author: PRITCHARD, Judge.

text:
    STATE of Missouri ex rel. Lawrence SPERANDIO, Relator, v. Honorable Lewis W. CLYMER, Judge, 16th Judicial Circuit, Jackson County Circuit Court, Division No. 8, Respondent.
    No. KCD 29573.
    Missouri Court of Appeals, Kansas City District.
    Feb. 6, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.
    Application to Transfer Denied April 10, 1978.

      John C. Milholland, Harrisonville, E. J. Murphy, Butler, for relator.
    Morris, Larson, King, Stamper & Bold, Roy A. Larson, Steven G. Emerson, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER, DIXON, PRITCHARD, SOM-ERVILLE, and TURNAGE, JJ.
   PRITCHARD, Judge.

ORIGINAL PROCEEDING IN MANDAMUS

The issue involves the propriety of respondent’s order dismissing relator’s claim against William H. Snead, M.D., a defendant in the underlying action for medical malpractice, upon the ground that it was barred by the two-year statute of limitations. The alternative writ of mandamus issued herein recites that it appears from the petition for the writ that Dr. Snead is liable for conspiratorial concealment of relator’s condition and injuries, by reason of which the five-year statute of limitations (after discovery) applies as to the action against him rather than the two-year statute of limitations for actions brought in medical malpractice.

The resolution of the issue requires an examination of Count II of relator’s petition for damages, as it involves defendant Snead. But first, there must be a general statement of the allegations of Count I of that petition as to other defendants.

Defendants Michael and Yancey are licensed physicians and orthopedic surgeons in Springfield, Missouri. On or about September 12,1967, relator, Sperandio, consulted them about a problem in his hips, a deformity as advised, resulting in a congenital condition of subluxation of the femoral heads. Michael and Yancey subsequently advised and performed surgery (December 2, 1967) upon Sperandio, after consultation with a Dr. Pemberton in Salt Lake City, Utah, who had devised a procedure to treat children of 12 to 14 years for the congenital subluxation and dislocation of the hip. Neither Michael nor Yancey knew what the modification was of the Pemberton Procedure for its performance on adults, and no such adult operation had ever been performed in Springfield, Missouri, all of which was wrongfully and intentionally concealed from Sperandio, and that he did not give consent to experimentation upon his person, and that the operation was performed without his informed consent and without his consent. Because the required modifications of the Pemberton Procedure were not made, Michael and Yancey negligently caused themselves to exert excessive force on Sperandio’s left acetabulum, fractured it, replaced a fractured part with a screw which was bent by excessive force, and were unable to move the roof of the aceta-bulum the required distance to remedy the subluxation as a direct and proximate result of failure to modify the surgical technique. Beside the basic malpractice particulars pleaded, Sperandio set forth that Michael and Yancey actively concealed the facts from him, and his family physician, and affirmatively falsely represented to him that his left hip bones had been moved to a proper position and that the intended result of surgery in the position of the hip bones had been achieved.

In the interim, and after consulting his family physician and an orthopedist in Joplin, Missouri (from whom it is alleged that Michael and Yancey withheld critical information of the surgery and its outcome), Sperandio went to the University of Missouri Medical Center for resistive exercises and physiotherapy and had progressed to the point that he was ready to be admitted for desirable corrective surgery. It is at this point, according to the pleadings, that Snead enters the picture. On December 9, 1968, Sperandio sought Snead’s advice and counsel concerning his disabling condition and impending surgery at UMMC and Snead advised him to continue treatment at UMMC, and to follow the advice of physicians there.

As to the Count II claim asserted against Snead, it is further alleged that he, knowing that surgical intervention in Sperandio’s hip joint would lay open to direct visual inspection the malpositioned fragments of his acetabulum, and reveal the extent of the damage which had occurred to his hip on the December 2, 1967, surgery, Snead joined in the conspiracy to conceal from Sperandio the condition of his hip and to prevent him from promptly receiving further remedial care which would reveal the true condition. Snead wrote a letter to UMMC on December 9, 1968, in which he warned that Sperandio had litigation in mind, “well-knowing and intending thereby to foreclose the chances of plaintiff’s immediate access to the then-planned and contemplated remedial surgery at said medical center.” Thereafter, it is pleaded, upon Sperandio’s next visit to UMMC January 28,1969, as was intended by Snead when he wrote the letter, the planned surgery was cancelled, and Sperandio “on April 29,1969, was denied consideration for corrective surgery and has ever since that time been denied consideration for corrective surgery by that medical center, all as intended by defendant Snead as aforesaid.” It is further pleaded that despite Sperandio’s diligent efforts to gain information, Snead and other conspirators successfully concealed from him “the fact and plaintiff did not learn until on or about May 30, 1974, that his left femoral head remains in a subluxat-ed condition and that said surgery was unsuccessful in correcting that condition as defendants, and each of them, claimed and continue to claim and misrepresent to plaintiff that it did, contrary to the fact. Said conspiracy to conceal and deny to plaintiff full and fair knowledge of the cause of his present disability, pain and suffering continues to the time of this petition.”

Snead was joined as a defendant in a petition filed by Sperandio in Greene County, Missouri, on July 8, 1974, in which he affirmatively pleaded that he first learned, on or about May 30, 1974, that the surgery of December 2, 1967, contrary to representations made to him, had not remedied the condition of subluxation, that petition being based upon a claim of intentional, conspiratorial tort sounding in fraud. That petition was dismissed without prejudice on October 22, 1974, and that case was later refiled in Jackson County, Missouri, on January 3, 1975, joining a Jackson County resident (who was later dismissed out of the case). A second motion to dismiss of Snead, based upon the running of the 2-year statute of limitations [§ 516.140, RSMo 1969] was sustained on May 23, 1977, which dismissal gave rise to this proceeding in mandamus.

As noted, Sperandio, in his petition joining Snead, pleaded that he learned of the conspiratorial concealment on or about May 30, 1974. The petition was filed July 8, 1974, which is well within the maximum 15 year period of limitation [Berry v. Dagley, 484 S.W.2d 182, 184[2] (Mo.1972); Heis- ler v. Clymer, 179 Mo.App. 110, 161 S.W. 337, 341[2] (1913); Yeager v. Wittels, 517 S.W.2d 457, 465[9] (Mo.App.1974) ] of § 516.-120, RSMo 1969, which provides, actions shall be brought “Within five years: * * (5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.”

The case is not one of Snead’s alleged malpractice, which would bring into play the two-year medical malpractice statute of limitation, § 516.140, or if he were alleged to have fraudulently concealed his own malpractice (which is not the case), then the cases holding that the statute would be tolled (under § 516.280) by the fraudulent concealment would apply: e.g., Smile v. Lawson, 435 S.W.2d 325, 327[1] (Mo.banc 1968); Kauchick v. Williams, 435 S.W.2d 342, 347 (Mo.banc 1968).

What is here alleged is that Snead joined a preexisting fraudulent purpose of knowingly concealing Sperandio’s true condition from him, and knowing that planned surgery at UMMC would reveal the previous malpractice and its concealment, taking steps to prevent that surgery by affirmatively, overtly writing the letter of December 8, 1968, warning that Sperandio had litigation in mind, all to Sperandio’s damage, as alleged. The allegations are for a conspiratorial, intentional tort sounding in fraud, although that fraud was originally practiced by Michael and Yancey, as alleged. It is said in 15A C.J.S. Conspiracy § 19, p. 659, “To render a person civilly liable for injuries resulting from a conspiracy of which he was a member, it is not necessary that he should have joined the conspiracy at the time of its inception; every one who enters into such a common design is in law a party to every act previously or subsequently done by any of the others in pursuance of it, * * * .” See also 16 Am.Jur.2d, Conspiracy, § 48, p. 151. Following the allegations as to Michael and Yancey, down through Snead, it is clear that they smack of fraud as to each as the elements therefor are set forth in Barylski v. Andrews, 439 S.W.2d 536, 539[1-3] (Mo.App.1969), and as set forth in the Smile and Kauchick cases, supra, as to fraudulent concealment in malpractice cases.

Respondent, in his return, advanced a third reason to the above discussed two and five year statute of limitation reasons for sustaining the dismissal: that of failure to state a claim. Dismissal was not asked on the latter ground, and the court did not enter such an order.

Sperandio states a claim in fraud which is not barred because of the application of § 516.120, supra. The trial court erred in dismissing his action, and it should be reinstated as to defendant Snead, thus giving him the opportunity to prove his allegations.

Respondent’s motion to dismiss the alternative writ or to strike relator’s brief is overruled.

The Alternative Writ of Mandamus herein is made peremptory.

SWOFFORD, C. J., not participating.


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eric Bryant SIMMONS, Defendant-Appellant.
    No. 38529.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 7, 1978.

      Mary Elizabeth Dockery, Asst. Public Defender, Robert C. Babione, Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMillian, Judge.

Appellant appeals from a judgment of conviction for manslaughter and an eight (8) year sentence of imprisonment. For reversal he argues that the court erred in failing to order a new trial on its own motion inasmuch as a juror’s affidavit showed that the assessment of punishment was arrived at by a quotient verdict. We affirm.

Gratuitously we note that appellant’s allegation of error in his motion for a new trial was bottomed upon pressure and coercion being exerted against the juror; whereas appellant’s point of error on appeal complains of the quotient verdict because it lacked unanimity. While both concern jury misconduct, the contentions are separate and distinct. Threats, force, and coercion used to force unanimity among jurors put into question the verdict of guilty; while the use of a quotient verdict to determine the length of sentence questions only the punishment determination. Because the allegation now made was not included in appellant’s motion for a new trial, nothing is preserved for review. State v. Wright, 515 S.W.2d 421, 432 (Mo.1974); State v. Carr, 499 S.W.2d 788, 790 (Mo.1973).

In any event, Missouri courts have not permitted a juror to impeach his verdict where the alleged misconduct occurred inside the jury room. In the early ease of State v. Underwood, 57 Mo. 40 (1874), the court declared: “. . . The rule is perfectly settled, that jurors speak through their verdict, and they cannot be allowed to violate the secrets of the jury room, and tell of any partiality or misconduct that transpired there, nor speak of motives which induced or operated to produce the verdict. .” This statement was cited with approval and followed in State v. McDaniel, 392 S.W.2d 310, 318 (Mo.1965); State v. Linn, 223 Mo. 98, 122 S.W. 679, 682 (1909) and State v. Keller, 104 S.W.2d 247, 249 (Mo.1937).

Here the affidavit of the juror is an abortive attempt to impeach the verdict. As such it cannot be allowed. To permit a juror to testify as to alleged misconduct occurring inside the deliberation room would lead to the situation deplored by Mr. Justice Cardozo in Clark v. United States, 289 U.S. 1, 12, 53 S.Ct. 465, 468, 77 L.Ed. 993 (1933):

“The books suggest a doctrine that the arguments and votes of jurors . are secrets, protected from disclosure unless the privilege is waived Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world. . . . ”

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: SNYDER, Judge.

text:
    Otto WALLIS, Plaintiff-Appellant, v. ST. LOUIS COUNTY et al., Defendants-Respondents.
    Nos. 38764 & 38468.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 14, 1978.

      Paul W. Kopsky, Michael J. Doster, Mas-torakos,. Kopsky & .Doster, Chesterfield, John P. King, St. Louis, for plaintiff-appellant.
    Thomas W. Wehrle by Christine C. Per-noud, Robert C. Jones, Ziercher, Hoeker, Tzinberg, Human & Michenfelder, Clayton, McBride & Simon, St. Louis, for defendants-respondents.
   SNYDER, Judge.

Plaintiff Otto Wallis appeals from a judgment of the St. Louis County Circuit Court dismissing his petition for failure to state a cause of action as to defendants St. Louis County, Bowman, Mueller and Unknown Parties, and from a judgment on the pleadings rendered in favor of defendants Tappmeyer.

REVERSED AND REMANDED.

We shall refer to the parties by name or as plaintiff and defendants.

Plaintiff brought a quiet title action requesting the court to adjudge and declare that he is the owner in fee simple of the accretions to Lots 2, 4 and 5 of the subdivision of the Madden Tract situated on Creve Coeur Lake in St. Louis County. There were 70.313 acres of accretions. Appellant also sought in his petition to have the court nullify and cancel a “Collector’s Deed for Taxes”, alleging that the accretions were sold to defendant Bowman for a grossly inadequate consideration and further that the statutory provisions for the sale of real property by the county collector are unconstitutional and void.

The petition alleges that on May 6, 1938 Wallis was the grantee of Lots 2, 4, 5, 9 and 10 of a subdivision of the Madden Tract in St. Louis County and that the deed conveying the real property to him included “ ‘ * * * any legal accretions thereto which may now exist or which may become attached thereto in the future; ’ ”. At the time of the conveyance to Wallis there existed some 70.313 acres of accretions. The description in this deed is as follows:

“ ‘Lots 2, 4, 5, 9 and 10 of the Subdivision of the Madden Tract, in the U.S. Survey 3094, Township 46 North, Range 5 East, together containing 230.476 acres, according to survey thereof executed by Elbring Surveying Company in November and December 1936, a plat of which survey, attached to deed recorded in Book 1413 Page 575 of the St. Louis County Records, is recorded in Plat Book 33 Page 18 of said records . . . ”

On October 11, 1939 Wallis by general warranty deed conveyed Lots 2, 4 and 5 to Duenke without mentioning accretions.

On October 31, 1939 Wallis by quitclaim deed conveyed Lots 9 and 10 to Hughes including in the deed “ ‘any legal accretions thereto which may now exist or may become attached thereto in the future, . . ."

On March 23, 1954 Duenke by general warranty deed conveyed Lots 2, 4 and 5 to defendants Tappmeyer (two married couples) without mentioning accretions.

Defendants Tappmeyer conveyed portions of Lots 2, 4 and 5 to St. Louis County by two separate deeds, “ * * together with all accretion and reliction belonging thereto, * * ” The deeds were dated December 22, 1971 and January 4, 1972.

On August 31, 1972, the 70.313 acres of property comprising the accretions were purportedly conveyed to defendant Bowman by the collector of St. Louis County by means of a collector’s deed for taxes. The consideration for the transfer was $555.00 representing the amount of delinquent taxes assessed against the real property.

On September 23, 1972 the 70.313 acres were conveyed by defendant Bowman by quitclaim deed to defendant Mueller.

The petition alleges that the defendants St. Louis County and Tappmeyer have no right, title or interest in the accretions and that plaintiff Wallis is the owner in fee simple of all accretions to Lots 2, 4 and 5.

Defendants Tappmeyer filed an answer in the nature of a general denial and later a separate motion for judgment on the pleadings. All of the other defendants filed separate motions to dismiss on the ground that plaintiff’s petition failed to state a claim upon which relief could be granted. The court granted defendants’ motions to dismiss and dismissed plaintiff’s petition and granted defendants’ Tappmeyer motion for judgment on the pleadings.

Accretions and relictions are gradual and imperceptible additions to or increases in riparian land that are brought about by natural or artificial causes. Accretion is the washing up of sand or soil so as to form firm ground. Reliction is the uncovering of land by a gradual subsiding of waters. The same law governs the acquisition of title to both accretions and relictions. Therefore, for the purposes of this opinion, when the word “accretions” is used it will encompass both accretions and relictions. 78 Am. Jur.2d, Waters § 406, § 410 and § 411.

Although plaintiff does not style this a quiet title action, his petition claiming title to the 70.313 acres of accretions names as defendants others claiming title to the same real property, and asks the court to determine the title to the real property by declaring the fee simple title to the accretions to be in plaintiff. In seeking a determination of title and interests among various claimants, the petition states a cause of action as contemplated by § 527.-150, RSMo 1969 and Rule 93.01 V.A.M.R. and we shall treat it as such.

The statute relating to suits to determine interest and quiet title is remedial and is to be liberally construed. § 527.150, RSMo 1969; Bailey v. Williams, 326 S.W.2d 115 (Mo.1959); White v. Kentling, 345 Mo. 526, 134 S.W.2d 39 (1939).

In reviewing the dismissal of a petition for failure to state a claim or cause of action, this court is required to construe the petition favorably and to give the pleader every reasonable and fair intendment in view of the facts alleged. If the allegations invoke principles of substantive law which may entitle the pleader to relief, the petition is not to be dismissed. If the facts pleaded and the reasonable inferences to be drawn therefrom looked at most favorably from the pleader’s standpoint show any ground upon which relief may be granted, the plaintiff has a right to proceed. Watson v. Franklin Finance, 540 S.W.2d 186 (Mo.App.1976); Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625 (Mo.App.1975). A petition is not to be held insufficient merely because of a lack of definiteness or certainty. Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52 (1952); § 509.250, RSMo 1969.

Upon first analysis it would seem that the judgment on the pleadings in favor of the four Tappmeyer defendants should be affirmed. They claim no interest in the real property, having conveyed their interests to St. Louis County by means of two different deeds. According to the petition, however, plaintiff conveyed 160.766 acres to the Tappmeyers, whereas the two deeds from the Tappmeyers to St. Louis County conveyed a total of only 158.44 acres, a difference of 2.326 acres. The deeds to St. Louis County from the Tappmeyers contain detailed descriptions of the land conveyed by metes and bounds and the words “more or less” after stating the number of acres. The discrepancy may be meaningless but the facts should be known even if there is only a distant possibility that it relates to the disputed accretions. Because of this difference in area and because the Tappmeyers’ motion for a judgment on the pleadings is based on an alleged failure of the petition to state a cause of action, the Tappmeyer motion will be considered along with the motions to dismiss of the other defendants.

The petition, when construed most favorably to the plaintiff, contains all of the elements of an action to quiet title. Section 527.150, RSMo 1969 permits any person who claims any title or interest in real property to institute an action against any other person or persons having or claiming to have any title, estate or interest in the property to ascertain and determine the estate, title and interest of the parties in the real property, and to define and adjudge the rights of the respective parties in the real property. In Titus v. Tolle, 284 Mo. 175, 223 S.W. 885 (1920) the Missouri Supreme Court remanded a similar case after the plaintiffs petition had been dismissed by the trial court. The Supreme Court in its decision said at page 886:

“1. Plaintiff’s amended petition sets forth all of the foregoing facts, and some others which we deem unnecessary to notice, in passing upon its validity as stating a cause of action. Does the petition state a cause of action? We think it does, under the provisions of section 2535, R.S. 1909. It pleads that plaintiff is the owner in fee of said premises, and claims that title, and sets forth with particularity how his claim of title was derived. It sets forth that defendant makes some claim of title or interest therein, and further sets forth, with particularity, how such claim was derived, and alleges its invalidity. We think these averments were sufficient to invest the trial court with jurisdiction to ascertain and determine the title thereto between plaintiff and defendant, and to adjudge their relative rights in and to said premises.”

The statute referred to by the court is the one then in effect relating to quiet title actions and is similar to § 527.150, RSMo 1969. Appellant here alleges his fee simple title, the claims of the defendants and avers with particularity how the claims of title were derived. Appellant is entitled under a liberal construction of the statute to an adjudication of his title and interest in the real property by the court. We are empowered to make that adjudication if the proper record is before us but obviously cannot make a ruling or judgment based on the petition alone and therefore the case must be remanded. For additional cases in which the dismissal of a quiet title petition was held to be error see Evans v. Brussel, 300 S.W.2d 442 (Mo.1957) [cert. denied, 362 U.S. 919, 80 S.Ct. 673, 4 L.Ed.2d 740 (1959)] and Pettus v. City of St. Louis, 362 Mo. 603, 242 S.W.2d 723 (1951). In Pettus the court reversed the judgment dismissing plaintiff’s petition and remanded the cause saying at page 729, “We have stated in suits under said paragraph 1684 (now § 527.150, RSMo 1969) that a party setting up title in himself, as here, is entitled to an adjudication of his existing title, and if he have no title the court should so adjudge or decree, (citing).” (Parentheses and emphasis added.)

Defendants Tappmeyer rely on the point that accretions exist only in a navigable body of water and contend that all motions to dismiss were properly sustained because no facts were pleaded which could be used to support evidence of the navigability of Creve Coeur Lake. They cite Kirkpatrick v. Yates Ice Company, 45 Mo.App. 335 (1891) in which the court at page 338 states, “In our opinion the rule most consonant with reason is, that on unnavigable lakes the abutting proprietor’s title extends to the center of the lake.” In Kirkpatrick, however, the court continued, saying at page 339, “It may be that a trial will disclose this lake to have been one over which the government surveys by sections have been extended, just as though it was dry land and that titles have been conveyed with reference to such survey. In such case, plaintiff’s boundary would be confined to the literal terms of his deed.”

In Kirkpatrick the court held it was error to sustain a demurrer and remanded the cause for trial so that the evidence of the survey could be considered. If the description in a deed discloses an intention not to convey to the center of a non-navigable stream or lake, that intention will control. Cochran v. Missouri, K. and T. Ry. Co., 94 Mo.App. 469, 68 S.W. 367 (1902). To ascertain the intention of plaintiff, it would be necessary to consider the evidence of the surveys referred to in the deed at a trial on the merits.

Further, all of the parties here assumed that accretions existed. Plaintiff conveyed accretions in his deed to Hughes. He did not do so in his deed to Duenke. Duenke did not convey accretions in his deed to the Tappmeyers but they conveyed accretions in their deeds to St. Louis County. St. Louis County recognized accretions as separate from the main parcels when it conveyed to Bowman by means of the tax deed. The absence of an allegation of non-navigability is not grounds for dismissal of the petition. If indeed plaintiff owned to the center of the lake, title may have to be quieted after the facts are determined in an entirely different manner.

Defendants rely heavily on Gorton v. Rice, 153 Mo. 676, 55 S.W. 241 (1900). The subject there was accretions to land along the Missouri River. The court held that a deed which contained no words of limitation which would reserve the accretions to the grantor conveyed all accretions to the grantee. A later case, Bixby v. Backues, 346 Mo. 955, 144 S.W.2d 112 (1940), followed Gorton, saying that a deed which did not contain any exceptions or reservations as to accretions presumptively carried with it all accretions previously formed to the land described. The court went on to say that the “presumption” was strengthened by the fact that the deed indicated the river as a boundary.

Frazier v. Shantz Real Estate and Investment Company, 343 Mo. 861, 123 S.W.2d 124 (1938) sets forth an exception to the rule in Gorton. If the accretions themselves have been conveyed earlier, a description that would otherwise carry with it all accretions does not convey the portion of land conveyed before. This exception is inapplicable here since there is no allegation of a previous conveyance of the 70.313 acres of accretions.

In Frank v. Goddin, 193 Mo. 390, 91 S.W. 1057 (1906) another exception to the rule in Gorton was made, the court holding that a grantor may convey his property by such fixed boundaries that he would retain title to any' accretions not within those fixed boundaries. Clearly plaintiff would be permitted to introduce into evidence the deed referred to in the petition and the surveys referred to in the deed. Without allowing plaintiff to adduce evidence of the surveys referred to in the deed, it is not possible to determine whether he reserved to himself title to the accretions when he deeded Lots 2, 4 and 5 to the defendants Tappmeyer. If the deed, taking into consideration the surveys which are a part of the deed, describes the real property conveyed in such a way as to except the accretions, plaintiff may be able to bring his deed to the Tappmeyers under the exception in Frank v. Goddin, supra. At a trial on the merits, plaintiff would be permitted to introduce into evidence the deed referred to in the petition. Smiley v. Smiley’s Executors, 92 Mo. 105, 4 S.W. 443 (1887); 29 AmJur., Evidence § 861. Plaintiff would also be able to introduce evidence of the United States survey referred to in the deed. Ohlson v. Batterton, 230 S.W. 110 (Mo.1921).

It is alleged in the petition that the survey by the Elbring Surveying Company is attached to the deed which was recorded and which conveyed the property to plaintiff. This survey then is admissible in evidence under Wolf v. Miravalle, 372 S.W.2d 28 (Mo.1963) where it was held at page 31, “ * * * When a recorded map or plat of a subdivision is referred to in a deed conveying a portion of the tract, the map or plat becomes as much a portion of the deed as if it were fully incorporated therein. * * * n

We hold that under the pleadings plaintiff could have proved by means of the surveys that he conveyed the land ■ to Duenke in the 1939 deed by such boundaries and descriptions that he reserved to himself title to the accretions.

Plaintiff admits that he has no standing to challenge the collector’s deed for taxes unless he can prevail as the owner of the accretions. Upon retrial, if the court decides in plaintiffs favor as to his title to the accretions, the matter of the collector’s deed for taxes must be litigated. If it is determined that plaintiff has no interest in the accretions, he has no standing to challenge the tax deed and there need be no further proceedings.

Based upon the required liberal construction of the quiet title statute and an analysis of the pleaded facts interpreted most favorably for the plaintiff, we find that plaintiff’s petition states a cause of action. The defendants’ separate motions to dismiss and the Tappmeyers’ motion for judgment on the pleadings should have been denied.

REVERSED AND REMANDED.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: PER CURIAM. FLANIGAN, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harold W. PRESTON, Defendant-Appellant.
    No. 10612.
    Missouri Court of Appeals, Springfield District.
    Feb. 27, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

      Dee Wampler, Stephen L. Shepard, Wam-pler & Wampler, Springfield, for defendant-appellant.
   PER CURIAM.

Defendant Harold W. Preston was tried by the court after having waived trial by jury. The court found defendant to be guilty of driving while intoxicated. A timely motion for new trial was filed on behalf of defendant but said motion failed to persuade the court to grant relief. Thereafter, allocution was granted and defendant was informed that the court had assessed a one-year period of confinement in the county jail. However, the attention of this court must be prematurely diverted from the possible merits of the case to address a deficiency in the record.

The only transcribed entry which bears resemblance to a judgment is nothing more than a single docket entry which states: “. . . Motion for new trial is denied by the Court. Court sentences defendant to one year confinement in Greene County Jail and sets appeal bond for $2500.00. Defense attorney Shepard orally moves for stay on sentencing, and Court allows stay of execution for 3 days from 2/14/77 for filing of appeal bond.”

The above entry fails to constitute rendition of a final judgment from which an appeal may be taken. The appeal is premature and the case is remanded to the circuit court for rendition and entry of judgment. State v. Robbins, 481 S.W.2d 618 (Mo.App.1972).

All concur, except FLANIGAN, J., who dissents in separate opinion.

FLANIGAN, Judge,

dissenting.

I respectfully dissent for the reasons stated in my dissenting opinion in Gothard v. Spradling, 561 S.W.2d 448 (Mo.App., Springfield District, No. 10762, 1978).


author: PER CURIAM: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Eldon HAYES, Defendant-Appellant.
    No. 10774.
    Missouri Court of Appeals, Springfield District.
    Feb. 27, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John B. Newberry, Springfield, for defendant-appellant.
   PER CURIAM:

Defendant was found guilty of receiving stolen property and assessed punishment at three years’ imprisonment. Thereafter a motion for new trial was filed within the time allowed by the court. However, this appeal cannot presently be considered upon its merits because the transcript on appeal fails to demonstrate that a judgment has been entered.

The purported judgment states (after reciting appearances): “. . . Verdict of jury read to defendant. Defendant renews application for parole. Argument heard by State and defense. Parole denied. Execution of sentence ordered. Defendant permitted to remain free on bond pending appeal on his personal recognizance. Missouri Department of Probation and Parole report filed and ordered kept in separate closed file kept by the Circuit Clerk. Court being advised there is no separate file. Court withdraws presentence to keep in Court file.”

The final product of a criminal prosecution is a judgment. The purported judgment for the instant case is nothing more than a transcribed docket entry. Criminal convictions are of such gravity that the action taken by the court should be stated with certainty and preserved in some manner so that all who may be affected by said action may refer to the judgment to ascertain the rudimentary details of the proceeding.

It is not defendant’s fault that judgment was not entered as provided by Rule 27.11, V.A.M.R. Ergo, his appeal will not be dismissed. However, as it is necessary for appellate review that the judgment entry upon conviction be shown and preserved by the transcript, we relegate the appeal to limbo until such time as a supplemental transcript is received showing the proper and required entry of the judgment. State v. Asberry, 553 S.W.2d 902, 903[2] (Mo.App.1977).

It is so ordered.

All concur, except FLANIGAN, J., dissents in separate opinion.

FLANIGAN, Judge.

I respectfully dissent for the reasons stated in my dissenting opinion in Gothard v. Spradling, 561 S.W.2d 448 (Mo.App., 1978).


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. John Forrest JOHNSON et al., Exceptions of Ray Morris, et al., Respondents.
    No. KCD 28374.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Bruce A. Ring, Chief Counsel, Earl H. Schrader, Jr., Darold W. Jenkins, Asst. Counsel, Kansas City, for Mo. State Highway Commission.
    Dan Hale, Strop, Watkins, Roberts & Hale, St. Joseph, for respondents.
    Before WELBORN, Special Judge, Presiding, SHANGLER, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Condemnation proceeding. Commissioners awarded Ray Morris and his wife $41,-040 damages. Both State Highway Commission and Morris excepted to commissioners’ award. On jury trial, damages were assessed at $90,000.00. State Highway Commission appeals.

Ray Morris and his wife own a 380-acre farm in Holt County, between Mound City and Craig. U. S. Route 59 crossed the farm in a northwest-southeast direction. The portion lying generally south of Route 59, consisting of some 300 acres, was bottom land. That to the north, some 80 acres, was hill or bluff land. This action involves the taking of 28.20 acres of the farm for new permanent right-of-way for Interstate Route 29, which ran through the bottom land on the farm south of and roughly parallel to Route 59, leaving 166.24 acres south of the new highway. Also taken were 2.35 acres for a county road and 2.02 acres for use as permanent drainage easements. The commission also appropriated 26.39 acres of the hill land as a borrow area and a temporary easement of 2.30 acres as a roadway from the borrow area to the construction site. Those areas were returned to the owner of the land upon completion of the project.

The condemnation petition was filed July 13, 1971. Report of Commissioners was filed January 13, 1972. Both parties excepted to the report and the exceptions went to trial before a jury on July 14,1975. Morris, testifying in his own behalf, stated that the farm had a value of $340,000 before the taking and $226,000 afterwards. Other witnesses for Morris testified to comparable damage. Witnesses for the commission testified to before and after values of $235,290 and $202,440, or $32,850 damages, and $213,575 and $185,575, or $28,000 damages. The verdict was for $90,000.00.

In this court, the points of error relate to rulings by the trial court on the admission of testimony. The first relates to testimony by Morris concerning a recurring maintenance problem that he would have with drainage ditches in his bottom land as a result of the presence of the new highway.

Morris had farmed the land since 1944, first as a tenant, and, since 1964, as the owner. The 300 acres of bottom land was silt loam, in the Little Tark bottoms. Proper drainage of that area was important to its productivity. He had spent 30 years getting it properly drained. He had dug a ditch that ran north and south through the land, emptying into the Little Tark drainage ditch. 1-29 crossed that ditch and runoff from the roadway emptied into it. Morris had also dug a ditch along the south part of the farm. This ditch joined the one through the center of the farm shortly before it emptied into the Little Tark ditch.

According to Morris, he had to watch the way he plowed the bottom land to keep the ditches open. He stated that in his opinion, the day before the taking, the 300-acre tract drainage was “perfect * * * everything was drained. I didn’t have any pot holes. I think I was raising a crop on every foot of that land.”

Appellant’s claim of error arises from the following in the examination of Morris by his attorney:

“Q Now, Mr. Morris what are you going to have to — what is going to be the situation the next just say ten years about the drainage on your farm? Will you tell the Court and jury about that, what will that situation be?
“A Yes, sir. I will have to work at these ditches all the time. They keep silting in and I will have to keep digging them out and work at them all the time.
“MR. JENKINS: Object to the answer as being speculative and conjecture.
“THE COURT: Overruled. The jury will weigh it. It’s for the weight of it.
“Q (By Mr. Hale): What will happen if you do not keep these ditches cleaned out, Mr. Morris?
“MR. JENKINS: Same objection. Speculation and conjecture.
“THE COURT: Overruled.
“THE WITNESS: If I don’t the ditches fill up and that cuts my drainage off in the fields. I have to keep those ditches open to keep my drainage out of the field.”
“Q In your opinion from having farmed this farm the last thirty years and from seeing the conditions that now exist there, will you have an annual recurring job there to keep these ditches cleaned out more than you would have had had the highway not come through there?
“MR. JENKINS: Object, Your Honor, again an attempt to double damage the State.
“THE COURT: Overruled.
“THE WITNESS: Yes, sir.”

Between the two above-quoted excerpts from Morris’s testimony was an unobjected to question put to the witness, to which he replied without objection:

“Q (By Mr. Hale): Mr Morris, I am asking you a question about the conditions you have of silting if you have such a condition that now exists on your farm since the right-of-way has been built?
“A This center ditch here, all this soil on this 1-29 where it compacted it and so forth that all drains over to my center ditch, and they have taken bluegrass sod and sodded the crossing that crossed my drainage ditch with bluegrass sod and each little shower we get of rain that moves any soil comes down here and this bluegrass sod catches it, and the next rain then catches a little more soil and grows up through it. Eventually that is filling back in my tube. I have to have a tube back here and a tube back here and it fills my ditches all the way down through here. Just catches a little soil from each rain and eventually that builds up and fills my ditches.”

Appellant here contends that the testimony of Morris to the effect that increased the drainage of the bottom land resulting from the location of the highway across his property was a factor which reduced the value of his remaining land was “pure speculation and conjecture.” Appellant asks:

“ * * * How could Mr. Morris know that silt from the fill within the right-of-way would, after the prime contractor had finished his construction, continue to migrate into his drainage ditch, outside the maintenance areas, in amounts that would, in conjunction with silt migration from his own land, materially and substantially interfere with his row crop operations to an extent that it would be reflected in the fair market value of the farm? Further, and assuming that the silting condition in his drainage ditch, outside the state maintenance area, which he had encountered, was, in part, coming from the unfinished highway, and that that was sufficient to be a land market value (which counsel vigorously denies), how could the jury separate out the value of the market depressant factor contributed by the silt from his own land, the silting factor that pre-existed the public highway?”

Having farmed the land for 30 years, Morris was acutely aware of the relationship between the proper drainage of his land and its productivity. He had dug the ditches and knew what was required to keep them open and effectively operating. He testified to his observations concerning the effect on his ditches of the highway construction across his land. The fact that the construction had not been entirely completed did not preclude his expression of an opinion as to what would be required in the future. See State ex rel. State Highway Commission v. Moulder, 509 S.W.2d 131 (Mo.1974).

As the owner of the property, Morris was competent to testify to the reasonable market value of the farm “ * * * upon the assumption that he is particularly familiar with it and knows of the uses to which it is particularly adaptable, * * *.” Shelby County R-IV School District v. Herman, 392 S.W.2d 609, 613 [6-10] (Mo.1965). That the condemnor’s use of the property taken would adversely affect the drainage of the land remaining was a proper factor to be considered in assessing the after-taking value of the farm. State ex rel. State Highway Commission v. McMurtrey, 300 S.W.2d 521, 527[8, 9] (Mo.1957). Morris’s testimony showed his familiarity with the drainage problem. His testimony was based upon observation of what had occurred on his land. It related to a “prospective use factors * * * reasonably apparent at the time of appropriation and which a purchaser would normally consider in determining the value of the remaining property.” State ex rel. State Highway Commission v. Vesper, 419 S.W.2d 469, 473 (Mo.App.1967).

In Vesper, relied upon by appellant, the evidence there involved was found to have been improperly admitted. In that case, the question arose concerning evidence that some three months after the taking and in the course of the construction, a tree was removed and allowed to fall into the condemnee’s yard, damaging the yard and house. The court held that evidence “did not relate to a factor of market value reasonably apparent at the time of appropriation.” Ibid. From his knowledge and experience, Morris could testify with a reasonable degree of certainty that the existence of the highway across his farm would adversely affect the drainage. Therefore, the trial court did not err in refusing to exclude his testimony on the grounds that it was speculative and conjectural.

Appellant’s second assignment of error relates to testimony as to what would be required to make the “borrow” area productive land. As above noted, the commission took 26.39 acres of hill land as a borrow area. It actually used approximately 17 acres of the tract. Some 538,000 cubic yards of dirt were removed, the contractor removing the top of a ridge running through the area. The respondents presented the testimony of Leonard Best-gen who had worked for some 35 years in farm conservation. The witness testified in detail to the steps which, in his opinion, would be required in order to make the borrow area productive farm land. Appellant here asserts that the trial court erred in overruling its motion to strike Bestgen’s testimony for the reason that the testimony put before the jury an inconsistent theory of recovery which subjected the plaintiff to double damages. Appellant argues that the testimony put before the jury a basis for recovery by defendant for not only the diminished market value of the property but also the cost of restoration.

There is no necessity to recite in detail the testimony to which appellant now objects. Dispositive of the complaint on appeal is the statement of appellant’s counsel in his objection in the trial court. In his objection counsel stated:

“It is double damaging. I want this record to reflect my objection. It is an improper method because you are seeking to recover the cost of curing it to a higher use than it was before, Your Honor, and that is double damaging. He can testify as to what has to be done but if he testifies as to what it costs I think you have got error in your case. The record reflects my objection.
“THE COURT: I will permit the witness to testify as to what must be done, but the cost of rehabilitation I don’t believe — I think might be misinterpreted by the jury, and I will limit his testimony as to what must be done in order to put the land in its former use.”

The examination proceeded in accordance with the court’s ruling. At the conclusion of the witness’s testimony, appellant’s counsel moved to strike the testimony on the grounds that it improperly injected a “cost to cure” theory of damages into the case. The motion to strike was overruled.

Having agreed that the witness might testify to what was required to rehabilitate the borrow area so long as he did not specify the cost of the work, appellant is now in no position to complain that the trial court accepted this position. Parker v. Metropolitan St. By. Co., 140 Mo.App. 703, 126 S.W. 759, 760 (1910).

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    John M. WILLIS and Charlotte A. Willis, Appellants, v. COMMUNITY DEVELOPERS, INC., and M-W Builders, Inc., Respondents.
    No. KCD 28429.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Richard A. King, Independence, for appellants.
    Milton W. Adams, Kansas City, for respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiffs as payees under six promissory notes seek a declaratory judgment determining the extent of their right to interest. In particular, they ask a judicial interpretation of the following delinquency clause which appears in each note: “If default be made of more than thirty (30) days on any one payment, the note shall bear interest at the rate of Six Percent (6%) for the year of delinquency.” The trial court ruled contrary to plaintiffs’ contentions, and they appealed. After initial submission in this court, an opinion was handed down affirming the judgment. However, on plaintiffs’ motion a rehearing was granted and the case now pends on resubmission.

In 1971, plaintiffs sold to the defendant corporation all of their stock therein, and took back six promissory notes. Written agreements (one by each company) were made as to the sales dated September 18, 1971, which provided for the execution of those original six promissory notes. As to Community Developers, Inc., one note was to be and was executed for $236,525, secured by a deed of trust on real estate, non-interest bearing until January 1, 1978, payable $5,000 each January 1st to that date when the annual payment would increase to $10,000. This original note according to the Community Developers sales agreement was not to and did not contain any provision for the payment of interest in the event of default in the payment of installments; another original note was for $24,200, payable $4,850 annually beginning January 1, 1972, and it was to and did include the above delinquency clause; and the third original note, $37,500, was payable $625 monthly, beginning October 1, 1971, and this note also was to and did contain the delinquency clause. M-W Builders, Inc., at the same time gave a note for $87,500, which was to be paid $5,000 on January 1, 1972, and each year on the same date until January 1, 1978, when the annual payment was increased to $10,000. This note according to the M-W sales agreement was not to and did not contain the delinquency clause. M-W’s second note was for $26,775, payable $5,335 annually beginning January 1, 1972, and it was to and did include the delinquency clause. A third note was given by M-W, which was for $37,500, payable $625 per month beginning October 1,1971, non-interest bearing, and was to and did include the delinquency clause.

Subsequent negotiations resulting in six new notes being executed and delivered in varied amounts, but totalling the same as the original notes, and being substituted for the original notes, were delivered to plaintiffs. The variance in face amounts consisted of increasing Community Developers’ third note from $37,500 to $56,250, and decreasing M-W Builders’ third note from $37,500 to $18,750. Each of these six substitute notes included the delinquency clause, and each provided for reasonable attorney fees if placed in the hands of an attorney for collection. $4,287.50 was paid on the principal of two of the notes up to January 1, 1972.

The principal payments which became due on January 1, 1972, were not paid and remained delinquent until defendants belatedly made payment on May 1, 1972. Concurrently with full payment of the delinquent principal payments, defendants also made payment of interest on all six notes at 6% for the four months period of delinquency. Plaintiffs complained then and still complain that such payment falls short of defendants’ obligation, based on plaintiffs’ interpretation of the delinquency clause which they claim to require payment of interest for one full year from the date of default.

On these facts, the trial court ruled: 1) that the insertion of a penalty provision for delinquency interest in the Community Builders note for $236,525 and in the M-W Builders note for $87,500 was void, that no interest was due thereon because of delinquency, and that the interest paid by defendants with regard to those two notes on May 1, 1972 were voluntary payments which should be credited as payments on principal; and 2) that penalty interest on the other four notes was due only for the four month period of delinquency, not for a full year. Plaintiffs attack both of those rulings. We reverse as to the first ruling and affirm as to the second.

I.

The trial court gave three reasons for holding void and unenforceable the insertion of the delinquency provision into the $236,525 and the $87,500 notes. These asserted reasons are: (a) that the agreement for this additional provision which varied from the written sale agreements, violated the parol evidence rule; (b) that such agreement violated the statute of frauds; and (c) that such agreement was without consideration. In addition, defendants offer a still further basis of justification: that the provision for delinquency interest was inserted into the two notes in question pursuant to a mistake of the scrivener.

A.

There is no merit in the proposition that the oral modification of the sales agreements dated September 18, 1971, violated the parol evidence rule. That legal doctrine prohibits only an oral modification which allegedly occurred concurrently with or prior to a written agreement, but the doctrine does not prevent the showing of an oral modification subsequent to the written agreement. As stated in Chandler v. Rosewin Coats, Inc., 515 S.W.2d 184, 188 (Mo.App.1974): “Oral evidence of agreements made prior to or contemporaneous with a written contract is not admissible to vary its terms. Oral evidence of agreements which modify a written contract and which are made subsequent to its execution are admissible.” (Emphasis in the original).

In this case, the parties agreed to modify and rewrite the notes after the execution of the written agreements dated September 18, 1971. Therefore proof of those modifications does not violate the pa-rol evidence rule.

B.

Any defense based on the statute of frauds is an affirmative one which must be pleaded by the defendants. Rule 55.08. Defendants did not do so here, and the trial court therefore erred in considering the statute of frauds as a defense.

Moreover, the statute Section 432.-010 RSMo 1969 requires only that the agreement upon which action is brought “or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith * * In this case the obligations sought to be enforced by plaintiffs are written instruments, signed by the defendants. No violation of the statute of frauds can be found.

C.

Defendants argue correctly that any modification agreement must be supported by consideration. However, plaintiffs suggest several bases upon which consideration can be found to support the modification of the six notes. Of these, it suffices to discuss only one because that of itself shows sufficient consideration.

Of the original notes agreed to and delivered by the two corporate defendants on September 18,1971, the third note given by each defendant was in the face amount of $37,500. Pursuant to the modification subsequently agreed to, Community Developers assumed a larger burden (namely $56,250) while M-W Builders assumed a lesser burden ($18,750). This shifting of financial liability was enough of a change to afford consideration for the entire modification agreement. As stated in Section 84(e) Restatement of the Law, Contracts: “Consideration is not insufficient because of the fact * * * (c) that the party giving the consideration is then bound by a duty owed to the promisor or to the public, or by any duty imposed by the law of torts or crimes, to render some performance similar to that given or promised, if the act or forbearance given or promised as consideration differs in any way from what was previously due.”

D.

The contention now made by defendants, that the insertion of these delinquency clauses in the two notes was by mistake of the scrivener, was never pleaded by them. No such fact was found by the trial court, nor was there any evidence of such a mistake.

Moreover, not only did defendants not claim a mistake, but to the contrary on May 1,1972, they calculated and paid interest to plaintiffs on all six of the notes. When defendants asked for and obtained permission to amend their answer during the course of trial to add a defense of lack of consideration for the modification, even at that late date they made no claim of mistake and did not ask leave to amend to allege any mistake of the scrivener. Certainly it is too late now to suggest this defense for the first time on appeal (and not until rehearing, at that).

II.

As plaintiffs pleaded in their petition and the trial court found, the delinquency clause is ambiguous as to its meaning. Does it mean that interest should run for the period of delinquency in principal payments during each year, or does it mean that a thirty day delinquency shall entitle the payees of the notes interest for an entire year, in the nature of a penalty? If it is indeed a penalty bearing no relation to the actual damage suffered by the payees of the notes occasioned by the delinquency, it will not be enforced. See Norman v. Durham, 380 S.W.2d 296, 301-302 (Mo.1964); “A penalty is an agreement to pay a stipulated sum on breach of contract, irrespective of the damage sustained.”, 22 Am. Jur.2d Damages, Sec. 213, p. 298; “In case of contract for the payment of money only, a stipulation to pay a fixed sum in default of performance will be regarded as an agreement for a penalty, and not as a covenant for liquidated damages. The reason for this rule is that since, for the nonpayment of money owed, the law awards interest as damages, there is no difficulty in ascertaining the damages and they cannot be regarded as unliquidated.”, 22 Am.Jur.2d Damages, Sec. 230, p. 315. See also 25 C.J.S. Damages, Sec. 113(2), p. 1069, et seq.; Garrett v. Coast and Southern Federal Sav. & Loan Ass’n, 9 Cal.3d 731, 108 Cal.Rptr. 845, 511 P.2d 1197, 1202[9-11] (Cal.banc 1973); Anno. 63 A.L.R.3d 50, 59. There is no showing here that plaintiffs’ damages would exceed a legal rate of interest, and what they are contending for, if sustained, would place them in the untenable position of asking for an unenforceable penalty.

There is another reason which buttresses the trial court’s determination that no interest was due plaintiffs other than for the four month period of delinquency. As noted, the delinquency clause is ambiguous. Sec. 400.3-118, RSMo 1969 (Uniform Commercial Code), entitled “Ambiguous terms and rules of construction,” provides, “The following rules apply to every instrument; * * * (d) Unless otherwise specified a provision for interest means interest at the judgment rate at the place of payment from the date of the instrument, or if it is undated from the date of issue.” Sec. 408.-040 provides that: “Interest shall be allowed on all money due upon any judgment or order of any court, from the day of rendering the same until satisfaction be made by payment, accord or sale of property; * * *.” (Italics added.) Thus, the interest rate here applies only up to the time the installment payment was made, which stopped the further running of interest. See Ormsby v. State Life Ins. Co., 133 S.W.2d 797 (Tex.Civ.App.1939), holding that payment extinguishes the debt, and as a consequence, the extinguished debt bears no interest.

In support of their interpretation of the delinquency clause to call for interest for an entire year, plaintiffs argue that defendants drafted the notes and all ambiguities should be construed against them, and also that an inference should be drawn against defendants because they failed to call as a witness their lawyer who handled the transaction and who was the scrivener of the notes. The rules to which plaintiffs allude are merely aids to construction and do not in this case override the considerations discussed above and which lead to a conclusion contrary to plaintiffs’ interpretation.

The judgment is reversed to the extent that the $236,525 and the $87,500 notes were reformed by the trial court “to delete later inserted provisions for penalty interest” and to the extent that the trial court held that the penalty interest paid by the respective defendant on each of those two notes should be “declared to be a credit of said sum on the principal amount owing on said note.” The provisions for delinquency interest contained in those two notes are hereby adjudged valid. The judgment is affirmed insofar as it declared that penalty interest is due under the delinquency clause only for the period of delinquency. Costs on this appeal shall be divided equally between the parties.

All concur.

      . In its oral remarks at the close of the evidence, the trial court also intimated that the insertion of provision for delinquency interest in these two notes “probably also violates the dead man’s statute.” No such conclusion was made, however, in the formal Findings of Fact, Conclusions of Law and Judgment, nor do defendants seriously attempt to justify the judgment on this ground. Accordingly, no further attention will be paid to any question pertaining to the dead man’s statute. It can be mentioned in passing that defendants made no objection to any evidence on this ground.

      . Mistake is an affirmative defense. 54 Am. Jur.2d, Mistake, Accident, or Surprise, Sec. 25, p. 467. Although not specifically listed in Rule 55.08, it is “any other matter constituting an avoidance or affirmative defense” which must be pleaded affirmatively by a defendant under that Rule.

      . The petition contains the following allegation: “the true meaning and legal effect of the provisions of these promissory notes, and each of them, relating to the payment of interest in the event of default in payment of principal for more than 30 days * * * are not clearly understood by the Petitioners, and they therefore cannot safely proceed to enforce collection of sums due and owing, if any, by foreclosure pursuant to the terms and provisions of the aforesaid Deeds of Trust * * *


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Charles Anthony WICKIZER, Appellant.
    No. KCD 28840.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Jerry W. Venters, Jefferson City, for appellant.

      John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Charles Wickizer was convicted of injuring a building which was the property of the Missouri Division of Corrections while he was an inmate confined at the intermediate reformatory, popularly known as Al-goa. § 216.460, RSMo 1969. He was sentenced by the court under the Second Offender Act to imprisonment for three years.

On this appeal Wickizer raises points concerning the constitutionality of § 216.460, the admission of the serial records maintained by the penitentiary and double jeopardy because he was given administrative punishment. Affirmed.

By testimony from a guard and by his own admission, Wickizer broke eleven windows and an electric clock in a dormitory.

Wickizer first contends in his brief that § 216.460 is constitutionally infirm because it is vague for failure to identify the building or workshop or other property which inmates are forbidden to injure. He also urges the same section suffers from the constitutional defect that it denies Wickizer equal protection of the laws because it is not a crime for anyone not an inmate to injure a building or workshop belonging to the Department of Corrections. The first time these points were raised was in the motion for a new trial. In State v. Arnett, 370 S.W.2d 169, 172[1-3] (Mo.App.1963) it was held a constitutional question raised in the motion for a new trial was not raised soon enough. It is well settled, as stated in Arnett, that constitutional questions must be raised at the first opportunity which good pleading and orderly procedure will permit. Rule 25.06 allows any defense or objection which is capable of determination without a trial of the general issue to be raised before trial by motion. The constitutional infirmities in this section could have been raised by motion prior to trial. Since such objections were not raised at the first opportunity available, their inclusion in the motion for new trial came too late to gain judicial notice. Further, the constitutional validity of this statute is within the exclusive jurisdiction of the Supreme Court. Mo. Const, art. 5, § 3. For that reason this court has no jurisdiction to consider these attacks sua sponte under the plain error doctrine of Rule 27.20.

Wickizer next objects to admission of a certified transcript of the serial record maintained on Wickizer by the penitentiary. This transcript was certified by the warden. Wickizer contends this record was not properly identified under the Business Records Act, § 490.680, RSMo 1969. Wickizer misconceives the basis of the admissibility of this record. The record has been held admissible independent of the Uniform Business Records Act. State v. Plant, 461 S.W.2d 736, 738[2] (Mo.1971) and cases therein cited. Furthermore, in this case Wickizer took the stand and admitted his conviction of stealing for which he was incarcerated at the time of the incident. In short, Wickizer admitted everything sought to be shown by the certified serial record.

Wickizer finally contends he suffered double jeopardy when he was prosecuted in this action after he had been subjected to administrative discipline by the Department of Corrections. This point has been ruled directly against Wickizer in State v. Croney, 425 S.W.2d 65, 67[3, 4] (Mo.1968).

The judgment is affirmed.

All concur.


author: PRITCHARD, Presiding Judge.

text:
    Ruth HOWARD, Respondent, v. RESEARCH HOSPITAL AND MEDICAL CENTER, INC., Appellant.
    No. KCD 28842.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    John M. Kilroy and W. James Foland, Kansas City, for appellant; Shughart, Thomson & Kilroy, Kansas City, of counsel.
    M. Randall Vanet, Kansas City, for respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

Respondent, having had the verdict of a jury against her, was granted a new trial because of error in giving Instruction No. 5 upon her contributory negligence in failing to call nurse assistance to get out of bed, and in ripping off a “Posey” (a restraining device), in that it omitted the element of whether or not she was in a confused or disoriented condition at the time of her fall.

Appellant contends that respondent failed to make a submissible case of its negligence, as submitted, that it failed properly to restrain respondent or failed to provide her with adequate nursing supervision. The evidence bearing upon that submission is as follows:

Respondent, being then 76 years old and weighing 100 pounds, was admitted to appellant hospital on October 8, 1973. She testified that she had no recollection of arriving at the hospital, and her doctor testified that her blood loss made her pale, weak and dizzy. At 10:45 p. m. that day, she was given 500 mgs. of Doriden, a sleeping medication which takes 4 to 8 hours to wear off. At 9:30 p. m. on the following day, respondent was given an additional 500 mgs. of Doriden. Prior to the latter time, respondent was visited by nurses, Mary Ellsberry and Edna Foster, for about 15 minutes, at which time Mary testified that respondent was very tired, sleepy and listless. At about 11:30 p. m., respondent's bed was placed in the low position, its wheels were locked in place, and the gide rails were put up at about midnight, at which time her vital signs were taken, the nurse’s entry showing that she appeared quite sleepy. At 12:30 a. m., October 10, 1973, respondent was found on the floor next to her bed, and she told the nurse that she was going to the bathroom. Respondent was then placed back in bed and upon a bedpan, and she was found asleep by a nurse thereon at 12:45. She was awakened at 1:10 a. m. to remove the bedpan, which did not contain any blood or stool. At that time the nurse told respondent to call for assistance if she needed to go to the bathroom, and a Posey restraint, a nurse's decision, was applied. The head nurse, who placed the Posey on respondent, could not recall if she put it on tightly or loosely, which is also a nurse’s decision — if put on loosely, it serves as a reminder not to get out of bed; if tied tightly, it would prevent the patient from getting out of bed. If the Posey is too loose, the patient gets out of it.

Respondent’s doctor testified further that respondent must have been confused when she was found out of bed (on the floor) at 12:30 a. m. Nurse Reynolds testified that the reason respondent was told to call for assistance in going to the bathroom was for her safety, and because she was under a sedative, she might hurt herself if she tried to get up by herself.

Between 1:10 a. m. and 5:15 a. m., the nurses on duty periodically looked in upon respondent and observed her sleeping. At the latter time, respondent was found on the floor by her bed, the straps of the Posey being still attached to the bed. The Posey was not defective. Respondent was then x-rayed and it was found that she had fractured her hip, and surgery was performed thereafter to correct it, and respondent was discharged from the hospital on November 2, 1973.

The incident report stated that respondent’s “apparent condition before incident” was that she was “disoriented”, and a Dr. Willoughby’s comment thereon was that she was disoriented, sedated, and not normal and alert. Respondent remembered only that when she first fell, she “had the feeling [that she] was going just round and around and around” and she remembered a commotion in the room and a nurse’s comments. She did not remember a restraint being placed upon her or that she was given specific instructions.

Obviously, considering the foregoing facts in the light most favorable to respondent in support of her case, she made a submissible case of negligence against appellant. Of importance in this regard is respondent’s known debilitation from blood loss which made her pale, weak and dizzy. She required a sleeping medication. She had fallen to the floor from her bed once before the fall which caused her injury. It was for the jury to determine if respondent had been properly restrained by the “Po-sey” or whether she had been sufficiently supervised by attending nurses. The thrust of appellant’s argument is that respondent was required to present expert evidence as to proper application of the “Posey” restraint, and as to proper nurse supervision, to demonstrate a departure from appellant’s standard of care. In Steele v. Woods, 327 S.W.2d 187, 198[18] (Mo.1959), the court noted that it is usually necessary to prove by expert testimony from members of the medical profession that the skill or technique used did not conform to the standards of the profession, and said further, “But where the conduct in question does not involve skill or technique in an area where knowledge of such is a peculiar possession of the profession and does involve a matter which any layman (or court) could know, then such ‘professional’ testimony is not necessary. [Citing authority and cases in footnote 25].” Cases cited by appellant, Williams v. Chamberlain, 316 S.W.2d 505 (Mo.1958); Swope v. Printz, 468 S.W.2d 34 (Mo.1971); and James v. Sunshine Biscuits, Inc., 402 S.W.2d 364 (Mo.1966) [expert testimony necessary to show proximate cause of death], involve charges of medical malpractice or charges of wrongful death where without expert testimony “a jury may not know (or guess) whether the defendant’s acts did or did not conform to the required standards.” Chamberlain, supra, 316 S.W.2d 511[2 — 6]. So also in Fisher v. Wilkinson, 382 S.W.2d 627 (Mo.1964), but where the court noted, at page 632[7], “It is recognized that in certain cases involving malpractice the testimony of an expert witness is not always necessary to make a submissible case for the jury.” More appropriate to the facts of this case are these cases following: Norris v. Rowan Memorial Hospital, Inc., 21 N.C.App. 623, 205 S.E.2d 345 (1974), where plaintiff alleged that hospital employees were negligent in failing to raise side rails on her bed, from which she fell, and failed to give her proper attention. The court reversed the direction of the verdict for defendant and said, page 348[1 — 3], “Where, as here, the alleged breach of duty did not involve the rendering or failure to render professional nursing or medical services requiring special skills, expert testimony on behalf of the plaintiff as to the standard of due care prevailing among hospitals in like situations is not necessary to develop a case of negligence for the jury”; Morningside Hospital & Training School for Nurses v. Pennington, 189 Okl. 170, 114 P.2d 943 (1941), where the court said that the question of what was the proper method of restraint (where deceased fell out of bed) was for the jury; McCoy v. Wesley Hospital and Nurse Training School, 188 Kan. 325, 362 P.2d 841, 851[7] (1961), where deceased fell out of bed after surgery and while under sedation and anesthetics, the court saying, “It has been held a hospital must exercise toward a patient such reasonable care as his known condition may require, and that degree of care is in proportion to his known physical and mental ailments”; D’Antoni v. Sara Mayo Hospital, 144 So.2d 643 (La.App.1962) (the raising of bed side rails is a mechanical act which any unskilled person can perform); Ford v. Vanderbilt University, 40 Tenn.App. 87, 289 S.W.2d 210, 213 (1955). Here, a lay juror would know whether a properly placed “Po-sey” would have prevented respondent’s getting out of bed, and whether more supervision than was given would have prevented the fall. Expert testimony on those subjects was not necessary, and the trial court did not err in overruling appellant’s motion for directed verdict.

Instruction No. 5 is:

“Your verdict must be for the defendant, whether or not defendant was negligent; if you believe:
First, plaintiff failed to follow the instructions of the nurse to call for assistance to get out of bed, or plaintiff ripped off the Posey placed upon her, and
Second, plaintiff’s conduct in any one or more of the respects submitted in paragraph First was negligent, and * * * t)

The propriety of the trial court’s grant of a new trial because of error in giving this instruction is sustained by the case of Koirtyohann v. Washington Plumbing & Heating Co., 471 S.W.2d 217, 221[6] (Mo.1971). There, the order of new trial was affirmed because the contributory negligence instruction failed to submit knowledge and appreciation of danger of plaintiff in working in an unshored ditch, and of other conditions therein. The court said, “In a situation in which one’s knowledge of general conditions from which danger arose is not necessarily knowledge and appreciation of that danger, before one charged with contributory negligence can be convicted thereof, there must be a finding that he acted or failed to act with knowledge and appreciation, actual or constructive, of the danger of injury which his conduct involved. Bledsoe v. Northside Supply & Development Co., Mo., 429 S.W.2d 727; Davidson v. International Shoe Co., Mo., 427 S.W.2d 421.” Here, Instruction No. 5 ignored the evidence and issue as to respondent’s mental condition, and omitted any requirement as to her contributory negligence of a finding that she have knowledge and appreciation of the danger of failing to call for assistance in getting out of bed, or removing the Posey restraint. As in Koirtyohann, the instruction was prejudicially erroneous. See the inclusion of the omitted finding, held proper after retrial, in Koirtyohann v. Washington Plumbing & Heating Co., 494 S.W.2d 665, 666 (Mo.App.1973). Upon retrial, the parties may consider the advisability of defining negligence as may be submitted in any contributory negligence instruction.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Angelo TAVERNARO, Plaintiff-Respondent, v. John A. DUNN and Josephine M. Dunn, Charles Cappo, a/k/a Charles Cacioppo d/b/a Industrial Wrecking Co., and Industrial Wrecking & Salvage, Inc., Defendants-Appellants.
    Nos. KCD 28871, KCD 28879.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for defendants-appellants.
    Ennis, Browne & Tapp, Allan R. Browne, Kansas City, for plaintiff-respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment on verdict awarding actual and punitive damages for trespass on land. Appellants’ contentions question the sufficiency of evidence and the propriety of verdict forms. Affirmed.

Plaintiff has been since July 29, 1959, the owner of Lot Thirteen (13), corrected plat of Leland Heights, an addition in and to Kansas City, Missouri. He alleged that subsequent to his acquisition of Lot 13 defendants John A. Dunn, Josephine Dunn, Charles Cappo (Cacioppo), and his company, Industrial Wrecking & Salvage, Inc., acting jointly and in behalf of one another, wrongfully entered Lot 13 and dumped, threw, and deposited demolition debris and trash, crushing and destroying trees, grass, and vegetation, and covering the ground to a depth of several feet, to the damage and depreciation of his lot in sum $4,000. He alleged also that such acts were done intentionally and maliciously for which he should be awarded punitive damages of $10,000.

The jury assessed plaintiff’s actual damages at $4,000 against defendants John A. Dunn, Josephine M. Dunn, Charles Cappo, and Industrial Wrecking & Salvage, Inc., jointly and severally, and awarded him punitive damages of $2,000 against each of defendants John Dunn and Charles Cappo.

Appellants Cappo and Industrial Wrecking assert the evidence was insufficient to prove that they intentionally or otherwise dumped on plaintiff’s land, and the verdict to that effect is based on guesswork and speculation because plaintiff “presumed the defendants dumped debris on his land.” They assert also that there was no proof of value of plaintiff’s land.

There is no question that a verdict cannot be based on guesswork or speculation, Pyles v. Roth, 421 S.W.2d 261 (Mo. 1967); Quinn v. St. Louis Public Service Co., 318 S.W.2d 316 (Mo.1958); Antweiler v. Prudential Insurance Co., 290 S.W.2d 652 (Mo.App.1956); and that the verdict for this plaintiff required evidence of the depreciation in value of his land, Denney v. Spot Martin, Inc., 328 S.W.2d 399 (Mo.App.1959); Esmar v. Zurich Ins. Co., 485 S.W.2d 417 (Mo.1972).

Appellants’ arguments emphasize their counterevidence and testimony of Mr. Tav-ernaro that “I never seen him [Cappo] personally” dump trash on his premises. They also deprecate his testimony on the value of his lot before and after the acts charged to defendants.

Appellants’ arguments are not conclusive because there was evidence favorable to plaintiff on the issues presented by appellants’ contentions and arguments. Denney v. Spot Martin, Inc., supra.

Mr. Tavernaro is a stonemason employed by the Kansas City Park Department. He acquired his lot from Virgil Hawk in exchange for a 3-year-old Oldsmobile automobile in good condition and an unremembered amount of cash. The lot, located on the north side of 59th Street near Chelsea, is 40 feet by 120 feet, level from the street north through the first 35 feet, and then falling 20 feet towards a deep ravine on the rear of the Dunn property to the north. Mr. Hawk had started a walkout basement prior to his sale of the lot to Mr. Tavernaro. There was no dump there; “it looked like a park.”

Two or three years after his purchase of Lot 13, Mr. Tavernaro purchased a quantity of Carthage cut stone salvaged from a building and stacked it in the center of the lot near the old basement. He was going to use part of it for a house and part at another location. At that time his lot was otherwise clean.

Subsequently he went to the lot to get some stone for use by the City on a viaduct near Highway 50 and Ward Parkway in the Plaza. He found “about 20 rock [cut stones] thrown up with the bad boulders. * * * debris as rock broken up, concrete broken up, wood and * * * tree stumps * * * right on my own property. * * there was a bulldozer there * * *. He was pushing debris to the east. There was [debris] piled up right there from the edge of my property and clear across.” Mr. Tav-ernaro questioned the bulldozer operator and, as a result of the conversation, called Charles Cappo at the office of his company at 12th and Jackson. He complained to Mr. Cappo of the dumping on Lot 13, its resultant loss in value, and the destruction of the cut stone. Mr. Cappo offered to give Mr. Tavernaro some stone from a church he was salvaging, and said he had permission from Mr. Dunn to dump demolition debris on the Tavernaro lot. Mr. Tavernaro met with Mr. Cappo and John Dunn at the lot two or three days later to discuss the matter. Mr. Tavernaro showed them the debris dumped on his lot. Mr. Dunn offered to give $450 for the lot, and asked for proof of ownership. Mr. Tavernaro had his lot surveyed by Anderson Survey Company. They placed pins on the corners of the lot and they enclosed the debris about which Mr. Tavernaro complained. The debris had a depth of 20 feet. After he obtained the survey, Mr. Tavernaro again talked with Mr. Cappo at the office of his Industrial Wrecking Company at 12th and Jackson. Mr. Cappo said if he had the money he would buy the lot because it was going to be good property. Subsequent to this meeting, Mr. Tavernaro received notice of an application by Mr. Cappo and Mr. Dunn for a zoning permit to dump demolition debris at 59th and Cypress. The application was on an Industrial Wrecking & Salvage, Inc., letterhead, and it authorized Mr. Cappo to act as representative of Mr. Dunn. Dumping continued in the area of the Dunn and Tavernaro properties and on Mr. Taverna-ro’s lot. Mr. Tavernaro saw Mr. Cappo’s company truck dumping on his lot as late as the Saturday before trial. Mr. Cappo admitted that he maintained a bulldozer and operator at the 59th and Cypress site and that he was “the person” authorized to operate a dump there. Mr. Tavernaro stated the lot was worth $4,000 when purchased “with my own savings money.” After it was covered by debris by defendants, he “wouldn’t give them a dime.”

The foregoing abstract of evidence, all of which was in addition to Mr. Tavernaro’s “presumption” which went in without objection, permitted the jury to find that Mr. Cappo and his company’s truck dumped demolition debris on Mr. Tav-ernaro’s property to his damage; and his opinion as the owner of his before-and-after dumping values was sufficient to support actual damages of $4,000. Esmar v. Zurich Ins. Co., supra. The continuation of dumping by Mr. Cappo and his company’s truck after Mr. Tavernaro’s protest permitted an inference of the intentional wrongdoing, bad faith, and malice necessary to an award of punitive damages.

Instruction 20 permitted a verdict upon agreement of nine or more jurors. It also contained forms of verdict. Appellants contend “it allowed an open-ended verdict and did not give the jury an option to find against one defendant and in favor of the other defendant, and consequently did not dispose of the issues.”

This complaint is unfounded as demonstrated by the form suggested in the event the jury found actual damages for plaintiff, viz.:

“We, the jury find the issues in favor of plaintiff and against defendants (here insert the names of defendants against who[m] you find) and we assess plaintiff’s damage at $_(stating the amount).”

A similar form was suggested for punitive damages permitting findings against named defendants individually in individual amounts, all as per MAI 36.12.

Judgment affirmed.

All concur.

      . Respondent’s brief represents that appellants Dunn have settled with plaintiff; appellants’ brief is presented in. the names of Charles Cap-po and “Industrial Wrecking Company.”


text:
    STATE of Missouri, Respondent, v. Victor R. MEANEY, Appellant.
    No. KCD 28919.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Bob J. Hiler, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Victor R. Meaney was convicted of murder in the second degree and the jury assessed punishment at twenty years imprisonment. Section 559.020, RSMo 1969.

On this appeal Meaney asserts the court erred in refusing to accept a plea of guilty to a reduced charge of manslaughter and the failure of the State to prove a submissi-ble case of second degree murder. Affirmed.

Meaney was charged with second degree murder but following a plea negotiation with the State, a reduced charge of manslaughter was filed. Meaney, through his attorney, announced he was pleading guilty to the charge of manslaughter. The court conducted an examination to determine the voluntary nature of the plea. All went well until the court inquired about the details of the shooting. At this time Meaney stated he had only shot in self-defense and at another time stated he did not intend for the gun to be fired. The court stated it could not accept the plea of guilty. The State requested leave to reinstate the charge of second degree murder to which Meaney’s counsel stated he had no objection.

Meaney now contends the court erred in refusing to accept his plea because the maximum punishment for manslaughter is ten years and he received a sentence of twenty years.

Rule 25.04 provides a court may refuse to accept a plea of guilty. Early in the court’s examination of Meaney to determine the voluntary nature of his plea, the court advised Meaney it was not required to accept his plea. When it became evident Meaney was actually contending he had shot the deceased either in self-defense or accidentally, the court refused to accept the plea. There is no absolute or constitutional right to have a guilty plea accepted. Stewart v. State, 499 S.W.2d 830, 832[1-3] (Mo.App.1973); Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

Meaney, however, relies upon North Carolina v. Alford, 400 U.S. 25, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1970). However, Alford did not hold the accused had a constitutional right to have a guilty plea accepted but in fact stated to the contrary in footnote 11. Meaney, in this case, made no attempt to enter a plea such as Alford entered.

In view of Meaney’s statements during the hearing that he acted only in self-defense or his acts resulted only from accident, the court was fully justified in refusing to accept his plea of guilty.

The jury could reasonably have found that Allen Overcast had previously shared an apartment with Meaney. At that time Overcast was the owner of a blaeklight, a device to focus ultraviolet light. When Overcast ceased sharing living quarters with Meaney, the blaeklight was left behind. Thereafter Overcast became obsessed with a desire to regain the light.

On the night of the shooting, Overcast placed several calls to Meaney demanding return of his light. When Meaney failed to meet Overcast to deliver the light as he had promised, Overcast, in company with his brother and sister-in-law, drove by Mea-ney’s house. Overcast was determined to regain his light and told his brother to stop. Overcast approached the darkened apartment of Meaney and knocked on the door several times. Meaney finally came to the door completely wrapped in a blanket so that his hands were concealed. Overcast demanded return of his light and when Meaney stated he would not return it, Overcast said he was going in after it. As he started to enter the apartment, Meaney dropped down on one knee and fired a single shot which struck Overcast in the temple. Overcast died shortly thereafter.

The above evidence came from the State’s witnesses. Meaney testified in his own defense. According to his version, when he went to the door in response to the knocking, Overcast and his brother immediately came inside and started pushing Mea-ney. Meaney stated Overcast had his hands around his throat when Meaney fired.

After the shooting Meaney jumped out of a window and ran to a house next door. He was later found there by a policeman when he fell through a false ceiling in the policeman’s' presence. The gun was found also. Meaney stated Overcast had been a non-violent, decent person and he considered him to be a friend. He stated he did not expect trouble after Overcast made his last telephone call prior to coming to his apartment.

Meaney admitted he had answered the door with a gun in his hand and even though the gun could be fired by pulling the trigger, he had cocked it prior to going to the door. He stated Overcast told him before he opened the door that if he had to he would beat Meaney. Meaney never thought Overcast was armed.

Meaney’s testimony was corroborated in most respects by his girl friend and by his roommate.

Meaney contends the evidence, as outlined above, was insufficient to support a submission of second degree murder to the jury. The court submitted second degree murder and manslaughter. The court also gave instructions on self-defense and excusable homicide. Meaney did not offer any instructions.

On this appeal this court must consider the evidence and all favorable inferences to be reasonably drawn therefrom in the light most favorable to the State and all contrary evidence and inferences must be disregarded. State v. Franco, 544 S.W.2d 533, 534[1—4] (Mo. banc 1976). “[T]he wilful, premeditated killing of a human being with malice aforethought constitutes murder in the second degree.” State v. Franco at 535.

Viewing the evidence in the light most favorable to the State, together with all favorable inferences to be reasonably drawn therefrom, reveals evidence sufficient to submit to the jury a question of whether or not Meaney had committed second degree murder. Premeditation simply requires thought before the act for any length of time however short. State v. Smart, 485 S.W.2d 90, 93[2] (Mo.1972). The evidence that Meaney knelt on one knee prior to firing the shot allowed the jury to reasonably infer that he had done so to better his position prior to firing the shot. The evidence the pistol was cocked prior to Meaney going to the door would allow the jury to find premeditation.

Wilful simply means intentional. State v. Adams, 532 S.W.2d 524, 527[2-4] (Mo.App.1976). The evidence likewise would permit the jury to find and infer that Meaney intentionally fired the shot which killed Overcast.

Malice has been said to be the intentional doing of a wrongful act without just cause or excuse. State v. Allen, 530 S.W.2d 415, 420[5-7] (Mo.App.1975). The evidence likewise would permit the jury to find Meaney intentionally fired the shot.

The intent to kill may be inferred from the circumstances surrounding the crime. State v. Allen, supra at 420[9 — 11]. Here there were substantial facts and circumstances from which a jury could find all the elements of second degree murder.

Meaney does not so much question the absence of evidence to support a finding of second degree murder as he contends the evidence showed as a matter of law that he acted in self-defense. Of course, in making this argument Meaney relies entirely on his own testimony as corroborated by his other witnesses.

The applicable rule is stated in State v. Jackson, 522 S.W.2d 317, 319[1, 2] (Mo.App.1975):

What constitutes self-defense, of course, is not a question of fact for the jury, but a question of law. State v. Rash, 359 Mo. 215, 221 S.W.2d 124[1] (1949); 41 C.J.S. Homicide § 344, p. 108. But where the evidence is conflicting or of such a character that different inferences might reasonably be drawn therefrom, it is generally a question of fact for the jury to determine whether the accused acted in self-defense in a particular case. State v. Hammonds, 459 S.W.2d 365, 368[4] (Mo.1970); State v. Hicks, 438 S.W.2d 215, 219[4] (Mo.1969); State v. Vincent, 321 S.W.2d 439, 442[6], 444[11] (Mo.1959). Only when all the evidence is undisputed and clear should a court dispose of a murder or manslaughter charge by acquittal without tendering the issue of self-defense to the jury. State v. Rash, supra, 359 Mo. 215, 221 S.W.2d 124, 125[2] (1949). Rarely, then, is self-defense declared by law so as to bar the submission of the homicide offense altogether.

It is apparent the evidence in this case is not free of dispute. For that reason the question of whether or not Meaney acted in self-defense was properly submitted to the' jury.

Meaney raises other points in his brief but these are presented without any citation or authority. These points are deemed to have been waived or abandoned. State v. Halliburton, 531 S.W.2d 554, 556[4-6] (Mo.App.1975).

The judgment is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Norvell EMORY, Appellant.
    No. KCD 28956.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant, charged with robbery in the first degree through the use of a dangerous and deadly weapon (Section 560.135, RSMo 1969), was tried to a jury and found guilty of stealing from the person (Section 560.-161, RSMo 1969). The jury assessed his punishment at four years imprisonment and this appeal followed.

A brief synopsis of the evidence will suffice as its sufficiency has not been questioned. During the early morning hours of November 15, 1975, the victim left his girl friend’s home in Kansas City, Missouri. He was afoot. While en route to a cabstand he was accosted by defendant and an accomplice. Defendant, brandishing a pistol, ordered the victim to remove his jacket and shoes. During the encounter, defendant struck the victim with the pistol and knocked him to the ground. Defendant and his accomplice eventually relieved the victim of two silver rings, one man’s leather jacket, two “platform” shoes, and one Timex watch.

A single point is pressed by defendant on appeal — error in admitting certain hearsay evidence proffered by the state as to the identity of defendant’s accomplice. To defendant’s chagrin, the single point has not been preserved for appellate review.

Chronologically, the guilty verdict in this case was returned by the jury on April 28, 1976. On May 26,1976, with nothing in the record to show or suggest that defendant applied for or that the trial court granted additional time within which to do so, defendant filed a motion for new trial. Rule 27.20(a) provides, inter alia, that “[s]uch motion [motion for new trial] shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion.” (Emphasis added.) Ergo, in view of the record in this case the motion for new trial was required to be filed “within ten days after the return of the verdict.” Rule 27.20(a), supra.

The requirements of Rule 27.20, supra, relating to the time for filing a motion for new trial are mandatory and noncompliance therewith must be noticed sua sponte by this court as neither it nor the parties can waive the rule’s requirements. State v. Tucker, 451 S.W.2d 91 (Mo.1970); State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Maddox, 549 S.W.2d 931 (Mo.App.1977); and State v. Morse, 526 S.W.2d 432 (Mo.App.1975). A tardily filed motion for new trial, as here (filed on the 28th day after the verdict was returned), is a nullity and preserves nothing for review. State v. Richardson, 519 S.W.2d 15 (Mo.1975); State v. Brown, 543 S.W.2d 796 (Mo.App.1976); and State v. Morse, supra.

The nature of the error constituting defendant’s single point on appeal, even if it had substance, fails, by any stretch of legal imagination, to invite review under Rule 27.20(c), the “plain error” rule. Moreover, it fails to sufficiently relate to the “sufficiency of the information or indictment, verdict, judgment and sentence” as to demand review under Rule 28.02 even though improperly raised or preserved. Tangentially, the areas of review mandated by Rule 28.02, supra, having been carefully perused, afford no relief to defendant.

Judgment affirmed.

All concur.