line. The trust indenture does provide that “fences, buildings or structures within or upon the estate lines are subject to the approval of the trustees.” The record shows the trustees have approved fences other than open wire to hide something unsightly, an ash can or air conditioner, to enhance the appearance of the property. Walks, other than brick, as provided in the indenture, have been approved by the trustees where the brick walk was impractical or presented a hazardous condition. The trustees, in their approval or rejection of the preceding alleged violations, have acted in their discretionary power to prevent infringements, to compel the performance of restrictions, and to preserve the aesthetic quality of the subdivision. In doing so they have been guided by considerations of com-patability of the structure with the neighborhood or possible objections to the structure by the neighbors.

The defendants claim that the trustees have permitted structures, a shed, carport, a log cabin playhouse, without their approval. The evidence shows that some of these objects have since been removed or the trustees have requested removal.

This court has stated that “there are no hard and fast rules as to what constitutes a waiver” and that “each case must be decided on its own facts.” Lake St. Louis Community Association v. Kamper, 503 S.W.2d at 449[1-4]. The trial court was warranted in finding that the trustees have acted to enforce the terms of the indenture reasonably with a regard for the quality of the subdivision. They have not waived their right to enforce the terms of the indenture.

Defendants urge that the section of the indenture entitled “Restrictions Against Negroes,” when read with other sections regarding minimum costs of property, the intention that the subdivision be a high class residence, and the provision that temporary buildings may not be inhabited, shows that the primary purpose of the indenture is to exclude Negroes from living in the subdivision.

The Briarcliff Indenture, in the section entitled “Miscellaneous,” provides:

“These restrictions, limitations and easements are to be construed independently, and in the event any of them shall be declared void or for any reason unenforceable, the validity and binding effect of the others shall not be impaired or affected. The waiver or failure to enforce a breach of any restriction, limitation or easement shall not be a waiver of any subsequent breach thereof.”

This court, in Schibi v. Miller, 268 S.W. 434 (Mo.App.1925), held that contracts combining a separable and illegal provision will be enforced if it is unnecessary to rely on the illegal provision. The racial covenant is severable from other portions of the indenture. It does not affect the enforceability of other indenture restrictions. The provisions of the indenture, apart from the section “Restrictions Against Negroes,” do not restrict the subdivision to Caucasians only. These other provisions support the purpose of the preamble of the indenture, to maintain Briarcliff as a high-class residence.

We conclude that the judgment of the trial court is supported by substantial evidence, is not against the weight of the evidence, does not erroneously declare the law, or erroneously apply the law.

The judgment is affirmed.

McMILLIAN, P. J., and RENDLEN, J., concur.

      . The pool covering consisted of permanently affixed poles and guy wires from the poles to the house over which a canopy was to be suspended.

      . See Roget’s International Thesaurus 50 § 109.4 (3rd ed.1962).

      . In Scharer the original grantor in subdividing restricted the building line to not less than 25 feet from the street. The grantor, however, built the first three houses on a line 15 feet from.the street.
      In Kamper, plaintiff sought to have defendants remove a builder’s sign from a lot. The plaintiffs manager, for a long period, encouraged the use of such signs and, at times, furnished signs to builders.

      . That section reads:
      No land, buildings or interest in BRIARCLIFF may be by any person or corporation sold or resold, conveyed, leased, rented to, or in anyway occupied, used or acquired by others than members of the Caucasian race, except the bona fide servants and employees living with families of residents of BRIARCLIFF may reside in the homes of such members while so employed.
      The 1931 Briarcliff Indenture was amended in December of 1973, primarily for the purpose of changing the term from fifty years to perpetuity and to delete the provision restricting occupancy to Caucasians only.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ricky JONES, Defendant-Appellant.
    No. 38732.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 27, 1977.
    James B. Ashwell, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted of escaping before conviction in violation of § 557.390 R.S.Mo.1969; the sentence was two years imprisonment. Two points are raised upon appeal: (1) that the trial court erred in requiring two defense witnesses to appear before the jury in leg shackles; and, (2) that the trial court erred in failing to give prompt effect to writs of habeas corpus ad testificandum issued for two defense witnesses. We affirm the judgment.

Defendant was being held in custody on a conviction for armed robbery and a charge of assault. On June 25, 1974, he and at least four other persons were confined in the security section of Homer G. Phillips Hospital in St. Louis. On the day of the escape, a laboratory technician intending to draw a blood sample from a prisoner entered the ward with Deputy Sheriff Earl Robertson. As the technician was procuring the sample, Bernard Meeks, one of the prisoners, attacked Robertson with a bed post and beat him severely. Meeks freed himself from his bed shackles, utilizing a pair of pliers, and continued to pummel Robertson into unconsciousness. Another sheriff’s deputy, Arnold Roberts, responded to the commotion, but Meeks overpowered him and took his gun. Meeks then freed the defendant and another prisoner, Eddie Fleming, and all three left the confinement of the hospital. Defendant was captured in the basement of his mother’s house on October 6, 1974, 42 days after the breakout. Fleming surrendered to East St. Louis police 40 days after the escape. Meeks escaped to Virginia, where he was ultimately convicted of 9 or 10 crimes, which according to Meeks, included abduction, assault, robbery and attempted escape. For the Virginia crimes, Meeks received a total of 125 years in sentences to be served concurrently for 50 years. He subsequently escaped from Virginia authorities and at the time of trial was serving a 15 year sentence in the Missouri penitentiary for armed robbery.

Defendant was charged in three counts: with escape before conviction; with assault with malice aforethought by reason of the attack on Deputy Robertson; with assault with malice aforethought by reason of attack on Deputy Roberts. The jury found defendant guilty of the escape and acquitted him on the two assault charges.

At trial, Deputy Robertson testified that both Meeks and defendant assaulted him. The laboratory technician, however, could not identify who had assaulted Robertson. Deputy Roberts testified that he was attacked only by Meeks, who took his gun; that as soon as the gun was taken, defendant, Meeks and Fleming ran out of the ward and jumped out a window to complete their escape. There was no evidence that defendant assaulted Roberts.

Defendant, Meeks and Fleming each testified that Meeks assaulted Robertson by beating him with a bed post and that defendant took no part in the assault.

With regard to the escape, Fleming testified that both he and defendant were forced at gunpoint by Meeks to leave the hospital prison ward. There was no assertion, however, that there were any restraints on either man after they had left the hospital ground. The only testimony from defendant on his direct examination regarding his escape was as follows:

“Q. Who released Earl Fleming?
“A. [Defendant] Bernard Meeks.
“Q. And how did you gain your freedom?
“A. Bernard Meeks.”

Meeks, in his direct testimony, stated only that he had “released” defendant. On cross-examination, Meeks related the following:

“A. Ricky Jones [defendant], he didn’t want to go, and I said, ‘Well, when the police come down here they’re going to take it out on all of you, because the guard was beaten up,’ and I told them everyone down there, you know, they would get in trouble for it and finally I talked them into it, you know.
“Q. [prosecutor] When you finally talked them into it or he finally agreed with you, was that before you took the shackles off or after?
“A. It was before. He didn’t want me to take them off.
“Q. Then he agreed to go with you?
“A. In a way he did not agree, I told him what the police might do to him; I guess he got a little scared.”

The jury accepted defendant’s and defendant’s witnesses’ version of the assault on Robertson and Roberts, acquitting him on both assault charges. The jury, however, found defendant guilty of escape before conviction.

On appeal, defendant contends that it was error to have required his two witnesses — Meeks and Fleming — to remain shackled during the trial. He argues that he was thereby denied a fair trial. At trial, defendant’s counsel objected to the shackles on Meeks and Fleming, but the trial court without comment, overruled the objection. Defendant correctly points out that an accused has the right to appear before the jury free of shackles unless good reason, based on his misconduct or exceptional circumstances, dictate that restraints are needed. State v. Wendel, 532 S.W.2d 838 (Mo.App.1975); State v. Kirksey, 528 S.W.2d 536 (Mo.App.1975). It is, of course, within the trial court’s considerable discretion to determine the procedures and restraints essential to maintain order within the courtroom. State v. Borman, 529 S.W.2d 192 (Mo.App.1975): Bibbs v. State, 504 S.W.2d 319 (Mo.App.1973), cert. denied 419 U.S. 852, 95 S.Ct. 95, 42 L.Ed.2d 84 (1974). We reach back to State v. Rudolph, 187 Mo. 67, 85 S.W. 584 (1905), to find that the standards governing the propriety of the accused or his witnesses to be compelled to appear in court restrained in shackles are apparently the same. Hence, some “good reason” must exist and should be expressed by the trial court before a defendant’s witnesses are required to appear before a jury in chains or shackles.

In this case, however, defendant felt no sting of prejudice even though his witnesses, Meeks and Fleming, appeared in shackles. The only real conflict regarding the charges against the defendant related to his alleged assault of Robertson and Roberts. There was no evidence of assault against Roberts, but Robertson implicated defendant in his assault. Fleming and Meeks contradicted Robertson, and the jury believed them despite the shackles. Thus, no prejudicial error occurred as a result of the trial court’s overruling defendant’s objections to his witnesses’ shackles.

Although Fleming indicated that he and defendant were forced by Meeks at gun point to flee the hospital — apparently in justification for their flight — Meeks’ testimony was the opposite. And, of course, Meeks and Fleming were testifying under the same shackle handicap, so defendant could not have been prejudiced by the fact that Fleming was in chains when the jury was considering the contradictory testimony of Meeks, who was also in chains. Further, the crime of escape is a continuing offense. See State v. Milentz, 547 S.W.2d 164 (Mo.App.1977). Therefore, even though defendant may have been forced to leave the hospital, the record is clear that there was nothing preventing his return before his capture, 42 days after the escape. Again, there was no prejudice to defendant through his shackled witnesses’ testimony regarding his escape conviction.

Defendant’s other point relates to a colloquy which occurred at the end of the State’s case. The gravamen of the complaint is that the court ordered the defense to proceed at a time when defense witnesses were unavailable, thereby causing the defense to be embarrassed before the jury. The sequence of events as revealed in the record differs from the situation as represented in defendant’s argument and shows no action of the court which could be deemed improper. Meeks and Fleming were penitentiary prisoners who had to be brought to court by means of writs of habe-as corpus ad testificandum. The trial began on a Monday, and defense counsel sought the writs late the previous Friday afternoon. Unable to find the trial judge at that time, counsel obtained the writs from another circuit court judge. The writs were not placed in the court file, and it is apparent that the trial judge did not learn of them until he was shown copies at the trial, the time when defendant complains that the witnesses were not produced. As soon as the judge actually saw copies of the writs, he called a recess, and when the trial resumed that afternoon the writs had been executed and the witnesses were present. Clearly there was no impropriety in the trial court’s action. Prejudice to defendant, if any, was not sufficient to call for the drastic action of mistrial; therefore, the failure of the trial court to declare a mistrial under the circumstances here did not constitute an abuse of discretion. See State v. Porter, 538 S.W.2d 888 (Mo.App.1976).

Judgment affirmed.

KELLY, P. J., and WEIER, J., concur.


author: SMITH, Judge.

text:
    Lee M. WEHMEIER, Plaintiff-Respondent v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 38622.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 27, 1977.
    Kortenhof & Ely, J. M. Kortenhof, St. Louis, for defendant-appellant.
    Rollin J. Moerschel, St. Charles, for plaintiff-respondent.
   SMITH, Judge.

Defendant, State Farm Mutual Automobile Insurance Company, appeals from a declaratory judgment that plaintiff Weh-meier’s liability was covered by State Farm’s policy for an accident in which Weh-meier was involved and for which he has been sued.

Plaintiff, who is the insured under several State Farm policies, was involved in an accident while driving his brother’s International flatbed truck, with his brother’s permission. Plaintiff was sued by the widow of the driver, and by other occupants of the other vehicle involved in the accident. State Farm denied coverage on the grounds that the vehicle being driven by plaintiff at the time of the accident was not an “automobile” within the meaning of the “non-owned automobile” provisions of the policy. The policy defines automobile as “a four wheel land motor vehicle designed for use principally upon public roads, but “automobile” shall not include a midget automobile, nor any vehicle while located for use as a residence or premises.” (Emphasis in original).

The vehicle involved in the accident was an International 1600 Lodestar model, usually used for hauling machinery, and was transporting a 5000 pound tractor when the accident occurred. It was licensed by Missouri as a truck with a capacity of 30,000 pounds gross weight. The vehicle has two axles — front and back. There are two tires on the front axle and four on the rear axle. Each end of the rear axle is bolted to a five spoked casting to which is attached two rims separated by a spacer. At the time of the accident there was a tire attached to each rim and this is the manner in which the truck had always been operated during its ownership by plaintiff’s brother. However, it is possible, although not normal, to operate the truck with both rims, the spacer and one tire, if the weight is not too great, or to use a single high flotation tire on each end of the rear axle. The latter method might be used if the vehicle were to be used in sand or other material in which it might become mired. The casting with its two rims, spacer and tires operates as a single unit, and the tires on the single casting do not operate independently. The casting is technically called a “Dayton wheel.” Plaintiff relied upon a catalogue of International and the testimony above set forth to support its contention that the vehicle in question has four wheels, albeit six tires. The Court relied heavily upon the high flotation tire possibility to support judgment for plaintiff.

State Farm contends that an insurance policy is to be construed as it would be understood by the average layman. That is clearly the position of the Missouri courts. If there is a conflict between a technical definition and the meaning normally understood by average laymen, the latter meaning will be applied unless it plainly appears that the technical meaning was intended. Greer v. Zurich Insurance Company, 441 S.W.2d 15 (Mo.1969). Webster’s Third New International Dictionary defines “wheel” as “A circular frame of metal, wood, or other hand material that may be solid, partly solid, or spoked and that has a hub at the center for attachment to or suspension from an axle on which it may revolve and bear a load, especially on the ground.” The dictionary then depicts a “wheel” consisting of a hub, spokes, a rim and a tire, not simply the hub and rim assembly.

While technical experts might define “four wheel” vehicle to include the truck involved here, we do not believe such is the interpretation of the average layman. To the average layman a four wheel vehicle is one with four tires touching the ground. The number of tires touching the ground is synonymous in the average layman’s mind with the number of wheels on the vehicle. The trial court recognized this by its statement:

“This Court is aware of the common misuse of the terms ‘wheel’ and ‘tire’ when used in connection with the ordinary wheel and tire of a passenger automobile. Frequently the word ‘wheel’ is used to refer only to the tire. At other times the term ‘tire’ is used to refer to the entire assemblage. But when pressed for a clear demarcation the ordinary layman will make a distinction between the tire and the wheel. The test applied here to an ordinary layman, with knowledge of all the pertinent facts which he would want to know before making the decision of ‘how many wheels’, would lead him to conclude that this unit constitutes but a single wheel.”

But the test applied by the trial court is to convert the ordinary layman into an expert by teaching him the technical meaning of a term. But having been so taught, the layman is no longer ordinary. It was this very approach which was rejected in Greer, supra. There, it was held that the technical legal meaning of “repossession” did not apply and that the ordinary usage of laymen included voluntary relinquishment within that term. If the test used by the trial court had been applied in Greer, we doubt the result would have been the same.

Plaintiff invokes the rule that restrictive or exclusionary clauses in an insurance contract are to be strictly construed and if ambiguous, a favorable construction for the insured must be adopted. Allison v. National Insurance Underwriters, 487 S.W.2d 257 (Mo.App.1972). It is questionable that such a principle applies here, as the definition used is not a restriction of coverage, but an extension thereof. The insurance policy was issued to cover a described vehicle. An additional coverage is provided to protect the named insured in his occasional usage of “non-owned automobiles” under circumstances similar to those which might be expected in the use of the described vehicle. Such additional coverage does not purport to be a catch-all to provide protection to the named insured for motor vehicle usage which would unwarrantedly yet ex-pectedly increase substantially the risk insured against. The coverage extends to non-owned “automobiles.” Without any further definition, it is probable that the word automobile would exclude many vehicles commonly driven by the average insured for pleasure or noncommercial purposes such as pickup trucks, vans, and recreational vehicles. The definition of automobile has therefore been expanded by the description heretofore set out to provide coverage for those types of vehicles.

The evidence indicates that additional tires and wheels are provided on vehicles to increase the load capacity of the vehicle. With such increase in weight goes a concomitant increase in the destruction potential of the vehicle, particularly in the areas of bodily injury and property damage. Such potentials obviously affect the insurance rates. These considerations, of course, do not warrant interpreting a contract more restrietively than provided in the clear language of the policy. They do, however, have some relevance in determining the intention of the parties and the reasonable expectations of the insured.

We do not find a basis for the trial court’s conclusion that the truck in question was a four-wheel vehicle under the non-owned automobile coverage. That conclusion is based upon a highly technical definition of wheel or upon a possible, but never utilized, modification of the vehicle. We believe the reasonable conclusion of laymen would be that this is a six-wheel vehicle. As stated in U-Haul of Southern California, Inc. v. State Farm Mutual Automobile Insurance Company, 50 Cal.App.3d 665, 123 Cal.Rptr. 628 (1975):

“In this state of the record, we find no basis for any reasonable expectation by Malone that the policy covering his Toyota two-door sedan would extend to a 16-foot, six-wheel commercial vehicle rented by his friend to transport her household furniture to a new and distant residence.” (1. c. 669, 123 Cal.Rptr. 630)

It is not the province of the courts to exercise inventive powers to create an ambiguity. Rather, it is the obligation of the courts to give force and effect to contracts as written by making reasonable interpretations to accomplish the intention of the parties. Jordan v. Equitable Life Insurance Company, 486 S.W.2d 664 (Mo.App.1972). We do not find the truck in question to be a four-wheel motor vehicle.

Plaintiff also contends that Sec. 303.190(3) RSMo 1969 applies to the policy in question and that under that section exclusion of coverage of other than four-wheel vehicles is void as against public policy. This argument is fully answered in State Farm Mutual Automobile Insurance Company v. Ward, 340 S.W.2d 635 (Mo.1960) and Gabler v. Continental Casualty Company, 295 S.W.2d 194 (Mo.App.1956). Simply stated it is that Sec. 303.190(3) does not apply until the policy is certified as proof of financial responsibility. There is no evidence of such certification here.

Judgment is reversed with directions to enter a declaratory judgment that the motor vehicle operated by Lee M. Wehmeier at the time of the accident on June 21, 1975, was not covered by defendant’s policies of insurance.

CLEMENS, P. J., and DOWD, J., concur.

      . The brother’s truck is covered by a garage policy of Sentry Insurance Company. Coverage under that policy is limited to $10,000/20,-000 and is only available if no other insurance is.

      . “Use of non-owned automobiles.

        If the named insured is a person or persons, and if during the policy period such named insured owns a motor vehicle covered by this policy and classified as ‘pleasure and business,’ such insurance as is afforded by this policy with respect to the owned motor vehicle under:
      (1) coverages A & B [Bodily injury liability and property damage liability] applies to the use of a non-owned automobile by:
      (a) the first person named in the declarations or.” (Emphasis in original).

      . We presume it possible to argue that a vehicle with three wheels and a steering wheel is a four-wheel vehicle, or for an insurance company to contend that a normal passenger automobile with a steering wheel and spare tire is a six wheeled vehicle.

      . “Such operator’s policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law from damages arising out of the use by him of any motor vehicle not owned by him, within the said territorial limits and subject to the same limits of liability as are set forth above with respect to any owner’s policy of liability insurance.”


text:
    STATE of Missouri, Plaintiff-Respondent, v. Less CAMPBELL, Jr., Defendant-Appellant.
    No. 38294.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Sept. 27, 1977.
    Robert C. Babione, Public Defender, James W. Whitney, Jr., Asst. Public Defender, St. Louis, for defendant-appellant.
    George A. Peach, Circuit Atty., Edward J. Rogers, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction of robbery and resultant 18 years sentence.

No question of the sufficiency of the evidence to support the jury verdict is raised. There was evidence that defendant and another man entered the Original Restaurant in St. Louis and at gunpoint robbed the proprietor, Mrs. Long of $630. Defendant produced witnesses to support an alibi defense.

Defendant raises two issues on appeal, both of which we review under the plain error rule (Rule 27.20(c)) as neither was properly preserved for appeal. State v. Nevills, 530 S.W.2d 52 (Mo.App.1975) [1-4].

The first point involves a brief series of questions by the Court directed to one of defendant’s witnesses. No objection was made during trial to this questioning. The witness, an employee of the restaurant at the time of the robbery, had seen the robbers. He testified that he could not identify the robbers, either immediately after the robbery or in court. He then indicated defendant was not one of the robbers. On cross-examination the witness’ answers were somewhat evasive and we find, taken as a whole, the testimony left doubt as to whether the witness could not identify defendant as one of the robbers or whether he was affirmatively stating defendant was not in the restaurant during the robbery. The brief questioning of the Court was aimed at clarifying this ambiguity. This is a proper function of the trial judge. State v. Cain, 485 S.W.2d 60 (Mo.1972). We find nothing in the judge’s questions to indicate partiality or prejudice. There was no error, much less plain error.

The second point is that the court erred in failing to sustain an objection to the prosecutor’s closing argument in which he commented on the absence of testimony from a man purportedly with defendant at the time the robbery took place. Defendant’s “objection” was “Your Honor, there’s evidence that man’s in Texas this week at a management training session.” This is not an objection at all, simply a statement and did not call for a ruling by the judge. In defendant’s motion for new trial this statement was posited as a comment on defendant’s right to remain silent and a comment on the burden of proof. On appeal, defendant contends the “comments cast unfavorable inferences on the failure of a defense witness to testify and also on who was responsible for that witness’ absence.” Since no proper objection was made at trial, and since the grounds asserted on appeal are different than the vague grounds in the motion for new trial, the matter has not been preserved for appellate review. We find no manifest injustice in the statement sufficient to invoke the plain error rule. State v. Jackson, 411 S.W.2d 129 (Mo.1967).

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Calvin R. HARRIS, Defendant-Appellant.
    No. 37843.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 27, 1977.

      Mary Louise Moran, Frank R. Fabbri, III, Asst. Public Defenders, St. Louis, for defendant-appellant.
    Gary W. Brandt, Asst. Circuit Atty., St. Louis, W. Mitchell Elliott, Nanette Lau-ghrey, Jeffrey W. Schaeperkoetter, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of robbery with a dangerous and deadly weapon and resultant five year sentence.

No question of the sufficiency of the evidence is raised. The evidence supported a finding that defendant, acting with another, robbed Ernest Whitfield, at gunpoint, of $100 and a duffel bag containing clothing. Defendant’s testimony was that he and an accomplice relieved Whitfield of $47 through a confidence game which ingeniously combined the “pigeon drop” with a game of three card monte. Both robbery and stealing by deceit were submitted to the jury which found Whitfield was robbed, not cheated.

On appeal defendant raises only one point. He contends that a statement by the trial court constituted an improper comment on the evidence. Since no objection was made at the time of the statement or in the motion for new trial, reversal is sought under the plain error rule. Rule 27.20(c). The claimed objectionable statement occurred in the following context:

“Q. [Prosecutor] Then what happened?
A. [Victim] . . . The guy that he [defendant] was talking to inside of the building jumped out of the back seat of the cab, said ‘I don’t want to hurt you — ’ MISS WALLACH [defense counsel]: I am going to object to what anyone says as hearsay.
THE COURT: Sustained.
Q. (By Mr. Brandt) [Prosecutor]: Let me ask you—
THE COURT: You are objecting to the statement concerning—
MISS WALLACH: What any other individual said other than the defendant as hearsay testimony.
THE COURT: Wait a minute now.
MR. BRANDT: She is objecting to the statement made by anyone else.
THE COURT: This is the other person acting together?
MR. BRANDT: That’s correct.
THE COURT: I will overrule that, then.”

The emphasized statement is, defendant claims, a comment that the man referred to was, in fact, acting together with defendant, one of the elements charged in the information.

We find no basis for invoking the plain error doctrine for several reasons. Initially, the statement was directed to counsel, not the jury, and requested information necessary for the court to rule on the objection. Such statements are ordinarily held not to be prejudicial. State v. Phelps, 478 S.W.2d 304 (Mo.1972) [16-17]; State v. Moore, 303 S.W.2d 60 (Mo. banc 1957) [7]; State v. Hudson, 358 Mo. 424, 215 S.W.2d 441 (1948) [1-4]. Secondly, we do not interpret the statement to indicate the court’s belief that the two men were acting together. Rather, it was an inquiry whether the man who made the statement was the man claimed to be the other alleged robber. Thirdly, the instructions of the court clearly advised the jurors that they were the sole judges of the facts and that no statement or remark of the court was intended to indicate its opinion of the facts. Finally, defendant testified that he was acting with another in the operation of the confidence game. There could therefore have been no prejudice to defendant from the court’s statement.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.