author: WELBORN, Special Judge.

text:
    Ruth REEVES, Elmo Guilford and Mary Sybert, Appellants, v. Louis BOONE and Kenneth Guilford, Respondents.
    No. KCD 30527.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Holliday & Holliday, Harold L. Holliday, Jr., Kansas City, for appellants.
    Cleaveland, Macoubrie, Lewis & Cox, Kenneth R. Lewis, Chillicothe, for respondents.
    Before WASSERSTROM, C. J., Presiding, and WELBORN and SMITH, Special Judges.
   WELBORN, Special Judge.

Action by three children to set aside deed by mother of family farm to her other two children. Trial court denied relief. This appeal follows.

Dan and Ruth Guilford, husband and wife, lived on a 79-acre farm in Livingston County for more than 40 years. They had five children, plaintiffs Elmo Guilford, 60 years of age at time of the trial of this case, Mary Sybert, 58, and Ruth Reeves, 37, and defendants Lois Boone, 53, and Kenneth Guilford, 39. All of the children except Kenneth had left the farm by 1959. Kenneth was never married and, except for two years in military service, had lived on the farm with his parents all his life.

Dan Guilford died January 1, 1973. His widow, Ruth, was 74 years of age at that time. According to plaintiff Ruth Reeves, her mother suffered a stroke in November, 1972 and was thereafter unable to do her household chores as she had done previously. In December, 1972, “She still wasn’t herself.”

Following her husband’s funeral, the mother went to her daughter Lois’s house in Chillicothe. According to Lois, she was aware that her mother at that time had circulatory problems for which she took medication. She said that her mother had not had a stroke in November, 1972 although her mother did have her “first spell” with her circulatory problem at that time. Lois stated that about a week after her father’s death, a severe ice storm struck the farm. The house had no indoor plumbing and it was her and her husband’s idea for her mother to live with her while Kenneth build an indoor bath at the farm house.

According to Lois, in March, 1973, she took her mother to the office of attorney Robert Frith in Chillicothe. Her mother had the deed to the farm. She gave it to Frith and told him that she wanted to make a “joint deed with me and Kenneth on there with her, but she wanted that place as long as she lived and then she wanted it to go to us because she knowed who would look after her and she got to places she needed to go when she needed to get there.” According to Lois, her mother asked Frith about the necessity of recording the deed and Frith told her that it did not need to be recorded as long as the deed was delivered to Lois and she knew where it was.

On March 8, 1973, Lois and. her mother returned to Frith’s office and the’ deed here under attack was executed. It conveyed the farm to the mother, Lois and Kenneth as joint tenants with right of survivorship. Her mother handed the deed to Lois and told her to take care of it. Lois kept the deed in her dresser drawer. None of the other children except Kenneth was told of it. The deed was filed for record March 11, 1977, the day after Ruth Guilford died.

Ruth had returned to the farm in April, 1973. According to Lois, her mother was anxious to return to the farm but waited until the bathroom had been completed. Kenneth said that, after she returned to the farm, his mother took care of the house, cooked the meals and washed the dishes.

Suit to set aside the deed was filed May 10,1977. (The suit also involved some bank accounts but no complaint has been made regarding the trial court’s judgment in that respect.) It alleged that the deed was the product of undue influence exerted by Lois and Kenneth on their mother. At the trial, plaintiff Ruth Reeves testified for plaintiffs and Lois and Kenneth were also called by plaintiffs and testified. At the close of plaintiffs’ case, defendants moved for a directed verdict. The motion was sustained, the court concluding: “There was not sufficient evidence produced to support a finding of undue influence or to support a finding of lack of capacity of the grantor.” Appellants here complain that such finding was “contrary to the weight of the evidence and contrary to the law of the State of Missouri.”

Appellants’ argument here is premised on the theory that in reviewing the trial court’s judgment, the evidence must be viewed in the light most favorable to appellants, giving them the benefit of all reasonable inferences reasonably deducible therefrom. Appellants rely upon cases applying such rule where a verdict has been directed in a jury case. Their cited cases, Blackburn v. Katz Drug Company, 520 S.W.2d 668 (Mo.App.1975); Black v. Kansas City South ern Ry. Co., 436 S.W.2d 19 (Mo. banc 1968); and Moore v. Eden, 405 S.W.2d 910 (Mo.1966), are of that nature. This was a court-tried action in equity and the authorities relied upon by appellants are inapplicable. “ * * * [T]he effect of defendants’ motion here was simply to submit the case for decision on its merits, and the trial court had the right to weigh the evidence and decide the case against the plaintiffs.” Lee v. Smith, 484 S.W.2d 38, 42[3] (Mo.App.1972). Review of such decision is in accordance with the rules stated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Brassfield v. Allwood, 557 S.W.2d 674, 677-678[6, 7] (Mo.App.1977); Fix v. Fix Material Co. Inc., 538 S.W.2d 351, 355[1-4] (Mo.App.1976).

Basic to appellants’ contention here is their position that the evidence established a fiduciary relationship between respondents and their mother. They point to evidence that both respondents, at their mother's request, wrote out checks on their mother’s bank account which their mother signed. Kenneth said that he did so “a few times but I don’t know how many times.” Lois said that she did so two or three times while her mother was living with her. Kenneth acknowledged that his drawing the checks evidenced that his mother trusted him. He denied, however, that he handled his mother’s banking business for her. Certainly the activities of the respondents in this regard did not amount to a complete assumption by them of control over their mother’s financial affairs such as existed in Bolin v. Anders, 559 S.W.2d 235 (Mo.App.1977), cited by appellants, where this court concluded that a confidential relationship, coupled with facts and circumstances showing undue influence, justified setting aside deeds.

Appellants point to a handwritten note, dated April 19, 1974, in which his mother stated that she wanted Kenneth “to have this place as long as he wants to live here * * * for he sure been good to care for me comes to the house every two hours to see if I am all right.” According to Kenneth, his mother told him that, if anything happened to her, there was a letter under the rug in the bathroom and that he was to get it and read it. He first, read the letter the day of his mother’s funeral. Obviously this letter does express the appreciation which his mother had for Kenneth’s attention to her. However, bearing a date more than a year after the deed, it would not evidence a confidential relationship as of the date of the deed, the crucial time in this case.

Appellants also point to the fact that, in the case of Lois, her mother came to live with her, Lois took her mother to see the attorney and was present when the deed was executed. These facts, coupled with the aforementioned activity on the part of Lois in assisting her mother with checks, do not compel a finding of the existence of a confidential relationship.

Even if a confidential relation had been proved, standing alone it would not have entitled appellants to relief. The mere existence of a confidential relationship does not give rise to a presumption of undue influence. Mintert v. Gastorf, 417 S.W.2d 101 (Mo.1967); Bolin, 559 S.W.2d at 241[3, 4]. Before appellants would be entitled to relief, they must have produced direct or circumstantial evidence of the exercise of undue influence on the part of respondents. Mintert.

The cases recognize that undue influence is seldom susceptible of direct proof and that generally it must be deduced from the circumstances of the particular case. See Wilhoit v. Fite, 341 S.W.2d 806, 813[2] (Mo.1960). In this case, appellants point to the following circumstances in support of the allegation of undue influence: (1) physical condition and mental capacity of grantor; (2) unnatural disposition; (3) concealment of existence of deed, and (4) lack of consideration.

Unquestionably, those factors are important in a case such as this. Drake v. Greener, 523 S.W.2d 601, 606[4, 5] (Mo.App.1975), and Davis v. Pitti, 472 S.W.2d 382 (Mo.1971), cited by appellants, were cases in which the mental and physical condition of a grantor, short of complete incompetency, was recognized as a factor in setting aside deeds for undue influence. However, in this case, the evidence as to the mother’s physical and mental condition was at best equivocal. Ruth Reeves did testify that her mother had a stroke in November, 1973, and that, while she was at Lois’s when the deed was executed, her mother was weak, lethargic, unresponsive in conversation and not “herself.” On the other hand, Lois testified that, while her mother was with her, she helped in the household chores. She denied that her mother had had a stroke, only “circulatory” problems. Both Lois and •Kenneth stated that they never considered their mother to any extent incompetent. Kenneth testified that, upon her return to the farm, his mother resumed her regular household duties, although she did no work outdoors.

Certainly there was no clear and convincing evidence of either physical or mental disability on the part of the mother which might have been a factor in the obtaining of the deed.

As for the unnatural disposition, appellants rely on testimony that the mother had an equal regard for all of her children and that there was no friction among them. There was evidence that Lois took her mother and, prior to his death, her father on various vacation trips. Kenneth was not as positive as his sister Ruth in describing the harmony among the members of the family. The testimony of Lois and Kenneth was that their mother was concerned that, in the event of her death, the other children would force Kenneth off the farm and that was the reason for making the deed. Kenneth had farmed the place for years. Since 1957 he had farmed it on a sharecrop basis, with his parents receiving the landlord’s share of the crops. He was the only child who continued to live on the farm. In such circumstances, the mother’s desire to enable him to continue to live on the farm and her method of accomplishing that result is not wholly unnatural, although it was at the expense of other children. There was evidence from which it could be deduced also that she had valid reason to prefer Lois to the other children. Altogether, the circumstances are not such as to make the disposition here involved so unreasonable or unnatural that undue influence would be the most logical explanation for it.

Unquestionably, the existence of the deed was concealed from the other children for more than four years and until the death of the mother. As pointed out in Bolin, cited by appellant: “Concealment of the existence of such transfers is yet another factor to consider” [when undue influence is asserted]. 559 S.W.2d 242. Lois explained her mother’s wish that the transaction be kept secret by saying that her mother “knowed it would cause confusion.” The result which followed revelation of the deed clearly indicates what problem its earlier disclosure would have produced for the mother. Again, the circumstances are not such that the concealment of the deed is explained only on the basis of undue influence.

There was no consideration for the deed. “The mere lack of consideration in a deed from parent to child does not per se invalidate the deed but it is an element to be considered.” Davis, 472 S.W.2d at 387(2). The circumstances above referred to are such that this factor cannot be said to be entitled to convincing weight in this case.

Considering the factors relied upon by appellants and even assuming the existence of a confidential relationship, this court cannot say that the trial court’s conclusion that there was no evidence of undue influence was contrary to the weight of the evidence. Murphy. The burden was upon appellants to establish their case by clear, cogent and convincing proof. Cruwell v. Vaughn, 353 S.W.2d 616, 624[1-6] (Mo.1962). The trial court did not find appellants’ evidence met the test. Its conclusion has not been shown to have been erroneous.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: SWOFFORD, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jon L. STENNER, Appellant.
    No. KCD 30597.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    Gerald Kiser, Public Defender, Seventh Judicial Circuit, Liberty, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, and CLARK, JJ.
   SWOFFORD, Judge.

Defendant was convicted on October 12, 1978, after jury trial, of the offense of felonious assault without malice aforethought, § 559.190 RSMo 1969 and was sentenced to six months in the county jail and a $1000.00 fine. The sufficiency of the evidence is not challenged, hence the facts may be briefly summarized.

The evidence as to the circumstances sur- ' rounding the assault is in conflict, but viewed in the light most favorable to the State the jury could reasonably find that:

On August 14, 1977, the defendant was operating his automobile in the right-hand lane of the one-way roadway eastbound on Highway No. 69 in Clay County, Missouri. Ray Stull was operating a motorcycle in the same .direction and behind the defendant and attempted to pass the defendant on the left lane of pavement. Just as Stull pulled out to pass, the defendant switched to the left lane, blocking Stull’s path. Stull managed to avoid a collision and gave the defendant “the finger”. As the vehicles proceeded down the highway, the defendant began deliberately slowing down and changing lanes to prevent Stull’s passing. When both vehicles stopped in obedience to a traffic signal at Randolph Road and 69 Highway, the defendant got out of his car, approached Stull and inquired if he “had a problem with” his “finger”, and Stull responded by asking defendant what he would do if someone “just about run him over” or almost “ran him off the road”. Thereupon, the defendant struck Stull in the left eye shattering his sunglasses and driving pieces of broken glass into Stull’s eye, resulting in injuries which required hospitalization and surgery and resulted in permanent eye damage. After striking the blow, the defendant returned to his car and left the scene of the altercation. Stull wrote the defendant’s license number down at the scene. The defendant was later arrested, charged, tried and convicted.

The defendant in his motion for a new trial raised only one allegation of error, namely, that the trial court erred in failing to declare a mistrial, admonish the jury, and strike from the record certain testimony of Police Officer Billy M. Harris, and a statement of the Prosecutor with reference to the defendant’s refusal to make a statement to the police subsequent to his arrest and receipt of the Miranda warning, alleged to be in derogation of his constitutional rights against self-incrimination and due process.

This position comes to this Court embodied in two points relied on in appellant’s brief and asserted with more specificity. The iirst of these charges the trial court with error in overruling defendant’s motion for a mistrial after having previously overruled defense counsel’s objection to strike during cross-examination of Officer Harris’ testimony that “I read him his rights and he didn’t want to make any statements”, and on redirect by the prosecutor of Officer Harris when the witness was asked if he had advised defendant of his rights and if he understood them, and then asked, “And he made no statements to you — ”. The defendant’s position is that both of these instances infringed upon defendant’s constitutional right to remain silent. The second point on this appeal is that the failure of defense counsel to object, request that the jury be instructed to disregard, and to strike the statement of the prosecutor on redirect examination of Officer Harris was not waived. Both of these points require a somewhat detailed scrutiny of the record of Officer Harris’ testimony.

On August 14, 1977, Billy Harris was a member of the police staff of Claycomo, and in the late afternoon of that day he was dispatched to investigate the occurrence which gave rise to this proceeding, at Highway 69 and Randolph in Clay County, Missouri. When he arrived at the scene, the defendant was not there, but he obtained his license number from Stull, victim of the assault, and shortly thereafter arrested the defendant and took him to the Clay County Jail at Liberty, Missouri for booking. He was called as the first witness for the State. He was not asked any questions by the prosecutor relating to his conversations with or statements of the defendant following the arrest. However, the following appears as part of the cross-examination of Officer Harris by counsel for defense:

“Q. (By Mr. Fox) Well, back up. My question is, did you take a statement of Jon Stenner?
A. No, I didn’t.
Q. Did you ask him for a statement ?
A. I read him his rights and he didn’t want to make any statements.
MR. FOX: Well, now, Your Hon- or, I object to that and move that be stricken.
MR. DAVIDSON (Prosecutor): Your Honor, he’s answered the question.
. THE COURT: The objection is overruled.
Q. (By Mr. Fox) You read him his rights?
A. Uh-huh.
Q. What are his rights?
A. The Miranda Warning.
******
Q. Just tell us exactly what you said to him, Officer.
A. I don’t have the card present, the Miranda Warning card that I had. ******
Q. Did you tell him he had the right to talk to an attorney?
A. Yes, I did.
Q. Did you tell him that anytime he didn’t want to talk any further he didn’t have to ?
A. Yes, I did.
Q. You told him all this?
A. Uh-huh.
* * (Emphasis supplied)

On redirect examination by the prosecutor, the following appears:

“Q. (By Mr. Davidson) Now, when you advised Mr. Stenner of his rights, you say you used a card?
A. Yes, I did.
Q. All right. And, subsequent to that, do you think he understood those rights?
A. I believe he did.
Q. And he made no. statements to you —” (Emphasis added)

Thereupon, before the question was completed, at the request of defense counsel, a colloquy between Court and counsel, out of the hearing of the jury, appears wherein defense counsel, for the first time, asked that the Court declare a mistrial. The prosecutor objected to granting a mistrial upon the ground that the defense had opened up the subject in cross-examination of the officer and that he, the prosecutor, was just “following up” on that questioning. The trial court overruled the motion for a mistrial.

It is the law of ancient vintage, frequently restated, that the silence of a person and his failure thereby to offer an exculpatory statement, while under arrest for a crime, is not admissible as proof of guilt or as an admission against interest because he is under no duty to speak. State v. Stuart, 456 S.W.2d 19, 22[3] (Mo. banc 1970), and authorities cited therein. To permit such evidence as part of the State’s case in a criminal proceeding would violate such person’s constitutional right against self-incrimination and deny him the protection of the Fifth and Fourteenth Amendments to the Constitution of the United States, and of Article 1, § 19, of the Missouri Constitution. State v. Starks, 459 S.W.2d 249, 251[6] (Mo.1970); State v. Roth, 549 S.W.2d 652, 654-655[2-4] (Mo.App.1977). This principle has been engrained in the law of Missouri since State v. Glahn, 97 Mo. 679, 11 S.W. 260 (1889), and State v. Young, 99 Mo. 666, 12 S.W. 879 (1890).

This constitutional safeguard (and others involving the admissibility of evidence as firmly fixed in legal principles) is subject to the exception that the constitutional burden of inadmissibility is waived where no objection is made to the evidence or such evidence is introduced or injected into the trial by the defense. The factual background of each case as to the trial circumstances and evidence complained of is necessarily varied and only rarely similar, and each case must be separately evaluated against the foregoing principle and the recognized exceptions where waiver of the constitutional fault appears.

A case factually very similar to the instant case is State v. Mayo, 559 S.W.2d 264 (Mo.App.1977) wherein in an appeal from a conviction of manslaughter the defendant raised as one of his points on appeal that the trial court erred in not declaring a mistrial because the arresting officer, France, testified that at one point during defendant’s interrogation at the police station Mayo, the defendant, refused to talk any further and refused to make a written statement, and in support of such point urged the defendant’s constitutional right to remain silent.

The State’s attorney elicited from Officer France the fact of defendant’s arrest, admissions at the scene from defendant that he shot the victim, the giving of the Miranda warning, including the right to remain silent, Mayo’s oral statements at the police station, and all of the details surrounding the arrest and early investigation of the case. All of this came in without objection. The prosecutor did not bring out from Officer France on direct examination anything about Mayo’s refusal to talk or desire to remain silent.

On cross-examination of Officer France by the defense counsel, he was asked (l.c. 267), “whether he took a written statement from Mayo, to which the officer answered ‘No’. The question ‘Why not?’ was answered, ‘He didn’t want to talk anymore’ * * *” In ruling the point against Mayo, the court said, l.c. 267[3]:

“* * * Appellant may not be heard to charge prejudice on account of testimony produced by appellant’s own counsel. Any objection to the testimony of the police officer with respect to appellant’s unwillingness to talk was waived. State v. Cooksey, 499 S.W.2d 485, 488[1, 2] (Mo.1973); State v. Barron, 465 S.W.2d 523, 526[1] (Mo.1971).”

[See and compare State v. Paige, 446 S.W.2d 798, 806[14] (Mo.1969) and cases collected at Missouri Digest, Criminal Law, 1137(2) and 1137(5)].

In the instant case, the first mention that was made of the defendant remaining silent or of his refusal to give a statement was elicited by counsel for defendant Stenner on cross-examination of Officer Harris, which calls into application the rule of waiver expressed in Mayo, and the cases cited therein supra and State v. Paige, supra.

While it is true, as pointed out in appellant’s brief, that the answer “I read him his rights and he didn’t want to make any statements” in response to the defense counsel’s question, “Did you ask him for a statement?”, as set forth herein, was “more or less a voluntary statement” (as characterized in defendant’s brief) and was not directly responsive to the question, no objection was made on that ground. It is obvious that the question was susceptible to a “Yes” or “No” answer, and the direct answer could only be “Yes” under the circumstances shown in this record. Had such a direct answer been given, it would have been entirely proper to permit the witness to explain, or the State to ask for clarification or explanation of the affirmative answer. State v. Matha, 446 S.W.2d 829, 832[3] (Mo.1969). This would have brought forth the same response that the defendant did not want to make a statement. The net result would have been the same.

Under this record, the constitutional rights of defendant to remain silent and his constitutional right against self-incrimination were relinquished or waived under the rule in Mayo and similar cases, by the defense counsel introducing the subject and the incidents bearing thereon in the cross-examination of Officer Harris, and the court did not err in permitting the State to pursue the subject in further examination of the witness.

As previously mentioned, the defendant’s Points 1 and 2 both deal with the same subject, are properly considered together as basically the same point, and can be and are here ruled by the above principles. Both points are ruled against defendant.

The judgment is affirmed.

All concur.

      . The crimes of the various degrees of assault are now §§ 565.050, 565.060, and 565.070 in the new Criminal Code, effective January 1, 1979, Laws 1977.


author: CLARK, Judge.

text:
    James W. ALCOCK, Appellant, v. The FARMERS MUTUAL FIRE INSURANCE COMPANY OF DeKALB COUNTY, Missouri, Respondent.
    No. KCD 30642.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.

      Robert B. Paden, Maysville, for appellant.
    Harold L. Miller, Day Miller, Maysville, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   CLARK, Judge.

This action was commenced when defendant, a county mutual fire insurance company, denied plaintiff’s claim for loss by fire of a dwelling house insured by defendant and owned by plaintiff. All relevant facts, essentially undisputed, were developed by the pleadings, affidavits and documents. Cross motions for summary judgment were filed and from the judgment entered for defendant, plaintiff appeals.

The controlling issue in this case is the construction and application of exclusionary language of the policy which provides:

“. . . this company shall not be liable for loss occurring * * * while a described building, whether intended for occupancy by owner or tenants is vacant or unoccupied beyond a period of sixty consecutive days.”

In entering judgment for defendant, the trial court held the policy terms “vacant” and “unoccupied” to be severable and independent with the consequence that existence of either condition avoided the indemnity liability of defendant under its policy. Plaintiff contends that in so holding, the court erroneously declared or applied the law to defeat his policy claim.

The policy in question was issued effective August 21, 1973 for a term of five years insuring a frame house owned by plaintiff and located in Maysville, DeKalb County, Missouri. In early May 1976, plaintiff entered into a “Purchase Agreement” with Max and Nancy Hooper for monthly payments intended ultimately to lead to their purchase of the property. By reason of subsequent termination of the purchase agreement by mutual consent in December 1977, however, title was never conveyed by plaintiff and his insurable interest at relevant times is not in issue.

The Hoopers occupied the residence from the date of the purchase agreement until mid-August 1977. Thereafter, until December 1977, they maintained some furnishings and personal possessions in the subject house and continued to make payments to plaintiff under the agreement, but resided at some other location not disclosed in this record. On December 18,1977, the Hoopers notified plaintiff that they would make no further payments and vacated the property, removing such furniture and effects as remained. The record is silent as to any physical presence of the Hoopers on the property or in the dwelling between mid-August and. December 18, 1977. The destruction of the house by fire occurred January 12, 1978.

Plaintiff contends that because the Hoop-ers’ household effects were in the structure to a date less than sixty days before the fire, the property was not vacant during the critical time period even though the Hoop-ers’ change of residence some five months before may have rendered the house unoccupied. Plaintiff further argues that because the terms “vacant” and “unoccupied” are not synonymous, they are not severable and both conditions must concur before the policy exclusion is applicable. He cites Drummond v. Hartford Fire Insurance Company, 343 S.W.2d 84 (Mo.App.1960) and Graves v. MFA Mutual Insurance Company, 446 S.W.2d 154 (Mo.App.1969) and refers to the language of the policy coverage endorsement under the subject “Vacant Dwelling” as requiring this construction and result.

The language of the subject policy quoted above, and appearing in the section “Standard Provisions,” is commonly employed in such policies and has been construed and applied in a number of cases. The term “vacant” means empty, without inanimate objects, deprived of contents. A thing is vacant when there is nothing in it. “Vacant” means abandoned and not used for any purpose. Limbaugh v. Columbia Insurance Company of New York, 368 S.W.2d 921 (Mo.App.1963); Bledsoe v. Farm Bureau Mutual Insurance Company, 341 S.W.2d 626 (Mo.App.1960); Drummond v. Hartford Fire Insurance Company, supra.

The term “occupancy” refers to human habitation. A building is unoccupied when it is no longer a place of abode. Florea v. Iowa State Insurance Company, 225 Mo.App. 49, 32 S.W.2d 111 (1930). Occupancy refers to use of property as a customary and usual place of habitation to which return is contemplated after temporary absence. Bledsoe v. Farm Bureau Mutual Insurance Company, supra.

While the authorities which have defined the terms at issue in this case do hold that “vacant” and “unoccupied” are not synonymous or interchangeable, such does not advance plaintiff's claim to avoid the policy exclusion. The language used is clearly in the disjunctive, indicating that either a condition of vacancy or unoccupan-cy extending for a period of sixty days constitutes a defense to a policyholder claim. Within the applicable period here, the structure, while not vacant, was unoccupied and the defendant is thereby relieved of liability.

Cases cited by plaintiff do not aid him. In both Drummond and Graves, some analogy on the facts was present in that the structures in each case contained furniture and personal effects during the sixty-day period preceding the casualty. Former occupants had departed more than sixty days earlier but factual questions were presented by evidence in each case of occasional, subsequent visits — in Drummond daily visits by a watchman or caretaker and in Graves visits by the former occupants once or twice a week and two sojourns overnight. Each case turned on resolution of the question of whether particular usage noncontinuous in character constituted sufficient habitation to amount to occupancy. No such facts being adduced here, the cases are not applicable.

Plaintiff also refers to the policy language included in an insert entitled “Coverage Endorsement and Provisions.” Paragraph 2 of that endorsement is entitled “Vacant Dwelling” and provides that when a dwelling is vacant more than thirty days, policy coverage shall not extend to cover glass breakage or damage to interior decorations. The paragraph also states that vacancy of a dwelling without prior notice thereof to the company automatically reduces the amount of insurance by 50 percent. Plaintiff suggests that such language either equates vacancy with unoccupancy or modifies the disjunctive standard policy condition of vacant or unoccupied with the result that an unoccupied dwelling which is not vacant remains insured.

On the authorities previously cited, it must be concluded that a vacant building is by definition unoccupied. Occupancy is a condition requiring animate presence for some functional purpose in which inanimate objects such as furniture are employed. Absent inanimate objects, a structure cannot be occupied. The effect, therefore, of the coverage endorsement is to reduce the policy exposure by 50 percent immediately upon vacancy and to eliminate coverage for glass breakage and interior decorations if vacancy continues for more than thirty days. Occupancy is not a factor because vacancy presumes nonoccupancy. To the contrary, the coverage endorsement conditions do not apply if the structure is unoccupied but not vacant. In either event, under the standard provisions of the policy, if the dwelling is either vacant or unoccupied for more than sixty days, no liability for any loss exists.

Finally, it is to be noted that the Standard Provision of the policy excluding from coverage a building which is vacant beyond a period of sixty days is inconsonant with the Coverage Endorsement clause which provides coverage for a vacant dwelling at the reduced amount of one half of the stated policy limit. Alternatively, it may be contended that the latter clause prevails to extend coverage indefinitely during vacancy but at the reduced rate or, that coverage is at the reduced rate for the first sixty days and is terminated thereafter. Such issue, however, was not raised, briefed or argued by plaintiff and no resolution of the conflicting policy provisions is assumed. Although appellate review of court tried cases is on both the law and the evidence, it is limited to the specific matters urged on appeal by the parties. Oliver v. City of Higginsville, 527 S.W.2d 690 (Mo.App.1975); DeBow v. Higgins, 425 S.W.2d 135 (Mo.1968).

For the reasons stated, the trial court correctly construed and applied the law in granting defendant summary judgment. That judgment is affirmed.

All concur.


author: BARNES, Special Judge.

text:
    William Wayne Clifford NEIGHBORS, Appellant, v. STATE of Missouri, Respondent.
    No. WD30707.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      H. William McIntosh, Bellmann, Speck & Handley, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before WASSERSTROM, C. J., and WELBORN and BARNES, Special Judges.
   BARNES, Special Judge.

Appellant was charged with the offenses of forgery and possession with intent to utter. The cause came on for hearing on July 18, 1977, whereupon pleas of guilty were taken by the trial court and Appellant was sentenced to a six-year confinement in the Missouri Department of Corrections on each charge, said terms to run consecutively. No appeal was taken from these convictions.

On June 9, 1978, Appellant filed his first motion to vacate his convictions and sentences pursuant to Rule 27.26, and on January 5, 1979, filed his first amended motion under Rule 27.26 specifically alleging:

1. That the State materially breached its plea bargain agreement;

2. That by reason thereof movant’s plea was involuntary;

3. That movant never formally pled guilty to these offenses; and

4. That movant was denied effective assistance of counsel.

The motion was heard by the trial court on that date and on January 12, 1979, the trial court filed extensive findings of fact and conclusions of law overruling Appellant’s motion on all points. This appeal arises from said ruling.

Here, Appellant first contends there was insufficient evidence to support the trial court’s finding that Appellant entered pleas of guilty to the underlying convictions. This contention is totally without merit.

Appellant bases his argument on the fact that the trial court did not specifically ask the Appellant, “How do you plead to the charges against you?”, and argues that the Appellant’s guilty pleas were “equivocal” within the meaning of Rule 25.-04. There is no argument that Rule 25.04 prohibits a trial court from accepting a guilty plea if the defendant “refuses to plead or pleads equivocally.” There is, however, no requirement that a trial court specifically ask the defendant, “How do you plead to the charges against you?” Moreover, no “particular ritual” is required. McMahon v. State, 569 S.W.2d 753, 758 (Mo. banc 1978). The essential inquiry is whether the Appellant’s plea was in fact intelligently and voluntarily made.

Appellant was repeatedly asked if he wished to plead guilty and repeatedly answered in the affirmative. At the court’s request, Appellant recited the factual basis of the two charges and admitted that he had, in fact, attempted to cash two checks which he knew were forged. Appellant’s right to a trial by jury and the various possible results thereof were carefully explained to him, and he indicated he understood the consequences of his pleas of guilty. His pleas of guilty were voluntarily and intelligently entered. But so no doubt could possibly be entertained as to whether Appellant actually entered a plea of guilty, we set forth a portion of the testimony:

“Q. Do you understand also that if you plead guilty you give up all of those rights,

A. Yes, sir.

Q. Has anyone made any threats to you to plead guilty?

A. No.

Q. Are you doing it voluntarily and freely?

A. Yes.

Q. You understand — I have been told that you are entering a plea of guilty to both of these charges, and that the sentence will be recommended of six years on each case, and these two cases are to run consecutively to each other, meaning end-on-end, that you will have to serve one term first, then the other one, but that the two cases will run concurrently to the one that you were tried on where you got ten years. Do you understand that?

A. Yes, sir.

Q. Are you entering pleas of guilty to both of these cases because you are guilty?

A. Yes.

Q. Do you have anything further that you want to say before I accept your plea?

A. No, sir.

Q. And knowing everything you want me to accept your pleas on both of these cases?

A. Yes, sir.”

Repeatedly, Appellant indicated in unequivocal terms that he was pleading guilty.

Second, Appellant contends the State materially breached its plea bargain agreement and as a result Appellant’s plea of guilty was entered involuntarily. This contention is also totally without merit. The transcript shows the only plea bargain was that Appellant agreed to plead guilty to two charges of forgery in exchange for two consecutive six-year sentences, which would run concurrently with a ten-year sentence Appellant had earlier received following a jury trial, and that the prosecutor would dismiss seven other charges then pending against the Appellant. It is undisputed that all of these bargains were kept.

It is contended that additionally the prosecutor of Jackson County would make contact with the prosecuting attorney in Clay County and with authorities in the State of Kansas, each of which authorities apparently had charges against Appellant, in some kind of effort to obtain dismissal of those charges. It was made abundantly clear to Appellant by the trial court that neither the court nor the prosecuting attorney had any control over those cases and that such contact by the prosecuting attorney could not be made a part of any agreement.

The court inquired:

“Q. No disposition will be made on the case in Clay County or the Governor’s Warrant out of Kansas. You understand that, that we have no control over those matters?

A. (Witness nods head affirmatively.)

Q. No promises have been made to you in either one of those cases?

A. No.

Q. Do you understand that we can’t make any promises on those cases?

A. Yes.

Q. Has anybody made any other promises to you or commitments?

A. No.

Q. And do you understand that if they have, in the final analysis the Judge in Clay County or in Johnson County will have the final decision, and it will not be someone else. You understand that?

A. (Witness nods head affirmatively.)”

Appellant contends that the prosecuting attorney did not in fact make contact with authorities in Clay County and in Johnson County, Kansas, which is disputed in the evidence. However, it is admitted regardless of whether or not any contact was made, the charges against Appellant in Clay County and Johnson County, Kansas, were in fact dismissed, thereby giving Appellant precisely and exactly the result he sought but was in no way promised and was in no way a part of a plea bargain.

There being no error, the judgment of the trial court is affirmed.

All concur.


author: KENNEDY, Judge.

text:
    CITY OF KANSAS CITY, Missouri, Plaintiff-Respondent, v. James E. CARTER, Jr., Defendant-Appellant.
    No. WD 30751.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    James E. Carter, Jr., pro se.
    Aaron A. Wilson, George L. DeBitetto, Kansas City, for plaintiff-respondent.

      Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

Defendant James E. Carter, Jr., was convicted in the Municipal Court of Kansas City, Missouri, of doing business without an occupation license, a violation of Kansas City’s municipal ordinance, Section 21.20, Code of General Ordinances. His punishment was assessed as a fine of $100. A trial upon appeal to the Circuit Court of Jackson County had the same result, and an appeal from the judgment in the latter court brings the case to us.

Defendant has acted pro se throughout.

Defendant does not deny that he operated in Kansas City, Missouri, during the period in question, the calendar year 1978, a business known as Cheshire Bed Company, engaged in the manufacture of “vertically stored beds”. He does not deny that the ordinance under which he was charged was in full force and effect, nor that he failed, in violation of its terms, to purchase the license.

His claim upon this appeal is, first, that the trial court “denied him an opportunity to properly prepare a defense on constitutional grounds”.

This complaint evidently refers to the defendant’s request, made after the City had rested its case, as follows:

“With the permission of the Court, I would like to have the opportunity to submit Xeroxed copies of some information which I do not have available to submit to the Court at this time. It includes case citations regarding liberty as secured by the Preamble of the United States Constitution, case citations whereby the rights of an individual are not subject to taxation.”

The defendant, after the court explained what constituted evidence, had declined to present any evidence, saying he wished to present “only constitutional defenses”.

The court declined to defer his judgment in the case, but proceeded to find defendant guilty and to assess the fine already mentioned.

The trial court was not obliged to await defendant’s brief or “Xeroxed information” and was well within his discretion in proceeding to announce his findings. Kwiechien v. Gordon, 33 Conn.Sup. 638, 365 A.2d 118, 121 (1976); Annot., 86 A.L.R.2d 1233 (1962).

Defendant afterwards on September 5, filed his “Motion for New Trial/Verdict” which was accompanied by “Supplementary Suggestions to Defendant’s Motion to Dismiss”. In the latter document, he advanced an argument based upon the Fifth Amendment to the Constitution of the United States, that he could invoke the privilege against self-incrimination to withhold his business books and records from audit by the city auditors. Attached thereto were some photocopied pages from Am.Jur.2d. The court stated upon the hearing on the motion for new trial on September 14, that he had read the same. The defendant said he had nothing more to offer. The court thereupon overruled the motion for a new trial.

The motion for a new trial and the hearing thereon gave the defendant an opportunity to present any arguments he believed the court had failed to consider on the trial. Perhaps the material he presented upon the hearing on the new trial motion was that which he had asked at the trial to be allowed time to submit.

Defendant’s brief here also contains several abstract statements of constitutional law, which preserve nothing for review. Rule 84.04(d); Brewer v. Blanton, 555 S.W.2d 381, 386 (Mo.App.1977).

The court has ex gratia, examined defendant’s criticisms of the city ordinance and notes that there is no constitutional prohibition of a municipal corporation’s laying an occupation license tax on businesses, measured by gross receipts, pursuant to authority granted by the state. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508-9, 57 S.Ct. 868, 81 L.Ed. 1245 (1937); American Mfg. Co. v. City of St. Louis, 250 U.S. 459, 463, 39 S.Ct. 522, 63 L.Ed. 1084 (1919); People v. Bates, 276 A.D. 38, 93 N.Y.S.2d 313, 315 (1949); 71 Am.Jur.2d, State & Local Taxation, § 392 (1973). State authority is contained in Section 92.040, RSMo 1978, and Article I, Section 57 of the City Charter of the City of Kansas City. None of defendant’s cases hold that the power does not allow taxing individual pro-prietorships as well as corporations.

The judgment is affirmed.

All concur.


author: TURNAGE, Judge.

text:
    UNION ELECTRIC COMPANY, ACF Industries, Inc., et al., and ABEX Corporation, et al., Appellants, v. PUBLIC SERVICE COMMISSION of the State of Missouri and Commissioner Alberta Slavin, Respondents.
    No. WD 30791.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      William E. Jaudes and Paul A. Agathen, St. Louis, for Union Electric Co.
    Robert C. Johnson, St. Louis, for ACF Industries, Inc.
    David F. Crossen, Clayton, for ABEX Corp.
    Paul W. Phillips, Jefferson City, for Public Service Com’n.
    James S. Haines, Jr., Jefferson City, for Com’r Alberta Slavin.
    Before WASSERSTROM, C. J., and SHANGLER, PRITCHARD, DIXON, SWOFFORD, SOMERVILLE and TUR-NAGE, JJ.
   TURNAGE, Judge.

Union Electric and several industrial intervenors filed a petition for writ of prohibition in the Circuit Court of Cole County seeking to prohibit Alberta Slavin, a member of the Public Service Commission, from participating in a certain proceeding involving the rate design for Union Electric. The same parties sought to prohibit the Public Service Commission from allowing Slavin to participate. The court on final hearing denied both petitions and entered summary judgment in favor of Slavin and the Commission by quashing the preliminary rule previously issued. Union Electric and the industrial intervenors have appealed. Reversed and remanded.

The facts were largely stipulated and the only contested issue in the circuit court was the authority of the court to issue a writ of prohibition against Slavin or the Commission absent any statutory provision for the disqualification of a member of the Commission.

The parties stipulated that Union Electric had filed an application for a rate increase with the Commission in 1972. An interve-nor-party in that case was a consumer oriented corporation in St. Louis known as Utility Consumers Council of Missouri, Inc., known by the acronym UCCM. Slavin was one of the three incorporators of UCCM, a member of the board of directors, the registered agent at her home address, and president for seven years. The petition on behalf of UCCM to intervene in the rate case was signed by Slavin.

After a settlement had been reached in the rate case, a cost of service study was discussed with Slavin participating in some of the meetings. A cost of service study was launched by Union Electric to determine the cost to Union Electric for delivery of its electric service to the various classes of consumers, i. e. residential, commercial and industrial. This study would in turn form the basis for an allocation of the rate increase among the various classes of consumers. The interest of UCCM in the cost of service study was made apparent by Sla-vin in her statements that residential users were paying too much for their service and that a greater proportion of the rates should be paid by other users, particularly industriál.

In 1974 the Commission ordered that the cost of service study be thereafter handled in a new docket designated as No. 18177. UCCM and Slavin individually were both parties in No. 18177, and, in fact, both filed a motion for extension of time in that proceeding. Later a joint memo regarding data collection procedures for the cost of service study in No. 18177 was filed by Union Electric and UCCM.

In June, 1977, Slavin resigned as president and as a member of UCCM. On July 8, 1977, Slavin was appointed as a member of the Public Service Commission by the Governor. She ‘resigned -on August 22, 1977, but was again appointed to the Commission on November 22,1977, and took the oath of office on November 23, 1977. The registered office of UCCM continued to be listed at Slavin’s home address in St. Louis until January, 1978, although she was not active in the organization after her resignation from it in June, 1977.

In January, 1978, Union Electric filed its cost of service study in No. 18177 and the Commission ordered that case closed out and opened case number E078-163. The Commission ordered that all parties to No. 18177 be declared to be parties to No. E078-163. Slavin was shown in the order to be a member of the Commission but absent.

In June, 1978, Union Electric and the industrial intervenors filed a motion with the Commission asking that Slavin be disqualified from participating in case No. E078-163. Slavin wrote a letter in response to the motion stating the motions to disqualify her were without merit and refusing to disqualify herself. The Commission entered an order finding it did not have jurisdiction to determine whether or not a member of the Commission was disqualified from participating in a case. Sla-vin did not participate in that order.

In July, 1978, UCCM filed a motion to request hearings to be held in the service area of Union Electric in case No. E078— 163. This suit for prohibition against Sla-vin and the Commission was filed on July 13,1978. The petition alleged Slavin should be disqualified because of her interest, bias and prejudice as shown by her previous participation in this case and in other cases involving Union Electric and because of her public statements on the merits of those cases.

A hearing was held on the petition for prohibition with the only evidence, in addition to that stipulated, relating to the nature of the cost of service study and brief testimony by Slavin in which she denied any ill will toward Union Electric or any of the industrial intervenors in the prohibition suit.

The trial court entered findings of fact and conclusions of law and concluded that because there is no statutory provision for the disqualification of a member of the Commission, the court was without power or authority to order a member of the Commission to refrain from participating in any case pending before the Commission. The court indicated the view that although it could not prohibit a member of the Commission from participating in advance, that the interest, bias or prejudice of a member would be a proper subject of inquiry in any appeal from a decision by the Commission and if it were shown that any party did not receive a fair and impartial hearing before the Commission relief could be granted at that time. The court dissolved the preliminary rule in prohibition issued against Sla-vin and the Commission and entered summary judgment pursuant to motions previously filed.

On this appeal Union Electric and the intervenors contend they will be denied due process if Slavin is not prohibited from participating in a case in which she is actually a party. Slavin contends prohibition will not lie to remove her in advance of a hearing but the matters complained of may only be considered on appeal after the Commission has entered an order in the pending case.

It is true, of course, that the Public Service Commission is an administrative body created by statute and has only such powers as are expressly conferred by statute and reasonably incidental thereto. State ex rel. Harline v. Public Service Commission, 343 S.W.2d 177, 181[5] (Mo.App.1960). However, the courts in this state have held officials occupying quasi-judicial positions to the same high standard as apply to judicial officers by insisting that such officials be free of any interest in the matter to be considered by them. Thus, in King’s Lake Drainage & Levee Dist. v. Jamison, 176 Mo. 557, 75 S.W. 679 (1903) the report of commissioners appointed by the county court to establish a drainage district was challenged because one of the three commissioners had an interest in a tract of land subject to overflow which was excluded from the district. The commissioner’s wife was the owner of this tract and although the commissioner only had a marital interest the court held this was sufficient to violate the common law rule that no man is to be a judge in his own cause. The court expressly rejected a contention that such rule applied only to judicial officers and should not apply to quasi-judicial officers by stating such contention was not in harmony with the analogous decisions in this state and was not in line with the greater weight of authority in England and this country. The court carefully reviewed this well established rule and quoted liberally from Judge Cooley’s work on Constitutional Limitations (6th Ed.). The court quoted from Judge Cooley that a legislative act which would undertake to make a judge qualified to decide his own controversy would be void because it would be the creation of an arbitrary and irresponsible authority unknown to constitutional government. The court further quoted that the rule applies in all cases where judicial functions are to be exercised and it is not left to the discretion of the judge, or to his sense of decency, to decide whether or not he shall act. The court further quoted from Cooley that it is the responsibility of the power which created the court to provide another judge or tribunal so that a judge may not in any event be placed in a position in which he can judge his own cause. The court held the commissioner whose wife owned the tract involved in the drainage area was not qualified to act, and even though he was only one of three, affirmed an order setting aside the report of the commissioners.

Much the same reasoning was applied by the Supreme Court of Ohio in Forest Hills Utility Co. v. Public Util. Com'n of Ohio, 39 Ohio St.2d 1, 313 N.E.2d 801 (1974) when it held a member of the Public Utility Commission who had participated in a case before becoming a member of the Commission should not have heard the case after becoming a member. The court relied on Trans World Airlines v. Civil Aeronautics Board, 102 U.S.App.D.C. 391, 254 F.2d 90 (D.C.Cir.1958) in which it was held that an attorney who had been listed on the briefs in a case should not take part in that case after becoming a member of the board. The Ohio court adopted the reasoning of the court of appeals that fundamental requirements of fairness would not permit an attorney to later participate in the same case as a member of the administrative agency hearing the case. No statutory provision for disqualification was cited in either case.

A more recent application of the common law rule referred to in King’s Lake is found in American General Ins. Co. v. F.T.C., 589 F.2d 462 (9th Cir. 1979). There the court fully reviewed the common law rule that no man shall be a judge of his own cause and held that an attorney who had previously participated in a case was disqualified from passing on the same case after he became a member of the F.T.C. The sole basis of the court’s ruling was the common law rule.

In Jones v. State Dept. of Public Health and Welfare, 354 S.W.2d 37, 40[2-3] (Mo.App.1962) this court quoted from 16A C.J.S. Constitutional Law § 628 p. 851 that “[t]he cardinal test of the presence or absence of due process in an administrative proceeding is 'the presence or absence of rudiments of fair play long known to the law.’ ” It was held this required a fair and impartial hearing officer.

In this case it is stipulated that Sla-vin was a party to case No. 18177, and that by order of the Commission in January, 1978, after she became a member of the Commission, case No. E078-163 was opened and all parties to No. 18177 were made parties to No. E078-163. By this order Slavin then became a party to a case pending before her as a member of the Commission. Under the common law rule applied in King’s Lake to quasi-judicial officers, it is clear that Slavin should be disqualified from judging her own case. This is true even though she was only one of five commissioners who have yet to make a final order in No. E078-163. King’s Lake, supra; In Re Weston Benefit Assessment, Etc., 294 S.W.2d 353, 356[3] (Mo.App.1956).

Slavin argues she may not be prospectively disqualified because of the holding in Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570 (Mo.1965). In Rose the contention was made the entire board was disqualified because the charges were instituted, heard, and determined by the same entity and Rose was thereby deprived of due process. The court in Rose carefully noted no charge of interest or bias was made against any member of the board. The court considered the contention an attempt to disqualify the entire board so that without provision for another board or entity to hear the charges, Rose would of necessity be discharged. The court held the charges could not be avoided by such blanket disqualification. That case did not consider a challenge to an individual member of the board on a charge of interest or bias and so did not reach the problem here. Further, no attempt is made herein to disqualify the entire Commission.

The problem remains as to whether prohibition is available to prevent Slavin from participating in this case, or must the question of her disqualification await the final order in that case and be raised on appeal as a ground for setting aside the order. The answer to this was provided in State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85 (banc 1919). In Slate an original proceeding in prohibition was filed in the Supreme Court against Slate, a circuit judge, seeking to prohibit him from exercising jurisdiction in a criminal case in which it was alleged he was interested, biased and prejudiced. The court held prohibition was proper and prohibited Slate from further proceeding with the case. One basis of the court’s decision was the same common law rule considered in King’s Lake. The court stated at 214 S.W. 91:

There is no manner of doubt that, if the circuit judgé be in fact interested or prejudiced against the state, or shall have, been a counsel for the defendant, he ought not to sit. This is obviously both the moral and ethical view, and the statute has enacted these moral and ethical views into a law. No man ought to be a judge in his own case, and a case wherein a judge is interested is one wherein to an extent and in effect the case becomes the judge’s own case. The latter is merely an evolution of the above fundamental maxim.

The court stated the fact the legislature had made no law which provided details to govern the practice of disqualification of a judge in case of interest or bias would not prevent the court from prohibiting the judge to act in a case in which he was interested or prejudiced. The court concluded that since it found from the record that the judge did not possess an unprejudiced and disinterested state of mind, which is essential and necessary as a matter of right in the proper administration of justice, that it had the power both at common law and by statute to prohibit him from further exercising his jurisdiction in the case.

It is clear from King's Lake, Forest Hills Utility Company, and American General Insurance that the same standards and rules apply to quasi-judicial officers as to judicial officers. This means that members of the Public Service Commission may not act in cases pending before that body in which they are interested or prejudiced or occupy the status of a party. This is true under the common law rule that no man may be the judge of his own cause. As stated in Jones it is also a requisite of due process to which every party is entitled.

To a large extent the rights of consumers and regulated companies are determined by the Public Service Commission rather than the courts. To hold that a member of the Commission may not be disqualified for participating in a case in which that member is shown to be interested, biased, prejudiced or a party would be to deprive most of the citizens of this state of one of the most cherished attributes of our system of justice — to have his cause determined by a fair and impartial official. This right does not depend upon the legislature providing a procedure for the disqualification of a member of the Commission, rather it is woven into the very fabric of our system of justice. Absent a legislative procedure for disqualification of a member of the Commission, the courts will exercise their power to disqualify a member of the Commission upon a showing that a member is a party to a pending case, or is interested or prejudiced in the case. Thus, whether it be placed on the grounds of common law or due process, every party is entitled to have his case considered by a public service commission consisting only of persons who are not interested or prejudiced in the cause and who are not parties to the cause and prohibition is available to serve this right.

To allow Slavin to participate as a member of the Commission in case No. E078-163 is to allow her to be the judge of her own cause, and because of this ground for disqualification, it is not necessary to decide if there is sufficient evidence of her bias and prejudice to require her disqualification on that ground. Under Slate prohibition will lie to prevent Slavin from further participating in her own case.

Of course, the legislature may desire to provide for the disqualification of members of the Public Service Commission, but absent such statutory provisions, such members are still prohibited by the common law from acting in matters in which they are a party, or are interested, biased or prejudiced.

The court granted summary judgment in favor of the Commission. There is no authority for the Commission to disqualify one of its own members, and under Slate any disqualification of a member would have to be by prohibition in the circuit court. The judgment in favor of the Commission is affirmed.

The judgment granting summary judgment in favor of Slavin is reversed and the cause is remanded with directions to enter judgment making the preliminary rule in prohibition absolute prohibiting Slavin from attending or participating directly or indirectly in any further deliberations, proceedings, decisions or orders in case No. E078— 163.

All concur.

      . Slavin and the Commission filed motions for judgment on the pleadings. However, oral evidence was heard and voluminous records were presented by stipulation to the court. When matters outside the pleadings are presented to the court and not excluded the motion for judgment on the pleadings is treated as one for summary judgment. Rule 55.27(b). Thus, the motions here are treated as motions for summary judgment.

      . Union Electric and the intervenors stressed in oral argument that they do not have an adequate remedy by appeal on any order made by the Commission in this case because there is no statutory authority for a refund of rates paid under a Commission order even if that order is later set aside by a court. However, it is not necessary to base the right to prohibition on the inadequacy of relief provided by appeal. Under Slate, Slavin is wholly lacking in jurisdiction to hear this case. In that situation it was held in State ex rel T. J. H. v. Bills, 504 S.W.2d 76, 79 (Mo. banc 1974) that appeal is not an adequate remedy when the court is wholly wanting in jurisdiction.


author: CLEMENS, Senior Judge.

text:
    Lloyd UNDERWOOD, Movant, v. STATE of Missouri, Respondent.
    No. 40489.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    Robert C. Babione, Public Offender, Kevin Curran, Asst. Public Defender, St. Louis, for movant.
    Lloyd Underwood, pro se.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Teresa Aloi Angle, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

After an extended evidentiary hearing Movant Lloyd Underwood (hereafter defendant) appeals the denial of his Rule 27.26 motion.

Defendant seeks to set aside his 1970 armed robbery conviction, affirmed on appeal in State v. Underwood, 470 S.W.2d 485 (Mo.1971). As a prior felon defendant had been sentenced to 30 years in prison. At the original trial defendant was represented by retained counsel, Mr. Lawrence Willb-rand. Appointed counsel represented defendant on his original appeal, on the present motion, and on this appeal from its denial.

Defendant’s motion first charges ineffective assistance of trial counsel by failing to make an adequate pre-trial investigation in not interviewing three prospective witnesses: the victim Dorothy Wolff, the arresting officer Ronald Roach, and defendant’s brother Tom Underwood. These in turn.

Defendant testified—but trial counsel did not recall—that he asked counsel to interview the robbery victim and discredit her by showing she was a prostitute. Instead, trial counsel made the tactical decision to cross-examine the victim about probable entrapment, based on testimony that two police officers were waiting at the scene of the robbery as the victim returned from a bank—with an empty money bag.

Defendant also contends trial counsel failed to interview police officer Roach about his testimony he took the money bag from the victim’s car rather than from her person as alleged. Due to illness Roach did not testify. But on cross-examination officer Steenbergen supported defendant’s factual contention.

Defendant’s last challenge to counsel’s trial preparation is about defendant’s prior conviction. He now contends trial counsel failed to interview his brother Tom Underwood who defendant says could have contradicted the workhouse warden’s identification testimony. Defendant himself negated this by admitting he had in fact been confined at the time in question.

We accept the trial court’s conclusion that the extent of trial counsel’s pretrial investigation was discretionary and was not so inadequate as to deny defendant a fair trial. Compare Aikens v. State, 549 S.W.2d 117(2-4) (Mo.App.1977). We deny defendant’s primary point.

By defendant’s second claim of inadequate counsel he contends counsel should have requested a medical examination to determine whether defendant was mentally competent to stand trial. At the motion hearing defendant testified that ever since a severe cranial injury twenty some years ago he had suffered headaches and used habit-forming medication for nervousness. Defendant’s sisters testified he was nervous and forgetful, but coherent. Trial counsel testified defendant had understood the pending charge of armed robbery and the probable evidence, that in their discussions defendant was intelligently responsive, and counsel had no information leading him to question defendant’s competency to stand trial. We hold defense counsel was not ineffective in failing to move for a mental examination.

Last, defendant challenges the application of the second offender act on the ground the alleged and proven 1951 conviction resulted from a involuntary guilty plea. We need not probe the merits of this. By failing to raise the point at either the original trial or on appeal therefrom defendant waived it. Compare Harkins v. State, 558 S.W.2d 217(1-2) (Mo.App.1977).

Judgment affirmed.

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


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Gregory BROCCARD, Appellant.
    No. 40957.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Charles M. Shaw, Clifford Schwartz, James J. Knappenberger, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Peter T. Sadowski, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Criminal assault. Defendant was convicted by a jury of assault with intent to do great bodily harm on Jack Hoock (hereinafter referred to as “husband”) and of common assault on Melanie Hoock (hereinafter referred to as “wife”). Defendant was sentenced to three months in the St. Louis Medium Security Institution and ordered to pay a $500.00 fine for the assault against husband. He was ordered to pay a $100.00 fine for the common assault on wife. We affirm.

Defendant questions the sufficiency of the evidence. We review the evidence in a light most favorable to the state. State v. Guelker, 548 S.W.2d 521 (Mo.banc 1976), cert. denied, 431 U.S. 941, 97 S.Ct. 2658, 53 L.Ed.2d 260 (1977). Weighing of the evidence is outside the province of this court. State v. Longmeyer, 566 S.W.2d 496 (Mo.App.1978).

Husband, with wife as his passenger, was driving east on Nottingham when he came to a four-way stop at the intersection of Donovan and Nottingham. After coming to a full stop, husband started forward when another car went through the stop sign going south. Husband blew the horn of his car as the two cars were close to collision. Husband then turned south and proceeded down Donovan. The other car slowed down, allowing husband and wife to pass, and then started to flash its lights. The cars were then about ten to fifteen feet apart. When husband saw the flashing lights he pulled over to the curb to find out what the people in the car behind him wanted. Two males got out of the other car. The defendant was one of these two men. The defendant and the other man pushed husband down and starting punching him. Wife got out of the car and went to help her husband. She yelled, “Get up. Let him alone. Let him alone.” She tried to pull the two men off her husband. The defendant’s companion got off husband, pushed wife to the side, throwing her into the gutter, telling her that if she did not stop interfering she would get the same thing that he was doing to her husband. Wife struggled with the man holding her, trying to kick him. She got up out of the gutter and ran to her husband, again trying to pull the men away. She noticed her husband was bleeding. Defendant was holding the front of her husband’s hair and throwing his head against the concrete. Defendant then kicked husband in the head and in the the side, and stomped on his forehead. Husband’s eyes were swollen shut. As the two men were leaving, defendant hit wife in the head with the back of his hand and caused her to fall to the ground.

Defendant’s evidence was substantially different than the evidence presented by the state. However, the evidence of the state was sufficient. The credibility and weight of the testimony are for the jury. The jury may believe all or none of the testimony of a witness, or may accept it in part or reject it in part. State v. Dodson, 490 S.W.2d 92 (Mo.1973).

Defendant’s next point relied on is insufficient to preserve any assignment of error for appellate review under Rule 84.-04(d), to-wit:

“The trial court committed prejudicial error in overruling defendant’s objections and request for mistrial, to various remarks of the prosecutor in voir dire (Tr. 6-8), for the reason that said remarks improperly state the prosecutor’s function, are improper attempts to commit and predispose the jurors prior to the reception of evidence, and violate the rule that counsel may not argue or state the law to the jury, all in violation of defendant’s right to due process of law-» and a fair trial under the United States and Missouri Constitution.”

The state did not raise any procedural challenge of this point relied on. However, the state contends that we should not review this point raised by the defendant for the reason that defendant’s motion for new trial was not specific enough to inform the trial court of the alleged errors. We agree.

In his motion for new trial, the defendant argued the following:

“The court committed prejudicial error when over the Defendant’s objection the Circuit Attorney in voir dire examination stated and made improper comments about the law and evidence in the case in order to commit the veniremen to an improper predisposition about certain matters of law.”

Defendant has failed to set forth in detail and with particularly the specific grounds or causes which he contends entitled him to a new trial. State v. Hulsey, 557 S.W.2d 715 (Mo.App.1977); Rule 27.20(a).

In any event, we have reviewed pages 6-8 of the transcript and find no prejudicial error to defendant. State v. Hammond, 578 S.W.2d 288 (Mo.App.1979); State v. Francis, 544 S.W.2d 306 (Mo.App.1976); State v. Van, 543 S.W.2d 827 (Mo.App.1976).

Defendant next complains that the trial court erred in refusing his request for mistrial when the prosecution, on cross-examination of the defendant, asked whether defendant contacted his attorney on the day of the incident. Defendant’s motipn for new trial is silent regarding this alleged error. Accordingly, this point was not preserved for appellate review. State v. Peterson, 518 S.W.2d 1, 3 (Mo.1974); Rule 27.-20(a). In any event, we find no prejudice to defendant by the reference to whether or not he talked to a lawyer.

Finally, defendant complains that the court should have declared a mistrial when the prosecutor referred in closing argument “to a document not in evidence to support his contentions.” In his closing argument, prosecutor stated that he wanted the jury to think about the opening statement made by defense counsel, specifically the statements which alleged that the evidence would show the car in which defendant was riding almost hit the car which husband was driving. Defense counsel objected and stated, “I never said that.” The prosecutor said, “It’s right here.” Defense counsel objected and moved for a mistrial. The court requested the jury to disregard the comment “I have it here.” The court further stated, “The jury is instructed to be guided solely by the evidence and the law.” The record is not clear as to whether or not the document referred to was in evidence. The prosecutor stated that the piece of paper was an exhibit in the case. Even if the paper referred to was not in evidence, we find no prejudice to the defendant. State v. Barron, 465 S.W.2d 523 (Mo.1971).

The judgment is affirmed.-

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


text:
    Herbert Lee TROTTER, Movant, v. STATE of Missouri, Respondent.
    No. 41065.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    Robert C. Babione, Public Defender, Blair K. Drazic, Asst. Public Defender, St. Louis, for movant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Movant was convicted by a jury of second degree murder in violation of § 559.020, RSMol969. His conviction was affirmed on appeal. See State v. Trotter, 536 S.W.2d 877 (Mo.App.1976).

Subsequently movant filed a Rule 27.26 motion in which he challenged the effectiveness of his trial counsel. Specifically, movant complained that his trial counsel was the partner of another lawyer charged with the responsibility of representing mov-ant’s co-indictee and thus, avers movant, a conflict of interest arose which operated to prejudice his right to effective assistance of counsel. After an evidentiary hearing wherein both movant and his trial counsel testified, the circuit court concluded such was not the case.

The circuit court’s judgment is based upon findings of fact which are not clearly erroneous. No error of law appears and an opinion would have no precedential value. Accordingly, and in compliance with Rule 84.16(b), the judgment is affirmed.

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


author: BILLINGS, Presiding Judge.

text:
    Howard WORTHEY et al., Plaintiffs-Appellants, v. SPECIALTY FOAM PRODUCTS, INC., Defendant-Respondent.
    No. 10880.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 6, 1979.
    Motion for Rehearing and for Transfer Denied Nov. 29, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Arch M. Skelton, Ted Von Wilier, Jr., Springfield, for plaintiffs-appellants.
    William A. Wear, Sr., William A. Wear, Jr., Blythe Crist-Brown, Wear & Wear, Springfield, for defendant-respondent.
   BILLINGS, Presiding Judge.

The pivotal issue in this appeal is whether or not the implied warranty of merchantability, created by the Uniform Commercial Code [Chapter 400, RSMo 1969], applies to the sale of used goods. In a bench trial the trial court concluded that the plaintiffs’ sale of a used truck to defendant was governed by the Code. The trial court found against plaintiffs on their petition for the purchase price of the truck and entered judgment for defendant on its counterclaim for damages. We affirm.

Plaintiffs are in the used truck sales business in Springfield, Missouri. Defendant fabricates various polyurethane products at Ozark, Missouri, and began its operation in September 1976.

On November 10, 1976, Morris Dock and James Grundy, defendant’s president and vice president, went to the plaintiffs’ used truck lot in search of a truck. They informed Richard Wilson, a salesman for plaintiffs, of the business they were in and the purpose for which they were seeking to buy a truck. Wilson showed them a 1969 Ford truck with a twenty-two foot bed and dual axle, which he said was a “good old truck”. After looking at the engine and giving the truck a test drive, Dock and Grundy decided to buy the truck, at the $4,500 price quoted by Wilson, if the plaintiffs would agree to replace two of the truck’s tires, fix the speedometer, and install a stereo system. Wilson agreed to these requests, and on November 12, 1976, Dock and Grundy picked up the truck and gave the plaintiffs a company check for the purchase price. Dock drove the truck to a shop, which installed the stereo system, and then to a service station. After having the truck serviced at the station, Dock drove the truck to his house where it stayed overnight. The next day, the truck was driven to the defendant’s plant where it remained idle until November 15, 1976.

On November 15, 1976, the truck was used twice. During each use, the electric tailgate lift was used without the engine running and as a result, the engine failed to start after each use. After the second use and failure of the engine to start, Wilson was called to help start the truck. The truck was started with “jumper cables” and was then driven to the plaintiffs’ garage, where Wilson conducted a preliminary check of everything, including the battery and electrical system, and the oil level. Dock picked up the truck at midnight and drove it back to his house.

On November 16, 1976, Dock and Bob Woodworth, defendant’s treasurer, left in the truck for a trip to St. Louis. Both Dock and Woodworth drove the truck en route to St. Louis and both testified that the truck was driven in the high range axle at all times during this trip and below the 55 mph speed limit. Dock drove the truck from Springfield until they reached a service station ten miles west of Lebanon, Missouri. Woodworth then drove the truck from this stop to their next stop between St. James and Rolla, Missouri. At both stops, the oil level was checked by Dock or an attendant, with a quart of oil being added at the second stop. Dock drove from the second stop to a point near Valley Park, Missouri, where a “clatter within the motor” caused Dock to pull off the highway. The engine was turned off and would not re-start. While Woodworth walked to a service station to get a tow truck, Dock checked the oil level and found it to be full.

The tow truck arrived and towed the truck to Brockway, a truck repair facility just west of St. Louis, Missouri. The engine was started, with the assistance of jumper cables, but was turned off because of a loud clatter. James Platter, Brockway service manager, testified that after the crankcase had been dropped and one or two rods pulled, he looked at the parts and determined it had damaged bearings and a bad crankshaft. He further testified that the truck could not be run in its present condition, and in order to determine the exact cause of the breakdown would require the engine to be pulled out, the head pulled from it, and the crankshaft pulled out.

Dock and Woodworth left the truck at Brockway. Dock called Wilson and advised him that the truck had broken down, and was “in St. Louis at a place named Brock-way”, and that payment on defendant’s check would be stopped. In this action, plaintiffs brought suit for the purchase price of the truck. Defendant, by way of answer and counterclaim, alleged that plaintiffs had breached an implied warranty of merchantability and an implied warranty of fitness for a particular purpose under § 400.2-314 and § 400.2-315. In support of the trial court’s ruling, that the sale of the used truck was governed by the Uniform Commercial Code and an implied warranty of merchantability arose, defendant reviews the Code provisions which it deems applicable and cites a host of cases from other jurisdictions that have ruled that the sale of second-hand goods is subject to implied warranties under the Code, including the implied warranty of merchantability as contained in § 400.2-314.

Plaintiffs contend that no implied warranty of merchantability arises in the sale of used or second-hand goods and that the instant sale is governed by pre-code law. We are referred to pre-code Missouri decisions by plaintiffs in support of their conclusion that, absent a statement of fact by a seller, or proof of fraud, there are no implied warranties for used goods. By way of further support, plaintiffs point to the holding in Chaq Oil Company v. Gardner Machinery Corporation, 500 S.W.2d 877 (Tex.Civ.App.1973), which ruled the Texas Business and Commercial Code § 2.314 [identical to our § 400.2-314] did not create an implied warrant of merchantability in the sale of second-hand goods and that Texas pre-code law governed.

Our review of this court tried case is governed by Rule 73.01, V.A.M.R., as delineated by our Supreme Court in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Thus, the judgment is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

Initially, we observe that, prior to the adoption of the Uniform Commercial Code of Missouri, the law concerning implied warranties in the sale of new or used goods was somewhat unclear and riddled with confusing distinctions. The late Professor Lee-Carl Overstreet pointedly observed this in “Some Aspects of Implied Warranties in the Supreme Court of Missouri”, 10 Mo.L. Rev. 147 (1945), and noted that Missouri was one of the few jurisdictions which had not enacted the Uniform Sales Act despite efforts by the Missouri Bar for its adoption.

In 1963 Missouri adopted the Uniform Commercial Code, including Article 2 on Sales. The Code calls for a liberal construction of its terms and seeks, inter alia, uniformity in commercial transactions among the various jurisdictions [§ 400.1 — 102]. It makes substantial changes in the law of sales, and seeks to revise and modernize the law of sales as it existed under the Uniform Sales Act [Comments, § 400.2-101]. The scope of the Code’s Article on sales is set forth in § 400.2-102 and provides for its application to transactions in goods. “Goods” are defined by § 400.2-105 to mean “a 11 things . . . which are movable at the time of identification to the contract for-sale . . . .” (Emphasis added). Neither § 400.2-102 nor § 400.2-105 distinguish between transactions involving new or used goods.

Under the Code, § 400.2-314 is the statute that creates an implied' warranty of merchantability. It states, in part, as follows:

“(1) Unless excluded or modified [§ 400.-2-316], a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
(c) are fit for the ordinary purposes for which such goods are used; . . .”

The Code Comment to this statute states: “A contract for the sale of second-hand goods, however, involves only such obligation as is appropriate to such goods for that is their contract description.”

We are of the opinion that the sale of used or second-hand goods is covered by the provisions found in § 400.2-102, § 400.2-105, and § 400.2-314 and carries an implied warranty of merchantability. If the framers of the Code had intended to exclude used or second-hand goods from any implied warranties, merchantability or otherwise, they could have easily done so. As the court in Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wash.App. 39, 554 P.2d 349 (1976) stated: “The Code does not distinguish between new and used goods, the sale of which gives rise to implied warranties. We hold that ‘unless excluded of modified’ a warranty of merchantability arises in the sale of a used automobile”. We agree with Testo and the overwhelming weight of authority from other jurisdictions that have interpreted and applied similar or identical Uniform Commercial Code provisions to the sale of used or second-hand cars and trucks. See, e. g., Moore v. Burt Chevrolet, Inc., 563 P.2d 369 (Colo.App.1977) (used truck); Roupp v. Acor, 253 Pa.Super. 46, 384 A.2d 968 (1978) (used truck); Rose v. Epley Motor Sales, 288 N.C. 53, 215 S.E.2d 573 (1975) (used car); Overland Bond and Investment Corp. v. Howard, 9 Ill.App.3d 348, 292 N.E.2d 168 (1972) (used car); Stream v. Sportscar Salon, LTD., 91 Misc.2d 99, 397 N.Y.S.2d 677 (1977) (used car); and Natale v. Martin Volkswagen, Inc., 92 Misc.2d 1046, 402 N.Y.S.2d 156 (1978) (used car).

Plaintiffs next assignment of error is that the trial court erred in determining that plaintiffs had breached an implied warranty of merchantability under § 400.2-314 because there was no evidence that the truck engine failed because of a specific defect in the truck or engine when it was sold to defendant, or that this specific defect caused the engine to quit. Plaintiffs assert that, absent such evidence, defendant has failed to establish a breach of the implied warranty of merchantability under § 400.2-314.

Code Comment 13, to § 400.2-314, reads: “In an action based on breach of warranty, it is of course necessary to show not only the existence of the warranty but the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained.” After establishing the existence of this warranty, it was incumbent upon the defendant in this case to show; (1) that the implied warranty of merchantability had been broken, and (2) that the breach of this warranty was the proximate cause of its loss.

Crucial to the issue of whether or not a seller has breached an implied warranty of merchantability, is the determination of whether or not the goods in question are merchantable. § 400.2-314(2)(c) contains the following pertinent language:

“(2) Goods to be merchantable must be at least such as .
(c) are fit for the ordinary purposes for which such goods are used; . . . .”

Plaintiffs argue that to establish that § 400.2-314 had been breached would require evidence that a specific defect existed in the goods at the time of their sale and that such defect caused the goods to be unmerchantable. A similar argument was made and rejected in Burrus v. Itek Corp., 46 Ill.App.3d 350, 4 Ill.Dec. 793, 360 N.E.2d 1168 (1977). In Burrus, the buyer of a printing press sued for the breach of an implied warranty of merchantability. The seller’s defense to this action was based primarily on improper maintenance and operation of the press. Of significance, the court stated:

“The defendant, while citing no authority, nevertheless argues strongly that spe-. cific defects such as were in the press and which caused the poor operation of the machine must be proven by expert testimony. With this contention we disagree for no mention of specific defects is found in the test of a breach of implied warranty of merchantability in our Commercial Code. See Ill.Rev.Stat.1975, ch. 26, par. 2-314(2)(c).” 4 Ill.Dec. at 796,360 N.E.2d at 1171.

The issue, therefore, is not whether a specific defect caused the breach of this warranty, but, rather, whether or not the seller has sold goods that were not merchantable. The defendant in this case had the burden to produce substantial evidence that the used truck was not merchantable. The showing of specific defects in goods is obviously one way in which a buyer, can establish that a seller has sold goods that are not merchantable and thus, breached this implied warranty. This, however, is not the only way in which a buyer may show a breach of this implied warranty. Circumstantial evidence may also be used. See, e. g., Jacobson v. Broadway Motors, Inc., 430 S.W.2d 602 (Mo.App.1968); Williams v. Steuart Motor Company, 161 U.S. App.D.C. 155, 494 F.2d 1074 (D.C. Cir. 1974); Roupp, supra; Rose, supra; and Overland Bond and Investment Corp., supra; Burrus, supra; Stream, supra.

Here, defendant introduced evidence that the truck had been properly operated and maintained after it was purchased and that after driving the truck for only a few hundred miles it stopped running and was no longer fit for the purpose for which it was bought. Plaintiffs introduced no testimony that conflicted with the defendant's evidence of proper maintenance and operation of the truck. This circumstantial evidence, even though it relates solely to subsequent transaction events, constitutes substantial evidence sufficient to support the trial court’s judgment that the plaintiffs breached the implied warranty of merchantability under § 400.2-314 and that the breach of this warranty was the proximate cause of the loss sustained by the defendant. Plaintiffs’ point is denied.

Plaintiffs next contend the trial court erred in finding that the defendant had effectively revoked acceptance of the truck, pursuant to § 400.2-608 because: (1) the defendant maintained a mortgage on the truck in connection with a general business loan; (2) defendant failed to disclose the exact whereabouts of the truck until January 20, 1977; and (3) defendant has “failed to ever offer to make the truck available to plaintiffs either at plaintiffs’ place of business or defendant’s place of business . . . . ”

Section 400.2-608 states:

“(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”

Pursuant to § 400.2-608(3), § 400.2-602 and § 400.2-604 are the applicable sections for the buyer's duties to goods, subsequent to a revocation of acceptance.

Section 400.2-602 provides:

“(2) Subject to the provisions of the two following sections on rejected goods (sections 400.2-603 and 400.2-604),
(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and
(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this Article (subsection (3) of section 400.2-711), he is under a duty after rejection to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them; but
(c) the buyer has no further obligations with regard to goods rightfully rejected.”

Section 400.2-604 states:

“Subject to the provisions of section 400.2-603 on perishables if the seller gives no instructions within a reasonable time after notification of rejection the buyer may store the rejected goods for the seller’s account or reship them to him or resell them for the seller’s account with reimbursement as provided in section 400.2-603. Such action is not acceptance or conversion.”

Plaintiffs maintain that defendant violated § 400.2-602(2)(a) and as such, cancelled an otherwise valid revocation of acceptance. We disagree.

Defendant introduced substantial evidence that the use of the truck by the defendant was in accord with § 400.2-602 and § 400.2-604. The defendant introduced testimony that its president had informed plaintiffs of the whereabouts of the truck and that payment on its check was being stopped on November 16, 1976, the day of the truck’s breakdown; defendant sent plaintiffs a statement of revocation of acceptance; defendant stored the truck for the seller in a facility that regularly maintains such goods; defendant did not attempt to use the truck in any aspect of its business subsequent to notice of revocation; and, defendant has never refused a request by the seller to execute any and all papers necessary for the return of this truck. We hold that the trial court did not err in finding that defendant had effectively revoked acceptance of the truck.

The plaintiffs final assignment of error is that the trial court erred in awarding seven hundred dollars in consequential damages to the defendant, pursuant to § 400.2-715(2). This section provides:

“(2) Consequential damages resulting from the seller’s breach include
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and . . .

Code Comment 3, to this section states:

“. . . [T]he seller is liable for consequential damages in all cases where he had reason to know of the buyer’s general or particular requirements at the time of contracting. It is not necessary that there be a conscious acceptance of an insurer’s liability on the seller’s part, nor is his obligation for consequential damages limited to cases in which he fails to use due effort in good faith.
Particular needs of the buyer must generally be made known to the seller while general needs must rarely be made known to charge the seller with knowledge.
Any seller who does not wish to take the risk of consequential damages has available the section on contractual limitation of remedy.”

Code Comment 4 to § 400.2-715 states:

“The burden of proving the extent of loss incurred by way of consequential damage is on the buyer, but the section on liberal administration of remedies rejects any doctrine of certainty which requires almost mathematical precision in the proof of loss. Loss may be determined in any manner which is reasonable under the circumstances.”

Defendant introduced testimony that plaintiffs were informed of the business of the defendant and that the truck was needed to haul equipment to set up the defendant’s business and then to transport merchandise to its customers. There was evidence as to defendants’ expense of having to rent a substitute truck, paying useless license fees and taxes for this truck, and hauling expenses with U-Haul and Ozark Transfer.

We find that the defendant introduced substantial evidence to support the trial court’s award of $700 for consequential damages to the defendant.

The judgment is affirmed.

All concur.

      . References to statutes are to Missouri Revised Statutes, 1969.

      . In view of our conclusion that the sale of the used truck gave rise to an implied warranty of merchantability, we do not deem it necessary to review the trial court’s determination that no implied warranty of fitness for a particular purpose arose in this sale.

      . In Moore v. Burt Chevrolet, Inc., 563 P.2d 369 (Colo.App.1977), the seller of a used truck argued that pre-code decisions controlled, citing Chaq Oil. In holding that pre-code decisions were inapplicable and that the UCC governed, the court noted the seller’s reliance on Chaq Oil and said: “Our research reveals, however, that Texas is the only jurisdiction to hold the UCC inapplicable to used goods. That holding has been severely criticized, Note, UCC Implied Warranty of Merchantability and Used Goods, 26 Baylor L.Rev. 630 (1974), and we find it unpersuasive.” 563 P.2d at 370.

      . The Uniform Sales Act created various implied warranties that were held applicable to the sale of used cars. Wallower v. Elder, 126 Colo. 109, 247 P.2d 682 (1952); Regula v. Gerber, Com.Pl., 70 N.E.2d 662, 34 Ohio Op. 206 (1946). As stated in Natale v. Martin Volkswagen, Inc., 92 Misc.2d 1046, 402 N.Y.S.2d 156 (1978), “The Uniform Sales Act, which was replaced by the Uniform Commercial Code, was interpreted by courts to apply to secondhand goods.”