author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Steven Wayne ARNOLD, Defendant-Appellant.
    No. 39563.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.

      Nick A. Zotos, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant was convicted of first degree robbery and assault with intent to do great bodily harm without malice. Pursuant to the Second Offender Act, § 556.280, RSMol969, the trial judge assessed consecutive sentences of 25 years on the robbery conviction and 4 years for the assault. Defendant’s appeal argues that the trial court erred: (1) in admitting testimony regarding tests made on a handgun which was not disclosed to defendant following defendant’s disclosure request; (2) abused its discretion in admitting opinion evidence of an allegedly unqualified expert witness; (3) erred in overruling a motion for acquittal grounded on insufficient evidence. In his pro se supplemental brief, defendant challenges the trial judge’s jurisdiction to assess punishment under the Second Offender Act, claiming that there was no basis for a prior felony. We affirm.

On the evening of October 6, 1976, the Owens Service Station on Goodfellow Boulevard in St. Louis was robbed. Sandle Strickland, the attendant on duty, testified that he became conscious of a person peering through the window of the station building while he was speaking on the telephone with his girlfriend. Suspicious, Strickland dropped the receiver and walked outside to investigate. When he returned to the office, someone put an object against his neck and warned him not to turn around. The robber, later identified as defendant Arnold, pushed Strickland into a small storeroom, forced him to lie face down on the floor and bound him with rags and a rubber hose. Defendant proceeded to remove cigarettes from the storeroom shelves while his accomplice pumped gasoline for various customers to divert attention from the robbery. The ploy was not successful. Strickland’s girlfriend became concerned when he failed to return to the telephone and an unfamiliar voice told her that he was busy and would later call her back. Consequently, she contacted Strickland’s parents, who drove to the station. The senior Stricklands observed the decoy, realized that he was not their son, and summoned the police.

Defendant was leaving the station when the police arrived, and an automobile chase ensued. Defendant was driving a car which belonged to his partner’s girlfriend, and he testified that to his chagrin he discovered a gun in the car only after he attempted to elude capture. Realizing the added consequences of being caught with a pistol, he stated that he threw it out of the car window. When the gun dropped to the pavement, it fired. The pursuing police officers interpreted the gunshot differently; they both testified that defendant pointed the gun at them directly and fired it. Defendant was captured and arrested after he rammed his car into a curb. Eighty-eight cartons of cigarettes and a wristwatch belonging to Strickland were found in his possession.

Defendant claimed that the entire robbery was planned by the former manager of the Owens Service Station with Strickland’s knowledge and cooperation. He denied that Strickland had been forced into the storeroom at gunpoint; rather, that Strickland led him to the storeroom, helped him load some of the cigarettes and provided the hose and rags which were used to make the robbery look authentic.

Defendant complains initially that the trial court erred in permitting the State to introduce testimony regarding tests and examinations on the handgun allegedly fired by him. Defendant’s motion for discovery had included a request for “reports and statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons.” In his brief, defense counsel states that no reports concerning any ballistic tests were received.

At trial, the prosecution’s expert testified that the gun was delivered to him shortly after October 6, 1976. At that time he checked for defects in the firing mechanism and determined that the gun was in firing condition. On June 29, 1977, a few hours before he was to testify, the expert examined the gun again with respect to the hammer block. He stated that although the mechanism was flawed, it was his opinion that the gun would not discharge unless the trigger were pulled.

It is not clear from the transcript whether defendant’s attorney was apprised of the routine survey given to the gun upon its receipt by the State’s expert. The actual examination on which the expert based his opinion regarding the likelihood of discharge upon impact did not occur until the afternoon of his testimony. But the gist of counsel’s objection at trial concerned the expert’s competency to testify and not unfair surprise. Quite to the contrary, defense counsel conducted a full cross-examination aimed at discrediting the expert’s opinion for which no scientific evidence other than a cursory inspection provided the basis. Lacking a proper objection at trial, the point has not been properly preserved for appeal. State v. Gadbury, 558 S.W.2d 426 (Mo.App.1977).

Defendant’s second contention of error focuses upon the previously mentioned objection: the expert’s competency to testify. Defendant correctly concedes that a determination of expertise vests largely in the discretion of the trial court. Exercise of that discretion will not be disturbed on appeal absent abuse. State v. Cook, 557 S.W.2d 484 (Mo.App.1977). It is evident from the transcript that the State’s expert’s 11½ years in the Firearms Identification Section of the St. Louis Police Department eminently qualify him as a firearms expert. Any question concerning the extent of the officer’s examination of the pistol prior to testimony would go to the issue of his credibility, rather than his competency. We find no error.

Under the original indictment, defendant was charged in three counts — first degree robbery, assault with intent to do great bodily harm and armed criminal action, with the jury finding him guilty on the robbery and assault charges but acquitting him of armed criminal action. Drawing the inference that no weapon was involved in the actual commission of the robbery, defendant claims that the court erred in overruling his motion for judgment of acquittal because the State failed to establish one of the elements of robbery in the first degree: violence or placing the victim in fear. § 560.120, RSMo1969; State v. Hayes, 518 S.W.2d 40 (Mo. banc 1975).

When sufficiency of the evidence is contested in a criminal case, it is our duty to view the facts in evidence and the favorable inferences to be drawn therefrom in a manner most favorable to the State. All contrary evidence and inferences must be disregarded. State v. Williams, 545 S.W.2d 342 (Mo.App.1976). Strickland testified that he was grabbed from behind and forced into the storeroom. His assailant threatened him with an object placed against his neck which Strickland believed to be a gun. Strickland was forced to lie down on the floor and was bound. The fact that the jury did not believe a gun was involved in the actual robbery should not negate the reasonableness of Strickland’s fear of bodily harm. There was no direct testimony that Strickland expressed fear, but fear need not be expressly shown. State v. Underwood, 470 S.W.2d 485 (Mo. 1971), cert. denied 405 U.S. 923, 92 S.Ct. 980, 30 L.Ed.2d 802 (1972); State v. Sykes, 569 S.W.2d 254 (Mo.App.1978). The trial court properly overruled the defendant’s motion in this regard.

In a pro se supplemental brief, defendant challenges the applicability of the Second Offender Act, § 556.280, RSMol969, to his circumstances. Although admitting an earlier conviction for robbery first degree by means of a dangerous and deadly weapon and a concomitant sentence of six years, defendant contends that the suspension of that sentence disqualifies the transaction as a conviction for the purposes of the Second Offender Act. Defendant has misinterpreted the precedent upon which he relies: State v. Crate, 493 S.W.2d 1 (Mo.App.1973). In that ease, a conviction was disqualified because the actual imposition rather than the mere execution of the sentence was suspended. The Act is applicable, as here, to a person who has been sentenced and subsequently placed on probation. State v. Hooper, 399 S.W.2d 115 (Mo.1966). Therefore, defendant’s sentence was properly imposed by the trial judge.

Affirmed.

KELLY and REINHARD, JJ., concur.

      . According to defendant:
      “When I threw the gun out the window and about a second or two later I heard a noise. I heard something say, ‘Pow.’ I say, ‘Damn.’ I say, ‘The gun, it went off,’ so I stepped on the gas a little harder. . . . ”


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Charles Dwight DAVENPORT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39414.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 19, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    John J. Allan, St. Louis, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Movant (hereafter “defendant”) has appealed from the summary denial of his Rule 27.26 pro se motion to vacate his jury conviction for first degree robbery. He contends the trial court erred in denying his motion without an evidentiary hearing and failing to appoint counsel to assist him because the motion alleged facts showing he was not rendered effective assistance of counsel. We reverse and remand for appointment of counsel.

In his pro se motion defendant alleged: “(b) Counsel for movant only met once with movant prior to trial and that was for just a brief period of 10 minutes. Counsel made no inquiry of defendant into the facts and circumstances surrounding the offense, (c) Counsel made no effort to interview vital witnesses in movant’s behalf, and did not subpoena or otherwise obtain vital witnesses for movant.”

Defendant has the burden of showing by his pleading that he was so prejudiced by counsel’s conduct that he was denied a fair trial. Arnold v. State, 545 S.W.2d 682[3] (Mo.App.1976)), and defendant has not met that burden in his allegations regarding investigation and time spent with counsel.

Assuming, however, the truth of defendant’s allegation that his counsel made no inquiry into facts of the case, we must remand for appointment of counsel. See Rodgers v. State, 567 S.W.2d 634, l.c. 635 (Mo.1978), where defendant alleged his counsel made no factual investigation and the trial court summarily denied the pro se motion. In remanding for appointment of counsel the court held: “The stated question is whether the pro se motion states sufficient grounds ‘at least to warrant appointment of counsel to consult with mov-ant and file an amended petition, stating in lawyerlike fashion what occurred and the consequences from defendant’s standpoint, for the further consideration of the trial court before any decision is reached concluding that no evidentiary hearing is required.’ ”

As in Rodgers, supra, defendant here is entitled to appointment of counsel to aid in amending the pro se motion, to include particular facts showing how defendant was prejudiced by previous counsel’s failure to ascertain the facts surrounding the state’s charge against defendant. The trial court may then reconsider the sufficiency of the motion to determine whether an evidentia-ry hearing is required.

Reversed and remanded.

SMITH and McMILLIAN, JJ., concur.

      . Points (a), (d) and (e) alleged in defendant’s motion are not briefed on appeal, so they will not be considered.


author: CLEMENS, Presiding Judge. McMILLIAN, Judge,

text:
    STATE of Missouri, Respondent, v. Leon RUSS, Appellant.
    No. 39075.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 26, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.

      Devereaux & Stokes, Michael D. Stokes, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Gerald M. Sill, Asst.
    Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant has appealed his conviction for carrying a concealed weapon. (Section 564.610, RSMo.1969). He does not challenge the sufficiency of the evidence.

Defendant first contends the trial court erred in failing to declare a mistrial when the prosecutor remarked at the close of the state’s case, “as to the C.C.W. [carrying concealed weapon], the state rests.” Defendant contends this statement implied other criminal matters were pending against defendant. His objection to the statement was sustained and at his request the jury was instructed to disregard it and the prosecutor was admonished. The court denied defendant’s motion for a mistrial and defendant now contends this was error. We disagree.

In the comparable case of State v. Harris, 547 S.W.2d 473[1] (Mo:1977) the court held a more harmful remark, which the trial court instructed the jury to disregard, was insufficient to warrant a holding the trial court had abused its discretion in denying a mistrial. So it is here.

Defendant also contends the trial court should have granted his challenge for cause of a juror who had served 27 years as a police officer before retirement. A former affiliation with law enforcement, standing alone, is not a ground for challenge for cause. State v. Wraggs, 512 S.W.2d 257[2] (Mo.App.1974). Here, on voir dire the juror declared he would give no greater weight to the testimony of police officers and would not be prejudiced against defendant. Nor did the juror know any of the four police officers who were the state’s sole witnesses.

Defendant further argues that the juror’s answers, “I don’t think so, no,” were equivocal and required further investigation by the trial court. We find no need for more intensive questioning simply to obtain an unqualified “no.” We defer to the opportunity of the trial court to evaluate the juror’s demeanor and its conclusion the juror conscientiously considered the questions asked of him and could serve as a disinterested juror. We find no abuse of discretion in the trial court’s ruling. See also State v. Lewis, 526 S.W.2d 49[3] (Mo.App.1975), and State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642[17] (1937).

Defendant relies on State v. Butts, 349 Mo. 213, 159 S.W.2d 790[3-6] (1942), which we find distinguishable. There, the challenged juror was a member of the Kansas City police force. The court held he should have been excluded because his superior, the chief of police, and several fellow officers would testify. Since the juror challenged here was retired he would not be exposed to the influence of the police department and the rationale of the Butts case does not apply.

Judgment affirmed.

SMITH, J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that the trial court properly denied the defendant’s challenge for cause of a juror who had served twenty-seven years as a police officer before retirement. While I agree with the majority that, in Missouri, a former affiliation with law enforcement, standing alone, is not a ground for challenge for cause, [State v. Cashman, 485 S.W.2d 431, 434 (Mo.1972); State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642, 647 (1937); State v. Wraggs, 512 S.W.2d 257, 258 (Mo.App.1974)], I do not believe this case represents merely a “former affiliation with law enforcement.” There are two extenuating facts which render this situation more complex.

First, when asked whether he would give greater weight to the testimony of the police officers who would be witnesses, the juror responded, “I don’t think so, no.” [emphasis added]. When asked if he might be biased because he knew the procedures surrounding a charge of carrying a concealed weapon (CCW), the juror responded, “I don’t think so, no.” [emphasis added].

It is settled in Missouri that, once a juror gives equivocal answers to questions regarding possible bias, the trial court has an obligation to inquire further. State v. Carter, 544 S.W.2d 334, 337 (Mo.App.1976). This is necessary to preserve the impartiality of jurors as well as the outward appearance of impartiality, which is essential to maintaining the confidence of the community in the jury system. State v. Holliman, 529 S.W.2d 932, 942 (Mo.App.1975). Unlike the majority, I believe the answers given by the juror indicated some hesitancy, and, given the small amount of time and trouble it would take to inquire further into the juror’s possible bias, I believe the court should have attempted some interrogation.

The second and more serious problem with allowing this juror to remain on the panel originates from the fact he has been a policeman for twenty-seven years. While I do not subscribe to the doctrinaire view that policemen are imbued with a certain philosophy of law enforcement that renders them per se prejudiced as jurors, I believe they develop an expertise while serving as police officers which could render them unacceptable as jurors. For example, in this case the charge is carrying a concealed weapon (CCW), and, as the juror stated, he was familiar with the procedures of how to make an arrest in a CCW and what evidence is needed to prevail in court. It is not unlikely that, with the best intentions, the juror here may subconsciously substitute his street-wise knowledge of the CCW charge for the instructions on the law given by the judge. Even more likely is the possibility that, once the jury starts deliberating and questions begin to arise, this juror may be called upon by his fellow jurors to offer practical insight as to what the instructions given by the judge mean or what really suffices for a CCW charge, etc.

The above is said not to condemn a juror who offers such explanations, for generally it would be done in good faith. However, our jury system does not operate on the theory that the jury includes one expert who interprets the instructions or provides personal views of the legal questions involved. Such a verdict would not be one decided by twelve peers of the defendant but one directly influenced by one “expert” who may or may not accurately interpret relevant law. I see this expertise as the danger in allowing a twenty-seven year police veteran to remain on the jury panel in a criminal case, where he is familiar with the charge in issue. If any reasonable citizen of this state were in Leon Russ’s position, he or she would vociferously object to the inclusion of a twenty-seven year police veteran on the jury who, because of his “expertise,” was in a position to influence the other jurors. I would hope that, in the future, trial and appellate courts will be more sensitive to this predicament of others, and, at the very least, question the potential juror sufficiently to allay reasonable reservations as to his competency.

It is well established that a defendant in a criminal trial is entitled to a full panel of qualified jurors. State v. Land, 478 S.W.2d 290, 292 (Mo.1972). The small trouble it takes a court to assess a juror’s competence and dismiss him if necessary highly outweighs the hazard to the defendant if a biased juror remains on the panel, especially if that juror is in a position to influence the other jurors. As the Missouri Supreme Court stated: “[wjith the world absolutely filled with competent, unbiased, and unprejudiced jurors, error in this behalf is usually gratuitous and unnecessary.” Kendall v. Prudential Life Insurance Co., 319 S.W.2d 1, 6 (Mo.App.1958).

For the above reasons, I believe there was enough doubt raised as to this juror’s competence to require the trial court to inquire further as to his possible bias. I also believe that the danger of this juror exercising undue influence among the jurors because of his familiarity with law enforcement in general, and, with this charge in particular, warranted sustaining the defendant’s challenge for cause.

      . The prosecutor indicated he was merely awaiting proof of defendant’s prior conviction before closing his case.

      . There the court clerk referred to the court file as containing “the charge of one prior conviction . . . .”


author: CRIST, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Respondent, v. William SABOURIN, Defendant-Appellant.
    No. 40044.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 3, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.

      Louis S. Czech, Clayton, for defendant-appellant.
    Ben Ely, Jr., Amy R. Reichman, St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Suit by plaintiff State Farm Mutual Automobile Insurance Company (State Farm) to recover the amount paid on a claim filed by William Sabourin, defendant, on the ground that payment was made under a mutual mistake of fact. Sabourin appeals the judgment of the Circuit Court of St. Louis County awarding State Farm the $10,000 it had paid on the claim with no allowance for attorney fees. We affirm the judgment.

The parties stipulated to a short statement of facts. Sabourin, while a pedestrian, was struck and injured by an automobile driven by R. J. Eidson on September 9, 1972. He filed a claim with State Farm under the uninsured motorist provision of his automobile policy. At that time, defendant Sabourin believed Eidson to have been an uninsured motorist. On February 22, 1974, State Farm paid Sabourin the policy limits of its uninsured motorist coverage, $10,000. At the time of the payment, State Farm believed that Eidson was an uninsured motorist. In exchange for this payment Sabourin executed a release and trust agreement in which he assigned to State Farm the proceeds of any settlement with those liable for his injuries.

Sabourin filed suit in circuit court against Eidson. On January 24, 1975, a federal district court decided in the case of Eidson v. The Travelers Indemnity Company that Eidson did have in effect an automobile liability policy at the time of the accident. Thereafter, Travelers agreed to a settlement of $55,000 of Sabourin’s claim against Eidson in the circuit court. Sabourin’s attorney charged a fee of one-third on both the $10,000 payment and the $55,000 settlement. State Farm now seeks restitution of the $10,000 payment on a mistake of fact theory.

We note that State Farm chose to proceed under a theory of mistake and to abandon its subrogation rights. It could have brought this action under its release and trust agreement, which is commonly used to advantage § 379.203-4, RSMo Supp.1975. See State ex rel. Manchester Insurance & Indemnity Co. v. Moss, 522 S.W.2d 772, 774 (Mo.banc 1975).

There is no question but that State Farm acted under a mistake when it paid the policy limit of Sabourin’s uninsured motorist coverage. A mistake in this context is “a state of mind not in accord with the facts.” Restatement of Restitution, § 6 (1937). It was stipulated that the state of mind of State Farm at the time of payment was that Eidson did not have in effect a policy of automobile liability insurance. The focus of the disagreement goes to whether the recognized “mistake” of State Farm was one of law or of fact. This will be our starting point.

Sabourin contends that if an insurance company makes payment under its policy upon misapprehension of its legal duty to pay, and it has no such duty, it thus creates a mistake of law, and equity will not grant relief for such mistake.

It has long been recognized, however, that an insurer who pays a claim under an erroneous belief induced by a mistake of fact that it was obligated to do so may recover the payment unless the insured has so changed his position that it would be unjust to require restitution. Columbus Insurance Co. v. Walsh, 18 Mo. 229, 236 (1853); Restatement of Restitution, § 18 (1937); 167 A.L.R. 470, 472 (1947); 44 Am. Jur.2d, Insurance, § 1806 (1969); J. Apple-man, Insurance Law and Practice, § 1674 (1967).

The mistake of State Farm was one of fact, and there are no existing circumstances which would make it inequitable to require return of the payment. The Restatement of Restitution, § 7 defines a “mistake of fact” as “any mistake except a mistake of law.” A “mistake of law” is defined as “a mistake as to the legal consequences of an assumed state of facts.” Nothing in the stipulation of facts hints that State Farm had any reason to suspect that Eidson was insured, but rather shows that the company affirmatively believed that Eidson did not have a policy of liability insurance.

In Columbus Insurance Co., supra, as here, the company was unaware of the existence of a second insurance policy which relieved it from obligation. On the company’s action to recover the payment the court held that where money had been paid under mistaken facts, which had the true facts been known would have barred recovery, it can be recovered. See also, Commercial Union Insurance Co. v. Farmers Mutual Fire Insurance Co., 457 S.W.2d 224, 226 (Mo.App.1970). On similar facts where the insurance company paid a claim in ignorance of a second fire policy the court in Yeargin v. Farmers Mutual Insurance Ass’n., 142 Ga.App. 76, 234 S.E.2d 856, 857 (1977) held that the insurance company “was not possessed of all facts, and misplaced its confidence in the validity of the claim. Under these facts, it was entitled to demand return of its erroneous payment.”

Sabourin relies heavily on American Motorist Insurance Co. v. Shrock, 447 S.W.2d 809, 811 (Mo.App.1969), where the company misinterpreted the legal effect of its own policy provision with full knowledge of the facts and misconstrued an applicable state law. We do not believe that the holding in this case is controlling.

In Handly v. Lyons, 475 S.W.2d 451 (Mo.App.1971), the company paid the wrong party on a life insurance policy. The court held that the insurance company was entitled to reimbursement from the party to whom they erroneously paid. This court opined that the decision in Shrock, denying restitution, “was bottomed essentially on the rationale that the widow was not in the same condition as when she received the payment.” In Handly, the court granted restitution despite the existence of a mistake because the payee against whom restitution was sought induced the mistake by inequitable conduct.

The trend in Missouri is to give greater weight to the competing equities of a dispute even in situations when the mistake is clearly one of law.

In this case the equities clearly favor State Farm. Sabourin’s position has not been so changed in reliance on retention of the payment that it would be inequitable to require return of the money.

Sabourin next claims that even if State Farm is entitled to restitution of the money the amount returned should be subject to a set off for expenses incurred, including attorney fees, because he “recovered” the $10,000 for State Farm. He argues that one who creates or increases a trust for another person “is entitled to reimbursement for the reasonable costs incurred therein.”

Sabourin’s argument is based on the assumption that the $10,000 payment constitutes a trust fund which was either created, increased, recovered or preserved by Sabou-rin. While citing authority for the proposition that such a fund may be charged with costs and expenses, no authority is cited to establish that the payment in fact constituted a trust.

Appleman, § 1674, supra, specifically states that erroneous payment of a claim does not establish a trust relationship in favor of such fund. The action is for restitution of a specific payment made under mistake of fact. Sabourin’s action against Eidson neither created nor recovered the $10,000. Attorney fees and expenses may be awarded if explicitly provided for by statute or contract or, in some cases, when equity requires or when a party has created a fund from which others will share. Bolin v. Anders, 559 S.W.2d 235, 247 (Mo.App. 1977). The claim for attorney fees is denied.

Judgment affirmed.

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


author: DOWD, Presiding Judge.

text:
    Robert McCOY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39816.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 10, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.

      David V. Uthoff, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, III, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Presiding Judge.

This is an appeal by movant from the trial court’s order, following an evidentiary hearing, denying movant relief pursuant to Rule 27.26. Movant requested that the trial court vacate its ruling on a prior 27.26 motion as well as his conviction on the charge of Assault with Intent to Ravish with Malice.

The movant, Robert McCoy, was convicted by a jury, and sentenced to twenty-five years imprisonment pursuant to the Second Offender Act. The conviction was affirmed on appeal in State v. McCoy, 530 S.W.2d 8 (Mo.App.1975). As his ground for relief, movant alleges ineffective assistance of counsel.

At the evidentiary hearing, movant testified that while awaiting trial in City Jail, he was visited twice by his attorney, a Public Defender. Movant contends that during the first meeting he advised his attorney that an acquaintance, Floyd Harris, committed the offense with which he was charged.

Due to the fact that movant had only been familiar with Harris for three days prior to the incident, he was able to advise his attorney of the block on which Harris resided, but not the particular house number. The Public Defender testified that his investigator went to the block designated by movant, but was unable to locate Harris. In his second meeting with his client, he advised movant of the investigator’s lack of success.

The main thrust of this 27.26 motion is the contention that counsel’s inability to locate Harris reflected a failure to conduct a proper investigation, and amounted to ineffective assistance of counsel.

The framework within which an ineffective assistance of counsel allegation is to be considered is whether “the action (or inaction) of counsel was of such character as to result in a substantial deprivation of defendant’s constitutional right to a fair trial.” Thomas v. State, 516 S.W.2d 761, 765[2] (Mo.App.1974). Furthermore, it has been held that an attorney has a duty to conduct an investigation which is adequate under the circumstances. This duty includes contacting witnesses named by the defendant who may assist in the defense. Pickens v. State, 549 S.W.2d 910 (Mo.App.1977).

An application of this framework to the present case requires an affirmance of the lower court’s decision. The Public Defender visited the movant twice, questioned him regarding possible witnesses, and reported back to him concerning the progress of his investigation. Movant did not suggest any other line of inquiry which would lead to locating Harris.

It is our opinion that counsel’s inability to locate witnesses favorable to the defense was not an indication of a poorly conducted investigation but rather a reflection on his client’s inability to furnish the names and whereabouts of potential witnesses. “In the preparation of a case a lawyer is not required to be clairvoyant, and he must of necessity rely on information furnished him by his client.” Johnson v. State, 479 S.W.2d 416, 420 (Mo.1972).

We do not find the trial court’s decision to be clearly erroneous. Rule 27.26(j). Haynes v. State, 534 S.W.2d 552 (Mo.App. 1976). Movant did not establish that his attorney inadequately performed a duty owed his client.

Judgment affirmed.

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


author: STEWART, Presiding Judge.

text:
    Leonard O’BRIEN, Plaintiff-Respondent, v. MISSOURI CITIES WATER COMPANY et al., Defendant-Appellant.
    No. 38112.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 10, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.

      Edward, Seigfried, Runge & Leonatti, Mexico, for defendant-appellant.
    Paul F. Niedner, St. Charles, for plaintiff-respondent.
   STEWART, Presiding Judge.

Leonard O’Brien, plaintiff, brought an action against Consolidated Water Company (Consolidated) and its wholly owned subsidiary, Missouri Cities Water Company (Missouri Cities) for money due under a contract for consulting services. These parties will frequently be referred to collectively as defendant in the opinion. With the answer defendant filed a counterclaim seeking judgment for payments made to plaintiff in excess of the amounts due under the contract. Defendant also sought damages for breach of a provision of the contract that prohibited plaintiff from engaging in activities contrary to the best interests of defendant. Defendant did not submit an instruction with respect to the claim for damages for breach of contract, therefore this claim has been abandoned and no further reference will be made to it. The jury returned a verdict against defendant on the counterclaim for overpayment and in favor of plaintiff in the sum of $55,740 on his cause of action. Defendant appeals from the judgment entered upon the verdict. We reverse and remand.

The contract sued upon is one of three contracts entered into July 7, 1967, when plaintiff and others sold their stock representing controlling interest in St. Charles Water to Consolidated. St. Charles Water was subsequently merged into Missouri Cities as a subsidiary of Consolidated.

An understanding of the issues requires a detailed chronology of events occurring pri- or to the sale of St. Charles Water to Consolidated.

Plaintiff and William Dreckshage, real estate developers, and a corporation which they had formed, were the principal stockholders of St. Charles Water, a corporation engaged in the business of providing water services in St. Charles County. St. Charles Water obtained certificates of convenience and necessity (certificates) from the Missouri Public Service Commission (PSC) to operate its business in four areas of St. Charles County.

One of the areas for which St. Charles Water had a certificate was known as the Twillman Area. Within this area Twillman Construction Company operated as a real estate developer and in connection with that operation had formed a water and sewer service company to supply these utilities to purchasers within the development. Twillman had a temporary certificate from the PSC. In 1965, Twillman was experienc-. ing financial problems and negotiations were initiated between St. Charles Water and the shareholders of Twillman for the purchase of Twillman’s water system. In 1966, the interested parties entered into a contract for the purchase of Twillman’s water system by St. Charles Water. The price was to be $400,000.00 or the sum determined by the PSC as “net original cost rate base, which is lesser, but [not less than] $250,000.00.” As material to our consideration, the contract was subject to and conditioned upon PSC’s grant of a certificate to St. Charles Water, PSC’s approval of the purchase and PSC’s approval of the purchase price and permission of PSC to allow St. Charles Water to obtain a return based upon the purchase price.

A certificate was issued to St. Charles Water encompassing the area in which Twillman operated as well as additional area. The order of the PSC also authorized the purchase of Twillman by St. Charles Water. The PSC did not approve the purchase price but reserved the determination of original costs and the determination of value for consideration at a later date. The order was effective June 10, 1966 and St. Charles Water took possession of the properties of Twillman and operated the water system thereafter. St. Charles collected the revenues and paid the current expenses; it made no accounting to Twillman. St. Charles also paid off a judgment against Twillman.

Before the approval of a purchase price for the Twillman system by PSC, plaintiff and other shareholders sold the controlling interest in St. Charles to Consolidated in exchange for stock of Consolidated, under a contract dated June 7, 1967.

On the same date the parties to the contract of sale of the stock in St. Charles Water executed a contract calling for plaintiff and Mr. Dreckshage to render consulting services to St. Charles Water for a period of two years. Plaintiff and Mr. Dreckshage were each to receive $12,500.00 per year. Of some significance to our consideration of this case, plaintiff and Mr. Dreckshage were to perform services “to complete water and sewer plant construction, original cost hearing before the Missouri Public Service Commission, completion of the Twillman contract for St. Charles and main extension commitments for a period of two years.”

The contract which forms the basis of this action bears the same date as the other two contracts and provides for payment for consulting services beginning two years after the date of acquisition of the stock of St. Charles Water as provided in the first contract and continuing for a period of eight years. In consideration of consulting services provided by plaintiff and Mr. Dreckshage, Consolidated agreed to pay “. . .in each year during the term of this agreement, semi-annually, a sum in the aggregate equal to Thirty Dollars ($30.00) per active customer added to the system now owned by St. Charles and within its service area during such semiannual period (added active customer is defined as a newly added meter). . . ”

The contract provided for a maximum payment based upon the classification permitted by PSC for tap-in fees charged by the defendants. By reason of the action of the PSC the payments were not to exceed $160,000.00. The maximum limitation is not a material consideration in the case.

Defendant submitted its first semi-annual payment along with an accounting for meters added, in January, 1970 and continued to do so through July of 1972. The accountings showed a total of 1098 meters added for which $32,940.00 was paid by defendants. Plaintiff did not receive an accounting or payment in January, 1973. He later received a letter dated March 22, 1973, from Missouri Cities signed by a Mr. Lee. Mr. Lee had not been with the Consolidated organization when the contract was drawn. The letter advised that Missouri Cities was not obligated to make payments for new customers added to water main extensions of the system which were not in existence at the time the contract was executed; that as he read the contract they were to pay “$30.00 per active customer added to the St. Charles Water System as constituted on June 6, 1967.” Mr. Lee advised that an audit revealed that payments had been made with respect to 194 customers who had been added to main extensions made by defendant which represented an overpayment of $5,820.00. He advised that after allocating a proportionate share to Mr. Dreckshage, plaintiff had been overpaid on 106 additional customers in the sum of $3,180.00 and that this amount would be charged against new customers which would be added in the future to the system as constituted on June 6, 1967. This action on the part of defendant precipitated this litigation.

After the suit was commenced, defendant, in addition to the claim for overpayment of 106 customers added to the main extensions, alleged that it had mistakenly paid plaintiff for customers added to the Twillman area. It is defendant’s contention that the Twillman area was not a part of the system “owned by St. Charles and within its service area” as of June 7, 1967, as provided for in the contract; that it had mistakenly paid plaintiff for 476 added customers within the Twillman area that were not called for by the contract. Defendant by its counterclaim sought to recover $14,-595.00 for the alleged overpayment.

Plaintiff testified that as of January 1, 1976, there were 2267 meters added after the consulting contract became effective. This included the Twillman area and the water main extensions which had been added to the system after Consolidated obtained control of St. Charles Water. He also testified that in addition to meters there had been 647 tap-ins to apartment units. He stated that adding the tap-ins to the meters would total 2914. Using the figure 2914, the total number in dollars at $30.00 each was $87,420.00. Plaintiff had been paid $32,940.00. As stated above, the jury returned a verdict of $55,740.00.

Other facts and matters of evidence will be set out hereafter.

We consider first defendant’s contention that the court erred in giving plaintiff’s verdict directing instruction. In considering this issue we combine plaintiff’s points I and III. As we view the issues, it is contended that the instruction gave the jury a roving commission to interpret unambiguous portions of the contract.

The instruction reads:

“Your verdict must be for plaintiff on plaintiff’s claim for fees due if you believe:
First, that plaintiff and defendant entered in to the Eight year consulting contract referred to in evidence, and
Second, that by reason of that contract defendant agreed to pay certain fees for active water customers added to the system owned by St. Charles County Water Company and within its service area, and
Third, that plaintiff has substantially performed the contract when requested thereto, and has at all times been ready, able and willing to perform his obligations under that contract, and
Fourth, that defendant has failed to pay a part of the fees due and owing on the contract as of January 1, 1976, and
Fifth, that plaintiff was damaged thereby, unless you believe that plaintiff is not entitled to recover by reason of Instruction Number 5.”

Specifically defendant asserts that the instruction imposed on the jury the duty to determine the meaning of the term “certain fees for active customers added.” Defendant argues that there is no basis for interpretation because the contract clearly and unambiguously defines the fees to be paid and the basis upon which they are to be paid. Defendant also contends that the phrase “system now owned by St. Charles” is clear and unambiguous and excluded meters placed into water main extensions made after the purchase of St. Charles Water by Consolidated and that it also excluded the Twillman area because St. Charles Water did not own it before the sale to Consolidated.

The questioned instruction is not in MAI. A not in MAI instruction should be simple, brief, impartial, free from argument and it must not require findings of detailed evidentiary facts. Rule 70.02(e). Simplicity and brevity however are not to be achieved at the sacrifice of inherent sufficiency. Buffington v. Fairground Sales Co., 402 S.W.2d 59, 63 (Mo.App.1966).

We consider first whether the phrase “by reason of that contract defendant agreed to pay certain fees for active water customers added” gave sufficient guidance to the jury in the factual setting of this case.

By the contract “active customer added” was defined by the parties as “a newly added meter.” A meter is a device set into a water line to measure the amount of water used by a customer. A “tap-in” or “tap” is any entry into a water line for the purpose of serving individually occupied units. Not every tap contains a meter. The owner of multiple units, not the water company, determines the number of meters to be installed. St. Charles Water had authority from the PSC to charge a fee for each tap made in its water lines. This fee is referred to as a tap fee.

In this case plaintiff introduced considerable evidence with respect to the number of tap-ins and the amounts received by defendant as tap fees. Plaintiff on direct examination testified that defendant owed him for 2267 “customers added” and added 647 taps made into lines to serve individual apartment units for which there were 54 meters. On the basis of the meters plus the 647 taps, he calculated that the total amount owed to him before credit for payments was $87,420.00.

A part of plaintiff’s cross-examination proceeded as follows:

“Q. . . .
Now, what does that contract say about the definition of active customer; would you read that to the jury please?
A. Added active customer is defined as a newly added meter.
Q. Right. Now, do you think that’s open to some different interpretation, a customer means a meter?
A. It certainly wasn’t my interpretation, let’s put it that way.
Q. You think that when a contract says that an active customer means a meter, it really didn’t mean that?
A. I was looking at the customer tap fees, that’s what I was looking at.
Q. But that isn’t what the contract says, is it?
A. No, Sir.
Q. And you read the contract.
A. Yes, sir.”

At one point when defendant objected to the “confusion of tap fees and meters,” the court stated “ . . . the jury is going to determine what the contract says.”

To the extent that a contract is clear and unambiguous it is the duty of the trial court, not the jury, to declare its meaning by appropriate action. Kalen v. Steele, 341 S.W.2d 343, 346 (Mo.App.1960).

In the case before us “active customer added” was given a specific meaning by the parties. The contract defines the term as “newly added meter.” The meaning is clear and unambiguous. Plaintiff conceded that by the language of the contract he was to be paid upon the basis of newly added meters. The jury should have been instructed as to the meaning of the term. This is particularly appropriate in this ease because there was more testimony concerning the number of “tap-ins” and the amounts of money received by defendant for “tap-ins” than testimony concerning the number of “newly added meters.”

As in Veterans Linoleum & Rug, Inc. v. Tureen, 432 S.W.2d 372 (Mo.App.1968) the jury here was confronted with a term without established meaning. The meaning of the term was dependent upon the specific definition given to it by the parties for the purposes of the contract. Here the term is “certain fees for active water customers added.” The jury was not advised by the instruction that the “certain fees” were $30.00 for each newly added meter. The jury was thus given a roving commission to determine what was meant by “certain fees” and “active water customers added.”

The verdict of the jury indicates that it undertook to make its own determination of the term “active water customers added.” Plaintiff had the burden of proving his damages. The evidence establishes that the maximum number of meters added to the system including Twillman and main extensions to Twillman and the three remaining areas was 2167. This would approximate $65,000.00. Plaintiff had been paid $32,-940.00. The balance due plaintiff under the most favorable view of plaintiff’s case would have been approximately $35,000.00. The jury verdict of $55,740.00 more closely approximates plaintiff’s calculation of the sums due him including tap-ins as well as newly added meters.

We can only repeat here what was said in Veterans Linoleum & Rug, Inc. v. Tureen, supra, “The verdict of the jury shows the construction which it placed upon the contract.” It is apparent that the jury was confused by the irrelevant evidence concerning the number and amounts of tap fees. It construed the contract as entitling plaintiff to $30.00 per “tap-in” made into all four areas served by St. Charles Water including all extensions to the system. The term “active customer added” as defined by the contract was clear and unambiguous; its construction was outside the province of the jury. The instruction here gave the jury a roving commission to construe the contract and was prejudicially erroneous. The judgment for plaintiff on his cause must be reversed and remanded.

We consider next defendant’s contention that by the terms of the contract plaintiff was not entitled to be paid for meters added to the Twillman area or to extensions and additions made to the water system by St. Charles Water after the sale of the stock to Consolidated. The phrase of the contract for our consideration is that providing for payment of $30.00 “per active customer added to the system now owned by St. Charles and within its service area.

It is contended that “system now owned” did not include the Twillman area because legal title had not passed to St. Charles Water at the time of the sale of the stock to Consolidated. It is also claimed that the contract contemplates payment for meters added only to those water mains that were in the ground in all other areas on June 7, 1967.

As to Twillman defendant cites Black’s Law Dictionary, Third Edition for the definition of “owned” as “To have good legal title”. Further definitions from the same source in the Fourth Edition are, “to hold as property; to have a legal or rightful title to; to have; to possess.” From these definitions it can be seen that the terms “owned by”, “owner” and the like are not words having a precise definition.

In Sumpter v. J. E. Sieben Construction Company, 492 S.W.2d 150, 153 (Mo.App.1973) it is said, “The term ‘owner’ is nomen generalissimum and is given the widest variety of meaning according to the circumstances.” The word “owner” is often “used to describe one who has dominion or control over a thing, the title to which is in another.” State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207, 215[6] (Mo.1973).

Considering the impreciseness of such terms as “owner” and “owned by” and “person owning” and the lack of definition in the contract it was proper to look to other evidence for the meaning of the phrase “owned by.” Siemer v. Schuermann Building & Realty Co., 381 S.W.2d 821, 826[1] (Mo.1964).

In this case, at the time the parties entered into the contract, St. Charles Water had a contract to purchase Twillman. In contemplation of the purchase, St. Charles Water obtained a certificate of convenience and necessity under which it had the exclusive right and obligation to operate the system, it collected the revenues and paid the current bills; it made no accounting to Twillman. Extensions were made to the system under the plaintiff’s ownership of St. Charles Water and under the control of Consolidated. St. Charles Water exercised complete dominion and control over the Twillman system. By the terms of the consulting contract plaintiff agreed to assist in expediting the closing on the contract. The contract, the certificates and the operation of this system were recognized by the parties as valuable assets of the corporation.

An ambiguity is an “indistinctness or uncertainty of meaning of an expression used in a written instrument.” Peters v. Briska, 191 S.W.2d 993, 996 (Mo.App.1946). When an ambiguity exists in a contract the interpretation given to the contract by the parties, as shown by their conduct, may be considered in determining their true intent. Wentzel v. Lake Lotawana Development Co., 226 Mo.App. 960, 48 S.W.2d 185, 195 (1932). In the context of this ease the phrase “now owned” is ambiguous so far as the Twillman area is concerned and the meaning of that phrase is for the jury. Defendant paid plaintiff for “newly added meters” to the Twillman System and continued to do so even after it challenged plaintiff’s right to fees for meters added to water main extensions in all four areas.

Remaining is the question of whether meters added during the contract period to water main extensions made after Consolidated acquired St. Charles Water Company were clearly excluded by the terms of the contract. Defendant’s position is that the “system now owned by St. Charles and within its service area” was confined to the pipes in the ground as of June 7, 1967. Defendant relies heavily on the definition of system as “a set or arrangement of things so related or connected as to form a unity or organic whole,” Webster’s New Twentieth Century Dictionary, Second Edition. It does not follow from the definition that the fees payable are confined to the pipes then in the ground. It has been said that “ ‘System’ has different meanings when used in different contexts.” Movement against Destruction v. Volpe, 361 F.Supp. 1360, 1366 n. 6 (D.Md.1973). System has also been defined as a “coherent unification,” an “orderly working totality,” a complex unity of “often diverse parts subject to a common plan or serving a common purpose,” a “set of units combined . to form an integral, organic, or organized whole.” Webster’s Third New International Dictionary 2322 (1966). It is apparent that the phrase here can be understood in either of two or more possible senses and is thus ambiguous. Chamberlain v. Mutual Benefit Health & Accident Ass’n., 260 S.W.2d 790 (Mo.App.1953). We must view the phrase in the context of the entire transaction. The word “system” could be understood as meaning the combination of the four areas to which St. Charles Water had certificates and in which it was authorized to provide water service to a growing community. The words “and within its service area” can be read to limit the extent of defendant’s liability so that it would be accountable for all meters placed in lines within the service area but not outside the existing service area. This phrase contemplates the possibility that St. Charles Water might obtain additional authority over contiguous areas. Such an interpretation is supported by the language in the contract which recites defendant’s recognition of plaintiff’s familiarity with the St. Charles County area, and his working relationship with real estate brokers and developers in the area.

Defendant wrote a letter to PSC in 1971 giving some of the reasons they had entered into the consulting contract. The letter among other things stated, “It is a practice of St. Charles County division to install many mains on private easements to avoid standing costs of highway relocation, the early easements had to be secured by people with knowledge in the area, again a capital item.” “The area was growing annually by approximately 500 water customers and 300 sewer customers, many subdivisions, locations and replacements or loops were involved . . . A person familiar with the capabilities of the individual areas was needed for negotiating with subdividers and familiarity with system capabilities was needed to design other system backup plant insofar as distribution mains were concerned.” “Just recently a developer was steered to the company for a new main extension, the attached papers show the nature of the jobs which they rendered services.” “Mr. O’Brien stepped in to help with the negotiations for Sunny Meadows, main extension in the St. Peters area.” “The company laid several mains in private easements which O’Brien was particularly adept in negotiating.”

Also significant is the fact that, as with Twillman, defendant paid plaintiff for all meters added to the system including extensions made after the sale of the stock to Consolidated until Mr. Lee’s letter of March 22, 1973.

Defendant cites as conclusive the testimony of the officer of Missouri Cities who drafted the contract that the company intended “system now owned” to mean the water mains in the ground on June 7, 1967. The weakness of this argument is its implicit assumption that the testimony of the parties themselves as to their understanding of what the contract means is the only evidence competent to resolve an ambiguity. This is often the least persuasive evidence. In construing ambiguous contracts the court may consider the relationship of the parties, subject matter of the contract, business usage, surrounding facts and circumstances attending its execution as well as the practical and knowledgeable construction which the parties themselves placed on the contract by their conduct. Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833, 852 (Mo. banc 1960). Once an ambiguity is determined the weight to be placed on the interpretation of the contract by the parties is for the jury to determine.

The meaning of the phrase “system now owned by St. Charles and within its service area” was ambiguous and thus a proper subject for consideration by the jury. Ragsdale v. Tom-Boy, Inc., 317 S.W.2d 679, 688 (Mo.App.1958).

Other matters raised are not likely to recur in retrial and will not be discussed.

The issue determined here affects not only plaintiff’s cause of action but defendant’s counterclaim. The cause is reversed and remanded for a new trial on plaintiff’s cause of action and on defendant’s counterclaim as submitted. Quality Dairy Co. v. Openlander, 456 S.W.2d 608, 610 (Mo.App.1970).

REINHARD and STEPHAN, JJ., concur.

      . The Twillman contract was consummated in September, 1968 after it was modified by a reduction in price to $209,000.00 in accordance with findings of the PSC. St. Charles Water was a subsidiary of Consolidated when the contract was modified.

      . Plaintiff and Mr. Dreckshage were to share equally in the payments. The contract also provided that upon death or disability of either of them, the payments would be made to the survivor. Mr. Dreckshage died before commencement of the action; hence, the action was brought by plaintiff on his own behalf.

      . Ten pages of cross examination of one of defendant’s witnesses with respect to tap fees culminated with the following:
      “[Counsel for plaintiff]: Q. So that the total tap-in fees which Missouri Cities collected from the end of ’74 backwards to the end of ’69 would be the total of $17,945.00, $71,900.00, $81,880.00, $86,350.00, $55,620.00, $43,134.00; that would be the total for those years?
      A. Yes.”
      Other examples are:
      In cross-examination of a witness for defendant:
      “[Counsel for plaintiff]: Q. Do you think that is a correct payment to Mr. O’Brien to collect 150 tap fees for 150 customers, users so to speak, and because you put in 11 meters that you only pay him for 11 meters, 11 times $30.00?
      A. That’s what the contract specified.
      Q. (By Mr. Niedner): Well, would you reason you would have a right under this contract to attach one meter for say 250 apartments and paid him one $30.00 fee and collect 250 tap fees, is that what you believe this contract means?
      A. Yes, I do. We’re following the same procedure Mr. O’Brien used and the same rules he operated under.
      Q. (By Mr. Niedner) . . . you have only paid Mr. O’Brien for 11 meters but have collected 150 tap fees and you had a contract to pay Mr. O’Brien a certain consulting fee per customer, isn’t that correct?
      A. We honored that contract, we paid him $30.00 for each newly added customer, it does not say anything about tap fees.
      Q. You think that’s a fair construction?
      A. If he had been in many contracts—
      Q. I just asked you, you think that’s a fair construction?
      A. Yes, I do.”


author: SMITH, Judge.

text:
    Joseph J. SPARACIO, Plaintiff-Appellant, v. CITY OF BRIDGETON et al., Defendants-Respondents.
    No. 39422.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 10, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Love, Lacks, McMahon & Schwarz, Thomas K. Edelmann, Chester A. Love, Jr., Clayton, for plaintiff-appellant.
    Lewis C. Green, Richard D. Lageson, St. Louis, for defendants-respondents.
   SMITH, Judge.

Plaintiff appeals from the action of the trial court in dismissing his petition for declaratory judgment based upon defendants’ terminating his employment as executive director of parks contrary to an alleged employment contract.

On appeal plaintiff set forth three “points” as follows:

“The Bridgeton Park Board Had Authority to Employ Plaintiff as its Executive Director of Parks and Recreation. [Citations omitted]
“The Bridgeton Park Board Had Authority to Enter Into the Employment Contract with Plaintiff. [Citations omitted] “The City of Bridgeton Was Bound by the Actions of the Park Board and is Obligated on the Contract With Plaintiff.” [Citations omitted]

These points are not in compliance with Rule 84.04(d). An extensive, thorough and helpful discussion of the requirements of this rule and the reasons therefor is found in Thummel v. King, 570 S.W.2d 679 (Mo. Sup.1978). It is clear from that opinion, the language of the rule and the many decisions of the appellate courts of this state that the brief of appellant herein does not comply with the rules. We additionally note that the first and most serious point raised by respondents, that public office cannot be the subject of a valid contract, was not addressed by appellant in either his original or reply brief.

Respondents filed a motion to dismiss the appeal for failure to comply with the rules. That motion was taken with the case. It is now granted.

Appeal dismissed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: GUNN, Judge.

text:
    Helen ARTHUR et al., Plaintiffs-Appellants, v. Blanche ROYSE, Administratrix of the Estate of Charles Royse, Deceased, Defendant-Respondent.
    No. 39902.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 17, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Devereaux & Stokes, Michael D. Stokes, St. Louis, for plaintiffs-appellants.
    Kortenhof & Ely, Ben Ely, Jr., St. Louis, Ely & Cary, Ben Ely, Sr., Hannibal, for defendant-respondent.
   GUNN, Judge.

On August 5, 1974, plaintiff Helen Arthur was injured in one of a series of three collisions which occurred at the intersection of Hampton and Hancock Avenues in St. Louis. Charles Royse, driver of the vehicle that initiated the chain of accidents, died of an apparent heart attack some time during the mishap. Mrs. Arthur and her husband sued the administratrix of Royse’s estate and now appeal from a jury verdict which denied their prayer for damages. Appellants contend that they suffered prejudice as the result of the trial court’s submission of defendant’s verdict directing instruction. We agree and reverse and remand.

The evidence adduced at trial indicated that Charles Royse had a history of heart disease, including two documented coronaries, prior to his death at age 67. On August 5,1974, at approximately 7:00 p. m., he was travelling in the middle lane of the three southbound lanes on Hampton Avenue. The weather was clear and dry. As he approached the intersection of Hampton and Hancock, Royse sideswiped an unoccupied vehicle in the lane to his right, then proceeded forward into the rear of the automobile in which Mrs. Arthur was a passenger. Mr. Arthur, driver of that car, had intended to turn right onto Hancock Avenue. The force of the impact pushed his car into another vehicle which had been preparing to turn left from Hancock onto Hampton. Walter Sansone, driver of that fourth car, testified that he had looked to his left immediately after hearing the first impact and saw Royse slump sideways behind the steering wheel before striking the Arthurs’ car. The first police officer to arrive at the scene examined Royse for vital signs and concluded that he was dead. Royse was taken to City Hospital and pronounced dead on arrival. A subsequent inspection of the body revealed no evidence of bruises, cuts or other trauma. No autopsy was ever performed. The official death certificate signed by Royse’s physician, Dr. Frede Martensen, indicated that the cause of death was acute myocardial infarction. This determination was based solely on Dr. Martensen’s knowledge of Royse’s previous medical history. Dr. Martensen testified that it would be impossible to state with certainty whether the heart attack occurred before or after Royse struck the first vehicle. During cross-examination, however, he agreed that a consideration of the facts of the incident and knowledge of the decedent’s heart condition made it more probable that the attack occurred prior to the initial collision. Dr. Belmont Thiele, medical expert for the defendant, concurred with Dr. Martensen’s second conclusion. Nevertheless, a jury question did exist as to whether a heart attack occurred before or after the first collision.

Instruction 5, the source of appellant’s complaint and cynosure of this appeal, embodies the key to respondent’s defense. The instruction reads:

Your verdict must be for the defendant on the claims of both Helen Arthur and Frederick Arthur for damages, if you believe:
First, defendant’s decedent, Charles Royse, suffered a heart attack immediately before either of the collisions mentioned in the evidence; and
Second, defendant’s decedent, Charles Royse, did not know and by using the highest degree of care could not have known that he would suffer a heart attack; and
Third, such heart attack of defendant’s decedent, Charles Royse, directly caused the collisions mentioned in the evidence.
The term “highest degree of care” as used in this Instruction means that degree of care that a very careful and prudent person would use under the same or similar circumstances, (emphasis added)

If the collisions were not caused by decedent’s negligence but were ascribed instead to an “Act of God” (i. e.: a fatal heart attack), then the decedent should be absolved of any liability. In order to invoke the “Act of God” defense, however, the human actor must have exercised due care prior to the intervention of the super-human cause. Any negligence on the part of the decedent which concurred with the Act of God as the proximate cause of the accident would reinstate Royse’s responsibility. Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.2d 756, 763 (Mo.banc 1948); Corrington v. Kalicak, 319 S.W.2d 888 (Mo.App.1956).

When the result in part is ascribable to the participation of man, either through active intervention or neglect or failure to act, “the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God.” Kennedy, supra, 216 S.W.2d at 763 [quoting Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163, 168 (1943)].

Hence, if Royse were negligent in striking the first auto, which triggered the heart attack, he could be liable for the collision with plaintiffs auto. Conversely, if the attack came before he struck the first car, the intervening Act of God (the heart attack) would exculpate him.

Appellant argues that instruction 5 was prejudicially erroneous because it was ambiguous, it misdirected the jury and was open to a construction at variance with the law of Missouri. All of these evils were attributed to the choice of a single word in the first proposition of the instruction: “either.” Appellant complains that a jury could interpret “either of the collisions” to mean “one or the other.” As a consequence of the instruction, decedent would be relieved of responsibility for the entire incident even if he negligently sideswiped the parked vehicle and suffered the fatal heart attack later. We concur with appellant’s argument.

It is apparent from the wording of Paragraph First that the jury must return a favorable verdict for the respondent if they found that Royse had his heart attack either before the first collision or after the first collision but before the second collision with appellant’s car. And with the latter ease, the instruction would be erroneous.

Respondent argues, and we agree, that we must review the offending language in the light of the entire instruction. Goodwin v. S. J. Groves & Sons Co., 525 S.W.2d 577 (Mo.App.1975); Collier v. Roth, 515 S.W.2d 829 (Mo.App.1974). Respondent then directs attention to Paragraph Third of the instruction and argues that it cures or satisfactorily explains any misconception regarding Paragraph Third, to wit: that reference to his heart attack causing the collisions mentioned in the evidence means the first as well as following collisions. We agree with respondent that, the ultimate test for correctness of an instruction is whether it follows the substantive law and whether it will be correctly understood by a jury composed of average lay people. Kirkwood Medical Supply Co. v. Ann Patterson Enterprises, Inc., 511 S.W.2d 433 (Mo.App.1974); Koirtyohann v. Washington Plumbing & Heating Co., 494 S.W.2d 665 (Mo.App. 1973). But we find the ambiguity, error and misconception of Paragraph First too egregious to be corrected by the subtlety of Paragraph Third. Instruction 5, therefore, contains a misstatement of the law which is ground for reversal and remand of the case. To be in proper form, Paragraph First should allow the jury to find for defendant if they believed that Royse suffered his heart attack immediately before the first collision — not either of the collisions mentioned in the evidence.

Respondent contends that the established lexicons provided several definitions for the word “either,” including the word “both.” But the fact that “either” could have several meanings exacerbates the conflict and confusion within the instruction. Instruction 5 fails to meet the test recited in Woodford v. Illinois, Gulf Central R. Co., 518 S.W.2d 712, 716 (Mo.App.1974), that it be not “confusing, misleading, inadequate nor prejudicially erroneous . . .;” that the language “be so plain that no doubt can arise as to its meaning.”

Reversed and remanded.

REINHARD, P. J., and CLEMENS, J., concur.


author: REINHARD, Judge.

text:
    Richard P. EDWARDS, Respondent, v. George F. HEIDELBAUGH, Jr., Appellant.
    No. 39803.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 24, 1978.

      Schlechter & Zerman, Allan H. Zerman, David V. Collignon, Clayton, for appellant.
    Armstrong, Teasdale, Kramer & Vaughn, Frederick H. Mayer, St. Louis, for respondent.
   REINHARD, Judge.

This is an appeal from a summary judgment entered in the trial court under Rule 74.04, V.A.M.R., in favor of the plaintiff and against the defendant as the result of defendant’s personal guaranty of a promissory note. Judgment was entered in the amount of $30,008.00. On appeal defendant submits that the trial court erred in rendering summary judgment because there remains a genuine issue of fact as to the lack of consideration for his personal guaranty and therefore plaintiff was not entitled to a judgment as a matter of law.

From the record we learn that M.A.R. Promotions, Inc. (hereinafter called M.A.R.) was a corporation formed to promote and operate Mid-America Raceways in Wentz-ville, Missouri. Defendant was an officer and a major shareholder in M.A.R. In June of 1976, M.A.R. contacted plaintiff, who was doing business as Midwest EON, for the purpose of having plaintiff become a co-sponsor of a USAC champion stock car race which was to be held on July 4,1976, in Wentzville. On June 22, 1976, M.A.R. executed a sponsorship agreement for the aforementioned race, which was to be called the “EON Bicentennial 250”. Also on that date M.A.R., by its officers, executed a promissory note payable to plaintiff in the amount of $31,680.00. Plaintiff signed the sponsorship agreement on June 23, 1976. Also on June 23, 1976, a personal guaranty was given to plaintiff by defendant and another officer of M.A.R. which plaintiff alleges was to insure payment of the note.

The race was held as planned; however, it was not a financial success. On July 6, 1976, M.A.R. made a payment of $4,400.00 to plaintiff. No further payments were made. Plaintiff then filed suit against defendant based on the personal guaranty.

Plaintiff’s petition alleged that M.A.R., for value received, executed and delivered to plaintiff a promissory note in the amount of $31,680.00 payable on demand and if no demand is made then payable on July 6, 1976. The petition further alleged that there has been credited on the note a payment in the sum of $4,400.00. The petition also alleged that the note provided for 10% attorney fees if placed in the hands of an attorney for collection, which it alleged was done. The petition further alleged that “On or about June 23, 1976, contemporaneous with the execution of the promissory note attached hereto as Exhibit ‘A’, and in consideration thereof, defendant George E. [sic] Heidelbaugh, Jr., signed a guaranty, a copy of which is attached hereto, marked as Exhibit ‘B;’ [sic] and incorporated herein.” The petition further alleged that the unpaid balance including the attorney fees is $30,-008.00, and that plaintiff has made demand upon defendant for the payment of said sum and defendant has refused to pay.

The transcript does not contain defendant’s original answer but his first amended answer, filed subsequent to the motion for summary judgment, denies generally most of the allegations in the petition and states “that with regards [sic] to Paragraph 6 of the Plaintiff’s Petition there is a total lack of consideration to support the alleged guaranty.”

The principles of law governing the appellate review of summary judgments are quite settled. In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the parties against whom the motion was filed and the judgment was rendered, and to accord to such parties the benefit of every doubt. Phegley v. Porter-DeWitt Construction Co., 501 S.W.2d 859, 863 (Mo.App.1973); Pagan v. City of Kennett, 427 S.W.2d 251, 252 (Mo.App.1968). A summary judgment may only be rendered where it is made manifest by the pleadings, deposition and admissions on file, together with any affidavits, that there is no genuine issue of material fact. Rule 74.04(c); Phegley, supra at 863. A genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts. Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo. 1965), cert. den., 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688. The burden rests upon the movant (in this case upon the plaintiff) to show by “unassailable proof” that there is no genuine issue of fact. Rule 74.04(h); Phegley, supra at 863.

Plaintiff’s motion for summary judgment relied upon the pleadings, deposition, answers to interrogatories and admissions on file. Defendant did not respond to the motion, but argues that there remains a genuine issue of fact as to the lack of consideration for his personal guaranty, and therefore that plaintiff was not entitled to a judgment as a matter of law. The only issue raised was whether the guaranty was executed contemporaneously with the contract and therefore whether there was the necessary consideration to support the guaranty.

A guaranty is a separate independent contract and requires consideration. A contract of guaranty when executed contemporaneously with the original contract may be considered part of the original contract and hence, may be supported by the same consideration. Tri-State Lumber & Shingle Co. v. Proctor, 233 Mo.App. 1207, 128 S.W.2d 1116, 1121 (1939); Great Western Printing Co. v. Belcher, 127 Mo.App. 133, 104 S.W. 894, 895 (1907). As stated in Great Western Printing Co., supra, 104 S.W. at 895, “the word ‘guaranty implies, when it does not appear to the contrary, that the entire matter was one concurrent act and the contract of guaranty was a part of the original agreement, supported by the same consideration.”

Examination of defendant’s deposition, and his responses to plaintiff’s request for admissions and plaintiff’s interrogatories propounded to defendant reveals the following. Defendant admits the execution of the note on June 22,1976 by the officers of M.A.R. He further admits the execution of the contract between M.A.R. and Edwards wherein Edwards was to provide the funds for the race, and in conjunction M.A.R. was to execute the note. He also admits that the corporation signed the contract on June 22, 1976, the same day it signed the note, and that Edwards signed the contract on June 23, 1976. Further, defendant admits that the guaranty was executed and dated June 23,1976, the same day as the contract, and that the only amount paid on said note was the sum of $4,400.00. Defendant raises no issue as to the validity of the note, nor does he contest that the amount of the judgment is proper. The question raised is whether there was “unassailable proof”, as required by Rule 74.04(h), that the guaranty was executed contemporaneously with the contract. We find there to be such proof in this case.

The personal guaranty given by defendant to Edwards was signed on June 23, 1976, the day after the note was executed and the same day upon which the contract was completed. There was a single contract between the parties relating to this single 4th of July race. Furthermore the guaranty was a continuing one relating to all past and future debts. Coupled with this is defendant’s statements in his deposition that he had provided plaintiff with personal financial statements, although he did not specify exactly when these statements were given, and that he had discussed the guaranty sometime prior to signing it. Another factor is defendant’s position as a major stockholder in M.A.R. so that any contract created between Edwards and M.A.R. would be to his benefit. It is clear that the guaranty was a significant part of this entire contractual arrangement between M.A.R. and EON. Thus it appears from the record that the entire matter was a single transaction concerning the same subject matter, that the signing of the note, contract and guaranty were legally contemporaneous, and therefore that the contract and note themselves constituted adequate consideration for the guaranty. That the guaranty was executed the day after the note was executed does not preclude a finding that the guaranty was executed contemporaneously with the note and contract. See Centennial State Bank v. S. E. K. Construction Co., Inc., 518 S.W.2d 143, 150 (Mo. App.1974).

Defendant denies that the guaranty was given contemporaneously with the note, and that a material issue of fact is presented in this regard. However, defendant’s mere denial in the face of the deposition, interrogatories and admissions offered by plaintiff is not enough. In Missouri, when a party to litigation is confronted by a proper motion for summary judgment under Rule 74.04, supported by interrogatories and admissions as well as pleadings, that party cannot sit idly by, rely on his pleadings of denial or ultimate facts, or argue that he has evidence for trial that will disclose issues of fact. Rather he must come forward with “specific facts” which demonstrate that a material issue does in fact exist. First National Bank of Liberty v. Latimer, 486 S.W.2d 262, 266 (Mo.1972). Otherwise he is vulnerable to the “harsh and drastic” remedy of summary judgment. Kroh Brothers Dev. Co. v. State Line Eighty-Nine, Inc., 506 S.W.2d 4, 12 (Mo. App.1974); Rule 74.04(e).

Applying this principle, we find that defendant has failed to come forward with specific facts tending to show that the contract, note and guaranty were not contemporaneous. Defendant’s testimony in his deposition that he did not remember when the guaranty was signed was not a specific fact sufficient to create a material issue of fact, particularly in light of his admission in his interrogatories that the guaranty was first signed on June 23, 1976. Defendant has failed to meet his burden of rebuttal and is left helpless to the remedy of summary judgment.

Accordingly, the judgment of the trial court is affirmed.

GUNN, P. J., and KELLY, J., concur.

      . We note here that the contract made no mention of a guaranty.


author: REINHARD, Presiding Judge.

text:
    Michael Luther HILL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39154.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 14, 1978.

      William J. Shaw, Public Defender, Timothy A. Gardner, Asst. Public Defender, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Gregory W. Schroeder, Eric Martin, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Steven Goldman, Asst. Pros. Atty., Clayton, for respondent.
   REINHARD, Presiding Judge.

Appellant pleaded guilty to a charge of burglary second degree and was sentenced to ten years in the penitentiary. This appeal arises from a denial of appellant’s motion under Rule 27.26 to vacate judgment and sentence imposed upon him. The trial court determined that appellant’s pleadings were inadequate and dismissed his motion for “failure to state cause of action.” Appellant appeals from this order.

Applying the generally accepted interpretation of a dismissal for failure to state a cause of action, appellant’s motion, necessarily construed in the light most favorable to appellant, did state grounds and raise legal issues which, if established, might entitle appellant to relief. Irby v. St. Louis County Cab Co., 560 S.W.2d 392, 394 (Mo.App.1977); Niemczyk v. Burleson, 538 S.W.2d 737, 742 (Mo.App.1976). In his prose motion, appellant contended that his plea of guilty was induced by the state’s promise of a maximum five year sentence, conveyed in good faith by his attorney and that consequently his plea was involuntary, being the result of deceit and trickery on the part of the attorney for the state. State ex rel. Reece v. Campbell, 551 S.W.2d 292, 299 (Mo.App.1977). Appellant also asserts that he was denied effective assistance of counsel at his sentencing hearing, because he was represented by a “stand-in” counsel who was unfamiliar with his case and had not communicated with appellant. See McClain v. State, 448 S.W.2d 599, 602-603 (Mo.1970). Reviewing these contentions, we find that simple dismissal for failure to state a cause of action was inappropriate here.

The state argues that appellant’s 27.26 contentions are refuted by the record of the plea and sentencing proceedings, contending that they reveal that at the plea hearing appellant stated that no promises had been made, and that at the sentencing hearing he claimed a promise of probation, both of which are inconsistent with his present contention of a promise of five years.

The state’s argument has merit in that an evidentiary hearing is not required if a movant’s allegations are “refuted by the record in the trial court; . .” Perry v. State, 565 S.W.2d 464 (Mo.App. 1978). Furthermore, if the trial court’s review of the record reveals that an eviden-tiary hearing is unnecessary, a summary denial is equivalent to findings of fact and conclusions of law. Tillman v. State, 570 S.W.2d 844 (Mo.App.St.L.1978). However, this is not the situation here. The language of the court’s order reveals that the trial court did not consider the plea and sentencing proceedings and its determination was upon the appellant’s motion only.

Order dismissing the motion for failure to state a cause of action is reversed and case is remanded.

CLEMENS and GUNN, JJ., concur.

      . We have considered respondent’s motion to dismiss appellant’s brief for failure to comply with Rule 84.04 and overrule the motion.

      . Although this case might appear to be inconsistent with our recent opinion in Clemons v. State, No. 39783, 573 S.W.2d 419 (Mo.App. St.L. October 17, 1978), a review of the court’s order in that case reveals that the trial court reviewed the transcript of the plea, made extensive findings of fact and conclusions of law and expressly found that the record of the plea proceedings refuted the factual allegations of the motion. The trial court’s order in that case was not a dismissal for failure to state a cause of action in the sense we have here.

      . Note that we make no finding as to the necessity of an evidentiary hearing in this case. On remand it is still for the trial court to determine whether appellant’s factual allegations are refuted by the record.


author: TITUS, Judge.

text:
    Robert E. L. PRICHARD, Plaintiff-Respondent, v. Edward E. HINK, Defendant-Appellant.
    No. 10491.
    Missouri Court of Appeals, Springfield District.
    Nov. 17, 1978.

      Raymond T. Huesemann, Osceola, for plaintiff-respondent.
    J. D. Baker, Belisle & Baker, Osceola, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

This is a case about a St. Clair County slough (also spelled slew or slue) situate in the southwest quarter of the southwest quarter of Sec. 1, Twp. 37, R. 28. The slough lies between an east-west county road to the south and the east-west Osage River to the north. Plaintiff, claiming the east boundary of his real estate was the lowest depression of the slough, brought suit to quiet title. Defendant, asserting the west bank of the slough was his west boundary line, counterclaimed. Defendant appealed after the trial court ruled “that the east line of Plaintiff’s said tract begins at the intersection of said county road with the center of the lowest depression or slough . . . thence northwesterly along the center of said depression or slough to the right [south] bank of the Osage River.” (We do not agree with the trial court’s apparent synonymizing “depression” with “slough.”)

Via the following diagram, we attempt to reproduce an illustrative exhibit of the involved area. Albeit there was testimony that the north-south distance between the county road and the river was 300 or 400 feet, the exhibit indicates the distance to be 400 feet. In the diagram, the slough is shown as the shaded area enclosed with broken lines; the solid line within the slough represents “kind of a gulley, or a cut or a wash at the bottom” thereof. Next to the road at the south end, the slough is roughly stated to be 40-60 feet wide and broadens to a width of about 280 feet where it adjoins the river.

[See following illustration.]

Plaintiff’s 1969 warranty deed from Glen & Opal England conveyed: . . Begin in North line of County road at a point 100 feet East of West line of Southwest quarter of Southwest quarter: run thence East along North line of said road to slough; thence Northwesterly with slough to Right Bank of Osage River; thence Westerly along Right Bank of River to a point 100 feet East of West line of Southwest quarter of Southwest quarter; thence South to point of beginning, . . containing three (3) acres, more or less.”

Defendant’s 1976 warranty deed from the Englands conveyed: . Begin in North line of County Road . . . (482) feet East of the West line of the Southwest Quarter of the Southwest Quarter . . . : Run thence East . . . (298) feet along North line of Public Road; thence due North to Right Bank of Osage River; thence Westerly along right Bank of Osage River to West bank of slough; thence with Westerly bank of slough in a Southeasterly direction to point of beginning.”

In substance, defendant’s first point relied on (and the only point we need consider) is that the trial court erroneously found the slough to be a watercourse and erred in applying the law relating to watercourses designated as monuments in construing the description in plaintiff’s deed.

We do not believe the trial court necessarily declared the slough to be a watercourse. In its findings, the court simply noted that “slough” had been defined, inter alia, as a “watercourse.” Where “watercourse” has been said to be synonymous with “slough” (80 C.J.S. Slough at p. 1335 and 93 C.J.S. Waters § 2, p. 595), a reading of the source for this application of terms [Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607, 611[4] (1927), cert. dismissed, 275 U.S. 486, 48 S.Ct. 27, 72 L.Ed. 387 (1927)] indicates the reference to sloughs is, in fact, an allusion to channels springing from the immediate de-bouchment of a river as it arrives in the plain at the lower reaches of a mountain and spreads into minor channels with characteristics of watercourses. Also see State ex rel. Davis v. Superior Court for Cowlitz County, 84 Wash. 252, 146 P. 609 (1915), where the slough was actually the north fork of a river which was navigable for floating logs but not in the general commercial sense. In this state to constitute a watercourse, there must usually, but not necessarily continually, be a stream flowing in a particular direction in a definite channel bounded by banks. The stream should discharge itself into some other body of water. A watercourse is more than drainage of surface water caused by rain or melting snow. Neither are sloughs to be considered as watercourses in reference to water therein which has escaped from the natural channel or banks of a nearby stream of running water by reason of a flood in the stream produced by heavy rains or melting snow. St. Louis, Iron Mountain & Southern Ry. Co. v. Schneider, 30 Mo. App. 620, 623 — 624[1] (1888); Jones v. Wabash, St. Louis & Pac. Ry. Co., 18 Mo.App. 251, 257[2] (1885). “Slough” is variously defined as “backwater”, “an inlet from a river”, and “a place of deep mud or mire.” Webster’s New Collegiate Dictionary, p. 1094; Webster’s New World Dictionary of the American Language, Col.Ed., p. 1374. Also in its findings, the trial court concluded from the evidence and exhibits that the slough in question “is a dry branch except when there is runoff water or backup water from the river or runoff surface water.” Under this finding, with which we agree, and under the definitions, supra, the slough in this case is no watercourse. Benson v. The Chicago & Alton Railroad Company, 78 Mo. 504, 513—514[6] (1883). This is our opinion and conclusion in spite of what some may term as equivocation in the summary of the problems reported in Happy v. Kenton, 362 Mo. 1156, 1160-1161, 247 S.W.2d 698, 701 (1952).

What then is the slough in this case? In our opinion it is a natural monument. Although they may lose their distinctive character as such by removal, change or displacement, natural monuments are fixed, visible objects found on the land as they were put there by nature. State ex rel. Albert v. Adams, 540 S.W.2d 26, 30 (Mo. banc 1976); Koch v. Gordon, 231 Mo. 645, 652, 133 S.W. 609, 610 (1910); 11 C.J.S. Boundaries § 6, pp. 546-547. Natural monuments can be rocks, trees, springs, streams (11 C.J.S. Boundaries § 6, at p. 546), swamps [Brooks v. Britt, 15 N.C. 413 (1834)] and the kind of slough in question. A settled rule in the law of boundaries is that calls for quantity, courses, distances and the like will, in case of conflict, yield to and be controlled by one for a natural object, landmark or monument [Houska v. Frederick, 447 S.W.2d 514, 518 (Mo.1969); Czarnecki v. Phillips Pipe Line Co., 524 S.W.2d 153, 157 (Mo.App.1975)], and if the monument has width which requires determination of the boundary of the monument, such as the slough here, the boundary is the center line of the monument. 12 Am.Jur.2d, Boundaries, § 5, pp. 550-551; 11 C.J.S. Boundaries § 5, at p. 546.

While we have determined that plaintiff’s deed conveying “to slough; thence . . . with slough” was a deed with a call to a natural monument with width and hence to the center line thereof, the paucity in the testimony and the uncertainties in the evidence and exhibits makes it impossible for us to accurately determine the center line of the slough-monument. Therefore, no alternative exists but to reverse the judgment nisi and remand the cause to the circuit court from whence it came to receive additional evidence necessary for a proper decision and determination as to the center line of the slough and hence the establishment of the common boundary line between the properties of the parties.

All concur.